Conflict of methods in private international law: A legal theory perspective

Conflict of laws, as a synonym for private international law, refers to rules addressing the problems that arise when a private law situation involves more than one country or jurisdiction. Conflict of laws therefore refers to the determination of the direct jurisdiction, the choice of law, and the effects of foreign judgments. This chapter challenges the concept of choice of law from the perspective provided by legal theory. The notion of choice of law is based traditionally on the assumption that every applicable law has the same structure and may apply the same legal method. However, as we analyse the present physiognomy of normative systems, we see that the set of norms includes not only rules but also principles and directives, which entail the need to apply different legal methods to achieve the correct resolution of the case in question. From a legal theory standpoint, this chapter will present the evolution of the legal systems - linked to the changing role of the state - and the relevant methods that may be in conflict and should be applied for the resolution of private international law cases.