Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter R.1: Rabel, Ernst

Jürgen Basedow

Ernst Rabel has been the most influential promoter of the use of comparative law (→Comparative Law and private international law) in general and in the conflict of laws in particular.

I. Life and work

Ernst Rabel was born on 28 January 1874 in Vienna, which at the time was the cosmopolitan capital of a multinational empire, a place at the crossroads of Slavonic, Germanic, Romanic, and Hungarian cultural traditions. His parents were of Jewish descent and had converted to Catholicism. His father was a distinguished advocate and member of the Vienna bar. Ernst Rabel received a humanistic education that was common in the upper middle-class of his time. But he also learned to read and write three modern languages – English, French, and Italian – which was much less typical in those days and became the basis for his later studies of comparative law (Rolf-Ulrich Kunze, Ernst Rabel und das Kaiser-Wilhelm-Institut (Wallstein 2004) 32). At the age of 21 he graduated from Vienna Law School with an unpublished doctoral dissertation written under the supervision of the legal historian Ludwig Mitteis (Ulrich Drobnig, ‘Die Geburt der modernen Rechtsvergleichung – Zum 50. Todestag von Ernst Rabel’ [2005] ZEuP 821). For some time he stayed in Vienna and worked in his father’s law firm before following Mitteis to Leipzig, where he was awarded the Habilitation (post-doctoral lecture qualification) on the basis of a Romanist investigation into the seller’s liability for defects of title (Ernst Rabel, Die Haftung des Verkäufers wegen Mangels im Rechte (Veit 1902)). He continued to assist Mitteis before being appointed as an extraordinary professor in Leipzig in 1904. In 1906 he was called to a chair at the University of Basle in Switzerland where he also served as a judge on the appellate court of the canton (Ernst Rabel, ‘Vorträge – Unprinted Lectures’ (1986) 50 RabelsZ 282, 287). Appointments to the Universities of Kiel (1910) and – only one year later – Göttingen (1911) ensued.

In the middle of the First World War, Rabel received an offer for an appointment from the University of Munich, which he accepted on condition that an Institute of Comparative Law would be set up. This was the first institute of the kind worldwide. It gives evidence of a new orientation of Rabel’s interest: while he continued his activities in Roman law and legal history, he now started to explore a new field of legal scholarship (Ulrich Drobnig, ‘Die Geburt der modernen Rechtsvergleichung – Zum 50. Todestag von Ernst Rabel’ [2005] ZEuP 821; Rolf-Ulrich Kunze, Ernst Rabel und das Kaiser-Wilhelm-Institut (Wallstein 2004) 33). Due to the shortcomings of the time, the Institute was a small one and when talking about it a couple of years later Rabel was still of the opinion that ‘the ambitious name of an “Institute” requires an explanation which, for the time being, is not justified by impressive rooms or facilities’ (Ernst Rabel, ‘Das Institut für Rechtsvergleichung an der Universität München’ (1919), in Hans G. Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 22, 27). But at the same time, he designed and presented a comprehensive Institute programme which aimed to serve students, scholars, and practitioners principally through a library which should collect books and other material from all jurisdictions across the globe.

The peace treaties terminating the First World War which gave rise to new states, to cessions of territory, to dual citizenship, and to the creation of several international tribunals stimulated many activities in the field of comparative and international law. Rabel, a pioneer in the field, was a member of the German-Italian Mixed Arbitral Tribunal, one of several similar institutions that owed their existence to the Versailles Peace Treaty (Treaty of Peace between the Allied and p. 1461Associated Powers and Germany of 28 June 1919, 225 CTS 188); he belonged to that tribunal from 1921 to 1927 (Rolf-Ulrich Kunze, Ernst Rabel und das Kaiser-Wilhelm-Institut (Wallstein 2004) 38). He was also a judge ad hoc in five lawsuits between Germany and Poland conducted at the Permanent Court of International Justice at The Hague which, in his own words, ‘took me the better part of the years 1925 to 1928’ (Ernst Rabel, ‘Vorträge – Unprinted Lectures’ (1986) 50 RabelsZ 282, 288). For the holders of such offices, comparative and international law became the everyday reality, and the observers could witness the first heyday of these legal disciplines. It was in those years that Rabel was appointed, in 1925, to a chair at the Faculty of Law of what is now the Humboldt University of Berlin and to the position as the founding Director of the Institute for Foreign Private Law and Private International Law affiliated to the Kaiser-Wilhelm-Gesellschaft. The Institute soon became the centre of comparative legal research in Europe. It was evacuated from Berlin in 1944 and moved, after an intermediate period at Tübingen, to Hamburg in 1956, where it is now the Max Planck Institute for Comparative and International Private Law.

At the Institute, Rabel began a number of activities which remained influential over many years, some until the present time: alongside several programmatic lectures and articles, he put on track a book series, a law journal which has borne his name since 1961 (Rabels Zeitschrift für ausländisches und internationales Privatrecht – RabelsZ), a systematic collection of German case-law on private international law (Die deutsche Rechtsprechung auf dem Gebiet des Internationalen Privatrecht – IPRspr), and numerous German reports to the International Congresses of Comparative Law.

Moreover, he was responsible for initiating the education of a large number of young scholars, many of whom later became top-ranking practitioners, professors of law, and leading politicians. In those years, he also started the outstanding comparative research project on the law of sales (Ernst Rabel, Das Recht des Warenkaufs (de Gruyter 1936 and 1958)); as a member of the Governing Council of the UNIDROIT International Institute for the Unification of Private Law at Rome he convinced that body to put the unification of the law of sales on the agenda of that organization. The UNIDROIT project ultimately led to the →CISG (United Nations Convention on the International Sale of Goods of 11 April 1980, 1489 UNTS 3) which is now in force in about 80 countries worldwide.

Being of Jewish descent, Rabel could not keep his position in Nazi Germany. While the expulsion of Jews from public office had started already in 1933 (Gesetz zur Wiederherstellung des Berufsbeamtentums of 7 April 1933, RGBl. I, 175), Rabel remained unaffected over some years due to his international reputation and to his prominent position in the Kaiser-Wilhelm-Gesellschaft, but he was finally compelled to step down as a director in February 1937 (Rolf-Ulrich Kunze, Ernst Rabel und das Kaiser-Wilhelm-Institut (Wallstein 2004) 167). Being tolerated as a guest of the library of the Institute, he stayed in Germany until the November pogroms of 1938, which convinced him that emigration was necessary to save his life. He left Germany for the United States in summer 1939 (March 1939 according to Jürgen Thieme, ‘Ernst Rabel (1874–1955) – Schriften aus dem Nachlaß. Einführung’ (1986) 50 RabelsZ 251, 266, fn 78; but see Rolf-Ulrich Kunze, Ernst Rabel und das Kaiser-Wilhelm-Institut (Wallstein 2004) 169).

Thus, when Rabel had almost reached the age of retirement, he started a new life in the US, first in Chicago and from 1942 onward in Ann Arbor, Michigan. Together with his former assistant, Max Rheinstein, a professor at the University of Chicago, he started to work on ‘European Annotations’ to the Restatement (First) of Conflict of Laws (American Law Institute, Restatement of the Law, First: Conflict of Laws, St. Paul 1934; →Restatement (First and Second) of Conflict of Laws), which had been adopted by the American Law Institute in 1934. Rabel soon convinced the ALI, which had commissioned this work, that its scope was too narrow. What was needed was a universal, not a European approach, and, moreover, he favoured a comparative treatise rather than annotations accompanying the restatement (Jürgen Thieme, ‘Ernst Rabel (1874–1955) – Schriften aus dem Nachlaß. Einführung’ (1986) 50 RabelsZ 251, 266, 267–8). Funded by the Law School of the University of Michigan and by the Harvard Law School, Rabel’s work on the four volumes of ‘The Conflict of Laws’ took most of his time p. 1462during the Second World War and the post-war period; the books were published in 1945, 1947 and 1950, the last volume only posthumously in 1958. In 1948, the newly established Free University of Berlin reinstated him in his rights as an emeritus professor. He was also invited to serve as an academic advisor to the Max Planck Institute, as it was now called, in Tübingen, where he spent much time in completing his work on comparative sales law with the assistance of young scholars of the Institute. In the early 1950s, a second edition of ‘The Conflict of Laws’ was started, again with the support of young assistants from Germany, Ulrich Drobnig and Herbert Bernstein (Ulrich Drobnig, ‘Die Geburt der modernen Rechtsvergleichung – Zum 50. Todestag von Ernst Rabel’ [2005] ZEuP 821. 823 f). Rabel died in Zurich at the age of 81 on 7 September 1955.

II. Rabel’s contribution to private international law

Rabel’s academic work is characterized by a gradual transgression from Roman law to comparative law (→Comparative Law and private international law) and, further, to private international law. He published his first major piece on private international law rather late, namely in 1931 at the age of 57 years (Ernst Rabel, ‘Das Problem der Qualifikation’ (1931) 5 RabelsZ 241). To understand this universal mind and his contribution to private international law, it is necessary to take a closer look at the previous stages of his scholarly interest dedicated to Roman law, to comparative law, and to the development of international law.

1. From Roman law to comparative law

When Rabel studied law at the University of Vienna, the Roman Digest was no longer effective law in the Austro-Hungarian Empire, as the General Civil Code had been enacted in 1811. But Roman law had kept its function as the universal framework of legal concepts and categories, rules, and principles in Germany with its Pandectist School, which at the time played a leading role in European scholarship and attracted the interests of academics in the German-speaking countries and beyond. Roman law was considered as a kind of legal grammar that allowed scholars and lawyers from across the continent to discuss issues of common interest. Where it had residual effect next to the local laws of the respective jurisdiction, the determination of the applicable law was often believed to be redundant, since the body of rules and principles of ancient origin was assumed to be of general and universal acceptance (Reinhard Zimmermann, ‘“In der Schule von Ludwig Mitteis” – Ernst Rabels rechtshistorische Ursprünge’ (2001) 65 RabelsZ 1, 27).

The enactment of the German Civil Code (Bürgerliches Gesetzbuch of 18 August 1896, RGBl. 195, entered into force on 1 January 1900) struck a heavy blow to this perception of the legal landscape. The law schools of German universities were compelled to change focus: instead of primarily teaching Roman law as a general framework of all German jurisdictions, they now had in the first instance to teach the positive law of the new Civil Code. Likewise, the research activities of German law professors had to shift towards textbooks, commentaries, and articles explaining the new law. Roman law was relegated to legal history; the leading scholars of the discipline could still provide foundational knowledge to the students, but they were no longer regarded as influential experts of the living law. University chairs and research funds which had been reserved for the study of Roman law for decades were reallocated to modern law. It was a period when many young Romanists were looking for a new orientation of their own research agenda. Some of them continued Romanist studies, widening however the perspective and including the economic and social background. Others, without abandoning their interest in Roman law, realized that the future legal landscape of Europe would be characterized by national legal systems and their coexistence; these individuals would either directly move into private international law, as was the case with Hans Lewald and Leo Raape, or they would go into comparative law which, according to a belief widespread in Europe and in particular in France around 1900 (Saleilles), promised to bring to light a set of general principles recognized by all nations, a common core or droit commun législatif. The latter choice was made by Ernst Rabel; he did not want, however, to confine comparative research to the identification of a common core or the best possible solution, wanting instead to include the ‘vibrant bodies of all laws under the sun into his reflection on law’ (Ernst Rabel, ‘Aufgabe und Notwendigkeit p. 1463der Rechtsvergleichung’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 1, 5–6).

2. From Roman law and comparative law to international law

Rabel’s first contacts with the legal frame of cross-border legal relations were apparently due to his practical work as a judge in international tribunals. The need to convince foreign-bred lawyers sitting on those tribunals posed problems which could not be solved from a positivistic perspective rooted in a single national legal system. Rather, both Roman law and comparative law (→Comparative Law and private international law) proved of fundamental significance. In an article published in 1944, he pointed out in retrospect: ‘It was plain, indeed, after the First World War, in innumerable diplomatic conferences, in the numerous international tribunals of that time, in a rapidly growing literature fighting for vital interests of the various countries, that Roman law culture proved the only common language and the only undoubted measure of justice. We Romanists, for this reason had, per force, to become practitioners of jus gentium’ (Ernst Rabel, ‘On Comparative Research in Legal History and Modern Law’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 247, 254; Reinhard Zimmermann, ‘“In der Schule von Ludwig Mitteis” – Ernst Rabels rechtshistorische Ursprünge’ (2001) 65 RabelsZ 1, 20). And in 1927 he reflects on the experience gathered in his judicial practice. He points to the ‘conspicuous and significant comparative law reasoning that the international judge has to carry out nowadays in almost every case’ (Ernst Rabel, ‘Rechtsvergleichung und internationale Rechtsprechung’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 2 (Mohr Siebeck 1965) 1, 7). The obligation of the international tribunals to take some kind of decision and the gaps existing in international law produce the need to have recourse, under art 38 of the PCIJ Statute (Statute of the Permanent Court of International Justice of 16 December 1920, 6 LNTS 380), to the ‘general principles recognised by civilised nations’; their ascertainment requires ‘an application of comparative law of the most exquisite kind’ (Ernst Rabel, ‘Rechtsvergleichung und internationale Rechtsprechung’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 2 (Mohr Siebeck 1965) 1, 15, 17).

Uniform law arises from the identification of general principles by international tribunals, but in a more consistent and comprehensive way by means of legislative texts which, at the time of Rabel, were usually adopted the form of an international convention. Connecting to his early research in the law of sales, he devoted much of his time as a director of the Institute in Berlin to the comparative law of the sale of goods (→Sale contracts and sale of goods). Long after Rabel’s death, these efforts, which will not be described here in further detail, led to one of the most successful international conventions in the field of uniform private law (→CISG). An early draft of 1935 had already limited the scope of the project to cross-border sales, thereby connecting to the domain of private international law. But Rabel leaves no doubt that this is a regrettable limitation: ‘If we succeed to convince lawyers and merchants of a country of the progress brought about by the new law, would they not find it even more reasonable that the old law should be abandoned entirely instead of remaining in force alongside the new one?’ (Ernst Rabel, ‘Der Entwurf eines einheitlichen Kaufgesetzes’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 522, 553 f). Rabel’s remarks leave little doubt that he considered the choice-of-law process as second best in comparison with uniform law.

3. From comparative law to private international law

But Rabel was both a realist and practice minded. He knew that differences between national legal systems were a reality of cross-border trade and could not be overcome by the dreams of uniform law. Nevertheless, his approach to private international law was somehow hesitant (Gerhard Kegel, ‘Ernst Rabel – Werk und Person’ (1990) 54 RabelsZ 1, 14). It is noteworthy that his comprehensive report on the research areas of the Institute published in 1937 explicitly refers to the assistance provided by Wilhelm Wengler, research associate of the Institute, in respect of the part on private international law, whereas Rabel drafted the first part on comparative law and foreign law apparently without such assistance (Ernst Rabel, ‘Die Fachgebiete des p. 1464Kaiser-Wilhelm-Instituts für ausländisches und internationales Privatrecht (gegründet 1926)’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 180, 213).

Although Rabel did not devote much time to private international law during his Berlin years, he published his groundbreaking article on characterization in that period. Maybe the treatment of the subject was again primarily due to his wish to demonstrate the practical usefulness of comparative law, similar to his previous publications on international jurisprudence and general principles of law. But in respect of his methodology the article undoubtedly paves the way for the later opus magnum on the conflict of laws. Rabel identifies two objectives of characterization: according to the first, an issue covered by a conflict rule must receive an answer from the legal order designated by that conflict rule, and the second requires that conflict rules must be susceptible of covering all legal phenomena of the world, even those which are inexistent in the law of the forum (Ernst Rabel, ‘Das Problem der Qualifikation’ (1931) 5 RabelsZ 241, 263). In respect of characterization, he consequently postulates the ‘important task of assigning the legal phenomena to conflict rules on the basis of comparative law’ (Ernst Rabel, ‘Das Problem der Qualifikation’ (1931) 5 RabelsZ 241, 268). The common identification of concepts used in conflict rules with the same concepts employed in other parts of the same legal system, ie the characterization lege fori is rejected. While Rabel considers private international law as a part of national law, he nevertheless points to the basic task of the discipline, which is ‘to serve the co-existence of the peoples in the world and the international interests of a state, its society and its national economy. The territorial boundaries of legal systems must be established by national sources of law and, in spite of domestic interests, in growing conformity (Rabel’s emphasis). ‘This requires taking account of the substantive foreign law, but also a comparative ascertainment of conflict rules. (Ernst Rabel, ‘Die Fachgebiete des Kaiser-Wilhelm-Instituts für ausländisches und internationales Privatrecht (gegründet 1926)’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 224). Thus, the objective of →choice of law is not so much the territorial confinement of the laws of the forum state, it is rather and primarily intended to enable the coexistence of different societies and economies. It is viewed, not from inside a single legal system, but from above the various laws. Consequently, it is inseparable from comparative law, both in substance and in methodology.

These views have guided Rabel’s opus magnum on the conflict of laws. The four volumes deal with the specific parts of private law, ie with family law, succession, property, contracts, etc. Contrary to the typical treatment of private international law (and of so many other areas of the law) by German authors, they do not sort out the general issues such as incidental questions (→Incidental (preliminary) question), characterization (→Classification (characterization)) or →renvoi in a separate general part; only short sections placed at the beginning and at the end of the treatise are dedicated to general aspects such as the structure of the conflict rule or the application of foreign law. The treatment of the subjects often starts with a short survey over the differences in substantive law; its comparative character also results from the consideration of the conflict rules of different jurisdictions. While the treatise thus espouses a comparative approach to the various topics, it focuses on what may be called model solutions of the individual issues. Consequently, it does not contain a comprehensive account of any single national system of private international law. As compared with other comparative books on the conflict of laws which prefer the method of the national reports on some legal systems, Rabel’s treatise has therefore been held to be ‘less valuable as a reference book’ (Ole Lando, ‘Ernst Rabel (1874–1955)’ in Stefan Grundmann and others (eds) Festschrift 200 Jahre Juristische Fakultät der Humboldt-Universität zu Berlin (De Gruyter 2010) 605, 621). On the other hand, due to the very comprehensive treatment of the discipline, the treatise has been praised as the culmination and apogee of private international law in the 20th century (Gerhard Kegel, ‘Ernst Rabel – Werk und Person’ (1990) 54 RabelsZ 1, 17). Both assessments contain accurate descriptions of different aspects: the first as relates to the practical usefulness, the second in respect of the depth of the scholarly reflection.

III. Rabel’s influence on private international law

Rabel’s ambitious research programme has had a clearly perceptible impact on the p. 1465discipline of private international law, both in the short run and in the long run. This impact primarily concerns the methodology of legal reasoning. ‘In Germany, the country of dogmatism, Rabel made it a virtue to be undogmatic’ (Ole Lando, ‘Ernst Rabel (1874–1955)’ in Stefan Grundmann and others (eds) Festschrift 200 Jahre Juristische Fakultät der Humboldt-Universität zu Berlin (De Gruyter 2010) 605, 612). At a time when aprioristic thinking was very common among German conflict law professors, he advocated what may be called a German variant of legal realism, namely a close look at jurisprudence and in particular at the issues arising in legal practice as well as the solutions and arguments made by the courts. According to Rabel, ‘a statute without the related case law is like a skeleton without muscles’ (Ernst Rabel, ‘Aufgabe und Notwendigkeit der Rechtsvergleichung’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 4). In respect of private international law in particular, he favoured the ‘inductive method that would help to draft an appropriate network of conflict rules’ (Ernst Rabel, ‘Die Fachgebiete des Kaiser-Wilhelm-Instituts für ausländisches und internationales Privatrecht (gegründet 1926)’ in Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vol 3 (Mohr Siebeck 1967) 224). In line with such postulates, he initiated a systematic collection of the German case-law on private international law once he had the means to do so at the Kaiser-Wilhelm-Institut; the annual volumes of Die deutsche Rechtsprechung auf dem Gebiet des internationalen Privatrechts have been published for over 90 years and still provide an almost complete coverage of German case-law. The lengthy commentaries which discuss statutes article by article – and which are characteristic of German legal culture – equally exist for private international law codified in the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494, as amended); they give evidence of the great attention which the case-law receives in scholarly legal writings at present.

Rabel’s comparative approach to private international law has likewise had a clearly perceptible impact both in an institutional sense in Germany and in an academic sense worldwide. It is true that courts will rarely undertake the comparative characterization advocated by Rabel; they simply do not have the means required for that. But when it comes to academic disputes on the classification of a given legal phenomenon unknown to the lex fori, scholarly writing will often explore the role of that phenomenon in its legal system of origin and compare its functions with those known to the law of the forum state. This approach is of course much easier to handle for international tribunals than for a domestic court. It is therefore unsurprising that the →Court of Justice of the European Union has in fact espoused and used Rabel’s method (Ole Lando, ‘Ernst Rabel (1874–1955)’ in Stefan Grundmann and others (eds) Festschrift 200 Jahre Juristische Fakultät der Humboldt-Universität zu Berlin (De Gruyter 2010) 605, 609): While in the early days the conclusions of the Advocates General contained many comparative references to the national laws of the Member States, the Court has gradually moved from a comparative to an autonomous interpretation of EU law (→Interpretation, autonomous).

Moreover, the comparative approach has left many traces in legal scholarship. Large treatises of private international law take account of the conflict rules of foreign nations. The progressive codification of private international law that has taken place in dozens of countries over the last decades has often been prepared by legal scholars who commonly make use of comparative investigations. The most monumental piece of evidence of the search for model solutions is the International Encyclopedia of Comparative Law (IECL), which is intended to cover all areas of private law; the two half-bindings of Volume 3 on private international law are the most comprehensive treatment of our discipline, inspired by Rabel’s methodological ideas. In 1948, Zweigert referred to these ideas as foundational for a new approach to the conflict of laws. After the aprioristic and the positivistic schools, he called this new approach the ‘third school of private international law’ (Konrad Zweigert, ‘Die dritte Schule im internationalen Privatrecht’ in Hans-Peter Ipsen (ed), Festschrift für Leo Raape (Rechts- und Staatswissenschaftlicher Verlag 1948) 35, 40 f). Taking into account this impressive shift in legal scholarship, the designation of the new current of legal thinking as a ‘school’ was not exaggerated.

p. 1466Rabel’s ideas have also been influential in respect of the institutional structure of comparative legal research in Germany and some neighbouring countries. The scholarly interest in comparative law initially arose in diverse areas: scholars specializing in areas such as maritime law, copyright law or, later on, commercial law, civil law or criminal law tried to improve their understanding of the discipline by enquiries into the law of foreign countries in their respective fields. When Rabel established the Munich Institute which was exclusively dedicated to comparative law, this still appears to have been the general background. After the First World War, however, the need of legal practitioners for information on foreign law and the application of foreign law in the courts became of paramount importance, and it emerged that the discipline of private international law was rather undeveloped. The intellectual merger of comparative law and international private law advocated by Rabel led to the institutional merger of both disciplines in the form of the Kaiser-Wilhelm-Institut for Foreign Private Law and Private International Law and in the many chairs in German universities which are dedicated to education and research in comparative law and private international law. This combination is rather infrequent in other countries.

As to the substance of Rabel’s views on private international law, one could equally trace some modern trends of legal development to his writings. But both the progressive recognition of party autonomy as well as the gradual replacement of the nationality principle by habitual residence as the primary connecting factor for personal status have been ‘in the air’ anyway. In this respect, Rabel was perhaps less a preacher and missionary than the messenger of coming changes.

Literature

  • Ulrich Drobnig, ‘Die Geburt der modernen Rechtsvergleichung – Zum 50. Todestag von Ernst Rabel’ [2005] ZEuP 821;

  • Gerhard Kegel, ‘Ernst Rabel – Werk und Person’ (1990) 54 RabelsZ 1;

  • Rolf-Ulrich Kunze, Ernst Rabel und das Kaiser-Wilhelm-Institut für ausländisches und internationales Privatrecht 1926–1945 (Wallstein 2004);

  • Ole Lando, ‘Ernst Rabel (1874–1955)’ in Stefan Grundmann and others (eds), Festschrift 200 Jahre Juristische Fakultät der Humboldt-Universität zu Berlin (De Gruyter 2010) 605;

  • Hans G Leser (ed), Ernst Rabel – Gesammelte Aufsätze, vols 2 and 3 (Mohr Siebeck 1965 and 1967);

  • Ernst Rabel, Die Haftung des Verkäufers wegen Mangels im Rechte (Veit 1902);

  • Ernst Rabel, ‘Das Problem der Qualifikation’ (1931) 5 RabelsZ 241;

  • Ernst Rabel, Das Recht des Warenkaufs (de Gruyter 1936 and 1958);

  • Ernst Rabel, ‘Vorträge – Unprinted Lectures’ (1986) 50 RabelsZ 282;

  • Jürgen Thieme, ‘Ernst Rabel (1874–1955) – Schriften aus dem Nachlaß. Einführung’ (1986) 50 RabelsZ 251;

  • Reinhard Zimmermann, ‘“In der Schule von Ludwig Mitteis” – Ernst Rabels rechtshistorische Ursprünge’ (2001) 65 RabelsZ 1;

  • Konrad Zweigert, ‘Die dritte Schule im Internationalen Privatrecht’ in Hans Peter Ipsen (ed), Festschrift für Leo Raape (Rechts- und Staatswissenschaftlicher Verlag 1948) 35.