The Statute Theories
3.1 The Italian School
Private international law in the modern sense was a product of the Italian universities of the 13th and 14th century.The law of the Italian city-states,say,Venice,Pisa,Milan,Florence,Bologna,and others,was contained in “statutes.” A statute (statuta) was in the main a declaratory restatement of older customary law of the city and its commercial communities; but many statutes also embodied new legal rules.Commercial exchanges between the various cities,and between Italy on the one hand and Syria,Arabia,Spain,and Southern France on the other,called for rules governing the choice of the applicable legal system.10
Though the Glossators tried hard to resolve the conflict-of-law problems,they failed to devise any desirable solutions.Then came Bartolus de Sassoferrto,the most distinguished jurist in the Middle Ages,who in spite of a short life (1313-1357) had a greater influence on the subsequent fate of the Roman law in Europe than any other thinker.[1]Briefly,Bartolus and later scholars collectively known as “statutists” developed a method of resolving conflicts that was based on a simplistic classification of local laws (statuta) into two categories: real or personal.Real statutes were those that operated only within the territory of the enacting state,but not beyond.In contrast,personal statutes operated beyond the territory of the enacting state and bound all persons that owed allegiance to it.[2]The statutist thought that his classification could resolve all potential conflicts because all statutes,both domestic and foreign,belong to either one or the other category,leaving neither gaps nor doubts.
Apparently,this was too optimistic,but worse than that was the fact that the statutists’ criteria for classifying a statute as real or personal were completely mechanical—they were based solely on the statue’s wording.For instance,the statutists argued that,if the statute’s first words referred to a person,such as saying that “the first-born son shall succeed to the property,” then the statute was qualified as personal.However,if the first words referred to a thing,such as by saying that “the property shall pass to the first-born son,” then the statute was real.This logic explains why later writers mocked statutists reliance on the mere “shell of words.”11
In hindsight,much of what the statutists wrote may indeed appear ridiculous.Yet,these defects should not obscure their impact on the future direction of private international law nor should we lose the sight of the remarkable accomplishments of those who first discussed conflicts problems in Upper Italy,as professor Juenger concludes: “[T]hese medieval scholars conceived highly original methods,about which the Greeks and Romans had never thought,to solve multistate problems by making a principled selection among competing local rules...The fundamental ideas found in Bartolus’s brief commentary still hold sway.”12
3.2 The French School
The Statute Theory,which originated in 14th century Italy,was taken up in 16th century France,where it was thought to have some relevance to the particular political circumstances then prevailing.Although France constituted a single state,the division of the country into provinces each with its own particular system of laws,called coutume or custom,gave rise to difficulties as the volume of commercial trade increased.
The French jurists of the 16th century developed and refined the Statute Theory further,the most notable of whom were Dumoulin (1501-1566),D’Argentré (1519-1590) and Guy de Coquille (1523-1602).Dumoulin,described by Westlake as “one of the greatest legal geniuses” in the sphere of private international law,13 was the first exponent of the doctrine that the contracting parties could choose the law that was to govern their agreement.
D’Argentré,while retaining the Statute Theory,deliberately turned aside from the doctrines of the Italians and of Dumoulin.His feudalist views led him to be essentially territorially-minded.He supported,not the autonomy of the parties,but the autonomy of provinces.He placed exaggerated emphasis on the real statute,and although he admitted the existence of a third class,the mixed statute,i.e.,one concerning both persons and things,he affirmed that it must be regarded as real.According to him,personal statutes are only those which deal with questions of status or capacity or with property in chattels.D’Argentré’s doctrine has its first success not in France,but in the Netherlands.14
Guy de Coquille also deserves mentioning.Since he wrote in the vernacular instead of in Latin,the distinction between French “coutumes” and Italian “statuta” was apparent to him,and it may have directed his attention to an important difference between the spawning ground of conflicts law and the France of his days.De Coquille noted that in Italy a shared ius commune furnished the rule,unless it was displaced by the statutum of one or other city-state,whereas France lacked such a common law.That is to say,he grasped the essential difference between the legal environment in which Bartolus wrote and that of coordinate jurisdictions bereft of an over-arching common law.This distinction still matters today.Conflicts approaches developed in federal systems,such as the United States,whose component states share a common legal tradition,may not work in contemporary China,where the four component jurisdictions,i.e.,Mainland,Hong Kong,Macao and Taiwan,have their own legal systems and traditions.(https://www.daowen.com)
De Coquile also gave a surprisingly modern twist to statutist learning.He submitted that the classification of laws as personal or real should not depend on “the mere shell of words,but on...the presumed and apparent purpose of those who have enacted the statute or custom.”15 In effect,he suggested that the reach of a rule ought to depend on its purpose,rather than on its wording,or on some arbitrary classification.The idea that is possible to deduce the scope of a rule from the purpose or “policy” behind it reappears in later centuries,and it has become a critical idea of modern American conflicts analysis.[3]
3.3 The Dutch School
By the 17th century,the leadership of conflicts literature moved to the Netherlands which consisted of a number of provinces,each with its own system of law,and which by that time was one of the major trading nations in the world.In the meantime,Europe had witnessed the emergence of modern nation states and,Jean Bodin’s works on territorial sovereignty had become a “best-seller.”16
It is therefore of no surprise that the Dutch authors became intensely preoccupied with explaining why courts apply foreign law,in other words,reconciling the application of foreign law with the principle of territorial sovereignty.The Dutch answer can be summarized in one henceforth word—“comity.” Comity was defined as something between mere courtesy and a legal duty,as derived from the tacit consent of nation and based on mutual forbearance and enlightened self-interest.In a ten-page essay,the most famous of these Dutch authors,Ulricus Huber (1624-1694),postulated the following three axioms:
(1) The laws of each state have force within the territory but not beyond;
(2) These laws bind all those who are found within the territory,whether permanently or temporarily;
(3) Out of comity,foreign laws may be applied so that rights acquired under them can retain their force,provided that they do not prejudice the state’s power or rights.
The first two axioms elevate territorialism into the main operating principle of private international law,a position that remained unchallenged for many generations.The third axiom attempts to explain why the forum state will apply the law of another sovereign.In Huber’s opinion,all acts and transactions validly effected according to the law of a particular place are to be recognized as valid even in a country whose law would regard them as void,but that acts and transactions effected in a place contrary to the local law,being void,are void,everywhere.In other words,although each state is free by virtue of its sovereignty to construct its own system of private international law,it does not in fact act arbitrarily but,on the supposed principle of comity,allows the operation within its own territory of a right that has already been validly acquired within another territorial sovereignty.Comity and pressure of international commerce require that acts duly performed in one jurisdiction shall be sustained in other jurisdictions.
Huber rendered five distinct contributions to the conflict of laws.It heralded the demise of Statute Theory,anchored the discipline in international law,emphasized decisional harmony,anticipated the vested rights doctrine,and introduced the public order reservation.[4]As has been said of his dissertation: “[I]t is all printed in five quarto pages.In the whole history of law there are probably no five quarto pages which have been so often quoted,and possibly so much read.They are distinguished by clearness,practical judgment and a total absence of pedantry.”17 Indeed,Huber’s axioms have had “a greater influence upon the development of the conflict of laws in England and the United States than any other work.”18