Husserl Ordre Public

Public Policy and Ordre Public
Author(s): Gerhart Husserl

Source: Virginia Law Review, Vol. 25, No. 1 (Nov., 1938), pp. 37-67
Published by: Virginia Law Review
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PUBLIC POLICY AND ORDRE PUBLIC 37
PUBLIC POLICY AND ORDRE PUBLIC
A and B, French lawyers domiciled in Marseille, are spend-

ing their summer vacation in Monte Carlo. A lends money
to B to gamble at the Casino in Monte Carlo. It is agreed be-
tween A and B that the law of the principality of Monaco shall
apply. Gambling is permitted by the law of Monaco whereas
French law does not grant any cause of action for a gambling
debt (French Civil Code Art. 1965). A brings suit against B
in a French court. According to the French law of conflict
of laws the law of Monaco will govern the case. The court will
not, however, give judgment for the plaintiff. Although there is
some difference of opinion on this point anmong French au-
thorities, the idea seems to prevail that the contract between A
and B would not be enforced, since the enforcement of a gam-
bling debt is repugnant to French "ordre public" as provided in
Art. 1965 of the French Code.'
In fact, the Continental lawyer speaks of ordre public (ital.
ordine pubblico, span. orden puiblico) where in the Anglo-Amer-
ican law of conflict of laws the term public policy is used.
The term "ordre public" has become naturalized in all civil law
states, including the European countries of Germanic tongue.2
See 2 PILLET, TRAITE PRATIQUE DE DROIT INTRNATIONAL PRIVf (1924)

240; SURVILL, COURS ELEMENTAIRF DE DROIT INMRNATIONAL PRIVEf (7th
ed. 1925) No. 248. The opposite view has been taken in England. See Saxby
v. Fulton, (1909) 2 K. B. 208, 227, 232.
2 The actual German translation of ordre public is "oeffentliche Ordnung."
But this expression has not gained a footing in the legal language of the Ger-
man speaking countries, although it occurs sporadically in Continental stat-
utes dealing with problems of Private International Law, as e. g. in ? 81,
No. 4 of the Austrian Executionsordn~ung (1896), and ? 1044, No. 2 of the
German Zivilprozessordnung (amended version of 1930). The German
Civil Code of 1896 deals with ordre public in Art. 30 of its Introductory
Act. Whereas in the preliminary drafts the expression "oeffentliche Ord-
nung" had been used, the Code itself avoids the phrase and states that "the
application of a foreign law is precluded if such application would be op-
posed to good morals or the purpose of a German law." Cf. Art. 38 of the
38 VIRGINIA LAW REVIEW
In the latter countries legal writers and the courts at the same
time use the word "Vorbehaltsklausel"-clause of reservation,
an expression introduced into the language of Private Interna-
tional Law by Ernst Zitelmann. Both terms in fact mean the
same thing, though the latter term implies a certain shifting of
the accent in so far as the function of this remedv is concerned.4
The first European Code to adopt the expression ordre piublic
was the French Civil Code (Art. 6),5 from which it was adopted
into the codes of a number of other states of the Romanic group.
Art. 6 of the French Code is not, however, concerned with prob-
lems of Private International Law. By laws which affect the
ordre public it understands such domestic rules as have the char-
acter of ius cogens, i. e. compulsory laws which impose a restric-
tion upon the autonomy of will of individuals and cannot be der-
ogated from by agreements of private persons. To designate
such rules of law, the Swiss writer Charles Brocher 6 has sug-
gested the expression "ordre public interne", whereas the ordre
public as an institution of Private International Law is to be
called "ordre public international". This terminology, as well as
the underlying legal distinction has been adopted by many Con-
tinental writers and persists nowadays in the legal language of
various countries. Thus, in the Codigo Bustarrmente-a Code of
Private International Law by the Cuban lawyer Antonio Sanchez
de Bustamente y Sirven, adopted on February 13, 1928 bv the
VIth Panamerican Conference-we come upon a general classi-
fication of laws according to which each rule of law is assigned to
one of three categories: personal laws or laws of ordre public in-
Polish Statute on Private International Law, August 2, 1926. RtvuE Dr

DROIT INT. PRivt, 1928, p. 196.
8 1 INTERNATIONALES PRIVATRECHT (1898) 317.
4 See below, p. 55.
6 Article 6 reads: "Private agreements cannot derogate from laws which
affect ordre public and good morals." Cf. also FRENCH CiviL CoDE Art.
1133; SCHWtIZERISCHXS OBIIGATIONZNRECHT (1911) Art. 19.
The French theory of ordre public, to be sure, took as its starting point
another provision of the Civil Code, namely Art. 3, ? 1: "The laws of po-
lice and public security are binding upon all those who live on the territory."
The circumscribed field of operation of the provision as it stands, has since
been greatly extended by French courts; see below, pp. 51, 59 ff.
1 COURS DE DROIT INTERNATIONAL PRIVE (1882) pp. 22 if.
terne, territorial laws or laws of ordre pu

tary laws or laws of ordre public prizC'.78
Brocher's terminology has recently been subjected to sharp
criticism.9 It is especially the expression "ordre public interna-
tional" which meets with strong objections. As a matter of fact,
the use of the word "international" seems to be rather awkward
in this connection, since the specific aim of the operation of ordre
public in the field of Private International Law is quite obviously
to assert the fundamental principles of the national, that is the
domestic law of the forum, as against contradictory legal ideas
and principles of the foreign law.10 The so-called ordre public
international is in its very nature "essentially national".1't
Throughout this paper the expression ordre public-without ap-
position of the adjective "international"-is used in the sense of
a remedy of Private International Law.
See 1 BUSTAMENE, DERECHO INTtERNACIONAL PRIVADO (2d ed. 1934)

pp. 157 ff.; B. Nolde, La Codification du Droit Int. Privi ACADEMIE DE DROIT
INTERNATIONAL, RECUEIL DES COURS, 1936, Vol. 1, pp. 360 if.; also M. GuTz-
WILLER, INTERNATIONALPRIVATRECHT (STAMMLER, DAS GESAmTE DEUTSCHE
RECHT (1930) p. 1575.
s The Italian Civil Code of 1865 should be mentioned in this connection.
In the concluding article of the general rules dealing with Private Interna-
tional Law (the work of Mancini, cf. below, p. 19)-Art. 6 to 12 of the pro-
visions introductory to the Italian Civil Code--the compulsory laws of Italy
and ordre public are juxtaposed. Art. 12 reads:
"Notwithstanding the provisions of the preceding articles in no case shall
the laws and legal acts of a foreign country or foreign judgments or the acts
or agreements of private individuals derogate either from the compulsory
laws of the kingdom concerned with persons, property or acts, or from the
laws affecting in any fashion public order and bonos mores."
See J. P. NIBOYtET, MANUEL DE DROIr INT. PRIVk (1928) 548; also the
earlier criticism by F. KAHN, LEHRE VOM ORDwR PUBLIC (1898), reprinted
in 1 F. KAHN, ABHANDLUNGEN ZUM INTERNATIONALEN PRIVATRECHT (ed. by
0. Lenel and H. Lewald) (1928) p. 201.
Cf. AUBRY, CLUNET'S JOURNAL DU DROIT INT. (1900) p. 600n and the
remarks on the concept of "ordre public international," made by J. VALERY,
REVUE DE DROIT INT. ET DE LtGISLATION COMPARE (1934) p. 195. See also
note 63 infra.
" NIBMOYET, loc. cit. supra note 9; P. Solodovnikoff, La Notion de L'ordre
Public en Droit Int. Prive Relative au Droit de la Famille (These pour le
doctorat, Paris, 1936) p. 12, describes the ordre public as "la manifestation
de la puissance nationale, de la souverainet6 nationale de l'Etat." See for
further references Th. H. Healy, Theorie generate de l'ordre public ACADE-
MIE, DE DR. INT., RECUEIL DES COURS, 1925, Vol. 4, p. 476.
The concepts of public policy and of ordre public do not fully

coincide. Everyone who will take the trouble to study the perti-
nent literature and authorities on the European continent, in Eng-
land and America, will see that. What do the two concepts
have in common, and what is it that differentiates the ordre pub-
lic from public policy, giving it its peculiar certinental stamp?
One might feel tempted to analyze each concept with the ut-
most care so that an exact definition might be formulated and
used in the comparison of public policy and ordre public. Such
an undertaking, however, is doomed to fail.12 "The term 'pub-
lic policy' is frequently used in a very vague, loose or inaccurate
sense." 13 The same is true of the term ordre public, which is.
as vague as its English equivalent.14 The repeated stubborn ef-
forts, made by Continental writers,15 to reduce the contents of
ordre public to a clearly defined category 16 have been altogether
n "You cannot lay down any definition of the term 'public policy,' or say
it comprises such and such a proposition, and does not comprise such and such
another:" Besarqt v. Wood, 12 Ch. D. 605, 620 (1879); cf. Davies v. Da-
vies, 36 Ch. D. 359, 364 (1887).
' People v. Hawkins, 157 N. Y. 1, 12, 51 N. E. 257 (1898), frequently re-
ferred to in the sequel. The same complaint has been made in England again
and again. See the several cases cited in Fender v. St. Johq-Mildway, (1938)
A. C. 1, 10 if.
G. C. CHESHIRX, PRIVATE INT. LAW (2d ed. 1938) p. 137. Hardly a Con-
tinentat writer concerned with the problems of ordre public fails to point out
the nebulousness of this term. Thus, e. g., 1 F. KAHN, op. cit. supra note 9,
p. 200, note 73; P. Fzwozzi, CLUNET'S JOURNAL (1897) p. 72; A. Wxiss,
MANUEL Dx DR. INT. PRIVA (2d ed. 1899) p. 361; 1 P. ARMINJON, PRACIS DE
DR. INT. PR. (2d ed. 1927) p. 198; G. WALKER, INT. PRIVATRmzc (5th ed.
1934) p. 282, citing ZITXLMANN, Op. cit. supra note 3, p. 319. Earlier cita-
tiorqs may be found in v. BAR, THEORY AND PRACTICE O PR. INT. LAW (2d
ed. translated by G. R. Gillepsie 1892) p. 71, n. 5. See also P. Louis-Lucas.
Remarques sur L'ordre Public RhvuE DE DR. INT. PR., 1933, p. 393; and
A. SCRIMALI, CONMrLTI INTERREGIONALI Di LEGxI NEL DIR. INT. (1935) p.
293.
' A compilation of the various attempts to define a priori the laws of ordre
public is to be found in Healy, supra note 11, at pp. 466 ff.
' Since the eighties of the last century a great number of monographs on
ordre public, some of which are comprehensive treaties, have appeared; see
the bibliography given by 10 RPERTOIRE DE DROIT INTERNATIONAL (1931).
(sub verbo "Ordre Public") p. 92; and GUTZWILLER, op. cit. supra note 7,
p. 1572. Some references may also be found in 1 BtAL, CONrLiCT or LAWS
(1916) ? 59, n. 2.
The three most recent French monographs on this topic, of which I know,
unsuccessful. We must not let that discourage us. Ordre pub-

lic and public policy belong to the body of legal phenomena
which cannot be construed under a rigid formula. In America
no serious attempt has ever been made "to reduce the cases fall-
ing within this doctrine to any system of order".t7 If anywhere,
then, in the field of Private International Law, a purely concep-
tual approach to legal problems through the fraining of general
dagmas by logical deduction, has proved to be a failure.1s
Ordre public is not some mysterious entity which lives invisibly
in the limbo of legal concepts. Ordre public and public policy are
precisely what their specific function is in an individual system
of Conflict of Laws. The true meaning of ordre public and
public policy is revealed to us by its operation in legal reality, as
evidenced by the decisions of the courts, statutory enactments
are M. Moldovan, L'ordre Public en Droit Int. Pr. (These, Paris, 1933)
W. Lienhard, Le Role et la Valeur de L'ordre Public en Dr. Pr. Interne et
en Dr. Pr. International (These, Dijon, 1934); and P. Solodovnikoif, loc.
cit. supra note 11.
In addition this subject is as a rule extensively dealt with in Continental
textbooks on Priv. Iqt. Law. Among the best treatises on Ordre Public along
the lines of comparative law, R. AGO, TEORIA DEL DIR. INTERNAZIONALE PRI-
VATO (STUDI Di DIR. PUBLICO, vol. 3 1934) ch. 6, pp. 273 ff., is to be reckoned;
this includes a comprehensive discussion of the various viewpoints of Conti-
nental authors, but, on the other hand, very few citations of cases. The most
detailed analysis of German authorities on ordre public is to be found in
HANS LEWALD, DEUTSCHES INTERN. PRIVAm1UCHT (1931) pp. 23 ff.; and G.
MELCHIOR, GRUNDLAGEN DES D4UTSCH4N INT. PRIVATRCHTS (1932) pp.
324 ff.
As to Swiss cases, cf. 5 H. OsER, KOMMENTAR ZUM SCHWEIZER ZIVIL-
CE4StTZBUCH (Obligationenrecht, Part I, 1929) pp. XL ff.; as to Austrian au-
thorities G. WALKER, loc. cit. supra note 14. A survey of the French cases
is given by 10 RP-RvOIRE, DE, DROIT INTERNATIONAL (1931) (sub verbo "Or-
dre Public") Nos. 75 to 380, including numerous cases taken from other Eu-
ropean jurisdictions. No. 381 ibid. contains a compilation of references to
writings on ordre public in practically all countries of the world, by citation
of articles in Vol. 6 and 7 of the Ripertoire. The reader will also find help-
ful Max Habicht, The Application of Soviet Laws and the Exception of
Public Order (1927) 21 AM. J. INT. L. 238, which contains a large number
of references to modern Continental literature on ordre public. The various
Continental journals on International Law continually report the current cases
on ordre public.
L Lorenzen, Territoriality, Public Policy and the Conflict of Laws (1924)
33 YALE L. J. 736, 747.
" See the general remarks of FR. HARRISON, ON JURISPRUDENCE AND THX
CONFLICT OF LAWS (1919) ch. 4, pp. 123 ff. (written in 1879).
and constitutional provisions. The basic attitude toward the

leading principles of Private International Law, which the legal
community (including authors who write on this subject) has
adopted, evokes the particular character of its own ordre public.
There is no ordre public and no public policy for all times and
for all nations. "Public policy is necessarily variable. It changes
with changing conditions." 19 The ordre public is a function of
time and place.20
Thus divorce violates the ordre public of Italy and Spain where-
as in Germany and numerous other European countries it is le-
gally provided for by statutes. In France from 1816 to 1884
divorce was not permitted. Suppose an Englishman during this
period brought suit for divorce in a French court; he had a good
cause for divorce under English law, which would govern the
case according to the ordinary rules of the French Private Inter-
national Law concerning family relations between foreigners.
The French court, however, would not grant a divorce, since the
application of English law would be opposed to the ordre public
of the forum. Since the enactment of the statute of July 27,
1884, which reestablished divorce in France, the French courts
will grant a divorce whenever there is a cause fcr divorce under
the [ex patriae of husband and wife.2' The French ordre publc
does not require the application of the statute of 1884 to the mar-
riage of foreigners (say Spaniards) whose domestic law prohib-
' Straus and Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407, 173 N. E.
564 (1930).
As to the history of the expression "public policy," and its early arqte-
cedents, see W. S. M. Knight, Public Policy in English Law (1922) 38 L.
Q. Rmv. 207.
O 10 RfPRoiuz nz DROIT INTRNATIONAL (1931) (sub verbc "Ordre Pub-
lic") No. 71; Solodovnikoff, supra note 11, at 9; cf. G. Bosco, DiR. INT. PR.
(1936) Part I, pp. 144 ff.
' French authorities can be found in NIBoYtT, op. cit. supra note 9, No.
634. The same principle has been adopted by the German Civil Code (Intro-
ductory Act, Art. 17), subject, however, to qualifications, the most important
of which is stated in, paragraph 4 of Art. 17. Under this provision divorce
will be granted in Germany only, if there is also under German law a cause
of divorce. Such restriction upon the application of foreign divorce statutes
amounts in effect to the operation of the German laws of divorce as rules of
ordre public in a characteristic negative sense; see LEWALD, op. cit. Supra
note 16, at pp. 108 ff.
its divorce (see Art. 52 of the Spanish Civil Code).2 If a French

woman marries a Spanish citizen and becomes thereby a Spanish
citizen herself, the French court will dismiss her suit for divorce.
In the famous case Ferrari, however,23 the Cour de Cassation ap-
plied French law to the suit for divorce of a Frenchwoman who
had validly married an Italian, and had later regained the French
nationality. This decision seems to be justified by the interpreta-
tion of the statute of 1884 as a rule of ordre public, in case the
person involved is a national of France.
The fact that every ordre public (and public policy) has its
proper field of operation within an individual legal community,
must not lead us to the conclusion that there are as many concepts
of ordre public as jurisdictions. When we speak of an individual
legal community, we have not in mind the territorial unit of an
individual state, but rather the unity of a system of legal con-
cepts and legal technique which forms the basis of the law of the
state. The states of the United States (and England) have
adopted the same legal system, the Anglo-American Common
Law. Hence they have in common the same general idea of pub-
lic policy, the operation of which, however, in the several state-
jurisdictions may vary on a number of points. The situation on
the European Continent shows some similarity. Although the
conformity of basic legal ideas is less intensive and less compre-
hensive than in the common law states, there does exist a legal
relationship between the civil law states which have inherited
their legal technique (and more than that) from Roman Law.
That being the case, we feel justified in regarding ordre public as
a legal concept which can be compared and contrasted with public
policy as it has been developed in the Common Law of Con-
flict of Laws.
The Law of the Conflict of Laws has from the beginning been
understood in the United States as a branch of the Anglo-Ameri-
can Common Law as adopted by the various states of the United
States. Like any other part of the law, it is regarded as a mani-
festation of the sovereign power of the state. The first to take
' Trib. Bayonne, June 14, 1898, CLUNZT, 1899, 127.

CLUNtT, 1922, 714; cf. RAAPE, STAUDINGER'S KOMMENTAR ZUM BEUR-
GeRLICHXN GmSZTZBUCH (9th ed. 1931) Vol. 6, pt. 2, p. 374; MARTIN WOIV,
INTERN. PRIVAMCHT (1933) p. 130.
this line of thought was Justice Story, the father of Anglo-Amer-

ican Private International Law.24 To be sure, Story refers oc-
casionally to "principles of public convenience which ought to
regulate the conduct of nations on this subject in regard to each
other", and he points out furthermore that "the rules, which are
to govern, are those, which * * * arise from a sort of moral
necessity to do, justice".2" But when it comes down to the ques-
tion whether and to what extent foreign law shall be applied in a
particular case, Story's answer is that "every nation must judge
for itself, and certainly is not bound to recognize them (the for-
eign laws), when they would be prejudicial to its own inter-
ests".24 And again: "Comity of nations * * * is the
most appropriate phrase to express the true foundation and ex-
tent of the obligation of the laws of one nation within the terri-
tories of another. It is derived altogether from the voluntary
consent of the latter; and is inadmissible, when it is contrary to
its known policy, or prejudicial to its interests".25 In Story's
opinion the rules of Private International Law of a particular
state are grounded in the exclusive sovereignty of the state with-
in its own territory, from which derives the unrestricted power
of the state, by its laws to bind persons, things and acts within the
territory, and to determine under what circumstances foreign
law shall be applied by its courts.
"The rules of Conflict of Laws are part of the law of each com-
mon law state." 26 This part of the law of the state forms a body
of rules which differ substantially from the rules of other branches
of the law, i. e., the domestic law of the forum. Private Interna-
M STORY, CONFLICT oF LAWS ([St ed. 1834) ?? 18 ff., ?? 34 ff.

na Id. ?? 25, 35.
tb Id., ? 36.
Id. ? 38; cf. ?? 8, 25, 33.
- RZSTATZMZNT, CONFLICT OF LAWS ? 5. English courts have taken a
similar position. Thus Lord Parker of Waddington in Dynamit-Actien-
Geselischaft v. Rio Tinto Co., (1918) A. C. 292, 302, stated that "every legal
decision of our courts consists of the application of our own law to the facts
of the case as ascertained by appropriate evidence. O4e of these facts may
be the state of some foreign law, but it is not the foreign law but our own
law to which effect is given, whether it be by way of judgment for dam-
ages, injunction, order declaring rights and liabilities, or otherwise. As has
been often said, private international law is really a branch of munmcipal
law * * *.
tional Law consists of rules of reference which

its of the jurisdiction of the forum, and also t
whether the internal law of the forum or the
country, whereas the other branches of the law-the domestic law
of each common law state-consist of a body of rules that deal
directly with the rights and duties of particular persons and deter-
mine the legal effect of their transactions in those cases which do
not contain a foreign element. We must bear in mind this dif-
ference between the two parts of the law of the state with regard
to the legal contents and the specific purpose of each set of rules,
in order to comprehend how public policy comes into play. But
even then, the function of public policy within a system of law
based throughout on the sovereign power of the state remains
somewhat puzzling. Is the attitude of the sovereign toward the
law of other independent states not in itself the clear expression
of the public policy of the country? Was not the state in adopt-
ing certain rules for the application of foreign law guided by con-
siderations of national policy? And at the same time, the state
should feel compelled to bar the operation of these very rules of
Conflict of Laws by reason of public policy? It looks as if the
friendly attitude of the sovereign state toward the law of other
states, an attitude motivated by a feeling of fairness and equity
in regard to rights duly acquired under foreign law, runs the risk
of shooting beyond the mark. As a matter of fact, in the province
of Private International Law, the state reveals a certain liberal-
ity of thought and action, as a rule not to be found in other
branches of law. Such liberality is by no means the mere mani-
festation of good nature and a friendly mood on the part of the
sovereign: It is rooted in the very nature of Private Interna-
tional Law. We come here upon an essential feature common to
the systems of Private International Law of all nations.
In Private International Law there is an element of the ab-
stract or unreal. The rule of Private International Law does not
designate the individual foreign state, the law of which is to
govern the case, not to mention the particular provisions of its
internal law. The Russian lawyer Baron de Nolde has recently
said: 27 "The rules of Private Internationa! Law * * *
' Nolde, supra note 7, at 414, 415.
make an abstraction from the contents of the substantive law, the

application of which they prescribe. As a matter of fact, the ap-
plicable law is indicated by an algebraic formula. The law of a
foreign country is applied, whatever its contents." When a rule
of Conflict of Laws is adopted, there exists regularly very little,
if any, familiarity with the different laws of foreign countries
which may become applicable under the newly created rule of
Conflict of Laws of the forum. Every rule of Private Interna-
tional Law is bound to create legal situations, the consequences
of which cannot be foreseen. A. Nussbaum 28 in this connection
speaks aptly of "a policy of the open door" through which the
laws of all countries may slip in. Let us take the purely theoreti-
cal case that the Private International Law of a particular state is
created by a man who is familiar with all details of the domestic
law of every country; this man, however, will not be able to pre-
vent foreign countries from changing their legal order after the
enactment of his system of Private International Law.
We may also put it so: in adopting certain principles of Pri-
vate International Law the state performs an act of confidence.29
It trusts that the application of foreign law according to the
adopted rules of Conflict of Laws will effect a reasonable and equit-
able solution of the legal problems involved in the particular cases.
Such expectation may be disappointed. This will happen when-
ever there is revealed a fundamental difference between the law
of the forum and the foreign law, whenever the enforcement of
a foreign right would "violate some fundamental principles of
justice",30 when a contract, although valid in the country where
it was made, is "inconsistent with our duties, our policy, or our
institutions".3' It is in such cases of a genuine conflict between
the legal order of a foreign country and the legal ideas of the
state of the forum, that public policy (or ordre public) comes in-
to play, to exert its particular function as a weapon for the de-
fence of the Nation's weal.
In a state which regards jurisdiction of all kinds and in all
branches of the law as a manifestation of the state's sovereign
2 ARTHUR NUSSBAUM, DEUTSCHES INT. PRIVATRECHT (1932) p. 60.

9 Thus 1 ARMINJON, op. cit. supra note 14, p. 201.
s Louks v. Standard Oil Co., 224 N. Y. 99, 120 N. E. 198 (1918).
" STORY, op. cit. supra note 24, ? 250.
power, the operation of public policy will cover only a very limited
field. In so far as the sovereign, in adopting rules of Private
International Law, is guided by considerations of national policy,
he automatically limits the sphere in which foreign law will gov-
ern.
The lex fori is given a much wider application in the Anglo-
American Law of Conflict of Laws than in any continental sys-
tem of Private International Law.
It is a universally accepted principle of Private International
Law that the lex fori shall govern all matters of procedure. As
far as the distinction between matters of procedure and matters
of substance 32 is concerned, the circle which includes procedural
matters is drawn much more widely in Anglo-American law than
in the legal systems of the European Continent. Thereby the ap-
plication of the internal law of the forum is guaranteed in many
cases in which, on the Continent, foreign law would govern, and
to reach such a result no recourse to the remedy of public policy
is needed.
Let us take the statutory limitations of actions (prescription
lih6ratoire, Verjaehrung) as a characteristic example. Statutes
of limitations are viewed in American and English Law as per-
taining to the remedy only.33 In Continental Law, however, the
doctrine prevails that the question of limitations affects the sub-
stantive rights of the parties, and hence the law that governs the
cause of action will be applied.A Yet the application of the for-
32 Recently cf. A. Mendelsohn Bartholdy, (I1935) 16 BRITISH YEARBOOK Og

INT. LAW p. 33, and I. G. Foster, id. pp. 101 ff., as to this distinction under
English Law.
GOODRICH, CONFLICT OF LAWS (1927) p. 168; see RESTATEMENT, CON-
FLICT OF LAWS ?? 603 and 604. As to the English Law: DICEY, CONFLICT
OF LAWS (5th ed. by A. B. Keith 1932) Rule 203, No. (3), p. 849; CHES-
HIRE, op. cit. supra note 14, p. 638.
' Germany: LEWALD, op. cit. supra note 16, pp. 72 if. Austria: WAL-
KF.R, op. cit. supra note 14, pp. 274 ff. Switzerland: 5 OSER, op. cit. supra
note 16, No. 35, p. XLV. In France, too, the doctrine that the statute of
limitations runs against the right itself, seems to prevail; see J. MICHEL, LA
PRESCRIPTION LIBERATOIRE EN DR. INT. PR. (1911) pp. 140 if. The French
courts, however, show a tendency to apply the law of the domicil of the debtor,
if at the same time suit is brought against him there. SURVILLE, op. cit. su-
pra note 1, No. 272. But see also Note (1919) 28 YALE L. J. 493. As to
other countries cf. Michel in 10 RLPERTOIRE DE DROIT INTERNATIONAL (193
(sub verbo "Prescription liberatoire") Nos. 88 ff.
eign statute of limitations will be barred under certain circum-

stances by the operation of ordre public. But non-application
of the foreign statute which is repugnant to the ordre public of
the forum will not do in all cases. There may result a gap in the
legal relations between the parties which must be filled in by the
substitution of another rule of law. Suppose a French court
holds an agreement between two persons, made in state X. ac-
cording to which the debtor waives in advance the statute of limi-
tations of X, to be void although valid in X, since the agreement
is opposed to French ordre public as expressed in Art. 2220 of
the Code civil (On ne peut, d'avance, renoncer 'a la prescription);
which statute of limitations shall govern the case? There is
much to be said in favour of the application of the statute of X-
except for the particular rule on which the waiver of the debtor
has been based-; the French courts, however, show a tendency
in such cases to allow the ordre public to have a positive effect,
that is to replace the statute of limitations of the foreign state (the
law of which governs the cause of action) by the corresponding
rules of limitation of the forum.35
According to the German Reichsgericht the various provisions
embodied in the German statutes of limitations are not rules of
ordre public. The application of foreign statutes of limitations,
however much at variance with German law, will not be re-
pugnant to the German ordre public. The absence, however, of
statutory limitation of an action in foreign law, when such an
action would be subject to limitations under German law, would
violate the ordre public of the forum.36 Thus it is repugnant to
' See e. g.: Trib. civ. de la Seine du 27 Oct., 1911, CLUNr, 1912, 1195.
Similarly the App. Court of Milan replaces the statute of limitations of
a foreign state, the law of which governs the cause of action, with its own
statute of limitations, in a case where the statute of limitations of the place
of contracting runs for a longer period than, the Italian statute. The court
holds so on the ground that Art. 2107 of the Italian Civil Code (like Art.
2220 of the French Code) is a rule of ordre public, which does not only pro-
hibit a waiver in advance by the debtor of the limitation of action, but, more-
over, bars the application of any foreign statute under which the statutory
period is longer than under Italian law (App. Court of Milan, March 28,
1916, CLUNZT, 1917, 737; see also App. Court of Florence, June 9, 1927, CLu-
NET, 1928, 214).
' 151 Entscheidungen des Reichsgerichts in Zivilsachen 201 (1936); in the
same sense MICHEL, op. cit. supra note 34, pp. 223 ff., and in 10 RfPZRTOIRE
the German ordre public if the Swiss law-Schuldbetreibungs-

gesetz (1889), Section 149, ?[ 5-exempts certain unsettled debts
of a bankrupt from statutory limitation. Will the German
statute of limitations govern such debt when the creditor brin
suit in a German Court? The Reichsgericht answers the ques-
tion so: The court must try first to fill the gap by searching for
a suitable provision of the statute of limitations of Switzerland
where the cause of action arose; only if the court fails to ascer-
tain such a provision will the German statute be applied.37
Furthermore, the adoption, by the Anglo-American Private
International Law, of the principle of domicil in matters of status,
makes more frequent the operation of the domestic law in the
United States, in contrast to the civil law states, which, in such
matters, would apply the principle of nationality. The status of
a person of foreign nationality for many years domiciled in Hol-
land, would still be governed by his own national law, whereas
the status of a foreigner, who enters the United States, is thence-
forward governed by the law of the state in which he acquires a
domicil. The principle of dornicil guarantees the application of
the lex fori in many instances where such a result under the rule
of nationality could be attained only by the intervention of ordre
public.38
Suppose A and B, both French citizens, are domiciled in the
state of California. B is an invalid adult child of A, unable to
maintain himself. He brings a suit for maintenance against A
in San Francisco. The court has jurisdiction over A and, more-
over, the law of California will govern.39 In order to secure the
application of domestic law, there is no need in such a case of hav-
ing recourse to public policy. The mere fact that the defendant
A has his domicil within the state provides California with ju-
dicial and legislative jurisdiction over A.
Dr DROIT INTERNATIONAL (1931) (sub verbo "Prescription liberatoire")

No. 79.
87 106 Entscheidungen des Reichsgerichts in Zivilsachen 82, 85 ff. (1922);
for this see MELCHIOR, op. cit. supra note 16, pp. 365 ff.
8 Cf. Solodovnikoff, supra note 11, pp. 5 ff.
See RESTATEMENT, CONPLICT OT LAWS ?? 77, 457. The California court
will apply Section 206 of the Civil Code, and under the rule of Paxton v.
Paxton, 150 Cal. 667, 89 Pac. 1083 (1907), the plaintiff may enforce his
claim in equity.
Let us assume now that a similar suit is brought in a French

court, A and B being American citizens residing in Paris. Ac-
cording to the ordinary principles of French Private Interna-
tional Law the national law of A and B, in other words the law
of the particular state of the United States, in which they were
last domiciled, will govern. But first the question of jurisdiction
of the French court, in which the suit is brought, must be settled.
Will the French court entertain such action, which is based on a
personal relationship between the parties, and where the parties
are foreigners? Under the general theory of judicial jurisdiction
as adopted by French authorities the answer is: no.40 In fact,
in a number of French cases, suits for maintenance of indigent
relatives where both parties were foreigners, have been dismissed
on the ground of lack of jurisdiction.41 But the great majority
of recent decisions reveals a clear trend in the opposite direction.
In a long line of cases it has been held that a suit for maintenance,
since it asks for legal help of a provisional nature only, will be
entertained by French courts; in other words, the denial of ac-
cess to the French courts in a suit for support of relatives or
persons connected by marriage, where the parties to the case live
in France (although not French citizens), would contravene
French ordre public.42
As to the question of what substantive law will be applicable
in a suit for maintenance, brought in a French court, where both
parties are foreigners, or at least the defendant is a foreigner,
there exists a great deal of uncertainty among French authorities.
But here, too, we find cases in increasing number which hold that
the law of the forum shall govern, on the ground that the appli-
cation of foreign law according to the ordinary rules of French
Private International Law, would be repugnant to the French
ordre public. This point of view has recently been taken by
French courts, especially in such cases where the foreign law does
' See the cases cited by Maurice Travers in 4 RkPpRmOn m Dm DROIT IN-
ZRNATIONAL (1931) (sub verbo "Competence") Nos. 210 ff.
See M. Nast in 1 R:PIRToIRp DZ DRoiT INMRNATIONAL (1931) (sub verbs
"Alimet~t") No. 25.
' See, e. g., Justice De Paix de Paris, XVI Arr., July 10, 1903, Affaire
Moret, CLUNtT, 1904, 356; Cour de Cass., March 27, 1922, Affaire Teret-
schenko, Rtvux Dz DR. I. PR., 1924, 401. For further references, see Solo-
dovnikoff, supra note 11, p. 223.
not grant a cause of action, whereas there is < cause of action

under French law.43
Thus a decision of the tribunal de Pontoise 44 declares that
a Frenchwoman who married an American citizen cannot on ac-
count of the fact that she has become an American citizen herself,
escape the duty, imposed upon her by French law (French Civil
Code Art. 205), to support her parents, since her residence in
France subjects her to the French "laws of police and public se-
curity" (Civil Code Art. 3). In other words, the duty of sup-
port as provided for in Art. 205 is regarded as a rule of ordre
public.
Moreover, the Cour d' Appel de Douai 45 has held that French
law will govern the case in which parents of English nationality
but residing in France for more than forty years, are sued for
maintenance by their children. The court pointed out that the
application of English law, under which liability for maintenance
is not enforceable by civil action,46 would unduly favour for-
eigners living in France, and hence violate the principles of
French social order.
A recent decision of the tribunal civil de Belfort47 may also
be mentioned in this connection. A suit for maintenance was
brought by a Frenchwoman against her son-in-law. The latter,
Alastian by birth, had acquired French nationality under the
treaty of Versailles. Under the terms, however, of the French
statute of July 24, 1921, the personal status of Alsatians will be
governed as heretofore by German law. This being the case, the
tribunal de Belfort was faced with an interesting problem of in-
terprovincial law. The court, were it to follow the established
rules of French Private International Law, would be bound to
apply German law as the national law of the defendant. This,
See M. Nast, supra note 41, No. 43; NIBOYZ?T, op. cit. supra note 9, No.
788.
May 15, 1895, CLUNET, 1896, 627.
' Cour d'Appel de Douai, March 26, 1902, Affaire Guerrier, CLUNZT, 1903,
599.
Cf. 2 JZNKS, DIGZST o0 ENGLISH CIVIL LAW (3rd ed. 1938) p. 1107;
also TIFFANY, LAW OP. PERSONS AND DOMrSnC R4LATIONS (3rd ef. 1921)
pp. 321 ff.
"Kuntz v. Kah-Kuntz, Trib. civ. Belfort, Dec. 9, 1923, CLUNET, 1924,
713, REvuE, 1924, 404.
52 VIRGINIA LAW REVIEWW
however, it refused to do. No duty is imposed by German law

(see German Civil Code, ? 1601) upon a son-in-law to support
his father or mother-in-law. The French Civil Code, on the other
hand, imposes such a duty by its Article 206 (amended version
of the statute of August 9, 1919). The result of the decision is
to apply the law of the forum, thus in effect declaring Art. 206 a
rule of ordre public.48
Yet there is another fact which helps to cut down the opera-
tion of public policy in the United States. The great majority
of cases in which problems of Private International Law arise,
deal with a conflict of laws between different states of the United
States. These states, however, belong to one and the same family
of law, all members of which are living, as it were, in the same
common law edifice and under the roof of the Federal Constitu-
tion. This being so, the chance that the act of confidence men-
tioned on page 46 will meet with disappointment is infinitely
smaller than on the European Continent, where there is no such
intimate family life among the states. If under the Law of Con-
flict of Laws of a common law state the iaw of another common
law state is to govern, the latter is not an unknown quantity.
The court of the forum has some knowledge of the law of the
sister state; it may trust that the applicable foreign law will be,
if not the same as the law of the forum, certainly similar to it.49
It seems in any case somewhat strange or improper if, in a family
of states bound together by a Federal Government, one state
uses against another the weapon of public policy to defend its
local ideas of justice and good morals. The differences between
the legal systems of the forty-eight states, all of which are mem-
bers of the American Nation, relate nowadays "to the minor
4' But see also M. Nast's critical remarks on this decision, CLUNVT, 1924,
714n, where further references can be found.
' Thus the American Law of Conflict of Laws can operate under the pre-
sumption that the common law of another common law state is the same as
the common law of the forum (R4STAhTMtNT, CONEtI1C- o0 LAWS ? 622).
To Continental Law, too, the idea of a similarity between the domestic law
of the forum and the foreign law is not alien. But it is a long way from
the doctrine of NIBOYxT, op. cit. supra note 9, p. 532, requiring a "minimum
d'equivalence des legislations," to Dicey's Rule 204: "* * * ink the absence
of satisfactory proof, the foreign law must be held to be identical with the
English law respecting the matter in question."
morals of expediency, and to debatable questions of internal

policy".50 We may therefore imagine and even anticipate the
arrival of a condition in relations between the states of the United
States, in which the blunted weapon of public policy will be put
aside altogether.51
As far as the European Continent is concerned no such ex-
pectation can be maintained for many years to come. The poli-
tical developments of the last two decades have swept away the
dream of a "United States of Europe". In fact, the European
states do not form a national community. Two families of civil
law are living on the European Continent: one, the Germanic
family under the leadership of the German law, and the other, the
Romanic family, under the leadership of French law. The legal
relationship between countries which are members of one and
the same group, e. g., Switzerland and Sweden- -both belonging
to the Germanic group-is much closer than between states that
do not belong to the same family of law, e. g., Spain and Czecho-
slovakia,-the former being a member of the Romanic, the latter
a member of the Germanic group. The degree of relationship is
manifested by gradations of similarity between the various sys-
tems of Private International Law on the Continent. We may
speak of a Germanic and a Romanic system of Private Interna-
tional Law. These two systems, however, are not separated one
from the other in watertight compartments. In the development
of the Continental Law of Conflict of Laws, there have been
phases in which the ideas of one group, scattered over the Con-
tinent, deeply influenced the nations of the other group. Never-
theless, the contrasts between the principles of Private Interna-
tional Law, as adopted by one or the other family of civil law,
are sharp enough to make themselves clearly felt in the doctrine
of ordre public. There is, on the other hand, a large enough
stock of legal ideas common to both families, to justify the con-
cept of a Continental attitude towards the basic problems of Pri-
' Beach, Uniform Interstate Enforcement of Vested Rights (1918) 27 YALt

L. J. 656, 662; cf. RESTAThMZNT, CON1LICT of LAWS ? 612, Comment c;
Nutting, Suggested Limitations of the Public Policy Doctrine (1935) 19
MINN. L. Rev. 201; J. Crouch, in his dissenting opinion, Mertz v. Mertz, 271
N. Y. 466, 475, 3 N. E. (2d) 597 (1936).
5 See Goodrich, Foreign Facts and Local Fancies (1938) 25 VA. L. Rev.
26, 35.
vate International Law. Looked upon through the eyes of a

common law student, there is such a thing as Continental Private
International Law.
What we now call Private International Law-Law of the
Conflict of Laws, Droit International Privi, Internationales Pri-
vatrecht, etc.-is a creation of the 19th century. Three men have
made it: Joseph Story, an American,-Friedrich Carl v. Sa-
vigny, a German,-Pasquale St. Mancini, an Italian. All three
of them exerted a profound influence far beyond the boundaries
of their own country, and even beyond the continent in which
they lived. Savigny was the dominating authority on Private
International Law for the legislatures, courts and legal writers of
the Germanic law family in the second half of the last century;
his work 52 inaugurated new developments effective to the present
day, Mancini,53 on the other hand, was the founder and head of
the modern Italian school, which is best called the Romanic school,
since he gained many adherents in Romanic countries outside
Italy.
Savigny was the first great "Internationalist" among the writ-
ers on Private International Law in modern times. He believed
in "the possibility and the advantages of a common system of
rules in dealing with conflicts between territorial laws, * * *
a common international law of nations having intercourse with
one another". Private International Law, as he sees it, is
grounded in a "community of law among independent states".54
The basic question for the judge who has to decide cases which
come in contact with different independent states, is "to ascertain
for every legal relation that law to which, in its proper nature,
it belongs or is subject"; and this law will be applied whether it
is the law of his own country or the law of a foreign state.55
Is Savigny's pioneer work-the 8th vol. of his System des heutigen Roem-
ischen Rechts-appeared in 1849. English translation with notes and appendix
by W. Guthrie, 2nd ed., 1880.
'.His introductory address on, "Della Nazionalita come Fondamento del
Diritto delle Genti," delivered in 1851 at the University of Turin (see MAN-
CINI, DIR. INT., PRZI~ZIONI (1873) pp. 5 ff.), made a profound and lasting
impression. Once more in Clunet's Journal, 1874, pp. 221 ff., 285 ff., Man-
cini expressed his basic ideas giving them more detailed application to Pri-
vate Int. Law.
" SAVIGNY, op. cit. supra note 52, pp. 26 ff. (Guthrie's translation, 70 ff.).
' SAVIGNY, op. cit. supra note 52, pp. 32, 27 ff. (Guthrie, 76, 70).
The system of Private International Law erected by Savigny

on this basis involves, to use his own words, a "freedom of ap-
plication which pays no regard to the limits of particular states".
This basic attitude toward the application of foreign law is, how-
ever, subject to qualification by an "important set of excep-
tions".ssa Savigny tries "to reduce such exceptions to two classes:
A. Laws of a strictly positive, imperative nature, * * .
B. Legal institutions of a foreign state, of which the existence is
not at all recognized in ours, and which, therefore, have no claim
to the protection of our courts." 56
Although Savigny does not use this terminology, these "excep-
tions" involve the concept of ordre public. The function, which
Savigny and his adherents ascribe to ordre public, seems to be al-
most the same as that of public policy in the Anglo-American Law
of Conflict of Laws. Certainly there is in one respect uniformity
of viewpoint. Public policy, and ordre public as Savigny under-
stands it, have the character of an anomalous remedy to bar the
recognition or enforcement of a foreign right under particular
circumstances.57 The idea of ordre public as an exception to the
application of the ordinary rules of Private International Law 58
has been continuously adhered to in legal theory and practice of the
Germanic family of law. The strong resemblance between the
concepts of public policy and ordre public (as conceived by Sa-
vigny), with regard to their operation as an exception, must not
blind us, however, to the fact that the underlying philosophies are
at variance in the two cases. The operation of public policy re-
veals a discrepancy or rather a duality within the legal system of
each common law state, since American Private International
Law itself is a branch of the law of the state.59 This is not so in
the case of the two classes of exceptions in Savigny's system,
which constitute the ordre public. Let us again hear Savigny
himself: "These two classes of absolute laws, however they may
Oa Id. ? 349.
' Savigny, op. cit. supra note 52, p. 33 (Guthrie, 77). Illustration for A:
Marriage law that excludes polygamy; for B: the institution of slavery.
w See, however, Healy, supra note 11, at p. 476, as to the operation, of pub-
lic policy in the American Law of Conflict of Laws.
' This idea is manifested also in the term "Vorbehaltsklausel," see supra
note 3.
' Cf. supra p. 44 and note 26.
differ in other respects, agree in this: that they are withdrawn

from that community of law between all states of which we have
asserted the existence in regard to collisions; and they are there-
fore, in this respect, anomalous".60
We must realize the true meaning of this sentence. It refers
to the duality which exists in regard to the operation of certain
rules of the international common law of nations on the one hand,
and of certain indispensable principles of the domestic law of the
forum on the other. If state A declines the application of an
internal rule of state B, because this rule is opposed to A's ordre
public, thereby a contradiction between the legal ideas of A and
B is manifested. But here such discrepancies between the sys-
tems of domestic law of different states are not quite the point.
What has the sovereign state of the forum (A) to do with the
law of another sovereign state (B) ? The law of B is in itself no
concern of the state A. The rules of the Law of Conflict of Laws
of A effect a connection with B's law, in that they determine that
the law of B shall govern. The law which the forum will apply
is primarily its own Private International Law, that is, the partic-
ular rule of its Law of Conflict of Laws applicable in a particular
case. The operation of ordre public (or public policy) in such a
case will bar the application of this rule of Private International
Law, and hence indirectly the application of the law of B.
Such discrepancy between the Private International Law, as
adopted by the state of the forum, and its own domestic law is
precisely what Savigny has in mind, when he describes the anoma-
lous function of the rules of ordre public. In the same fashion
we have understood the operation of public policy. The duality
of law, however, which manifests itself in the operation of ordre
public in the Savignian system of Private International Law, is a
much more radical one. Inasmuch as Savigny bases the prin-
ciples of Private International Law on a community of law
among independent states, this duality acquires the character of
a discrepancy between the international or supra-national law and
the national or domestic law of the forum.
With this point of view it is evident that the ordre public as-
sumes a role which extends far beyond the scope of public policy.
' Savigny, op. cit. supra note 52, p. 38 (Guthrie, 80).
The question is whether it will be possible to stop the encroach-

ments of ordre public in time to prevent it from undermining the
whole structure of Private International Law. In a system of
Private International Law based on the idea of an international
community of law, ordre public acts in fact as a foreign body;
wherever ordre public is operative, the domestic law of the forum
registers a victory over those rules of Private International Law,
the application of which has been barred.61 To an "Internation-
alist", ordre public must indeed appear as a principle decidedly
hostile to Private International Law.62 as a hardly endurable bur-
den upon it, which, to be sure, Private International Law will not
succeed in shaking off, as long as there are independent nations
insistent upon their sovereignty.63
As far as the Germanic family of civil law is concerned, the
field of operation of ordre public has remained circumscribed.
This is primarily due to the wise restraint of the courts, which
under the guidance of the German Reichs.gericht have fully re-
alized the anomalous character of ordre public. On the whole,
ordre public plays a role in relatively few decisions, and, more-
over, German courts have a way of rejecting pleas based on or-
dre public.64
A. Barrat in his report of the 34th conference of the Int. L. Ass. (1927)
called ordre public "a loophole out of the rules considered as international"
(quoted by Gutzwiller, op. cit. supra note 7, p. 1575n. 6).
0 Thus 1 E. FRANKrNSuIN, INT. PRIVATRECHT (1926) p. 181. He speaks
further of "a rebellion of the old idea of state-omnipotence against the deeper
insight into the essence of law."
' In the jurisdiction of international courts, which became increasingly im-
portant after the world war, there arises a peculiar situation with regard to
ordre public. The question might present itself whether in case of contra-
diction between the law of the state, which is a party to a litigation, and es-
tablished principles of the law of nations, the former should be barred on
ground of the ordre public international in the proper sense of the term. So
far the question has not been greatly elucidated; see 10 REPERTOIRM Dz DROIT
INTZRNATIONAI. (1931) (sub verbo "Ordre Public") Nos. 440 ff.; Moldovan,
supra note 16, pp. 101 ff.; NUSSBAUM, op. cit. supra nrote 28, pp. 70 fif.
' One illustration in place of many. In a case, decided by the German
Reichsgericht-93 Entscheidungen des Reichsgerichts in Zivilsachen 182,
June 28, 1918-the following problem was involved. The defendant, an Eng-
lish corporation, had undertaken by a contract, made on August 1, 1914, to
deliver merchandises to the German plaintiff, but after the outbreak of the
war had failed to comply with the terms of the contract. The plaintiff brought
suit against the defendant for breach of contract in a German court. De-
There is still another reason for the moderate use made of the
concept of ordre public. Although his starting point was the idea
of a supra-national community of law, in the detailed develop-
ment of his principles of Private International Law, Savigny was
in no wise oblivious of the national interests and needs of Ger-
many. In the following decades, the courts increasingly adapted
his ideas to the realities of German's economic and social life, and
at the drafting of provisions concerning the conflict of laws in
the German Civil Code (Introductory Act, Art. 7 to 31) strong
influence was exerted in favour of the domestic law of Germany,
although the principle of domicil maintained under Savigny was
superseded by the principle of nationality as determinant of per-
sonal rights. In spite of these developments, Savigny's basic
ideas remained effective in the legal literature and practice of the
Germanic group of states throughout the 19th century. To the
Internationalists must be ascribed the erection of the edifice of
Private International Law for the Germanic law family.65 In
the nineties of the 19th century, however, positivistic tendencies
-chiefly represented by Niemeyer and F. Kahn- gained ground.66
fendant pleaded that he was discharged from his contractual duties under the
English Trading with the Enemy Act, and urged that this Act was a good
excuse for non-performance. Plaintiff invoked the German ordre public (Art.
30 of the Intr. Act to the Civil Code, see supra note 2) against the application
of the English Act.
The Reichsgericht conceded that the English Act was repugnait to the
German ordre public and, therefore, could not by itself operate to preclude
the plaintiff's action, but nevertheless reached the conclusion, that the suit
should be dismissed, since the English Act produced a practical situation, in
which it would be unconscionable to insist upon performance according to
the terms of the contract, when such performance would subject the defend-
ant to severe penalties under the Act. This English Act therefore, although
not per se a bar to the action, in this case created a supervening impossibility
relieving the defendant.
5 Among the Internationalists are to be counted those authors who derive
the basic rules of Private Int. Law from a priori principles, whether they
speak of "Natur der Sache" (the nature of things)-thus v. BAR op. cit.
supra note 14, or search for a general formula "suitable for application in
all countries in spite of all diversity in the positive laws of the various states"
(Thus FRANKENSThIN, op. cit. supra note 62, p. 34).
e Fifty years earlier these tendencies had found an energetic champion
in Georg v. Waechter-see 24 ARCHiv Pd. D. CIVIL. PRAXIS (1841/42) 230 if.,
vol. 25, 1 ff., 161 ff., 361 ff.-whose work, however, proved to be primarily
destructive in character, in so far as he demolished the remnants of the
old statutory system.
But the edifice of Continental Private International Law was by

this time so solidly constructed that the attacks of the "Nation-
alists" could not demolish it, or even effect a thorough remodelling
of the structure.
In the Private International Law of post-war Germany there
prevail tendencies that stress a practical approach to concrete
problems, rather than the discussion of leading principles in this
field; and thus a certain convergence towards the methods used
in the Anglo-American Law of Conflict of Laws is effected.
These tendencies have operated in the direction of a more dis-
passionate appraisal of ordre public. Nussbaum calls ordre public
a "natural element in every system of the conflict of laws" ;67 this
statement, based upon a matter of fact attitude toward the prob-
lems of Private International Law, gains justification by com-
parative study of the various systems of conflict of laws.
Notwithstanding the new trends in the Germanic doctrines, the
contrast between public policy and ordre public, as above stated,
has not vanished. To attain such a result, a radical reconstruc-
tion of the Savignian system, which still dominates the Germanic
law families, would be needed: these countries would have to
give up the foundation of Private International Law on the basis
of a supposed common international law among the nations. It
is certainly beyond the scope of this paper to make any prophesies
as to future developments.
The adherents of the Romanic school, too, are "Internation-
alists"-sui generis; this is especially true with regard to Man-
cini himself. It may at first sight appear paradoxical to designate
as Internationalist the man who chose the principle of nationality
as his starting point for the solution of all problems of Private
International Law. But what is Mancini's concept of Private
International Law, and what does he understand by the term
"nationality"? According to Mancini, Private International Law
is nothing but a branch of International Law, which according as
we are concerned with political relations between nations or with
the private interests of individuals, assumes the particular char-
acter of Public or Private International Law.68
Mancini proceeds from the idea of the coexistence of independ-
s NUSSBAUM, op. cit. supra note 28, p. 60.

See 1 BARTIN, PRINCIPES DE DR. INT. PRIVE' (1930) p. 167.
60 VIRGINIA LAW RE1VIEW
ent nations-nations, not states; at the time when Mancini de-

livered his famous lecture on nationality,69 Italy had not yet be-
come a state, although an Italian nation (as Mancini interprets
the political situation in 1851) had already come into existence.
By nations, he means communities of natural growth, which are
the product of common history, cultural tradition and race, of
climate, geographical situation and many other physical, intellec-
tual and moral circumstances. These circumstances exert a de-
cisive influence on the individuals who belong to the national com-
munity; "they determine in a greater or less degree the precocity
of physical and moral development, the organization of family
relations, the prevailing occupations, and the nature of business
and commercial relations which usually occur".70 From this
premise is derived an inference of fundamental significance.
Mancini by a bold twist of thought equalizes the law of nationality,
guaranteed to each independent nation by the Law of Nations,
and the law of liberty (le droit de libert6) belonging to the in-
dividual.
These are his own words: 71 "Just as the law of nationality
which belongs to the entire people does not substantially differ
from the law of liberty which belongs to the individuals, so it fol-
lows that the individual may demand from nations and states,
in the name of the principle of foreign nationality, the same re-
spect for his inheritance of private law that he demands from his
own state. Such a guarantee is therefore an act of strict justice,
and an inviolable duty * * ."
Inasmuch as Mancini so construes the idea of nationality, na-
tionality assumes the character of a supra-national principle of
universal validity. Mancini emphasizes to the ultimate degree
the individual as the focus point of law. The individual stands
at the center of law, whether internal law or international law.
In expounding his doctrine of nationality Mancini is com-
pelled, however, to introduce substantial qualifications. No legal
' See supra note 53.

70 Mancini in CLUNET, 1874, 293; cf. KAHN, op. cit. supra note 9, pp. 194 ff
Also v. Bar's criticism of Mancini's concept of nationality is still well worth
reading (v. BAR, op. cit. supra note 14, pp. 67 ff.).
7 Mancini, supra note 70, p. 294. Beale's English version of this passage
is followed here (BZALZ, op. cit. supra note 16, p. 70).
system is conceivable in which the principle of nationality gov-

erns without any restrictions. Mancini believes that he is able
to indicate the line of demarcation up to which the principle of
nationality is applicable. It governs where the private interests
of the individual are involved. "The laws of ordre prive corre-
spond to the liberty of the individual." Private law is "personal
and national", and as such should accompany the person beyond
the boundaries of his country wherever he goes.72 On the other
hand, there are the rules of public law, which guarantee the or-
dre public and the organization of public authority within the
nation. Public law is based upon the sovereignty of the state.
In contrast to private law, public law is territorial. Mancini ex-
presses the contrast concisely by writing: "Droit prive' et do-
mestique, droit public et politique' .72a
Which particular rules of the law of the state are considered to
beeof ordre public in Mancini's system, it is hard to say. He uses
the words public law and ordre public without clear delimitation
of the meaning of each of them.
In one passage, to be sure, he points out that the operation of
ordre public goes beyond the field of public law, in so far as the
laws of ordre public include "superior principles of individual
and social morals, bonos mores, and such primary rights as are
inherent in human nature, and those liberties from which there
cannot be any valid derogation".73 He adds that foreign institu-
tions which are incompatible with the "ordre economique" that
has been established in the state of the forum, may be rejected as
violating ordre public in the wider sense of the word.
The idea of the operation of ordre public becomes a little clearer
in the writings of adherents to Mancini's doctrine. The Belgian
lawyer F. Laurent,74 a passionate adherent to the principle of
nationality,75 draws a sharp line of demarcation between rights of
" Mancini, supra note 70, pp. 292, 297.

72a Id. p. 297.
" Id. p. 297.
S 2 DROIT CIVIL INERNATIONAL (1881) Nos. 185 ff., pp. 341 ff.
7 According to the Italian writer, P. Fiore, who closely follows Man-
cini's doctrine, the laws of ordre public have as their aim the safeguarding
of "id quod ad statum rei publicae spectat," i. e., the protection of the inter-
ests of the community. These laws constitute "le droit social," which is not,
the community and private rights, the latter being concerned with
the protection of private interests.
"That the foreigner can avail himself of his national law, is due
to the fact that this law is the expression of his individuality.
which implies that we are here concerned with individual or pri-
vate rights." (Laurent, p. 346.) There are on the other hand
laws that deal with "general or social" interests. "The foreigner
is bound to subject himself to the laws of the country in which he
happens to be." The laws which protect social interests are the
basis of the statute real.76 The rules of ordre public belong to
the category of real-or territorial-laws, since they are designed
to protect the interests of the community. The laws of statute
real operate as ordre public in so far as they restrict the operation
of the statute personal, the principle of nationality.
Andr e Weiss, who has contributed the most toward winning
recognition in France for the doctrine of nationality as developed
by Mancini, formulates his standpoint in the matter as follows :77
"When a law deals with private interests, its object always is
the utility of the person; it can govern only those for whom it
has been enacted. It ought, however, as a matter of principle, to
govern them in all places and in all their legal relations, but for
the exceptions or limitations resulting from the ordre public in-
ternational, from the rule locus regit actum, or from the auton-
omy of the will."
Antoine Pillet, too, should be mentioned in this connection.
Although he bluntly rejects Mancini's doctrine of nationality,78
Pillet in developing his own theory of Private International Law,
shows himself deeply influenced by the leading ideas of the Ro-
manic school. So far as the function of ordre public is concerned,
it was Pillet who gave the clearest expression to the conclusions
to be drawn from Mancini's doctrines.
however, considered identical with public law (Fiore, CLUNtT, 1908, PP.
351 ff. The cited phrases are on pp. 359 et seq.).
76 LAURZNT, op. cit. supra note 74, p. 349, cf. pp. 355 and 357.
WEISS, MANUML DZ DR. IN?. PR. (1920) P. 367; cf. 3 Wxiss, TRAITk
THLORIQUt XT PRATIQUE (2d ed. 1912) p. 68.
7' Pillet considers the doctrine of Mancini (not without justification) a
"doctrine politique;" see 1 PILLET, TRAiTA PRATIQUE Dx DR. INT. PR. (1923)
p. 85.
Pillet makes a basic distinction between permanent laws and

general laws. The former are laws for the protection of the
individual; their purpose requires that they be extra-territorial,
whereas the general laws are "laws of social guarantee or ordre
public", which would miss the mark if they were not strictly ter-
ritorial.79 Each territorial-or real-rule of law is at the same
time a general law and a rule of ordre public. Pillet criticises the
Italian school for presenting personality as the rule and reality as
the exception.80 The truth, he says, is that, between the terri-
toriality of certain laws and the personality of others, there is not
the relationship of rule and exception; rather the two constitute
parallel sets of laws.81
As a matter of fact, Mancini's viewpoint of the anomalous
character of ordre public-a viewpoint in which Fiore and Weiss
concurred-is hardly compatible with the role assigned to it in
his system of Private International Law. Whereas with Sa-
vigny, ordre public (to this extent in accord with the doctr
Story and his followers) was a remedy of clearly exceptional na-
ture, which would bar the operation of the ordinary rules of Pri-
vate International Law only in particular and comparatively rare
circumstances, on the other hand in the Romanic school ordre
public became an integral part of the entire system of Private In-
ternational Law.82 According to the doctrine of this school, such
fundamental principles of Private International Law are in-
cluded in the concept of ordre public (e. g., the lex rei sitae) 83 as
by no means have an anomalous character. Here ordre public
operates as a kind of "permanent exception" to the application of
PILIAT, op. cit. supra note 78, Nos. 33 ff. Cf. PRINCIPtS DE DR. INT.
PR. (1903) pp. 261 ff.
8? 1 PILLE, op. cit. supra note 78, p. 90.
8 LAURENT (op. cit. supra note 74, p. 348) had maintained this even be-
fore Pillet; the viewpoint of the latter has recently been approved by R.
Bireaud, L'ordre Public en Dr. Int. Prive (These d'Aix-Marseille, 1932) pp.
111 if.
a See R. AGo, op. cit. supra note 16, pp. 282 if.; Gutzwiller, Le Devel-
oppement Historique du Dr. Int. Prive ACADEMIZ Dv, DR. INT., REcuEItL
Couns, 1929, Vol. 4, p. 371.
' See Louis-Lucas, supra note 14, p. 399; cf. W. Lienhard's (supra note
16, p. 115) remarks on the recent decision of the Cour de Cassation, Rwvux
DZ DR. INT. PR., 1934, 142, and J. P. Niboyet's note, ibid. p. 143.
the law of nationality,84 whereby it ceases to be an exception in

the strict sense of the word.
The combination of the concepts of ordre public and territorial
laws (or statutes real) causes the excessive enlargement of the
field of operation of ordre public, such as we find in the states of
the Romanic group. It has been the great service of Franz Kahn
to have shown in his repeatedly cited article that no tenable theory
of ordre public can be built upon the concept of territoriality.
Exactly what the Romanic school means by "territoriality" has
not yet been discussed here. The Romanic school would hold
that a law is territorial in so far as it has absolute authority with-
in the territory of the state, to the exclusion of any foreign law.85
But does it not follow then that all compulsory rules of law, which
cannot be derogated from by private agreements, are territorial
laws, and, moreover, laws of ordre public, if we fall in with the
doctrine of the Romanic school? Such a view would lead to un-
acceptable consequences,85a viz., to an almost monopolistic domi-
nance of the lex fori. Everyone nowadays would in fact be re-
luctant to adopt this conclusion. Let us give an illustration. The
statutory provisions concerning the formalities of marriage are
in Belgium-as in other countries-is cogens (coercive or com-
pulsory laws). The secularization of marriage, moreover, is
considered in Belgium to be a principle of ordre public.86 Two
NiBoYoy, op. cit. supra note 9, pp. 533 if.; and 10 RfkPxRT0IRu DX DROrr
IN2TRNATIONAIL (1931) No. 15. Niboyet himself stresses the exceptional char-
acter of ordre public. See also Moldovan, supra note 16, pp. 176 ff.; Lien-
hard, supra note 16, pp. 113 if., anid furthermore G. PACCHIONI, EIAMZNTI
DI DIRITrO INT. PRIvATO (1930) p. 196.
' LAURtNTr, op. cit. supra note 74, p. 342; Fiore, CLUNVT, 1886, p. 164; Pi}-
let, CLUNVT, 1892, pp. 16 ff. Further references can be found in Kahn's pa-
per (op. cit. supra note 9, p. 228).
la Cf. Wolff, The Choice of Law by the Parties in International Con-
tracts JURIDICAL Rev., 1937, p. 113.
s A religious marriage celebrated in, Belgium between foreigners in ac-
cordance with the requirements of their national law has been declared nut
by the Belgian courts as repugnant to ordre public: Trib. Bruxelles, Jan. 8,
1927 (Bull. de l'Institut Belge de Droit Compare, 1W, p. 96); cf. 4 LAU-
RENT, op. cit. supra note 74, No. 234; 2 A. ROLIN, PRINCIPES Ds DR. INT.
PR. (1897) p. 84; NIBOYXT, op. cit. supra note 9, p. 732. The same position
has been taken by French courts; see Cour d'appel de Paris, Nov. 17, 1922
(REVut, 1922/23, 443); 2 ARMINJON, PRPCIS Dt DR. INT. PR. (1934) p. 202,
citing other cases and giving further references.
Spaniards have been married abroad; a religious marriage cere-

mony has been performed according to the laws of Spain. Later
the spouses acquire a domicil in Brussels. The courts of Brus-
sels will recognize the validity of the marriage, in spite of the
fact that its performance was in contravention of the "territorial
law" of the forum.87
The decisive question is, plainly, what is meant by "absolute
authority within the territory of the state"? When is a right or
other interest considered to be within the territory of the forum?
No universally valid formula will answer this question. So much
is clear: it is not the so-called territoriality of a rule that decides
whether or not the rule has the quality of ordre public, and hence
bars the application of foreign law. The concept of territoriality
implies the concept of extra-territoriality and vice versa. So at
last we arrive at the question, what is the meaning of "extra-
territoriality" in the Romanic school. Extra-territoriality ac-
cording to the opinion of this. school, coincides with the domi-
nance of the law of nationality; such laws as are "personal and
national" 88 are considered extra-territorial, inasmuch as they
have an "extra-territorial effect" by following the person wher-
ever he goes.
But this view of an extra-territorial operation of national law
must be rejected."9 What is improperly called an extra-territorial
effect, is a phenomenon appearing in the province of Private In-
ternational Law, wherever foreign law-personal or real-will
be applied. If, in one instance concerning interests in land, the
forum of state X applies the laws of real property of state Y, in
which the land is situated, are we not entitled to speak of "extra-
territorial effect" of the law of Y, in precisely the same sense as
in another case where the forum determines that the status of
A, a national of state Z, shall be governed by the law of Z? 90
This phenomenon must not be judged from the standpoint of the
87 Cf. Trib. Anvers, March 9, 1911, REvuE, 1912, 436.

' See supra p. 20 before note 72.
' This view is an inheritance from the statutory doctrine of the early
Italian school in the 14th and 15th century, and survives still in the work of
Story. It is one of the accomplishments of the modern vested rights theory
to have broken with the concept of the extraterritorial operation of f oreign
law; of. Beach, supra note 50, pp. 651 ff.
Cf. F. KAHN, op. cit. supra note 9, p. 227.
applicable foreign law, for from this standpoint we should in fact

derive the impression, that the foreign law-by its own force
operative outside its territory-is intruding into the territory of
the forum. It is the law of the forum, which, in the operation of
the foreign law, plays the active and decisive role. Inasmuch as
the forum applies the rule of its Law of Conflict of Laws, which
determines that foreign law shall govern the case, such foreign
law as has been selected becomes operative. Foreign law by it-
self is powerless to operate beyond the boundaries of its own
territory,-as is also the domestic law of the forum.91
It is not the character of a rule as territorial or extra-territorial,
as personal or real, that determines whether or not such rule bars
the application of foreign law by reason of ordre public (or public
policy). The concept of territoriality masks another problem,
that of the relativity of ordre public.92 The function of a rule
of law in regard to ordre public is a relative one; it depends on the
particular circumstances of the case. What matters in effect is
whether there are substantial contacts between the particular case
and the forum, and whether the interest of the forum in the liti-
gation is superior to that of the foreign state.93 "The criterion
determining whether the local policy is to nullify a foreign law
in a particular case is the closeness of the relation between the
case and the forum." 94
As a matter of fact, the courts of the states of the Romanic
group have been extensively guided by the "rule of relativity" in
cases involving ordre public.95 This relativity prevents the es-
tablishment of definite principles for the operation of ordre pub-
lic, and makes it almost impossible to tell a priori whether a rule
of the domestic law belongs to the province of ordre public. The
realization of this fact in France has promoted the idea, favoured
Cf. supra p. 16.

92 LUWALD, op. cit. supra note 16, ? 4; NUSSBAUM, op. cit. supra note 28,
p. 63.
' See Hartford Accident and Indemnity Co. v. Delta and Pine Land Co.,
292 U. S. 143, 150 (1934); Alaska Packers Ass. v. Industrial Acc. Commis-
sion, 294 U. S. 532, 549 (1935); also Note (1934) 34 COL. L. Rj~v. 952.
X Note (1936) 45 YALE L. J. 1463, 1470.
9 The cases cited above from the jurisdiction of French, Belgian and Ital-
iar, courts point clearly in this direction, and many others could be mentioned.
at present by many authors,96 that it is the task of the judge 9

to determine whether the case before the court is one in which
ordre public is involved.
Gerhart Husserl.
UNIVERSITY, VA.
See e. g., SURVILLE, op. cit. supra note 1, pp. 51 ff.; NIBOYET, op. cit. supra
note 9, pp. 545 ff., and in 10 REPERTOIRM DE DROIr INTERNATIONAL (1931) No.
72; Solodovnikoff, supra note 11, pp. 8 ff., 235. Contra: 1 ARMINJON, op. cit.
suipra note 14, p. 202. Cf. A. K. KUHN, COMPARATIVE COMMENTARIES ON
PR. INT. LAW (1937) p. 41.
" Such an idea meets with decided opposition in this country. "Whether
recognition of a right acquired abroad should be granted or withheld is es-
sentially a political question dependent on factors which cannot be accurately
ascertained by the use of judicial machinery. To allow the courts to decide
it is to open the door to variable individual conceptions of policy on the one
hand, and a blind adherence to precedent on the other, as may be abundantly
demonstrated." Nutting, supra note 50, p. 202.
The same view has been expressed in various English decisions. The lead-
ing case in the matter is Egerton v. Brownlow, 4 H. L. Cas. 1, 123 (1853),
frequently referred to in the sequel, see, e. g., Continental Tyre and Rubber
Co. v. Daimler Co., (1915) 1 K. B. 893, 912 (per Lord Reading); Fender
v. St. John-Mildway, (1938) A. C. 1, 10 (Lord Atkin and Lord Wright);
furthermore, Cave, J. in Re Mirams, (1891) 1 Q. B. 594; Janson v. Driefon-
tain Consolidated Mines Ltd., (1902) A. C. 484, 491/2 (per Earl of Heals-
bury). Egerton v. Brownlow, although not a conflict of laws case, deserves
our attention, since it has strongly influenced the English doctrine of public
policy in general. The decisive sentences (written by Mr. Baron Parke) are
on p. 123 and read as follows: "It sc. 'public policy'-is capable of being
understood in different senses; it may, and does, in its ordinary sense, mean
'political expedience,' or that which is best for the common good of the com-
munity; and in that sense there may be every variety of opinion, according
to the education, habits, talents and disposition, of each person who is to de-
cide whether an act is against public policy or not. To allow this to be a
ground of judicial decision would lead to the greatest uncertainty and con-
fusion. It is the province of the statesman and not of the lawyer to dis-
cuss, and of the legislature to determine, what is the best for the public good,
and to provide for it by proper enactments. It is the province of the judge
to expound the law only * * *, not to speculate upon what is the best,
in his opinion, for the advantage of the community * * ."

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Public Policy and Ordre Public

Author(s): Gerhart Husserl

PUBLIC POLICY AND ORDRE PUBLIC

A and B, French lawyers domiciled in Marseille, are spend-

See 2 PILLET, TRAITE PRATIQUE DE DROIT INTRNATIONAL PRIVf (1924)

Polish Statute on Private International Law, August 2, 1926. RtvuE Dr

terne, territorial laws or laws of ordre pu

See 1 BUSTAMENE, DERECHO INTtERNACIONAL PRIVADO (2d ed. 1934)

The concepts of public policy and of ordre public do not fully

unsuccessful. We must not let that discourage us. Ordre pub-

and constitutional provisions. The basic attitude toward the

its divorce (see Art. 52 of the Spanish Civil Code).2 If a French

' Trib. Bayonne, June 14, 1898, CLUNZT, 1899, 127.

this line of thought was Justice Story, the father of Anglo-Amer-

M STORY, CONFLICT oF LAWS ([St ed. 1834) ?? 18 ff., ?? 34 ff.

tional Law consists of rules of reference which

' Nolde, supra note 7, at 414, 415.

make an abstraction from the contents of the substantive law, the

2 ARTHUR NUSSBAUM, DEUTSCHES INT. PRIVATRECHT (1932) p. 60.

32 Recently cf. A. Mendelsohn Bartholdy, (I1935) 16 BRITISH YEARBOOK Og

eign statute of limitations will be barred under certain circum-

the German ordre public if the Swiss law-Schuldbetreibungs-

Dr DROIT INTERNATIONAL (1931) (sub verbo "Prescription liberatoire")

Let us assume now that a similar suit is brought in a French

not grant a cause of action, whereas there is < cause of action

however, it refused to do. No duty is imposed by German law

morals of expediency, and to debatable questions of internal

' Beach, Uniform Interstate Enforcement of Vested Rights (1918) 27 YALt

vate International Law. Looked upon through the eyes of a

The system of Private International Law erected by Savigny

differ in other respects, agree in this: that they are withdrawn

' Savigny, op. cit. supra note 52, p. 38 (Guthrie, 80).

The question is whether it will be possible to stop the encroach-

But the edifice of Continental Private International Law was by

s NUSSBAUM, op. cit. supra note 28, p. 60.

ent nations-nations, not states; at the time when Mancini de-

' See supra note 53.

system is conceivable in which the principle of nationality gov-

" Mancini, supra note 70, pp. 292, 297.

Pillet makes a basic distinction between permanent laws and

the law of nationality,84 whereby it ceases to be an exception in

Spaniards have been married abroad; a religious marriage cere-

87 Cf. Trib. Anvers, March 9, 1911, REvuE, 1912, 436.

applicable foreign law, for from this standpoint we should in fact

Cf. supra p. 16.

at present by many authors,96 that it is the task of the judge 9

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