THE HORNBOOK METHOD AND THE CONFLICT

OF LAWS
HESSEL E. YNTEMA

There is something of the heroic in the publication of a

hornbook on the conflict of laws--if not of the suggestive. A
squat, oaken paddle with the digits, the alphabet, and the Lord's
Prayer inscribed thereon, the whole protected by a more or less
opaque envelope of horn,-such was the hornbook primer of
olden days. Our modern hornbooks are of much more liberal
compass, yet, even so, will it be possible that the principles of
the conflict of laws, which has often been invidiously described
as the most difficult of legal subjects, can be profitably condensed
into so narrow a format? Indeed, are there demonstrable prin-
ciples of the subject which are worth insertion into a primer of
legal lore? And, granting the demonstrability of such principles,
might it not be more informing for the beginner to learn rather
the methods of treating cases involving the foreign element than
to memorialize trite formulae distilled from ancient precedent?
An attempt to resolve these questions in a recent publication by
Professor Goodrich,1 and to state in black-lettered principles the
rules of the conflict of laws merits our earnest consideration.
Once an election is made to treat the conflict of laws in horn-
book style,-in formulae fortified by commentary,-the tendency
will be rather to reiterate contemporary tradition than to project
a provoking critique into the future. The hornbook frowns on
argument. Therefore, the difficult general questions of policy
or method are likely to be left in the background or at best
largely and apodictically expounded; too critical an approach
would tend to deprive the established principles of law of the
appearance of reality. Hence, in keeping with the hornbook
character, the treatment can scarcely hope to develop from
the point of view of sociological jurisprudence, of comparative
law, or indeed of any science which will jeopardize its formal
certitude. Whether the conflict of laws is a useful category for
pedagogical or textbook purposes or rather one of the traditional
miscellanies which grace our curricula (a point the implications
of which I am not aware have been canvassed by the American
Law Institute) ia; whether the problems so grouped should be
formally treated so as to secure whatever definiteness logic may
I HANDBOOK ON THE CONFLICT OF LAWS. By Herbert F. Goodrich, Profes-
sor of Law, University of Michigan. St. Paul, Minn., West Publishing Co.,
1927. pp. xii, 500.
2a The treatment of the Conflict of Laws by the American Law Institute
involves numerous important questions, discussion of which cannot be at-
tempted here.
[468]
 CONFLICT OF LAWS

achieve or should rather be considered with a view to those more

practical considerations of fact and policy which pragmatic phil-
osophies are inevitably urging into the foreground of our legal
thinking; whether an expanding commercial nation can afford to
consider these problems exclusively from the insular point of
view of the "common law"; how these rules of the conflict of
laws are to be fitted into the various machineries by which uni-
formity is being achieved on some points and diversity main-
tained on others; whether the rules should be technically stated
by reference to an hypothetical forum, a system of international
principles, or a territorial "common law,"--on these questions
and their ilk which must vex the student who wants to think his
way' through the field, the hornbook, if it speak at all, must be
oracular. In all this let us not be misunderstood. We are
endeavoring to state the confines of the author's task, not to
quarrel with his choice. For has not the American Law Insti-
tute in effect consecrated the hornbook method of stating prin-
ciples as if they contained the essence of law, in what Professor
Powell has been pleased to term its "primers" of law?
Hornbooks have, however, their uses as well as their limita-
tions. And from this vantage-point Professor Goodrich's work
must be judged. It is the first effort since the publication of
Minor's work in 1901 at a comprehensive statement of prevail-
ing doctrines as to the conflict of laws; as such it is bound to
become significant. Even though it professedly cannot treat the
various topics in detail, it will be found more informing than the
cryptic publications of the American Law Institute which have
thus far appeared in the field,-if only because the commentary
is more complete and continuous. As such, the work will com-
mend itself to the practitioner and in particular to the law
student who prefers to dilute his reading of the cases with home-
opathic doses of legal principle.
The work is divided into fifteen chapters which, with two chief
exceptions, follow the order adopted in Lorenzen's case-book,
which it parallels and to the cases in which references are given.
The first exception is the treatment of marriage and divorce
prior to that of property; the second is the introduction after
the second chapter on domicil of a relatively long chapter on
taxation. Furthermore, certain topics, such as agency, partner-
ships, foreign corporations, the relations between husband and
wife and parent and child, bills and notes, carriers, bankruptcy
and admiralty, which are more or less adequately treated in the
case-book, are in the hornbook omitted because of want of space.
Upon this classification of materials three remarks only need be
ventured. The first is that the effect of introducing a chapter
on domicil at the outset results in giving to that rather dubious
concept an importance which seems disproportionate. The
 YALE LAW JOURNAL

second is that the extensive segregation of the materials on

foreign judgments from those on jurisdiction is apparently
artificial and unsatisfactory, since so often the question as to the
validity of a foreign judgment turns upon notions as to jurisdic-
tion. The third is that this whole scheme of classification inade-
quately recognizes a bifurcation which is present throughout the
subject-matter, i.e., between the problem of the proper court and
the problem of the proper decision, or, in short, between juris-
diction and choice of law. The traditional classifications, which,
for reasons of convenience, treat both sets of problems simul-
taneously, tend to obscure the fact that there is no necessary or
fundamental connection between them. It remains to be added
that the treatment of the various topics is somewhat uneven;
domicil, taxation and the administration of estates are given
relatively full treatment, while other topics such as contracts and
property are much more summarily dealt with.
Turning now to questions of detail and reserving for the
present the author's more general theories as to the purpose and
nature of the subject, the statement may be ventured that no
more has Professor Goodrich than the reporters of the American
Law Institute satisfactorily shown either that our theories as to
domicil, which they apparently regard as fundamental, are
essentially different in their results from what would be the case
were the appropriate cases settled by reference to residence and
citizenship or, if so, that the theory by which a limited number
of legal problems are determined by reference to the law of the
domicil is preferable. The argument given on page 22 appears
to assume that state citizenship cannot be used as a criterion, and
suggests the large number of alien residents in this country as
the basis of these theories. Having in mind the types of situa-
tions in which a technical domicil as distinguished from residence
is used as a basis of decision, one may plausibly raise question
on both points. Further items in the treatment of domicil may
be noted. The stock definition, given on page 20, which is there
attributed to Story, we may recall, comes from the Code of
Justinian., On the same page, we are told that the primary
meaning of domicil is home, whilst on page 33 the expression
"the legal relation called domicile" is used. In note 32 on page
30, the author appears to discountenance "speculation in the
realm of supposed intent" when dealing with questions of domi-
cil; on page 32, it is stated that, "To acquire a domicile of choice
in a place, the person seeking to acquire it must actually be in
that place at the time the intent to make it his home is present
in his mind," a proposition which, taken literally, must be
regarded as somewhat dubious. On page 29, the revival doctrine
is condemned as contrary to "fundamental principles of the law
of domicil," an assertion which will perhaps seem a petitio prin-
 CONFLICT OF LAWS

cipii to those who have read the English cases and those Amer-
ican cases which have followed Story,-see the references in the
notes on page 30. On page 24, the author discards the r'cnvoi
doctrine as incompatible with common law principles. Artificial
though the doctrine may be, it seems somewhat unsafe to reject
it on a priorigrounds. Conceivably, there may be situations in
which its adoption may be necessary to do justice. In conjunc-
tion with the "intent and motive" principle on page 36, it would
have been well to refer to the cases in which an indeterminate
residence is taken up in a foreign jurisdiction for reasons of
health. The statement on page 59 scarcely states the sound
policy involved in the rule that the appointive guardian cannot
move the ward's domicil to another state, and the statement on
page 60 as to the power of the guardian of a lunatic to change
the latter's domicil should be analogously qualified. At this
point, it may also be noted that in the chapter on marriage, the
validity of marriage is said to be ultimately determined by the
lex domicilii, a view which is in conflict with usual American
theories. What the reviewer feels is the chief justification for
our system of so-called rules as to domicil, namely that by reserv-
ing the wide door of intention they are really very flexible, does
not seem to be suggested by the author. This merit can, how-
ever, scarcely atone for the fact that in generating the concept
of domicil the most diverse legal situations have been indiscrimin-
ately huddled into a single catch-bag.
Similar difficulties are raised by the author's treatment of the
jurisdiction of courts, though here again his analysis is quite
traditional. As the author states, the term "deals with the power
of a state, through its courts, to create rights which, under prin-
ciples of the Conflicts of Laws, are entitled to recognition in other
states." Apart from the implications of this metaphorical
language, which will be considered below, it appears that the
point of view adopted either takes as its standard a conceptual-
istic supra-state set of principles of jurisdiction or otherwise
must fall back on the practices of individual states in dealing
with foreign judgments. If the latter be the case, is it not to
be expected that the foreign judgment will, in some measure at
least, be estimated according to local procedural habits?
Furthermore, what sound basis for isolating from each other
the problems of municipal jurisdiction, of jurisdictional "due
process" and of the so called international jurisdiction, (cf. pp.
118 and 139) or, indeed, for setting them in categories apart
from the doctrines as to discretion in exercising jurisdiction, can
be suggested; are not all these intimately related in their pur-
poses, concepts, and nature? Again, the author accepts the usual
classification of judicial proceedings as in remn in personam, and
quasi in rem. Serious question may be made as to whether
 YALE LAW JOURNAL

attachment proceedings should not be regarded as peculiar in

personam actions, if only to point to the inadequacy of our so-
called fundamental rule of personal service in such actions. Cer-
tainly, it seems scarcely accurate to say, as does the author on
page 138, that the fact of ownership confers no jurisdiction
whatsoever to render a personal judgment or, if it be accurate,
it seems inconsistent with the definition of Mr. Justice Holmes
adopted by the author on pages 120 and 132. The paragraphs
on pages 137 and 138 as to personal jurisdiction based on domicil,
however true they may be where the domicil and the residence
are in the same place, suggest a query as to the propriety of
basing jurisdiction upon a mere technical domicil. As to the
state of the authorities on this point, there are questions which
cannot here be stated, but at least the suggestion may be'made
that the distinction drawn by the author between McDonald V.
Mabee and other cases seems too technical to be thoroughly satis-
factory. The section on pages 151 to 156, dealing with personal
jurisdiction affecting matters outside the state,-though the
reviewer approves of its inclusion,-scarcely seems congruous
with the author's conception of the scope of the conflict of laws
rules relating to jurisdiction. The standard involved is that of
the fbrum and not of the foreign law, as the author seems to
require on page 117. In concluding these brief remarks as to
the author's treatment of the jurisdiction of courts, it is to be
noted that on pages 146 and following the author accepts the
customary analysis of the basis of jurisdiction over corporations,
-an analysis which has never failed to amuse the reviewer by
the naivet6 of its unreality. Any theory which premises as its
concept of a corporation the artificial creature of legislative fiat
"is; bound to abound in anomalies as grotesque as those
which
Alice found in Wonderland. From the reviewer's point of view,
if the premise is to be maintained, provided the particular rules
as to service are known, it is as little important to decide whether
the proper fiction shall be "consent," "presence," or "doing busi-
ness," as it is to decide between the respective merits of tweedle-
dum and tweedledee. As a starting-point for constructive think-
ing in this subject, as elsewhere, how much more useful a
relatively realistic approach would be?
Incidentally, two points in the field of jurisdiction on which
the author does not seem to have followed in extremis the pro-
nouncements of the American Law Institute should be remarked.
On page 123, by not discussing Edgerly v. Bush, the author has
successfully avoided the problems raised by the notorious sec-
tion 52 of the Restatement on Jurisdiction. And on pages 139
and 140 the author, though seemingly somewhat inclined toward
it, has yet refrained from adopting the remarkable reconcilia-
 CONFLICT OF LAWS

tion of Grubet v. Nassauer and Doziglas v. For'est adopted in the

same Restatement in sections 49 and 85.
Thus far the reviewer has attempted to state briefly a few
of the more immediate points suggested by a reading of the two
chapters on domicil and on jurisdiction. As there is neither
time nor space to tax the reader's patience much further, the
remaining thirteen chapters must be dismissed with the incon-
clusive comment that more or less eoxtensive queries of a similar
character may be made as to each of them. However, even
from this sampling, the discriminating reader will already have
inferred that, aside from a certain laxity in expression which
is the usual and almost inevitable consequence of a tendency
to acquiesce in traditional blurred analysis, the author's gen-
eral theories as to the nature and definition of his subject are
responsible for the reviewer's chief difficulties. As this is not
only a matter upon which opinions differ but is also of con-
siderable importance at the present juncture, the reviewer feels
that it is time to state the issue. For one thing, the activities
of the American Law Institute in this field constitute an effort
to perpetuate a doubtful technique: for another, the differences
of opinion between the adherents of the so-called "territorial"
theory of vested.rights and those who are disturbed by its impli-
cations have been on at least two recent occasions stated in some-
what misleading terms.2 The reviewer proposes therefore to state
certain of the premises of the "vested rights" theory and the
difficulties which that theory involves with such brevity as a
complicated issue will admit. The matter is the more important,
since it is paralleled by fundamentally similar problems in the
other fields of law.
Of the premises accepted by Professor Goodrich, which are in
effect also those of the great authority in this field, Professor
Beale, it will be sufficient to recapitulate the following:
1. The conflict of laws deals primarily with the application
of laws in space (p. 1).
2. The conflict of laws is part of the territorial "common
law" (p. 8).
3. As such it is undesirable to study the subject by reference
to civil law materials (p. 10).
4. The rules of the conflict of laws consist of "principles,"
according to which "rights once vested under the law
continue until destroyed or cut off by law ...... and are
recognized and enforced in one state though they have
come into being in another, unless such enforcement is,
2
See for example, Isaacs, Review of Lorenz.'s Cases on tMe Conflict of
Laws (1924) 38 HARV. L. REV. 125; Beale, Review of Westlahe's Trcatisc
on Private InternationalLaw (1926) 39 HARv. L. REv. 530.
 YALE LAW JOURNAL

for good reason, thought contrary to the public policy

of the jurisdiction where enforcement is sought." (p. 10).
5. Uniformity in law comes through the study and under-
standing of these general principles (p. 10).
The question is whether these premises and the methodological
system which they characterize afford the most useful points
of departure, either for the accurate statement of existing legal
practices or for its scientific development. The observations to
be made follow two somewhat connected lines of inquiry.
The first and principal observation upon this method of deal-
ing with the problems of the conflict of laws is that it is super-
ficial and, to that extent, unscientific. (a) The account it takes
of the social, economic and practical considerations of justice
'which have been urged in numerous fields more or less directly
bearing upon technical law is quite inadequate. It suggests al-
most no correlation with the studies of a generation in sociologi-
cal or functional jurisprudence and in inductive logic and scien-
tific method, or with the studies of more than two generations
in the various political and social sciences. In other words, it can
be described only as a belated product of medieval scholasticism,
or, if you prefer, of mid-Victorian transcendentalism, obsoles-
cent before birth. To put the case more succinctly, it proceeds
as if Dean Pound and those who believe with him that the prob-
lems of law are problems of social engineering and not of me-
chanical logic, had never "fit and bled" upon the battlefields of
sociological jurisprudence.
(b ) The premise that, since 'the principles of the conflict of
laws are part of the common law of England, it is undesirable
to study the solutions which have been reached in civil law sys-
tems is not only unscholarly but practically impolitic. As a
matter of common sense, there can be scant justification for
starting a supposedly scientific inquiry by the a priori exclusion
of a field of materials which is germane and from which fruit-
ful suggestions may be anticipated. Nor is the position defens-
ible from a commercial point of view. A great commercial state,
such as the United States has long since become, cannot afford,
and least of all in the field of the conflict of laws, to remain in
ignorance of the legal practices of the foreign countries with
which there are a myriad contacts. The question whether our
"common law" was, is, or shall be Anglo-Saxon is futile and be-
side the point. If it were at issue, the reply would suppose that
we are neither British nor French, German nor Russian, but
American, and, as such, entitled to the spiritual goods of all
Europe.
Least of all can an adherent of the so-called "vested rights"
theory in all self-consistency maintain this insular doctrine. In
 CONFLICT OF LAWS

seeking common law principles to define the territorial scope of

laws so as to decide when rights are vested, he is attempting for
common law jurisdictions precisely what the European interna-
tionalist is attempting for the civil law. Is there any ground,
aside from provincial prejudice and limited imagination, which
can explain a refusal on the part of these two groups who have
a common technique, a common set of problems, and a common
objective, to join hands and extend the benefits of their system
of artificial certainty over as wide an area as possible?
These remarks would be unnecessary were it not for the per-
sistence with which the traditional view has maintained itself.
Professor Beale has put the position as definitely as it could be
stated:
"Apart, however, from questions of national jurisdiction there
can be little doubt that the principles of the conflict of laws are
in the fullest sense principles of the municipal law of each
country. With us such questions are solved or should be solved
entirely in accordance with common-law principles and analo-
gies; and to follow the authority of writers on the modern civil
law is as improper as it would be to accept from a continental
writer the doctrine that a written contract requires no consider-
ation. The practice introduced by Lord Mansfield, or at least in
his time, of turning to civil law authors and authority, and con-
tinued by several scholarly American lawyers during the first
third of the nineteenth century was not one which has tended
to preserve the correctness and parity of the common law." 3

Historically, this passage bristles with paradoxes. The ex-

istence of a "correct" and coherent system of rules as to con-
flicts of laws in the English common law during the eighteenth
century or before would be difficult to demonstrate from the
books. In great part, our present doctrines in this field are a
relatively recent nineteenth century development, which was
chiefly influenced by the decisions and works of great jurists,
such as Lord Stowell, Kent, Story, Westlake, and Dicey, the most
important of whom were familiar with the continental theories
of their time and drew upon them for suggestions. So, if the
matter were to be argued only on the sterile basis of tradition,
there would seem to be good enough precedent for some consider-
ation of civil law materials. Only this well-known civilian back-
ground of many of our doctrines as to the conflict of laws will
explain Professor Goodrich's statement on pages 168 and 169,
that although prior to the middle of the eighteenth century the
common law had been developing for years almost free from
foreign influence, the construction of the statutes of limitations
as remedial was influenced by the writings of the Dutch jurists.
3Beale, What Law Govemns the Validity of a Cont7act (1909) 23 Hnv.
,. REv. 1, 8.
 YALE LAW JOURNAL

Incidentally, when one begins to speculate about the possible

provenance of the vested rights theories, bizarre analogies
emerge. For instance, the very definition of the subject, conflict
of laws, as "that which deals primarily with the application of
laws in space," with which Professor Goodrich commences his
handbook and which he has avowedly accepted from the writ-
ings of Professor Beale,. appears to go back, as will appear even
from the latter's Treatise on the Conflict of Laws, pages 1
and 2, to Bustamente and ultimately to Savigny, both of them
civilians. And, to give another illustration, the paragraphs on
pages 153 and 154 of the same treatise on the generality and
continuity of legal principles are strangely reminiscent of the
excerpt from Pillet's work, which is to be found in translation
in 2 Beale, Cases on the Conflict of Laws, at page 3. Can it
be that in this discussion we are struggling with a theory which
was conceived in the midst of civilian pandects and not a prag-
matic product of the common law?
Notice that we neither suggest nor deprecate the introduction
of civil law theories as such. What is proposed is that our study
of these theories and of common law practices in this field be
supplemented by a somewhat serious study of the administration
of justice in foreign countries in relation to its social back-
ground, both that we may be, if only for commercial reasons,
informed thereof, and that the consideration of our own legal
problems may be more objective.
The further observations to be made upon the so-called terri-
torial theory of vested rights as a basis either for stating the
law or for insuring its scientific development are to the effect
that the theory imports a terminology inept to describe the fac-
tors involved in legal problems and a technique inadequate either
to state accurately the practices of courts or to control their
decisions. Numerous considerations are at the basis of this
statement, only a few of which can be sketched in this connec-
tion. (a) One of the primary difficulties with the vested
rights theory is the figurative and undifferentiated character of
its terminology. To say that laws "exist" within defined geo-
graphical limits; that by these laws rights are "created" and so
"exist" until they are destroyed by operation of law; that, fur-
thermore, there are "principles" which invest these rights with
the powers of migrating from state to state; and that by virtue
of these principles rights so vested are recognized and enforced
in foreign courts-is to express in crass symbols the most com-
plex syntheses of phenomena. Even so, the metaphorical expres-
sion that principles or rights exist is oftentimes a useful mode
of speech and not in itself objectionable, so long as we are aware
that we have merely given a label to a complicated experience,
real or supposed. We must needs talk and probably also think
 CONFLICT OF LAWS 477

in symbols of sign and sound. The difficulty is rather that the

symbols of the vested rights theory neither correspond to the
social and economic factors with which courts deal nor even
accurately suggest the things which are done in courts. Hence
flows the chief vice of this and similar too abstract conceptualis-
tic theories of law, that, because the symbols used are too few
and too remote from reality to represent it, they force those
whose thoughts are limited to these symbols finally to 'regard
them as reality and to believe that by employing them in the
processes of formal logic, "correct" results may be obtained.
A simple illustration will suggest the point. The hypothesis,
two plus two equals four, is true as an abstract proposition if
we accept certain premises; but it is by no means a universally
useful method of stating experience, as the addition of two parts
of hydrogen to two of oxygen will demonstrate. If the realm
of law were like mathematics, compounded of hypotheses or of
the stuff which dreams are made of, no one could object to peo-
pling the legal world with principles, rights or other juristic con-
structions. But law is not logic, however usefully logic may be
made to serve the ends of law. And any system of thought so
fragmentary as to base the actual statement or reform of law
upon purely logical deductions from combinations of abstract
symbols without careful analysis of the practical purposes of
legal traditions and institutions considered with reference to
the concrete case is not merely obscurant but socially dangerous.
Only by constantly checking the hypotheses resulting from logi-
cal manipulations against observation and experience can we
hope to approximate practical truth or justice in the adminis-
tration of law.
(b) As it is stated, the vested rights theory is either an ellip-
tical tautology which leads us nowhere or otherwise it is disin-
genuous. In either case, it can scarcely be considered either an
appropriate vehicle for describing legal practice or an effective
means for directing the decision of a court. If we are told that
rights which become vested under the proper law are usually
enforced in foreign jurisdictions, the natural inquiry arises as
to the process by which this investment occurs. Apparently, we
are to believe that the investment takes place under the influence
of certain common law principles to the extent that these prin-
ciples are uniformly adopted in the various jurisdictions as to
which there is inquiry. The obvious inference is that rights are
vested when and because they are vested, which completes this
circle. An illustration of the difficulties inherent in this mode
of analysis will be found in Professor Goodrich's apparent
query as to the important but misnamed distinction between
substance and procedure. As he says: "The distinction is made
by courts, and the lawyer must figure it out as best he can."
 YALE LAW JOURNAL

(note on page 159). Obviously, from the viewpoint of a con-

sistent vested rights theory the distinction cannot be justified,
and the difficulty is only stated by elaborating an intricate sys-
tem of rights, primary, secondary, and remedial, such as is
adopted on page 158. Surely, on this theory, a right which is
once panoplied by the powers, privileges, and immunities of
a given system of law ought to take with it that full panoply
wherever it goes, if it is not to become a disfigured ghost. And
yet everyone knows that no such scheme will be ever adopted
this'side of the millenium. If we approach the question from
a practical lawyer's point of view or that of the judicial admin-
istrator, the difficulties vanish in the proportion that we depart
from occult manners of speech and consider the realities. No
foreign right ever entered a foreign court or, indeed, any court,
nor has any court, strictly speaking, ever seen or physically en-
forced a right. All this is a colorful and somewhat befuddling
metaphor. An attorney appears and puts in a claim. As part
of his proof required by the legal practice of the forum, he puts
in evidence an authenticated copy of a statute, a judicial deci-
sion, or a judicial record, emanating from another jurisdiction.
It becomes a part of the evidence in the case. And, in the last
analysis, it is a simple question of convenience and equity,
roughly controlled by the traditions of the forum, as to how far
the'court will, can, or should relax its domestic habits of decision
to give a judgment more or less remotely resembling that which
might be secured in the court of another jurisdiction. The basis
of departure is the practice of the forum and the equities of the
instant case, and not universal principle or vested right. In
the field of the conflict of laws, as in other branches of law, the
problem is essentially one of the adjustment of actual interests
and not of formal logic.
If, however, we interpret the theory of vested rights to mean
that "rights once vested under the proper law" should be en-
forced in the foreign court, our theory is disingenuous, or per-
haps ingenuous, since we are assuming the very point at issue,
i.e., whether particular claims should be so enforced. It is doubt-
less true that in many situations the result is the one to be desired,
but it is not satisfying from a practical or even a logical point
of view to start out by assuming the conclusion. A mode of
analysis is required which will state and estimate the equities
and conveniences and so reach its conclusions. To do so effi-
ciently, we shall need not only a more precise and flexible ter-
minology but also both careful study of individual cases from the
point of view of social and judicial engineering and information
as to the fact-situations and the foreign legal practices with
which we are dealing.
The point of view which we are stating will inevitably meet
 CONFLICT OF LAWS

the criticism that, in attempting to secure justice in the individ-

ual case, we have discarded the possibility of uniformity and
certainty in the administration of cases involving the foreign
element. The argument is, in sum, that the so-called "uniform
enforcement of vested rights" can only be approximated by as-
suming the general principle that there is to be uniformity.
There are various difficulties with this argument of policy as to
how doctrines of the conflict of laws should be formulated. As
a preliminary point, we may remind ourselves that it can by no
means be assumed that uniformity and certainty are the sole
ends to be attained. There may be, and we cannot ascertain
until inquiry, situations in which the foreign law may be so
obsolete or so inimical to the social interests of the forum that
to apply the doctrine would defy justice. Here, as elsewhere
in the law, summn his SZ rm) iiuria. In fact it may be dis-
covered that a discretionary power of rejecting the foreign
law in such cases may in the long run conduce to the sound and
uniform development of legal doctrine in this country. Such
doctrines as that of a "federal common law" have an importance
which we have not as yet attempted to ascertain. Again, a gen-
eral principle of uniformity, as we have attempted to suggest
above, can never correspond to the realities of judicial adminis-
tration. This is so, far more largely than we dare admit, even
within a single system of courts. The probabilities of variation
are multiplied when the courts of one system attempt to follow
the practices of another, as to which they must remain relatively
ignorant so long as we are to rely merely upon vague general
principles to inform them. And, in any case, there rl always
be a large area of questions in which, because of the necessities
of an economical administration of justice, courts will neces-
sarily follow their local practice. In this situation, it will prob-
ably be safer, if we must suggest a general principle, to insist
upon a just decision than upon one which may as well as not be
erroneously believed to be uniform.
The argument that uniformity can be secured only by disin-
genuity in the statement of general principles, is one by which
we are not to be moved for an even more potent reason,-it is
simply not so. The ideal of a government of laws and not of
men is a dream which will have to wait for the time when law
becomes calculus to be realized. Still less can it be said that
the administration of justice is controlled by general principles.
The history of codes and of legislation, or even of language,
should have taught us long since that rules and principles are
empty symbols which take on significance only to the extent that
they are informed with the social and professional traditions of
a particular time and place. Those who disbelieve may regard
the manner in which the greatest of our codes has been inter-
 YALE LAW JOURNAL

preted, the Constitution of the United States. It is not the

symbols but the habits of thought that control interpretation and
decision. In dealing with situations involving a foreign ele-
ment, the habits of thought which we encounter in judges and
lawyers are not normally concentrated primarily upon the for-
eign element. Whether the problem be one of the recognition
of a foreign judgment or of the effect to be given a complicated
letter of credit transaction, the pattern is furnished by the tra-
ditions of the forum and the experience of the concrete fact-
situation. This is properly so, if an efficient result is to be
attained, since the foreign element, the circumstance that events
transpired in another jurisdiction, is only one, and often an
incidental, aspect of the case. Furthermore, of the many things
which have been said as to the mystery of the judicial process,
the most salient is that decision is reached after an emotive ex-
perience in which principles and logic play a secondary part. The
function of juristic logic and the principles which it employs
seems to be like that of language, to describe the event which has
already transpired. These considerations must reveal to us the
impotence of general principles to control decision. Vague be-
cause of their generality, they mean nothing save what they
suggest in the organized experience of the one who thinks them,
and, because of their vagueness, they only remotely compel the
organization of that experience. The important problem in the
conflict of laws is not the formulation of the rule but the ascer-
tainment of the cases to which, and the extent to which, it ap-
plies. And this, even if we are seeking solely uniformity in the
administration of justice, will lead us again to the circum-
stances of the concrete case, and to the careful study of foreign
practices. The reason why the general principle cannot control
is because it does not inform.
We have in the foregoing discussion directed our attention
chiefly to the general premises of the "vested rights" theory,
since they necessarily and conveniently suggest the limitations
of the method by which conclusions are to be reached under
more specific rules. "But," our hornbook interlocutor will per-
sist, intransigeant in his conceptualism, "even if the general
principles are, as you suggest, lights that shed no illumination
upon legal problems, yet at least you will grant that the law must
be stated in specific rules, and of such are hornbooks made.
Surely, these rules of law are the law; we cannot conceive of law
in other terms than rules and principles." Yes, the law must
be stated in concepts and rules, but the inference which our in-
terlocutor proposes to draw simply drives the ancient error back
another stage and reveals on his part either lack of apprehen-
sion or misapprehension of the point of view which we have
essayed to sketch above. The crux of the matter is really that
 CONFLICT OF LAWS
law is a practical thing; it has to do with human activities,
the doings of judges and lawyers, of legislators and, above all,
of socially organized individuals. Which is to say that law
is not a theoretic but an applied science. Of course, we must
have a legal language. Human activities must be analyzed and
described for legal purposes in terms and rules, all of them
symbolic of the activities to which they advert. But to say that
the rule is the law, that the symbol is reality, leaves us still in
the squirrel-cage of conceptualism; it is only less objectionable
than defining law in terms of general principles to the extent
that the rules embrace a narrower scope. It should be obvious
that when we have observed a recurrent phenomenon in the de-
cision of cases by the courts, we may appropriately express the
classification thus adopted in a rule. But the rule will be only
a mnemonic device, a useful but hollow diagram of what has
been. It will be intelligible only if we relive again the exper-
ience of the classifier and will be safely employed only with
knowledge of its limited purpose and of the scientific deficiencies
of the decisions from which it is abstracted. Thus understood,
the language of the law, its concepts and rules, is indispensable
as a vehicle for expressing thought. This it can do but imperfectly
and more it cannot. The rule can state in convenient abstract
form the common element in a number of historical judicial events,
but it cannot tell us whether any judicial decision or, indeed, the
decision in some future case should come within the rule. To
decide questions of this nature, we must ultimately probe the
purposes and the prejudices implicit in the judge's reaction to
the concrete case; we must strive to verify the validity of that
reaction by reference to scientifically organized data; we must
above all desire an objective estimate of the probable practical
consequences thereof. The table of logarithms and the formulae
of stresses and strains are invaluable to the engineer, but they
cannot tell him whether the bridge is to be built or, if so, where,
nor how high and how broad it is to be and how much it will cost.
To say that the rule of law is law, that by reference to abstract
rules we may control decision and determine whether cases have
been "correctly" decided, is in effect to assert the social prac-
ticability of the decision, if found "correct," without attempting
to ascertain whether it is useful. And this is the ultimate fallacy
in the realm of applied science.
It remains to be remarked that one of the most important im-
plications of the vested rights theory is in the field of consti-
tutional law. The doctrine has already been intimated in dicta
of the Supreme Court and it has even been stated with unblush-
ing generality in the law reviews 4 that a right vested under the
- Dodd, The Power of the Supreme Court to Reuriv State Decisions in the
Field of Conflict of Laws (1926) 39 HWv.L. REV. 533.
 YALE LAW JOURNAL

principles of the conflict of laws is entitled to constitutional

protection undei one or another of the various blanket clauses
which are available, the due process clause, the impairment of
contracts clause, the interstate commerce clause, or the full faith
and credit clause. Thus far it seems that the Supreme Court, in
addition to the foreign judgment cases, has employed this vested
rights analysis in two types of cases involving conflicts of laws.
The first type is that furnished by cases involving insurance
contracts, 5 in which the court is obviously threatening to flank
Paul v. Virginia, and the second type is composed of cases in-
volving corporations or associations in which a wide definition
is given to "parties in interest" regarded as concluded by judg-
ments in stockholders' and analogous actions.6 In these situa-
tions, strong economic and governmental motives are in operation
behind the formulae, so that from the practical point of view
it would at the present time be unsafe and unsound to gen-
eralize the dicta in these decisions into a theory of unlimited
federal competence in the field of the conflict of laws. The point
worth noting, however, is that under vested rights doctrines
there is no logical stopping-place short of this result. If uni-
formity in dealing with conflict of laws is the sole desideratum
and the efficient means of securing it is federal action, there can
be only one sensible and inevitable solution. Whether such a
solution would be desirable or not is not at issue in the present
discussion. The point is that the vested rights theory suggests
the solution of federal control without enabling us to know
whether it is desirable. That is not a question of formal logic
or of general principles, but of expediency, which turns upon
the ascertainment of the facts of particular cases and the social
and governmental policies which are to control. Because a cer-
tain degree of centralized judicial administration ultimately con-
trolled by the Supreme Court is feasible and probably desirable
in the case of the nationally organized insurance business, it
by no means follows that federal intervention is indicated in the
case of horse-trades, of building and loan contracts, of promises
to marry, of testamentary dispositions or in a myriad other
transactions. The similarity of transactions which the vested
rights theory necessarily supposes leaves us in Stygian darkness
as to almost all the concrete problems involved in each case.
The only safe or reasonable procedure, the only procedure which
conforms to common law traditions, is to test each case on its
merits. Any realistic or useful analysis must be planned on this
basis. The vice of the vested rights theory is that it affects to
5
Aetna Life Insurance Company v. Dunken, 266 U. S. 389, 45 Sup. Ct.
129 (1924).
6 Royal Arcanum v. Green, 237 U. S.531, 35 Sup. Ct. 724 (1915).
 CONFLICT OF LAWS

decide concrete cases upon generalities which do not state the

practical considerations involved and so it must perforce obscure
the issue.
Unfortunate as it may appear to pin the onus of a traditional
point of view upon a single volume, it has in the present case
seemed necessary to do so, both because Professor Goodrich's
work is representative of the vested rights tradition and because
of its importance as the first comprehensive statement thereof
which we have had for a generation. That the publications of
the American Law Institute on the conflict of laws start from
the same theoretical premises and employ the same formal meth-
ods of statement and solution makes it the more desirable to
state the issue as to the usefulness and limitations of the horn-
book method in the field of the conflict of laws. This by no means
implies, as indeed has already been suggested, that Professor
Goodrich's work will not be found useful, particularly by stu-
dents. As a treatise on the conflict of laws, it is an excellent
hornbook. But it does imply the belief that the era which was
satisfied with solving its legal problems by fundamental prin-
ciples of juristic theology is fast passing and the hope that
future studies in the field of the conflict of laws may give more
specialized attention to the realities of judicial administration.