The Concept of Man in English Private

International Law

SASMIT PATIL-1182200068

the objective of this paper is to explain the concept of man in english private international
law through various philosophical approaches and the analysis of the situation in which
the concept of man has evolved with relevance of the english private international law .
and after the brief idea of how a man in legal term is a human being of any gender we will
be talking about the private international laws offered by england to protect the basic
human right and in which we will highlight least three benefits over nationality as a
foundation for human rights. unfree status: limitations on freedom. limitations on
personal freedom may be examined in relation to personal liberty, to property or to
marriage and

INTRODUCTION

In England, Englishmen have been fortunate to build legal structures intended to shield the
common man from injustice and abuse of power at home as well as against the attacks of
foreign rivals because they have been secure for centuries on an island, protected by power.
laws may be provincial and, in some ways, lacking in modern grace, but they have long
protected the fundamental rights of the matured ancient law's rational man , A man is a
person. This definition covers women and children in addition to the adult male sex of the
human species; a man who is loyal to the Crown and thoughtful and responsible in how he
treats others. The common people who have dutifully, if grudgingly, filled the jury boxes of
the English Courts throughout history have found it easy to understand this idea of man. The
ideal code of conduct for the reasonable man under the common law is based on the
conviction that a person's natural rights and obligations in society derive from the simple fact
of his manhood, or, if you prefer, from his human nature.
Holland refers to these as a person's "antecedent rights in rem1," and they are therefore known
as natural rights. The fundamental rights of the common man in our courts don't need to be
explained or justified by elaborate theories of state or jurisprudential ideas of the homo
juridicus since they are an important component of society and are upheld by judges.
Lawyers have an honourable heritage that allows them to confidently prepare for the future
without irresponsibly discarding the lessons of the past at times of crisis like these, when
human lives and rights appear dangerously threatened. For instance, the Economic and Social
Council was required under Article 68 of the United Nations Charter to establish the present
Commission "for the promotion of human rights."2 Even public international lawyers are
gradually coming to terms with the emergence of the human being as a topic of public
international law,3 as a result of the rebirth of interest in human rights being a manifestation
of our fundamental problems. In any such reconciliation, English innovations in private
international law may very well serve as a model for the rest of the globe.

EVOLUTION OF PRIVATE INTERNATIONAL LAW IN ENGLND -:

An barrier to the development of private international law in the UK was the relative
geographical isolation of England from the landmass. It is true that there were two different
sets of legal regulations in England, one of which was equity and was governed by chancery
courts, while the other was common law and was governed by common law courts. However,
this disagreement should not be confused with the disagreement over legal options. There
were two sets of laws that applied in the same nation: equity and common law. A new
circumstance developed once Scotland and England were united. Anglo-Saxon law affected
England, whereas Roman law influenced Scotland. Following the union of Scotland and
England, there were several clear legal conflicts. This type of issue originally appeared in
Calvin's Case. The Scottish laws in such instance had to be recognised and applied by the
English courts. Since then, England's private international law has evolved as a result of court
judgements made in various situations and cases. Joseph Story, a renowned jurist, authored
the first treatise on conflict of laws (1779-1845). He was followed by Dicey and Westlake. In
their writings, achieving justice in a particular situation including a foreign element is the
major focus. They created the Rules of Conflict of Laws in order to be able to administer
justice in a dispute.

1
Jurisprudence ,13th edition 1934 , p 170.
2
Commentary on the Charter, Cmd. 6666-45
3
Lauterpachts’ comment in Transactions, Vol .30 , p.66.
HOW HAVE THESE DEVELOPMENT COME ABOUT -:

After the origin of the private international law Dr.Cheshire points out that Bartolus [1314-
57] who he admired the most descried as the father of Private International Law the first man
who deals with the principle of the laws His approach consisted of assessing each legal
relationship independently in which a potential conflict of laws existed before identifying the
law that, on the basis of reason and justice, should most suitably guide the situation.

"There is one more situation likely to eliminate any relevance nationality may still have as a
criteria for status," 1Rabel writes, summarising the current benefits of residence as a
foundation for rights. According to some estimates, as many as thirty million individuals
have departed throughout the course of the conflict, and many more will do so. Additionally,
millions of people have lost their prior citizenship or will be unable to establish which State
they are citizens of. The severe intermixture of people in the European nations where the
nationality notion originated is likely to make it obsolete.

Additionally, if federations are formed, people's relationships with the federal governments
will be so significant that they will outweigh their national affiliations. "Freedom of choice of
personal status in civil concerns looks thus not only to be more likely to be returned to more
broad favour but also to be more likely to expand in importance in the post-war world,"2

There is no requirement for any other ingredient beyond the factum of residence and the
animus of permanent residency3, which are required to establish domicile. Insofar as the
average person is concerned, residence has at least three benefits over nationality as a
foundation for human rights.

1.Failure to abide by a foreign law regarding registration will not stop English courts from
determining that a foreign domicile exists. Re Annesley [1926] Ch. 692; Boldrini v. Boldrini
[1932] P. 9; it is feasible for an immigrant resident here who is subject to deportation to
obtain a domicile here; and it may be maintained that a man may even establish a domicile in
England even though he is here in violation of local police laws. An immigrant whose
country of origin was not England who was expelled from and prohibited from returning to
England would likely lose his residence in England, according to Dicey4. It cites Veith v.

1
Chesire,op.cit.,p75,and Arminkon
2
Conflict of laws,vol.1.,p.7.,Chicago 1945
3
Smitthoff, English conflict of laws,1946,p.83
4
Op.cit.124,note t.
Veith 1929, 73 Sol. Jo. 235; however, this does not support the claim because Bateson J. said
that the respondent had only departed England as a result of a State act in this instance. There
is no proof that he had any intentions of moving.

2. Our courts will provide a man a civil status regardless of whether he retains or acquires a
nationality, and in these days when it is usual for men to be stripped of their nationality for
political reasons, the English stance lessens the terrors of de-nationalization. In English law,
statelessness does not equate to rightlessness.

3. The idea of nationality is by no means exclusive; situations of several nationalities are

common. However, as we've seen, the idea of domicile is exclusive; neither multiple
domicile nor absence of domicile are possible. Rabel provides a thorough overview of the
legal principles controlling personal status in his magistral book, "The Conflict of Laws: a
Comparative Study."1 He mentions that the British Empire, common law nations, as well as
several Scandinavian and Latin American republics, acknowledge the ability to select a
residence; Although modern French judicial decisions have moderated this rule so that rights
accorded to Frenchmen are now allowed to foreigners, the French method of making civil
status dependent on nationality is still widely used in Europe, Latin America, and the Far
East. There is also a mixed system that is adopted by other states; for example, Switzerland
"applies Swiss private law to foreigners domiciled in Switzerland and prescribes that a Swiss
national abroad shall be governed by the laws of Switzerland."

However, we disagree with Rabel's recommendation 2for enhancing the tests of domicile,
which he claims are too ambiguous. He claims: "It would appear fairly doable to mandate
that each voluntary change of domicile be notified to a public entity with investigative
powers in Europe. For the reasons of defence, police, and taxation, government organisations
in European nations regularly monitor people's places of residence and domicile. To formally
create personal law, not much creativity is required. Such invasive bureaucracy is probably
unthinkable in our nation."

The "intrusive bureaucracy" that is prohibited in the United States would also be prohibited in
any country where the common law heritage of individual choice is practised. It is
unquestionably preferable for the courts to be presented with challenging factual issues in a

1
Niboyet op.cit.,p.307
2
Op.cit.,p.158-9
relatively limited number of domicile-related matters as opposed to subjecting everyone to
more official checks with their inevitable rights violations and potential for abuse.

In conclusion, English law not only acknowledges that every man has a personal domicile,
the law of which governs his civil status, but it also acknowledges that a man's fundamental
rights derive from the fact that he is a human being and not as a result of any concession from
a state, and everyone who approaches the English Courts benefits from this English-law
conception of rights.

UNFREE STATUS: LIMITATIONS ON FREEDOM. LIMITATIONS ON

PERSONAL FREEDOM MAY BE EXAMINED IN RELATION TO PERSONAL
LIBERTY, TO PROPERTY OR TO MARRIAGE

A. With Regard To Liberty As Lord Coke noted, the common law handled serfdom
differently than the civil law. Slavery has been illegal in England since Sommersett's Case
(1772) 20 St. Tr1. It is true that Lord Mansfield repeatedly delayed making a ruling in the
Sommersett case because he was aware that any verdict would automatically release slaves as
soon as they entered England.

In order to prevent a prodigal from being disqualified in England from disposing of his
property without the consent of his "conseil judiciaire." According to Wolff, "generally
speaking, any personal status unfamiliar to English law is either treated as criminal, or at least
dismissed as if it were penal." We are tempted to go even farther and state that, should
contracts established abroad and legal under foreign law contain self-imposed limits, the
English Courts will not enforce them if they constitute an unreasonable burden on commerce.
In Rousillon v. Rousillon, Fry J. 2lent his support to this claim.

Cheshire, however, makes the opposite case (op. cit., p. 138–140). We believe that any
contract that is attempted to be enforced here will be seen by our judges as having a close
enough connection to England to allow English judges to apply their own well-established
rules with regard to servile or unreasonable trade constraint contracts to it.

B.AS TO PROPERTY

1
.britannica/topic/Somersett-case
2
he American Law Register (1852-1891) Vol. 28, No. 12, New Series Volume 19 (Dec., 1880)
Although it is still common practise to punish the losing party in a civil or other war (by
taking their property, for example), such punishments are fundamentally criminal in nature
and only have local application unless the acts for which they are administered also constitute
crimes against humanity or war crimes. Folliott v. Ogden (1789) 1 H.B.L. 123; 3 T.R. 7261, a
landmark decision that served as a test case for American Loyalists during the War of
Secession, established that the plaintiff's ability to suit on his bond was unaffected by the
New York Legislature's confiscation of his property.

"The criminal laws of another nation would not interfere with the right to retrieve any other
specified property, such as jewellery or plate, in this nation. A fugitive who comes to this
country has all of his temporary rights; he may recover any money held for his use, stocks,
obligations, and the like; and he cannot be affected in this country by proceedings against him
in that which he has left outside of the limits of which proceedings do not extend. Foreign
criminal laws are strictly local, and they only affect what they can reach and can be seized by
virtue of their authority."

FOREIGN RESTRICTIONS ON THE RIGHT TO MARRY

Due to the German Nazi limitations and, more recently, the Russian law barring weddings
between Russians and foreigners, limits on marriage have lately attracted attention. (Times
News, 24.3.47). Due to the Christian type of marriage being a part of the usage of this realm
(Hyde v. Hyde), restrictions of Christian origin, prohibiting marriage within certain defined
degrees of kindred, and forbidding bigamy, are enforced in England. Residents of this
country cannot get around these restrictions by getting married abroad. De Montefiore v.
Wilton (1900) 2 Ch. 481; Brook v. Brook (1861) 9 H.L. 1932

However, no other limitations based on race, caste, colour, or nationality shall be recognised
or enforced in this place (Chetti v. Chetti [1909] p. 47). 3The Hague Convention, which
governs the legality of unions, prohibits the marriage of foreigners in violation of their
national laws, unless such bans are solely motivated by religious considerations. English law
has not ratified this convention. The English approach is being reversed in this effort to lessen
the impact of religious limitations while allowing governments to preserve all other forms of
public policy constraints restricting marriage.

1
Affirmed, 3 T. R. 726; 100 E. R. 825;
2
Affirmed, 9 H. L. C. 193; 11 E. R. 703
3
heinonline.org/handle=hein.journ
Rabel observes that the gathering scarcely qualifies as a success (Rabel op. cit., p. 279). The
Hague Convention would allow for the acknowledgment of all forms of discrimination based
on race, nationality, class, or colour. And Wolff's4 attempt to restrict the convention in
connection to Nazi anti-Semitic marriage regulations by characterising these laws as religious
prohibitions (op. cit., p. 174, note 2) is more clever than persuasive.

A bachelor's freedom to marry is respected and encouraged by English courts, and they will
not enforce a bachelor's contract to abstain from marriage. The classic case of Lowe v. Piers
(1768) Wilmot 364, 372, condemns such a contract.

JURISDICTION: JUDGING WITHOUT FEAR OR FAVOUR, AFFECTION OF ILL-

WILL

RIGHT TO A FAIR TRIAL

If at all feasible, English courts will ensure that a man has a fair trial, and they will use their
discretionary authority under Order XI of the Supreme Court Rules to permit notice of a writ
to be served overseas to enable a matter to be heard here where justice would not otherwise
be served. For instance, in a case where the plaintiff—a German Jew—claimed that a German
company had broken a contract in England in 1937, jurisdiction was acknowledged, along
with the fact that a Nazi-German court would have likely imposed a punitive impairment on
him just because he was a Jew. L. Rosenthal and Co. v. Oppenheimer, A.C. [1937] 1 Greer,
L. J. noted in All E.R. 23 that "the plaintiff would not be permitted to be represented by an
advocate if he returned to his homeland. He would be required to personally appear before
the Labour Court, present his own case, and run the very real prospect of being detained and
sent to a concentration camp.

As Lord Eldon stated in Wright v. Simpson (1802) 6 Ves. J. 714, English courts will often
accord credit to judgments of foreign courts.

EQUITABLE JURISDICTION

The English courts' equitable-based jurisdictional bases are of special significance since they
directly reveal the high standards of behaviour upheld by the judiciary. The theory of
conscience, which is unique to equity courts and forms the basis of the law of trusts, allows
the courts to occasionally enforce even trusts or contracts related to foreign property by
acting in the defendant's best interests.
4
Wolff,private intrnational law, p.25
English equity courts have consistently applied their own standards to defendants subject to
their jurisdiction and have even upheld rights demanded by a definition of conscience that
may be unfamiliar to foreign law. Penn v. Lord Baltimore (1750) 1 Ves. 444 states that
English courts will enforce contracts pertaining to the sale of foreign land by compel the
execution of a deed when the defendant enters their jurisdiction. They will also enforce the
French law's hypothèque légale 1in respect to English movables.

English standards are not arbitrarily high or low. They may be found in enforceable
precedents, which demonstrate the continuity of our civilisation and our Christian conception
of man by stating that no one is exempt from the law or the rule of law before our courts.
Therefore, there is no need to apologise for English doctrines or the rule that foreign law is
presumed to be identical to English law at first glance. English courts are justifiably proud of
their lengthy, pro-liberty traditions.

REFERENCES-:

 Transactions of the Grotius Society Vol. 33, Problems of Public and Private International
Law (1947), pp. 147-166 (20 pages) Published By: Cambridge University Press.

 https://academic.oup.com/book/9445/chapter-abstract/156377357?redirectedFrom=fulltext

 https://blog.ipleaders.in/private-international-law

1
servicepublic.fr particuliers
 'Choice Of Law Rule Relating To Torts' (Sal.org.sg, 2022)
<https://www.sal.org.sg/Resources-Tools/Law-Reform/Choice-of-Law-Rule-
Relating-to-Torts> accessed 1 October 2022