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
Reid on Hypotheses and the Ether; A Reassessment
In recent years historians of science have come to see that Thomas Reid’s Essays on the Intellectual Powers of Man had a profound impact on the development of British methodological thought in the late-eighteenth and early-nineteenth centuries. Larry Laudan has argued that Reid was “the first major British philosopher to take Newton’s opinions on induction, causality, and hypotheses seriously”; and that Reid was thereby instrumental in changing the character of British methodological discourse in the Enlightenment.(1) Geoffrey Cantor has examined in detail the influence of Reid’s critique of ether theories and hypotheses in the Essays on leading protagonists in the nineteenth-century debates surrounding the wave theory of light,(2) and Richard Olson has traced the origins of the scientific style of British physics in the Victorian period to the writings of Reid and other Common Sense philosophers. (3) As well as delineating Reid’s influence, Laudan, Cantor, and Olson have attempted to identify the problems to which he addressed himself in articulating his methodology, and they have analysed with some care the internal structure of his methodological views. Thanks to the work of these historians, therefore, we have a fairly comprehensive picture of Reid’s methodology and its fortunes in the nineteenth century.