History of Conflicts of Law

The Jus Gentium in Roman Law

The earliest known origin of the law of conflicts of laws, which today forms the core of Private
International Law, can be traced back to the Roman Empire in the period when slave system was in
placed.1

Roman Law is generally conceived by the legal community as private law which are mostly concerned
with property, contracts, and family relations. 2 The only exceptions were the rules known as archaic
jus fetiale, a body of sacramental rules that were established by special priests known as the fetiales.
They were entrusted with the administration of religious ceremonials used in treaty-making, war and
other international matters, such as legation and extradition. However, since Rome was emerging as a
powerful civilization and was looking to expand through conquest and trade, it had to establish rules
in order to effectively facilitate such expansion.3

With this, the Roman Empire adopted a regulation that would then be known as jus gentium. This
establishment of rules was brought about by the fact that the conquered peoples (peregrines) and
other foreigners were forbidden to use the primitive jus civile (civil law). They were allowed to
regulate their private legal relationships with their own customary law or the law of their former
(conquered) state. This approach brought great problems in the trade between the peregrines and
the Roman citizens.4 In addition, the relationships among peregrines from different parts of Roman
Empire created a particular problem, since every province had its own law. 5

Eventually, the problem was solved with the introduction and appointment of a new magistrate, the
Praetor Peregrinus, who was chosen as a special judge for foreigners. Not only were they mandated
to decide on cases involving foreigners but they also created general rules in the form of edicts. This
particular activity of the peregrine praetor resulted in a completely new system of private law that
was dubbed jus gentium.6 The term jus gentium is the law "common to all mankind," as opposed to
both the civil law (jus civile), which only Romans were allowed to use, and to provincial laws, which
were used only by people from the particular province. 7

1 Kalensky P. (1971) The Situation Prior to the Emergence of the Statutory Theory of Private International Law. In:
Luby Š., Kunz O. (eds) Trends of Private International Law. Springer, Dordrecht
2 Nussbaum, A. (1947) THE SIGNIFICANCE OF ROMAN LAW IN THE HISTORY OF INTERNATIONAL LAW.
3 Howe, W. (1902) Jus Gestium and Law Merchant.
4 Trnavci, G. (2014) THE MEANING AND SCOPE OF THE LAW OF NATIONS IN THE CONTEXT OF THE ALIEN TORT
CLAIMS ACT AND INTERNATIONAL LAW
5 PRAVNA ENCIKLOPEDIJA [THE LAW ENCYCLOPEDIA] 526 (Borislav T. Blagojevic ed., 1989) (Serb. & Mont.).
6 Ibid.
7 THE INSTITUTES OF JuSTIAN bk. I, tit. II, para. 1 (Thomas Collett Sandars trans., 15th ed. 1922) [hereinafter
INSTITUTES];
Liberated from the limitations of the jus civile and its sacred forms and obsolete traditions, and having
at his disposal the laws originating from the provinces, the peregrine praetor was able to create very
simple and flexible legal solutions to every particular problem. 8 Over time jus gentium became more
complete and perfect than jus civile. After a while Romans started using jus gentium in regulating
legal relationships among themselves. Eventually, the two systems gradually melted together and the
differences between them completely vanished. 9

Post-Roman Era

After the fall of the Roman empire, the laws became personal again. The implication of law becoming
personal was that wherever a person went, he carried his law with him. This lasted until the Middle
Ages when the western empire under Charlemagne restored the Roman Law in order to unite the vast
European Kingdom.10

During the renaissance period, scholars from throughout Europe adapted jus gentium and literally
translated the term into their native languages: in Italian, "diritto delle genti"; French, "droit des
gens"; German, "Volkerrecht"; and English "Law of Nations." The era of the Renaissance freed the
enormous human potential previously suffocated by religious dogmas and ideological constraints
established during the Middle Ages. The role of the Church had finally diminished to such a degree
that it could not jeopardize the political power of absolutist rulers. 11

In the 17th century, Hugo Grotius, the “father of international law” wrote his masterpiece “The Law of
War and Peace” in which he described the law of nations as customary law established by the tacit
agreement of all or a majority of nations. This, according to him, is binding upon the nations and its
citizens through the will of the nations involved, thus voluntary. 12

Modern Developments of Private International Law

In modern law, there is a distinction between jus gentium privatum, which denotes
private international law, otherwise known as conflict of laws, and jus gentium publicum, which
denotes the system of rules governing the intercourse of nations. 13 The former deals with cases that
have particular nature and it is not an international system of law. The latter is a system, which

8 Cf. 1 BOUVIER'S LAW DICTIONARY AND CONCISE ENCYCLOPEDIA 1790 (Francis Rawle ed., 8th ed. 3d rev. 1914)
(outlining the origin and history of jus gentium).
9 Ibid.
10 MATrHIAS BECHER, CHARLEMAGNE 7-19 (David S. Bachrach trans., Yale University Press 2003) (1999)
(discussing the rise and establishment of Charlemagne's empire)
11 Ibid.
12 HUGO GROTIUS, THE LAW OF WAR AND PEACE (Francis W. Kelsey trans., Bobbs-Merrill Co. 1925) (1625).
13 The Editors of Encyclopaedia Britannica (2018). Jus Gentium
regulates relations between different states, and its rules, unlike the private international law, are the
same everywhere.14

The definition of conflict of laws is best explained by the British Lawyer Lord Nichols of Birkenhead.
According to him, “Conflict of Laws jurisprudence is concerned essentially with the just disposal of
proceedings having a foreign element. The jurisprudence is founded on the recognition that in
proceedings having connections with more than one country an issue brought before a court in one
country may be more appropriately decided by reference to the laws of another country even tough
those laws are different from the law of the forum court.” 15

During the 19th and 20th century, the growth of the trade between countries had led to increasing
numbers of disputes. The development of trade between countries resulted to strong international
movements towards harmonizing the various systems of laws. 16 This triggered the ratification of
several conventions and protocols.

One of the most notable of these conventions when it comes to Conflict of Laws is the Rome
Convention of 1980. It was the first step towards unification and codification of general rules of
conflict of laws in the field of civil law in the European Community; that unification would make it
easier to determine the applicable law and increase legal certainty. 17 Although the ratification was
exclusive of European member-states,18 the convention was open for adaptation by non-members
states. The Rome convention favors the choice of law principles wherein contracts will be governed
by the laws chosen by the parties.19

Contrary to the jurisdiction-selection technique of the Rome convention, the American courts mostly
used the rule-selection technique wherein the court examines the particular rules of law and chooses
which legal system should be applied.20

Finally, the Hague Conference on Private International Law, to which the Philippines was a signatory
along with 81 other members, was held in 1994 and it drew up a multilateral convention on
jurisdiction, recognition and enforcement of foreign judgments in civil and commercial matters. It
recognized party autonomy as the main determination on which legal system should be applied when
conflict arises between contracting parties. It takes into account the will of the parties as to how the
conflicts should be resolved.21

14 Morris, Conflict of Laws, 6th Edt., Sweet & Maxwell, 2005, Page 4.
15 Kuwait Airways Corpn V Iraqi Airways co [2002] UKHL 19.
16 Ibid.
17 Dicey-Morris, [Opcit], Chap. 32-010.
18 Article 28[1] of the Rome Convention.
19 Article 3 of the Rome Convention.
20 PM North JJ Fawcett, [Opcit], p 24
21 PRINCIPLES ON CHOICE OF LAW IN INTERNATIONAL COMMERCIAL CONTRACTS (2015).