International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2012 Issue

Private International Law Discourse


The Legacy of Friedrich Carl von Savigny

Carolyn A. DubayBy: Carolyn A. Dubay, Associate Editor, International Judicial Monitor

The nineteenth century was a watershed in the development of private international law as jurists and scholars began to challenge centuries-old concepts of how to deal with the confusing legal problems associated with choice of law in international disputes and the forum shopping that ensued.  On the issues of choice of law and the classical understanding of private international law, one of the most influential scholars of the nineteenth century was Friedrich Carl von Savigny.  Savigny was a German legal scholar and historian who founded the “historical school” of jurisprudence.  Through this approach, laws would be interpreted and analyzed according to a more scientific investigation, through research into the historical origins and development of particular laws in relation to local custom.  This approach diverged from other approaches to the development of legal rules based on natural law or “statutist” efforts to codify rules based on abstract or unworkable principles.  Savigny’s historical approach was detailed in his eight volume magnum opus entitled System des heutigen römischen Rechts, or “System of Modern Roman Law,” published in the 1840s.

While Savigny’s historical jurisprudence movement is significant, his most lasting legacy in modern private law derives from the eighth and final volume of his System des heutigen römischen RechtsThe last volume, translated into English in the late nineteenth century by William Guthrie, was entitled A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of Place and Time. In his treatise on private international law, Savigny developed a new approach to classifying legal disputes for purposes of choice of law in the hopes of providing a uniform set of rules that could easily be applied in courts around the globe when they were confronted with private disputes with an international element. Rather than focusing on abstract characterizations of legal claims, Savigny advocated focusing on the legal relationship between the parties and then set about selecting a geographical location that best suited that relationship. 

Under Savigny’s approach to private international law, a judge should look for the “local seat” of the dispute, which today might be the equivalent of looking for the geographic location most closely connected to the dispute.  To find the “local seat” of the legal relationship, Savigny classified disputes and identified various factors that might connect them to a particular legal system.  For example, a dispute concerning real property should be decided according to the law of the geographic location of the property.  Similarly, a contract dispute would be decided according to the law of the geographic location where the obligation was to be performed. Savigny hoped that this dispassionate and scientific approach would deter forum shopping and allow for the more effective and uniform disposition of private legal disputes.  Thus, if French law should govern a dispute because of a rational geographic connection between France and the nature of the dispute, French law should govern wherever the plaintiff files suit. 

A major impetus in the development of neutral choice of law rules was Savigny’s view that harmonized and neutral choice of law rules would not only benefit individual states and their sovereignty (the comity approach), but would benefit all – states, litigants, judges and so on – by producing decisional harmony in all courts confronting the same choice of law issue.  As such, Savigny looked for common principles that emanated from the practice of national courts, and not from a theory imposed from above by theorists or legislatures.  Savigny hoped that creating a system of neutral rules on what law should apply would result in decisional harmony regardless of forum shopping. 

Despite the technical appeal and widespread acceptance of Savigny’s approach in finding the locus of a particular dispute, Savigny’s vision of a common set of international choice of law norms to be applied at the national level largely failed to materialize in the 20th Century.  Instead, choice of law rules in international disputes (the traditional understanding of private international law) have developed in most instances into a matrix of national laws applied at the local level.   Competing policy preferences of domestic lawmakers, along with the realities of judicial decision-making at the local level, have often stood in the way of developing an international legal regime for conflicts of laws.  In the 20th Century, therefore, classical private international law failed to develop into international private law at the supranational level. 

The 21st century, however, promises a resurgence of Savigny’s goals for a universal set of choice of law rules to be applied in domestic courts.  To date, Savigny’s goal of harmonized rules on choice of law has succeeded in large part in Europe through conventions and regulations at the EU level.  In the United States and elsewhere, however, choice of law continues to be dominated by varying domestic rules and doctrines.  In the United States, with its federal system, choice of law issues continue to be determined in most cases by state law, even in federal courts.  Even so, on a theoretical level, debate continues among legal scholars on the value of elevating traditional private international law from domestic legal rules to international rules that would be incorporated into a system of global governance for international legal disputes.  More importantly, on the practical level, the Hague Conference on Private International Law has been working to develop a convention that would allow for the recognition and enforcement of choice of law clauses in international business contracts.  While this would be a small step towards Savigny’s vision of universal rules governing choice of law, it is at least a step in the right direction.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2012 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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