The Uses of Putativity and Negativity in the Conflict of Laws

Putativity is a useful concept in the conflict of laws, allowing reference to be made to an outcome which was intended to have come about, but which has failed, as a result of human actings or divine intervention. To apply to something which is imperfect a consequence which would arise if it were perfect is justifiable on the pragmatic grounds of convenience, speed, and cost—and thence, through the merit of certainty, to the satisfaction (perhaps) of party expectation, or at least to the forestalling of disappointment. Reference to the putative applicable law may be permissible therefore on the ground of enabling a resolution to emerge, the more so if the result of so doing commends itself to the disinterested observer and to one, at least, of the parties; on the other hand, the result may disappoint the reasonable expectations of both parties. Whatever the rationale, it can be observed that use of the device is authorized at common law, by statute, in Convention, and Regulation. But if one does not ask whether this methodological technique begs the question, one begs the question

Certainty · Disappointment · Epistemology · Imperfect · Law and economics · Political science · Sociology · Statute · Conflict of Laws and Jurisdiction · European and International Contract Law · Law · Law, logistics, and international trade · Philosophy · Psychology · Social Psychology

• Family Law

  Open Access•Wendy Kennett•International and Comparative Law…•2001

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