Territoriality, Public Policy and the Conflict of Laws

Abstract

Dicey calls attention to the fact that there are two great schools of writers on the Conflict of Laws-the theoretical and the positive. The theoretical writers attempt to deduce the rules of the Conflict of Laws from some a priori principle. Starting with some general principle, they try to derive therefrom a body of consistent rules. The positive method, on the other hand, studies the actual rules in force and attempts to reduce them to systematic order. The theoretical method is adopted by the great majority of continental writers, whereas the positive method is preEminently that of the English and American writers. Concerning the advantages and disadvantages of the theoretical method Dicey says:' "The advantages of the theoretical mode of treatment, when employed by a man of genius, such as" Savigny, are in danger of being underrated by English lawyers, to whose whole conception of law it is at bottom opposed. It is therefore a duty to bring these merits into prominence. The two great merits of the method are, first, that it keeps before the minds of students the agreement between the different countries of Europe as to the principles to be adopted for the choice of law, and next that it directs notice to the consideration which English lawyers are apt to forget; that the choice of one system of law rather than of another for the decision of a particular case is dictated by reasons of logic, of convenience, or of justice, and is not a matter in any way of mere fancy or precedent. Whether, for example, the legal effect of a given transaction ought to be tested by the lex actus, the lex domicilii, or the lex fori, is a matter admitting of discussion, and which ought to be discussed on intelligible grounds of principle... "The true charge against the theoretical method is that it leads the writers who adopt it to treat as being law what they think ought to be law, and to lay down for the guidance of the courts of every country rules which are not recognized as law in any country whatever. 'The jurists of continental Europe,' writes Story, 'have, with uncommon skill and acuteness, endeavored to collect principles whiclh ought to regulate this subject among all nations. But it is Very questionable whether their success has been at all proportionate to their labour, and whether their principles, if universally adopted, would be found either convenient or desirable, or even just, under all circumstances.' This remark exactly hits the weak point of a method which rests on the assumption, common to most German jurists, but hardly to be admitted by an English lawyer, that there exist certain self-evident principles of right whence can be deduced a system of legal rules, the rightness of which will necessarily approve itself to all competent judges." Anglo-American writers, being positivists, attempt to state only the rules laid down by the English and American courts and they do not claim universal validity for these rules. English writers in particular 'Dicey, Conflict of Laws (3d ed. 1922) 18-ig. [736] Story, Conflict...

Something Funny Happened to Foreign Law on Its Way to the Forum

“…were supposed to be based'. 42 Both techniques are disruptive, the reason being that judges break off the approach on an ad hoc basis. And until a judge somewhere gives his or her reading of the conflicting rules, who is to predict the outcome?…”

The Lex Fori: Basic Rule in the Conflict of Laws

“…26 3 The same observation applies to the history of American law. 254 which reached its climax in Beale's Restatement did public policy become an essential part of American conflicts law and an additional source of its confusion. 2 1 5…”

“…2 7 5 Even such more definite categories as have been developed both internationally and nationally as the alleged "unenforceability" of "penal" and "revenue" laws are in the process of disintegration. 27 This fact "ought to have been a warning that there was something the matter with the reasoning upon which the rules to which it is the exception were supposed to be based," 277 and renewed analysis of these rules should have become the primary objective of scholarship. But "the principal vice of the public policy concepts is that they provide a substitute for analysis.…”