Politeness in Ulrik Huber’s Confliсts of Laws Doctrine

Abstract

Get’man-Pavlova Irina - Assistant Professor, International Private Law Department, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: getmanpav@mail.ru

The paper features the concept of politeness developed by Ulrich Huber (1636 - 1694), the 17 th  century lawyer. This author’s works were the quintessence of the Dutch conflict of laws theory. Huber’s works show in relief the doctrine of international politeness underlying the Dutch school of statutes. The doctrine of international politeness represents a most important but the least realized canons of law used by courts to resolve the disputes associated with foreign laws. The challenge to define international politeness may be accounted for the fact that the previous research has not dealt with the historical aspect of the conflict of laws. This problem has remained relevant which requires its scientific study. The doctrine of politeness as we know it arose in the 17 th  century at the time of emerging national states in Europe. It was founded by the lawyers representing the prosperous Dutch middle class. Though the theory was coined by Pavel Voot, it was popularized by Ulrich Huber. He was the first to introduce the phrase  comitas gentium  to describe the application of foreign law and the development of international politeness starts with him. Huber’s axioms outlined the most relevant issue of the conflict of laws, i.e. how international law can be applied within national jurisdiction if this law lacks any territorial nature? Actually, this scientist was the first who attempted to clear up the most controversial and ambiguous point: why a foreign sovereign in its state allows for a foreign law. In Huber’s theory politeness served both theoretical and legal rationale to solve the problems of the conflict of laws – court in one country could apply the law of another country relying on international politeness. The paper concludes that almost all Huber’s axioms have became part of modern doctrine and legal practice especially in common law countries. Huber may be considered the founder of the theory of national nature of conflict of laws and simultaneously – the founder of the international law theory in international private law.