The Main Concepts of the Doctrine of Private International Law

Abstract

The doctrine of private international law, too, is basically divided into two major groups of opinion, namely a universalist trend and a trend which may be defined as one of a “natioonal” private international law. Both these groups can be, naturally, Subdivided, but, on the whole, we may say that in the proper doctrine of private international law the opinion has prevailed, that contemporary private international law is independent in every state and that, therefore, there are as many private international laws in the world, as there are individual states. The majority of this opinion represents a reaction to the weak points of the internationalist and universalist concepts we have partly discussed when dealing with the doctrine of public international law and which we shall yet discuss in connection With The doctrine of private international law. The opinion, which is critical of the universalism of some of the doctrinal trend’s in public international law, proceeds from the fact that the sphere of public international law as that branch of law, which governs relations between sovereign states, is separate from the sphere of private international law, which governs relationships between non-sovereign subjects involving a foreign element. There is yet the additional fact that the overwhelming majority of the rules of private international law is to be found among the rulers of municipal law. Thus we must distinguish between the two categories both on the basis of the differences in the social relationships they govern and on the basis of the differences in their formal sources; this is an argument which has been used in particular after private international law had been made positive.. According to the majority of the opinion underlining that private international law is inseparable from the whole body of law of the individual state, the law of every state constitutes a closed set of rules; this opinion is manifested especially with respect to the fundamental questions of the application of the foreign element in the law, which takes place on the basis of the rules governing conflict of laws1 Thus, when speaking of the doctrine of private international law, we may justly speak of a latent controversy or conflict between “universalists” and “nationalists”. However, this controversy does not mean that some “nationalists” have not tried to give the solutions they recommend for individual types of cases as much of a universal character as posible.