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.

Outlines

00:00

📚 Introduction to Theories of Private International Law

The speaker introduces the topic of the video: an overview of the important theories in private international law. Five main theories are mentioned: Statute Theory, International Theory, Territorial Theory (Theory of Acquired Rights), Local Law Theory, and Theory of Justice. The speaker begins with a detailed explanation of the Statute Theory, which originated in 13th-century Italy. This theory was created to resolve conflicts between the laws of different Italian city-states and foreign nations engaged in trade with Italy. The statutes served as declaratory restatements of older customary laws and were the foundation of trade regulation in Italy.

05:00

🌍 The International Theory of Private International Law

This section introduces the International Theory, which was developed by Savigny in 1849. He critiqued the Statute Theory for inadequately classifying laws, proposing instead that every legal relationship has a 'natural seat' in local law. Savigny’s theory emphasized the importance of tracing legal relationships back to their local legal roots, using domicile as an example. One of the major criticisms of this theory is that it assumes uniformity in laws across all nations, which is not always the case. The speaker notes that different countries classify legal concepts differently, such as viewing breach of marriage promises as either a breach of contract or a tort.

Keywords

💡Statute Theory

Statute theory is one of the earliest theories of private international law, originating in Italy during the 13th century. It was developed by Bartolus and dealt with conflicts between the laws of different Italian city-states. The theory focused on classifying laws into those concerning persons and those concerning things, reflecting the trade and commerce between city-states and foreign nations like Syria and Spain.

💡International Theory

The international theory, introduced by Savigny in 1849, opposed the statute theory. Savigny believed that legal relationships are rooted in local laws, and the task of jurists is to identify the natural connection between a relationship and the relevant local law. This theory assumes an international community of nations and suggests that legal relationships have an international dimension, though it faces criticism for assuming uniformity in legal systems across countries.

💡Territorial Theory

The territorial theory, also known as the theory of acquired rights, holds that a country applies foreign law only to the extent that its sovereign allows. First advocated by Dutch jurists, it emphasizes the sovereignty of a nation in recognizing and enforcing rights that are acquired under foreign laws. This theory was further supported in England by Dicey, although it has been criticized for being untrue, unhelpful, and unnecessary.

💡Local Law Theory

The local law theory is a variation of the territorial theory, developed by American jurist W.W. Cook. This theory asserts that courts only apply their own laws and do not enforce rights or obligations under foreign laws. It emphasizes that a court's primary duty is to its domestic legal system, and it rejects the application of foreign legal principles.

💡Theory of Justice

The theory of justice in private international law, according to Graveson, originates from the common law tradition in England. It suggests that the main objective of the rules governing international legal conflicts is to achieve justice in each case, based on the ethical standards and pragmatic needs of the time and place. This theory implies that courts prioritize fairness and justice rather than strictly adhering to any particular legal framework.

💡Conflict of Laws

Conflict of laws refers to the legal principles used to resolve disputes involving multiple legal systems, especially in international cases. The video discusses how the theories of private international law, such as statute theory and international theory, have emerged to address these conflicts. These theories aim to determine which legal system should govern a particular dispute.

💡Sovereign Permission

Sovereign permission, as discussed in the context of the territorial theory, refers to the authority of a state to decide whether and how to apply foreign law within its own legal system. It is based on the idea that a nation's courts can only recognize and enforce foreign laws if the sovereign allows it, highlighting the importance of national sovereignty in private international law.

💡Private International Law

Private international law governs legal disputes that involve more than one country. It addresses issues such as jurisdiction, choice of law, and the recognition and enforcement of foreign judgments. The video explains five theories that attempt to resolve the conflicts that arise in private international law, each offering a different approach to dealing with laws from different legal systems.

💡Choice of Law

Choice of law refers to the process of determining which jurisdiction's laws should apply to a legal dispute that involves more than one legal system. In the video, this concept is discussed in relation to the statute theory and the international theory, both of which attempt to provide rules for deciding which laws govern certain legal relationships across borders.

💡Acquired Rights

Acquired rights are legal rights that a person gains under one legal system, which may be recognized and enforced in another jurisdiction. The territorial theory, also known as the theory of acquired rights, emphasizes that courts recognize foreign judgments based on rights that were validly acquired under foreign law. However, this theory has been criticized for its limitations.

Highlights

Introduction to five important theories of private international law: statute theory, international theory, territorial theory, local law theory, and theory of justice.

Statute theory originated in the 13th century, attributed to Bartolas, aimed at solving conflicts between the laws of Italian city-states and Italian law.

Italian city-states like Genoa, Pisa, Milan, and others had their own statutes, which were declaratory restatements of older customary laws and commercial rules.

Statutes were classified into two categories: statutes concerning persons and statutes concerning things.

International theory was proposed by Savigny in 1849, arguing that legal relationships are rooted in local laws, and the role of jurists is to identify these legal roots.

Criticism of Savigny’s international theory included the assumption that there is uniformity in laws across all nations, which is often not the case.

The territorial theory, or theory of acquired rights, was first proposed by Dutch jurist Huber, stating that foreign law is applied only to the extent permitted by a sovereign.

Dicey supported the territorial theory, emphasizing that courts do not recognize foreign judgments based on foreign laws but recognize the rights acquired under foreign laws.

Criticisms of the territorial theory include that it is untrue, unhelpful, and unnecessary.

Local law theory, a variation of the territorial theory, was proposed by American jurist W.W. Cook, stating that courts only apply their own laws and do not enforce rights or obligations created by foreign laws.

Theory of justice, according to Graveson, is grounded in common law and focuses on achieving justice as perceived by English courts.

English private international law is pragmatic and ethical, not strictly based on any single theory.

The purpose of English courts is to ensure justice, adapting their approach based on time and place.

The lecture concludes by summarizing the key theories of private international law and their relevance in resolving legal conflicts.

Viewers are encouraged to continue watching for more discussions on legal theories and their practical applications.

Transcripts

viewers welcome to our channel rising

legal

today in this private international

class i am going to discussion

and important topic that is theories of

private international law

viewers in private international law

five important theories are came into

existence

these theories are

number one statute theory

number two international theory number

three

territorial theory and the theory of

acquired rights

number four local law theory

and number five theory of justice

now viewers

we actually try to understand the detail

of these theories

first is that statute fuel

viewers the static theory

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is a 13th century theory

of italian origin

this theory was propounded by bartolas

who may be called the father of this

theory

originally this theory aimed at solving

the conflict between the

laws of various city-states on the one

side

and the law of the city state and the

italian law on the other side

at that time the law of the italian

city-states such as

genoa pisa

milan

bologna venice florence

parma

siena

and

amalfi was contained in a statute

a statute was a declaratory restatement

of older customary law of the city

and its commercial community

statutes contain new legal rules also so

viewers at this period of history

the italian city state had a

flourish trade and commerce not merely

with each other

but also with other countries

such as syria arabia spain

and southern finance

thus the social conditional or rife

for the

breeding of the rules of choice of law

so considering the object of the law

statutory classified under two headings

one is that

statute concerning person

and number two is that statute

concerning things

now here's i am going to discuss in the

second theory of private international

law

that is the international theory

in opposition to the statute theory in

1849

published his work on conflict of laws

entitled

system of modern roman law

and savannah felt that statute theory

faltered in classifying the laws

on the basis of the legal relationship

he felt that every legal relationship

has its root

in

some local law

savani

based his theory

on the proposition

that every legal relationship has a

natural seat

in a local law and therefore

the work of the jurist is to find out

that natural seed

he developed many rules to enable

one to trace that legal relationship

to name a few like place of domicile

so viewer saving actually felt that it

is

essential to keep in mind

that there exists an international

community of nation

one of the important criticism of this

surveillance theory is that this theory

is

founded upon an assumption

that there is a uniformity of laws in

all the countries

with regard to characterization of of

legalization for example while some

countries view breach of promise to

marriage as a breach of contract

other view it as a thought

now viewers i am going to

next theory of the private international

law that is your territorial theory

or theory of acquired rights

these theory viewers actually was first

advocated by

mobile

according to dutch jurist could apply

the foreign law

only to the extent permitted by their

sovereign

thus giving religion to the

community of nation

this theory which center around the

sovereign permission to foreign law

application gained

support in england

through dicey

so according to them england under

private international law courts do not

recognize

foreign judgment because

they can legally be permitted to

recognize only those given

under their law

what they do is merely a

recognized and enforce the rights

acquired under the foreign law

thus foreign diets are acquired and

protected

now what are the criticism of this

theory there are some criticism

of that particular theory number one

this theory is untrue number second

this theory is unhelpful and number

third

this theory of unnecessary

now i am going to the another theory of

the private international law that is

local law theory

actually viewers this theory is a slight

variation of the territorial theory

and this theory has been expounded by

w w cook an american jurist

viewers this theory is based on the

principle that each quote applies its

own laws

and no code

ever applies any other law

but its own

nor enforce any rights

or obligation

other than those created by its own law

now viewers i am going to the

another important theory of the private

international law that is the

theory of justice

according to

graveson this theory has its origin in

the common law that is

england or common law system

sorry he also mentioned that

english private international law

cannot be considered to have been

based exclusively

on any of the

above theories

the approach of the english course to

the problem of private international law

is pragmatic

and ethical

the main purpose of this rule is to do

justice as seen by english churches

in the environment of the time and place

so viewers that is our today's

discussion

the various theories of private

international law

hopefully the concept of that particular

matter clear to all of you thank you

very much thank you very much

watching our channel

thank you and keep watching

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you