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The Territorial Nature of Law

We have defined the law as consisting of the rules recognised and acted upon by the courts in administering justice. It is to the courts, therefore, that we must go in order to ascertain what the law is, and a system of law is the whole body of legal doctrine recognised and applied by one and the same court in the exercise of its judicial functions. If this were all; if this were a complete account of the matter; each system of law would be regarded and known as the law of the particular court to which it so belongs. We should speak of the law of the Court of King’s Bench or of Chancery in London, and of the law of the Court of Session in Edinburgh. In fact, however, this is neither the legal nor the popular usage of speech, save where it is rendered necessary by special considerations arising from the concurrent existence of different systems of law administered by the same courts within the same territory. Commonly we speak not of the law of a court but of the law of a country. We speak not of the law of the Court of King's Bench or Common Pleas but of the law of England; and not of the law of the Court of Session but of the law of Scotland. We speak of a system of law as belonging to and in force in some defined territory, and not as belonging to and being in force in some particular court of justice. The law is conceived and spoken of as territorial. It is necessary, therefore, to consider the true significance of this territorial aspect and nature of a legal system. What is meant by saying that the system of law recognised and administered by the High Court of Justice in London is the law of England and is in force in England, and that the law in accordance with which the Court of Session in Edinburgh exercises its judicial functions is the law of Scotland and is in force in Scotland?

The territory to which a system of law is so attributed is not necessarily coincident with the territory of the State whose courts administer it or whose legislature makes it. No law is in force, as a system of territorial law, outside the territory of the state whose law it is; but it is not necessarily in force throughout the whole of that territory. The territory of a legal system may be, and very often is, only a portion of the territory of the state. The law of England and the law of Scotland are both the law of the same state, and are both in force in the territory of that state; but they are in force in different parts of it. The same state may possess different bodies of law in force as the territorial law of different portions of the state's territory, and concurrently therewith there may exist a body of common territorial law in force equally throughout all of those portions. The territorial nature and aspect of the law therefore, cannot be explained by saying that each system of law is attributed to the territory of that state by whose courts the law is recognised and administered.

The proposition that a system of law is in force in or belongs to a defined territory means that normally, in the absence of special circumstances, it applies to all persons, things, acts, and events within that territory, and does not apply to persons, things, acts, or events elsewhere. The criminal law of the English courts is said to be the criminal law of England, because normally it applies to all offences committed in England, and does not apply to offences elsewhere. It is true that to this general rule there are many exceptions. There are many offences with which English courts will deal and to which they will apply English law, though committed e se where than in England : offences, for example, committed on board British ships on the high seas, and treason, murder or bigamy committed by British subjects in any part of the world. These exceptions, however, do not essentially affect the general principle that the criminal law is territorial in its nature and application. Similarly, the land-law of English courts applies only to land situated in England, and is not a universal non-territorial doctrine applied by those courts in suits relating to land situated elsewhere. Substantially this is so with respect to other forms of property also. So the law of marriage, divorce, succession, and domestic relations is not applied by English courts to all the world, but only to those persons who by residence, domicile, or otherwise, are sufficiently connected with the territory of England. The law of contracts and of torts, on the other hand, knows comparatively little of any territorial limitation. If an action for damages for negligence or other wrongful injury committed abroad is brought in an English court, it will in general be determined in accordance with English law and not otherwise. Finally, the English law of procedure is in hardly any respect territorial. It is the law of English courts rather than the law of England. It is the same for all litigants who come before those courts, whatever may be the territorial connections of the litigants or of their cause of action. Yet notwithstanding the existence of numerous and important exceptions to the general rule, the law of English courts is essentially and in the main territorial in its application, in the sense that it is appointed only for such persons, property, acts, and events as possess the requisite connection with the realm of England. In this sense the law of the English courts is the law of England, and is in force in England and not elsewhere. It is the law of the land; lex terras.

This territorial quality of a system of law is not necessary or universal. It is not part of the essence or definition of a legal system. A system of law is readily conceivable which is not in this sense the law of the land. It may be personal rather than territorial in its application. Its application may be limited and determined not by reference to territorial considerations, but by reference to the personal qualifications of the individuals over whom jurisdiction is exercised qualifications such as nationality, race or religion. The law of English courts might conceivably be the personal law of Englishmen; of British subjects; rather than the territorial law of England. The history of early law shows us such systems of personal law actually existing The early law administered by the courts of Rome was, in the main, not the territorial law of Rome, but the personal law of the Romans. Foreigners had no part in it. It was the jus civile , the law of the cives. It was only by a process of historical development that the jus gentium was superadded to the jus civile as applicable to cives and peregrini equally. In Europe, after the dissolution of the Western Roman Empire, the laws were to a large extent conceived as personal rather than territorial, the members of each race or nationality living by their own national laws. A similar process of thought and practice is observable even at the present day in the ex-territorial administration of the national laws of European States in the consular courts of the East. The law administered by an English consular court abroad is to be regarded rather as the personal law of English-men, than as being in any proper or intelligible sense the territorial law of England.

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