Private International Law.s Perspective On Roman Law

Roman law is the most influential legal system in human history. However, thereare few comparative studies on Roman law and private international law. Based onthe original documents of Roman law and through the comprehensive and systematiccomparative study, this paper tries to reveal the influence of Roman law on the history,theories, basic principles and systems of private international law, and seek to theenlightenments on solving some problems in the development of private internationallaw.Private international law originated from Roman law. In the process of Romanexpansion, the Roman rulers gradually recognized the legal status of foreigners, andset up praetor peregrinus to try foreign-related civil and commercial cases. Praetorperegrinus created ius gentium mainly made up of the edictum and processo performulas in foreign-related cases. Processo per formulas has the referencesignificance to improve the system of international civil litigation and internationalcommercial arbitration. As the earliest form of unified private law, ius gentiumopened the prelude of harmonious value pursuit of private international law. As a"Renaissance of ius gentium ", the modern unified private law overcomes the inherentlimitations of conflict of laws, embodies the ultimate pursuit of the harmonious valueof private international law, and indicates the trend of the development of privateinternational law in the future.Early theories of private international law, such as "statutes theory","partautonomy theory","international comity theory","the seat of legal relationshiptheory", were the products of European medieval Roman law Renaissance movement.Through these theories’ influence on later generations,"genes" of Roman law werebrought into the modern private international law. In the period of the statute law,theory is not only one of the origins of private international law in many countries, butalso has important influence on the legislation of private international law. The theorybecame a source of law began in Roman law. Compared with the Roman jurists’theories which had a characteristic feature of strong practicality, China’s theories ofprivate international law should overcome the purely theoretical tendency. Roman law has important influence and enlightenment significance on the basicprinciples of private international law, including the principles of equality, legalcoordination and protection of the interests of the weak. First, equality thoughts inRoman law remind private international law that it is necessary to cancelunreasonable restriction of civil legal status to foreigners and impose reasonablerestriction on the application of lex fori. Secondly, ius gentium was a product ofcoordination between Roman law and foreign law, and legal coordination alsoappeared in Roman law’s absorption of foreign laws. These set a good precedent forthe unification of private international law and the convergence of domestic law.Thirdly, the thoughts to break formal justice and pursue essential justice embodied inprotection of the interests of the weak in Roman law, and the practice that the praetorwas given the full discretion of the judge, have the reference significance on theprinciple of protection of the interests of the weak in private international law.Some basic systems of private international law, including evasion of law andreservation of public order, originated from Roman law. First, praetor and juristcreated new laws by evading conservative old rules of ius civile, meanwhile, theparties’ evasion of law was not uniformly invalid in Roman law. These help to reflecton the subjects and the effectiveness of the behavior of evasion of law in privateinternational law. Secondly, Roman law did not define "what is public order", but didanswer "what is a public order" in the specific rules of strict applicable condition.These have the reference significance on private international law. Moreover, theinternational public order originated in ius gentium will have a larger developmentspace.