Theories of Private International Law || Private international law

Summary

In this video, the speaker discusses five key theories of private international law: statute theory, international theory, territorial theory (or theory of acquired rights), local law theory, and the theory of justice. The statute theory originated in 13th-century Italy and addresses conflicts between city-state laws. The international theory emphasizes the global legal community, while the territorial theory focuses on foreign law recognition. Local law theory suggests courts apply only their own laws, and the theory of justice aims for fairness in legal decisions. Each theory's historical roots and criticisms are also explored.

Takeaways

• 📜 The video discusses five key theories of private international law.
• 📚 The first theory is Statute Theory, originating in 13th century Italy, aimed at resolving conflicts between laws of different city-states.
• 👨‍🏫 Bartolus, considered the father of the Statute Theory, classified statutes into two categories: those concerning persons and those concerning things.
• 🌍 The second theory, International Theory, was introduced by Savigny in 1849, which focuses on finding the local law tied to every legal relationship.
• 🔍 A key criticism of International Theory is its assumption of uniformity in laws across nations, which isn't always true.
• ⚖️ The third theory is Territorial Theory or the Theory of Acquired Rights, introduced by Dutch jurists, allowing foreign law application if permitted by sovereign states.
• ❌ Territorial Theory faces criticism for being untrue, unhelpful, and unnecessary.
• 🇺🇸 The fourth theory, Local Law Theory, advocated by American jurist W.W. Cook, emphasizes that courts only apply their own law and enforce rights under it.
• ⚖️ The fifth theory is the Theory of Justice, rooted in English common law, where the main goal is achieving justice based on pragmatic and ethical considerations.
• 🎓 The video concludes with the practical importance of these theories in private international law and their role in ensuring justice.

Q & A

What is the main topic of discussion in the video?

The main topic is the theories of private international law, which include the statute theory, international theory, territorial theory, theory of acquired rights, local law theory, and theory of justice.

What is the statute theory and who developed it?

The statute theory, a 13th-century Italian-origin theory, was developed by Bartolus. It aimed to solve conflicts between the laws of different Italian city-states and the broader Italian law.

How were statutes classified under the statute theory?

Statutes were classified into two categories: statutes concerning persons and statutes concerning things. These classifications helped in managing the laws governing individuals and property.

What is the international theory in private international law?

The international theory, proposed by Savigny in 1849, suggests that every legal relationship has a natural seat in a local law. The theory emphasizes finding this natural seat for resolving legal conflicts.

What criticism does the international theory face?

One major criticism is that the theory assumes a uniformity of laws across countries, which isn't accurate. For example, some countries view breach of promise to marry as a contract breach, while others see it as a tort.

What is the territorial theory or theory of acquired rights?

The territorial theory, first advocated by Dutch jurists, argues that foreign laws can only be applied with the permission of the sovereign. English courts support this theory by recognizing and enforcing rights acquired under foreign law.

What are the criticisms of the territorial theory?

The territorial theory is criticized as being untrue, unhelpful, and unnecessary in the context of private international law.

How does the local law theory differ from the territorial theory?

The local law theory, proposed by American jurist W.W. Cook, is a variation of the territorial theory. It asserts that courts only apply their own laws and enforce rights and obligations created by their local law.

What is the theory of justice in private international law?

The theory of justice, as outlined by Graveson, is rooted in English common law. It suggests that the primary goal of English courts in private international law is to do justice, with a pragmatic and ethical approach tailored to the time and place.

What is the overall approach of English courts towards private international law?

The English courts take a pragmatic and ethical approach to private international law, focusing on delivering justice rather than strictly adhering to any single theory.