The Historical Logic Of Conflict Of Laws

The historical logic of Conflict of Laws in this thesis refers to the macro tendency that presents itself in the evolution of this discipline. Since the 13^th or 14^th Century, the history of Conflict of Laws has been blossomed with various ingenious doctrines which drew a sketch of its historical logic that can be best interpreted from the perspectives of conflict justice and material justice. As a keynote speaker for the continental conflict-of-laws scholars, Savigny puts forward a most grand conflict justice doctrine the world has ever known which still works as the foundation of the current Private International Law. However, the absence of material justice in this scene has inevitably led Conflict of Laws to a dead end where Savigny's successors began their rethinking and endeavored to combine them. In this sense the so-called "conflict-of-laws revolution" in the United States is more a logical continuation than a betrayal to Savigny's seat doctrine. Given the impossibility of harmony between conflict justice and material justice in this context, radical scholars as Currie in the conflict-of-laws revolution jumped into the arms of the latter and resort to lex fori principle which, however, is another dead end for the Conflict of Laws at the background of ethic pluralism and ethic relativism in the international community. It seems that the Conflict of Laws has no other way out of this dilemma after such a long adventurous journey. As a result, "back to rules" again becomes a motto for the post-revolution period, while it is still under doubt whether rules can ever produce a long-wanted justices harmony. Therefore, the ideal outlet for Conflict of Laws is to expose historical contradiction in its evolution and get over conflict through conflict itself.The doctrines of the Conflict of Laws up to now have formal logic as its ratiocination method. But because formal logic just assures there is right logic in the reasoning process, whether the reasoning conclusion is right has to depend on whether the reasoning premise is right. When contemporary doctrines of conflict law constitute the method of application of law and choice of law, it always set a premise for itself. But such premise is classified into two kinds, aiming at conflict justice or aiming at the justice of lex fori, which have the same characteracteristics that do not change the contemporary diverse legal systems and constitute their propositions on the basis of admitting and maintaining the diverse legal systems, and deduce the law applied as a reasoning logic premise. Because the proposition itself has included the contradicting justice structure, this contradicting justice structure was maintained and transited into the result of the choice of law by the process of formal logic reasoning, and the result of the choice of law obtained at last has two possibilities: maintaining the spirit of the conflict justice, or sticking to the character of the justice of lex fori. But as for the wish to complete justice, both of the results are suffering. However, people require that in the premise of no change of contemporary devise legal systems, the material justice should be deduced by reasoning of formal logic, which is, no doubt, a requirement exceeding the ultimate of formal logic. Because in nature, the formal logic reasoning method is a physical change process, not a chemical change process. And the diverse legal systems included in the premise constituted by all kinds of the theory of conflict law cannot be eliminated and corrected by physical change. On the contrary, like a microscope, formal logic discloses the diverse justice structure hidden in the premise. The formal reasoning of the contemporary theory of law preordained that it cannot get rid of the "original sin" of the premise. And the formal logic reasoning is neither the way of redeeming the "original sin". The real retrieval is to understand dialectical significance that the formal logic reasoning is so incapable that cause to the serious conflict. In fact, it can form common value judgment to make the theory of conflict law accomplish the history change from formal logic to dialectical logic.Whether experience history or pure logic, the theory aiming at the conflict justice or lex fori justice cannot obtain the complete material justice for conflict law. Only on the horizon of universal ethic, the material justice of conflict law is complete. However, the achievement of the universal ethic can be created only by the dialectical logic. It is different from the formal logic that impress the contradict structure included in the proposition. As a logic inspiriting life, the dialectical logic commits itself to the imperfect, to change the incomplete reality and to constitute complete diverse legal systems. It stimulated life by the severe conflict of the formal logic, creates unified legal system by inspiring persons thinking, comparing, distinguishing, talking, communicating and transferring and eliminates conflict by conflict. Therefore, the history process of conflict law represented the combination of formal logic and dialectical logic. As an apparent logic, the formal logic disclosed and expressed the legal conflict to the extreme, making the peaceful world show itself as a misery world in the view of conflict laws. But the real spirit hidden behind the formal logic changes the conflict diverse legal systems into universal ethic by the effect of the dialectical logic.The changing strength of the dialectical logic is not magic power, whose pivot is the wisdom and sense of human, arm of force is the human history, action point is the legal conflict of diverse legal systems and action aim is changing incomplete ethics into a universal ethic. Legal conflicts should be restricted and eliminated by the universal process of ethics. There are three "golden rules" in the form of the universal ethic in the human history, which is the golden rule of Confucianism, the golden rule of Christianity and Kant rule. Because the Kant rule integrated the intension of the first two modes, it had the universal ethic qualification. The application to conflict law of Kant rule caused the Savigny system to be constituted, but its application to entity law logically caused the universal ethic to come into being.According the universal ethic, the whole world might share some basic ethical norms and values. Law is the systematic expression of ethics, and the universal ethic will cause laws to be harmonized and unified step by step. Considering that the law itself is the synthesis of the subjective elements and the objective elements, the legal conflict caused by dialectical logic will avoid the subjective legal conflict and maintain the objective legal conflict because of the accomplishment of the universal ethic. The historical mission of the conflict law centralized to limit to clear up the objective legal conflict. Till then, the conflict law completed three changes in technique philosophy, ontology and survival philosophy. There were two procedures in the change of technique philosophy. One is from calculus to spirit numismatics; the other is from spirit numismatics to self-consciously sacrifice itself. One of the two changes of ontology is that the reality of the conflict law changed from legal principle to ethic, the other is from ethic to religion. The change of survival philosophy is that the conflict law changed from the tool of life to the reality of life, because conflicts are not the phenomenon that the life of human has to exclude and on the contrary, conflicts are the conditions that human survive. The ideal of Conflict of Laws is to put an end to legal conflicts so that it may make a descent retreat from the history. But the death of the old conflict law makes the conflict law reborn, because the structure of legal conflict will be transformed into conflict of human in living. A new macroscopic conflict structure began to develop in the ruins of legal conflict. The rebirth of conflict law began to extend to a completely new mission responding to the new conflict law structure. The new conflict structure will no more be localized in human, but will break the boundary of states and create a new "legal" conflict within the harmony between human and nature. The mission of the new "conflict law" is to coordinate the conflicts between human and nature, human and the unusual wisdom, human and selfhood. And finally, conflict law will show us a true, good and beautiful picture of living.