MWENGE CATHOLIC UNIVERSITY
[MWECAU]
FACULTY OF SOCIAL SCIENCES, HUMANITIES, ECONOMICS AND BUSINESS
STUDIES
DEPARTMENT OF SOCIAL SCIENCES AND HUMANITIES
BACHELOR OF LAWS [LL. B II]
COURSE NAME; - PRIVATE INTERNATIONAL LAW
COURSE CODE; - BLW 317
NATURE OF WORK; - INDIVIDUAL ASSIGNMENT
COURSE INSTRUCTOR; - ADV, MANDELA MZIRAY
NAME OF STUDENT; - FAIDHA R. SELEMANI
REGISTRATION NUMBER; - T/DEG/2022/0270
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QUESTION
“… Private International Law is in certain Sens, a part of the law of a Country, but it is above
that something else…” D Joseph Jitta, The Development of Private International Law though
Convention. Yale Law Journal Volume 29 Issue 5 1920.
In the Light of above Statement, TRACES the historical background of Private International
Law. Your Paper should focus on
(a) Roman Empire (27BC-14C)
(b) Feudal Mode of Production
(c) During 15th C up to 18th C
(d) 20th C to 21st Century
(e) Development of Private International Law in Tanzania
(i) Pre-Colonial
(ii) Germany Rule (1885-1919)
(iii) British Period (1919-1960)
(iv) Post Independence 1960-2024
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Introduction to Private International
According to Cheshire1, Private international law is that part of law which comes into play when
the issue before the court affects some fact, event or transaction that is so closely connected with
a foreign system of law as to necessitate recourse to that system.
Conflict of laws comes into operation whenever the court is faced with a case involving one or
more foreign elements. This foreign element may be an event which has occurred in foreign
country, for example a Tanzanian is injured in a road accident in Spain; it may be the place of
business of one of the parties, for example, a Tanzanian company agrees to purchase computer
software from a company incorporated in New York; or it may be a foreign domicile, for
example, a Tanzanian woman marries a man domiciled in Iran.
(a) Roman Empire (27BC-14C)
The main source of current the main source of current knowledge of Roman law is a collection
of texts collectively referred to since the fifteenth century as the Corpus iuris civilis, or simply
the Corpus iuris. This collection is made up of four books: the Digest, Institutiones, Codex and
Novellae, all of them drafted at the behest of Emperor Justinian (527–65) in the first half of the
sixth century.
The Roman Empire was founded when Augustus Caesar proclaimed himself the first emperor of
Rome in 31 BC and came to an end with the fall of Constantinople in 1453.
An empire is a political system in which a group of people are ruled by a single individual, an
emperor or empress. The Roman Empire began with the reign of Emperor Augustus. The power
of the Senate was limited and became an organ to support the emperor2.
The period between Augustus and Diocletian is called the High Empire, while the Low Empire is
the era between Diocletian and the fall of the Roman Empire in the West. The Roman Empire at
its territorial peak
Between the years 14 and 68 the heirs of Augustus succeeded him: Tiberius, Caligula, Claudius
and Nero. This dynastic succession was interrupted when emperor Nero died and a civil war
1
Cheshire & North, Private International Law p.5
2
Mayss, A., (1998). Principles of Conflict of Laws
3
broke out in the year 68. Three emperors fought for power and finally, the war was won by
Vespasian, part of the Flavian dynasty.
The Roman Empire (27 BC - 14 AD) was characterized by a complex legal system that laid the
groundwork for many aspects of contemporary law, including private international law.
Roman law was codified through various statutes and legal writings, with significant
contributions from jurists such as Gaius and Ulpian. The Twelve Tables (c. 450 BC) served as
one of the earliest codifications of Roman law, providing a foundation for later developments.
However, it was during the reign of Emperor Augustus (27 BC - 14 AD) that the need for a more
sophisticated approach to legal disputes became apparent due to increased trade and interaction
with other cultures3.
One key aspect of private international law in ancient Rome was the principle of jurisdiction.
Jurisdiction determined which court had authority over a case based on factors such as location
and nationality.
Conclusively The Romans developed mechanisms for resolving conflicts between their laws and
those of conquered peoples or foreign entities. They often applied their own laws to foreigners
residing within their territory while allowing some local customs to persist. This dual approach
facilitated trade and diplomatic relations but also led to tensions when local customs conflicted
with Roman laws.
(b) Feudal Mode of Production
feudal mode of production is rooted in historical materialism, as articulated by Karl Marx. It
refers to a specific socio-economic system characterized by the relationship between landowners
(lords) and peasants (serfs), where land was the primary means of production, and social
relations were defined by obligations and duties tied to land tenure. In examining how this mode
of production intersects with private international law, we can break down the analysis into
several key components like historical context of feudalism, legal frame work influenced by
feudal relations.
3
Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia 8 (LexisNexis
Butterworths, Australia, 2nd edn., 2011).
4
Feudalism emerged in Europe following the decline of the Roman Empire, characterized by a
decentralized political structure where local lords held power over their lands and vassals. This
system was marked by reciprocal obligations: lords provided protection and land to vassals in
exchange for military service or agricultural produce. The legal relationships that developed
during this period were heavily influenced by these
socio-economic structures. Private international law governs cross-border legal relationships,
particularly those involving private parties such as individuals or corporations. The feudal mode
of production influenced early legal frameworks through concepts such as jurisdiction, property
rights, and contractual obligations.
(c) During 15th Cup to 18th C
The roots of Private International Law can be traced back to the late Middle Ages, particularly
during the 15th century. This period was marked by increased trade and commerce across
Europe, which necessitated a need for legal frameworks that could address cross-border disputes.
Merchants engaged in international trade often faced conflicts regarding contracts, property
rights, and torts that spanned multiple jurisdictions4.
particularly during the 15th century. This period was marked by increased trade as seen in the
book necessitated a need for legal frameworks that could address cross-border disputes.
Merchants engaged in international trade often faced conflicts regarding contracts, property
rights, and torts that spanned multiple [Link] seen in the book The Conflict of Law,
Robert A. Leflar 1968.
16th Century: Codification and National Laws
As Europe transitioned into the Renaissance period in the 16th century, there was a growing
interest in codifying laws. This era saw the rise of nation-states and centralized legal systems.
Countries began to develop their own national laws, which sometimes conflicted with each other
when it came to international matters.
Legal scholars like Hugo Grotius contributed significantly to the development of international
law during this time. Grotius’s work emphasized natural law principles and laid foundational
4
Lawrence Collins, Dicey and Morris on The Conflict of Laws 6 (Stevens & Sons Limited, London, 11th edn.,
1987).
5
ideas for how nations could interact legally. His writings influenced how states viewed their
obligations towards one another and began to shape concepts relevant to Private International
Law.
17th Century: Emergence of Legal Principles
The 17th century witnessed further developments in Private International Law as scholars sought
to establish clearer principles governing cross-border disputes. The concept of jurisdiction
became increasingly important; courts needed criteria to determine whether they had authority
over a case involving foreign elements.
This period also saw the emergence of treaties between states that addressed issues related to
private rights across borders. Such treaties often included provisions on extradition and mutual
recognition of judgments, laying groundwork for future international cooperation in legal
matters.
18th Century: Systematization and Enlightenment Thought
By the 18th century, Enlightenment thinkers began advocating for rationality and systematic
approaches to law. This intellectual movement encouraged a more structured understanding of
legal principles, including those pertaining to Private International Law. Scholars like Emer de
Vattel wrote extensively on international relations and law, emphasizing the importance of
consistency in applying legal norms across jurisdictions5.
The establishment of formal codes in various countries also contributed to the evolution of
Private International Law during this time. For instance, France’s Napoleonic Code (early 19th
century) would later influence many jurisdictions worldwide by providing clear guidelines on
private rights and obligations.
Early Developments in the 20th Century
The early 20th century was marked by significant developments in Private International Law,
particularly influenced by globalization and international trade. The establishment of various
international treaties and conventions aimed at harmonizing laws across countries became
5
Teye, B.V. Introduction to Civil Procedure, Open University of Tanzania, Dar es Salaam (2006)
6
increasingly important. For instance, the Hague Conference on Private International Law,
founded in 1893, sought to create uniform rules for cross-border legal issues.
One notable convention from this period is the Hague Convention on the Conflict of Laws
Relating to Sale of Goods (1955), which aimed to simplify and unify rules governing
international sales contracts. This era also saw an increase in cross-border litigation, prompting
countries to develop clearer rules regarding jurisdiction and applicable law.
Post-World War II Era and Globalization
After World War II, the world witnessed a surge in international cooperation, leading to further
advancements in Private International Law. The establishment of organizations like the United
Nations and its specialized agencies facilitated discussions on legal harmonization. The 1960s
and 1970s were particularly significant as many countries began adopting modern statutes that
addressed private international matters.
The adoption of the UN Convention on Contracts for the International Sale of Goods (CISG) in
1980 exemplified efforts to create a cohesive framework for international commercial
transactions. This convention provided a uniform set of rules governing sales contracts between
parties from different countries, thereby reducing legal uncertainty.
(d) 20th C to 21" Century
As we moved into the late 20th century, technological advancements began reshaping private
international law. The rise of the internet introduced new challenges related to jurisdiction and
applicable law concerning online transactions and digital content. Courts faced difficulties
determining which country’s laws should apply when disputes arose from online activities
involving parties from different jurisdictions.
In response, various jurisdictions started developing specific regulations addressing these issues.
For example, the European Union implemented directives concerning e-commerce that aimed at
protecting consumers while facilitating cross-border trade6.
21st Century Developments: A Focus on Harmonization and Digitalization
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Supra
7
Entering the 21st century, Private International Law has continued evolving amid rapid
globalization and technological changes. There has been a concerted effort towards greater
harmonization of laws across jurisdictions to facilitate international trade and investment.
Development of Private International Law in Tanzania
(i)Pre-Colonial Period
during the pre-colonial period in Tanzania, private international law did not exist in a formalized
manner as understood today. Instead, it was characterized by a patchwork of customary laws
shaped by local traditions and influenced by external factors such as trade with Arab merchants.
The interactions between different ethnic groups necessitated some level of conflict resolution
mechanisms but lacked a cohesive framework for addressing cross-border legal issues
comprehensively.
Before the arrival of European colonizers in the late 19th century, what is now Tanzania was
home to diverse ethnic groups and societies, each with its own customary laws and practices.
The primary legal systems were based on local customs, traditions, and practices rather than
formal codified laws. These customary laws varied significantly among different communities
but shared some common principles regarding property rights, marriage, inheritance, and dispute
resolution.
German Rule (1885-1919)
During the period of German colonial rule in what is now Tanzania, the legal system was heavily
influenced by German law. The Germans established a framework for governance that included
various legal codes and regulations. This period marked the introduction of formal legal
structures that would later influence private international law in Tanzania 7.
Colonial Legal Framework: The Germans implemented their own legal systems, which
included aspects of civil law traditions. They introduced laws governing property rights,
contracts, and family matters that were applicable to both German settlers and local populations.
This laid the groundwork for how private disputes would be resolved in a colonial context.
7
Teye, B.V. Introduction to Civil Procedure, Open University of Tanzania, Dar es Salaam (2006)
8
Influence on Local Practices: While traditional customs and practices continued to exist among
local communities, the imposition of German law created a dual legal system. This meant that
issues involving foreign nationals or interests often had to navigate both customary law and
colonial law, leading to complexities in resolving disputes.
Legal Institutions: The establishment of courts during this period was significant. The German
administration set up courts that applied their laws but also recognized some local customs.
These courts became essential for adjudicating conflicts involving parties from different
jurisdictions, thus beginning the practice of private international law.
Impact on Future Developments: The legacy of German rule persisted even after World War I
when Tanzania came under British control (as Tanganyika). The foundations laid during this
period influenced subsequent legal reforms and the integration of private international law
principles into Tanzanian legislation.
Post-German Rule Developments
After Germany lost control over its colonies following World War I, British rule brought about
further changes to the legal landscape in Tanzania
British Legal Influence: The British introduced common law principles which coexisted with
existing laws from the German period and local customs. This hybrid system further complicated
private international law as it incorporated elements from both civil and common law traditions.
Legislative Reforms: Over time, Tanzanian lawmakers began to codify aspects of private
international law within national legislation, addressing issues such as jurisdictional conflicts and
recognition of foreign judgments
Modern Legal Framework: Today, Tanzania’s approach to private international law continues
to evolve through ongoing reforms aimed at harmonizing domestic laws with international
standards while considering local customs.
(iii) British Period (1919-1960)
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The development of private international law in Tanzania during the British colonial period from
1919 to 1960 was significantly influenced by the legal frameworks established by the British
Empire. This period saw the introduction and adaptation of various legal principles that shaped
the interaction between domestic laws and foreign laws, particularly in matters such as contracts,
family law, and property rights. Following World War I, Tanzania (then known as Tanganyika)
became a mandate territory under British administration. The British colonial government
implemented a legal system that was largely based on English common law. This framework
provided a foundation for private international law, which governs cross-border legal issues. The
British introduced statutes and legal practices that were reflective of their own legal traditions,
which included principles of conflict of laws.
(Iv)Post independence (1960-2024).
The development of private international law in Tanzania since its independence in 1961 has
been influenced by various factors, including colonial legacies, socio-economic changes, and the
integration of international legal standards. This overview will trace the evolution of private
international law in Tanzania from 1960 to 2024, highlighting key legislative developments,
judicial interpretations, and the role of international treaties
Upon gaining independence in 1961, Tanzania inherited a legal system heavily influenced by
British common law. The primary sources of private international law during this period were
rooted in English law and statutes that governed issues such as conflict of laws, jurisdiction, and
recognition of foreign judgments. The Tanganyika Law Society played a crucial role in
advocating for legal reforms that aligned with national interests.
In the early years post-independence, there was a focus on consolidating national sovereignty
and addressing issues related to land ownership and inheritance laws. The Land Ordinance Act
of 1963 was significant as it established principles governing land tenure which had implications
for foreign investments and property rights.
Generally, the historical background of private international law (PIL) is rich and complex,
evolving over centuries to address the legal challenges posed by cross-border interactions. The
origins of PIL can be traced back to the 13th century, where it began as a theoretical framework
known as the “theory of statues.” This early development was significantly influenced by Italian
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and French jurists who adapted Roman legal principles to contemporary societal needs. They
established foundational rules that would later inform modern conflict-of-law principles.
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REFERENCE
Books
Castle and Walker, Canadian Conflict of laws 1-13 (LexisNexis Canada, Canada, 2005).
Cheshire & North, Private International Law p.5
Lawrence Collins, Dicey and Morris on The Conflict of Laws 6 (Stevens & Sons Limited,
London, 11th edn., 1987).
Mayss, A., (1998). Principles of Conflict of Laws p. 1
Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia 8
(LexisNexis Butterworths, Australia, 2nd edn., 2011).
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