Situations of private international law have largely fallen to be dealt with by judges, guided not by legislation but by their experience and by the writings of jurists. The technicalities of private international law have been very properly left to the working out by judges in the course of decisions, and this situation obtains not only in the area of the common law, but in French law and many civil law systems. The solutions that have been devised have been reached in a conscious context of international society within an area of judicial discretion, in which judicial training and tradition and the whole social context of moral standards can be made effective. From the point of view of social values and moral standards the starting point is, indeed, the society in which the judge has been trained and has grown up; but the international quality of the problem with which he has to deal gives him a wider horizon and compels him to take account of the standards of international society and the expectations of parties who transact business across international frontiers. A realisation of this factor can be seen in many ways. It can be seen in the extended categories of classification, in which the concepts of municipal law are expanded to deal with the analogous, but not completely similar concepts, of other systems. It can be seen in the acceptance and application of foreign choice of law rules different from those of the law of the forum. It can be seen, above all, in the particular decisions of courts and certainly in those of the common law. The decision in Cheni v. Cheni, with which we began, provides a good example.
So far as the development of the English conflict of laws is concerned, and indeed that of the British Commonwealth, we may well take as a starting point the form of oath which a judge must swear on first taking office. In this oath the judge swears to "do Right to all Manner of People after the Laws and Usages of this Realm, without Fear or Favour, Affection or Illwill". Right, in the sense of this oath, it is submitted, represents justice, fairness and equity within the limits of the law. So far as private international law is concerned, those limits are ill-defined and such as they are have been judicially established.
In various cases since the end of the eighteenth century judges have proclaimed justice as the basis of their decisions in the conflict of laws. Of the many instances to which one could refer of this ethical basis of the conflict of laws, one of the most recent is found in the case of Gray v. Formosa." The question before the court was the recognition of a Maltese decree of nullity of a marriage performed in England. The court observed:
"But these rules of private international law are made for men and women - not the other way round and a nice tidy logical perfection
16- (1962) 3 W.L.R. 1246 at 1253; (1963) p. 259, at 271.
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can never be achieved. Certainly elementary considerations of decency and justice ought not to be sacrificed in the attempt to achieve it. If the courts here have, as I think they have, a residual discretion in these matters, they can be trusted to do whatever the justice of a particular case may require, if that is at all possible."متن حقوقی ارسالی را ترجمه کن خط به خط کوتاه به شکلی که یک خط فارسی سمت راست در جدول و یک خط ترجمه در سمت چپ جدول تا انتهای متن