This post is part of a series regarding Colonialism and the general structure of (German) Private International Law, based on a presentation I gave in spring 2023. See the introduction here.
As mentioned in the introduction, this series does not intent to automatically pass judgment on a norm or method influenced by colonialism as inherently negative. Instead, the aim is to reveal these influences and to initiate a first engagement with and awareness of this topic and to stimulate a discussion and reflection.
The first post (after the introduction) dealt with classic PIL and colonialism. This second considers structures and values inherent in German or European law, implicitly resonating within the PIL and, thus, expanding those values to people and cases from other parts of the world. This reflects a form of universalist legal understanding that should be foreign to the PIL, yet already echoes in Savigny’s approach. This is particularly evident in the lex fori approach of characterization and the specification of habitual residence.
1. Characterization and Influence of the lex fori
Characterization is the assignment of the connecting object (Anknüpfungsgegenstand) to a conflict of laws norm. The debate on characterization methods, particularly in the first half of the 20th century, has since been resolved with the predominance of “autonomous” or “functional” characterization, integrating elements of lex fori, lex causae, and comparative methods. The conflict rules are generally interpreted from the perspective of lex fori but with an international private law viewpoint, extending the interpretation of terms in conflict rules beyond their substantive counterparts. Nonetheless, they remain systematically rooted in domestic law, centering on the values of lex fori. This can lead to friction when system concepts from foreign law stem from entirely different value systems. Additionally, methodologically, each connecting factor has only one conflict rule, thereby being excluding concerning other connecting factors.
This can be well illustrated with a family law example. The German Civil Code (BGB) and the PIL Act (EGBGB) are based on a family concept derived from Western Christian traditions, in recent years moving away from most patriarchal values. The core family typically comprises married or cohabiting parents and their child(ren), with special forms recognized but mostly aligned or approximated to this ideal. This understanding of the nuclear family is reflected in conflict rules. Articles 13 EGBGB onwards begin with marriage and its consequences as the traditional starting point of the family. Article 17b then encompasses modern non-traditional marital forms (registered partnerships, same-sex marriage, marriage with at least one non-binary spouse). Articles 19 onwards regulate questions about parentage, parent-child relationships, and adoption as a specialized form of establishing such relationships.
Frictions may arise with fundamentally different family concepts. A striking example is the Avunculat, expressing a unique kinship between the mother’s brother and a child, which can be socially and legally equated with or even surpass or replace the relationship with the biological father. German conflict rules do not account for such kinship as Article 19 EGBGB (parentage) only covers the “natural parentage,” i.e., descent from – usually – biological parents. Potentially, the uncle-child relationship could be subsumed under Article 24 EGBGB (guardianship), given an apparent caretaking relationship. However, this results in a different connecting factor than Article 19 EGBGB, which specifies an alternative connection that potentially leads to a parentage relationship. The Avunculat illustrates that a foreign family form, not aligning with the Christian-based nuclear family, is treated differently under conflict law, despite possibly holding the same status in its culture as the nuclear family does in German law. The characterization, starting with lex fori, endeavors to assimilate foreign family forms into our value framework.
2. Habitual Residence
Traditionally, the determination of the applicable law (personal statute) for an individual is based on nationality. However, in recent decades, the connection to nationality has been increasingly replaced by the concept of habitual residence, particularly influenced by EU regulations and recent international agreements, prompting a reconsideration even within German law. Habitual residence is autonomously defined depending on the legal source, but it is generally understood as the person’s center of life, which must be of a certain duration. In Germany, it is primarily determined factually, with subjective elements playing a subordinate role.
According to prevailing doctrine in Germany and recent EU Court of Justice rulings on EU law, a person can only have one habitual residence. It is assumed that a person can have only one “actual” center of life, necessitating the determination of the “real” habitual residence in case of doubt. This approach is grounded in the societal and familial notion that a person settles with their family in one place, occasionally leaving for another place—a representation of a sedentary lifestyle. However, this contradicts lifestyles such as those of nomadic tribes, particularly outside the “Global North,” and the emerging phenomenon of “digital nomads” in the whole world. This understanding of habitual residence underscores the phenomenon, as hinted at in the Avunkulat context, that the prevalent lifestyle in Germany and Europe/the Global North is considered the standard, requiring other lifestyles to somehow fit into it.
3. Assessment
a) Characterization
Western or German world views are also imposed on foreign legal phenomena if the characterization, as is often the case, regards the lex fori not only as the starting point but at the same time as an implicit limit. Nevertheless, the key to integrating foreign legal phenomena more autonomously lies precisely in the characterization and the dispute over its method. Characterization has the starting point that the conflict rules under which the connecting factor is to be subsumed originate from the German legislator and are therefore interpreted methodically in the same way as the (German) lex fori. However, teleological interpretation offers the possibility of moving further away from the lex fori: It involves the interpretation of the function conflict-of-law rules. Function and objective is to cover foreign legal phenomena in the same way as domestic ones. Thus, a lex fori limit is by no means as mandatory as it appears to be. Instead, a broad understanding of the system concepts of the conflict rules is possible and intended.
With regard to legal phenomena that are still little researched and little known in jurisprudence, such as the avunculat, it is advisable for courts to proceed with particular caution. If the status of the maternal uncle actually replaces that of the father, consideration should be given to understand the avunculate as part of “parentage” in Article 19 EGBGB. If his legal status complements that of the father, Art. 24 EGBGB could be more useful. Other categories, such as adoption, might also to be considered. It would be desirable if more anthropological and comparative law work and research were carried out in order to support the courts in making such determinations.
b) Habitual Residence
As far as the understanding of habitual residence in PIL is concerned, in extreme cases such as those of (digital or traditional) nomads, but also cross-border commuters, which are becoming increasingly common, it would be possible to deviate from the principle that there is only one centre of life and thus one habitual residence. If two habitual residences were affirmed as the starting point in these cases, the next step would be to ask whether the specific rule requires only one habitual residence. Such a need can be affirmed, for example, in the case of jurisdiction rules in Article 3 Brussels IIter Regulation. In this case, preference should be given to the habitual residence that is even more “closely” linked to the connecting factor. This corresponds to the judgement to find only “the” habitual residence of the majority.
However, if the rule does not have a particular need for there to be only one habitual residence, both residences should count equally. If, for example, a rule is intended to express a common connection between two spouses to a legal system, as is often the case in international family law (e.g. Art. 5, 8 Rome III Regulation; Art. 22, 26 Brussels I Regulation; Art. 14 I and II EGBGB), the habitual residence of both spouses at one of the relevant connecting factors can easily be used as a basis, be it in a case of party autonomy, be it in a case of objective connecting factors.