Theories of Private International Law || Private international law
Summary
TLDRIn 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
- π The video discusses five key theories of private international law.
- π The first theory is Statute Theory, originating in 13th century Italy, aimed at resolving conflicts between laws of different city-states.
- π¨βπ« Bartolus, considered the father of the Statute Theory, classified statutes into two categories: those concerning persons and those concerning things.
- π The second theory, International Theory, was introduced by Savigny in 1849, which focuses on finding the local law tied to every legal relationship.
- π A key criticism of International Theory is its assumption of uniformity in laws across nations, which isn't always true.
- βοΈ 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.
- β Territorial Theory faces criticism for being untrue, unhelpful, and unnecessary.
- πΊπΈ 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.
- βοΈ 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.
- π 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
π 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.
π 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. Savignyβs 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.
Mindmap
Keywords
π‘Statute Theory
π‘International Theory
π‘Territorial Theory
π‘Local Law Theory
π‘Theory of Justice
π‘Conflict of Laws
π‘Sovereign Permission
π‘Private International Law
π‘Choice of Law
π‘Acquired Rights
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 Savignyβs 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
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