Torts in the Conflict of Laws

Authors

Moffatt Hancock, University of Toronto

Files

Description

There has been in recent years a marked development of interest in the diversities of laws and their attendant conflicts. While modern facilities of communication accelerate the spread of culture and thus augment the need of uniformity in the laws affecting commerce, they also reveal the significance of local needs, customs, and legal institutions. Indeed, it would seem that multiplication of jurisdictions and progressive diversification of laws in both space and subject matter is an unavoidable concomitant of increasing specialization in the international, interstate, or local economy. If these circumstances serve to justify the perennial effort to simplify the law, they also argue that the effort is Sisyphean. Meanwhile, determination of the competent court and the appropriate law in the juridical conflicts arising in the course of commerce is requisite.

It is sometimes objected that the resolution of conflicts of laws through rules guiding the selection of the applicable law is, as contrasted with the method of unification, a pis aller. But it would seem that, for the substantial group of problems engendered by the necessary division of judicial business and the variation of law according to the peculiar needs of particular communities, there is no feasible alternative. Indeed, it may be said that, while a substantial measure of legal unity may be attainable in homogeneous culture areas, particularly when united under a common government, and unification of law is particularly desirable in the field of international commerce, the notion of eradicating the sources of diversity through universal standardization of local customs and enactments, is under existing conditions palpably vain and, in certain respects, even vicious. A common law is suitable only for common conditions and in any event does not obviate the inevitable issues of jurisdiction. It can scarcely be doubted that clearer perception of this situation has stimulated the current interest in conflicts of laws. For, in the degree that uniformity appears unattainable, the bases determining the applicable law in cases of conflict assume consequence.

Of this increased interest, the literature respecting conflicts of laws that has appeared in the United States during the past two decades is ample testimony. On the one hand, there has been a major endeavor to systematize the field through the Restatement of the Law of Conflict of Laws, which has been supplemented by a monumental treatise and two valuable, if less extensive, manuals. On the other hand, there has been prolific consideration of specific problems in the law reviews, and the courts have concurrently provided an unusually rich casuistry of judicial opinion. In addition, the general theoretical issues have attracted attention, and more recently a degree of emphasis has been given to the value of comparative study in this field. There have, however, appeared relatively few exhaustive monographic studies of topics adequate in scope to afford a testing-ground for the more general or theoretical developments and at the same time carrying sufficient detailed consideration of specific problems to serve the needs of the practitioner.

From this point of view and on several counts> the present study deserves attention. It comprizes a comprehensive survey of the reported Anglo-American cases in an area of great practical interest, which at the same time throws into relief the principal fundamental issues respecting the selection of the applicable law in cases of conflicts. A distinctive, if not indeed unique, feature of this survey is that it compares in detail the historical and doctrinal developments not merely in England and the United States but in the chief British Dominions as well; it thus provides an illuminating perspective of the evolution of legal theory and practice in these related areas of legal culture. The technique followed is in refreshing contrast to the prevailing predilection for logistics in dealing with conflicts of laws; its significant premise is to relate and criticize the recorded cases in terms of the fundamental policies involved in preference to more formal consideration. On this basis, the author develops a mode of approach to the central theoretical problems concerning characterization (otherwise known as qualification or classification) and the primary distinction between substance and procedure, which, while of course indebted to prior critical studies, is nevertheless both original and practical. In this connection, emphasis is given to an aspect of the matter too little developed in the current literature, namely, that of alternative or multiple reference, involving the potential applicability of laws emanating from several jurisdictions in what the author appropriately designates as "multiple contact situations." Moreover, the treatment is in a style lucid and exact, which, the substance considered, is something of an achievement and a deceptively modest advertisement of incisive analysis.

Publication Date

1942

Publisher

University of Michigan Press

City

Ann Arbor

Keywords

Caselaw, England, Canada, United States, Foreign torts, Choice of law

Disciplines

Conflict of Laws | Jurisprudence | Torts

Comments

Published under the auspices of the University of Michigan Law School (which, however, assumes no responsibility for the views expressed) with the aid of funds derived from gifts to the University of Michigan by William W. Cook.

Recommended Citation

Hancock, Moffatt, Torts in the Conflict of Laws. The University of Michigan Press, 1942.