British Institute of International and Comparative Law

The Conflict of Laws in TimeLes Conflits de Lois dans le Temps by Roubier PaulReview by: A. Berriedale KeithJournal of Comparative Legislation and International Law, Third Series, Vol. 16, No. 1 (1934),pp. 165-166Published by: Cambridge University Press on behalf of the British Institute of International andComparative LawStable URL: http://www.jstor.org/stable/753994 .

Accessed: 28/06/2014 07:40

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Cambridge University Press and British Institute of International and Comparative Law are collaborating withJSTOR to digitize, preserve and extend access to Journal of Comparative Legislation and International Law.

http://www.jstor.org

This content downloaded from 91.238.114.64 on Sat, 28 Jun 2014 07:40:02 AMAll use subject to JSTOR Terms and Conditions

THE CONFLICT OF LAWS IN TIME.

THE CONFLICT OF LAWS IN TIME.

IN the second volume of his work,' Professor Paul Roubier continues the elaborate and interesting investigation of the issues which concern the retroactivity or apparent retroactivity of laws. The subjects treated include obligations and contracts, property rights, capacity and family law ; public law, penal law and the law of procedure ; and the application of the doctrine to the principles of the conflict of laws. As his Conclusion (PP. 748-72) shows, he has seen no reason to modify the principles enunciated in his earlier volume,2 and great credit is due to the ingenuity with which they are developed and applied to the most diverse material, without showing themselves seriously deficient. The case of contracts raises obvious difficulties. How are we to account for the fact that, while in principle a contract should be governed by the law in force at the time when it was constituted, as recently acted on in England in the case of insurance,3 there are certain classes of cases in which existing contracts are affected by fresh legislation ? The answer (pp. 109-21) that laws of public order are naturally retroactive is dismissed as unsound in principle, and obviously this is the case. Instead it is insisted that we must dis- tinguish between laws affecting contracts and laws affecting legal status (pp. 122-52); a measure which imposes fresh burdens on lessees of premises must be regarded as affecting them not qua contracting parties but qua persons bound to contribute to the costs of administration. It is

1 Les Conflits de Lois dans le Temps. (Paris: Recueil Sirey, 1933.) Pp. 816. Fr. 65.

2 See Journ. Comp. Leg., Third Series, vol. xii., pt. i., pp. 137, 138. 3 Ward v. British Oak Insurance Co., 48 T.L.R. 13.

165

we can feel no reasonable hesitation in attributing to such laws an over- whelming tendency towards righteousness." Although we may disagree with this definition, we cannot help admiring the robust optimism on which it is based. Similarly the four essential elements of " jurist's law " are found to be (p. 38) " (I) the desire of the nation, expressed through its chief organ, the State, to influence the conduct of persons within its jurisdiction, (ii) in a direction deemed by the nation to be ' right,' (iii) by the threat of material penalties, or, possibly, by the promise of material rewards, (iv) which sanctions will be administered by tribunals or other machinery set up by the State for the purpose." This seems to be an excellent description of an ideal law as envisaged by a nineteenth-century Liberal, but it seems hardly adequate as a definition of actual State law.

Perhaps the most valuable chapter in this stimulating book is the one dealing with classifications of law, a subject rarely discussed by English jurists but one on which Dr. Jenks is an expert. It is interesting to note that he includes administrative law and industrial law as separate divisions in his scheme, and that the law of obligations is divided into civil and commercial branches following the continental method.

A. L. G.

This content downloaded from 91.238.114.64 on Sat, 28 Jun 2014 07:40:02 AMAll use subject to JSTOR Terms and Conditions

I66

an ingenious distinction and is helpful in resolving many more complex issues, though, as inevitable in French jurisprudence, it by no means agrees with all the decisions of the courts or the reasons adduced for them. Interesting again is the author's insistence that respect of acquired rights is not the true solution of the problems discussed. This he illustrates very neatly (pp. 268-78) by a consideration of the rule of Art. 2098 (2) of the Civil Code, which in dealing with debts due to the treasury forbids the acquisition by the treasury of a fresh privilege under a law at the expense of rights duly acquired by third parties. This provision, he shows, is no mere repetition of Art. 2 of the Code, which forbids in general the retroactive interpretation of laws. It is Art. 2 which prevents the courts applying fresh privileges conferred by legislation to debts existing before the passing of the law by which they are conferred, an effect which, despite judicial authority to the contrary, could hardly be attained under Art. 2098. Not less ingenious is the mode in which the author shows that there is no element of retroactivity in the fact that a law mitigating the penalty can properly be applied to an infraction committed before it was passed (pp. 540-9). Finally we may agree (pp. 739-47) that, if a change takes place in the system of the conflict of laws applied in any country, it is not normally proper to apply it to transactions which occurred under the regime of the earlier system.

A. BERRIEDALE KEITH.

NATIONALITY.

NATIONALITY.'

THIS book is designed to provide students with an adequate and well- authenticated statement of the idea of Nationality current in the modern world, and of the main lines of legislation on the subject. It is published under the auspices of the Institute of Comparative Law recently estab- lished by the Faculty of Law at the University of Paris. The list of collaborators, which includes, among other distinguished names, those of MM. Mirkine-Guetzevitch, Maunier, Ancel, Basdevant and de La Pradelle, is in itself a guarantee of the high standard of the work. The subject is one of great interest and much contemporary controversy. As remarked by M. L6vy-Ullmann in his preface, it needs to be handled in an objective spirit and with great circumspection.

Acquisition and loss of nationality are matters upon which International Law is silent and International Tribunals have made few pronouncements, save occasionally as regards imposition of a new nationality jure imperii or as a consequence of annexation and the like. " It is for each State to determine under its own law who are its nationals," says Art. I of the Convention of 1930, and we agree with M. Gegout that the reference in this article to " the principles of law generally recognized," which it is there suggested limit the recognition of a foreign law of nation- ality, is of very small importance.

1 La Nationalite dans la Science sociale et dans le droit contemporain. (Paris: Librairie du Recueil Sirey, 1933.) Pp. 347.

This content downloaded from 91.238.114.64 on Sat, 28 Jun 2014 07:40:02 AMAll use subject to JSTOR Terms and Conditions