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Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
1
4. Conflict of methods in Private International Law:
A legal theory perspective
María Carlota Ucín
1
https://orcid.org/0000-0002-5730-3649
4.1 Introduction
Conflict of laws, as a synonym for private international law, refers to the rules addressing
problems that arise when a private law situation involves more than one country or jurisdiction.
Therefore, conflict of laws refers to the determination of the direct jurisdiction, the choice of law,
and the effects of foreign judgments. The rules on direct jurisdiction determine the circumstances
under which the courts of a country are competent to decide a case that has a connection with
another country. Rules of choice of law are intended to determine the substantive rules to be
applied in order to decide the case. And finally, the rules on foreign judgments establish the
conditions under which a judgment given by a court of one country is to be recognised or enforced
in another one.
2
The title of this chapter plays with the concept of conflict of laws and uses it as a metaphor
to present the plurality of methods that may be in conflict in a private international law decision.
When private international scholars explain the fundamental concepts of the discipline, in
particular that of choice of law, they tend to assume that the concept of law is monolithic.
3
And
although this was probably accurate in the 19th or early 20th century, it is no longer the case. This
chapter challenges the concept of choice of law from the perspective provided by legal theory,
presenting the different types of norms that are part of our modern legal systems while arguing
that differentiated methods should be applied.
Actually, as we analyse the present physiognomy of normative systems, we observe that
norms adopt the form of rules, but they are also structured as principles and directives, which
1
Postdoctoral researcher working on the project ‘Affordable access to justice’ (subproject ‘From public to private
funding’), Project number VI.C.191.082 of the Vici Research Programme, which is financed by the Dutch Research
Council (NWO). Contact: ucin@law.eur.nl
2
Peter Stone, EU Private International Law (3rd edn, Elgar European Law 2014) 3.
3
As we do not find specific considerations about different types of norms to be applied, their differentiated structure,
and adequate legal methods, we can infer that the notion of choice of law is based on the assumption that every
applicable law has the same structure and may require the same legal method.
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
2
involve the need to balance those interests that are in conflict. This becomes more evident in
constitutionalised systems,
4
as the introduction of principles and directives provides wider margins
of discretion to be determined by the judges. Interestingly, the different types of norms have a
direct link to the role that the state adopts at a certain point.
At the same time, the changing role of the state is exactly parallel to the evolution of the law
registered at the constitutional level. While the protection of new social rights was taking place in
social constitutionalism, for example, the welfare state was oriented to provide its citizens with
concrete forms of social welfare.
5
These changes, affecting the constitutional norms as well as the
role of the state, have considerable impact on the shape of the law and its functioning. Accordingly,
the rules in the liberal state differ from the principles and directives, which set the goals to be
achieved in the social welfare state.
At the same time, some of the most recent private international cases relating to climate
change and business liability are experiencing a more recent shift in the role of courts. These cases
are an example of the need to consider new legal methods in order to proceed and to make
legitimate decisions. We can foresee the need to introduce the voices of affected citizens into the
courtrooms, allowing their interests to be expressed with regard to a decision on the case, as will
be presented below.
Despite the different theoretical perspectives and ongoing debates on the definition of law
and its delimitation of morality, I will avoid those discussions here and focus instead on the
evolution of the law in connection with the different roles of the state.
6
Congruently, this chapter
will connect the different types of norms to the changing role of the state, and will also introduce
those methods that could provide a strong and adequate justification with regard to court decisions.
To achieve this, the chapter is structured as follows. In Section 2, I present the advancement
in the understanding of the law and its functions in tandem with the evolving role of the state. In
Section 3, I distinguish between the different types of norms by introducing a definition of rule,
directive, and principles. In this section, I also present the different methods applicable by judges
in deciding on the varied array of possible cases being heard in the domain of private international
law. In Section 4, I end with several concluding remarks.
4.2 The different roles of the state and their reflection in the law
This chapter’s underlying assumption is that the law shapes its content in accordance with
the needs of society in a certain place and at a certain time, but it also echoes the role assumed by
4
Manuel Atienza & Francisco Laporta, ‘Imperio de la ley y constitucionalismo: Un diálogo entre Manuel Atienza y
Francisco Laporta’ [2009] 31 Isonomía 205; Guastini, Riccardo, Estudios de teoría constitucional (Distribuciones
Fontamara 2003); Josep Aguiló Regla, ‘Positivismo y Postpositivismo. Dos paradigmas jurídicos en pocas palabras’
[2007] DOXA, Cuadernos de Filosofía del Derecho, 665.
5
See Dieter Grimm, Constitutionalism: Past, present, and future (online edn, Oxford Academic, 20 Oct. 2016),
<https://doi.org/10.1093/acprof:oso/9780198766124.001.0001> accessed 31 March 2023; Robert Alexy, A theory of
constitutional rights (Oxford University Press 2002).
6
For a discussion on these topics, see for example Robert Alexy, El concepto y la naturaleza del derecho (Marcial
Pons 2008).
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
3
the state in that same space and period. This last characteristic allows us to find common trends
among countries whose governments have shaped the role of the state in line with global socio-
economic conditions, and thereby have also aligned their legal systems with those circumstances.
Consequently, we can illustrate the development in the role of the state and how it encompasses
the changing structures of the legal systems.
Because its focus was on guaranteeing a wide margin of autonomy for citizens and the
growth of the economy, the traditional liberal state required that the law reflected these aims. The
whole structure of the state had to be coherent with that design, and therefore this also had an
impact on the role of judges and their methods of applying the law. This alignment between the
role of the state and the shapes of law and its methods also applies to the welfare state,
characterised by an interventionist approach, inspired by Keynesian economic theory. This change
in the role of the state had an impact on the different levels of government, the competences of
which had to be adjusted to fulfil the intended distributive goals. At present, we are witnessing a
transition to a new, still not clearly defined, form of state, which we could describe as the post-
welfare state, as it results from the need to overcome the crisis involving its preceding form. This
last configuration of the state is having a significant impact in many areas. However, at the level
of most interest in this article, and as a result of the changing dynamics of the law, emphasis will
be placed on the redefinition of the role of private actors, civil society, and the courts. In the
following subsections, we will examine the characteristics of this evolution in more depth.
4.2.1 The liberal state
During the liberal – also called bourgeois – state,
7
one of the aims of the law and the
recognition of civil rights was to guarantee the adequate functioning of the market as the main
form of allocating scarce resources. In this context, civil law stated the preconditions for market
exchange among other issues, such as the regulation of relations between citizens arising from
inheritance law and the delimitation of property. In the classic legal order of the 19th century, the
distinction between private and public law was clearly stated. And while private law dealt with
the relations between private individuals, public law was concerned with the limitation and control
of the state in its use of power.
8
Worth noting, as will be explained later on, is that this distinction
is somehow currently in peril, while being under review and tending to blur in practice.
Private law, as it was perceived and taught, was abstract and general, in the sense that ‘it
applied to all cases and persons in an abstractly circumscribed category of social situations’.
9
7
Jürgen Habermas presents the evolution from the bourgeois state to the social welfare state, including two additional
phases in between: namely, the bourgeois constitutional state and the democratic constitutional state. When I refer in
the text to the ‘liberal state’, I include the first three stages: the pure bourgeois state, the bourgeois constitutional state,
and the democratic constitutional state. See ‘Law as medium and law as institution’ in Gunther Teubner (ed),
Dilemmas of law in the welfare state (WdeG 1986) 203.
8
Ulrich K. Preuss ‘The Concept of Rights and the Welfare State’ in Gunther Teubner (ed), Dilemmas of law in the
welfare state (WdeG 1986) 151, 157.
9
Idem 165. See also Jürgen Habermas, ‘Law as medium and law as institution’ cit, 205.
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
4
Therefore, the structure of norms as a conditional proposition in the form of a rule seemed
adequate and sufficient to understand the functioning of the law. Consequently, the role of the
judges and courts was symmetrically neutral and objective, as they were applying rules that were
formally equal for everyone and were the result of a democratic legislative procedure. As can be
seen, this view is identifiable with the canonical conception of law, which therefore excuses us
from providing more details in the description.
10
4.2.2 The welfare state
The structure of the law and its functions began to change as a result of the new roles of the
state, encompassed by the constitutional reforms that included new rights in accordance with
social constitutionalism.
11
In this context, as Jones points out, the welfare state was a result of the
prevailing opinion that the greater economic and social good of the larger number of people
required abandoning the ‘hands off’ approach and adopting public measures that were directly and
explicitly aimed at achieving a more general welfare.
12
This is congruent with an expansive
recognition of social rights seen as a condition to guarantee effective access to civil liberties.
Among these rights, for example, we may mention the rights to health, to education, to work, and
to receive some form of social security, all of which entail a degree of affirmative action developed
by the state.
13
It is difficult to provide one definition of the welfare state, as it may exist in many different
forms, depending on the country where the new policies are being adopted. However, if we focus
on its most common characteristics, we can arrive at a canonical definition by saying that in the
welfare state, the government assumes a more interventionist role in the economy pursuing the
social welfare of its citizens. According to Friedman, the welfare state implies the notion of a
liberal parliamentary – might also be read as democratic – state, committed to achieve a certain
degree of social engineering and economic planning.
14
Consequently, in this new form, we observe an augmented regulatory role of the
government, with a special emphasis on the economy and industry, social benefits, protection of
consumers in a massive production economy, enforcement of health and safety standards, and
10
See Hans Kelsen, Pure theory of law (First published 1934, Peter Smith Gloucester, Mass. 1989), Herbert L. A.
Hart, Essays in Jurisprudence and Philosophy (Oxford, 1983; online edn Oxford Academic, 22 Mar. 2012),
<https://doi.org/10.1093/acprof:oso/9780198253884.001.0001> accessed 1 April 2023.
11
See note 5.
12
Harry W. Jones, ‘The rule of law and the welfare state’ [1958] 58 (2) Columbia Law Review 143.
13
Bryant G. Garth & Mauro Cappelletti, ‘Access to justice: The newest wave in the worldwide movement to make
rights effective’ [1978] 27 Buffalo Law Review 181, 184; see also Mauro Cappelletti, ‘Access to justice and the
welfare state: An introduction’ in M. Cappelletti (ed), Access to justice and the welfare state (European University
Institute 1981) 20.
14
Lawrence M. Friedman, ‘Claims, disputes, conflicts and the modern welfare State’ in Mauro Cappelletti (ed) Access
to justice and the welfare state, (European University Institute 1981) 251; also from the same author, see ‘Legal culture
and the welfare state’ in Gunther Teubner (ed) Dilemmas of law in the welfare state (WdeG 1986) 13.
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
5
protection of weak groups against the more powerful.
15
Symmetrically, public officials were
granted increased power over individuals. The welfare state therefore had to rely on a large
bureaucratic structure – and thus also on the law – in order to design and apply the new social
policies involving labour, health, education, safety, and welfare. As was said, the welfare state
taxes, spends, and regulates to keep their redistributive programs going.
16
In this vein, the welfare state – also known as the welfare regulatory state – was defined as
a ‘giant machine of social control’, and this control was exercised through the law.
17
This last
characteristic had an impact on the structure of the law because it was serving new purposes. All
the new social programmes and public policies were required to set goals and to leave considerable
discretion to the authorities, sometimes including the judges. As becomes evident, this is
completely different from the way that the law operated in the liberal state in order to preserve the
autonomy of its citizens.
The law of the welfare state needed a wider range and more detail in its attempt to balance
the opposing interests of groups in society.
18
At the same time, the promotional goals of the law
manifested in the tendency to include programmatic statements in the legal system. This led to the
problem of enforceability of certain social benefits or social rights in the courts, which posed a
challenge to the traditional understanding of the rule of law.
19
At the same time, these new
statements affected the traditional roles of the courts and judges. While private law in the liberal
state was abstract and general, the law that emerged from the welfare state became selective,
concrete, and special, since it encountered the particularities of certain groups and their need of
protection and redistribution.
20
As regards the changing shape of the law in the welfare state, it is also relevant to observe
the structure of rights. Interestingly, Ulrich K. Preuss questions the concept of social rights in the
welfare state. In the traditional conception, civil rights protect the individual’s self-interest by
ensuring the efficient allocation of scarce resources through the market. The new structure of
rights, however, is the result of notions of redistribution and egalitarianism. To achieve these latter
purposes, the rights should have a constraining role in the market allocation of goods and services
15
See Harry Street, ‘Access to the legal system and the modern welfare state: A European report from the standpoint
of an administrative lawyer’ in Mauro Cappelletti (ed) Access to justice and the welfare state (European University
Institute 1981) 295.
16
Lawrence M. Friedman, ‘Claims, disputes, conflicts and the modern welfare state’ (see note 14) 251.
17
Lawrence M. Friedman, idem 13.
18
Harry W. Jones, ‘The rule of law and the welfare state’ [1958] 58-2 Columbia Law Review 2, 143, 144.
19
Aubert Vilhelm argues that these statutes are not applicable in adjudication, as they were not tailored to fulfil the
requirements of the rule of law. See ‘The rule of law and the promotional function of law in the welfare state’, in
Gunther Teubner (ed) Dilemmas of law in the welfare state (WdeG 1986) 28, 38-39. See also Harry W. Jones, ‘The
rule of law and the welfare state’ (see note 18). From a different angle, presenting several standards that allow the
adjudication of social rights, see Christian Courtis, ‘Standards to make ESC rights justiciable: A Summary
Exploration’, [2009] 4 ELR 379.
20
Ulrich K Preuss, ‘The concept of rights and the welfare state’, in Gunther Teubner (ed) Dilemmas of Law in the
Welfare State (WdeG 1986) 151, 165-166.
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
6
by protecting certain groups and their members, such as employees, consumers, tenants, and
others.
21
This characteristic illustrates the difference between traditional civil rights and new social
rights, while it also shows why new regulations in the welfare state have an impact on the classical
understanding and application of the law by the courts.
Therefore, as the new statutes and government decrees tended to be open and discretionary,
the formal application of the law in courtrooms began to be modified. In this vein, Shapiro argues
that courts in the United States have not only resolved individual conflicts but have also become
protagonist actors in crafting the law and public policies. In this context, litigation was working
not only as a settlement space but also as a mode of political action aimed at reshaping public
policy.
22
Moving into a legal theory perspective, it is worth mentioning that during the 1960s and
1970s certain studies began to question the dominant legal-dogmatic paradigm.
23
The new
alternative and critical view encountered, among other characteristics, the above-mentioned wide
margin of discretion given by the legal system to judges and other decision makers.
24
By
introducing distributive values into the civil law codes and laws, this new theoretical perspective
provided a fresh insight into how the law was operating.
The values of the welfare state were translated into material content described as protecting
the needs of certain groups as well as the particular needs of the individuals belonging to those
groups. This general protection and the discretion to rule the specific circumstances of the case
was possible owing to the openness of the normative clauses, which allowed courts this margin of
choice.
25
The new ‘materialised law’ requires a goal-oriented argumentation, based on principles
or directives rather than on a deductive, rule-oriented formal inference.
26
4.2.3 The post-welfare state
In addition to the aforementioned transitions, we need to present a recent trend taking place
– to different extents – in several western countries. After what has been called the crisis of the
welfare state,
27
many states have applied restructuring measures that have led to the privatisation
21
Idem 162-163.
22
See Martin Shapiro, ‘Access to the legal system and the modern welfare state: American continuities’, in Mauro
Cappelletti (ed) Access to justice and the welfare state (European University Institute 1981) 273, 291. It is also worth
mentioning the relevance of all the public interest cases developed in that country during the last half of the past
century under the influence of the civil rights movement.
23
Not only was this trend present in the Nordic countries, as Wilhelmsson states, but also in Italy as ‘l’uso alternativo
del diritto’, in Germany as the alternative jurisprudence, and in the critical legal studies in the United States of
America. See Thomas Wilhelmsson, Critical studies in private law (Kluwer Academic Publishers 1992) 2. The same
can be said about the scholarly work of what was termed postpostivism. See Manuel Atienza, Comentarios e
incitaciones. Una defensa del postpositivismo jurídico (Trotta 2019).
24
Thomas Wilhelmsson (cit. in note 23) 6.
25
Thomas Wilhelmsson (cit. in note 23) 72-75.
26
Thomas Wilhelmssom (cit. in note 23) 60. See also Section 3 in this chapter.
27
Klaus Viitanen, ‘The crisis of the welfare state, privatization and consumers’ access to justice’ in Thomas
Wilhelmsson & Samuli Hurri, From dissonance to sense: welfare state expectations, privatisation and private law
(Ashgate 1999) 549.
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
7
– or marketisation – of public services as well as to the deregulation of some branches of industry
and commerce. Examples include the decrease in state ownership through genuine privatisation,
the contraction of public services, and their delegation to private entities governed by market rules.
This reduction in social security has placed more responsibility on market-based solutions and on
the family.
28
It is also worth noting that all the stages of evolution presented here tend to overlap each
other, adding complexity to legal systems and to the manner in which they function. As a result,
we observe that the social needs that justified and explained the development of the various types
of social assistance in the welfare state have not disappeared, and they still need to receive some
level of response because in many cases they are recognised as rights at the constitutional level. In
this same vein, it has been stressed that even though the level of state-produced welfare services
is sinking, several basic welfare expectations remain in European societies because of their
adherence to welfarist ideals.
29
Under these circumstances, it is usual to start thinking about a combination of state resources
and the market, which together can provide the expected level of welfare. Ultimately, there is a
need to expand the space for intersections within public and private spheres.
30
And while the
market economy may learn how to construe the fulfilment of social and ecological goals, players
in the political arena must learn to use profit to reach these goals.
31
As Wilhelmsson suggests, the
interesting question is not whether we should have these kinds of mixes but what should the
proportions of the ingredients be.
32
This last trend can help to explain the blurred distinction between private and public spheres
as well as between private and public law. Therefore, not only do we have to consider that private
law added many political elements related to the ethos of the welfare state but we should also
acknowledge that these options are still being shaped. The boundaries of private action and the
role of the state are changing, and therefore the measures of control and protection may be imposed
not only on the state but also on large and multinational companies. Consequently, the
relationships between the state and private actors are taking on new forms and must be studied in
depth in the future.
28
Thomas Wilhelmsson, ‘Welfare state expectations, privatisation and private law’ in Thomas Wilhelmsson & Samuli
Hurri, From dissonance to sense: welfare state expectations, privatisation and private law (Ashgate 1999) 3, 4.
29
Thomas Wilhelmsson, ‘Private law 2000: small stories on morality through liability’ in Thomas Wilhelmsson &
Samuli Hurri, From dissonance to sense: welfare state expectations, privatisation and private law (Ashgate 1999)
221, 242.
30
Thomas Wilhelmsson, ‘Welfare state expectations, privatisation and private law’ (cite in note 28), 5.
31
Idem 9.
32
Idem 5. For a review on these new balances applied to access to justice, see Maria Carlota Ucín, ‘Revisiting the
concept of access to justice as a human right in the post-welfare state’ [2022] YSEC (in press); ‘How can business
best approach human rights in third-party litigation funding? Guidelines for future regulations’ (under review, ELR
2023).
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
8
As was stated, all the trends presented above work in an accumulative manner and also have
an impact in the private international law domain. This means that formal law, material law, and
more participative approaches are interplaying, and it is up to the judges’ expertise to decide which
method to apply according to the circumstances of the case under decision. At the same time,
while values of equality and redistribution permeated civil law and guided legal understanding in
the welfare state, we observe nowadays that human rights can represent a more general approach
as it becomes transversal to all fields of law. Therefore, we may state that the human rights
approach determines the duties of private actors in times when the distinction between private and
public international law tends to blur.
33
4.3 Beyond the choice of law: what types of norms and methods should be applied?
According to the previously discussed evolution of the legal systems, judges have an
extensive array of different norms to be applied when deciding private international law cases. As
a result, they may also need to apply specific legal methods.
34
I present below a few illustrative
categories that have emerged. Under each of them, the link between the different types of norms
and their correlative methods is illuminated.
4.3.1 The classical legal perspective
This first category is related to the norms that emerge from the classic functioning of private
law in the context of a liberal state. Consequently, these norms represent the classic private
international law perspective, and are illustrated in the most common examples provided by any
book on Private International Law. In these cases, applicable international law is a civil norm that
has the structure of a rule, as it is the result of the traditional understanding of the role of the state
and the law. Needless to say, judges who have had traditional legal training are fully equipped to
justify their decisions in these cases, as legal theory was developed in the image of this traditional
understanding of law. Therefore, judges may be well versed in the use of interpretative methods
and deductive reasoning to justify their decisions.
Although at present this is not the complete picture of private law – as was mentioned in the
previous section – the category of rules has not disappeared from the legal systems and is still at
the base of civil law. According to their structure, rules have a definitive content, which means
that they are either applicable to the analysed case or they are not. Accordingly, the content
expressed by a rule does not admit any kind of weighing or balance. In turn, when two or more
rules come into conflict, the judge may decide which is the applicable law by applying maxims
that determine which rule should have prevalence in the case. Examples of these maxims are ‘lex
33
See Patrick Kinsch, ‘Private International Law and Human Rights’ in this volume.
34
By ‘legal method’, I mean the right procedure to adequately justify the judicial decision. I follow here Aguiló
Regla’s definition, which departs from the traditional understanding of ‘legal method’ as a procedure to find ‘the right
answer’ to be applied to the case under judgment. See Josep Aguiló Regla, Teoría general de las fuentes del Derecho
(y del orden jurídico) (Ariel Derecho, 2008) 128-9; see also Kurt Siehr & Jürgen Basedow, ‘Private international law,
methods of’, Encyclopedia of Private International Law (Elgar Online 2017)
<https://doi.org/10.4337/9781782547235> accessed 23 March 2021.
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
9
posterior derogat legi priori’, ‘lex specialis derogat legi generali’, or ‘lex superior derogat
inferiori’.
35
Eventually, it could also happen that a rule collides with a principle, in which case the
prevalence of the principle forces the judge to introduce an exception into the rule.
36
Looking at their structure, we see that rules are conditional statements that correlate a set of
properties (a generic case) with a solution that is provided by the norm.
37
These rules can be
presented as ‘action rules’, as they are imperatives that define a course of action. In addition, we
can also present what are referred to as ‘goal-oriented rules’. These rules still have a correlation
between a certain generic case and a normative consequence, but the latter is not clearly defined
in the text of the rule. These rules set a goal to be achieved, so the judge will have discretion to
give content to this normative consequence by providing the concrete action that serves the
purpose of the rule.
38
The distinction presented above is shown in the following graphic.
According to Atienza and Ruiz Manero, both types of rules are peremptory and content-
independent reasons for action. Both base their authority on the fact that they were issued by a
competent authority, which means that – given the properties contained in the generic case – the
judge must apply the rule without considering any other reasons.
39
As well as this distinction between action rules and goal-oriented rules, worth noting is that
the decision made by the judge will, in both cases, be easily justified on the basis of a deductive
syllogism. Following the verification that the properties of the case contained in the rule are met,
the judge may then apply the consequences provided by the text of the rule. Despite the apparent
clarity of the rules, however, judges may be required to justify not only the given interpretation of
the text of the rule but also their use of the discretion given by the goal-oriented rules. To achieve
35
Robert Alexy, A theory of constitutional rights (Oxford 2002) 49.
36
Idem 59.
37
Manuel Atienza & Juan Ruiz Manero, A theory of legal sentences (Kluwer Academic Publishers 1998) 7.
38
Idem 13, where the authors refer to these as ‘end rules’.
39
Idem 12-13.
Published in: Conflict of methods in private international law: a legal theory perspective, in Kramer X.
& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
10
this, they may apply different interpretative methods and argumentative schemes oriented to
justify their conclusions.
40
4.3.2 The materialisation of private international law
In this subsection, we will analyse the materialisation of private law, which relates to the
above-mentioned stage of social constitutionalism and the parallel development of the welfare
state. However, it becomes relevant at this point to note that the materialisation of civil law is not
restricted to the legal reforms that took place in the second half of the 20th century. On the
contrary, as more recent instruments illustrate, the constitutionalisation of legal systems has led to
the introduction of constitutional principles into the civil codes, leading to a continuous process
of materialisation of private law.
41
This ongoing process results in the introduction of political aims into private law and civil
codes and affects the structure of the norms.
42
We have already stated that a rule can sometimes
impose on the judge the duty to reach a goal (goal-oriented rules). But in addition to these norms,
other instruments can serve – in an even more specific way – the same purpose of introducing a
particular type of protection for certain social groups, while giving judges the opportunity to
balance the rights in question in the conflict.
As was stated earlier, legal positivism is a model of and for a system of rules. And as
Dworkin argues, legal positivism misses the role of other norms, like standards such as principles
or policies.
43
This leads to the development of the post-positivist approach to legal theory, where
the author appears as one of its referents. According to Dworkin, we could present two
subcategories of standards (or principles). The principles (stricto sensu) comprise a standard to
be observed, not because it will advance a goal but because it is a requirement of justice or fairness
or some other dimension of morality. In turn, the concept of policy, which is a synonym for
directives, relates to those standards that state a goal to be reached, such as an improvement in the
economic, political, or social aspects of the given community.
44
40
In Alexy’s argumentative theory, we find all the argumentative schemes that judges should apply for this. See Robert
Alexy, A theory of Legal Argumentation. The theory or rational discourse as theory of legal justification (Ruth Adler
and Neil MacCormick tr, Clarendon Press 1989); Jerzy Wróblewski, Constitución y teoría general de la interpretación
jurídica (Azurza, Salaverría y Ezquiaga tr, Ediciones Olejnik 2018); Isabel Lifante Vidal, ‘Interpretación Jurídica’ in
Jorge Luis Fabra Zamora and Verónica Rodríguez Blanco (eds), Enciclopedia de Filosofía y Teoría del Derecho
(UNAM 2015) 1349.
41
See María Carlota Ucín, ‘Las instrucciones de aplicación del Código Civil y Comercial. Un análisis interpretativo
del artículo 3º’ [2016] 15 Derecho y Ciencias Sociales, 96. Also available online
<https://revistas.unlp.edu.ar/dcs/article/view/2895 > accessed 18 April 2023.
42
Diego M. Papayannis analyses how private law can contribute to the implementation of public policies, arguing that
the reasons given to support the idea that private law is politically neutral are prejudices. See ‘El derecho privado
como instrumento de política pública’, [2021] 2 Ars Interpretandi, 57.
43
Ronald Dworkin, Taking rights seriously (Harvard University Press 1977) 22.
44
Ibídem.
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& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
11
This same distinction can be found in the works of Atienza and Ruiz Manero.
45
The authors
argue that the principles state ‘final reasons’ in the sense that they protect certain values and try
to prevent the pursuit of any other interests from possibly harming those values. Directives, in
contrast, allow the judge to enquire into the suitability of the actions in order to reach the intended
goal as well as to respect other values protected by the legal system.
46
According to Atienza and Ruiz Manero, there is also a difference in the structure of both
legal sentences. In the case of the principles, the conditions of application of the norm (i.e. when
it should be applied) are undetermined, open to be decided by the judge, while the legal
consequences are precisely stated in the text of the norm. In the directives, however, both elements
(the conditions and the consequences) are open to the discretion of the judges.
47
The two sub-
categories presented are illustrated in the following scheme.
We stated earlier that the legislator could also introduce the material protection of certain
groups into the civil system by introducing rules that are goal oriented. Atienza and Ruiz Manero
also distinguish these rules from the directives. The authors explain that although both rules and
directives have a goal to be achieved, and some discretion is given to the judge on the means to
reach that goal, the directives are more undetermined. Indeed, the directives do not even set the
conditions under which the judge should pursue the goal expressed in the norm. They only set a
goal, but the factual conditions and the means to achieve that goal are left up to the judge’s
discretion.
48
45
Manuel Atienza & Juan Ruiz Manero, A theory of legal sentences, cit. 7-12.
46
Idem 17-18. See also Josep Aguiló Regla, Teoría general de las fuentes del Derecho (y del orden jurídico), cit. 135-
6.
47
Manuel Atienza & Juan Ruiz Manero, A theory of legal sentences, cit. 8-12.
48
Idem 12.
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& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
12
The scheme below illustrates the differences.
Returning to the definition of the principles lato sensu, we can say that – according to
Dworkin – they have a dimension of weight that rules do not have. This dimension is intrinsically
related to the balancing test and the ‘proportionality principle’. As was explained in the previous
section, the conflict of rules is resolved by declaring the invalidity of one of the conflicting rules.
In the case of a conflict of principles, we should state the relative weight of the principles in
question and define a prevalence according to the circumstances of the case.
49
Worth noting is that
the particular circumstances in which the principles have to be applied – as they are assessed in
the judicial reasoning – are extremely relevant, because the prevalence of one of the principles
over the other is never absolute but contextual.
50
Atienza and Ruiz Manero suggest that both principles and directives require some balancing,
but argue that they may use different reasoning methods to evaluate the facts and to justify the
final decision. Other authors such as Alexy do not distinguish clearly between principles and
directives (or policies) and their methods. For the purposes of this chapter, it is enough to introduce
briefly the balancing test in a pure form. However, where appropriate I will indicate the
adjustments suggested by the authors that support the distinction.
According to Alexy, principles lato sensu are norms that work as ‘optimization
requirements, characterized by the fact that they can be satisfied to varying degrees, and that the
appropriate degree of satisfaction depends not only on what is factually possible but also on what
is legally possible.’
51
In the end, what is legally possible is determined by the balance between
opposing principles and the content of the applicable rules.
49
Ronald Dworkin, Taking rights seriously, cit. 26.
50
Robert Alexy, A theory of constitutional rights, cit. 50.
51
Idem 47-48. In this sense, according to this author, principles represent reasons that can be displaced by other
reasons; they are prima facie requirements, 57.
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& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
p 55
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Therefore, the nature of principles as optimisation requirements implies the principle of
proportionality (lato sensu), which operates as a reasoning scheme.
52
The principle of
proportionality comprises three sub-principles: suitability, necessity, and proportionality stricto
sensu, all of which integrate the balancing test.
53
Following the steps of this argumentative
scheme, we can provide an adequate justification regarding the rule of prevalence in which the
evaluation ends. We briefly present its elements below.
The sub-principle of suitability requires that the means to be applied are adequate to pursue
the goal established by the principle. Only when this check is approved is it possible to consider
the following subprinciple. The necessity sub-principle implies that the least intrusive means are
to be used. In other words, the solution to be implemented is the least intrusive way to give
prevalence to one principle over the other. Alexy provides an example from the German
Constitutional Court case law, according to which this subprinciple requires ‘…that the end cannot
equally well be achieved by the use of other means least burdensome to the individual’.
54
Finally, as the result of weighing the conflicting principles, the sub-principle of
proportionality (stricto sensu) refers to the balancing requirement itself. According to Alexy’s law
of competing principles, this prevalence is expressed in the formulation of a rule that is used to
decide the case, and it derives from the consideration of that prevalence in the given circumstances.
This rule will then state the factual conditions (c) and the legal consequences applicable to decide
the case. Being the factual conditions, the circumstances under which one of the principles
prevails, and the legal consequences those stated in the text of the norm of the prevailing principle.
In other words, the balancing test concludes in the judicial formulation of a rule that gives
concrete content to the undetermined conditions of application of the prevailing principle while
making operative the legal consequences stated in the same principle. The law of competing
principles can be formulated as follows: ‘The circumstances under which a principle takes
precedence over another constitute the conditions of a rule which has the same legal consequences
as the principle taking precedence.’
55
The result of the balancing test (i.e. proportionality principle lato sensu) is illustrated below.
52
Idem 66
53
Ibídem.
54
Idem 68.
55
Idem 54.
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p 55
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According to authors who declare a difference between principles and directives, there is a
slight variation in this procedure depending on the standard to be applied. In the case of balancing
two principles, the judge may state the generic conditions when one principle prevails over the
other. When having to apply a directive, however, the judge must consider not only the adequacy
of the policy or behaviour required to reach the intended goal but also its compatibility with other
principles and values.
56
At this stage, it goes without saying that this scheme is very different from the deductive
syllogism that it is enough to apply (and adequately justify) a rule by the judge.
57
However, the
reader might reasonably ask at this point why all these concepts are needed in a chapter on private
international law. The reason why I present – at least briefly – all these elements of legal theory is
because I find it necessary to create a bridge between disciplines. In doing so, it is my intention to
help judges who are faced with concrete dilemmas and novel challenges that derive from the
materialisation of private law. This attempt to connect disciplines and topics is aimed at providing
a theoretical framework that can widen the spectrum of applicable legal methods.
58
By understanding the way in which the law functions – as a result of the changing role of
the state and the impact of the constitutionalisation of legal systems – judges may be better
equipped to perform their roles. At present, when the distinctions between private and public
values tend to blur, it is also fundamental, when applying foreign norms, to understand the values
that support them, even if they differ from the political values of the forum.
59
56
See Atienza & Ruiz Manero, cit. 14-15.
57
For a comparison of these two methods, see Robert Alexy, ‘On balancing and subsumption. A structural
comparison’ [2003] 16.4 Ratio Juris 433.
58
At this point, this chapter is in dialogue with the work of Christopher A. Whytock (see ‘Politics and Private
International Law’ in this volume). From a different perspective but still interconnected, Whytock examines how
private international law is political in its content and functions as well as how scholars should generate new
knowledge and insights regarding this field of law.
59
Tackling the judicial decision from the environmental law perspective, Tiina Paloniitty argues the need to consider
protective and ecological aims within environmental judicial decision making. Interestingly, the author delves into the
need to provide new elements with regard to judges introducing ecological aims (the ‘aim-setting section’ of certain
environmental laws) into the judicial decision. See ‘Taking aims seriously – how legal ecology affects judicial
decision-making’ [2015] 6.1 JHRE 55.
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& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
Regulation, Research and Teaching, Handbooks of Research Methods in Law series, Elgar Publishing,
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Consequently, when faced with applying a foreign principle, the judge may need to apply a
more sophisticated argument in order to justify the choice and its compatibility with other
conflicting principles. Therefore, giving the appropriate justification for this decision could appear
to be a hard task. When determining the ‘best interests of a child’, for example, it is relevant to
consider the many contextual elements that are involved in the conflict between the parents’
interests and those of the children.
This topic touches on the more general concept of public policy (public ordre),
60
and
therefore the need to provide adequate justification for the value-based option becomes more
urgent.
61
The same can be said about the determination of the concept of ‘vulnerable group of
consumers’ in foreign law. If more sophisticated legal methods are not applied when judges decide
the conflict of principles or even the application of a goal-oriented rule, this could lead to poorly
justified decisions, which in turn affect the due process of law and, ultimately, the public order.
In addition to the stressed importance of using adequate structures to justify decisions
according to the type of norm that results in being applicable to the case, the importance of
introducing the human rights perspective also needs to be mentioned. Human rights could be
considered core operative values to be applied in the balance test no matter which rules or
principles are given by foreign law. In this regard, Patrick Kinsch – in this volume – argues that
the forum’s legal binding of human rights takes precedence over the rules of private law, and
should also have the same prevalence over the applicable rules of foreign law,
62
which result from
the choice of law. This statement may sound revolutionary but it is in line with the trends presented
in the previous sections, in particular with the constitutionalisation of the legal orders. At the
concrete level, Kinsch suggests that this prevalence could be made operative by applying the
norms of binding international treaties, the legal constitution of the forum, or even by applying
the standard of public policy as an instrument to provide effectiveness to human rights.
63
4.3.3 The participatory element and the new role of the courts
Before closing, it is necessary to provide at least a brief presentation of a more recent trend
that could affect the role of the courts in private international cases. We present here a third layer,
which overlaps with the previous two and shapes the dynamics of the law. As was described
60
Public law reflects a common law origin, while ordre public is linked to civil law and has a statutory source. Public
policy allows the rejection of foreign laws when they are repugnant to the forum’s sense of morality and decency, in
order to prevent injustice in the resolution of the case and to affect choice of law. See Kent Murphy, ‘The Traditional
View of Public Policy and Ordre Public in Private International Law’, [1981] 11 Ga. J. Int’l & Compar. L. 591, 607.
61
Again, showing the political dimension of private international law, see Christopher A. Whytock in this volume
(Section 2.2.2). For a discussion of public policy and its importance in private international law decisions, see Alex
Mills, ‘The Dimensions of Public Policy in Private International Law’ [2008] 4 JPIL 201
62
See Patrick Kinsch, ‘Private International Law and Human Rights’ in this volume (Section 3.3.1). In the same vein,
Mathijs Ten Wolde and Patrick Kinsch, ‘Human rights and private international law’, in Encyclopedia of Private
International Law, (Elgar Online, 2017) <https://doi.org/10.4337/9781782547235> accessed 23 March 2021, 880,
884-886.
63
Ibídem.
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& Carballo Piñeiro L. (Editors), Research Methods in Private International Law. A Handbook on
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earlier, the new role of the post-welfare state lies in allowing the greater participation of private
actors who perform relevant roles in the fulfilment of public aims. Taking this shift into account,
it becomes relevant to reconsider as well the procedures that could guarantee the greater
participation of affected parties in the decision-making processes. Looking in depth at the judicial
decisions, we should then encounter the intervention of affected parties either in the role of
claimants or defendants as well as in other innovative roles.
At this stage, it is necessary to stress the importance of overcoming at least some of the
paternalistic pitfalls attributed to the welfare state. This could be done by allowing the parties
concerned to define their own interests instead of them being defined by the judge or another
public authority. This applies with regard to all the open standards that are provided by the law,
which declare the protection of certain groups, like children, women, or the elderly.
64
Indeed, in
many cases the decision regarding a private international case can result in a conflict between the
interests of the parents and those of the child or children. Giving content to the best interests of
the children becomes difficult if we want to avoid a paternalistic view. It is useful then to refine
the argumentative methods by means of the balancing test in order to illustrate the judge’s
reasoning in the case. At the same time, however, it would be essential to listen to the children
and include their feelings and perspectives in that deliberation process.
65
This participatory element leads to the need to make it possible for affected parties to
participate in the procedures, even if they are not originally parties in the case. To illustrate this
with an example that could touch on private international law, we can think of public interest cases
related to climate change litigation. We may also consider those cases related to natural damages
occurring in local communities where multinational companies are engaged in extractive
activities. In these cases, it becomes urgent to give affected parties room to participate and to be
able to express their needs even if they are not formally part of the procedures as claimants.
66
A great deal of experience has been had in the development of participation in the courts in
public interest litigation cases.
67
However, in the context of private international law cases, we
have no guarantees that the judge of the jurisdiction in charge will follow this trend in deciding
the case in question. In line with these arguments, Philippe Sands argues the importance of
introducing the voice of the stakeholders – including corporations and NGOs – into the procedures
related to climate change litigation, particularly when he analyses the role of the International
64
In this same vein, see Jürgen Habermas, ‘Law as medium and law as institution’, cit. 215-220.
65
Accordingly, Habermas, note 65, and Thomas Wilhelmsson, Critical studies in private law, cit. 62-63.
66
See in particular César Rodríguez-Garavito & Carlos Baquero-Díaz, Carlos, ‘Reframing Indigenous Rights: The
Right to Consultation and the Rights of Nature and Future Generations in the Sarayaku Legal Mobilization’ in Gráinne
de Búrca (ed), Legal Mobilization for Human Rights (Oxford Univ. Press 2022), also available at SSRN:
<https://ssrn.com/abstract=4049329> accessed 19 April 2023 as well as Conflictos socioambientales en America
Latina (Siglo XXI Editores, 2020).
67
See María Carlota Ucín, Juicio a la desigualdad. La defensa de los derechos sociales a través del proceso (Marcial
Pons 2021).
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Court of Justice in these cases.
68
Considerably more reflection is called for. The goal of this
chapter has been simply to shed light on an interesting field of study for private international law
scholars while introducing useful bridges for judges and practitioners. It is hoped that this modest
goal has been achieved.
4.4 Conclusions
I started this chapter by introducing an analogy, represented by the idea of conflicts of
methods. This expression was compared to the concept of private international law in the common
law systems given as conflict of laws. Therefore, the main goal of this article has been to challenge
the traditional understanding of the concept of conflict of laws, and in particular the notion of
choice of law, by adding other queries such as What type of norm should we apply? Which legal
method is most appropriate? And ultimately, how should judges perform their role?
In understanding the relationship between the forms of law, the different roles of the state,
and the evolution of the constitutionalisation of legal systems, we are able to handle the complexity
of norms that can present not only the structure of conditional imperatives like rules, but also the
structure of principles and directives, which are goal oriented and based on a wide margin of
discretion being given to the judges.
From that perspective, this chapter suggests that private international law should consider
the need to implement different legal methods according to the specificity of the norms. In
accordance with the relationship between the structure of the norms and the goals directly aimed
at by the state, the judge may apply the subsumption or more sophisticated legal arguments.
Moreover, the judges in some cases should also consider the necessity of listening to the affected
parties in order to better protect their rights.
68
See ‘Climate change and the rule of law’, JEL [2016] 28-1 Oxford University Press 19.
