The Paradigm Analysis On Conflict Of Laws

The conflict of laws has a long history of seven centuries. The history of the conflict of laws could be defined as a history of doctrines. Since the Statute Theory developed centuries ago, numerous doctrines have appeared with distinct characteristics. This article applies Kuhn's "paradigm theory" as a method of research to the analysis of the historical development of the theory of conflict of laws, which aims on the one hand to recognize, illuminate and evaluate the main paradigms developed in the history of the theory and in this sense analyze the paradigm attribution of different doctrines, while on the other hand to speculate the basic theoretical trends of the conflict of laws according to the internal logic of the theory and the problems raised in the development.This article consists of three parts:introduction, main part and conclusion. The introduction is about the research on the economic analysis on conflict of laws and the dilemma in its application to conflict of laws. It points out the specificity of conflict of laws, especially the specificity of choice-of-law rule. It calls on an analysis on more in-depth level. The theory of conflict of laws has two characteristics, one is the reliance on the doctrines; the other is the apparent revolutionary change in its history. In order to make a better analysis of the two characteristics, this article chooses Kuhn's "paradigm theory" as the research base and the whole new methodology.The main part contains five chapters.Chapter one is an overall introduction on the "paradigm theory" and how it applies to study on the conflict of laws. The paradigm theory is a theory on philosophy of science and technology proposed by Kuhn, but it could be applied to various disciplines of social sciences broadly. First, it introduces the background and the theoretical characteristic evident as a new concept of scientific development. Then it systematically illustrates the main contents of the "paradigm theory" from three aspects:the concept of paradigm, the category of science community, and the theory on scientific revolution, while accordingly proposes and explains the basic categories of the three aspects and the basic contents included. The paradigm is manifested in the form of theoretical doctrine and attached to science community composed by scholars and legal practitioners. Furthermore, the historical development of conflict of laws also follows the process from "pre-paradigmatic period" to "normal science period", and to "scientific revolution period". Especially, it analyzes the general characteristics and criteria of the crisis and the revolution of the theory of conflict of laws.Chapter two is a wholly re-discussion on the first paradigm of conflict of laws "the paradigm of Statute Theory". The first part of this chapter is an introduction of the pre-paradigmatic period before the appearance of Statute Theory, indicating the theoretical accumulation and historical inevitability of the Statute Theory. The second part of this chapter is a re-examination of the Statute Theory. With the use of principle of the "incommensurability" between different paradigms, it analyzes the metaphysics inclination of the Theory. As this doctrine constructs choice-of-law rule on the position of nation-state, it has a kind of particularistic inclination essentially. While on the other hand, it looks for the equality of statutes of different nations, so it has a form of universalism. Owing to the particularistic nature of the theory in the following centuries of development, it develops gradually towards to more extreme particularistic-nationalism. This is reflected in the theories of D'Argentre, Dumoulin and Huber, which could all be attributed to the paradigm of Statute Theory, but the trend of particularism is more open and straightforward.Chapter three focus on the second paradigm of conflict of laws------the paradigm of "Sitz des kechtsverh altuisses". The research starts from the applicability and inherent defects analysis of the paradigm of "Statute Theory", examines the social causes and characteristics of anomalies, points out that the crisis of the Statute paradigm attributes mainly to that the particularistic inclination cannot adapt to the universalized and globalized trend of civil and commercial communication pushed by the formation of the capitalist world. Savigny's theory changes the domain of problems of the Statute paradigm, innovates the Bartolus Paradigm on system of rules, values and metaphysical aspects. In particular, Savigny paradigm stands on the "international community", treats law rules of different countries equally, looks for unified choice-of-law rules, pursuits the consistency, certainty and predictability of judicial decisions. Thus it is the real universalism "internationalist". Savigny paradigm overcomes the particularistic inclination of Bartolus paradigm and has a profound effect on the European law community.Chapter four firstly sorts out and analyzes the doctrines emerged in the. Revolution of conflict of laws in American, reveals the crisis of Savigny paradigm in the new context of the international community and the challenges made by particularism. Beale's theory of "vested rights" and the first Restatement of Conflict of Laws have the tendency to return to Bartolus paradigm. The "Government interests analysis" of Currie profoundly reveals the limitation of Savigny paradigm, but also push the theory of conflict of laws into extreme particularism------nationalism or regionalism. Both the one-sided, idealistic universalism and the one-sided, extreme particularism cannot provide a reliable mode for the development of conflict of laws. But the doctrine of "the most significant relationship" indicates that a new paradigm is emerging. The new paradigm is designed to overcome the one-sidedness of both universalism and particularism and to seek unity or equity of the two sides. So the new paradigm is defined as the "equity paradigm" in this article.Chapter five is an analysis of the development trends of conflict of laws. This chapter starts from the advantages, limitations and risks examination of "the most significant relationship" doctrine and follows with a preliminary study of the development trend of the paradigm------the unity of both substantive justice and formal justice and the unity of universalism and particularism. Through the theoretical analysis of formal justice and substantive justice, this article states that the further development of conflict of laws should be the internalization of the formal justice into the substantive justice via the construction of legal principles and law rules. With the establishment of a perfect system of legal rules to constrain the judges'discretion in choice of law rules, it aims to ensure both the consistency, certainty, predictability and the substantive justice of the use of conflict of laws. Through the theoretical analysis of universalism and particularism, this article states that the conflict of laws should keep a perspective of universalism, while fully consider the sovereignty and government interests of all countries. The key point is to treat national laws, national sovereignty and government interest of different countries equally while paying attention to the common interests manifested in international communications and international order under the context of economic globalization.The conclusion is a short summary of this research and a further exploration on the significance of the paradigm theory in conflict of laws.The introduction of Kuhn's Paradigm Theory to the research of conflict of laws is a new attempt of this article. The significance of the paradigm is not merely that it fairly judges the traditional doctrines, explains the relationships between doctrines more logically, but also on the whole analyzes and studies the structural features of the theory, provides more scientific foundation for the identification of the development trend and path of conflict of laws. However, the research is still very preliminary and needs to be expounded further.