Conflict of laws

Lore & Background

Western legal systems first recognized a core underpinning of conflict of laws—that foreign law, in appropriate instances, should be applied to foreign cases—in the twelfth century. Prior to that, the prevailing system was that of personal law. The mode of this body of law initially was to determine which jurisdiction's law would be most fair to apply; over time, the law came to favor more well-defined rules. These rules were systematically summarized by law professor Bartolus de Saxoferrato in the middle of the fourteenth century. In the seventeenth century, several Dutch legal scholars, including Christian Rodenburg, Paulus Voet, Johannes Voet, and Ulrik Huber, further expounded the jurisprudence of conflict of laws. Their key conceptual contributions were twofold: nations are wholly sovereign within their borders and therefore cannot be compelled to enforce foreign law in their own courts; and nations must exercise comity in enforcing others' laws, because it is in their mutual interest to do so. The doctrine of comity refers to the idea that every State is sovereign, and often the most just exercise of one State's authority is by recognizing the authority of another through the recognition and enforcement of another state's laws and judgments. The seven South American nations represented agreed on eight treaties.

Reader's Guide

Conflict of laws is significant because it provides the framework for resolving disputes that cross jurisdictional boundaries, whether between nations or, in federal states like the United States, between subnational units. The field addresses three core issues: jurisdiction (when a court may hear a case), foreign judgments (enforcing another jurisdiction's rulings), and choice of law (which substantive laws apply). Its importance has grown with globalization, as international arbitration and cross-border contracts and torts become more common. The term 'conflict of laws' is primarily used in the United States and Canada, while 'private international law' is common elsewhere. Notably, this body of law consists solely of domestic laws, not international law, though it can be affected by treaties. The field's historical development from personal law to territorial sovereignty and comity continues to shape modern practice.

Did You Know?

• The term 'conflict of laws' is primarily used in the United States and Canada, while 'private international law' is common elsewhere.
• In the United States, American judges encounter about 5,000 conflicts cases per year as of the mid-2010s.