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The Conflict of Personal Laws, Part II*
Published online by Cambridge University Press: 12 February 2016
Extract
The characteristic function of private international law is to declare the law applying to cases containing a foreign element, by pointing out the general principles upon which all the legislation on the matter is based and developed. The function of such principles is to help to specify the law considered appropriate in individual cases. Private international law knows several such principles such as domicile, nationality, the will of the parties, the place where a contract is concluded or where an immovable is situated, etc.
Conflict of personal laws is also based on connecting principles, although of a different character. The main connecting principle is the ethnic or religious association of the parties. Nationality or domicile of the parties, the two connecting principles on which the main systems of private international law are based, may not be resorted to in the conflict of personal laws. Nationality may be taken as a basis for deciding which is the most appropriate law to be applied to the relationships between nationals of different States, but not for deciding which law is to be applied to parties who, being members of different legal systems, are nevertheless all nationals of the same State. As to domicile, it may help to solve a similar problem arising between persons domiciled in different countries or between persons domiciled in different parts of the same country within which different territorial laws are in force; but it can serve no useful purpose in relation to nationals of the same State to whom different laws apply by reason of their ethnic or religious origin and who live scattered throughout the whole of the territory of the State.
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References
49 See Arminjon, Précis, cit., pp. 191 ff. See also: Schnitzer, , Handbuch des Internationales Privatrecht, Basel, 1944, Vol. 1. pp. 104 ff.Google Scholar
50 See Vitta, op. cit., pp. 65 ff., and cases there quoted. This interpretation by Mandatory Courts was upheld after the creation of the State of Israel. But the Rabbinical Courts' Jurisdiction (Marriages and Divorces) Law of 1953 granted exclusive jurisdiction to Rabbinical Courts in matters of marriage and divorce of all Jews who are resident in Israel, and although this enactment contained no definition of the word “Jew”, it was construed as intending to refer to Jews at large, whether registered or not in the special register referred to above. See Chigier, , “The Rabbinical Courts in the State of Israel”, (1967) 2 Is.L.R. 147 ff.Google Scholar; (this author holds that the term “member of the Jewish Community” and “Jew” are synonymous; the first term should then have been interpreted as is now the second).
51 In Israel the term Jew has, for the purposes of the Rabbinical Courts' Jurisdiction (Marriage and Divorce) Law, 1953, been construed according to religious criteria. Rufeisen v. Minister of the Interior (1962) 16 P.D. 2425; Shalit v. Minister of the Interior (1969) (II) 23 P.D. 477–608; The Law of Return (Amendment No. 2) 1970; see also Akzin, , “Who is a Jew? A Hard Case,” (1970) 5 Is.L.R. 259CrossRefGoogle Scholar and Ginossar, , “Who is a Jew: A Better Law?” (1970) 5 Is.L.R. 264.CrossRefGoogle Scholar
52 Elzafani v. Benjamin (1963) 17 P.D. 1415; see also Silberg, op. cit., pp. 247, 250.
53 The fraude à la loi question has been specially studied by French authors. It arises when a party endeavours to avail himself of a connecting principle in order to evade the application of an unfavourable law and to substitute for it a law supposed to be more favourable. See Arminjon, Précis, cit., Vol. 1, pp. 168 ff. An instance of fraude à la loi in our field is quoted by Niboyet, , Manuel de droit international privé, Paris, 1928 (2nd ed.), pp. 582–83Google Scholar (Syrian maronite converting to Islam to avoid paying alimony to his wife).
54 See Tedeschi, , “Concorrenza elettiva di leggi diverse”, Annuario di diritto comparato, 1947, pp. 269 ff.Google Scholar; id. “On the choice between Religious and Secular Law in the Legal System of Israel”, Studies in Israel Law, cit., pp. 238 ff.
55 Under the Rabbinical Courts' Jurisdiction (Marriage and Divorce) Law of 1953, however, the Rabbinical Courts have been granted exclusive jurisdiction in matters of marriage and divorce of Jews resident in Israel. See n. 50 supra.
56 See Dareste, , Traité de droit colonial, Paris, 1931–1932 para. 516, 524Google Scholar; Solus, op. cit., pp. 136 ff.
57 See Montera, , “Le statut de l'Algérie”, Revue juridique et politique de l'Union Française, 1947, pp. 477 ff.Google Scholar; Camerlynck, “De la renonciation au statut personnel”, ibid., 1949, pp. 129 ff.
58 See Ilbert, , Government of India, 1907 (2nd ed.), p. 337Google Scholar; Burge's, Commentaries on Colonial and Foreign Law, London, 1907, pp. 63 ff.Google Scholar
59 See 1939 amendment to Palestine Order-in-Council, 1922; arrêté 109/LR May 14, 1935, of the French High Commissioner for Syria and the Lebanon.
60 See Vitta, , “Il diritto interpersonale”, Annali di diritto comparato e di studi legislativi, 1952, pp. 119–230, esp. at pp. 211 ff.Google Scholar; id Conflitti interni ed internazionali (Saggio comparativo), 2 vols., Turin, 1954 and 1955.
61 See Bartin, , Principes de droit international privé français, I, Paris, 1931, pp. 18 and 25Google Scholar; Niboyet, Manuel, cit., pp. 15 ff.; id.Traité de droit international privé français, I, Paris, 1947 (2nd ed.), p. 23; Nussbaum, , Principles of Private International Law, New York, 1943, p. 5Google Scholar; Schnitzer, Handbuch, cit., Vol. 1, pp. 162 ff.; Bartholomew, , “Private Interpersonal Law”, (1952) I. & Comp. L.Q. 325 ff.CrossRefGoogle Scholar; Gannagé, , “La distinction des conflits internes et des conflits internationaux de lois”, Mélanges Roubier, 1961, Vol. 1, pp. 299 ffGoogle Scholar. The last author considers the distinction between internal (both of personal and territorial laws) and international conflicts more of a historical and political character than of a legal character.
62 See Von Bar, , Theorie und Praxis des internationalen Privatrechts, Hanover, 1889 (2nd ed.), Vol. 1, pp. 125–126Google Scholar; Neumeyer, op. cit., Vol. 1, pp. 8 ff.; Wolff, , Private International Law, Oxford, 1962 (2nd ed.), p. 6Google Scholar (“most of the rules of Private International Law can be applied here analogously”); Graveson, , The Conflict of Laws, London, 1969 (6th ed.) p. 4.Google Scholar
63 The conflicts of personal laws in the Orient, although historically unrelated to those of the Middle Ages, were also influenced by the penetration of European legal ideas as to the way of settling conflicts of laws in general. The same is to be said of colonial conflicts. Moreover, apart from any other consideration, the similarity of the situations in all these cases was bound to bring about similar results.
64 It is significant that those authors who hold that the conflict of personal laws is included in private international law also believe that both these branches of the law have the task “to elucidate the operative legal system in the individual case”. See Wolff, op. cit., p. 5.
65 See Bartin, loc. cit.; Niboyet, loc. cit.
66 See Vitta, Conflitti interni, cit., Vol. 1, esp. pp. 131 ff. and 138 ff.
67 See Vitta, op. cit., Vol. 1, pp. 36 ff., and authors there quoted.
68 See Rivers, Pitt, The Clash of Cultures and the Contact of Races, London, 1927Google Scholar; Maunier, , Sociologie coloniale, Introduction à l'étude du contact des races, Paris 1932Google Scholar; Tedeschi, “On the Choice”, cit., esp. at pp. 255 ff.
69 See Tedeschi, loc. cit.