Savigny’s theory of choice-of-law as a principle of ‘voluntary submission’

Abstract

This article offers an innovative understanding of Friedrich Carl von Savigny’s comprehensive choice-of-law theory. This theory has been generally misunderstood in academic literature in that it has most often been perceived as a kind of blind reference to the mysterious ‘universal seat formula.’ In contrast to this commonly perceived view, it will be argued that Savigny’s choice-of-law theory is fundamentally grounded in the single organizing principle of ‘voluntary submission’ as a reflection of the person’s choice. Furthermore, it will be argued that the proposed understanding of Savigny’s choice-of-law theory is not detached from the reality of American judicial practice but, in fact, reflects it. In particular, it will be suggested that Savigny’s approach provides the key to grasping the theoretical underpinnings of the most central element of the popular Second Restatement – the most-significant-relationship principle.