State of the Art Report: The Family

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Author(s): 
Thalia Kruger
Publication: 
RELIGARE State of the Art Report
Abstract: 

Private international law is mainly concerned with linking private law relations to a national legal system. Its rules are usually only used when the relations at stake have cross-border elements. This legal discipline uses a tight methodology: classifying the legal problem and employing connecting factors to refer to a particular legal system. This paper considers the various elements of private international law that are indicative of the positivistic nature ascribed to it. In doing so, it demonstrates that private international law is not neutral, but often concerned with the outcome.
As private international law is a formal legal discipline, it can be used to keep legal pluralism out. For instance, by the use of connecting factors on the one hand and exceptions (such as public policy) on the other, private international law can prevent the application of certain legal norms. Alternatively, private international law can show itself to be tolerant and allow the application of different norms. The paper concludes with suggestions for further research.

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