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The Historical Background and Development of

Conflicts of Law
Angelica Belladonna C. Leonor
LLB- III
Bicol College, School of Law

In the Philippine context, Conflict of Laws is defined as part of the municipal law
of a state which directs its courts and administrative agencies, when confronted with a
legal problem involving a foreign element, whether or not they should apply a foreign
law.1 Meanwhile, the American literature states that the law of conflicts includes both
choice of law, which contemplates the determination of the particular state law
applicable to specific cases typically within the sphere of private law and jurisdiction of
courts.2 Despite its various definitions of different origins, it cannot be denied that
conflicts of law has become an important legal field which paved way to the
harmonization of various systems of law. It is pivotal to understand how these different
kinds of rules were harmonised and this can be truly achieved by looking into the
historical background of private international law.
The historical background of Conflicts of Law otherwise known as Private
International Law dates back during the early inception the Roman Empire. This was the
period when the growth in the trade between countries led to the increasing numbers of
disputes. To address this dilemma, the praetor peregrinus, developed a set of rules
aimed at resolving disputes between foreigners or between foreigners and Roman
Citizens. At the onset, the Roman Empire only has ius civile which is the law applicable
only to Roman citizens. Recognizing the predicament, the Roman Praetor included
various Greek legal Doctrines and the concept of bona fides in settling disputes
involving foreigners. This eventually developed as ius gentium or the law that governs
the relations of States.

1
Paras, definition of Conflicts of Law
2
The Conflict of Laws: A Comparative Study, Volume 1, University of Michigan Law School

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The apparent need and importance of the conflict of laws prompted jurists to
comprehensively study the field especially with their efforts of cultivating their respective
municipal laws. One of the many who devoted his time in studying the field is Bartolus,
an Italian jurist who is currently recognized as “Father of Conflict of Laws” following his
formulation of the “Theory of Statutes”.

The Theory of Statutes was a result of the problem in Northern Italy back when it
was divided into several city states, each having its own local law, thus creating
confusion as to which law is to be applied in transactions between individuals of
different city states. This was resolved by classifying laws and identifying which
circumstance it specifically applies.
Statute theory for resolving conflicts between persons governed by different laws
was developed in the sixteenth century in France by a group of jurists led by Chales
Dumoulin and Bertrand D’ Argentre.
As the importance of the field of conflicts of laws become more apparent and
evident, more countries pursued efforts in coming out with the principles anchored on
their respective experiences of diversity in the legal systems. According to the citation
provided in the book of Salonga in Private International Law 3 Dutch jurists including
Ulrich Huber who first used the term “conflict of laws” opined that unless imposed by a
treaty, by comitas gentian or on consideration of courtesy and expediency, a state is
under no obligation to apply as foreign law. Another Dutch jurist in the name of Huber
developed the territorial principle which provides that the laws of every state may
operate only within the territorial limit of such state.
As the legal systems of each state evolve and progress, nations started codifying
their respective laws and incorporating in their civil codes provisions pertaining to
conflict of laws. It is worthy to mention that the nationality law principle which originally
came from the French Civil Code was likewise adopted by the Philippines and now can
be found in Article 15 of the Philippine Civil Code.

3
Salonga, Private International Law, 14, (1979)

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Several other jurists made significant contributions and development to the study
of Conflict of Laws which includes Justice Joseph Story who anchored the concept of
conflict of laws on the principle of comity of nations. Upon the other hand, Savigny in
his book entitled “System of Modern Law” argued that the application of foreign law was
not due comity but the resultant benefits for everyone concerned.
Nationality theory later on became a new doctrine in Private International Law
when Italian Jurist Mancini delved into matters that concerned status, capacity and the
private interest of an individual.
Modern development in Conflict of Law includes the inception of various groups
such as the neo statutists, internationalists and territorialists, having varying viewpoints,
opinions and likewise, contributions to the development of the field of private
international law.
In the Philippines, the study of Conflict of Laws was not of significance until the
country has acquired its sovereignty. Primarily, the Civil Code of the Philippines, which
was adopted from various international jurisdictions, contains the different provisions
and doctrines pertaining to conflicts of law.

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