Peter Hay, Harold Berman and Conflicts Lawan Appreciation

• Citation: Vol. 57 No. 6
• Publication year: 2008

HAROLD BERMAN AND CONFLICTS LAW-AN APPRECIATION

Peter Hay^*

Harold Berman's most visible monument is his Law and Revolution, hailed both in this country and abroad. The German weekly Die Zeit, one the Continent's most influential and prestigious literary reviews, saw it as "groundbreaking" ("bahnbrechend").¹His earlier work on Soviet law, both in academic writing and in his active involvement and teaching in the Soviet Union and, later, Russian Federation, made him both the leading American expert and the teacher of the next generation of Russian law specialists.²

He never tired to praise the value of Comparative Law, to urge the study of other legal systems-not for any esoteric purpose, but in order better to understand the nature of legal problems and the variety of possible ways to resolve them, as well as the change and the adaptability of law over time. The last was as important as the understanding of solutions-of rules-themselves: the historical context of law and the circumstances surrounding its change and evolution.

His comparative view of legal systems in their historical development led him to deal with and to develop insights into areas of the law that, as such, were not focal points of his research but were a part, like so much else, of the story of the law's evolution.

Conflict of laws (private international law, in European parlance) is an example. Classic conflicts, as it was reflected in European codifications and case law of the early 1900s and in the First Restatement in the United States, was territorial in orientation-for instance, grounding a choice of law in tort on the place of the happening. The latter could be fortuitous, of course. Choice of law might therefore disregard party expectations (in the sense of working an unexpected surprise) as well as other factors and concerns, such as the victim's home state's concern for compensation by the tortfeasor to relieve it from a public assistance responsibility. Legal systems sought to give cognizance to these non-territorial concerns in a number of ways. The forum might simply disregard the law of the place of injury on local public policy grounds: such a forum-favoring orientation became the heart of Brainerd Currie's "interest analysis,"³still a powerful force in American conflicts law today.⁴

A European solution began to emerge with the 1942 German decree, born of wartime stringencies, that German law should govern claims between Germans for torts committed and suffered abroad.⁵The rule was later generalized to focus on any common nationality, still later on the common domicile of the parties.⁶The common-domicile rule today applies throughout the European Union (except Denmark) as the principal exception to the place- of-injury rule.⁷

The common-domicile rule has been applied in much of American tort conflicts law since 1963, when the New York Court of...