International Private Law Ontology

Author: Jiang Xinmiao
Publisher:
Publish Date: 2005-07-06
Features: Adjusting the legal department of private international civil and commercial legal relations, which is traditionally referred to as "Private International Law" in the civil law system, while the common law system in the United Kingdom and the United States more often calls it "Conflict of Laws." It is particularly interesting that the term "Conflict of Laws" was first proposed by the Dutch scholar Christian Rodenburg in 1653 and did not gain traction in civil law countries, but instead became widely popular in common law countries. Another historical joke is even more thought-provoking: the concept of "Private International Law" was not originally coined by scholars in civil law countries, but rather by the American founder of Private International Law, Joseph Story, who first used it in 1834. It is precisely from this interesting phenomenon in the two legal systems that some intrinsic essence can be discovered. Therefore, tracing back to the roots is the responsibility of scholars of Private International Law.
The great Ming Dynasty scholar Wang Shouren once pointed out in his Record of Transmission (Volume 1): "Learning must have a foundation, and effort must be made from the foundation, gradually advancing step by step." Professor Jiang Xinmiao followed this ancient teaching by conducting in-depth research on the fundamental issues of Private International Law, which naturally holds historical value and practical significance. It can be said that among the large, medium, and small scholars of Private International Law in China, they must share a common foundation; otherwise, they do not truly belong to the field of Private International Law. Over the years, the field of Private International Law in China has gradually divided into three schools of thought. Some scholars advocate for a comprehensive "big Private International Law" theory system and legislative framework, while others adhere to the traditional view of "small Private International Law." There is also a moderate approach known as "Chinese Private International Law." Whether it is "big Private International Law," "small Private International Law," or "Chinese Private International Law," they all face a fundamental starting point. Once these fundamental issues of Private International Law are abandoned, it may no longer be considered Private International Law.
The translation of the Great Day Sutra (Volume 7) by Tang Shuwen and Yi Hong warns believers: "One body and two bodies, to countless bodies, all enter the essence." In fact, both the introspection and externalization of Private International Law involve fundamental issues. Without the essence of Private International Law, its introspection may become aimless; without the essence of Private International Law, its externalization becomes rootless and baseless.
Professor Han Depu once used a famous analogy to describe Private International Law: "Private International Law is like an airplane," comparing its structure to the "body of the airplane" and its "wings." Therefore, when conducting research on Private International Law, one must accurately identify the "body" of this airplane. In recent years, while exploring the trend of convergence in Private International Law, I have also found that whether the convergence is reflected in direct unification of Private International Law among countries, meaning the international community formulates unified substantive laws, procedural laws, and conflict laws through treaties, or in the adoption of identical or similar rules or principles in domestic legislation, there must be a common essence of convergence. As long as international civil and commercial relationships exist and develop, the Private International Law that regulates such social relationships will inevitably continue to exist and develop. Moreover, with the advancement of the times, future social civil and commercial relationships will become even more developed, and the status and role of Private International Law in both domestic and international legal systems will continue to rise. The key lies in the fact that Private International Law must evolve with the times, allowing its nature, functions, goals, and institutions to change accordingly.
As the new goals of Private International Law are established, its functions must also shift from resolving legal conflicts in individual cases to constructing a new civil and commercial legal order suitable for the operation of the international market, thereby fulfilling its significant mission under the growing global or holistic consciousness of humanity.
Precisely because it aims to construct a new international civil and commercial legal order, the scope of Private International Law will also further break through traditional views. The scope of Private International Law has long been an unresolved issue in the field, with the debate focusing on whether its main norms include unified substantive law norms. We have long pointed out that when discussing the scope of Private International Law, two issues must be grasped: first, the core issue of legal conflicts, and second, the need for a developmental perspective. Thus, although the absence of conflict law means the absence of Private International Law, the development of Private International Law today no longer allows the conclusion that it is merely or only conflict law. This conclusion cannot truly develop Private International Law into a comprehensive and effective legal department that regulates international civil and commercial relationships, nor can it allow it to evolve with the development of international civil and commercial life. Proven by facts, this way of thinking is scientific.
Private International Law has developed along with the need to resolve legal conflicts between countries, with its fundamental purpose being to eliminate conflicts in international civil and commercial laws that regulate such relationships. Therefore, any legal norms related to resolving legal conflicts between countries have no reason to be excluded from the scope of Private International Law. Moreover, we must adopt a developmental perspective on any matter. Therefore, in light of the process and outcomes of the convergence of Private International Law since the 20th century, the scope of Private International Law will inevitably include unified conflict law and unified substantive law. To a certain extent, unified substantive law is even more in line with the essence of Private International Law.
With the further convergence of Private International Law in the future, its scope will gradually shift toward unified substantive law, while the role and status of unified conflict law and domestic conflict laws of various countries will gradually decline, becoming supplementary norms.
Therefore, in the process of pursuing the convergence of Private International Law, it is also very necessary to deeply explore the essence of convergence. When Jiang Xinmiao studied for his Ph.D. in Private International Law under my guidance, he was always intellectually active and diligent in research, often coming up with new ideas and unique insights. However, he was naturally reserved and unassuming. This book reflects, to some extent, his rigorous academic attitude. On this occasion of publication, I specially recommend this work to the broader field of international law.