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| Western Philosophy of Law and the Evolution of Private International Law Theory |
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| Author: Xiao Yongping, Tan Yueqi |
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[Abstract] The well-established natural law thought provided theoretical resources for the birth of the Italian doctrine of law discrimination in the 14th century. When the analytical positivist jurisprudence was popular in the West in the 19th century, the German doctrine of legal relations came into being in due time. They promoted the development of the written legislation of private international law, while the sociological theory of law rose in the West in the 20th century, It provides new wisdom and experience for private international law to deal with conflicts of laws.
[English abstract] The long standing and well established natural lawthoughts provided theoretical resources for the birth of the Italian Statue Theory in the 14th century While AnalyticPositivist Jurisprudence prevailed in a grand scale in the19th century, the German Sitz of Legal Relationship Theorycame into being at the right moment. These promoted thedevelopment of the legislation of the statutes with respectto international private law.The upsurge of sociology of lawin the 20th century in the western countries provided intelligence and experience for international private law to handle conflicts of laws.
[Key words] Natural law/law discrimination/analytical positivist jurisprudence/legal sociology
Natural Law/Statute Theory/Analytic PositivistJurisprudence/Sociology of Law
Private international law, as a branch law that mainly solves conflicts of laws, its earliest theoretical gene was conceived in the civil law of the ancient Romans. In the history of the development of private international law, its theory and doctrine have undergone two qualitative changes and leaps, which have led to the formation of a logical and complete departmental law of private international law. The doctrine of law distinction, which originated in Italy in the 14th century AD, established the basic rudiments of modern private international law. The doctrine of legal relationship, which was founded in Germany in the 19th century AD, laid the theoretical foundation of modern private international law. Italy's doctrine of law distinction and Germany's doctrine of legal relationship seat are the core ideas of the coordinate axis in the history of private international law. Theories and doctrines of different times determine their positions in history by establishing relationships with the core ideas of the coordinate axis.
History has never been a little girl dressed up by others. When we carefully comb the theory of private international law along the historical context, we cannot help but find that the theoretical evolution of private international law is inextricably linked with the evolution of western legal philosophy. The author believes that the well-established natural law thought provided theoretical resources for the birth of the Italian doctrine of law discrimination in the 14th century. When the analytical positivist jurisprudence was popular in the West in the 19th century, the German doctrine of legal relations came into being at the right time, which promoted the development of private international law, and the rise of sociological theory of law in the West in the 20th century, It also provides us with new wisdom and experience in dealing with legal conflicts.
1、 The Rise of the Theory of Natural Law and the Difference between Italian Laws
At the beginning of the 14th century, the seeds of the Renaissance emerged in Italy. Engels said: "This is the greatest progressive revolution that mankind has never seen before." [1] (P.5) The ideological content of the Renaissance in philosophy, literature, art, law and natural science is usually called "humanism". Humanism advocates human centered and opposes God centered; Advocating rationality and pursuing knowledge and technology; Oppose feudal privileges, deny absolute obedience to the church, and denounce scholasticism [2] (P.118).
One of the famous slogans of the Renaissance is "Go back to ancient times". Its essence is to use the spiritual banner of ancient Greece and Rome to guide the progressive trend of the times. The author believes that the main line that runs through the western spiritual civilization is the rational spirit originating from ancient Greece. It is the revival of this rational spirit in the 14th century that led the western civilization to embark on a development path that is completely different from the eastern civilization and other civilizations. The rational spirit has always been the basic core of natural law theory.
One of the earliest understandings of reason came from the philosophy of the Stoics in ancient Greece. Zeno, its founder, believes that the whole universe is composed of one substance, which is reason. Reason, as a universal force throughout the universe, is the basis of law and justice. Therefore, there is a universal natural law based on reason, which is universally effective in the whole universe. Human beings should not establish different city-state countries because of their different justice systems. They have created a cosmopolitan philosophy based on the principle of equality of all people and the universality of natural law [3] (P.13).
Stoic's natural law theory constituted the theoretical cornerstone of the law of peoples in ancient Rome. The creation of the law of nations was an attempt by the ancient Romans to solve the conflict of laws. In this sense, the seeds of private international law appeared here. Unfortunately, as a unified substantive law, the law of peoples eliminates the possibility of further conflict of laws [4] (P.13). Gaius, an ancient Roman jurist, pointed out that the civil law of peoples is a system of rules to be applied in disputes involving non Roman citizens. It consists of some practices, rules and principles, and reflects the common elements in the legal systems of foreign countries that have contacts with ancient Rome. Because it is a very common system of rules, Gaius believes that it is natural law [5] (P.91).
At the beginning of the 14th century, the Renaissance movement in Italy made the theory of natural law reinterpreted, and thus the theory of natural law gained new vitality. The natural law theory from the 14th century to the 18th century was called classical natural law, which firmly occupied the dominant position in the legal theory of that era. The doctrine of difference of laws founded by Bartorus in Italy in the 14th century was deeply influenced by the early classical theory of natural law. The early classical natural law theory originated from the natural law of the medieval scholasticism, which is the sublation of the latter. For example, Thomas Aquinas, the representative figure of the medieval scholastic philosophy, believes that natural law is the rational order of God to rule rational animals, namely human beings, and guide human beings to achieve the highest good [6] (P.43). The early classical theory of natural law attributed natural law to human reason (rather than divinity), emphasized the liberation of human from feudal autocracy and theology, opened the way for the development of commodity economy, tended to elaborate the specific and detailed rule system derived from human reason, and insisted that the power of reason was universally applicable to all people All countries and all ages can build a complete and satisfactory legal system on the basis of rational analysis of human society [3] (P.39).
The author believes that the early classical natural law theory, guided by the rational spirit, shows the characteristics of mercantilism, personal, equality and universalism. It became the fertile soil for the thought of the principle of difference in Italy in the 14th century.
From the 5th century to the 10th century, the parties were mainly governed by their respective national laws and showed that they were human in the application of law, but this kind of personhood did not include any consideration of the choice of law, and it was an absolute humanism. In the 10th century, the feudal system was consolidated and developed in Europe, emphasizing the strict territoriality of law in the application of law. In Italy in the late Middle Ages, the sprout of capitalist industry and commerce appeared. Since each different city-state has formulated its own rules, the merchants dominated by different city-state rules have a problem of which city-state rule to obey when they engage in transactions. This is the conflict of laws. In the 12th and 13th centuries, Italian and French jurists had put forward some early theories on the difference of rules. They distinguish the law into procedural law and substantive law, and the substantive law is divided into material law and human law. When dealing with conflict of laws, they distinguish between procedural rules and substantive rules that can be used as the basis for decisions in the laws of the court state. The former must be applicable to the court state, but the latter is not necessarily: the special laws of the court state that they distinguish must be applied within the territory, but not outside the territory. People and things outside the country should be governed by the common law, not by the special law of any city-state. Before Bartorus, jurists established the application of law on the basis of the division of legislative power. As a special law, the application of city-state law was always restricted by the person and territory. Therefore, they adopted a unilateralist research position after all, and only solved the application of the lex fori fori.
Bartorus is different from those pioneers. He no longer distinguishes between personal law and material law from the perspective that the lex fori concursus is a special law and has personal and territorial restrictions. He proposes a new standard. What he considers is whether foreign special laws with the nature of personal law or material law can be applied in the court state. Obviously, he discusses personal law Principle of application of material law [7] (P.74). He classified the laws of Italian city-state, and believed that the city-state people's law determines the legal identity of city-state residents, and the city-state property law governs the real estate in the city-state. He also proposed a series of important conflict rules.
Bartorus' theory of law distinction is an internationalism based on natural law - universalism theory [7] (P.75) [8] (P.52). For the first time in history, he stood on the position of universal applicability of the laws of city states, and discussed the internal and external effects of the laws of city states equally. He broke the ice of absolute territorialism in the application of laws advocated by feudalism, A new line of humanism was opened up, and the first spring wind of humanism advocated by the Renaissance was blown into the dull annotated jurisprudence governed by the philosophical method of the Confucian Academy.
From the 14th century to the 18th century, scholars learned from Bartorus. In France and the Netherlands, scholars tried to classify the customary laws of many provinces and regions. In Germany, scholars try to classify the laws and orders issued by more than 1800 "reigning" kings and independent cities [8] (P.46). The provisions of Article 3 of the French Civil Code in 1804 summarized the research results of the doctrine of rule differentiation since Bartorus [9] (P.60). Private international law in this period was called "jurisprudence and scientific private international law", and its theory had a strong color of rationalism.
2、 Analytical positivist jurisprudence and modern private international law legislation
Classical naturalistic jurisprudence reached its peak during the French Revolution in 1789. When the French Revolution failed to achieve all its set goals, the whole of Europe began to show a tendency to oppose the rationalist premise determined by the Revolution. In particular, Germany and Britain tried to block the spread of the French Revolution. Conservative ideas based on history and tradition began to be emphasized. In the philosophy of law, the history and tradition of law are valued. In Germany, people have a strong response to the rationalist principles and cosmopolitan ideas of the French Revolution, and set off a romantic, irrational, nationalist movement. Savigny of the historical school of law is a representative figure in the field of law [3] (P.87).
Savigny criticized the doctrine of law discrimination based on natural law, pointing out that the division of human law, material law and mixed law by the doctrine of law discrimination "is incomplete and vague, and usually has no effect on the research basis that forms our part." He also said: "Many scholars believe that this rule (refers to the doctrine of law discrimination) It has been accepted as a customary rule. This is groundless and impossible... Almost all scholars use the terms of human law, material law and mixed law to study this topic in the recent period. However, because they have given them completely different meanings and rules when using these terms, the authenticity of the remaining content of this assertion is also considered to be less important. "[ 10〕(P.68)
The author believes that the main defect of the principle of distinction lies in: first, the distinction between human law, material law and mixed law, which is constructed by means of word analysis, is fundamentally a virtual distinction, lacking objective authenticity. Bertrand Dagendre even believes that "children will feel shameful if they think like this and teach them like this." [8] (P.48) Secondly, it is undoubtedly a rather rough theoretical conclusion to distinguish the complex and diverse laws from human law, material law and mixed law. There are many differences on the attribution of many laws, which makes it difficult to establish a rigorous and thorough logical system of private international law, which reflects the immaturity of a discipline. Thirdly, the scholars of the theory of law discrimination focused their research on the distinction of the nature of laws, ignoring the study of legal relations. Its essence is a metaphysical way of thinking, marked with the brand of the prevailing way of thinking in the era of classical natural law philosophy. In fact, legal relations are more fundamental than laws. Finally, the classical natural law philosophy completely withdrew from the historical stage in the 19th century, giving a drastic blow to the theory of law distinction based on it.
Savigny lost no time in putting forward his statement of legal relations. As a great scholar of the school of historical jurisprudence, he advocated that law is the product of national spirit. Although his basic legal philosophical position is conservative, he created an open system of private international law. (Note: For the explanation of this contradiction, please refer to the paper submitted by Li Shuangyuan and Lv Guomin at the 1999 annual meeting of the Chinese Society of Private International Law: Why did the great master of historical law school who advocated that law was the embodiment of "national spirit" become the universalism of private international law - the advocate of internationalism? - A perspective of this contradiction in Savigny's legal practice.) In private international law, he denied the particularism nationalism position held by the Dutch law differentiation theory, and returned to the universalism internationalism position since Bartorus. He advocated that "the common interests of all countries and the whole human race decide that all countries should adopt the principle of reciprocity when dealing with cases, and adhere to the principle of equality between citizens and foreigners. This principle of equality should be brought into full play... For a case with a conflict of laws, whether it is filed in this country or that country, the verdict should be the same." [10] (P.14) He believed that the law of the seat of each legal relationship should apply. He classified legal relations, namely, identity law, property law, debt law, inheritance law, and family law (family law is also divided into marriage, paternity, and guardianship), and summarized the address of the person involved in the legal relationship, the location of the subject matter of the legal relationship, the place where the legal act is performed, and the location of the court [10] (P.66). Savigny's theory created a new way of legal choice, and laid the basic paradigm of modern and contemporary private international law theory research, that is, legal relationship → law, thus making the legislation of private international law possible and necessary.
In the middle of the 19th century, Europe witnessed a positivist movement against various metaphysical theories formed in previous centuries. As a scientific attitude, positivism opposes transcendental thinking and tries to limit itself to the scope of empirical materials. In the first half of the 19th century, the great achievements of natural science laid the foundation for positivism. The emergence of analytical positivist jurisprudence is the result of the application of positivist methods in social sciences, and the emergence of analytical positivist jurisprudence is also in line with the interests of the bourgeoisie. At that time, the bourgeoisie was changing from a revolutionary class to a conservative class. As a weapon used by the bourgeoisie to overthrow feudal rule, the theory of natural law aimed at the bourgeoisie itself. The bourgeoisie urgently needed to replace it with a new theory. At the same time, the 19th century was an important development period of the capitalist system. The ideas of democracy, human rights and the rule of law put forward by the bourgeoisie in the revolution needed to be codified and concretized. This must rely on the actual analysis of the law and legal system, and logically shape the structure of the legal system and legal norms. Therefore, analytical positivist jurisprudence came into being, which emphasizes the universality and autonomy of law. Only talk about legitimacy, not rationality; As long as the logic of law is grasped, the value judgment of law is not needed; As long as the judge is absolutely loyal to the law, the judge's inner belief is not needed [6] (P.81).
Based on the theoretical background of the emergence of analytical positivist jurisprudence and the theory of legal relationship, private international law entered the stage of "legislative private international law" from the stage of "jurisprudence and scientific private international law" in the middle of the 19th century. The domestic legislation of private international law also had two climaxes [11] (P.48). The first climax occurred in the middle of the 19th century. The provisions of conflict law were included in the Greek Civil Law in 1856, the Italian Civil Law in 1865, and the Portuguese Civil Law in 1868. In addition, the legislation of private international law in Zurich in 1854, and the legislation of private international law in Saxony in 1863 were also quite eye-catching. In 1865, the Italian Civil Law adopted a large number of bilateral conflict norms. In 1854, Brunsky, the drafter of Zurich's private international law legislation, was directly influenced by Savigny's theory [12] (P.109). The first international legislative climax of private international law occurred at the end of the 19th century and the beginning of the 20th century. At that time, with the initial improvement of various countries' legal systems and the maturing of legislative technology, the inconvenience to international civil and commercial exchanges caused by legal differences among countries was also increasing. The unification of private international law (including the unification of conflict law, substantive law and procedural law) was put on the agenda. The first Hague Conference on Private International Law held in 1893, the International Institute for the Unification of Private International Law established in 1926, the Montevideo Conference held in 1888, and the Pan American Conference held in 1926 all contributed to the unification of private international law [12] (P.149). The first domestic legislative climax of private international law and the emergence of international legislative climax contributed greatly to the rise of analytical positivist jurisprudence. However, the analytical positivist jurisprudence overemphasizes the characteristics of the construction of legal norms, which is reflected in the private international law that the legislation of private international law aims to build a conflict norm system with simple structure, clear provisions and strong stability. This system was criticized by scholars in the 20th century because of its increasingly mechanical and rigid nature.
3、 The Possibility of Applying the Sociological Theory of Law to the Study of Private International Law
The emergence of sociology of law is the most important event and the most outstanding achievement in the West in the 20th century [6] (P.107). Since the middle of the 19th century, our research on conflict of laws has been conducted under the guidance of the theory or method of legal positivism. However, any kind of legal conflict is fundamentally a cultural conflict reflected in the legal norms of different countries or regions. The sociology of law provides us with a new research approach to broaden the thinking of solving legal conflicts, seek new methods to solve legal conflicts, and then eliminate legal conflicts in the ultimate sense. It requires us to use the theory or method of sociology of law to conduct in-depth, detailed and thorough investigation, investigation, analysis and argumentation on the cultural background, formation mechanism, development trend and possible solutions of legal conflicts in various countries from multiple perspectives or levels, such as politics, economy, philosophy, religion, customs and traditions.
The main differences between legal positivism and legal sociology are as follows:
1. The research object of legal positivism is legal norms, and the research object of legal sociology is human behavior related to law [13] (P.196).
2. The research method of legal positivism is the deductive method in formal logic, emphasizing the logical derivation from legal norms to legal norms. Sociology of law studies the interaction and influence of many factors such as politics, economy, philosophy, religion, custom, tradition, etc. with law, and uses the main inductive method.
3. The theoretical starting point of legal positivism is that the legal system composed of legal norms is a self-contained system, and the theoretical starting point of legal sociology is the interaction between law and society.
4. Legal positivism adopts the statement of "should", that is, legal norms tell people what "should" do, and legal sociology adopts the statement of "yes", that is, it is concerned about how people's behavior related to law is actually "what" (13) (P.184). (Note: The "should" behavior pattern of legal positivism should be distinguished from the "should" value pursuit in natural law. Legal positivism does not consider the value of the law itself, such as the "good" and "evil" of the law.)
It is worth noting that the "conflict of laws crisis", which began in the 1930s, is mainly marked by the complete denial and abandonment of traditional conflict norms by American scholars. Its essence is a critical movement of legal positivism in the field of private international law. American scholar Brad Curry pointed out that "it is better for us to have no conflict norms, even in foreign-related cases, people always want to apply the relevant rules of the law of the forum." [14] (P.16) In Curry's view, the country of the forum has its "government interest" in pursuing its policies in law. The "functional analysis theory" of von Mellon and Trautman, the "value orientation method" of Robert Lefral, and the "result selection method" of Kevers all advocate that the substantive law of the country concerned should be directly selected without using traditional conflict norms [14] (P.15).
The study of China's private international law has been in the state of theoretical research for a long time. On the one hand, private international law is a sectoral law introduced from abroad, and on the other hand, it is also due to the extremely insufficient legislation of China's conflict laws (the General Principles of Civil Law has only nine conflict norms). (Note: See the provisions of Articles 142 to 150 of the General Principles of Civil Law of China.) In recent years, we have introduced empirical analysis into the study of private international law and have achieved some results. (Note: See Xiao Yongping's Research on China's Conflict Legislation, Wuhan University Press, 1996 edition, and Tan Yueqi's Comments on Xiao Yongping's New Research on China's Conflict Legislation, published in Law Review, 1998, Issue 6.) But with the deepening of the research, More and more, we feel that if we only stay in the stage of empirical analysis of conflict norms, we will not be able to deeply understand the underlying issues such as the mechanism of the occurrence of legal conflicts, cultural causes, and thus can not provide a new research path for the resolution of substantive legal conflicts, which is one of the reasons why it is difficult to make breakthroughs in theoretical research of private international law for a long time.
According to the theory of private international law, there are two ways to solve the conflict of substantive laws, that is, to use conflict norms or unified substantive norms to adjust. Once this substantive conflict of laws enters the perspective of legal sociology, the inadequacy and weakness of the above-mentioned empirical methods to solve the conflict of laws will be exposed. Examples are as follows:
At present, a female citizen of State A who is 15 years old wants to marry a male citizen of State B who is 21 years old. Both men and women have residences in State B. The legal age of marriage in State A is 14 years old, and the legal age of marriage in State B is 20 years old.
It is the essential requirement of marriage to get married only after reaching the legal age of marriage. The laws of the two countries clearly conflict in this specific foreign-related marriage relationship. The specific methods to solve this conflict of laws using conflict norms are [9] (P.326):
1. The personal law of the parties shall apply, including the law of their respective places of residence, the law of their common places of residence, the law of their respective countries of nationality, and the law of their common countries of nationality.
2. The laws of the place where the marriage is concluded shall apply.
However, according to the specific circumstances of the case, only when the private international law of State B stipulates that "the laws of the respective countries of nationality of the parties shall apply", can the man and the woman marry in State B. When the private international law of country B stipulates other contents, the man and woman cannot marry in country B. The reason is that the legal age of marriage in country A is much lower than that in country B. Even if the marriage registrar or judge of country B hopes that the couple who really love each other can "get married", they will be helpless. In this case, private international law seems to lack a specific system of remedies. (Note: some people may propose that the public order theory in private international law can be used for relief, but this theory is intended to exclude the application of foreign laws. In this case, if State B wants to make the man and woman legally enter into marriage, it must exclude the application of its own laws, so the public order theory is not useful.) In this case, What people see is the helplessness of the parties and the inability of the judiciary in the conflict of laws. This is the end of legal positivism.
And the thinking of sociology of law began. The above cases let us see the legal conflicts caused by the legal differences between the two countries, which brings inconvenience and obstacles to international civil and commercial exchanges. Obviously, the legal age of marriage in country A is low, while that in country B is high. In order to explore the possibility of solving the conflict between the legal age of marriage of the two countries, we must focus on investigating, analyzing and studying the reasons, current situation and development trend of the establishment of the early marriage system in country A, including the fieldwork methods often used by sociologists and anthropologists.
Su Li once provided a powerful explanation for the early marriage system in ancient China, that is, early marriage is related to the production mode of small-scale peasant economy and many social conditions associated with this production mode, in order to respond to the problem of human reproduction and survival under this social and historical condition [15]. The legal age of marriage in ancient China was roughly 20 for men and 15 for women, or earlier [16] (P.125). According to Liu Cuirong's genealogical research on some families in the middle and lower reaches of the Yangtze River, between 1400 and 1900, China's life expectancy fluctuated between 35 and 40 years old [17] (P.152-156). Due to the low life expectancy, people must marry early in order to reproduce and continue their lives. This is due to China's low level of productivity, poor natural environment and lack of medical conditions. The early marriage system is both legal and reasonable. Montesquieu pointed out: "The law should be related to the natural state of the country; to the cold, hot and warm climate; to the quality, situation and area of land; to the lifestyles of farmers, hunters and herdsmen. The law should be related to the degree of freedom that the political system can tolerate;"; Adapt to residents' religion, sexuality, wealth, population, trade, customs and habits. "〔 18〕(P.7)
As an ancient civil system, marriage is inextricably linked with many factors such as the mode of production, religion, customs and habits of various ethnic groups. In connection with the above hypothetical case, if the low legal age of marriage in country A is caused by the low level of productivity in the country and the low life expectancy of people, then the low legal age of marriage is reasonable and will exist for a long time. From the above analysis, the obstacle to intermarriage between citizens of the two countries is that citizens of country A apply the marriage age provisions of the laws of country B to marry citizens of country B. In consideration of the need to facilitate the intermarriage of citizens of both countries, the solution to this conflict of laws should be made by separate legislation of Party B or by bilateral treaties between the two countries, which stipulate that citizens of both countries intermarriage, and the substantive elements of marriage should be governed by their respective national laws. This process actually includes the rational coordination of the marriage legislation policies of the two countries. For example, the marriage legislation policy of country A is aimed at racial continuity, while the marriage legislation policy of country B is aimed at protecting the physical and mental health of teenagers or birth control, etc. The process of resolving this legal conflict is actually that the marriage legislation policy of country A has accepted the marriage legislation policy of country B.
On the other hand, if the legal age of marriage in country A is low, it is caused by the country's religion, customs, habits and other factors, that is, people's emotions, psychology, physiology and other individual reasons. If possible, in order to facilitate the intermarriage of citizens of the two countries, the two countries can conclude bilateral treaties to specify the specific age limit for the intermarriage of citizens of the two countries, such as 18 years old. That is, to solve the conflict of laws by unifying the substantive law. It should be fully estimated that this method is very difficult to use. Because marriage is not only a legal system, but also a part of a national lifestyle, it is not easy to unify it.
At present, the conflict of laws in commercial law or the limited legal field related to commercial law in the world is gradually decreasing. The international community has formulated relevant international conventions in the field of commercial law, such as the International Sale of Goods Law, the Bill Law, the Maritime Law, etc., such as the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Customs and Practice for Documentary Credits, etc. The reason is that these commercial laws are the legal basis for the operation of modern international trade, and direct economic interests are a powerful driving force to promote their unification, which can not be stopped by any force. What people witnessed in the 20th century was a picture of some commercial legal systems tenaciously penetrating the protective layer formed by various ethnic traditions, customs, religions and other factors and moving towards unity. Comparatively speaking, in most civil areas, such as marriage, family, inheritance and many other legal systems, the signs of the reduction of legal conflicts are not obvious. On the one hand, this is because these fields are not closely related to the economy, and more importantly, they are closely related to the national cultural traditions and show strong local characteristics. Therefore, the settlement of these conflicts of laws in the civil field still mainly depends on conflict norms.
We believe that legal pluralism indicates that the development of laws in various countries in the world is not only convergent, but also divergent, that is, more diversified. This means that legal conflicts will exist for a long time. To coordinate and deal with legal conflicts, we should not only think technically from the perspective of conflict norms and unified entity norms, but also go deep and carefully into the original environment of national laws to understand them. "Law is a kind of local knowledge" [19], and the conflict of laws will not be resolved automatically, which will lead to a broad development prospect and attractive academic potential for the conflict of laws theory in the empirical sense.
Therefore, if theoretical research on conflict of laws is confined to empirical methods, it will be difficult to solve the conflict of laws with insightful new methods. The theory or method of sociology of law provides a rather powerful and creative research path for in-depth thinking about conflict of laws.
For example, in the theory of private international law, in order to "characterize" (or "identify") the legal systems of various countries, German scholars Rabel and British scholars Beckett and Qihill proposed analytical law and comparative law [7] (P.110). They argued that this characterization should be based on the common concept formed by the study of comparative law, because conflict norms enable judges to make a choice on which country's substantive law should be applied to legal issues involving different legal systems, so it must be based on the common understanding of the nature of the facts involved in conflict norms by relevant legal systems. Rabel pointed out that private international law is not only related to the substantive law of specific countries, but also to the substantive law of all countries. Therefore, its concept should be universal and independent of the substantive law of specific countries, and the characterization of conflict norms should be based on comparative law.
Opponents believe that the above view is unrealistic. Because national laws are very different, there are few common concepts that can be established on the basis of analytical or comparative law. Moreover, such characterization will greatly increase the burden on judges, which is difficult to achieve. Sometimes, even if the differences between the relevant legal concepts are revealed, it is difficult to solve them. We believe that the qualitative theory of analytical law and comparative law has opened up a new field of vision for the study of conflict of laws by comparative methods, but it has not broken the shackles of analytical positivism, nor has it broken the old routine from legal norms to legal norms, and the differences in legal concepts of different countries must sometimes penetrate the surface of legal norms, Only by going deep into the cultural background on which they come into being can we compare them.
Neubaus, a German scholar, put forward the "functional qualitative theory" (20) (P.88) on the qualitative problem in 1962. The traditional method of determining the nature of legal relations starts from "the nature of legal structure", and he advocates replacing it with "functional qualitative theory". The so-called "functional characterization" refers to the characterization according to the function of each system in legal life. For example, the property claim of the deceased spouse is regarded as "the claim in the marital property law" or "the claim in the inheritance law" by the structural qualitative method in private international law, but it obviously ignores the purpose of the property claim of the deceased spouse. Because no matter what kind of claim, its purpose is the same, just to make the deceased spouse get the property he should have, so that he will not have difficulties in life. Since the two claims have the same purpose and function, it is better to limit the exercise of the "claim in property law" to the property relationship of the surviving spouses, and after one party dies, the "claim in inheritance law" should be applied, that is, the domestic law of the deceased spouse at the time of death. From the perspective of methodology, Neubaus is a concept put forward to eliminate the inconvenience of legal application caused by the differences of legal concepts in various countries. In its examples, we can see that the use of functional qualitative method has indeed played a role in avoiding legal conflicts to a certain extent. However, this method has great limitations. It is meaningful only when the concepts involved can be compared and differentiated functionally. However, most of the legal concepts with conflict of laws cannot be compared and differentiated in similar functions.
In the era of legal pluralism, the study of legal conflicts is neither "the west wind prevails over the east wind" nor "the east wind prevails over the west wind". We should break the prejudice of taking western law as the center and frame of reference to analyze and recognize non western law. This research paradigm can be found everywhere in the field of comparative law today.
To study conflict of laws with sociological methods, we should first establish basic analytical tools. This is a useful enlightenment from Masaji Chiba, a Japanese scholar. He proposed a conceptual framework containing five analytical variables for people's attitudes towards law, with a view to applying to comparative observation and analysis of fundamentally different legal cultures. These five variables are: official law, competitive law, personal preferences for making choices between the two, special relationships between parties, and social evaluation of personal choices [21] (P.128). He proposed a triple dichotomy for the analysis of the legal structure of various countries, that is, official method versus unofficial method, legal rules versus legal principles, and inherent law versus transplant law. This is a useful tool for precise observation and analysis of the overall legal structure of a nation's operation [21] (P.180).
We envisage building a set of basic concepts as the theoretical premise for analyzing the western and non western legal systems, so as to decompose the complex legal systems of various countries, achieve the purpose of comparison, and then further consider the ways to eliminate the legal conflicts of various countries. Due to the diversity and complexity of laws in various countries in the world, it is very difficult to refine the basic concepts. When analyzing the social legal system of the early people, Hobell creatively borrowed Hofield's conceptual system [22].
Hoffield's theoretical premise is that all legal relationships occur between people. The so-called legal problem, that is, the relationship between two people about things, only exists in the relationship between the people concerned. Based on the relationship theory, Hoffield extracted eight basic concepts and formed four groups of corresponding relationships:
Party A and Party B
Claim obligations
No claim for concession
Power and responsibility
Immunity has no power
Claim A may require Party B to act or not act in a specific manner, while obligation means Party B to act or not act in a specific manner. The relationship between franchise and no claim means that Party B has some freedom of conduct related to Party B, and Party B shall not interfere with it. The power nail may, at its will, establish a new legal relationship that affects Party B, and the responsibility indicates that Party B is bound by Party A's behavior and its consequences. Immunity refers to the act that Party B wants to establish a new legal relationship with, and has no right to point out that such act of Party B has no coercive force.
The advantage of the above concept, as Hobell pointed out, lies in the clear decomposition of a complex legal and social system into its basic components, so as to avoid the confusion and all kinds of useless arguments that must be brought about by the use of inappropriate terms with broad or even large meanings. On the positive side, it helps people to clarify the problem in a more accurate and clear way. For example, by using this set of concepts, ownership is no longer simply defined as the absolute exclusive right to possess, use, benefit and dispose of things. It is regarded as a series of very complex legal right complexes related to something. "It is not only composed of a set of uncertain rights in the strict sense, or claims against a number of people with corresponding obligations, but also a series of uncertain and numerous concessions, powers and immunities." [22] (P.61)
Hobell's use of these concepts in the social legal relationship of the early people gave us great inspiration. We are not prepared to make a list of basic concepts here. Our initial idea is that these basic concepts should be put forward after in-depth understanding of the legal culture of people of all nationalities, countries and regions. They are the most basic elements for building various existing legal systems, and they should focus on expressing the objective state of things (such as the attribution of things, the causal relationship of behavior, etc.). Then we further conceive an empirical solution to the conflict of laws. First, from the perspective of international legislation, the law making activities through international treaties should be "neutral" legislation based on basic concepts, so as to enhance the compatibility of international treaties with the legal systems of various countries and avoid the international legal system becoming an extension of western legal systems in the international scope; Secondly, in some dispute settlement procedures, the relevant personnel should try their best to get rid of the constraints of various regional laws and use basic concepts. For example, friendly arbitration in current international commercial arbitration is based on the general legal concepts of "fairness and good faith"; Thirdly, we should reform the traditional research model of conflict law, and scholars who study conflict of laws should deeply explore the cultural causes of conflict of specific legal norms in various countries, and summarize them.
So far, we have deeply felt that our theoretical thinking on conflict of laws is far from over. On the contrary, we are just standing at a new starting point.
[References]
〔1〕 Engels. Dialectics of Nature [M]. Beijing: People's Publishing House, 1955
〔2〕 [US] Edward McNaure Burns, Philip Lee Ralph. History of World Civilization [M]. Translated by Luo Jingguo, etc. Beijing: Commercial Press, 1987
〔3〕 [US] E. Bodenheimer. Jurisprudence, legal philosophy and legal method [M] Translated by Deng Zhenglai. Beijing: China University of Political Science and Law Press, 1999
〔4〕 [France] Henry Battifour, Paul Lagarde. General Theory of Private International Law [M]. Translated by Chen Hongwu and others. China Translation Publishing Company, 1989
〔5〕 Zhang Hongsheng, Gu Chunde, ed. History of Western Legal Thought. Beijing: Peking University Press, 1990
〔6〕 Zhang Wenxian. A Study of Western Legal Philosophy in the 20th Century ［ M ］. Beijing: Law Press, 1996
〔7〕 Li Shuangyuan. Private International Law (Conflict Law) [M]. Wuhan: Wuhan University Press, 1987
〔8〕 [Germany] Martin Wolf. Private International Law [M]. Translated by Li Haopei et al Beijing: Law Press, 1988
〔9〕 Han Depei, ed. New Theory of Private International Law ［ M ］. Wuhan: Wuhan University Press, 1997
〔10〕 [Germany] Friedrich Karl von Savigny Conflict of laws and the geographical and temporal scope of legal rules ［ M ］. Translated by Li Shuangyuan et al. Beijing: Law Press, 1999
〔11〕 Xiao Yongping. Research on China's Conflict Law Legislation Wuhan: Wuhan University Press, 1996
〔12〕 Huang Jin, ed. Private International Law. Beijing: Law Press, 1999
〔13〕 Hans Kelsen. General Theory of Law and State [M]. Translated by Shen Zongling. Beijing: China Encyclopedia Press, 1996
〔14〕Eugene F.Scoles and Peter Hay. Conflict of Laws ［M］.West Publishing Co,1992.
〔15〕 Su Li. Contextual Theory: An Approach and Method of Legal System Research [J] Chinese and Foreign Law, 2000, (1)
〔16〕 Chen Guyuan. The History of Chinese Marriage [M]. Shanghai: Shanghai Sanlian Bookstore, 1992
〔17〕Liu, Tsui—jung.The Demographic Dynamics of Some Clansin the Lower Yang Tze Area［J］.Ca1400—1940.Academic EconomicPapers,Vol.9,No.1,1981.
〔18〕 Montesquieu. On the Spirit of Law (Volume I). Translated by Zhang Yanshen. Beijing: Commercial Press, 1961
〔19〕 Clifford Giltz. Local Knowledge: A Comparative Perspective of Fact and Law [A]. Edited by Liang Zhiping. Cultural Interpretation of Law [C]. Shanghai: Sanlian Bookstore, 1998
〔20〕 Xiao Yongping. A monograph on conflict of laws [M]. Wuhan: Wuhan University Press, 1998
〔21〕Masaji Chiba. Legal Pluralism Toward a General Theorythrough Japanese Legal Culture［M］.Tokai University Press.
[22] Hobell. The Law of the First People (Chapter 4) [M]. Translated by Zhou Yong Beijing: China Social Sciences Press, 1993
(This article was originally published in the first issue of Political Science and Law Forum (Journal of China University of Political Science and Law) in 2001. The author is Xiao Yongping, professor and doctoral supervisor of Wuhan University Law School; Tan Yueqi is a doctoral candidate of Wuhan University Law School) |
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