Antiquity

According to most western authors,the history of private international law began in the 12th century in Northern Italy.Yet the first instances of conflicts law problem in the Western legal tradition can be traced to Greek law.1 Some scholars,say,Vinogradoff,even argue that “private international law” emerged in Greece in the fourth century.2 Although the historical record is incomplete,some evidence did show that ancient Greeks devised some solutions to the conflicts problems.For instance,in addressing a court in the Greek island-state of Aegina,the Athenian orator argued that the court should uphold his client’s testament because it conformed to both the law of the testator’s “motherland” and the law of forum.A compact between two Greek city-states signed around 100 B.C.provided that tort claims should be adjudicated by the courts of the state in which the tort-feasor was domiciled,and should be governed by the law of the forum.Similarly,a decree issued in Hellenistic Egypt around 120 B.C.provided that contracts written in Greek were subject to the jurisdiction of the Greek courts and governed by Greek law,whereas contracts in the Egyptian language were subject to the jurisdiction of the Egyptian courts and governed by Egyptian law.3

In spite of such evidence,it is generally believed that the Greeks dealt straightforwardly with multistate problems,and did not create choice-of-law rules in a systematic manner.This is mainly because there was no pressing need for choice-of-law rules in Ancient Greece.First,at that time,legal protection depended on membership in a political community,therefore,the issues of access by aliens to local courts and their entitlement to procedural safeguards were more pressing than the question of what law should govern disputes with these aliens.4 Second,the basic unity of Greek law alleviated the possible unfairness of deciding multistate cases by applying the lex fori.Third,treaties between Greek-states created substantive rules applicable to disputes between their citizens,and recoursed to special courts for aliens and maritime matters,which facilitated the resolution of multistate problems.In addition,since the Greeks respected freedom of contract,and had perfected the technique of drafting legal documents,it was possible to spell out the parties’ rights and obligations in sufficient detail to satisfy commercial exigencies irrespective of what law applied.Therefore,the majority of scholars contend that there lacks solid grounds to support the argument that private international law in modern sense emerged in ancient Greece.5

Like the Greeks,the Romans failed to develop a system of choice-of-law rules.During the golden age of Roman Empire,the Mediterranean became a “Roman Lake,” and Rome was the political and commercial center of the west hemisphere.For centuries,Roman merchants travelled abroad and a large number of foreigners did business in Rome.Roman civil law (jus civile),however,was inapplicable to non-citizens,and it was far too unsophisticated and rigid to accommodate the exigencies of multistate commerce.Therefore,special tribunals were established to deal with multistate 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 multistate problems.(https://www.daowen.com)

In A.D.212 Caracalla published the “Constitutio Antoniniana,” an edict that granted Roman citizenship to all free inhabitants of the Roman Empire.Since then,the need for a separate transnational law became much less pressing,and the jus gentium was gradually absorbed by the jus civile.

It is important to know that the Greeks and the Romans approached the legal issues posed by the cross-frontier movement of persons,things and transactions in a similar fashion.To be more specific,instead of elaborating a system of choice-of-law rules,they created specific tribunals with competence to decide multistate disputes and accorded them a fair measure of freedom to find appropriate solution.If the experience gathered in antiquity is any indication,choice-of-law rules in the modern sense are clearly not the only possible response to multistate problems.