Conflict of Law

Comprehending laws and contracts is impossible, unless we first learn the meaning of the words and phrases they contain.

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Conflict of Law

Post by editor » Sat Nov 07, 2015 10:55 pm

Conflict of Law.
Black's Law Dictionary, 6th Ed.

Conflict of laws. Inconsistency or difference between the laws of different states or countries, arising in the case of persons who have acquired rights, incurred obligations, injuries or damages, or made contracts, within the territory of two or more jurisdictions. Hence, that branch of jurisprudence, arising from the diversity of the laws of different nations, states or jurisdictions, in their application to rights and remedies, which reconciles the inconsistency, or decides which law or system is to govern in the particular case, or settles the degree of force to be accorded to the law of another jurisdiction, (the acts or rights in question having arisen under it) either where it varies from the domestic law, or where the domestic law is silent or not exclusively applicable to the case in point. Restatement, Second, Conflicts of Law, Sec. 2. See also Center of gravity doctrine; Choice of law; Grouping of contacts; Kilberg doctrine; Lex celebrationis; Lex loci contractus; Lex situs; Lex solutionis; Lex validitatis; Renvoi doctrine.
Bouvier's Law Dictionary

CONFLICT OF LAWS. This phrase is used to signify that the laws of different countries, on the subject−matter to be decided, are in opposition to each other; or that certain laws of the same country are contradictory.

2. When this happens to be the case, it becomes necessary to decide which law is to be obeyed. This subject has occupied the attention and talents of some of the most learned jurists, and their labors are comprised in many volumes. A few general rules have been adopted on this subject, which will here be noticed.

3. − 1. Every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The laws of every state, therefore, affect and bind directly all property, whether real or personal, within its territory; and all persons who are resident within it, whether citizens or aliens, natives or foreigners; and also all contracts made, and acts done within it. Vide Lex Loci contractus; Henry, For. Law, part 1, c. 1, 1; Cowp. It. 208; 2 Hag. C. R. 383. It is proper, however, to observe, that ambassadors and other public ministers, while in the territory of the state to, which they are delegates, are exempt from the local jurisdiction. Vide Ambassador. And the persons composing a foreign army, or fleet, marching through, or stationed in the territory of another state, with whom the foreign nation is in amity, are also exempt from the civil and criminal jurisdiction of the place. Wheat. Intern. Law, part 2, c. 2, _10; Casaregis, Disc. 136−174 vide 7 Cranch, R. 116.

4. Possessing exclusive authority, with the above qualification, a state may regulate the manner and circumstances, under which property, whether real or personal, in possession or in action, within it shall be held, transmitted or transferred, by sale, barter, or bequest, or recovered or enforced; the condition, capacity, and state of all persons within it the validity of contracts and other acts done there; the resulting rights and duties growing out of these contracts and acts; and the remedies and modes of administering justice in all cases. Story, Confl. of Laws, _18; Vattel, B. 2, c. 7, _84, 85; Wheat. Intern. Law, part 1, c. 2, _5.

5. − 2. A state or nation cannot, by its laws, directly affect or bind property out of its own territory, or persons not resident therein, whether they are natural born or naturalized citizens or subjects, or others. This result flows from the principle that each sovereignty is perfectly independent. 13 Mass. R. 4. To this general rule there appears to be an exception, which is this, that a nation has a right to bind its own citizens or subjects by its own laws in every place; but this exception is not to be adopted without some qualification. Story, Confl. of Laws, _21; Wheat.
Intern. Law, part 2, c. 2, _7.

6. − 3. Whatever force and obligation the laws of one, country have in another, depends upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. Huberus, lib. 1, t. 3, _2. When a statute, or the unwritten or common law of the country forbids the recognition of the foreign law, the latter is of no force whatever. When both are silent, then the question arises, which of the conflicting laws is to have effect. Whether the one or the other shall be the rule of decision must necessarily depend on a variety of circumstances, which cannot be reduced to any certain rule. No nation will suffer the laws of another to interfere with her own, to the injury of her own citizens; and whether they do or not, must depend on the condition of the country in which the law is sought to be enforced, the particular state of her legislation, her policy, and the character of her institutions. 2 Mart. Lo. Rep. N. S. 606. In the conflict of laws, it must often be a matter of doubt which should prevail; and, whenever a doubt does exist, the court which decides, will prefer the law of its own country to that of the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide, generally, Story, Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of Laws; Foelix, Droit Intern.; Huberus, De Conflictu Leguin; Hertius, de Collisions Legum; Boullenois, Traits de Ia personnalite’ et de la realite de lois, coutumes et statuts, par forme d’observations; Boullenois, Dissertations sur des questions qui naissent de la contrariete des lois, et des coutumes.
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Re: Conflict of Law

Post by notmartha » Mon Nov 09, 2015 12:15 pm

Thank you for starting this topic as “conflict of law” is an important term to understand. There is definitely a conflict between the Laws of God and the laws of man, and it is impossible to serve both:
“No servant can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.” Luke 16:13 (KJV)
“Thou shalt worship the Lord thy God, and him only shalt thou serve.” Luke 4:8 (KJV)
We cannot do the impossible, and no one is bound to an impossibility. But humbugs are not aware of this impossibility unless they are told.

I believe we are to follow the example set forth by Jehoshua and recorded in Matthew 4:1-10 and Luke 4:1-14. He created a conflict of law by standing in the Kingdom of God, deposing the Word as His Law, and establishing Satan’s lack of authority/jurisdiction.

I also liked your use of a flag in your Account of how a "conflict of law" can be established.

Here are some additional references for further consideration.

Black’s Law Dictionary, 1st edition, 1891
conflict of law blacks 1.JPG
conflict of law blacks 1.JPG (62.55 KiB) Viewed 4415 times
From Wex Law Dictionary:
Conflict of Laws

A difference between the laws of two or more jurisdictions with some connection to a case, such that the outcome depends on which jurisdiction's law will be used to resolve each issue in dispute. The conflicting legal rules may come from U.S. federal law, the laws of U.S. states, or the laws of other countries.

The question to be asked by one concerned with conflict of laws is: "what law should be applied to the case at hand?" The process by which a court determines what law to apply is sometimes referred to as "characterization", or "classification." This determination must be made in accordance with the law of the forum. A federal court in a case before it based on diversity of citizenship, for example, determines the conflict of law issue as if it were the highest court in the state in which it is sitting.

Courts faced with a choice of law issue generally have two choices: A court can apply the law of the forum (lex fori)-- which is usually the result when the question of what law to apply is procedural, or the court can apply the law of the site of the transaction, or occurrence that gave rise to the litigation in the first place (lex loci)-- this is usually the controlling law selected when the matter is substantive.

Federal courts play by different rules than state courts because federal jurisdiction is limited to what has been enumerated in the Constitution. The rules that federal courts must obey regarding which laws to apply are extremely complex.
Misc. Court Cases

Marbury vs. Madison, 1 Cranch, 177.
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of the conflicting rules governs the case. This is of the essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine must subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet in practice completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.”

Smith v. McAtee (1867).
No state will suffer laws of another to interfere with her own; and in the conflict of laws, when it must often be a matter of doubt which shall prevail, the court which decides will prefer the law of its own country to that of the stranger.
Suckley's Administrator v. Rotchford (1855)
"Rule of court must be subordinate to law, and in case of conflict the law will prevail."

For further study:

Commentaries on the Conflict of Laws by Joseph Story, 1846

A Treatise on the Conflict of Laws by Joseph H. Beale, 1935

Closely related to “conflict of law” is "antinomy" (lawlessness) and "comity" (accommodation, but not acknowledgement, of conflicting laws, i.e. a kindness). Maybe, as time permits, we could expand on “escheat” in relation to lawform.
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