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Territoriality, Public Policy and the Conflict of Laws, 33 Yale Law Journal 736 (1924)

Abstract

Dicey calls attention to the fact that there are two great schools of writers on the Conflict of Laws-the theoretical and the positive. The theoretical writers attempt to deduce the rules of the Conflict of Laws from some a priori principle. Starting with some general principle, they try to derive therefrom a body of consistent rules. The positive method, on the other hand, studies the actual rules in force and attempts to reduce them to systematic order. The theoretical method is adopted by the great majority of continental writers, whereas the positive method is preeminently that of the English and American writers. Concerning the advantages and disadvantages of the theoretical method Dicey says:

"The advantages of the theoretical mode of treatment, when employed by a man of genius, such as· Savigny, are in danger of being underrated by English lawyers, to whose whole conception of law it is at bottom opposed. It is therefore a duty to bring these merits into prominence. The two great merits of the method are, first, that it keeps before the minds of students the agreement between the different countries of Europe as to the principles to be adopted for the choice of law, and next that it directs notice to the consideration which English lawyers are apt to forget; that the choice of one system of law rather than of another for the decision of a particular case is dictated by reasons of logic, of convenience, or of justice, and is not a matter in any way of mere fancy or precedent. Whether, for example, the legal effect of a given transaction ought to be tested by the le.x actus, the le.x domicilii, or the le.x fori, is a matter admitting of discussion, and which ought to be discussed on intelligible grounds of principle: . . .

"The true charge against the theoretical method is that it leads the writers who adopt it to treat as being law what they think ought to be law, and to lay down for the guidance of the courts of every country rules which are not recognized as law in any country whatever. 'The - jurists of continental Europe,' writes Story, 'have, with uncommon skill and acuteness, endeavored to collect principles which ought to regulate this subject among all nations. But it is very questionable whether their success has been at all proportionate to their labour. and whether their principles, if universally adopted, would be found either convenient or desirable, or even just, under all circumstances.' This remark exactly hits the weak point of a method which rests on the assumption, common to most German jurists, but hardly to be admitted by an English lawyer, that there exist certain self-evident principles of right whence can be deduced a system of legal rules, the rightness of which will necessarily approve itself to all competent judges."

Date of Authorship for this Version

1924

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