Three questions. CHAPTER XVIII. THE APPLICATION OF LAW 1. So long as law is regarded as a body of abstract principles, its interest is merely speculative. Its practical importance begins when these principles are brought to bear upon actual combinations of circumstances. Many questions may be raised as to the extent and mode in which this takes place, and, for their solution, rules have been laid down which, like other legal rules, are susceptible of analysis and classification. They make up that department of Jurisprudence which we propose to call 'the Application of law.' When a set of facts has to be regulated in accordance with law, two questions of capital importance present themselves. First, what State has jurisdiction to apply the law to the facts? and secondly, what law will it apply? The former of these questions is said to relate to the appropriate Forum,' the latter to the appropriate 'Lex.' A third question, which, for the purpose of our present enquiry, is of less importance than these two, and may be dismissed in a few words, relates to Interpretation.' 1 A translation of this chapter, as it stood in the first edition, by M. Nys, appeared under the title de l'Application de la Loi,' in the Revue de Droit International, t. xii. p. 565. It will be necessary to show very briefly how these ques- CH. XVIII. tions arise, and in what modes they are answered, in private law; and how far the same or analogous questions have to be considered also with reference to public and to international law. § 1. Private Law. In private law all three questions have to be answered; The appliand first as to the 'Forum.' cation of private law. of Forum. I. Given a set of circumstances the legal consequences of Questions which are disputed, it obviously becomes necessary to ascertain in the Courts of what country the dispute can be decided; in other words, what court has jurisdiction to try the case ratione territorii1. cases. For this purpose it is indispensable to classify on the one Possible hand possible sets of circumstances, and on the other hand possible Courts. The circumstances which may give rise to legal controversies have been already classified in the preceding chapters. Fora. The Courts in which proceedings may possibly be taken are, Possible that of the country in which the plaintiff, or the defendant, is domiciled, or to which he owes allegiance 2, or in which the defendant happens to be; that of the country in which the object in dispute is situated; that of the country in which the juristic act in question, which may have been for instance a marriage, or a sale, or the making of a will, took place; that of the country in which the wrongful act in question took place; that of the country in which a contract was to produce its results; or that in which the plaintiff chooses to commence proceedings. 1 This phrase seems better adapted than its older equivalent 'jurisdiction ratione personae' to distinguish the question stated in the text from questions as to 'jurisdiction ratione materiae,'' sächliche Zustandigkeit,' i. e. as to the proper court, within a given territory, for the trial of a particular class of actions. 2 This exceptional forum is recognised e. g. in the Code Civil, art. 14. CH. XVIII. Questions of Lex. Concen tricity. It might be convenient to describe these Fora' respectively as the forum ligeantiae, or domicilii, actoris, forum ligeantiae, domicilii, or praesentiae, rei, forum actus, including contractus, forum delicti commissi, and the forum litis motae, or fortuitum. Of these technical terms one only, the forum (domicilii) rei, has obtained general currency, doubtless by means of the long prevalence of the maxim, 'actor sequitur forum rei.' As examples of the questions which arise as to the forum, it may be sufficient to mention that an English Court will almost always decline jurisdiction in divorce, unless the husband be domiciled in the country; and that an English Court will take cognisance of a contract, wherever made and between whatever parties, while a French Court is, as a rule, incompetent to do so unless one of the contracting parties be a French subject or domiciled in France. The Courts of a given country have not only from time to time thus to decide on their own competence, but also occasionally to investigate the competence of the Courts of other States; the decrees of which, when duly made, they will often recognise under the technical description of Foreign judgments,' just as they do other foreign facts creating rights; which rights may thus continue to subsist outside of the jurisdiction which originally gave them validity. ་ 6 II. The question as to the applicable Lex' is far more complicated than that as to the competent Forum.' The circumstances which affect its solution may be enumerated as Concentricity, Time, Race, and Place. i. It often occurs that special are included in more general circles of law. A city may be governed not only by its own statutes, but also by the law of the kingdom to which it belongs, and of the empire in which that kingdom is included, and it may be doubted whether the affairs of the citizens are cн. XVIII. to be regulated by the civic, royal, or imperial laws, where these differ from one another. The general rule is that the nearer and narrower law is to be applied rather than the more remote and wider, 'Stadtrecht bricht Landrecht, Landrecht bricht gemeines Recht; thus 'gavelkind' prevails in Kent rather than the general law of England as to succession to realty. ii. It might be supposed that the universally admitted Time. principle that laws have, in the absence of express provision to that effect, no retrospective operation, leges et constitutiones futuris dare formam negotiis, non ad facta praeterita revocari1,' would prevent all doubt whether a given state of facts is to be governed by a new or by an old law. This is however by no means the case, since some legal relations, such for instance as acquisition by prescription or under a will, are the result of a series of facts occurring through a prolonged period. There is accordingly a literature devoted to the discussion of the temporal limits' of the application of law2. iii. There is a stage of civilisation at which law is addressed, Race. not to the inhabitants of a country, but to the members of a tribe, or the followers of a religious system, irrespectively of the locality in which they may happen to be. This is the 'personal' stage in the development of law. The governments which the barbarians established on the ruins of the Roman empire did not administer one system of justice applicable throughout a given territory, but decided each case that arose in pursuance of the personal law of the defendant; so that, according to an often-quoted passage 1 Cod. i. 4. 7. 2 E. g. Struve, Über das positive Rechtsgesetz rücksichtlich seiner Ausdehnung in der Zeit, 1831; Savigny's discussion of the zeitlichen Gränzen,' System, Bd. viii. pp. 368-540; and Chabot de l'Allier, Questions transitoires sur le Code Napoléon, 1809. 3 Marriage was contracted according to the law of the husband, and wives married according to their own law could be dismissed at pleasure, but for CH. XVIII. in one of the tracts of Bishop Agobard, it might often happen that five men, each under a different law, would be found walking or sitting together.' In one and the same town the Frank, the Burgundian, and the Roman lived each under his own system of law. A similar phenomenon may be seen at the present day in British India. The notion of a territorial law,' it has been said, 'is European and modern. The laws which Hindus and Mahomedans obey do not recognise territorial limits. The Shasters and the Koran revealed religion and law to distinct peoples, each of whom recognised a common faith as the only bond of union, but were ignorant of the novel doctrine that law and sovereignty could be conterminous with territorial limits 2.' The British Courts, in dealing with members of the Hindu or Mahometan communities, hold that wherever such persons go within the limits of British territory, they carry with them as a personal law applicable to their family and possessions, Hindu or Mahometan law respectively 3. Place. iv. According to modern ideas, a system of law applies not to a given race, but to a given territory. It follows from the independence of each State within its own borders that it might, without contravening any principle of international law, regulate every set of circumstances which calls for decision exclusively by its own law. This law, technically described as the lex fori, may be said to be the natural law for the Courts of each State to apply; and it is that which will undoubtedly be applied by them, in the absence of special reason to the contrary. With the development of such religious prohibitions as that of the council of Tibur; Mansi, t. xviii, col. 151, cited by Westlake, Private International Law, ed. 2. p. 11 n. 1 'Nam plerumque contingit ut simul eant aut sedeant quinque homines, et nullus eorum communem legem cum altero habeat, exterius in rebus transitoriis, cum interius in rebus perennibus una Christi lege teneantur.' Adv. legem Gundobadi, c. 4, Op. i. p. III. 2 Cowell, Tagore Lectures, 1870, p. 40. Cf. ib. p. 5, and the First Report of the Commission for a body of Substantive Law for India, p. 80. |