Conflict of laws, a subject also known as private international law, arises from the universal acknowledgment that not

every human
transaction can be, or ought to be, governed by local law. The affairs of men are often conducted in such a way that a legal dispute
contains a foreign element, and the conflict of laws is the systematic study of how national courts, in fact and in theory, take account
of such foreign elements.

Scope and character

The main emphasis in the conflict of laws has generally been upon the rules used to select foreign law, these rules being called choice-
of-law rules. It is also common to include in the subject matter of the conflict of laws various related matters pertaining to the
jurisdiction of courts and to the degree of respect due foreign judgments, but in the main the classical problems in the field have been
created by legal transactions in which the private law of more than one legal unit is potentially applicable and a choice must be made
between the competing claims. For centuries judges and scholars have been baffled in their search for acceptable procedures and for
the criteria with which to conduct the search itself.

There is a traditional distinction between public and private international law related mainly to whether the participants involved in
legal controversy are governments or individuals. In this vein, public international law is defined as the corpus of rules binding
governments in their relations with one another and the processes available for implementing these rules; private international law is
considered as the law applied by domestic courts whenever a foreign element is relevant to the resolution of a legal controversy.
Many specialists in this latter field of law object to the label private international law, suggesting that the law applied by domestic
courts—even if it leads to the application of foreign law—is a field of national law. Such a view is especially prevalent in the United
States, accounting, in part, for the currency of the term “conflict of laws” to describe the subject, although its use also reflects the
emphasis among American scholars, perhaps to an excessive degree, upon the conflict of laws as it has evolved from interstate
(intranational) transactions. In Europe, even in federal states, the subject, in contrast, is dominated by its international aspects, that is,
by the study of the rules and processes by which the courts in one country give effect to the law of a foreign country or show respect
for a judgment already reached by a foreign court.

A concrete indication of the character of the subject can be given by way of an oversimplified ,example of a legal situation calling for
the application of choice-of-law rules. A Dutch sailor employed on an American ship is injured in the course of work by allegedly faulty
equipment while the ship is at anchor in a Japanese port. He sues for recovery in a Dutch court and seeks application of the American
law on the subject because it leads to the largest recovery with the smallest burden of proof. The American shipowner, as defendant,
contends that the negligence of the seaman was the cause of the accident and argues for the application of Japanese law, which, we
shall assume, is least favorable to any recovery in these circumstances and least generous in its award of damages if some recovery is
allowed. Which legal system and what legal rules would be chosen by a Dutch court as providing the governing law? Would the same
governing law be chosen for this kind of case by a court in the United States, the Netherlands, and Japan? Why is it so difficult to
obtain uniform treatment of choice-of-law questions? Is uniform treatment necessarily desirable? What approaches dominate the
analysis of choice-of-law problems in the contemporary literature? It is with questions of this sort that the field of the conflict of laws
is principally concerned.

The character of the solution given to problems of the choice of law has an intense practical relevance to the lives of people.
Increasingly, it is impossible to confine human happenings to a single jurisdiction. Whether in matters of personal status arising from
marriage, divorce, birth, and death or in such typical commercial phenomena as the regulation of anticompetitive business practices,
expropriations of alien property, and the sale of goods, there is an increasing multinational complexity that in the event of controversy
may make the choice of applicable law at once crucial and far from self-evident.

Of course, the practical interest in the conflict of laws emerges as a consequence of the fact that the substantive laws of states are
diverse, inconsistent, and, occasionally, contradictory. Obviously, if all substantive law were the same, it would make little difference
which system of law was selected to govern a controversy. But, in a world of diverse national, cultural, and ideological perspectives,
there has never been a prospect of such substantive uniformity. Widespread attention has, therefore, been given throughout the
history of international relations to the method and rationale used by various courts to select the proper system of law governing
controversies. It appears, at least superficially, that all states have a strong, common, and mutual interest in the adoption of uniform
choiceoflaw rules. For unlike the substantive rules to which they refer, choice-of-law rules appear to seek nothing more than the
ordering of relations in a fair and convenient fashion and do not seem to express any commitment to policies or values of a particular
state. Despite this appearance of neutrality, however, efforts over several centuries to advance the acceptance of uniform choice-of-
law rules have yielded few encouraging or tangible results.

The study of conflict of laws has been developed by lawyers and has traditionally been neglected by social scientists. This neglect can
be explained, in part, by the fact that so many of the typical problems in the conflict of laws are either highly technical (for example,
dealing with the devolution of property located abroad) or too humdrum (for example, concerning the status of a foreign mail-order
divorce) to be either accessible or interesting to those who lack formal legal training. Even lawyers find the subject unusually complex,
since it presupposes a familiarity both with the law governing a wide body of substantive problems (for example, how does the
treatment of the foreign element vary when one is dealing with matters of personal status, inheritance, torts, contracts, real and
personal property, etc.?) and with the laws and decisions operative in a number of foreign states with different legal systems.

Despite these obstacles, there are strong reasons why social scientists should have at least some awareness of the major trends of
thought evolving in the conflict of laws. For one thing, the conflict of laws is a precursor by many centuries of the current interest in
the study of conflict resolution. A vast literature has developed a whole range of techniques to adjust the conflicting requirements of
local law and foreign law, and debate continues on the character of justice in the face of such conflicts.
Furthermore, the approach taken to the conflict of laws in different subject-matter areas might provide students of comparative social
and political systems with an interesting insight into such concerns as the hierarchy of social values and governmental policies
prevailing in different national societies. For certainly the refusal to defer to foreign law in some areas suggests the importance
accorded domestic policy. The approach used to solve internal choice-of-law problems in federal states without much experience in
international affairs (for example, Nigeria, Malaysia) may also be a useful way for those studying world order to gauge the acceptance
of supranational sources of legal authority.

The revived interest of political scientists in the study of the role of norms in world politics clearly makes the conflict of laws relevant,
for the same endeavor is at the center of both subjects: to find a just and efficient way to allocate legal authority among the actors in
a multiunit social system. The conflict of laws offers the inquirer not only a parallel setting in which to study the efforts to introduce
order into a social system that lacks centralized institutions, but it also provides a setting that tends to be less inflamed by political
passions and therefore more susceptible to systematic analysis, concerned as it mainly is with interpersonal as distinct from
intergovernmental legal disputes.

Interstate and international conflicts

It is important to distinguish the study of interstate from international conflict of laws. Rules to resolve interstate conflicts generally
arise in a federal social structure which shares a traditional language and possesses an overriding organic law (constitution) and
central legal institutions of interpretation and enforcement. These institutions are available to resolve serious conflicts that arise at
the unit level and to set normative limits upon the discretion of a state to adopt “eccentric” or excessively egocentric rules of conflict
of law. For example, the United States constitution imposes obligations on each state to give “full Faith and Credit … to the public
Acts, Records, and judicial Proceedings of every other state” (Art. iv, 1); to respect “the privileges and immunities of citizens of the
United States” and to grant every person “within its jurisdiction the equal protection of the laws” (xivth Amendment, §1). Although
the U.S. Supreme Court has acknowledged a considerable discretion at the unit level that allows the states to adopt diverse rules for
dealing with foreign facts, there exists a higher law that remains potentially available to impart unity and coherence.

In contrast, the international system is relatively decentralized, lacks an organic law, and possesses only very weak institutions for the
adjustment of disputes at the internation level. In addition, the differences in ideology, stages of economic development, domestic
politics, and attitudes toward individual and governmental liability from nation to nation are generally much greater than are the
differences among the units in a federal state. Whereas the interstate conflict of law can depend upon the resources of the national
government to promote the realization of a fair and reasonable system, the international regime for the conflict of laws is dependent
to a far greater degree upon the highly decentralized ordering techniques of reciprocity, self-help, and self-restraint in order to bring a
fair system of conflict of laws into being. Public international law does not exercise any very widely accepted “constitutional” function
at the present time in the stabilization of private international law. It does not provide a set of limits upon national discretion that
might be invoked in diplomatic negotiation or when appearing before a “higher” tribunal, for instance, the International Court of
Justice at The Hague. (A regional form of legal integration, intermediate between the centralization of a federal state and the
decentralization of international society, exists, especially in Europe and somewhat in Latin America, and may soon develop to the
point where it will warrant separate attention.)

The distinction between the operation of choiceoflaw rules in a centralized (interstate) and in a decentralized (international) multiunit
social system has many unexplored consequences. One of the most important is the difficulty of supplying juridically convincing
reasons why the courts of one state should apply the law of another under certain specified circumstances. True, this is part of the
wider need in international law to demonstrate how legal obligations can be binding on the national level in the absence of any
supranational source of law other than agreement among states or customary usage. However, in the area of the conflict of laws
neither treaty nor custom provide any generally acceptable guidelines, and with the virtual disappearance of natural-law thinking the
traditional mode of explaining the basis of legal obligation is no longer very persuasive. These circumstances have prompted most
commentators in recent times to regard the subject of the conflict of laws as a part of national law.

This position is reinforced by the virtually universal refusal of courts to apply the public law of foreign states to such matters as crime,
taxation, or the regulation of business activities. The refusal stems primarily from a territorial notion of national sovereignty in which
the public law of the sovereign reigns supreme within the boundaries of the state but nowhere else. The result of this refusal to apply
foreign public law is to deny jurisdiction rather than to apply local law, except in the area of crime, where an elaborate system of
extradition agreements operates as a partial substitute for the direct application of foreign criminal law.

Historical development

The systematic exposition of the conflict of laws rested originally upon the assumption of a supra-nationally ordained system
obligatory upon judges at the unit level. The objective of the system was to assure uniformity of result in a legal dispute regardless of
where the legal action was instituted. Naturally, such an objective could be realized, given the diversity of substantive law, only if a
uniform system of either substantive or choice-of-law rules could be established.

The dominant idea in the Roman legal system was that Romans were everywhere to be governed by the Roman law and that
foreigners were to be governed by the jus gentium, the law of the peoples, a “superlaw” of substantive rights and duties that was
assumed to be universally applicable. Thus there was no occasion to apply foreign law and no need for a system of conflict of laws.
The city-states of Italy legislated on matters not covered by Roman law, and it was out of the conflict between these legislative
acts (statua) that a need for some approach to selecting the governing statute was initially felt. The need was acknowledged, in part,
because of the regularity with which commercial intercourse among the city-states occurred. The technique evolved by the great
Roman glossators Bartolus and Baldus to resolve the problem was to classify every statute as either real (for example, land rights), or
personal (for example, status of person), or mixed. Elsewhere in medieval Europe somewhat different approaches to the resolution of
conflict-of-law situations developed, the character of solution depending above all on the insularity of the social order and upon its
prevailing political ideology, especially concerning the proper relationship between the domestic society, its members, and foreign
societies.

Territoriality

In France the feudal system in force gave great weight to the coutumes and to residues of earlier tribal law. The resolution of conflicts
depended on whether the issue had a territorial cause of action, and came under local law, or a transitory locus to which foreign law
could properly be applied. This notion of giving primacy to the customs of each place prepared the intellectual climate for an era of
territorial law, which gradually displaced the earlier acquiescence to the universal claims of Roman law. The growth of territoriality
was abetted by the rise of the ideology of national sovereignty, the loss of the authority of the Roman church as a unifying influence,
and the gradual decline of natural law as the basis of legal obligation. These nationalizing tendencies came to intellectual fruition in
the seventeenth century when Johannes Voet (1698–1704) and Ulrich Huber (1689), scholars from the Dutch provinces, fully
rationalized the primacy of the territorial lawgiver by discarding any pretense of a supranational basis for deference to foreign law. To
the extent that such deference was accorded, they explained it on the basis of comity, a concept that Joseph Story later carried
forward in a treatise that exercised a formative influence upon the Anglo-American development of the conflict of laws (1834).
England's system of common law, as the law of the realm, did not give rise to internal conflicts, and external conflict situations were
so infrequent that no real approach to the conflict of laws developed.

Nationality

The waves of nationalism occasioned by the French Revolution and later by the unification of Italy influenced the growth of conflict of
laws, especially in those parts of the world where the continental European influence prevailed. Stress was put upon nationality, at
the expense of territoriality, as the dominant connecting factor. An individual was first and foremost a Frenchman or an Italian,
recipient of rights and responsible for duties under a particular national law, and only very secondarily subject to the law of the place
where he happened to be. In contrast, doctrine in the common-law countries came increasingly to stress territoriality as the key
variable: events were subjected to a particular law in terms of where the acts took place or where the property was located, and only
a very secondary stress was given to the nationality of the actors in the process of selecting the governing legal system.

As a consequence of this division between conflicts based on the primacy of nationality and conflicts based on the primacy of
territoriality it is difficult, if not impossible, to unify the conflict of laws by means of the voluntary agreement of nations through
treaty. There has been some success on a regional basis on the Continent, where there is general agreement on the proper basis for
solving choice-of-law issues. Several European treaties operate partly to codify and harmonize different national practices and partly
to obtain uniform treatment of certain troublesome details, especially in highly technical areas, for example, the interpretation of
multilateral shipping documents.

Basic problems of conflict of laws

Despite the supranational origins of the conflict of law, first in the jus gentium of Roman times and later in the natural-law basis of all
law, the subject has been increasingly regarded as a part of national law. This nationalization results from the diversity of national
practice and doctrine, the absence of any accepted supranational doctrine of obligation, and the general dominance of positivistic
thinking that requires evidence of state consent as a prerequisite to the existence of binding rules of international law. (To be valid,
according to the positivists, the law must be posited by an authorized lawgiver, and those authorized in international society are the
states themselves. Furthermore, their acceptance of legal obligation must be indicated either explicitly, as in treaty law, or tacitly, as
in customary law.)

At the same time, however, it is widely accepted that a stable and just system of conflict of law plays a critical role in international life.

This dilemma is clearly manifest in the work of Martin Wolff, who vigorously asserts the national character of the conflict of laws:
“Today undoubtedly Private International Law is national Law. There exists an English private international law as distinct from a
French, a German, an Italian, private international law. The rules on the conflict of laws … differ nearly as much from each other as do
those on internal (municipal) law” (Wolff [1945] 1950, p. 11). Despite the vigor of this statement Wolff, along with all but the most
nationalistic of writers, is at pains to point out that justice requires that each state consider the merits of the claims put forth by
potentially applicable legal systems relative to the expectations of the parties, the stability of transnational social and economic
intercourse, and the realization of the legitimate interests of foreign states. Wolff puts this international aspect as follows: “Private
International Law is not itself international, but it should certainly be drawn up in an international frame of mind.” One of the real
jurisprudential challenges of today is to devise a satisfactory juridical account of an “international frame of mind” (ibid., p. 16).

Comity

If international law does not compel deference by a domestic court to foreign law, then it is difficult to generate a satisfactory legal
basis for such deference. The problem of finding a basis is artificial to some extent, being one of the many unfortunate by-products of
dichotomizing national and international law. Given the almost universal adherence to this dichotomy, however, scholars have been
eager to rest the conflict of laws on some extranational legal foundation that stops short of claiming legal compulsion. The most
influential of these attempts has undoubtedly been associated with the concept of comity, the traditional means by which Anglo-
American courts acknowledge the policy of deference to foreign law in domestic courts and, thereby, fulfill the injunction to manifest
an international frame of mind.
Comity is supposed to express the reality of a practice that is habitual and yet not clearly or formally required as a matter of legal duty.
That is, a court refusing to apply foreign law would not be violating any legal duty and no foreign state would have a legal basis for
complaint. However, it is so widely recognized as desirable to apply foreign law with a certain consistency that a need arises to fit the
practice into a description of the workings of the legal system. It has, at the same time, become commonplace for jurists to criticize
this reliance upon the idea of comity because of its ambiguity and vagueness. Since it provides guidance for neither courts nor private
parties in specific cases, and since it seems to identify the process of adjudication with some type of “international etiquette,” comity
makes the whole subject of the conflict of laws appear to rest upon a system of obligation no more substantial than the practice of
international politeness.

In response, writers have tended in recent decades to abandon comity as the explanation for the application of foreign law, either
affirming the completely national character of the conflict of law or searching for some substitute to express its international aspect.
One of the most persuasive efforts to evolve a substitute for comity is found in the work of Myres McDougal and Nicholas deB.
Katzen-bach. These writers approach the problems of conflicts as but a special case of the more general task in international society to
divide up the competence to apply law among the territorial sovereigns that constitute international society. They argue for a form of
legal order that can successfully emerge in a highly decentralized multiunit social system by being truly responsive to the demands of
the units. The implication of this orientation is to urge upon domestic courts the legal duty to defer to foreign law whenever, in terms
of protecting and realizing mutual freedom for national societies, it is appropriate. As Katzenbach puts it: “So long as formal authority
is organized and administered territorially, there is a mutual and reciprocal interest—a 'sense of the inconveniences which would
otherwise result'—in extending areas of tolerance” (1956, p. 1131). McDougal identifies law with the reasonable expectations of
those participating in international life, suggesting, in contradistinction to the traditional nationalization of the conflict of laws, that it
is a matter of international law to defer in appropriate circumstances to foreign law (McDougal & Feliciano 1961).

This sociopolitical approach to the study of law in international affairs eliminates such dichotomies as those between private and
public international law and even calls into question the mainstay of traditional analysis—namely, the distinction between national
and international law. Although this work seems certain to attract the interest of social scientists, it is regarded with great suspicion by
most international lawyers, especially those in Europe, and it has not yet been properly applied to the subject matter of the conflict of
laws. Instead, most theoretical attention is still focused on the problem of finding general criteria for the solution of conflict problems.

The search for general criteria

There is wide disagreement, especially in the United States, as to whether the search for general criteria is worthwhile and, if it is,
what form it should take.

The critics. Albert Ehrenzweig, the author of the leading contemporary treatise in English on the conflict of laws (1962), takes the
position that the whole search for general rules for the solution of conflict-of-laws problems in unsettled areas of the law has
proceeded on the wrong basis. Ehrenzweig contends that all a priori approaches are bound to be deceptive because courts in practice
will not be bound by overly abstract and mechanistic rules of reference that direct them to apply a certain legal system for a given
class of cases (for example, the law of the place of making for contracts, the law of the place of injury for torts, and the law of the situs
for real property), but will use manipulative devices to promote the just outcome of particular disputes or to give preference to local
as against foreign interests. The real indicators of how a conflict problem will be solved, then, arise not from the doctrinal language
used by a court to explain its decision but from the awareness of the sense of justice or bias that underlies the doctrinal explanation.
Ehrenzweig thus sets for himself the very ambitious task of finding “true rules”—the living law, as distinct from the enunciated law—
and asserts that only by this search can the pattern of judicial decision be made intelligible and predictable standards of result be
obtained. The most fundamental rule Ehrenzweig finds is that a court will tend to apply its own law to a controversy in those
situations in which it is one of several plausibly applicable laws. Thus all instances of deference to foreign law are derogations from
this underlying “true rule.” Ehrenzweig's approach is based both on a critique of judicial practice (cutting through the technical or
legalistic explanation to the real one) and upon an acceptance of its authoritative status (the role of a scholar is not to supply higher
criteria but to analyze judicial practice so as to discover the operative criteria).

What for Ehrenzweig is a matter of pervasive methodology becomes for Brainerd Currie a matter of pervasive ideology (Currie 1963).
Currie is less interested in what courts do than in developing an approach leading to what they should do, although his jurisprudential
strategy is to proceed by way of very close analyses of particular cases. He believes, to overstate it some, that a court should always
apply local law when the forum has a governmental interest in the outcome of the controversy and that foreign law is appropriately
applied only when the forum is disinterested in the outcome. In this regard he opposes the recent tendency of courts to balance the
interests of various potentially applicable legal systems and to choose the law of that legal system which has the greatest interest in
the particular case. Such balancing is for Currie inappropriately undertaken by courts and is more properly a matter for legislative
determination.

Currie and Ehrenzweig repudiate the traditional search in the conflict of laws for allocation criteria posited in advance, and both affirm
the fundamental governance of controversies by local law. In consequence they renounce the ideal of uniformity of result. Currie not
only denies the duty to defer to foreign law but also argues that courts should not defer except when they affirm both jurisdiction and
disinterest. In the rare cases that satisfy these two conditions the courts cannot reach a proper decision and might just as well apply
local law, or flip a coin, or dismiss the cases.

The balancers. A less extreme approach, but one that very likely accords more closely with what judges think they should be doing and
seems to have the strongest following in the United States, is best exemplified by the work of Willis Reese and Elliot Cheatham (Reese
1963; Cheatham I960; Cheatham & Reese 1952) and by the tentative drafts of a second restatement of the conflict of laws under the
influential auspices of the American Law Institute (1953–1965). These authors share with Currie and Ehrenzweig a distrust of the
traditional stress on general solutions to conflicts problems, but they also argue for an intermediate approach whereby policy factors
are grouped in any particular case so as to identify the legal system with the dominant interest in the outcome and to choose the legal
result most in accord with substantial justice. Ehrenzweig, a harsh critic of this enterprise, contends that it produces vague formulas
and keeps alive, despite denials, the tradition of discerning a priori forum-selecting choice-of-law rules. Reese and Cheatham defend
their balancing approach on the grounds that both practice and doctrine confirm this type of analysis and that recent landmark
decisions in the conflict of laws exhibit the tendency to search for criteria by which to select the most interested forum and by this
means to reach the most just result.

We find, then, that the very character of the conflict of laws, its methodology, and its governing ideology have been seriously
questioned in recent years. There exists no scholarly or judicial consensus on choice-of-law rules. In particular, the traditional ideals of
seeking uniformity of result and of establishing equality between domestic and foreign laws have come in for heavy criticism on the
grounds that such ideals are unrealistic and inappropriate, since domestic courts actually do and, in fact, should accord preference to
domestic law in a situation where it is one of the applicable legal systems.

Operational problems

No less serious than the theoretical problems are the dilemmas facing the practitioners of private international law. Judges in courts
are confronted by the operational necessity of choosing the legal system that shall govern most justly a particular controversy and of
giving a satisfactory explanation of their solution on a particular occasion. Scholars through the centuries have sought to find a general
solution that combines just choice-of-law rules with the universality of their acceptance. The overriding objectives are to get the just
decision and to be assured that there will not be one just decision in Japan, another in Holland, and a third in the United States.

There is, unfortunately, no broad consensus as to the form a general solution should take. The problem of legal systems using
nationality as the criterion versus those using territoriality has already been mentioned. (If a Frenchman lives in Brazil, is his estate
properly governed by French or Brazilian law?) Furthermore, courts are less inclined to follow the dogmatic solutions proposed by
scholars than to seek to do substantial justice to the parties in dispute. Therefore, a court will tend to manipulate the criteria
governing the choice of laws to fulfill its view of what justice demands. A good illustration is the basic idea that a court will always
apply domestic procedure even if it defers to foreign substance. This allows it to characterize as “procedure” any device that will
produce the desired result.

The promise of conflict of laws

Despite the critiques of the subject, the dominant trend continues to be the pursuit of uniformity and equality, especially if the
emphasis is put upon the international as distinct from the interstate aspect of the conflict of laws. The challenge today is to find an
acceptable supranational basis for promoting these ideals in a divided world composed of states with different economic, cultural, and
political outlooks. This challenge cannot be met by a new global ideology but rather by a series of more modest and concrete
undertakings. One of the more promising research developments consists of the comparative-law efforts to take specific inventory of
the differences in both substantive standards and in choice-of-law rules and to examine the prospects for their harmonization by
unilateral or multilateral action.

A sociological extension of this inquiry would be to take stock of the diverse social interests that account for differences in the conflict
of laws from one national system to another and to work toward a set of solutions on the basis of mutual interests. This type of
inquiry has been undertaken by Kenneth S. Carlston (1962). It draws heavily upon functional sociology, especially organization theory
and systems theory. Its persuasiveness also depends on the acceptance of a new image of global unity, eloquently summarized by C.
Wilfred Jenks (1958) as “the common law of mankind,” in which the nation-state is supplanted to some extent in legal consciousness
by new forms of social and political order that take greater account of both international institutions and of individuals in specifying
the link between law and human welfare in transnational phenomena. As might be expected, it is the powerful states that seem most
reluctant to participate in this new attempt to supranationalize the conflict of laws. Such states as the Soviet Union, the United States,
China, and France oppose most efforts to diminish sovereign prerogatives for the sake of an operative global system.

In conclusion, the stability and fairness of international legal undertakings seem to depend upon the strengthening of this renewed
attempt to supranationalize the conflict of laws. As a result of the increasing interdependence of human activity there is a growing
need for predictable outcomes in legal disputes. These outcomes should have a more substantial base than the national affiliation of
the forum. Given the diversity of contemporary international society it is not realistic to seek this end by reconciling national policies
so as to create a single substantive law. There is more reason for hope if the ancient quest for order amid diversity is pursued through
a uniform approach to the allocation of legal competence among the national units that compose the global system. One illuminating
context within which this allocation can be studied and realized is the application of choice-oflaw rules by domestic courts.