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Origin and Development of Private International Law

LLM: Private International Law


Speech II

S M Masum Billah

15 January 2010

Introduction

Private International Law has developed as a system very recently. Judicial decisions
have contributed largely in shaping this branch of law but it is also influenced by
continental thoughts. It is necessary to focus on its historical development before any
serious discussion on Private International Law issues.

1. Origin and Development of Private International Law in the Continent

Private International Law can be developed only when law has become territorial in
application. In ancient times when law was largely personal in application, then the
necessity of Private International Law was not felt. Development of private international
law in the continental countries (i.e. Italy, Germany, Netherlands, and France etc.) is
mainly byproduct of juristic writings. Hence it is explained by some theories.

a. Rome:

The contribution of Roman legal system towards the evolution of Private International
Law is the rules of Origo and Domicilum i. e. law of natives and alien. A person had his
Origo in the place to which his father or mother (if he is illegitimate) belonged.
Domicilium meant the relation between a man and the urban community which he had
chosen for his permanent residence.

Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had
jurisdiction to deal with multi-state cases. The officers of these specialized tribunals were
known as the praetor peregrini. The Praetor peregrini did not select a jurisdiction whose
rules of law should apply. Instead, they "applied" the jus gentium. The jus gentium was a
flexible and loosely-defined body of law based on international norms. Thus the praetor
peregrini essentially created new substantive law for each case. Today, this is called a
"substantive" solution to the choice-of-law issue.

b. After the fall of Roman Empire:

After the fall of Roman Empire law again became personal. In such system, the rule of
law to which the defendant belonged must prevail. So, there was no scope for the growth
of Private International Law.
c. 11th and 12th Centuries:

Gradual development of feudalism in North and growth of Italian cities in the South, in
11th and 12th century gave rise to the territorial nature of law. A large number of cities like
Florence, Bologna, Milan and Padua emerged. Each of these cities was subject to
different system of laws which were applicable to the residents therein.

d. 13th to 18th Century:

With the development of commerce and transaction dispute arose between individuals of
two cities of Italy. Jurists tried to solve those problems by focusing on rules of Roman
law, who are known as Glossators. However, the early Glossators were not so much
successful to this end, but the post-Glossators in 13 th century were. The post Glossators
discovered the Statute theory. According to this theory law can be divided into two
categories: I. Real Statute and II. Personal Statute
The main purpose of real statute is to regulate things and the purpose of personal statute
is to deal about personal matters. Real statutes were considered essentially as territorial
while personal statutes were personal. The law of person would be applicable unless such
personal law was opposed to the Public Order of the city. Bartolus was a greatest
scholar amongst other during this period. However, this theory was not perfect as
classification of real and personal was not unanimous amongst cities and the definition
of public order was not clear.

e. France:

Statute theory was carried to France in 16 th Century. It was refined and developed there
by the jurists. The famous jurists of this time are Dumoulin and DArgentre. By the end
of 16th century with the fall of feudalism and rise of sovereign national state, the concept
of national statute developed in Europe. Then the territorial nature of law came to be
widely accepted.

d. Netherlands: Development by Huber in 17th Century

Dutch jurists specially, Max Huber refined statute theory. Huber formulated three maxims
of Private International Law:

The laws of the state have force only within the territorial limits of the
sovereignty of the state.
All persons within such territory are bound by the laws of the sovereign.
By reason of comity, every sovereign admits that the consequences of the
operation of a law in a foreign country shall be recognized by the courts of the
country unless such consequences will not prejudice the subjects of the sovereign
by whom its recognition is sought.
The formulations of Max Huber have been named as theory of acquired rights. And these
formulations have practical influence on the development of conflict of laws in England
even today.

f. Germany: Development by Von Savigny in the 19th Century

German Jurist Von Savigny made a definite break from the previous approaches to the
subject and formulated a new theory of Private International Law. Savigny has rejected
both the statute theory and territorial theory of Private International Law. Savignys
formulations can be briefly stated as follows:

Each legal relation has its natural seat in a particular local law and it is that
law which must be applied when it differs from the law of the court. This
is the natural law concept of law predominantly considered to be the
connecting factor of modern Private International Law.
There are rules of private international law which are universal and
common to all legal systems.

The second proposition of Savigny has been subjected to criticism because it is not
possible that Private International Law of different countries entails universalized
characteristics. But his contention on the natural seat of each legal relation made to the
rules of Private International Law is more scientific and accurate.

2. Origin and Development of Private International Law in England:

The comparative geographic isolation of England from the continent was an obstacle in
shaping private international law in UK. It is true that in England there were two sets of
legal rules one was equity administered by chancery courts and another was common law
administered by common law courts. But this conflict should not be confused with the
conflict of choices of law. Equity and Common law were two sets of legal rules
applicable in the same country.

When Scotland was unified with England a new situation arose. England was influenced
by Anglo-Saxon Law while Scotland was influenced by Roman law. Then there were
some obvious conflict of laws with the unification of Scotland and England. The problem
of this kind was firstly arisen in Calvins Case. In that case the English courts had to
recognize and apply the laws of Scotland. From that time Private International law in
England has been developed by judicial decisions from case to case and situation to
situation.

The first treatise on Conflict of Laws was written by famous jurist Joseph Story (1779-
1845). Westlake and Dicey followed him. The main concern of their writings is attaining
justice in a given case involving foreign element. To be able to do justice in a case they
have formulated the Rules of Conflict of Laws.
Theories of Private International Law:

I. Statutory Theory: Personal law may be applied if it is not opposed to public


policy or public order.
II. International Theory: There are rules of conflict of laws which are universal
and common to various legal systems of the world.
III. The Territorial or Acquired Rights Theory: Courts of sovereign state do not
apply foreign law but merely recognize the consequences of the operation of a
foreign law. This theory tries to reconcile the territoriality of a law and the
need for private international law. Dr. Cheshire has vehemently criticized this
theory as being, unnecessary, untrue, and unhelpful.
IV. Local Law theory: This theory is a slight variation from territorial theory.
The gist of this theory is that the court recognizes and enforces a local right
that is created by its own law. But as the dispute in question has a foreign
element the court would necessarily apply the rule of the forum that would be
applied in the case of a purely domestic dispute. But for reasons of social
expedience and practical convenience it takes into account the laws of a
foreign country in which the decisive facts have occurred. Cheshire has
observed that this theory is a sterile truism. Sterile because it affords no
basis for the development of a system of Private International Law.
V. The Theory of Justice: The approach of English courts to private
international law is pragmatic and ethical. It has sociological, ethical and legal
aspects towards the end of justice. According to Dr. Graveson, the basis of
Public International Law is sociologically, in the international need for fair
treatment in the private transactions of individuals, ethically, in the desire of
English courts to do justice; and legally, in the obligation of their oath in
office. In essence the rules of Private International Law in England are made
from the precedents with the ultimate view of doing justice.

Conclusion:

Conflict of Laws has become a veritable playpen for judicial policy makers. The courts
are saddled with a cumbersome and unwieldy body of conflict laws that creates
confusion, uncertainty and inconsistency as well as complication of the judicial task. The
approach has been like that of a misguided physician who treated a case of dandruff with
nitric acid, only to discover that the malady would have been remedied with medicated
shampoo. Neither the doctor nor the patient need have lost his head.

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