Theories of Private

International Law
• The existence of Private International law has been justified on several
doctrinal grounds. Several theories have come into existence. The
important among them are as follows:
• Statute Theory
• International Theory
• Territorial Theory or Theory of Acquired Rights
• Local Law Theory
• Theory of Justice
• STATUTE THEORY
• This theory was propounded by Bartocus who is also called the father of Private
International Law.

• His primary aim was to resolve the conflict between the law of various city states and
the city states and Italian Law on other side.

• At that time law of the Italian city states were contained in statutes and hence the name
statute theory.

• At this period of history Italian states had flourished trade and commerce not merely
with each other but also with countries like Spain, France, Arabia, Syria etc and hence
Private International Law developed.
• Statues were classified into two heads:
• Status Personalia: That is the personal laws of the person i.e. marriage
and religion. These statutes operate even when a person is domiciled in
a different state or country.

• Status Realia: These are the statutes which are enacted by a particular
state and effects operation only within the territorial limit of that
particular state nothwithstanding the citizenship of the persons involved
in the transaction of these statutes.
 • INTERNATIONAL THEORY
• Founder of this theory is Savigny.
• His idea about western civilization lies in a community of nations sharing
Christianity and Roman Law as the source of common heritage.
• The advocates of the internationalists doctrine believe that there is a body of
customary and conventional rules developed in the family of nations which
ought to be applied by the municipal courts to solve the problem of Conflict of
Laws.
• As per this theory a common system of conflict of laws has developed in the
international field.

• This conflict may be over only if municipal courts with diverse rules of internal
law recognize the uniform rules of customary law developed among the civilized
nations.
• A serious drawback of this theory is that unlike Public International Law there
is no uniform customary law in Private International Law.

• Customs and rules of laws vary from nation to nation.

• The theory fails to recognize the common law system.

• TERRITORIAL THEORY
• This theory was first advocated by Muber and supported by writers like
Dicey and Beale.

• The central principle of this theory is that courts of a sovereign state do not
apply foreign law nor do they directly enforce foreign judgment but they
merely recognize the consequence of the operation of a foreign law within
its relevant theory.

• The merit of this theory is that it tries to reconcile the territoriality of law
and the need for private international law.
• This theory has been criticized by Cheshire :

• Theory is unnecessary since application of foreign judgment is part of legal

system of the states only and applying foreign laws and judgments do not
tamper the sovereignty of the states.

• If this theory is held to be true then the very need of Private International
Law vanishes since territorial law would be enough to resolve the conflict
of laws.
• Local Law Theory
• This theory was propounded by Walter Cook.

• This theory is a slight variation of territorial theory and is based on the

principle that each court applies its own laws.

• No court ever applies any other law but its own, nor enforce any rights
or obligation other than those created by its own law.

• According to Cook, rules of PIL would only consist of rules as to how a

court would decide a dispute involving a foreign element.
• The gist of this theory is that the court recognizes and enforces a local
right that is one created by its own law.

• But since the dispute in question has a foreign element the court would
necessarily apply the law of the forum that would be applied in a case of
a purely domestic dispute, but for reason of social expedience and
practical convenience it takes into account the laws of a foreign country in
question.

• This theory has been called sterile since it affords no basis of

development for the system of Private International Law.
• Theory of Justice
• Theory was propounded by Graveson.
• The main reason is development of Private International Law is the
pragmatic and ethical.

• The main goal was to achieve justice since a foreign question of law
involving tort, contract, marriage would be best determined by the law of
that foreign country.

• So three cornerstone of development of Private International Law are

Sociological, Ethical and Legal.