1939] 'J^HE. CHARACTERIZATION PROBLEM 747
A SURVEY OF THE CHARACTERIZATION PROBLEM
IN THE CONFLICT OF LAWS *
PART I. PREVIOUS STATEMENTS OF THE PROBLEM IN ENGLISH
subject of characterization was introduced to Anglo-••
American legal literature by Professor Lorenzen in 1920.^
Lorenzen's article begins with a statement of the renvoi problem,
and continues:
A problem of a different character, though equally fundamental, may
arise, even if the rules of the conflict of laws of the countries involved are
alike, because of a difference in the meaning of the concepts used.
" Nationality," " domicil," " the law of the place of contracting," " the
law of the place of performance," and " the law of the place where the
tort was committed " are all legal concepts which may be determined in
more than one way. The countries differ also on the question of what
constitutes immovable and what movable property, on the meaning of
" capacity," " form," " substance," " procedure," and in their definition
of various other terms upon which the application of the foreign law depends.
The question thus presenting itself is what law is to determine
the meaning of the above terms. The problem referred to has given the
greatest concern to the continental writers and is generally discussed by
them under the title of " theory of qualifications."
The problem is stated as one of the determination of the meaning
of terms, and a number of examples are given of terms with an
* This article, which is an abbreviated version of the first part of a book on the
subject of characterization now being prepared, attempts merely to examine the contributions
made by previous writers in English. I wish to make acknowledgment for
much assistance from Professor Erwin N. Griswold and Dr. Magdalene Schoch.
1 The Theory of Qualifications and the Conflict of Laws (1920) 20 COL. L. REV.
247. Professor Lorenzen has informed me that his views on the subject have beeri
considerably modified since 1920, but his article is here examined as being the only
statement of his views available to the public.
The terms " qualification," " classification " and " characterization " are all used
by different authors to designate the same subject. While qualification is the term
generally used on the continent, characterization seems preferable in English as more
nearly in accord with ordinary usage.
748 HARVARD LAW REVIEW [Vol. 52
equivocal meaning, which may be interpreted in different ways by
different individuals or different systems of law. Lorenzen elaborates
a number of these examples. In the case of domicil, the
question may arise before a New York court whether a citizen of
New York, formerly domiciled therein, has lost his New York
domicil and become domiciled in France. " Should the New York
courts determine the question of domicil solely with reference to
their own law or should they enquire into the French law of
domicil? " The importance of this question is evidenced by the
fact that .the definitions of domicil given in the two systems of law
may differ greatly. Similarly with the question of nationality. A
number of countries may claim the same person as a citizen or subject
at the same time, and he may be the national of each one of
them by its own municipal law. What law is to determine the
nationality of the propositus for the purposes of a given case ? The
importance of nationality appears not only from its obvious significance,
but also from the fact that many countries use it as the test
for the personal law, governing such matters as status and capacity,
in the conflict of laws.
To illustrate the necessity of determining the exact meaning of
" the place of contracting," Lorenzen gives the following nice example.
Suppose a contract made by correspondence between New
York and Leningrad, the offer being made at the former place, and
the acceptance mailed at the latter. Under these circumstances
the law of New York says the contract is made in Russia; the law
of Russia says that the place of contracting is New York. It may
be that both countries agree that the law of the place of contracting
governs the validity of the contract, but what is the law of the
place of contracting, the law of Russia, or the law of New York?
Similar difficulty may arise with the question what is the place
of performance of a contract. Again the place where a tort is
committed is generally accepted as the deciding factor for the
choice of law, but is by no means clear in cases where the physical
act causing the harm takes place in one state and the effects resulting
therefrom occur in another.
The law classifies interests in property according to whether
the property is movable or immovable; and for certain purposes
movable property may be regarded as immovable, or vice versa.
Different rules of confiict of laws may apply to the two different
1939] THE CHARACTERIZATION PROBLEM 749
categories. What test is to be used for deciding into which category
some given property is to fall?
Substance and procedure provide another pair of categories
between which a court may have to decide. Common-law countries
generally regard a statute of limitations as belonging to procedure.
Elsewhere the limitation may be deemed to affect the substance.
Suppose a contract made in France, under the law of which
the action is barred, and suit brought in New York, under the law
of which the action is not barred. Which law shall determine the
question whether the action may be maintained?
Substance (or capacity) and form are a further series of alternatives
in cases where a will is made in a manner valid by the
law of the place where made, but invalid by the personal law of the
testator or testators, which prohibits joint wills or holograph wills.
Assuming that one state regards the matter as one of form, and the
other state as going to the substance or capacity, is the forum to
hold the will valid or not when its confiicts rules are that capacity
is governed by the personal law, and formality by the law of the
place where the will is executed? Lorenzen gives two further
examples: whether the rights of a surviving widow are to be regarded
as belonging to the law of succession or to the law of matrimonial
property; and whether an act done in a continental country
is a civil or commercial act (special rules often attaching to
the latter).
The general theories advocated by various continental writers
Lorenzen next explains. Bartin, whose article ^ in 1897 was the
first to attract general attention, " maintains that whenever the
application of the internal law of the forum or that of another
country depends on the nature of a particular juridical relationship,
it is the law of the forum which must decide what the nature
of the relationship is." To this Bartin makes two exceptions: the
determination whether property is movable or immovable should
be made by the law of the situs, and the determination of the place
of contracting should be made in accordance with the law that
would postpone the formation of the contract longest. Generally
in agreement with Bartin's conclusions, if not his method
of reaching them, are Buzzatti, Diena, and Kahn. Despagnet,
2 De I'impossibiUti d'arriver a la suppression definitive des conflits de lois (1897)
CLUNET 223.
750 HARVARD LAW REVIEW [Vol. 52
on the other hand, is quoted as maintaining the view that " the
law governing the legal relationship must control also its qualification."
To pretend that one is applying the foreign law appropriate
to some legal relationship, and at the same time to
apply the characterization of that relationship adopted by the
domestic law rather than that adopted by the appropriate foreign
law, is to deny the decision that the foreign law applies. Thirdly,
Lorenzen refers to the view, held in different forms by Gemma
and Jitta, that solution should be sought by an application not
of the law of the forum, nor of the foreign law exclusively, but
of general international principles. No attempt will be made for
the present to examine these views critically, because the object
of this section is to review the statements of the characterization
problem already made in Anglo-American literature, in order to
discover just what the problem is all about, before any attempt is
made to decide what to do about it.
The second half of Lorenzen's article is devoted to considering
the attitude of English and American courts when they have been
faced with disputed qualifications. Rules appear to have emerged
in certain types of cases. Whether property is movable or immovable
is determined by the law of the situs. The meaning of
the term domicil has been settled to be that attributed to it by the
forum. The question what is the lex loci contractus of a contract
completed by correspondence has not come up, but Lorenzen has
no doubt that the law of the forum controls. Capacity and formality
are likewise said to be determined by the law of the forum,
and Ogden v. Ogden ^ is cited in support of this proposition.
Lorenzen then concludes:
In view of the above cases it may be asserted that according to AngloAmerican
law the qualification of legal transactions as well as the definitions
of" domicil," " the law of the place of contracting," and of the other
" points of contact" are governed in general by the strictly internal law
of the forum, the principal exception to the rule being that the character
of property as movable or immovable is controlled by the law of the situs.
This conclusion is also the only one that is consistent with the AngloAmerican
theory of the confiict of laws.
This last statement is supported by a considerable discussion of
the Anglo-American theory of the confiict of laws, in which
3 [1908] P. 46.
1939] THE CHARACTERIZATION PROBLEM 751
Lorenzen rejects the territorial theory, and, finding that the, foreign
law is never applied except when the forum sees fit, concludes
that the qualifications on which the application of the foreign law
depends must similarly be determined by the law of the forum.
After one has read Lorenzen's statement of the qualifications
problem, is it clear what the problem is all about? We may best
answer this question by asking two further questions, and seeing
if we can find the answers to them:
1. What does the judge do when he " qualifies "?
2. What is it that is " qualified "?
From Lorenzen's statement at the beginning of his article, the
answers would appear to be as follows:
1. When the judge " qualifies " he determines the meaning to
be given to one of the terms above discussed such as " domicil,"
" place of contracting," etc.
2. That which is " qualified " is the term of doubtful meaning,
and after it has been qualified its correct or appropriate meaning
appears.
It should be observed, however, that the way in which these
questions present themselves to the court is not one of determination
of the meaning of terms. The judge asks in practice not
" what is the meaning of domicil? " but " was this man domiciled
in state X? " Similarly, he asks not " what is the meaning of
place of contracting? " but " what was the place where this contract
was made? " (This is not to deny that the latter question
may involve the former, but it is important to observe the way in
which the question arises, for a reason that will appear shortly.)
Two of Lorenzen's other examples were whether the rights of
the surviving widow belong to the law of succession or the law of
matrimoniar property, and whether the statute of limitations belongs
to substance or procedure. The way in which these questions
present themselves to the judge is as follows:
(a) Is the claim of this woman to be classified as arising from
the rules of matrimonial property or the rules of succession?
(b) Is the rule of law that lapse of time prevents recovery a
rule of substance or procedure? *
* The exact method of asking the question is unimportant; what is important is
the distinction between different types of questions.
752 HARVARD LAW REVIEW [Vol. 52
The importance of considering how the question arises now appears.
It is true that in all four cases the underlying question
is one of the meaning of terms. That is, as it were, the common
denominator of all of them. But the immediate problems presented
in the determinations that the judge has to make are of different
kinds. Thus in the case of the widow's claim on her husband's
death, the question to be decided is the juridical nature of
the problem presented to the court: if it is decided to fall into the
category of matrimonial property then one set of conflicts rules
will apply; if the category of succession is selected, then another
set of confiicts rules will be available.
The two cases involving the meaning of " domicil " and " place
of contracting" present a different problem: here the juridical
nature of the question presented has been ascertained before
" domicil " or " place of contracting " becomes relevant. Let us
assume a case of succession to movables of a propositus who died
in France leaving securities in New York. New York law says
that succession shall be governed by the law of the domicil, and
the question arises whether the decedent was domiciled in France.
The determination of the juridical nature of the problem presented
to the court as succession has made available the confiicts
rule that succession is governed by the law of the domicil; domicil
is then the " point of contact " which establishes a connection with
some foreign system of law. Similarly with " the place of contracting
": the juridical nature of the problem as contract has already
been determined, and the rules relating to contracts made
available; but the judge still has to localize the " point of contact
" which the confiicts rule designates, namely " the place of
contracting."
In the case about the statute of limitations the problem is different
again; here the juridical nature of the problem presented to
the court has already been determined to be contract. Consequently
certain confiicts rules are available for its solution, including
(let us assume) that the validity of the contract and the
nature of the resultant obligation are governed by the law of the
place of contracting, and the procedural requirements for enforcement
are governed by the law of the forum. The question whether
limitation of actions relates to substance (and so is governed by
the law of the place of contracting) or procedure (and so is gov-
1939] THE CHARACTERIZATION PROBLEM 753
erned by the law of the forum) therefore concerns the application
of the confiicts rules already decided to be applicable.
The three classes of cases which these instances illustrate will
correspond to the three stages which take place in the determination
of any confiict of laws question:
I. Determination of the juridical nature of the problem presented
to the court, e.g., " This is a contract." When this determination
has been made, then the confiicts rules appropriate to
the legal category selected will be available for the solution of the
problem.'^
II. Selection of the appropriate connecting factor, e.g., " This
contract was made in France."
III. Delimitation of the proper law, e.g., " The French law
governing substance does not include limitation as a question of
substance; the English law governing procedure does include
limitation as a question of procedure." °
It now appears that what the judge does when he " qualifies "
varies according to the stage at which he performs the process:
at Stage I he characterizes the whole factual situation, at Stage II
he characterizes certain particular facts, and at Stage III he delimits
rules of law. Thus one cannot give any single answer to the
question " what does the judge do when he ' qualifies '? " Lorenzen
fails to explain that in his various examples the judge is called
on to " qualify " quite different things. It is true that Lorenzen
gives some indication of being conscious that different things are
qualified on different occasions, because in one place he speaks of
having to decide the " preliminary question " and in another of
" the definitions of . . . points of contact." But his distinction
does not embrace the rules of law which have to be " qualified " at
Stage III and the distinction itself is implicit rather than express,
as the passages from which it may be inferred occur fourteen pages
apart' and are nowhere related.
^ Strictly speaking, the determination of the juridical nature of the problem presented
for solution and the choice of the conflicts rule appropriate to the category
selected represent two distinct steps or stages. The latter, however, will not be discussed
here, as it involves no problem of characterization,
" Whether this is a correct statement of the English and French law is not at
present material.
7 20 COL. L. REV. at 282, 268.
754 HARVARD LAW REVIEW [Vol. 52
II
No further extensive treatment of this question appeared in
the English language until Mr. Beckett's article in 1934.' Beckett
started by pointing out that the rules of confiict of laws " involve
the use of conceptions of analytical jurisprudence, viz., procedure,
succession, movables, immovables, capacity, form, contract, tort,
etc.," and continued:
In every case which involves a question of Private International Law
the court is called on to decide whether a given state of facts, or a rule of
law and the right resulting therefrom, falls into one or other of these
conceptions or categories of analytical jurisprudence. It is this process
— involved in every case — which I describe by the English word " classification,"
and which in French legal literature is described by the word
" qualification."
Beckett, at the outset, has taken us one step further than Lorenzen
did, by stating that what has to be " classified " or " characterized "
includes both facts and rules of law; and it is clear that he appreciates
that something different is involved in each case, because his
discussion of " classification in practice " is subdivided according
to whether what is being classified is a rule of law or not.
After stating the views of various continental writers, Beckett
continues with a discussion of " classification in practice." The
cases that may arise he divides into three classes:
(a) Cases not involving any characterization of a rule or institution
of internal law.
(b) Classification of rules or institutions of the internal law of
the forum.
(c) Classification of rules or institutions of foreign internal law.
The first class is defined as " those which do not involve the appreciation
of the character of any rule of internal law, but simply the
application to a given set of facts of a conception of Private International
Law." Beckett gives several examples, including whether
the claim arose out of a contract and whether a case should be
considered one of contract or of tort. The process performed here
is the same as was described above, namely the determination of
the juridical nature of the problem presented for solution.
8 The Question of Classification (" Qualification ") in Private International Law
(1934) 15 B.y. I.L. 46.
1939] THE CHARACTERIZATION PROBLEM 755
Beckett's first class, however, also includes determinations of
domicil and of place of contracting, which, as was pointed out
above, differ in their nature from determinations of the juridical
nature of the problem presented for solution because the latter precede,
and the former follow, the selection of the confiicts rule.
This distinction, however, is not made by Beckett. He includes
in his first class of cases both the determination of the juridical
nature of the problem presented for solution and the determination
of the connecting factor. On his view they both come under the
head of " the application to a given set of facts of a conception of
Private International Law."
It was stated above that after the judge has characterized the
question presented to him in a certain way (Stage I) and selected
the appropriate connecting factor (Stage II), he must then delimit
the proper law made applicable, deciding, e.g., how much of
the foreign law applies to substance, and how much of the law
of the forum to procedure (Stage III). Beckett divides into two
classes the cases that may arise at this third stage:
(b) Classification of rules or institutions of the internal law of
• the forum.
(c) Classification of rules or institutions of foreign internal law.
The usefulness of this division is not very clear, as the process performed
in both.cases is the same, namely the application and
delimitation of the law already determined to be applicable; and
the method of classification is the same, namely, on Beckett's view,
by principles of analytical jurisprudence.
Ill
In the first edition of his Private International Law (1935), Dr.
Cheshire gave a statement of the characterization problem, adopting
Beckett's term " classification," but since there is a fuller
treatment in the second edition, discussion of Cheshire's views
will be postponed until later. Two years after Cheshire's first
edition Dean Falconbridge published an article " which gives what
" Characterization in the Confiict of Laws (1937) S3 L. Q. REV. 23S, 537. The
same views are expressed in Falconbridge, Conflict of Laws: Examples of Characterization
(1937) 15 CAN. B. REV. 215. As appears from this article, I am much indebted
to Dean Falconbridge for his analysis.
756 HARVARD LAW REVIEW [Vol. 52
is probably the best statement in English of the nature of the
characterization problem. Falconbridge was the first to concern
himself with the question how the disputed characterizations arise,
before attempting to decide how to resolve the disputes when they
have arisen. Thus he begins:
One purpose of this article is to suggest that the Court's inquiry should,
in effect, if not formally or explicitly, be divided into three stages.
These stages may, for convenience, be briefly designated as Characterization,
Selection, and Application — the characterization of the subject
or question, the selection of the proper law, and the application of the
proper law.
These three stages are substantially the same as the three stages
described above as (i) the determination of the juridical nature
of the problem, (2) the selection of the appropriate connecting
factor, and (3) the delimitation of the proper law.^"
Under his heading " I. Characterization of the question," Falconbridge
discusses such questions as capacity and formality,
substance and procedure, status and capacity, marital property
and succession, succession and administration, movables and immovables.
" II. Selection of the proper law: the connecting factor
" discusses domicil, place of contracting, and situs of a thing.
In " III. Application of the proper law," the sense in which the
proper law, and its characterizations are applied is developed.
While the application of his method to certain cases seems open to
question," the method itself is wholly praiseworthy.
Almost simultaneously with the publication of Falconbridge's
views, Mr. Josef Unger published an article " devoted principally
10 The only important difference to note is that Falconbridge calls the second
stage " selection of the proper law," whereas I call it " selection of the connecting,
factor." Strictly speaking, there are again two distinct steps or stages involved
here.- The judge must first select or localize the connecting factor, then choose the
proper law. Normally, this will involve no difficulty, but it is at this stage that the
renvoi problem may arise. Thus if the connecting factor (e.g., domicil) is localized
in, e.g., France, is the proper law the " internal law " of France, or " the whole law "
of France, including the French conflicts rules? Cf. Griswold, Renvoi Revisited
(1938) 51 HARV. L. REV. 1165.
11 See p. 767, infra.
12 The Place of Classification in Private International Law (1937) 19 BELI
YARD 3.
1939] THE CHARACTERIZATION PROBLEM
to considering how problems of classification arise in the course
of the solution of conflict of laws cases, rather than to a detailed
discussion of the method of solving them once they have arisen.
Unger outlines the three stages in the solution of a conflicts case,
distinguishing them with slightly different terminology. Thus
what Falconbridge calls " the connecting factor " Unger calls " the
elements of introduction." What Falconbridge calls " the application
of the proper law " Unger calls " delimitation of the portions
of law applicable by virtue of the reference contained in the
rules of Private International Law." Further, where Falconbridge
spoke of " characterizing " both questions of fact and
rules of law, and Beckett and Cheshire applied the term " classify "
to both stages, Unger speaks of " characterizing " questions of
fact, and " classifying " rules of law. Exceptional brevity and
clarity permit Unger to convey his statement to the reader with
greater ease than Falconbridge's more comprehensive treatment,
but his statement is substantially similar.
Cheshire's discussion," although using different terminology,
makes the same distinction between the three classes of cases.
Cheshire mentions iarst the case of selection of the connecting factor,
and calls this " classification of a rule of Private International
Law itself," because the selection and application of the connecting
factor form part of the application of the rule of Private International
Law. The characterization of the question, referred to
above as Stage I, Cheshire calls " primary classification," and
describes as " the allocation of the issue to its correct legal category."
The third stage of application and delimitation of the
proper law Cheshire calls " secondary classification," and describes
as " the process by which the juridical nature of some legal
rule, institution, or transaction is determined " after the proper
law has been already selected. Cheshire's statement of the different
treatment that must be accorded to questions of " primary
classification " and " secondary classification," is probably the
best that has yet been given." By adaptation of Cheshire's terminology,
I shall use " primary characterization " for the process
1" PRIVATE INTERNATIONAL LAW (2d ed. 1938) 24-45.
" I am greatly indebted to Dr. Cheshire for the assistance of this part of his discussion,
from which I have largely derived my own views.
758 HARVARD LAW REVIEW [Vol. 52
performed at the first stage (characterization of the question presented
for determination) and " secondary characterization " for
the process performed at the third stage (application and delimitation
of the proper law). The process of selection of the connecting
factor, performed at Stage II, will be referred to in those
words.
PART II. SUGGESTED METHODS OF SOLUTION
IV
Lorenzen, it will be remembered, takes the view that with two
possible exceptions the law of the forum should determine disputed
characterizations. In the case of domicil he quotes the
authority of/precedent; similarly with the determination of formality
or capacity. For the exception that the nature of property
as movable or immovable should be determined by the law of the
situs, he is again able to quote authority. But his main argument
is based on general theory. He points out that, subject to the
slight and very general limitations of international law, English
and American courts apply the foreign law in cases of conflict of
laws not because they must when the " operative facts " occurred
abroad, but because they see fit to do so in the interests of justice
and social convenience. If, therefore, the application of the
foreign law depends solely on the will of the forum, the characterization
from which the application of the foreign law results must
similarly depend on the will of the forum. On this ground, he
concludes that disputed characterizations should be determined
by the law of the forum.
Other reasons are given for reaching the same conclusion. It is
said: " that the international theory is idealistic and not in accord
with reality is obvious "; and again " the international theory of
the conflict of laws rests almost wholly on fiction." The view
that the disputed characterization should be determined by the
foreign law governing the transaction is rejected for the reason
that it is only after determining the characterization that the judge
is able to decide what the foreign law governing the transaction is;
consequently when the characterization determines the foreign law
it would be arguing in a circle to say that the foreign law shall also
1939] THE CHARACTERIZATION PROBLEM 759
determine the characterization. By the process of elimination
of the other suggested views, Lorenzen is left with his conclusion
that the law of the forum must be decisive.
This reasoning, however, is less persuasive than at first appears.
On the basis of precedent, it is established that domicil, in English
and American law, is to be determined by the law of the forum,"
and that the nature of property should generally be determined by
the law of the situs. Whether Ogden v. Ogden, on the other hand,
constitutes acceptable authority for the proposition that the determination
of what is capacity or formality should be decided by the
law of the forum is by no means so clear. It is quite true that the
case was decided on the basis of such a rule; but the result of
the decision was that a woman was held to be married in England to
a Frenchman domiciled in France who by French law was not only
not her husband but also legally married to somebody else. It is
hardly necessary to say that this decision is now very generally
discredited,^" and any writer should hesitate long before fostering
his view on a decision such as this.
As for Lorenzen's argument on principle: although the forum
could legitimately refuse to adopt any characterization other than
its own, it does not follow that it should do so. As Professor Griswold
observes in connection with the renvoi: " After all, what is
the conflict of laws, unless it is a science for telling a court when it
should cast aside its own rule in favor of one that is preferred
abroad? " " We must look to other considerations than the fact
that the forum " always applies its own law to the case " ^* in order
to decide whether that should be its purely internal law, or should
include some foreign element; and if it should include some foreign
element, the question still remains open whether that should include
some foreign characterization. If it can be proper to adopt
the foreign characterization in determining.the nature of property
1° In a renvoi situation domicil may twice be a connecting factor — first to the
foreign law and then back to the local law. If the judge of the forum accepts the
reference back to his own law he will by doing so apply the foreign determination
of the connecting factor. Cf. decision of the Cour de Cassation, March 7, 1938, reported
in (1938) NouvELLE REVUE DE DROIT INTERNATIONAL PRIVE 143.
I" Though not by Professor Beale. See i BEALE, CONFLICT OF LAWS (1935) 510.
1^ Renvoi Revisited (1938) 51 HARV. L. REV. 1165, 1178.
18 Cook, Logical and Legal Bases of the Conflict of Laws (1924) 33 YALE L. J.
457, 469.
HARVARD LAW REVIEW [Vol. 52
as movable or immovable (as Lorenzen admits it is), then it cannot
be necessary as a matter of principle always to characterize
by the law of the forum.
However, perhaps the other reasons offered by Lorenzen will
amount to practical considerations for accepting His conclusions.
It must be admitted that there is considerable weight in his criticism
of the theory that characterization should be determined by
international principles of comparative jurisprudence. He points
out that it is based on a conception of the science^of conflict of
laws as being part of international, rather than municipal law,
which is foreign to the doctrine of the common law. Further, as
Cheshire observes: " Even in the pure science of law, which is
presumably what the term ' jurisprudence ' [used by Beckett in
his statement of the international theory] is meant to describe,
' the essential general principles of professedly universal application
' are not remarkable for their number." " It would seem,
therefore, that the judge confronted with a characterization problem
is likely to flnd little practical assistance or comfort from the
international theory. But the view that characterization should
be performed by the foreign law is not to be thrown out as lightly
as the international theory, or as Lorenzen dismisses it. It is true,
as he says, that when the characterization determines the foreign
law applicable it is arguing in a circle to say that the " applicable
foreign law " shall determine the characterization.^" But that
does not by any means cover all the cases given by Lorenzen or
most of the other writers who have discussed this problem.. It is
here that the distinction between the cases that arise before the
selection of the proper law and those that arise after its selection
becomes so important. The argument that to characterize by the
" applicable foreign law " is to argue in a circle may be appropriate
to primary characterization (i.e., the determination of the
nature of the question presented to the court, which must precede
1" PRIVATE INTERNATIONAL LAW (2d ed. 1938) 28.
2" It is worth noting, however, that when a large number of the relevant facts
all occurred in one foreign jurisdiction it would be possible to adopt the foreign
characterization solely on that account. This will not mean'that the judge is characterizing
by the foreign law because the foreign law will ultimately govern the question
(in which case he would be arguing in a circle), but merely because the case has
such an essential connection with the foreign law that to adopt its characterization
seems, under the circumstances, the most reasonable course to follow.
1939] THE CHARACTERIZATION PROBLEM
the selection of the proper law); but this argument has no referonce
whatever to secondary characterization (i.e., the delimitation
of the exact scope of the proper law after it has been selected
as applicable). In the latter case it is clearly not arguing in a
circle to say that when the judge has already determined that some
particular foreign law shall be applied to a certain transaction,
such as the making of a contract, he shall thereafter determine
that that same foreign law shall govern all subsequent characterizations,
such as limitation of actions. This is no more than Bartin's
second principle, enunciated in 1930, that whenever the law
of the forum has decided that a certain foreign law is applicable
to the question under consideration by reason of the application
• of its own rules of conflict of laws, then the judge, in applying the
foreign law thus indicated, should include such subsidiary characterizations
as the foreign law includes.^^ It is doubtful if Lorenzen
would dispute this proposition, which may possibly be " not an
exception to, but a logical deduction from " Bartin's first principle.^^
It is true that Lorenzen says that his discussion is
" limited to the cases where the application of the foreign law depends
upon the determination of the preliminary question";
nevertheless some of the examples which Lorenzen discusses, since
they in fact arise only after the selection of the proper law has
been made, fall into the class of secondary characterization and so
can reasonably follow the characterization of the proper law already
chosen as applicable.
But even in the cases of primary characterization, which Lorenzen
says the law of the forum must determine in order to avoid
arguing in a circle, can we agree with Lorenzen's interpretation
of " the law of the forum "? He states that " Anglo-American
law agrees in substance with the conclusion reached by Bartin and
Kahn," ^^ and he obviously approves of this conclusion; and he
speaks himself of the " strictly internal law of the forum." This
must mean that in performing primary characterizations the forum
can make use only of the concepts of its internal law; that the legal
21 (1930) I RFXUEIL DES COURS 608. • This is explained in English by Beckett in
(1934) IS B. Y. I. L. at 51-52. Lorenzen, writing in 1920, had available only Bartin's
earlier statement contained in the article cited supra note 2.
-2 See Beckett, loc. cit. supra note 21.
^' For Bartin's views see supra note 21. Kahn's approach is well explained by
Falconbridge in 53 L. Q. REV, at 237-38.
762 HARVARD LAW REVIEW [Vol. 52
categories available for selection when the judge is determining
the nature of the problem presented to him for solution are limited
to those known to the domestic law of the forum. This will mean
that there will be no room in Anglo-American conflict of laws for
matrimonial property (at least in England and those American
states which do not recognize the institution of matrimonial property
in their internal law); nor will there be any place in the
French conflict of laws for trusts. Yet in both England and the
United States the courts have been willing to recognize the institution
of matrimonial property; " and a number of French cases
have recognized the validity of trusts.^^ Thus it appears that a
basis of primary characterization founded on the purely internal
law of the forum will be too narrow for the conflict of laws, which
owes its very existence to the necessity of making provision for
factors and institutions not known to the internal law.
. V
It was against this too narrow restriction that Beckett was protesting
in his advocacy of analytical jurisprudence and comparative
law as the basis of characterization. Thus he writes: " It is
not classification according to the Private International Law of
the forum which I am contesting — it is, of course, obvious that
the court must do this — but classification on the basis of institutions
and rules of the internal law of the forum." ^^ Before stating
this conclusion, he examines and rejects the argunients that
are advanced in favor of characterization by the strictly internal
law of the forum by Bartin, Arminjon, Pillet and Niboyet. The
main reasons he gives for rejecting their " composite view " are
the following:
(I) This theory more than any other would lead to conflicts of
characterizations.
2* De Nicols v. Curlier, [1900] A. C. 21; see 2 BEALE, CONFLICT OF LAWS (1935)
§§ 289.1-293.2.
25 See (1911) CLUNET 134; DONNEDIEU DE VABRES, L'EVOLUTION DE LA JURISPRUDENCE
FRAN^AISE EN MATIERE DE CONFLITS DES LOIS (1938) 68 et seq., 114 et
seq.; cf. Lion in (1923) CLUNET 677; LEPAULLE, TRAITE THEORIQUE ET PRATIQUE
DES TRUSTS (1932).
-" (1934) 15 B- Y. I. L. at 60.
1939] THE CHARACTERIZATION PROBLEM 763
(2) Under this theory, an English court would not merely refuse
to apply French law when according to French ideas it should
be applied, but also would apply French law in cases where, according
to French ideas, it would not be applicable at all; "in
other words, applying a law which is not. French or English, or
indeed, the law of any country whatever."
(3) The theory that a foreign institution or rule should be
characterized in the same way as a corresponding or analogous rule
of the internal law of the forum leads in practice to the most arbitrary
results. In support of this contention Beckett quotes the
anomalous situation produced in Ogden v. Ogden, already referred
to. It clearly does not follow from the fact that English rules
relating to consent to marry are characterized as formalities by
English law that French rules relating to consent to marry should
be similarly characterized when material to an English conflict of
laws decision.
(4) Lastly, Beckett points out that the method of characterizing
by the purely internal law of the forum completely breaks
down when there exists no institution of the internal law in any
way corresponding to the institution of the foreign law under con-
sideration.
The " internal law of the forum theory " being thus rejected,
Beckett then rejects also the " foreign law theory " for the reasons
already noticed, namely that it is arguing in a circle to characterize
by the applicable foreign law when the applicability of the foreign
law depends on the prior determination of the disputed characterization
; and that no solution is possible when either one of two
systems of foreign law may be applicable, and the choice between
them depends on the characterization to be made.
Beckett therefore suggests that the proper principle is characterization
on the basis of analytical jurisprudence and comparative
law," and he offers these reasons in support of his view:
(I) The rules of conflict of laws are rules to enable the judge
to decide questions as between different systems of internal law.
They must therefore be suitable for appreciating the character of
rules and institutions of all legal systems. " Classification is
-^ In this he is following Rabel [(1931) ZEITSCHRIFT 241; (1933) REVUE DE
DROIT INTERNATIONAL PRIVE I ] and Meriggi [(1932) RIVISTA ITALIANA 189; (1933)
REVUE DE DROIT INTERNATIONAL PRIV^ 201; (1934) 14 B. U. L. REV. 319].
764 HARVARD LAW REVIEW [Vol. 52
simply an interpretation or application of the rules of Private
International Law in a concrete case and the conceptions of these
rules must, therefore, be conceptions of an absolutely general
character." This general character, necessary for the comparison
of rules of different legal systems, cannot be obtained from the
internal law of any one system, but only from " analytical jurisprudence,
that general science of law, based on the results of the
study of comparative law . . . ."
(2 ) In many cases the judge must characterize his own internal
law. He cannot, it is said, interpret it in terms of itself, and so
must have recourse to some more general principles outside it, and
these principles can only be those of general jurisprudence.
The way in which the judge should apply the principles of
analytical jurisprudence is further explained as follows:
(a) Even analytical jurisprudence may have something of a
national character, and consequently the judge will follow the
ideas of his own country with regard to analytical jurisprudence.
(b) Where general jurisprudence for some reason can give no
answer, the judge will follow the principles of his own law.
(c) The judge will follow an express direction of his own law
with regard to the sphere of application of a rule of the internal
law of the forum (e.g., that his statute of limitations is procedural).
He will not, however, regard that as a basis for analogy in deciding
other cases (e.g., by holding that foreign statutes of limitations
are procedural), but may consider it a special rule based
Iipon special reasons peculiar to his own country and affording
little or no evidence of the proper conceptions of analytical juris-
prudence.
The third part of Beckett's article, entitled " classification in
practice," considers various decisions, mostly of the English
courts, that have involved questions of characterization. These
are divided, as was pointed out above, into three classes of cases.
The first class embraces both those which are here called primary
characterization and cases of selection of the connecting factor.
Beckett writes: "The conclusion which I draw is that in this
class of case a court must always apply the conceptions of the lex
fori and must disregard the conceptions of foreign laws on these
points." He makes an exception in cases where it is clear that one
of two given foreign laws will be applicable, and they both agree
1939] THE CHARACTERIZATION PROBLEM 765
in the characterization to be adopted; then, it is said, the forum
should adopt their common characterization rather than its own.
Secondly, Beckett deals with " classification of the internal law
of the forum." He illustrates what he considers the necessity of
having regard to considerations and concepts outside those of the
purely internal law of the forum, particularly in cases involving the
determination that distinguishes between substance and procedure.
Thirdly, he discusses " classification of rules of foreign
law," in which he gives as his general principle: " In classifying
rules and institutions of foreign law, full application should be
given to M. Bartin's second principle that, once it is ascertained
that a given foreign law applies, it must be applied in toto with all
its relevant subsidiary classifications." But the following qualification
is made: " . . . an English court . . . should, and I
think would, attach great weight to the foreign classification of its
own rule, but I do not think that it-is bound by it if it finds it to be
contrary to the general principles."
Beckett has made a considerable contribution to the search for
an adequate method of solution for the characterization problem,
but his demonstration of the fallacies of other views is more convincing
than the assertion of his own. His examination of the " internal
law of the forum theory " has admirably pointed out the
difficulties which it raises and fails to solve. But after he has
stated his own view in terms of analytical jurisprudence and comparative
law, he then tells us that all " cases not involving any
characterization of a rule or institution of internal law " must be
determined by the law of the forum. His exception thus seems
to include all cases of primary characterization and of selection of
the connecting factor, but Beckett does not realize how large this
exception is. He then goes on to say that when the foreign law
has been chosen as applicable its characterization should prima
facie be adopted and only be abandoned if contrary to general
principles. But when the law of the forum has been chosen as
applicable the characterization of general jurisprudence should
prima facie be adopted and only be abandoned in face of an express
provision of the law of the forum. Apparently the foreign law
can be trusted to determine its own characterization, but the law
of the forum cannot. No reason is given for this seemingly arbitrary
discrimination, unless it be " the somewhat exuberant man-
766 HARVARD LAW REVIEW [Vol. 52
ner in which English law has extended the field of procedure " ^^
under the guise of " barring the remedy," which might well be
matched by the fondness of French courts for extending the sphere
of " capacity " and " status " under the guise of " personal law."
Beckett's proposed solution seems to lack an appreciation of the
three stages in the solution of a conflicts question noted above.
Consequently the assertion of his own view is neither entirely
coherent nor very definitive. On the other hand, he seems fundamentally
right in emphasizing that the concepts for characterization
must be provided by the conflict of laws rather than the
internal law of the forum. Nevertheless, the traditional method
of thought of the common-law courts in determining the concepts
of conflict of laws is not in terms of analytical jurisprudence and
comparative law.
-VI
After drawing attention to the necessity of knowing what is being
characterized, Falconbridge observes with regard to Beckett's
" comparative law view ":
Characterization on the basis of comparative law would seem to require
a supranational class of judges, deeply learned in comparative law,
capable of dissociating problems before them from the law of the forum,
and willing to adopt in conflict problems a technique which is entirely
foreign to the technique applied by them to other problems. Probably
some via media might, however, be found, somewhere between the two
extremes of characterization by the lex fori as commonly understood and
characterization on the basis of comparative law.-"
Falconbridge then suggests his own solution which is characterization
by the lex fori of a rule of law in its context. Referring to
a French rule of consent for marriage, he says: " The characterization
should, in an English court and for the purpose of English
conflict of laws, be made in accordance with the concepts of English
law, but the thing which has to be characterized is a requirement
as to parental consent regarded in the light of its context in
the French law of marriage . . . ." Elsewhere he speaks of " the
28 CHESHIRE, PRIVATE INTERNATIONAL LAW (2d ed. 1938) 40.
-" S3 L- Q. REV. at 245.
1939] THE CHARACTERIZATION PROBLEM 767
general rule that the question should be characterized by the lex
fori" (in the sense as just defined). So it appears that on his view
the judge must characterize by the concepts of his own law, but
must only apply those concepts after taking into consideration the
part which a foreign rule of law plays in its own system. This " via
media," then, if I understand it aright, represents a compromise
between the " internal law of the forum view " and the " foreign
law view ": the judge must look to the context of a foreign rule of
law, that is to say must take notice of the foreign characterization,
but he is not bound to follow it, because the law of the forum is
his principal guide.
A number of cases are discussed by Falconbridge as examples
of " characterization of the subject or question." They include •
decisions whether the question before the court is one of matrimonial
property or succession; of administration or succession; of
movable or immovable property. They also include determinations
whether a particular rule of law relates to formality or
capacity; to substance or procedure in contract or tort. If in these
cases we ask the question which we took as a criterion of a clear
statement of the problem, namely " what is it that is being characterized?,"
the importance of which Falconbridge himself emphasizes,
we get widely divergent answers. Decisions that have to be
made between matrimonial property and succession, succession
and administration, and movable or immovable property, are determinations
of the juridical nature of the problem presented for
solution. On the other hand, decisions as to whether a particular
rule of law relates to formality or capacity, or to substance or procedure,
are determinations of the delimitation of the proper law.
The former type of determination is made before the proper law
can be chosen; the latter type is made after that choice has already
been made. Although Falconbridge has pointed out the distinction
while talking in general terms of what the problem is all about,
he seems not to observe the distinction in his detailed discussion
of particular cases.
If we leave out of consideration those cases such as capacity
and formality, substance and procedure, which Falconbridge discusses
as primary characterizations but which seem rather to be
secondary characterizations, is his treatment of the cases that are
admittedly primary characterizations satisfactory? In his own
768 HARVARD LAW REVIEW [Vol. 52
words, " the court should, in the first place, characterize, or define
the juridical nature of the subject or question upon which its
adjudication is required." Ap'art from warning of the danger of
following too closely the law of the forum in determining between
administration and succession, Falconbridge gives no very clear
idea of what principle should be adopted. His general principle of
" characterization by the lex fori of a rule of law in its context "
will not help in these cases of primary characterization, as the
court is not called on to characterize a rule of law at all, but, in
Falconbridge's own words, to " define the juridical nature of the
subject or question upon which its adjudication is required."
Little doubt can be felt in view of the general tenor of his argument
that, on his view, primary characterization must be determined by
the law of the forum. At the same time he clearly does not mean
by the strictly internal law of the forum, since he has stated at the
outset that he is lookihg for some " via media " between the " internal
law of the foruin view " and the " comparative law view."
In just what sense Falconbridge thinks that the lex fori should be
applied in cases of primary characterization, where the proper law
has not been selected, and so the court cannot have regard to the
context of the appropriate rules of foreign law, is not entirely clear.
The clue may perhaps be found in the following passage: " This
characterization of the question — which may'be provisional and
subject to revision — lays the foundation for the consideration of
the concrete provisions of the laws of various countries which are
or may be applicable in the light of the characterization of the
main question or different aspects of that question." '"' But the
sense in which this provisional characterization is to be performed
seems to require additional clarification.
In his section on " selection of the proper law " Falconbridge
reaches the conclusion that characterizations of the connecting
factor must be determined by the law of the forum. In this he is
in agreement with the other writers and on authority he seems
right. Falconbridge's discussion of his third stage (" application
of the proper law ") is in general terms of the theory of conflict of
laws. He espouses the " local law " view as against the " territorial
theory " or " acquired rights " view; further he discusses
the interrelation of characterization and the renvoi problem, and
3» IS CAN. B . REV. at 218.
1939] THE CHARACTERIZATION PROBLEM 769
criticizes the attitude of the Conflict of Laws Restatement. But
having dealt in the first part of his article with those types of cases
which, in my opinion, represent the most real problems at the third
stage, Falconbridge makes no mention of them here.
VII
The main part of Unger's article is concerned with " classification
" (in his meaning of the term), i.e., secondary characterization.
Had his article not appeared between the dates of Falconbridge's
two installments, one would think that Unger was
writing to show that Faicbnbridge's conception of the process of
characterization involved in application of the proper law was too
narrow. Unger makes the same point that I wish to emphasize,
namely that characterizations of rules of law are performed after
the proper law has been selected, and so are governed by different
principles from those governing characterizations of the question
presented to the court by the factual situation of the case. Thus
he writes:
If it should be found that the engagement [of a contract to marry] was
entered into in France, English Private International Law would direct
application of that portion of French law which deals with the formalities
of a contract. Now the problem of the delimitation of that portion
of French law— the problem of classification —• would arise. It usually
becomes acute with regard to a particular rule of the legal system concerned.
The question normally is whether a given rule of either English
or foreign law is to be considered as belonging to that portion of English
or foreign law to which the court has been referred by its Private International
Law.
The court has to delimit the French law in order to find out just
how much of French law relates to formalities, and delimit English
law in order to find out just how much of English law relates to
procedure. Similarly with regard to parental consent for marriage
Unger points out that an English court, having determined that
capacity is governed by the law of the domicil, should enquire how
much of the French law (if the propositus is domiciled in France)
relates to capacity, and how much of the English law to formality.
Whether a provision of the French Code relates to capacity can be
determined only by examining the part which it plays in the
French law. " To classify a rule of law it is necessary to deter-
770 HARVARD LAW REVIEW ' [Vol. 52
mine the function performed by it within the system of law to
which it belongs and to consider it in relation to what is described
by Bartin as ' l'esprit de la regie de droit international prive.'"
Unger thus seems to agree that characterization of rules of law
can properly be performed only in accordance with the characterization
adopted by the proper law, or lex causae, already chosen.
Unger also suggests some sort of a " via media " between the
internal law of the forum and comparative law as the criterion for
primary characterization, namely characterization on the basis of
the analytical framework of the lex fori.^^ It is true that this
avoids the charge of inapplicability in certain cases rightly brought
against the strictly internal law of the forum; it also avoids the
charge of impractical vagueness brought against analytical jurisprudence
and comparative law. Whether it represents the best
solution, however, remains doubtful.^^ In any case Unger has
greatly helped the quest for solution of the characterization problem
by the clarity of his statement, and the convincing way in
which he puts the argument that " secondary characterization," or
" classification " (to use his term) of rules of law must be regarded
as a process of delimitation of thie proper law already chosen as
applicable to the case before the court.
VIII
Cheshire's method of stating the problem, as was noted above,
is not materially different from, though perhaps it is less clear than
that of Falconbridge and Unger. On the question of solution of
the characterization problem Cheshire comes out' squarely in favor
of two rules:
(1) " Primary classification " must be decided by the lex fori.
(2) " Secondary classification " must, with one important exception,
be decided by the lex causae (i.e., the proper law applicable
to^the situation under consideration).
^1 ". . . only the analytical framework [of the lex fori] without its body of detailed
provisions need be considered. Thus, a relationship may be characterized by
English law as of a contractual nature or as a marriage, although (e.g., for lack of
consideration) it does not constitute a contract in the sense of English internal law or
a marriage according to the requirements of English internal law." 36 BELL YARD
at 7.
^2 Does the analytical framework of English law make provision for matrimonial
property ?
1939] THE CHARACTERIZATION PROBLEM 771
This first rule Cheshire explains as follows:
. . . this primary question of classification must of necessity be decided
according to the lex fori, i.e., it is the English judge alone who, by
making his own analysis of the issue, must determine its true nature and
assign it to its correct legal category. It is impossible to classify according
to the law that is ultimately to govern the legal relationship, for until
the process of classification is complete the legal relationship is unknown.
If the law which is finally to regulate the matter (i.e., the lex causae)
depends upon classification, how can a classification be made according
to that law? It may seem arbitrary to apply the lex fori exclusively, but
each system of Private International Law is based upon its own indigenous
system of classification, and it is no more justifiable to abandon
this than it is to abandon its rules for the choice of law.^^
The reason for the second rule is:
once it has been established that by the Private International Law of
England a foreign legal system is the appropriate law to govern the whole
of a particular transaction, it is only logical to admit that the foreign
law shall henceforth govern the matter in every respect. To rule otherwise
is to stultify the English rules for the choice of law. If the court
has already decided that English law is inapplicable, since all the facts
and events concerning the matter are connected with country X, why
should it discard just that one part of the law of X which comprises the
rules of classification? ^*
The " one important exception " to the second rule is that no
foreign classification shall be allowed to defeat an English rule of
procedure. The reason for the exception is that no court can be
expected to disregard one of its well-established procedural rules
merely because the particular action happens to contain a foreign
element. Cheshire's second rule, however, may be restated to
avoid the necessity of an exception. The various aspects of a case
are governed by different systems of law; e.g., where suit is
brought in England on an oral contract made in France and the
necessity of a writing becomes relevant, there will be no one lex
causae. The English conflicts rules refer to two systems of law:
French law to govern questions of substance and English law to
govern questions of procedure. The French characterization of
French rules should be adopted and the English characterization
of English rules. Thus, Cheshire's second rule could be expressed:
2^ PRIVATE INTERNATIONAL LAW (ZA ed. 1938) 34. ^* Jd. at 40.
772 HARVARD LAW REVIEW [Vol. 52
" Secondary characterization should be decided by the proper law
already chosen," understanding " proper law " to mean the proper
law applicable to each separate aspect of the question.
Cheshire includes under primary classification determinations
of four types: (i) succession or marital rights, (2) testamentary
or matrimonial law, (3) administration or succession, and (4)
capacity or formality (as in Ogden v. Ogden — the question of
parental consent for marriage). Under secondary classification
are apparently included, inter alia, rules requiring certain types of
contracts to be in writing, rules of limitation of actions, and the
classification of property into movable and immovable.^"' In this
respect Cheshire has improved on Falconbridge's treatment by
dealing with the requirement of contracts to be in writing, and
limitation of actions as secondary rather than primary classifications.
For the reasons already given it would appear that the
determination whether a rule of law relates to capacity or formality
should similarly be included as secondary classification.
On the other hand, it seems more proper to treat the classification
of property into movable and immovable as primary classification,
because different rules relate to movables and immovables, and it
is impossible for the judge to know which rule to apply until he
has made this determination.
If we are left with the two rules that primary characterization
should be governed by the lex fori, and secondary characterization
by the proper law already chosen as applicable, and understand
the latter rule in the sense explained, we have the equipment to
decide all questions on a satisfactory basis. Cheshire does not
expressly deal with the question whether the lex fori means the
strictly internal law of the forum, but it would seem from his treatment
that he does not mean it in that sense. The internal law of
the forum being inadequate and the foreign law impracticable
for primary characterization, it seems that we are led to the conclusion
that this process should be performed by the conflict of
laws of each country according to the concepts which it indigenously
works out for itself.
A. H. Robertson.
HARVARD LAW SCHOOL.
"^ Cheshire writes of the classification of property (at 44): " It would seem that,
strictly speaking, here is a case of what we have called primary classification." But
his arrangement would seem to indicate that he considers it secondary.