Marks of Primitivity in the Conflict of Laws: A Jurisprudential Analysis
![handle is hein.journals/rutlr26 and id is 197 raw text is: MARKS OF PRIMITIVITY IN THE CONFLICT OF LAWS:
A JURISPRUDENTIAL ANALYSIS
THOMAS A. COWAN*
Conflicts is beset with a fundamental paradox. It is both ordinary
law and extraordinary law. The court seized of the case is a local
court, constrained by the ordinary principle that all authority to ad-
judicate rests upon the political power that created it and that authen-
ticates its acts. [I speak in this essay only of the subject of choice
of law.] How then can a local or domestic court apply the rules of
a foreign jurisdiction?
To say that a local court cannot apply the rules of a foreign juris-
diction would lead to the conclusion that all conflicts law is local. This
assumption seems then to lend force to the idea that local interests,
prejudices or parochialisms are paramount over foreign interests, prej-
udices, and parochialisms whenever the two sets of biases seem to con-
flict. The end result of a purely local theory of conflicts would be
the abolition of the subject and a dictate to courts to use their own
familiar local law, a tendency which in fact hardly needs encourage-
ment.
On the other hand, those who advocate giving local courts a wider
discretion to use foreign law do so in the supposed interests of comity,
uniformity, security and comparative justice, the traditional aims of
the Conflict of Laws. Recently, the aim has been to choose the law
having the most or the more substantial relationship with the par-
ticular case being decided. These idealized aims impose upon the
courts an obligation to prefer at times even an inferior, less salutary
foreign rule to their own superior local one. In such a case, the con-
flicts rules fail as a means of effectuating just or desirable results.
The Conflict of Laws as actually applied by the courts rests uncom-
fortably on the horns of this dilemma. Since no generally accepted
theoretical formulation exists to limit and guide the courts in the ex-
ercise of their jurisdiction when foreign law seems relevant, the sub-
ject is beset by unrealistic and conflicting theories for justifying the
exercise of this extraordinary power. Thus, courts must choose not
only among conflicting rules of law but among conflicting theories as
well. The result is that conflicts still bears many of the marks of
* Professor of Law, Rutgers Law School, Newark, New Jersey; B.S., Economics,
Wharton School, University of Pennsylvania; Ph.D., LL.B., University of Pennsyl-
vania; S.J.D., Harvard.](ViewImageLocal?handle=hein.journals/rutlr26&div=16&collection=&method=preview&ext=.png&size=3)
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Marks of Primitivity in the Conflict of Laws: A Jurisprudential Analysis
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