History of private and civil international procedural law
The history of private international law and civil procedural law describes the historical development of private international law and international civil procedural law .
Antiquity: πρόξενος and ius gentium (7th century BC to 5th century)
In ancient times, foreigners were initially considered to have no rights. In principle, law was only valid within the polis or civitas . Thus, the courts applied even their own law, the so-called. Law of the forum , on. With the increase in trade within Greece , this attitude soon turned out to be unsuitable: One went to conclude state treaties or to place the foreigner under the protection of a proxenos (old Greek πρόξενος - 'guest friend'). In Roman law , the ius gentium soon developed , a special law for foreigners. The ius civile applied to Roman citizens . Since 242 BC With the praetor peregrinus there was a praetor whose task it was to apply the ius gentium. This applied both to relationships between strangers and to relationships between Romans and strangers. With the Constitutio Antoniniana Emperor Caracallas 212 this distinction lost its meaning.
Personality and territoriality principle (5th to 12th centuries)
With the migration of peoples from the 5th century onwards, Germanic tribes began to settle on what was once Roman territory. Roman law initially continued to apply to Germanic tribes. Soon, however, developments and amalgamations began to form legal norms of their own, for example the Lex Romana Visigothorum Alaric II. If the applicable law was to be determined, one assumed the personality of the law: each person was treated according to the law of their people, the lex originis ( "Ius suum cuique tribuere"). Soon the different ethnic groups merged with one another and so their legal systems often also merged.
From the 12th century on, the principle of territoriality took the place of the principle of personality: “Statutum non ligat nisi subditos”. Whether someone could be brought to justice depended on whether he was a subject. Anyone who spent at least a year and a day within the boundaries of the territory was subject. Later, it came in some German cities for the construction of guest dishes , where to submit strangers action and could be sued. The first mutual conflict of laws rules developed before these courts: legal transactions were treated according to the law of the place where they were made: locus regit actum . This rule was later extended to include illegal acts : these were subject to the lex loci delicti , the place where the illegal act was committed. The lex rei sitae , the right to which the thing was located, also applied to rights to things .
Statutes doctrine (13th to 18th centuries)
In northern Italy, from the 11th and 12th centuries, a brisk trade began, which led to the development of its own laws, the statute . It had to be clarified which law was to be used in disputes between traders from different cities. First attempts at a solution can be found in the 12th century with the postglossator Aldricus . Accordingly, the judge should apply the legal system that appears to him to be better (“consuetudo quae potior et utilior videtur”).
The doctrine of the statutes of the postglossators at the beginning of the 13th century in northern Italy is considered to be the beginning of modern IPR . Its representatives include Bartolus de Saxoferrato and Baldus de Ubaldis . There are three types of statutes:
- Statuta personalia: These concern the person (e.g. ability to act) and are attached to them wherever they go. A person is also in another city-state with regard to personal legal qualities of their home statute. Movable objects that a person carries with him are also subject to this statute.
- Statuta realia: These only apply to immovable property within the boundaries of the city-state.
- Statuta mixta: These are catch-all and apply in particular to human actions (conclusion of contracts, offenses). For this act, the statutes of the place of action apply .
The scope of application was therefore derived from a technical standard. Each factual standard was asked about its conflict-of-law content. Jakobus Balduini also introduced the rule that procedural law is always subject to the lex fori (Latin law of the court). The material law, the lex causae (Latin law of the thing), on the other hand, can also be foreign.
The doctrine of the statutes has now been continuously refined and developed. In France, Charles Dumoulin (Molinaeus) developed in his work Conclusiones de statutis et consuetodinibus localibus the will of the party as a connecting factor and no longer stipulated the lex originis but the domicile for the statuta personalia . His proposals to withdraw certain questions from the party agreement can be seen as a forerunner of public policy. Bertrand d'Argentré (Argentreus) extended the scope of the statuta realia to include all property law issues and thus strengthened the principle of territoriality.
In the Netherlands, Paul Voet systematized the doctrine of the statutes in De statutis eorumque concursu (1660) and for the first time divided it into a general and a special part. Johannes Voet , his son, assumed for the first time a national statute law: the legislature is free, due to its sovereignty, to determine the scope of its laws. The various national legal systems, however, are to be balanced by the principle of comitas , mutual consideration. Ulrich Huber refined this interplay between state sovereignty and the principle of comitas.
The major private law codifications ( Codex Maximilianeus Bavaricus Civilis from 1756, the Prussian General Land Law from 1794, the Austrian General Civil Code from 1811) still followed the doctrine of the statutes. Likewise the French Civil Code of 1804; However, with Article 3, Paragraph 3, this initiated the departure from the doctrine of the statutes and the transition to the principle of citizenship in the 19th century.
Reception of comitas teaching in common law (18th or 19th century)
Joseph Story spread Huber's ideas in the United States . Commentaries on the Conflict of Law is an IPR theory that justifies the application of foreign law with consideration for international law, the comity . The structure of the work no longer corresponded to the conventional doctrine of the statutes, but was arranged according to legal areas.
English common law was completely shielded from continental European influences until the 18th century. Also due to the island location, there were fewer legal cases with foreign contacts. If such cases occurred, they were only decided by the courts if the English jurisdiction was given. English jurisdiction existed domestically for all cases. English courts then always judged according to the lex fori, the common law. As the first sign of the reception of continental IPR theories, the decision of Robinson v. Bland (1790) apply: Lord Mansfield considered the development of collision rules on the basis of the doctrine of comitas . Only then was the development of the IPR in England made possible.
Justification of modern IPR: Friedrich Carl von Savigny (1849)
Karl Georg von Wachter's paper on the collision of private law laws of different states ended the further development of the doctrine of the statutes by showing its lack of flexibility. However, no alternative could still prevail. Only Friedrich Carl von Savigny achieved a decisive breakthrough : In the eighth volume (On the Local and Temporal Validity of the Laws (1849)) of his system of current Roman law , he established modern IPR, which uses the “seat of the legal relationship” as the starting point for the determination of the applicable law. Foreign law is applied out of friendliness towards other states, i.e. for reasons of comitas. In contrast to the doctrine of the statutes, however, a domestic standard is not asked about its scope. Instead, von Savigny starts from the living relationship and examines it for the legal system that best applies to it.
Universalism and Nationalism (around 1850–1950)
In Italy, the Italian school developed shortly after von Savigny's writing . The basis for this was a lecture by Pasquale Stanislao Mancini in Turin in 1851 with the title Della nazionalità come fondamento del diritto delle genti. Under the political influence of the Italian risorgimento , Mancini emphasized nationality as a fundamental link to IPR. This is a requirement of international law. This is called the universalistic approach . The further development of public policy also goes back to Mancini and his school . Mancini was widely received in continental Europe. The IPR codifications of Italy (1842, 1942 and 1995), Spain (1889), Austria (1978), the German EGBGB and many international agreements took over the connection to citizenship.
Mancini's universalist approach was modified in France by Antoine Pillet : the national legislature wanted a law to apply to all its nationals, regardless of their residence, (permanent) and to all persons within its territory (général) . In the interests of international consistency in decision-making, each state must restrict the effectiveness of its laws: Laws for individual protection apply permanently, laws in the interest of public order generally apply to their own national territory. This distinction could not prevail. Pillet's pupil Jean-Paulin Niboyet developed the theory of réalisme national: Every state can freely define its IPR, but only enforce it within its territory. Foreign law is only applied out of courteoisie internationale . This territorial orientation of the IPR between the world wars was only overcome by Henri Batiffol and his student Paul Lagarde .
Restatement Second of the Conflict of Laws and American Legal Realism in the USA
In the US, every state has its own IPR, which (except for Louisiana ) is only judicial law. A summary of these IPRs can be found in the Restatement (Second) of the Conflict of Laws from 1972. The law of the state with the most significant relationship can be determined using various policies . New approaches of a methodical nature can be found in Albert Ehrenzweig , Brainerd Currie , David F. Cavers and Robert A. Leflar .
20th and 21st centuries
From the middle of the 20th century, international decision-making in continental Europe became the main goal of IPR. Savigny's ideas caught on. International consensus on decisions is achieved in particular through comparative law work and the conventions of the Hague Conference on Private International Law .
See also
literature
- Max Gutzwiller: History of private international law. From the beginnings to the major private law codifications . Helbing & Lichtenhahn, Basel 1977, ISBN 3-7190-0688-3 .
Individual evidence
- ↑ a b c d e f g h i j k l m n o Bernd von Hoffmann / Karsten Thorn : International private law: including the basic terms of international civil procedure law . 9th edition. CH Beck, Munich 2007, ISBN 978-3-406-55976-1 , § 2. History and theory.
- ↑ Cf. for example Max Pagenstecher : The principle of unanimous decision-making in international private law. A contribution to the teaching of Renvoi (= treatises of the Academy of Sciences and Literature. Humanities and social science class. Born in 1951, Volume 5). Verlag der Wissenschaft und der Literatur in Mainz (commissioned by Franz Steiner Verlag, Wiesbaden).