Earlier this year, Charlotte Guillard defended her dissertation at the University of Paris II Panthéon-Assas on Conflict justice and material justice : pertinence and sustainability of the distinction. Study in private international family law (Justice matérielle et justice conflictuelle : pertinence et pérennité de la distinction en droit international privé).
The author has provided the following summary in English:
The distinction between conflict of laws justice and substantive justice has its origin in an academic attempt to foster an idea that has proved crucial to the general theory of private international law. This idea builds on the intuition that private international relations need to be processed specifically by the law, which implies in turn a customized conception of justice, namely conflict of laws justice. In this perspective, conflict of laws justice aims at fulfilling the diverse interests at stake in a private international relation: the interests of the different parties involved and the interests of the domestic legal systems. In the context of conflict of laws, conflictual justice manifests itself methodologically through the classical (“savignian”) conflict of laws rule, a rule that purports to accommodate those interests, without taking into account the substantive aspects of the situation. As an exception, conflictual justice may give way to substantive considerations. In that case, another conception of justice, one that is substantive, takes precedence.
The methodological manifestations of substantive justice are varied. It is usually associated with tools that seek to defend or promote imperative values within each State’s legal order, such as the exception of public policy of the forum (“exception d’ordre public international”).
This articulation of the different conceptions of justice is usually presented as following a principle/exception organization, thus providing a framework for private international law. The borderland between the two conceptions of justice muddled, however, as a result of an evolution in the field of private international law.
The change in the field that is most striking lies with its materialization. Overriding mandatory rules, fundamental rights, as well as the development of conflict of laws rules that achieve substantive aims are obvious examples.
Increasingly, the diverse methods of regulation specific to this legal field have been seen to borrow routinely from both conceptions of justice, shaking the classical distinction.
This research explores the remaining pertinence of the framework provided by the distinction between conflict of laws justice and substantive justice, and the appropriateness of its conservation in the field of contemporary private international law.
The study was conducted within the scope of private international law relating to family and personal matters. It is indeed within this restricted field that the questions raised are most sensitive, owing to continuing legal particularisms and national specificities, a natural breeding ground for the materialization of PIL.
As an outcome, this study shows the many weaknesses in the classical representation of the distinction between the two conceptions of justice. The actual meaning of each conception remains elusive and their mutual articulation according to a principle/exception organization is no longer reflected in positive law. Further, this study purports to offer an articulation of the two conceptions of justice that would better serve current PIL.
In this perspective, it appeared necessary to shed two commonly accepted ideas which have unnecessarily confined PIL until now. The first one relates to the conception of conflictual justice as being neutral. The second one seeks to limit substantive justice to the internal conceptions of each legal order.
This study purports to redefine the distinction between the two conception of justice while still conceptualizing their articulation according to a principle/exception organization, in which the conflictual conception of justice features as principle. This private international law conception of justice should ideally result in the conciliation of the diverse interests at stake, in order to achieve international legal harmony (of solutions) with regards to private international relations.
Whenever such an outcome appears unachievable (or merely irrelevant), substantive justice shall step in to ensure that one interest prevails over the others, without any predetermined preference. There is something to gain in such a reconfiguration. Namely, it would allow for a more satisfying distribution of PIL methods between the two conceptions of justice. This would be particularly beneficial regarding fundamental rights, whose role remains a thorny methodological issue in PIL. The proposed reconfiguration could create an opportunity to see them not merely as an expression of substantive justice (in keeping with the majority view) but also in relation to the private international law conception of justice.
Through this reconceptualization, the distinction between the two conceptions of justice may aspire to be more than abstract academic construction. It indeed appears as a useful tool in the organization of the methodological pluralism in private international law. This can prove critical to help authorities dealing with PIL questions to better handle their task in choosing the right method and reaching the right solution.
Dr. Guillard presented her study in a conference in Paris in March 2021 which can be watched here (in French).
Great! A profound criticism of the artificial distinction between conflicts justice and substantive justice was long overdue. Let’s hope that this thesis gets published soon.
In all modesty, I have the impression that Dr. Guillard underlines that G. Kegel, E. Rabel and F. Gamillscheg (among many others) were right. The contamination of international law by “material values” is nothing more than its simple substitution by the law of the forum, which is negative: forum shopping, legeforism, situations with limited territorial validity, breaking the principle of predictability of the law……
Thus, public policy, lois de police and even materially oriented conflict rules are nothing more than excuses for applying the law of the forum to situations that are more connected with another country than with the State whose courts are hearing the case (the forum). This leads to two conclusions: (a) If the localisation made by the conflict rule is correctly carried out, neither the lois de police nor public policy should ever intervene; (b) It is highly recommendable to read the work of V. HEUZÉ, “Un avatar du pragmatisme juridique: la théorie des lois de police”, Revue critique de droit international privé, 2020, n.1, pp. 31-60, which highlights, among other things, that the theory of lois de police is nothing more than an exercise in legal pragmatism carried out by the courts when the localisation effected by the conflict rule has not been adequately made. Finally, a study of the genesis of Art. 3 of the French Code also makes it possible to affirm that only public law should be applied according to a unilateral method when the legislator so provides. Private law rules must not follow the unilateral method, but the bilateral method of the conflict rule. Only in this way is it possible to provide foreseeable legal solutions to individuals involved in international life (one may see the heterodox approach presented by: J. Carrascosa González, Derecho internacional privado y dogmática jurídica, Granada, Editorial Comares, Colección “Ciencia Jurídica y Derecho Internacional”, Granada, 2021, ISBN 978-84-1369-138-1 (280 pp.).
Many of us are looking forward to reading Dr Guillard’s thesis …..
Thank you for your observations. I’m very pleased to see that the subject triggers your interest !
One goal of my research was indeed to think about the strength of the assumptions which suggest that materialisation of PIL is just the symptom of the lex forism movement and should consequently only can be received with hostility or scepticism.
It appears to me that this idea should be tempered. Beyond the debate bilateralism vs unilateralism, substantive justice may not be reducible to the forum justice (cf. fundamental rights, for instance, may serve substantive justice and in the same time, provide interests of individuals), and moreover, substantive justice should serves PIL when the conciliation of interests is not possible or desirable.
I Hope my thesis will be soon accessible for all. In the meantime, I thank you for your enthusiasm about my work.