The Nature and Function of Private International Law
“Gentlemen, this subject is very important. I have earned 15000 ducats by opinions given in this matter” (Baldus); 1 “the nature of the conflict of laws is a dismal swamp, filled with quaking quagmires and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon. The ordinary court or lawyer is quite lost when engulfed or entangled in it.” 2
The Historic Bases of Private International Law
INTEGRATION AND DIVERSITY are the two dominant features of modern culture that in conjunction give rise to confficts of laws. The intensive division of labor introduced by the industrial revolution, necessitates complex, localized regulation of specialized services. The operation of the correspondingly diversified economy depends upon commerce, upon exchange of goods and diffusion of ideas through the constantly improved means of transport and communication provided by scientific invention. Paradoxically, the function of the legal order therefore is to co-ordinate the activities that constitute civilization on a common basis of security and, in so doing, to satisfy the needs of each local or specialized activity. Moreover, the legal order itself is decentralized among a plurality of sovereign or autonomous authorities, asserting jurisdiction each within a defined territory over activities that concern their respective subjects. As the pretensions of the corresponding local laws to control international or interstate commerce thus inevitably overlap, the legal order also involves integration of the diversity of the laws of which it is composed. The mode in which this adjustment is or should be effected is the concern of confficts law. The specific method to integrate the existing diversity of laws, employed in this branch of law, is to apply or refer to foreign law in dealing with foreign cases. This, as will appear, is a sophisticated technique that took centuries to develop; it assumes a certain cosmopolitan respect, or at least tolerance, for foreign conceptions of justice. In early times, when the legal order was intimately connected with actual or supposed kinship groups and was part of the peculiar religious and social structure of the particular community, law was inalienably personal. It was inconceivable, for example, that the ius civile, the common law of the Roman citizenry, should be available to a peregrine in Rome or, vice versa, that
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raised are that the accused person was not aware of the nature and quality of the act he was doing or that he did not know that what he was doing was wrong. I would very much like to be authoritatively informed of the meaning of the word "wrong" in this context. My opinion is that it has been generally employed to signify wrong in the moral sense, the meaning that the average rational individual in this country-i.e., living in our particular form of culture-would give it. But the prosecuting counsel, Sir Hartley Shawcross, at the Haigh trial gave a different interpretation to the term. He is stated to have put to the medical witness the question " 1 amn not asking you whether the man decided, in obedience to a higher power, to do what he realized was wrong; I am asking you to look at the facts and tell the jury whether there is any doubt that he must have known that, according to English law, he was preparing to do, and subsequently did, something which was wrong." I submit that this is not the .meaning of the word "wrong" intended by the M'Naghten rules. I say this because, in the first place, there have been many trials in which it has been interpreted in the ordinary moral sense. A not uncommon example is the case of the mother who in a state of depression kills her child in order to save it from the suffering she imagines is in store for it. She may be aware of what she is doing, may know that it is against the law and that she will be punished for it, but she considers it right and justifiable in the light of her strong (abnormal) convictions. In the case of M'Naghten himself, from what is known of his state of mind we can draw the highly probable conclusion that he knew what he was doing when he shot Sir Edward Drummond and also that he knew that " according to English law" what he was doing was wrong. At the same time his judgment of right and wrong was so impaired by his delusions of persecution that it was obvious to the court that he was of unsound mind. If, however, the same test had been applied to him as was applied in the case of Haigh, M'Naghten would not presumably have been found insane at the trial. In the second place it is to be noted that the statement of the two tests setting out the legal conception of responsibility contains the disjunctive " or " (did he know the nature and quality of the act or (sic), if he did know it, did he know that what he was doing was wrong). The disjunctive implies that there is a significant difference between the two tests. But the fact is that in the great majority of cases in which the prisoner knew what he was doing he would also know that what he was doing was wrong "according to English law." He may, nevertheless, firmly believe that what he was doing was right according to his conscience and his own conception of right and wrong. It is clearly a matter of great importance to know, without equivocation, what is meant by "wrong" as used in the M'Naghten rules. It can hardly be seriously contended that it is justifiable to allow it to signify wrong according to English law in one case and morally wrong in another.-I am, etc.,