Paper's abstract

Didier Boden, Legal Pluralism in Private International Law
The expression “legal pluralism” designates, among many other meanings, a general theory of law (that permits for instance to describe law, to apply it, or to advocate its change or its preservation), as opposed to monism and dualism. As general theories of law, monism and dualism, unlike pluralism, are identi-cally unable to describe relations between legal orders; in that sense and to that extent, dualism is but a manner of monism, so it does not necessitate separate reflections. In private international law, monism and pluralism are surpri-singly named of bilateralism and unilateralism. It is essentially since the end of the 19th century that the contrast between monism-bilateralism and plura-lism-unilateralism is perceived. Some legislators chose on purpose to follow the one or the other one of these two theories. They guide the organs of application of the law, giving them its directions for use. For a half-century, authors have been measuring the extent in which each of these two theories respectively corresponds to positive law, the recent evolution of which gives an increasing pertinence to pluralism-unilateralism. The many paradoxes, vicious circles, petitiones principii, and others problems that the private international law has experienced since 1837 were recently identified as so many results of the entanglement of these two theories, which are in the main incompatible with each other. To many respects, moral and ethical theories of placing oneself in the service of someone else’s will (active tolerance, active obedience, active complicity) would gain by being collated with theories of private international law, traditionally presented by its specialists as the law of tolerance.

Key Words : monism, dualism, international private law, paradox, toleration
t. 49 : 2005, p. 275-316

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