PRIVATE INTERNATIONAL LAW

Theories of Personal Law

As simply defined by Paras, personal laws are laws attached to the individual, which govern his status, capacity, family relations and the consequences of his actuations, wherever he may go. But personal laws are not so simple in the sense that they can be determined easily. As the definition states, the individual carries them wherever he may go. The difficulty arises when the individual goes outside the jurisdiction where his personal laws are legally recognizable immediately. In these cases, the personal laws one has entangle with other laws enforced by other states. This becomes a conflict of law which forms part of the study in private international law. This difficulty of determining which laws to be applied to be attached to a particular person at a particular time is not without a way out. The international legal communities adhere to theories of personal laws which help them carry out the decisions on what laws to apply over persons which may govern their juridical personalities and be recognized these laws as the attaching personal laws over the persons in the forum. The nationality theory or personal theory is only one of those theories of personal law. Those that adhere to this theory apply the laws of the nationality of the person in relation to his status and capacity. This means that the personal law to be applied to an individual person is also the same law of his nationality wherever he may go in view of nationality theory. Here, the personal law of the individual in relation to his status and capacity continues to exist and operate even outside the jurisdiction of the original state of the person. The nationality theory gives the individual a continuing and permanent sense of his legal status and capacity wherever he may be. If these personal laws clash with the foreign laws because of the actuations of an individual, the determining factor is the law that operates from the country or state of the individual subject to forum, notwithstanding the fact that there is a foreign element in the case. Thru this, one can be protected by his own national law even if he is under the territorial jurisdiction of other states unless the individual has committed a violation against the laws of the host country. However also, the host state can legally acquire jurisdiction over a foreign individual who violates his own personal laws even if he is in foreign soil. The nationality theory gives the state a right to go against persons who violate their laws in the host country. This theory might render a justification of a seemingly discriminatory act of states over persons whenever these persons are being charged on the basis of their personal laws. So Mr.X, a foreigner in the host country, can be held liable for betting in a spider fight if Mr. Xs laws prohibit such acts even if it is not prohibited in the place where the act took place. Another theory which relates to personal laws is the domiciliary theory which speaks of applying the laws of the place where the person resides or domiciled, regardless of his nationality. Here, courts simply take cognizance of the laws where the persons to be tried are living or have been residing.

The problem or might be an advantage for some with this choice of theory whenever applied is that it adjusts and changes the capacity and status of the aliens living outside their country. So when one is still married here and continues to be so until a final court decree is produced, and that one enters into a marriage contract with someone abroad, in which, the foreign place allows marrying anyone even pending annulment case, then such one does not violate anything and the host state actually has recognized his full right to marry. This theory might work both ways, it could be an advantage for some and disadvantage for some. It is an advantage for the person whom I cited above for example. However, it could also be a disadvantage for someone who becomes a citizen of a country, for example, only on the basis of him being domiciled in a particular place. For instance, when a law prohibits a person to have an insurance contract if he is considered a public enemy, in the sense that the person who wants to enter in the contract is a subject of a foreign country which is at war with the host country, he cannot have the benefit of being insured. This happens when the potential insured is a citizen of the country which follows the domiciliary theory of status. The situs theory on the other hand views the particular place of the act, or the transaction or the event as generally the controlling law in the forum. Here, the courts consider the law of the place where the violation happened if there is any. These three theories of personal laws have to be used in order to determine the applicable rules or laws in a forum involving foreign element.