METHOD OF INTERNATIONAL PRIVATE LAW

 A comparison of the five main areas in the science of private international law leads us to the following observations:

1. Subjective (or national) method, based on the goals of an individual state, after a more or less persistent struggle wins everywhere over the objective, based on the idea of ​​international communication.

2. The results of such a subjective method for the science of private international law should be considered unequivocally negative. Going astray in different ways to define and meet the goals of individual states, all the theories we have analyzed have proved powerless to create a single system of international law.

 This result is quite natural. The system of international law can be built only on an international basis. The method of this system must be uniform and objective.

 Speaking of "one", we turn mainly against the Dutch theorist of Life, who preaches the need for two methods: individual and universal. This author believes that at present there is no universal belief in the nature of certain legal relations; therefore, the definition of this "nature" (in other words, the purpose for which the legal relationship serves in the world community of people) is the task of the legislator of each state. Life takes Savigny's formula, but gives it an "individual form").

 We believe that the importance of the individual method in our science is slipping away from life. As Pillay rightly points out, “international relations need, above all, a single doctrine of international law. Let this doctrine be imperfect, but it gives international relations more certainty. " If there is currently no general awareness of the "nature" of various legal relations, then there is only one conclusion: it must be developed.

 Life mixes the positivity of the method with its subjective. Clarification of the rules of private international law contained in the positive law of individual states is, of course, of great importance. Comparing the goals of individual territorial systems should help us find the key to resolving a particular international conflict; the coincidence of these "Collisions Normen" will serve as a sign of the formation of a common international belief. It may finally happen that the "conflict rate" of an individual state will be in complete harmony with the interests of international communication.

 But we must never forget that the "international" nature can only belong to the norm, received by international law.

 Thus, the method of private international law should not be individual but positive. The doctrine of private international law extracts its metal from the depths of individual countries, but it melts it in its own smelters.

 Let us now turn to the reasons for the constant deviation towards subjectivism of all the theories we have analyzed.

 About the teachings, which are based on strict territoriality, we will not spread here: these teachings deny any international law, and therefore, of course, arbitrary. Other theories are more or less clearly aware of the need for a supranational beginning, but sooner or later betray it. This is due to the fact that this principle is always a material metaphysical principle, which should serve as a key to resolving any conflicts of law. This is especially sharp in the French theory of statutes (the division of all laws into personal and real) and in the newest Italian school (the principle of nationality, which is limited to the idea of ​​public order). The Italian theory of statutes and the Savigny school, in fact, are little different, resort to the analysis of each individual legal relationship to determine its nature. True, Savigny's school puts forward the idea of ​​international communication, but we have seen that in practice this idea is very often identified with the metaphysical and, consequently, subjective idea of ​​the "nature of things," which has already inspired the Bartholists.

 In our opinion, it is impossible to find a general material principle for delimiting the scope of laws. Niemeyer is absolutely right, saying that the idea of ​​international communication does not give a general, comprehensive formula. In both private and international private law, it is impossible to resolve all the variety of legal conflicts by one magical principle. The idea of ​​international communication has only the significance of the formal beginning of our science. It only means that the subordination of the legal relationship of a law should be guided not by the goals of individual states, but by all international communication. Any further definition of this criterion will again lead us to subjectivism.

  But what is the practical significance of the idea of ​​international communication for the method of our science? How to determine in each case, which decision in accordance with the interests of this communication?

 The answer to this question brings us back to the sources of private international law. We have seen that there are only two of these sources: international custom and international treaty; by the first we mean the coinciding positive law of individual states. Therefore, if we want to clarify any rule of private international law, we must turn to a comparison of territorial laws and customs. The coincidence of them (all or the vast majority) will give us an international norm of the same force as if it were contained in a treaty. But also inconsistent territorial norms are of great importance to us: they indicate different solutions to the same issue and their practical applicability or unsuitability. This value can be fully equated with the value of scientific theories - we are not dealing here with law, but with elements of lawmaking.