Story's Commentaries on the Conflict of Laws -- One Hundred Years After

Abstract

IN 1834 Story published the first edition of his Commentaries on the Conflict of Laws. With the publication of this work, it is now generally admitted, a new era began in the treatment of the subject. Italian, French, Belgian, Dutch, and German writers, among whom are to be found the greatest jurists of their time, had preceded Story in dealing with these questions. Bartolus, Dumoulin, D'Argentre, Rodenburg, John and Paul Voet, Huber, Froland, Boullenois, Bouhier, Cocceji, and Hert are a few of the names. The writers lived in different ages and under different social and political conditions. Questions of the conflict of laws attracted the attention of the Italian jurists as early as the twelfth century. In northern Italy independent bodies of customary law had developed, especially in the municipalities, which prevailed over the more general law. In the absence of a particular provision of local law the common law, namely, Roman law, prevailed. The problems of the conflict of laws arose chiefly between the inhabitants of these municipalities. At first the law of the forum was applied to these disputes, but in the course of time more modern doctrines were developed. According to Magister Aldricus, whom Professor Neumeyer regards as the founder of the science of private international law, the questions of the conflict of laws should be decided with reference to the law which is" the more powerful and useful ". Apparently the judge is to decide the case with reference to the law which shall bring about justice. The development of the conflict of laws reached its height in Italy in the fourteenth century through the genius of the greatest of all jurists of the middle ages- Bartolus of Sassoferrato (I3I4-I357).