The current transformation process of the American conflict of laws system from a traditional “hard-and-fast” body of jurisdiction-selecting rules to a modern method of functional analysis has raised a widespread wave of interested, diverse and, more often than not, critical reactions. Criticism to the new approach is particularly strong outside the United States and especially in the civil law countries where a certain number of established scholars tend to reject the functional methods as a rudely disguised way of always applying the forum law. Be that as it may –and a closer first hand examination of its doctrinal and jurisprudential sources may discover that the functional analysis is indeed an intelligent and sophisticated method of dealing with choice of laws problems—the fact is that American courts are increasingly applying the language and the substance of the new approach to solve both interstate and international conflicts. The following selective examination of some of these latter cases permits us to illustrate how the functional analysis actually works in practice and to evaluate to what extent this new approach might also be operative as a method of solving international conflict of laws.

Themis is blind. The law is the same for wealthy and poor alike. Access to the court is open to all equally. The standard used applies to all equally. Fine ethical postulates, but not free of magniloquence. The law is for sale at a price, and a high price. In the field of law the asking of a price also produces inequality. For some time now the Dutch legislator has attempted to eliminate this discrimination by the use of aids. The person of nil assets who wishes to assert his rights or to defend them deserves support, at least financial support. However, this activity of the legislator has not remained free from scepticism and criticism. Dutch nationals have the right to support, thus, not litigants in general. In various legal provisions aliens, in principle, are excluded from that right. In various places in civil procedural law aliens are discriminated against -albeit financial discrimination. The core of the argument expounded below lies in two of those places: where in principle persons are excluded from free legal assistance (whether in or out of court); and where in principle they are excluded from cost free access to the courts.

First of all, I should like to thank you all, in particular the Director of your Institute, Dr. Voskuil, and the Head of its Public International Law Department, Dr. Ko Swan Sik, for your kind invitation to attend this meeting. In the fact that you have given me this opportunity to talk about some of the fundamental questions relating to the socialist views on international law I see not only a proof of your interest in the subject, but also a task and a duty for me to make a modest contribution, by exchanging our views, towards a better mutual understanding of our attitudes to fundamental political and legal problems that are the subject of international discussion to-day.

The purpose of this lecture is to identify and investigate two things: (1) the centre of the intellectual activity described in its title as the defining and development of international law, and (2) the fundamental concept around which both defining and development revolve. The centre as indicated will be found to consist of (representatives of) what is to be called the three “legal archetypes”. The fundamental concept alluded to is the “normative concept of law”. The two notions are, of course, highly abstract as compared to the realities they are designed to help understand. They will be set forth as clearly as possible within the strict limits of this lecture, although it is realized that a truly satisfactory treatment cannot be imagined outside a full-size methodology. An apology beforehand is, therefore, in place. One particular question relating to the normative concept of law in international relations will be dealt with in some detail: it has to do with “tragedy in law” as resulting from the clash between competing normative concepts. As a final observation, the need for a maximum degree of flexibility in the international lawyer's way of thought will be stressed.