Preface to the First Edition
Edited By: Sir Peter North (Consultant Editor)
James J Fawcett, Janeen M CarruthersEdited By: Sir Peter North (Consultant Editor)
Convention demands that in the preface to a new book the author should excuse his temerity in adding to the literature on the subject and should also state the objects he hopes to attain. My excuse is the fascination, perhaps my readers will say the fatal fascination, of the subject. Of all the departments of English law, Private International Law offers the freest scope to the mere jurist. It is the perfect antithesis of such a topic as real property law. It is not overloaded with detailed rules; it has been only lightly touched by the paralysing hand of the Parliamentary draftsman; it is perhaps the one considerable department in which the formation of a coherent body of law is in course of process; it is, at the moment, fluid not static, elusive not obvious; it repels any tendency to dogmatism; and, above all, the possible permutations of the questions that it raises are so numerous that the diligent investigator can seldom rest content with the solution that he proposes. Despite its value as a subject of academic study it is curiously neglected in the legal education of this country, a fact which is remarkable if regard is had to the number of different legal systems that the British Empire comprises. On the Continent and in the United States of America, Private International Law is one of the major subjects of study at the Universities but in England it cannot claim a professorship of its own and it forms only an insignificant part of the chief law examinations.
The purpose of this book, however, is not merely to indulge my own fancy, but to provide students with a shorter account of the subject than most of those already published. Further, my object has been not to remain satisfied with mere exposition but to approach the more controversial topics in a spirit of constructive criticism. There are many instances in which I have found it impossible to agree with the views of such great masters as Dicey and Westlake, and in which I have ventured, perhaps rashly, to suggest that the relevant authorities indicate a somewhat different principle, but in all such cases I have been careful to present the reader with what may be called the generally accepted textbook view of each matter. Some of the mild strictures contained in this book may not be well founded, but even so they can do little harm, for there is no doubt that the subject in general sorely needs criticism. It may be doubted, indeed, whether all is well with the English system of Private International Law. Instances are numerous in the last thirty years in which the Courts have adopted some plausible principle, without serious investigation of its merits and without considering what the effect will be if it is applied to a case with slightly different facts. There are other cases in which it is difficult to extract the ratio decidendi, or indeed any clear principle, from the judgments. Private International Law, in fact, presents a golden opportunity, perhaps the last opportunity, for the judiciary to show that a homogeneous and scientifically constructed body of law, suitable to the (p. viii) changing needs of society, can be evolved without the aid of the legislature, and, though the task must necessarily be performed by the judges, there seems no reason why the jurist should stand aside in cloistered inactivity.
The book contains no account of the law relating to British nationality. This is a subject which should be dealt with solely in works on Constitutional Law, for it clearly has little, if any, connexion with Private International Law. Whether a person is a national of a particular country is relevant neither to the question of choice of law, nor, it is submitted, for purposes of jurisdiction.
1 January 1935