School of postglossators in the private international law studies

Abstract

Get’man-Pavlova Irina - Assistant Professor, International Private Law Department, National Research University Higher School of Economics,PhD (law). E-mail: getmanpav@mail.ru
Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.

The paper gives a general review of the role of the school of the postglossators in the formation of the private international law studies. The relevance of the topic is seen in a special importance of the doctrine in international private law. The doctrine as a source of international private law had appeared several centuries before national law. The fundamentals of the international private law study were laid by the postglossators. The famous glossa Quod si Bononiensis is considered the cradle of international private law as it set up the questions of the conflict of laws. However, the doctrine started developing in the late 13 th – 14^th centuries. Its founders were the representatives of the school of the postglossators who started analyzing the conflicts of the provisions in town statutes,i.e. conflicts of laws of different nations in modern terms. Founding private international law theory as theoretical studies and a practical doctrine is attributed to Bartolus de Saxoferrato, however his works were based on some early studies and he had many predecessors as to the collision of laws, inter alia Guillaume Durand, Jacques de Révigny, Pierre de Belleperche, Cino da Pistoia, Albericus de Rosate, and Giovanni Faber. These scholars formulated the conflict of laws principles endorsed in modern laws and thanks to them applying foreign law was for the first time recognized as a legal obligation of state. However, none of Bartolus’ predecessors proposed any of the conflict of laws theory. This can be explained with the fact that in the early 14^th century conflict of laws were of practical nature but case practice was sporadic and the rulers (legislators) were not interested in regulating private relations associated with foreign laws. Conflicts of the laws belonging to different nations were not topical to develop a theoretical approach to make up generalizations and principles. The postglossators are characterized with the focus on contradictions and loopholes in law, dialectic problems, striving to solve them by generalizing legal principles and concepts. The school cherished the values characterizing academic studies, i.e. objectivity, integrity, universal nature, skeptic attitude, tolerance to mistakes, modesty and ability to accept different views.