Theories of Private International Law -By Vaibhav sharma at Lexcliq

The existence of Private International law has been justified on several doctrinal and Principle  grounds. Several theories have come into existence time to time with the change of law and society. The important among them are as follows:

  • Statute Theory
  • International Theory
  • Territorial Theory or Theory of Acquired Rights
  • Local Law Theory
  • Theory of Justice

Statute Theory-

This theory was propounded by Bartocus who is also called the father of Private International Law. His primary aim was to resolve the conflict between the law of various city states and the city states and Italian Law on other side. At that time law of the Italian city states was contained in statutes. At this period of history Italian states had flourished trade and commerce not merely with each other but also with countries like Spain, France, Arabia, Syria etc and hence Private International Law developed

International Theory-

Founder of this theory is Savigny. His idea about western civilization lies in a community of nations sharing Christianity and Roman Law as the source of common heritage. The advocates of the internationalists doctrine believe that there is a body of customary and conventional rules developed in the family of nations which ought to be applied by the municipal courts to solve the problem of Conflict of Laws. Any attempt to deviate from that body of rules gives rise to conflict of Laws. As per this theory a common system of conflict of laws has developed in the international field. This conflict may be over only if municipal courts with diverse rules of internal law recognize the uniform rules of customary law developed among the civilized nations.

Territorial Theory-

This theory was first advocated by Muber and supported by writers like Dicey and Beale. The central principle of this theory is that courts of a sovereign state do not apply foreign law nor do they directly enforce foreign judgment but they merely recognize the consequence of the operation of a foreign law within its relevant theory. The merit of this theory is that it tries to reconcile the territoriality of law and the need for private international law.

Local Law Theory-

This theory was propounded by Walter Cook. This theory is a slight variation of territorial theory and is based on the principle that each court applies its own laws. No court ever applies any other law but its own, nor enforce any rights or obligation other than those created by its own law, but for reasons of social expedience and practical convenience it takes into account the laws of a foreign country into account. According to Cook, rules of PIL would only consist of rules as to how a court would decide a dispute involving a foreign element.

Theory of Justice-

Theory was propounded by Graveson. The main reason is development of Private International Law is the pragmatic and ethical. The main goal was to achieve justice since a foreign question of law involving tort, contract, marriage would be best determined by the law of that foreign country. So three cornerstone of development of Private International Law are Sociological, Ethical and Legal. Sociologically, it is based on the international need for fair treatment in of private transactions of individuals. It is based on needs of justice. Rules of PIL in England are built from precedent to precedent with the ultimate view of doing justice.  Justice, Equity and Good Conscience.

SO, these are some of the Theories of Private International Law.

Thank -you

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