Hessel E. Yntema

The Historic Bases of Private International Law

INTEGRATION AND DIVERSITY are the two dominant features of modern culture that in conjunction give rise to confficts of laws. The intensive division of labor introduced by the industrial revolution, necessitates complex, localized regulation of specialized services. The operation of the correspondingly diversified economy depends upon commerce, upon exchange of goods and diffusion of ideas through the constantly improved means of transport and communication provided by scientific invention. Paradoxically, the function of the legal order therefore is to co-ordinate the activities that constitute civilization on a common basis of security and, in so doing, to satisfy the needs of each local or specialized activity. Moreover, the legal order itself is decentralized among a plurality of sovereign or autonomous authorities, asserting jurisdiction each within a defined territory over activities that concern their respective subjects. As the pretensions of the corresponding local laws to control international or interstate commerce thus inevitably overlap, the legal order also involves integration of the diversity of the laws of which it is composed. The mode in which this adjustment is or should be effected is the concern of confficts law. The specific method to integrate the existing diversity of laws, employed in this branch of law, is to apply or refer to foreign law in dealing with foreign cases. This, as will appear, is a sophisticated technique that took centuries to develop; it assumes a certain cosmopolitan respect, or at least tolerance, for foreign conceptions of justice. In early times, when the legal order was intimately connected with actual or supposed kinship groups and was part of the peculiar religious and social structure of the particular community, law was inalienably personal. It was inconceivable, for example, that the ius civile, the common law of the Roman citizenry, should be available to a peregrine in Rome or, vice versa, that

Equity in the civil law and the common law

THE FOLLOWING ARTICLE BY THE FORMER EDITOR-IN-CHIEF OF THIS Journal WAS WRITTEN FOR PUBLICATION IN SPANISH AT THE REQUEST OF THE SPANISH COMMISSION IN CHARGE OF THE COMMEMORATIVE VOLUME, Centenario de la Ley de Notariado. THE BOARD OF EDITORS WISHES TO EXPRESS ITS GRATITUDE TO THE Junta de Decanos de los Colegios Notariales de Espana, AND IN PARTICULAR TO ITS PRESIDENT, DR. RAFAEL NUNEZ LAGOS, FOR PERMISSION TO PUBLISH THE ORIGINAL ENGLISH TEXT POSTHUMOUSLY.

Comparative Law and Humanism

Legal science and humanism have been inseparably joined in the historical development of modern culture. The renaissance of learning after the dissolution of the Roman Empire began with the inauguration of Romanist legal studies at Bologna at the end of the 11th century, prompted by the discovery of the manuscripts of the Code and the Digest. This occurrence and the construction of the vulgate text by the glossators were scarcely significant in themselves; but the fact that the restoration of the basic texts of the civil law inspired intensive study of the classic jurisprudence of Rome as the common law of Western Europe, stimulating the rapid spread of legal instruction in the nascent universities, was of transcendent importance. This not only preserved for posterity the refinements of the most elevated legal thinking in the ancient world, but it also promoted the development of other branches of knowledge, as humanism zealously resurrected the manuscripts and monuments of antiquity in other fields as well as law. From the seminaries devoted to instruction in the canon and civil laws have come the most famous universities of today. The humanistic movement, in which legal study thus constituted a primary element, vitally contributed to the development of Western civilization. First and doubtless most significant of all, it introduced a rational discipline in which the future leaders of Europe were exposed to the classical conceptions of Greek philosophy and Roman law, in which they were taught to think, and as an inevitable result also to question and to experiment. In the second place, the study of the civillaw conceptions, in which the long effort of Roman legal genius to realize justice in the relations between individual human beings was formulated, reflecting the experience of the evolution during a thousand years of a small city-state into a cosmopolitan empire, reinforced the Christian-Stoic doctrine of the inherent dignity of man; the civil law in essence was a practical definition of human rights, an authoritative rational criterion to which those who sought justice could appeal. In the third place, the stereotyped forms of instruction that developed to inculcate the classic subject matter of raw and other faculties, and the wide dissemination of works written in Latin, the common learned language of former times, created a remarkably homogeneous fund of knowledge in which the traditions of Western culture were formed.

JURISPRUDENCE AND METAPHYSICS--A TRIANGULAR CORRESPONDENCE

EASILY the most significant development of legal science in the United States during the past half century has been the Copernican discovery that law is a practical science. Or in other words, that law is not merely a static philosophy of justice enshrined in learned tradition but a dynamic enterprise of social control. This conception has motivated the outstanding efforts to improve the content of the system of legal education. Most immediately, it implies recognition, on the one hand, of the critical importance of legislation as the chief modem technique for the determination and definition of social objectives and, on the other hand, of the crucial relevance to justice of the nature and effectiveness of the processes employed to realize the mandates of social policy. It further requires, as a basis for the critique of prevalent values and current procedures, the accumulation of adequate, validated, and pertinent information concerning the actual operation and effects of the administration of justice, as well as with regard to the living law and the economic, political, or social activities which the law purports to coordinate or control. Ultimately, as a means to compensate for local or ephemeral, national or cultural, biases, the conception of law as a means to attain social ends paves the way to an objective, humanistic scheme of legal science, to which the phenomena relating to the functioning of law in all times and places may be relevant. For, in the last analysis, the pragmatic approach is scientific, rather than traditional, dogmatic, or provincial, in outlook. This expansion of the scope of legal education and legal science beyond the ancient boundaries of authoritative doctrine has in recent years fostered new philosophical perspectives, stimulated a variety of ventures in legal research, and, most conspicuously, occasioned a multiplication of more comprehensive casebooks to represent the enlarged subject matter in legal instruction. In this, growing, if not yet entirely adequate, attention has been focused upon the existent or possible procedures of the legal process in legislation and the administration of justice. In addition, there has come increased appreciation of the intimate relations between law and the other social sciences, but the tentative essays that have been made to establish lines of communication have as yet scarcely bridged the chasm that historically divides jurisprudence from social science. On the other hand, comparative legal studies, the significance of which has been latent in the