McGILL LAW JOURNAL
[Vol. 15
“Personal Status” and “Statut Personnel”
G. Tedeschi *
For the Continental lawyer, status (of persons) and “personal
law” (or “personal statute” according to the traditional terminology)
constitute quite distinct notions. The first refers to the condition
of the individual, the second to a body of rules. The first is a con-
cept relating to our own –
legal system considered
by itself; the second is a concept of private international law desig-
nating that which is deemed, in a given sphere, to be the competent
legal system among more than one, by virtue of a personal connec-
tion (where the test may be citizenship or domicile). And just as
the angles of vision do not coincide, there is no objective corre-
spondence between the one sphere and the other.
or to another’s –
But when the literature and case law of common law countries
is considered, it is noticed that the concept of status, or personal
status, sometimes assumes a hybrid aspect somewhere between the
two notions, almost as if they were identical. It is true that this
does not occur among writers who consider status within the ambit
of jurisprudence or of private law. These writers refer to it without
special regard to private international law and they endeavour to
determine the notion of status in a way similar to what may
be found in the literature on the subject in the Continental countries,
with analogous doubts and differences. Anglo-American writers on
private international law, on the other hand, often deem it opportune,
when seeking to answer the question of the sphere in which extra-
territorial efficacy may be attributed to a given system, to refer
to personal status, as though the same jurisprudential concept were
valid to that effect as well.
If we are not mistaken, an indication of the hybrid nature which
is thus attributed in common law countries to status is to be found
in the use –
especially frequent among writers on private inter-
national law –
of the expression “personal status” instead of simply
“status”. The addition of the adjective “personal” would appear to
be necessary in our argument if jurists were accustomed to talk of
“status” in connection with things as well and to classify things in
various “status” according to their different juridical regime. But
that usage is not to be found, even in English-speaking countries,
* Professor of Civil Law, Hebrew University of Jerusalem.
No. 3]
“PERSONAL STATUS” AND “STATUT PERSONNEL”
453
with a few exceptions such as in Admiralty judgments in which the
attribution of a status to a ship was used as -a subterfuge in order
to bring its owners within the jurisdiction of the Admiralty Court.1
It is true that in French the term “6tat” is usually accompanied
by the addition of “personnel” or more often “des personnes” (and
so, similarly, “stato” in Italian) but in Italian and French there
would be a risk, if that were left out, of confusion between the
status of the individual, and the state; this, however, does not occur
in English, as the original form status has been kept in the accepted
meaning which we are concerned with here, and the form has been
changed to “state” to convey the accepted meaning of state which
the original Latin word has acquired in modern European languages.
Actually, in English there may still be the risk of confusion, due
to the accepted meaning of the term in public law, such as dominion
status, and also in a non-legal sense, such as social status. But so
long as one is talking of definite juridical matters, there is usually
no need to fear misunderstandings so that it is unnecessary to be
more precise except in a case where it is desired to emphasize dis-
tinctions, such as estate in land –
personal status or proprietary
estate –
personal status.
Nor can it be said, apparently, that personal status should convey
a narrower concept than status, as some have thought.2 No restric-
tion of that kind is observed in the language used by judges or by
writers; nor does it appear in legislative or international documents
as we shall see – with a meaning
where the term is used rather –
wide enough to go beyond the notion of status.
As we have said, if we are not mistaken the addition of “personal”
to “status” apparently attests to the tendency towards a synthesis
or mixture between status (of persons) and personal statute (or
law). And in fact, while such addition is seldom if ever to be found
it is often found amongst writers
amongst writers on jurisprudence,
on private international law. But it is more useful to examine what
those writers have in mind than to dwell on the expression itself.
1 The Mogileff, [192] P. 236, [1921.] W.N. 124, (1920-21), 27 T.L.R. 549,
(1921), 90 L.J.P. 329. See Graveson, Status in the Common Law, (London, 1953),
p. 121 ff.
2 See, e.g., E. Vitta, Conflict of Laws in Matters of Personal Status, (Tel Aviv,
1947), p. 14.
3 See, e.g., J. Austin, Lectures on Jurisprudence, 5th ed., vol. 2, (London, 19111);
T. E. Holland, The Elements of Jurisprudence, 12th ed., (Oxford, 1917) ; Salmond,
Jurisprudence, 2nd ed., (London, 1907). It does not seem to us that the addition
of the word “personal” appears even once in the very ample treatises of Austin
and Holland. In Salmond, it is found only in one of the Appendices (at p. 493
of the second edition).
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Rabel has already observed that the concept of status, even if
rather vague among writers on common law, “refers to situations
subjected to personal law”. 4 A typical and extreme example, it seems
to us, is the following test adopted by Cleveland to determine or
deny the existence of a status: “that those relations are status whose
existence in another jurisdiction is measured by the law of the
home state.. .” 5 And he affirms consistently: “…. marriage…
is
the province of home law and is therefore a status”6; “… once a
proper law has said that a child is legitimate there is a principle
of the common law of conflicts which says that whatever is now
the home law of this child will be borrowed… We shall, therefore,
call legitimacy a status.. .”. 7 Beale also looks continually to the “per-
sonal law” to decide whether a given question is a question of status,
and draws his reply from that criterion: “Insanity is not a status.
If insanity is found at the domicil it does not affect the condition
of the person in another state.” And so also Professor Graveson:
“The reference of a matter to the domiciliary or other proper law
of the person concerned is… a test of whether the matter involves
a question of status.. .” I
It is to be noted that the influence, conscious or unconscious, of
the “personal law” leads not only to the affirmation or denial of
the existence of a status according to a criterion extraneous to the
argument, but also to the unification of the various status in a single
whole called precisely personal status. Status according to customary
usage is a specific status, one or other of the several status to be
found in a given juridical system, such as the status of a married
person, of a legitimate child, etc. It is true that there are some,
like Salmond, who use the term status as a collective designation of
all the different status of a given person, plurality of status, and
that is, in Salmond’s conception, of all his rights and duties which
are not in the nature of property (thus in fact distinguishing status
from property). And others, like Farwell, J., go further still, so
far as to assert that status constitutes “one
indivisible whole”
which “cannot be altered but only completely changed.” 10 In reply to
4E. Rebel, The Conflict of Laws, 2nd ed., vol. 1, (Ann Arbor, Mich., 1958),
5 R.F. Cleveland, Status in Common Law, (1924-25), 38 Harv. L. Rev. 1074,
6 Ibid., at p. 1080.
7Ibid., at p. 1084.
8 J. H. Beale, A Treatise of the Conflict of Laws, vol. 2, (New York, 1935),
p. 113 ff.
at p. 107-5.
p. 658.
p. 194.
9 Graveson, op. cit., supra, n. 1, at p. 119.
-19In re Selots Trust, [1902] 1 Oh. 488, at p. 492, (1902), 71 L.J. Ch. 192, at
No. S]
“PERSONAL STATUS” AND “STATUT PERSONNEL”
455
that it has been rightly said that every status is an entity standing
on its own feet. So much the more so that every status is different
from every other by reason of its origin. But when status or personal
status comes to describe, more or less, the field of application of
the “personal law”, it is understood that it is a single whole (com-
prising the several individual status or the different matters of
personal status, however they may be described).”
Perhaps there is a connection between these tendencies and the
fact that in the common law countries, traditionally at least, “the
doctrine of personal law as a unified conception is seldom explicitly
formulated and has never been systematically elaborated”, to use
the words of Nussbaum. 12 And perhaps the use of the expression
personal status, which seems to be particularly widespread amongst
the writers on private international law, has been encouraged, con-
sciously or unconsciously, by the familiar sound of the expression
personal statute, which, especially in the past, was widely used even
by Anglo-American jurists with the meaning of “personal law” or
“statut personnel”.13
All the same, even jurists, with the tendency which has been
noted, do not go so far as to apply the label “status” to every ques-
tion coming within the “personal law”, like questions of inheritance
of movable property, nor to deny the existence of a status every
time that the extra-territorial efficacy of a rule does not receive
recognition by a given system of law.’ 4 The nature of status is not
affirmed in the first example because there is no recognized status
of heir in the field of civil law or in jurisprudence. Even Austin
11 See the legislative and international texts mentioned infra.
12 A. Nussbaum, Principles of Private International Law, (New York, London,
1943), p. 140.
‘3 See, e.g., Polydore v. Prince, (1837), 1 Ware (402) 411 (U.S.), per Ware,
D.J., (“personal statutes”); E.H. Young, The Status of Foreign Corporations
and the Legislature, Part I, (1907), 23 L.Q. Rev. 151, at p. 155; Bouvier’s Law
Dictionary, (Cleveland, 1940); Ballantine, The College Law Dictionary, (Ro-
chester, N.Y., 1948); Words and Phrases, (St. Paul, Minn., 1956); in all these
dictionaries, see the item “personal statute”; T. Baty, Polarized Law, (London,
1914), pp. 17, 40.
24 See, e.g., Beale, op. cit., supra, n. 8, at p. 649: “The variety of status which
consists of permanent personal quality was not considered in the restatement
it has no extra-territorial connotation”; C.K. Allen, Status and
because …
Capacity, (1030), 46 L.Q. Rev. 277, at p. 293: “It
is now reasonably safe to
say.., that, with certain exceptions, status is determined by the personal law…”;
and also, Graveson, op. cit., supra, n. 1, at p. 107, who, after reviewing English
and American decisions, observes that: “In none of these cases,… was there a
refusal to recognize that a legal status had been created: the refusal was directed
against giving extra-territorial effect…”.
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[Vl. 15
who enlarges the category of status enormously 15 to the point of
including in it rights and duties of public officials and traders,
offences and civil rights of infants, and so on, nevertheless admits
that “The aggregate… of the rights and duties which passes by
testament or intestacy… has never been deemed a status or con-
dition”.’ 6 No one dares to deny the nature of status in cases where
it is recognized by tradition or doctrine. So the above-mentioned
writers prefer to gloss over the condition constituted respectively
by domicile and by citizenship (which Lord Westbury has called
“civil and political status” in the well know judgment in Udny v.
Udny) 17 when treating of the various status. And they do not fail
to admit, in general, that there is no exact correspondence between
extraterritoriality and status, as we have already seen.
In any way, it is considered that this tendency does not seem
logical. If it is a matter of applying the “personal law”, it is cer-
tainly worth referring openly and directly to the requirements that
a given judicial system lays down for such application instead of
to the requirements appropriate to another purpose, that is to say
to the connotation of a status. The use which is claimed to be made
15 The idea of Austin is that the concept of status derives only from convenience
of exposition, i.e., from the convenience of severing norms concerning only a
certain category of persons from matters of fundamental and general interest.
This idea, instead of easing the settlement of the subject, would prejudice it
seriously. Austin himself admits that there are exceptional norms of status
which may not be omitted in any treatise, because without them the other
norms would not be intelligible. Moreover, the norms of the status interest
not only those who bear the status but also all those who are, or may come,
in contact with them. It may even be observed that if we consider as jus singulare
the law concerning the minor or the spouses, why not consider likewise the law
concerning, for instance, the mortgage –
and therefore the law of mortgage?
Austin’s answer is that anyone can become a mortgagee but not the bearer of
a status; which –
does not in any way prevent the
class of mortgagees from not being more numerous than those of minors and
spouses. Moreover, if the law concerning a certain class of persons must be segre-
gated from the corpus juris, why not sever also the law concerning a certain class
of things a certain situation, etc.? And then what would there be remaining? It
may be found at last that this idea leads logically to a complete obliteration
of the concept of status. If for status we must understand a particular subjective
condition, deprived of interest for the general body of citizens, what ought to
be considered as such is not only a condition existing erga omnes in rem but
also and even more a condition obtaining only in personam; not only a condition
concerning rights and duties conspicuous in number and importance –
as states
Austin, op. cit., supra, n. 3, at pp. 688, 944, but differently, at p. 722. –
but,
much more so, a condition which is insignificant.
to the extent it is true –
16 Austin, op. cit., supra, n. 3, at p. 703.
17 (1869), L.R. 1 Sc. & Div. 441 (H.L.).
No. 3]
“PERSONAL STATUS” AND “STATUT PERSONNEL”
of another concept (status) –
torted precisely in consideration of such use –
to the clarity of juridical thought.
a concept which then becomes dis-
contributes nothing
A kind of vicious circle forms, and it is impossible to know
whether a given phenomenon should be termed status because the
judicial system recognizes it as subject to the “personal law”, or
whether such subjection should be recognized inasmuch as it consti-
tutes status. To make the extraterritoriality of the rules depend
upon their connection with a status, and at the same time to make
the existence of a status depend upon the extraterritorial applica-
tion of the rules which govern it, cannot be allowed.
The concept of status is not strictly a concept of private inter-
national law (as are the concepts of “personal law”, lex rei sitae,
etc.) and should remain identical both in that sphere and in juris-
prudence and private law. In fact, as we have observed, the Anglo-
American writers on private international law do not go so far
as to create a concept of status of their own, such as would come
to constitute a reflexion of “personal law” and a duplicate of its
objects, comprising all the questions of personal law and only those.
So that their identification of the two stops half way: status ceases
to be an independent concept but still does not become the true
shadow of personal law.
The said tendency is to be found reflected –
and in an even
more marked form than in the writings of the Anglo-Saxons on
private international law –
in the English versions of certain inter-
national documents relating to territories of the former Ottoman
empire or to nearby countries, and in legislative Acts of Great Britain
as mandatory power in Palestine. Take for example Article 9 of the
Mandate for Palestine’s and Article 6 of the French Mandate for
Syria and the Lebanon0 and also Article 51 of the Palestine Order
in Council, 1922.20 There are, further, Article 16 of the Lausanne
Convention of July 24, 1923,21 Article 28 of the Montreux Convention
of May 28, 1924,22 and the Notes exchanged in 1928, between various
Is The text of the Mandate has been conveniently reprinted in both the French
and English versions by the United Nations. See U.N. Doe., A/70. See also,
Wright, Mandates under the League of Nations, (Chicago, 1930), pp. 600-611
(English version only).
19 Id.
20 See the text in Stonyanovsky, The Mandate for Palestine, (London, New
York, Toronto, 1028), p. 363 ff, at p. 374.
2 1 Convention respecting Conditions of Residence and Business and Jurisdiction,
(1924), 28 L.N.T.S. 153, at p. 103.
22 Convention respecting the Abolition of the Capitulations in Egypt, (1937-38),
132 L.N.T.S. 37, at p. 61.
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[Vol. 15
western states (including Great Britain, the U.S.A. and many others),
and Persia.
All
these documents deal with private international law or
“inter-personal law”. Matters to which the “personal law” of the
parties applies are designated as matters of “personal status”. This
is so even when such matters have no connection with any status
recognized by jurisprudence or civil law (for example, matters of
inheritance at law, wills, dowry, etc.). It is true that a certain
hesitation is noticeable in some of these documents in this regard
and some matters, like that of inheritance, are not included there
under the heading of personal status.23 In other documents, however,
even such reserve is lacking. 24
But even aside from the inclusion, in the sphere of questions of
status, of matters not recognized as such by tradition and by juridical
doctrine (and also the exclusion of matters that are recognized as
another “dimension”
such), there is another aspect to the matter –
may we say –
due to which the two terms cannot coincide.
23 See Article 16 of the Lausanne Convention (in the English translation of the
French original): “In matters of personal status, i.e., all questions relating
to marriage, conjugal rights, divorce, judicial separation, dower, paternity,
affiliation, adoption, capacity, majority, guardianship, trusteeship and inter-
diction; in matters relating to succession, to personalty, whether by will or
on intestacy, and the distribution and winding up of estates; and family
law in general,…”. On the debates which preceded the Convention on this
point, concerning the previous situation in the Ottoman empire in matters
of statut personnel, see Conference de Lausanne, Recueil des actes, I, 1, (Paris,
1923), pp. 502 ff., 505 ff. and passim.
See also Note respecting the Position of British Nationals in Persia, May 10,
1928, which is similar in all respects with the Notes exchanged between the
United States and Persia on July 11, 1928, (.1928), 77 L.N.T.S. 377.
24 See Article 28 of the Montreuz Convention (and the Rules concerning
Judicial Organization in Egypt, R.J.O., appended to the Convention). Article 28:
“Personal status comprises: suits and matters relating to the status and capacity
of persons, legal relations between members of a family, more particularly
betrothal, maxriage, the reciprocal rights and duties of husband and wife, dowry
and their rights of property during marriage, divorce, repudiation, separation,
legitimacy, recognition and repudiation of paternity, the relation between as-
cendants and descendants, the duty of support as between relatives by blood
or marriage, legitimization, adoption, guardianship, curatorship,
interdiction,
emancipation and also gifts, inheritance, wills and other dispositions mortis causa,
absence and the presumption of death.” See also, Article 51 of the Palestine
Order in Council, 19.22, supra, n. 20 and also in Drayton, Laws of Palestine,
vol. 3, (London, 1034), p. 2581: “… For the purpose of those provisions matters
of personal status mean suits regarding marriage or divorce, alimony, mainte-
nance, guardianship, legitimization and adoption of minors, inhibition from
dealing with property of persons who are legally incompetent, successions, wills
and legacies, and the administration of the property of absent persons.”
No. 3]
“PERSONAL, STATUS” AND “STATUT PERSONNEL”
Status is understood in various ways by the jurists. For some it
is a situation, a condition, a title with effect erga omnes. The legal
system makes rights, obligations, capacity, etc. depend upon that
title; but according to this school, properly speaking it is not the
effects that constitute the status, neither the effects which proceed
from it directly nor certainly those which proceed from it indirectly.
For others, on the other hand, such as Austin and Salmond, status is
the whole body of rights, duties, capacity, etc. which derive directly
from a given juridical situation (ex statu immediate) or, in a broader
sense, those deriving indirectly too, with the concurrence of other
facts (ex statu mediate). 25
Now, it is clear –
and the decisions regarding Article 51 of the
Palestine Order in Council, 1922 confirm it –
that the extent of the
concepts set forth is not, precisely, either the one or the other. It
comprises not only the simple title (e.g. the married status) but
also relationships deriving from it, yet not all the possible reflections,
indirect or even direct. Thus, questions regarding the relationships
between husband and wife axe deemed to be questions of personal
status, but the consequences of the married state in regard to third
parties are not, nor, in particular, are its reflections on matters of
liability in tort, or the fiscal or military fields. 26 So that the
determination of the contents, in the cases we have examined, does
not correspond to the concept of status –
or rather, to any of the
various concepts of it which are gathered from the various currents
of thought – neither by extension nor, if it may be so expressed, by
“thickness”. It is accomplished, it seems, according to some other
criterion.
The disparity is evident, from one point of view, from the very
drafting in English of Article 28 of the Montreux Convention cited
above, in which personal status seems the comprehensive term for
all the matters provided for, and a particular class of them is then
designated by the name of status.
If the French text of the international documents that have been
mentioned is consulted, 27 it will be found that what is personal status
in English is there termed statut personnel, so that the two expres-
sions statut personnel and personal status are given as equivalents.
25 See Austin, op. cit., supra, n. 3, at p. 701.
26 C.A. 16/1949, Pesaqim, 3, 283, at p. 295 ff. Spec. Trib. 1/1950, Pisqe Din,
8, 1020, at p. 1032 ff.
27 So also the French text of the Notes exchanged with Persia by France,
(,1928-29), 82 L.N.T.S. 51, and other states similar to those exchanged with
Persia by Great Britain and the United States, supra, n. 23.
McGILL LAW JOURNAL
[Vol. 15
But in truth they are quite different, for the one designates the law
that is competent and the other the condition of the individual.
Moreover the spheres do not exactly coincide, as the “personal
statute” comprises many matters which do not constitute status
(according to the two “dimensions” spoken of above) and, conversely,
does not comprise every status. 28 Nevertheless
the authoritative
presentation (in some cases at least) of the two formulae as equiva-
lent presupposes that they have been so understood by the States and
lays a duty on the interpreter to interpret them as such. To do so,
given their objective discrepancy, will be possible only if the one or
the other (or both) is interpreted not sic et simpliciter but secundum
quid. The question then arises: is the expression matters of personal
status used in the sense of mati6re de statut personnel or is it the
other way around?
There appears to us to be no doubt that the first alternative is
the right one, supported as it is by reasons deriving from the analysis
of the provisions themselves as well as from their history.
The provisions of the French text of the Mandates for Palestine
and for Syria and the Lebanon, on “respect du statut personnel”, 2 D
are clear and sensible. In both cases the duty is laid upon the
Mandatory power to preserve in future the “personal
laws” for
the local population in the matters already subject to such rules,
that is to say, to preserve for every community its own religious
law in those matters, instead of changing it by a new territorial
and secular law (such as the law of France or of Great Britain).
The anxiety was very understandable, whether justified or not. The
connection between the two subjects treated in the same clause,
respect for personal rules and respect for religious interests, is
also quite clear.
28The inclusion of the status civitatis among matters of statut personnel, as
it appears in Foelix, Traitj de droit international priv6, 4e 6d., Ch. Demangeat,
6d., t. 1, (Paris, 1866), p. 81 ff. was considered a lapsus of the learned author.
(See also, Weiss, Traitg de droit international priv6, 2e 6d., t. 3, (Paris, 1808-13),
p. 57, n. 1). See R. Monaco, L’Efficia della Legge nello Spazio, 2nd ed., (Torino,
1964), p. 116.
29 Mandat pour la Palestine, supra, n. 18, article 9, al. 2: “Le respect du statut
personnel des diverses populations et communautds et de leurs int~rats d’ordre
religieux sera entitlement garanti.”
Mandat pour la Syrie et le Liban, supra, n. 19, article 5, al. 2: “Le respect du
statut personnel des diverses populations et de leurs intdr8ts religieux sera en-
tibrement garanti.”
No. 3]
“PERSONAL STATUS” AND “STATUT PERSONNEL”
461
But if one then considers the English text of these provisions,80
one cannot interpret “respect for the personal status” according to
the more literal meaning of the expression. To ‘do so would seem
to make it necessary to understand such respect in the same way
as we regard respect of contracts, mentioned in the Constitution
of the United States and other basic legal documents. But is it
probable that the authors of the Mandates were worried that the
Mandatory powers would arbitrarily deny this or that status
belonging to a class of citizens? Or that they would take it upon
themselves to deem married people unmarried in the countries of
the Levant, persons under disability as of full -legal capacity, or
vice versa?
With such an interpretation there would, in contrast to the
guarantee against such imaginary dangers, be no safeguard against
a change of the religious rules hitherto in force by a secular territorial
law (provided that it also respected the personal status already
existing, that is to say, the individual status of John Doe, and will
continue to recognize such status, in general, in the future as well.
In the same way, “respect of contracts” does not forbid legislation
on the subject, provided that the new rules respect existing contracts
and permit the making of future contracts. Moreover, according to
the interpretation under discussion there would seem to be no
connection
in the two Mandates between this subject and the
protection of religious interests, both of which are contained in the
same proposition.
If one then examines the list of the matters dealt with in all
the recorded documents, in the various versions collected,
it is
apparent that the collective designation of them as matters of statut
personnel is in conformity with the tradition of private international
law and is relevant to their delimitation, in extension and in
“thickness”. And so also in Article 28 of the Montreux Convention,
the relationship is clear between that comprehensive designation
and one of the classes of which it is composed, the “6tat des person-
nes”. All things which, as we observed summarily, could not be said
for the expression personal status understood in its proper signifi-
cance.
3OMandate for Palestine, supra, n. 18, article 9, para. 2: “Respect for the
personal status of the various peoples and communities and their religious in-
terests shall be fully guaranteed.”
Mandate for Syria and the Lebanon, supra, n. 19, article 5, para. 2: “Respect
for the personal status of the various peoples and for their religious interests
shall be fully guaranteed.”
McGILL LAW JOURNAL
[Vol. 15
Thus the analysis Ieads to the conclusion that personal status,
in the documents under examination, is a reflection of statut per-
sonnel and has come to take its meaning; and not indeed the other
way around.
This result is also confirmed by historical considerations. There
is no great difficulty in retracing the origin of the category of
personal status (“statut personnel”) placed, albeit not without
wavering, in the international and mandatory rules which are on
record.
In the background stands the tendency of Islam not to subject
infidels to its own rules, regarding certain matters which it considers
connected strictly with religion. 31
A decisive turn was taken when Mohammed II, after the conquest
of Constantinople, allowed the heads of the non-moslem communities
to continue to exercise their jurisdiction over their own members.
The famous Firman of 18th February, 1856, known by the name
of Hatti Hamayun, alludes openly to the powers already conferred
upon the bishops and patriarchs (and later extended to the heads
of all the non-moslem communities).
For all who were not citizens of the Empire, the Capitulations
ensured that they live under the law of their country and under
consular jurisdiction; so that for them a system of personal and not
territorial law was established.
It is plain that, in all these precedents, the ratio did not lie in
the concept of status as such and that the application of the foreign
or religious rules of the individual communities was not concerned
with the different status – neither with all of them nor with them
alone – but with a variable complex of matters, made up of status
and other judicial relations. And it is also clear that in all the
phenomena alluded to, in spite of the differences between them,
there is a common element given by the concept of “personal law”,
law which comes to be considered more relevant than any other in
the circumstances because of its close connection with the person.
To term such rules “personal statute” was usual among jurists
of the French and Italian languages 32 in the countries of the Eastern
31i However, the usual statement according to which Muslim law is considered
personal law by its very nature and therefore not applicable to non-Muslims is
an exaggeration. See on this point, H.A. Boghdadi, Origine et technique de la
distinction des statuts personnel et r iel en Egypte, (Le Caire, 1937), p. 72.
32 See, e.g., under the item “statut personnel”, Young, Corps de droit ottoman,
(Oxford, 1.906); G. P61issi6 du Rausas, Le r~gime des Capitulations dans l’Empire
Ottoman, 2e 6d., t. I, (Paris, 1910); S. Messina, Trait6 de droit civil 6gyptien
mixte, t. 3, (Alexandrie, 1930); and also, De Jehay, De la situation des sujets
ottomans non-musulmans, (Bruxelles, 1906), p. 12.
No. S]
“PERSONAL STATUS” AND “STATUT PERSONNEL”
463
Mediterranean in the last century and the beginning of the present
one, although it was undoubtedly already old-fashioned by then and
had anyway lost the meaning of referring back to the traditional
theory of the statutes. In this generic sense of “personal law”, “statut
personnel” took root in the juridical language of those countries
and also became an expression used in legislation. In Egypt, when
the legislators set to work on jurisdictional reforms in 1875, they
officially designated as matters of personal statute those matters
the ambit of which they determined by the example of the Italian
Code, Articles 6 and 8 of the Codice civile, 1865, with small formal
changes.33 The reason for the preference given to the Italian rule
(apart from its intrinsic merit) was the extended scope, in compari-
son with the French Code civil, which it gave to the personal statute,
as it included the whole body of inheritance law. Such extension
indeed was found to be in conformity with the tradition of the
Capitulations 34 and with the demands of the European States as
a condition of consent on their part to the reform being made in
Egypt. So also the Egyptian legislator spoke of personal statute in
relation to internal conflicts of law. 35 Even the Code published in
Egypt by Kadri Pasha came to be called the Code of personal statute36
although it only concerned Mohammedan law and not conflicts of
law. The same term was used later in the Syro-Lebanese legislation
during the French mandate. 37
33 See article 9, para. 1 of the R~glements d’organisation judiciaire pour les
procs inixtes en Egypte, (R.O.J.), September 15, 1875, in Martens, Nouveau
recucil giniral de trait s, 2nd series, vol. 2, at p. 681: “Ces tribunaux connaltront
seuls des contestations en matiAre civile et commerciale entre indigbnes et
6trangers et entre 6trangers de nationalitds diffdrentes en dehors du statut
personnel.” And see article 4 of the Egyptian Mixed Civil Code: “Les questions
relatives A l’6tat et h la capacit6 des personnes et au statut matrimonial, aux
droits de succession naturelle ou testamentaire, aux tutelles et curatelles restent
de la competence du juge du statut personnel.”
34 See P6lissi6 du Rausas, op. cit., supra, n. 32, p. 422; C. Cardahi, Le droit
civil des pays sous mandat frangais dans le Proche Orient dans ses rapports
avec la legislation religieuse, (1933), 28 Rev. de droit internat. priv6, pp. 443-
445; F. Chebat, Les 6trangers devant la justice en Syrie et au Liban, (Paris,
1938), pp. 238 ff.; I.A. Khairallah, The Law of Inheritance in the Republics of
Syria and the Lebanon, (Beirut, 1,941), pp. XI, 344 ff.
op. cit., supra, n. .32, pp. 139 ff.
35 See Boghdadi, op. cit., supra, n. 21, pp. 215, 221 ff., 341 ff., and Messina,
36 Mohammed Kadri Pacha, Code du statut personnel et des successions d’apras
le rite hanafite, (Alexandrie, 1875), (official translation) which has been trans-
lated in English under the title, Code of Mohammedan Personal Law, (London,
1914).
37 See Chebat, op. cit., supra, n. 34, pp. 159 ff., 221 ff. and passim. Khairallah,
op. cit., supra, n. 34, p. XI is a classic example of the confusion between status
and statut.
McGILL LAW JOURNAL
[Vol. 15
The English expression personal status, on the other hand,
appeared only later in the formulations relating to the countries of
the region. It does not appear in the Orders in Council which were
issued successively for the Ottoman Empire and Persia, nor even
in the one for Egypt of the year 1930,38
(probably due to the
influence of the preceding formulations) 3 nor in various treaties
such as the Anglo-Iraqi treaty of 1924. It is clear therefore that it
was adopted later in the day and with some hesitation so that it
appears probable that it came in as a reflection of the meaning of
the French expression statut personnel, which was traditional and
firmly rooted.
If the foregoing considerations are correct, it can be said that
when the Palestine Order in Council, for instance, defines, in Article
51, matters of personal status in order, later on, to apply to them
in other articles, the “personal law” of the parties in both the
internal and the international sphere, it is substantially repeating
itself, as the designation of certain subjects as personal status
signifies already that the “personal law” applies to them. What is
apparently a motivation (they are matters of personal status and
are therefore subject to the personal -law of the parties) amounts to
a tautology. It was pointed out analogously above, with respect to
some Anglo-American writers on private international
law, that
they recognize or deny the existence of a status according to whether
the judicial system does or does not apply the “personal
law”.
To sum up, for subjecting a given relation to the “personal law”,
the consideration of the question whether or not it is a status is
held to be neither conclusive, necessary, nor sufficient. Whatever be
the conception one has of status, the common law and the other
rules, we have examined, subject a greater or a lesser part of it,
according to the cases, to the personal law. Well, then, is it not
better to call a spade a spade?
38 See British and Foreign State Papers, vol. 152, p. 81. See Order in Council
of July 28, 1930, Part IV – Civil Matters -,
ibid., at p. 118.
39 The expression personal status appears in the Order in Council for Egypt,
1937, issued in connection with the Montreux Convention. See Abolition of the
Capitulations in Egypt, (1938), 19 Br. Y.B. Int. L. 160.