Is Conflict of Laws Becoming Passe? An Historical Response

BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. GEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Luke, Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005

Emory Public Law Research Paper No. 05-42

7 Pages Posted: 16 Dec 2005  

Harold Berman

Emory University School of Law

Abstract

Now that virtually all the nations of the world have come together in a world economy and an emerging world society, and universal bodies of law are gradually being created to help support that economy and society, the question has arisen whether the scope of both conflict-of-laws and comparative law will now gradually be substantially reduced. A response to that question raises the further question, what is the basic purpose of conflict-of-laws? Is it to preserve the autonomy of diverse legal systems or is it to help to harmonize them? A historical answer to that question is presented in this short essay. It appears that conflict-of-laws doctrines emerged in the West in the late eleventh and twelfth centuries drawn not, as is usually said, from Roman law but rather from the canon law of the Roman Catholic Church, and that their basic purpose was not primarily to support the reciprocal application of the diverse bodies of law but rather to harmonize the laws of diverse jurisdictions that co-existed in the West. The fact that different results would be reached by the application of one or another body of laws was subordinated to the fact that all the different bodies of law had a common purpose, namely, to achieve justice. Thus conflicts rules were not originally, and should not now be, applied primarily in order to preserve the autonomy of competing laws but primarily in order to achieve common goals of justice.

Suggested Citation

Berman, Harold, Is Conflict of Laws Becoming Passe? An Historical Response. BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. GEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Luke, Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005; Emory Public Law Research Paper No. 05-42. Available at SSRN: https://ssrn.com/abstract=870455

Harold J. Berman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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