Can better law be married with corrective justice or evil laws?

• Author: Peari, Sagi
• Position: Abstract through II. Better Law as a Primary Rule: Marriage with Corrective Justice? A. A Perfect Match? p. 511-537

This article offers an innovative understanding of the better law approach to choice of law. Through addressing the terminological fallacies of traditional and contemporary choice of law literature, depicting the conceptual distinction between the two versions of better law, and making a link between the better law approach and two central notions of legal theory-corrective justice and evil laws--this article provides a comprehensive analysis of the nature of better law.

Cet article propose une comprehension novatrice de 1'approche du meilleur droit en matiere de conflits de lois. II fournit une analyse complete de la nature de fapproche du meilleur droit en abordant les erreurs terminologiques de la litterature traditionnelle et contemporaine en matiere de conflits de lois, en depeignant la distinction conceptuelle entre les deux versions de cette approche, et en faisant un lien entre celle-ci et deux notions centrales en theorie du droit, soit la justice corrective et les lois immorales.

1. Two Forms of Better Law A. Better Law as a Primary Rule B. Better Law as a Subsidiary Rule 1. Classical Choice of Law Methodology 2. Modern Choice of Law Methodology II. Better Law as a Primary Rule: Marriage with Corrective Justice? A. A Perfect Match? B. Marriage Wrecker: The State Equality Principle III. Better Law as a Subsidiary Doctrine: Marriage with Evil Laws? A. The Notion of Evil Laws in Legal "Theory 1. Natural Law and Evil Laws 2. Legal Positivism and Evil Laws B. The Subsidiary' Version of Better Law as an Evil Law 1. Public Policy as an Evil Law in Courts a. Loucks v. Standard Oil b. Oppenheimer v. Cattermole c. Kuwait Airways v. Iraqi Airways 2. Mutual Benefits: What Can Evil Laws and Better Law Teach Each Other? a. The Subjectivity Challenge b. The State Equality' Challenge Conclusion Introduction

   There are times when those who write about the common law of private international law are forced to concede that the terminology used to express the doctrine is liable to mislead. (1)

   The choice of law question asks which law courts should apply when a foreign element is involved in the factual matrix of a case. According to the better law approach, the answer to this question lies in the substantive evaluation of the involved laws' provisions and determination of which law is "better". Thus, in the case of a contract signed between Ontario and Quebec residents in New York with respect to delivery of goods in Brazil, the better law approach supports a comparative evaluation of the substantive merits of Ontario's, Quebec's, New York's, and Brazil's contract law provisions and chooses from those provisions that which is the "better" one. But which law is considered to be "better"? Indeed, presented in these terms, this approach has not received much support in court decisions and, most commonly, has been quickly dismissed by commentators on grounds that point to the lack of objective criteria in the "better" law. (2)

   This article argues that the story of better law is a story of missed points for academic scholarship. In line with the above-cited quotation, choice of law literature has been preoccupied with terminological misconceptions and miscategorizations (3) that have greatly contributed to contemporary underestimation and misunderstanding of better law. I will argue that, in contrast to the conventional view, better law is deeply rooted in choice of law thought and constitutes one of the most central elements of choice of law process. Academics have missed the point that in fact one can conceptually delineate not one but two versions of the better law approach, which prompts a further logical analogy between better law and the following two central notions of legal theory: corrective justice and evil laws.

   In particular, I will do the following three things. First, as I have mentioned, I shall argue that there are in fact two versions of the better law approach: the unpopular version of better law as a primary rule and the very popular version of better law as a subsidiary or complementary rule. By offering various accounts of better law and analyzing its various aspects, choice of law commentators have neglected to make a conceptual distinction between these two versions. (4) One can argue, however, that this distinction should be made. Both versions of better law refer to the merits of the substantive content of the laws involved. It is, however, one thing to defend a pure account of better law that insists on a direct application of its methodology to choice of law process. Thus, we can say that in the car accident between Ontario and Quebec residents that took place in New York, the "better" tort law rule of negligence should apply through the comparative analysis of the respective Ontario, Quebec, and New York tort law provisions. (5)

   Yet, it is another thing to make a reference to better law as a subsidiary substantive doctrine within the operational mechanics of other choice of law methods. Consider a contract made between Ontario and Quebec corporations with respect to the delivery of goods in Brazil. According to the subsidiary version of better law, the Ontario judge might discredit the ordinary choice of law rule of the place of contract performance (i.e., Brazilian contract law) because of the substantive merits of this provision. Accordingly, while both versions of better law refer to the merits of the substantive content of the laws involved, the subsidiary version of better law does so as a complementary doctrine to other methodologies. (6) Presented in these terms, the subsidiary version does not conceive the normative structure of the choice of law question as a unitary enterprise that is based purely on the substantive notion of better law, but rather as a complex conjunction and interplay of several key foundational blocks with better law being one of them. (7)

   Second, this article suggests making a conceptual link between the primary version of better law and the theory of corrective justice. As a full-blown theory of private law, corrective justice seems to be a natural companion of this version of better law. One can argue that better law supporters have missed the following point. Since private international law cases address private interactions, a theory based on private law and private law categories (i.e., tort, contracts, restitution, and property) can provide the answer to the fundamental challenge of better law: which law is better? As the leading theory of private law, corrective justice seems to be a suitable candidate for providing the much needed normative criteria of better law. Yet, it will be argued that, despite its apparent attractiveness, corrective justice's own theoretical basis is still incompatible with better law as a primary rule.

   Third, the article suggests making a parallel between the subsidiary version of better law and the notion of "evil laws" in legal theory. Addressing admittedly different cases and operating on different levels and in different contexts, the striking similarity in rhetoric and implementation between the two notions is evident. As we will see, evil laws theory is not just capable of providing a normative justification of better law as a subsidiary rule, but also explains why this version of better law seems to be immune from the significant challenges that have been raised against the primary version of better law. In this way, the suggested consideration of marrying better law with corrective justice or evil laws purports to provide a normative justification for both: the remarkable scarcity of better law as a primary rule and the vast popularity of better law as a subsidiary rule.

   The article is structured around the above-mentioned three points. Part I delineates the two versions of better law and analyzes its presence within traditional and contemporary choice of law thought. Part II discusses the possibility of marrying the primary version of better law with the private law theory of corrective justice. Part III discusses the possibility of marrying the subsidiary version of better law with the notion of evil laws.

1. Two Forms of Better Law

   1. Better Law as a Primary Rule

      The popularity and use of better law as a primary doctrine is relatively rare. In Europe (8) and Canada (9), this version of better law has been entirely rejected. In the United States, it has received only marginal support, primarily through the writings of Robert Leflar (10) and Friedrich Juenger. (11) Leflar suggested governing the choice of law process through an amalgam of the following five "choice-influencing considerations": "[predictability of results"; "[m]aintenance of interstate and international order"; "[simplification of the judicial task"; "[advancement of the forum's governmental interests"; and "[a]pplication of the better rule of law." (12) As one can notice immediately, the last consideration of the "better rule of law" is only one of five considerations. Its actual influence within Leflar's other four considerations is somewhat vague and has been broadly understood amongst choice of law commentators and courts as a mere call for the application of the domestic law of the forum--lex fori. (13) Based on this understanding of Leflar's legacy, among the laws involved, the "better rule of law" is that of the forum adjudicating the case.

      Friedrich Juenger's writings provided another source of potential support of better law as a primary rule. By defending the single...