Problems of Codification of Private International Law

Author: Fritz von Schwind

The initial part of the article broadly talks about utility, necessity and feasibility of
codification of private international law.

The author begins with the example of the United States where the quality of legislation as a
source of law was being questioned by the courts. Judges reviewed the content of statutes and
only applied those statutory provisions which they deemed to be the proper law. That kind of
an understanding has now passed away. Statutory law is recognised now, even though it is
construed and interpreted in a restrictive manner. Due to social and technological change
being a part of the law, it has to be shaped by legislative authorities. Development in those
areas through judge made laws cannot be achieved in a fast and efficient manner so
codification seems necessary.

The author asserts that one cannot deny that the ratio between the extent of common law and
statutory law is in process of shifting in favour of the latter. On the basis of the ideas of the
French Revolution Bentham favoured legislative measures. Austin, too, became well
acquainted with continental law during his stay in Germany.

The author also quotes present day examples of the legislative activities of Commonwealth
and in the United States. In the United States we find already a number of states which have
enacted civil codes (e.g., California, Dakota, Idaho, Montana, and Oklahoma)

On the other hand in continental countries it is consideration of precedents by the courts

which is more prevalent. There exists numerous collections of court decisions, and' they are
consulted by judges. It is true that precedents do not possess legal force in civil law countries.
In extreme cases precedents in civil law countries have taken the form of persuasive
authorities.

There are two factors which have created necessity of codification: first, the structure of
private international law has completely changed through Savigny's influence, which even
had strong repercussions in the Anglo-American legal sphere: secondly, the introduction of
the principle of nationality as the most important connecting factor.

In the mind of Bartolus and all the later scholars the problem of private international law was
the territorial limitation of the application of the land. But Savigny postulated that one should
seek the "seat" of a certain factual situation.He was concerned with the problem of how a
certain situation of fact could or should be governed by a certain body of law in accordance
with the principle of the seat of the factual situation. Instead of the territorial limits of the law
and of jurisdiction it was the relationship between the facts and the law per se which became
decisive. Savigny dismissed the statute theory as both incomplete and ambiguous and denied
the inference drawn by Hubert from territorial sovereignty

There are authors who are clearly opposed to the codification of private international law
with the reasoning that in the past private international law had been a domain of case-law
developed by the courts without the help of written law. In addition it is asserted that
nowadays case-law and the different tendencies of private international law are subject to
rapid change. Also, no constitutional order has taken into account the aspects of private
international law.

According to the rules of private international law the judge is obliged to apply foreign law,
which naturally has not passed domestic legislative bodies. Does it mean that the application
of foreign law violates the principles of the constitution? The answer depends on the attitude
different countries have taken. The author quotes the French and the Italian doctrines for the
same.

To sum up, the author finally says that because of the impact of private international law in
most continental States the basis of its existence must or should be provided for in the
constitutional order.

Now moving on to certain technical problems of codification, the following was discussed.
At the present time the territorial element as the criterion for the co-ordination of a fact
situation with a certain legal order is no longer sufficient. Criteria other than territorial must
also be taken into consideration.

One of the most important problem of national law, as well as of its codification, is the
complex the connecting factor. This problem encompasses questions. First, how should one
delimit the scope of legal notions, secondly, what are the connecting factors kind of reference
to a foreign legal system.

If we prefer general terms which stand for any of law we may take advantage of the fact that
in legal questions which are related to a particular issue may by the same law. On the other
hand, the use of general notions factors often may produce a result which is incompatible.

So to sum up, in addition to territorial elements we should also consider the more abstract
relations that exist, above all, cultural, economic and professional ones.

The author also tries to answer the question that What law should govern the personal
relations of husband and wife in cases where their personal law is different? However, as
long as the parties do not have a common habitual residence and one of them is residing in a
country of which one of the parties is a citizen, the law which should govern their personal
relations is designated by the combination of nationality and habitual residence. Of course
one has to keep in mind that private international law must be based on existing relations with
regard to the connecting factors. Therefore subsidiary connecting factors for which the fact
situation is no more a contemporaneous but an historical event should be rejected, that is, any
event in the past.
Lastly the author talks about Renvoi. Renvoi is a problem on which case-law, doctrine and
legislation have never reached a certain degree of conformity. Legislation is divided between
one part which rejects renvoi and another which has provided for the application. The general
trend is in the direction of acceptance of renvoi by legislative bodies

Another question which the author asks is What is the law governing the classification of a
set of facts of legal concern underlying a specific issue? The most widespread doctrine of
classification is that of the lex fori. The most elegant and satisfactory solution seems to be
that put forward by Schnitzer: classification in two steps. First, the judge has to classify
according to the lex fori for the purposes of application of the rules for the choice of law
(classification of first degree). Once a foreign law is referred to, the judge has to undertake
the process of classification a second time: he has to classify the set of facts according to
foreign law (classification of second degree). The doctrine of classification in two steps fully
satisfies the assumption that foreign law is to be considered law while in the case of
classification according to the lex fori.

Finally as a conclusion to the article, the author says that it is a general aim to reach rather
uniform rules for the choice of law in all countries, quite contrary to other branches of the law
where uniformity to be neither attainable nor desirable. So codification is now a concern in
almost all parts of the world.