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COMPARATIVE LAW
LESSON 1.- FUNDAMENTALS OF COMPARATIVE LAW
A FIRST APPROACH: WHY DO WE STUDY COMPARATIVE LAW?
In the natural and medical sciences, and in sociology and economics, as well, discoveries and opinions are exchanged internationally (no sense “German physics”, “British microbiology” or “Canadian geology”). These branches of science are international and the contributions too. ▪ The position of legal science is different: Roman law was the essential source of all law on the Continent of Europe, and similar unity in the Common Law in the English speaking world. On the European continent, however, legal unity began to disappear in the eighteenth century as national codes were put in the place of traditional Roman law. The consequence was that lawyers concentrated exclusively on their own legislation, and stopped looking over the border. At a time of growing nationalism, this legal narcissism led to pride in the national system. Germans thought German law was the best one, and the French thought the same of French law: national pride became the hallmark (“sello de calidad”) of juristic thought. ▪ Comparative law started to put an end to such narrow-mindedness. (“estrechez de miras”). A CONCEPT OF COMPARATIVE LAW WHAT IS COMPARATIVE LAW? Comparative Law is the comparison* of the different legal systems of the world (at least, two). It is a study of the relationship between legal systems or between rules of more than one system. *What does “compare” mean?: discovery, explanation and evaluation of similarities and differences. ▪ Comparative Law can be said to describe the systematic study of particular legal traditions and legal rules on a comparative basis. What is the nature of comparative law?:
- It is a branch of law, like “family law” or “property law”?
- Is there any identifiable body of rules known as “comparative law”?
NO => It does not have a core content of subject areas and does not denote a distinct branch of substantive law. ▪ Comparative Law is a method of study rather than legal body of rules. WHAT IS NOT COMPARATIVE LAW? Comparative Law is NOT: Private international Law (conflict of laws) → part of private law that deals with situation in which there is a possible conflict of applicable laws. Public international Law (international law) → the body of law that governs relationships between States. Legal history → is a vital precondition to the critical evaluation of the law and understanding of the operation of legal concepts. Comparative legal history is “vertical comparative law” and the comparison of modern systems is “horizontal comparative law”. Sociology of law → it simply observes how the legal institutions operate. Comparative Law concerns itself with the question of “how the law ought to be” by studying the rules and institutions of law in relation to each other. TYPES OF COMPARATIVE STUDIES: What sort of comparative studies would rank as comparative law? Comparison of foreign systems with the domestic system in order to ascertain similarities and differences. Studies that analyse solutions which various systems offer for a given legal problem. Studies that investigate the causal relationship between different systems of law. Studies that compare the several stages of various legal systems. Studies that attempt to discover or examine legal evolution generally according to periods and systems LEVELS OF COMPARISON: Comparative lawyers compare the legal systems of different nations. This can be done or a large scale or on a smaller scale:
What is “method” mean? A means (un medio) of obtaining data – information classified into usable conceptual units – and a means of ordering and measuring data. Observation, documentary research, sample surveys, statistical operations, context analysis and in-depth interviews are all methods. (Roberts, 1972). METHODS: ▪ Kamba (1974) suggests that there are three main stages involved in the process of comparison: The descriptive phase → description of the norms, concepts and institutions of the systems concerned and the examination problems. The identification phase → identification of differences and similarities between the systems being compared. The explanatory phase → account the resemblances and dissimilarities between systems, concepts or institutions. Conclusions. There are different methods but we are going to study these two: Functionalism method → same needs, shared problems, probably good solutions abroad. Postmodernism → law as a culture. Differences between countries. No need of harmonization.
FUNCTIONALISM METHOD:
Law responds to human needs and therefore all rules and institutions have the purpose of answering these needs. ▪ There are shared problems or needs in all the societies under comparison, that they are met somewhere in the society and that the means of solving these problems may be different but comparable, their functions are equivalent. ▪ The functionalism answer these questions: Which institution in system B performs an equivalent function to the one under survey in system A? How is a specific social or legal problem, encountered both in society A and society B, resolved? Which legal or other institutions cope with this problem? POSTMODERNISM: ▪ Postmodernism highlights differences and is only interested in what makes legal systems different. ▪ Postmodern comparative law does not emphasize the links between legal systems and institutions, but rather the differences between them. ▪ Pierre Legrand (among others) has written against harmonization of law in Europe because he says that European legal systems are so different that they can’t be harmonized.
HISTORY OF COMPARATIVE LAW
HISTORY:
Background: ▪Greece: The earliest comparative researches. In his “Laws” Platon makes a comparison of the laws of the Greek city- states. ▪Roman Empire: Offers no examples of efforts in comparative law. The Roman jurists were too convinced of the superiority of their legal and political system to pay much attention to foreign laws. Cicero described all non-roman law as “confused and quite absurd”. ▪Middle Ages: Canon and Roman law acquired such authority that no other kind of law had any interest for scholars. ▪Age of Humanism: There were more serious attempts at comparative legal analysis. Struve and Stryck with their comparisons of Roman and German private law. Comparative Law as a science: ▪ Comparative law, as it is practiced today, started in the mid-nineteenth century (c. XIX) in Germany. ▪ Legislative comparative law in Germany grew with the movement for the codification and unification of law within Germany. It started in that area of law where unification is most urgently called for: commercial law. Later, the same happened with Criminal Law and Civil Code.
▪ In 1900 there was the first International Congress of Comparative law in Paris. It was the starting point of Comparative Law as a science. LEGAL TRANSPLANTS Concept of “legal transplants”: the transfer of a legal rule from one jurisdiction to another (Alan Watson, 1974). The transfer of an item of law from one legal system to another. ▪ The decision to draw on ideas found in other legal systems is thereby often justified by the quality of a given foreign solution. It is, moreover, easier and cheaper to copy an existing rule than to reinvent the wheel. ▪ Borrowing from another system is the most common form of legal change. Foreign ideas have been copied in most areas of private, administrative, constitutional, social security and even criminal law. ▪ The phenomenon of transplantation is not restricted to the modern world. The earliest known cases... Legal transplantation has a long history. Some examples: Roman law in Europe. English law through the colonies of the British Empire (even in parts of USA). French Civil Code in other civil law systems in Europe and abroad. The spread of American Law to Europe, especially in places such as Switzerland. ... ▪ Typologies of legal transplants (by Miller): Cost-saving transplant: Copy an institution or a regulation from elsewhere in order to save time and the expensive process of developing an original solution. Externally dictated transplant: Imposition by a foreign entity or government. The Entrepreneurial transplant: Effort of individuals or groups to introduce and encourage some foreign regulations in the own one. Legitimacy-generating transplant: Transplant from a developed country to a developing one, sometimes even one with rudimentary legal institutions. ▪Difficulties of transplant:
▪ In common law the will of the parties and what they have agreed (freely and willingly). Liberty of form, principles of good faith. The entire contract will be built by the parties with a minimum intervention of the law. ▪ In civil law system, all types of contracts (contract of sale, lease, donation, etc.) are regulated and listed in a code (or law). Most of the contracts have many formalities regulated by law that must be fulfilled if not the contract shall be unenforceable and invalid. Comparative Family Law ▪ Family Law: The area of the law that deals with family matters and domestic relations (marriage, relationships, parental responsibilities, childhood rights, divorce, same sex relationships. ▪ Family law concepts are especially open to influence by moral, religious, political and psychological factors; family law tends to become introverted because historical, racial, social and religious considerations differ according to country and produce different family law systems. (Müller- Freindfels, 1968) ▪ “Principles of European Family Law”: Set of rules in the field of parental responsibilities based on respect for the rights of the child, non- discrimination and, as far as possible, self- determination. Comparative Commercial Law ▪ Commercial Law: The law relating to the facilitation and regulation of commerce. Common law: Transactions / Civil Law: Transactions, institutions, companies and partnerships Within traditions: Law governing all types of transactions / Business-to- business transactions (B2B) ▪ The importance of commerce: “An efficient legal system which protects property rights and facilitates transactions is essential for commerce.” “Differences in commercial law are inefficient, and they can and should be removed by harmonisation.” ▪ Commerce is not affected (like others) by cultural attitudes. Business people everywhere just want to make money Comparative Commercial Law: examples China had no general company law from the Communist takeover until 1994. Once the enforcement of communist ideology was relaxed, company law was introduced: a clear example of a direct link between general culture and the law.
Islamic Law. In finance, the foundation of the Western system in interest. Islamic law forbids riba (“illegitimate gain”). The consensus among scholars is that riba includes interest. The entire field of Islamic finance law is based on this cultural/religious difference. Numerus clausus. In civilian mentality, the dominance of legislation is fixed in security by law by means of the numerus clausus principle. Common law families give to courts more liberty. Fragmentation: Civilian regimes are more fragmented than common law ones. To the common lawyer there’s no need to be as specific as the civil lawyer wants (expensive and inefficient). LESSON 2.- LEGAL FAMILIES OF THE WORLD LEGAL FAMILIES OF THE WORLD ▪ Concept of “Legal system”: Legal system is the set of laws, customs, jurisprudence of positive law that governs a certain community. Because of the number of legal systems that exist in the world it is almost impossible to study and compare everyone. Hence, comparative law reduces them to groups or families taking into account their affinities and common elements. ▪ Concept of “Legal family”: A legal family is, therefore, a set of legal systems that share certain characteristics. The term legal system refers to the national law of a State, while the term family refers to the set of legal systems that go beyond the borders of a nation.
o Recent trends have indicated that the common law and civil law systems have been coming closer together in their use of case and statutes (i.e. The United Kingdom Children Act 1989). o Socialist law: Is based and developed on Marxist-Leninist ideas. Especially distinctive institutions. o In Common law jurisdictions, the typical legal institutions are agency, trust, tort principles, consideration and estoppel. o In the Romanistic family there is a tendency towards formalism and rules protecting the moral and economic integrity. Institutions as: the direct action, oblique action and abuse of right. o The Germanic family: Abstract real contract, clausulae generales, the notion of unjust enrichment... o Socialist legal systems: Different types of ownership, unique notions of the role and status of contract in a planned economy, the duty to rescue, ... The kind of legal sources. o Differences between methods of interpretation, court structures and procedures. o The primary source of law in civil law countries: codified or enacted law, whereas in common law countries it is still predominantly case law. o Other criteria must also be taken into account (...) Ideology. o Religious or political conception of how social or economic life should be organized. o Islamic and Hindu law offer examples of this. o This is not a factor which helps us distinguish between the various “Western” legal systems; here other criteria must be sought. ▪ A possible classification of legal families of the world:* Civil law: o Romanistic: France, Italy, Spain, Portugal, South America. o Germanic: Germany, Austria, Switzerland and a few affiliated systems. Common law: England, Australia, New Zealand, USA. Scandinavian family (Nordic countries): Sweden, Denmark, Iceland, Norway, Faroe Islands. Far Eastern Systems: Vietnam, Laos, Cambodia. Mixed Systems: Scotland, South Africa, Louisiana, Israel, Puerto Rico. Islamic Law: Saudi Arabia, Sudan.
- It is not the only one, there are lots of different classifications. TABLE OF COMPARISON
THE ROMANISTIC LEGAL FAMILY
▪ Concept of “civil law”: the entire system of law that currently applies to most Western European countries, Latin America, countries in the Near East, large parts of Africa, Indonesia and Japan. ▪ Origins of civil law: Roman law ( ius civile)
▪ The Code avoids the danger of being too detailed. It gives the courts room the possibility of interpretation. ▪ The French Civil Code has never been substituted by another Civil Code: it has been amended (despite the several changes in political regimes). ▪ Three original books: First book: “ DesPersonnes ” arts.7- Book two: “ Des biens et des différentes modifications de la propriété ” arts. 516- 710 Book three: “ Des différentes manières dont on acquiert la propriété ” arts. 711- Main features of Romanistic legal family: Sources of French law: Primary sources of law: Legislation (enacted law statutes, constitutional law, regulations, the five Napoleonic Codes, general principles of law and custom.) Secondary sources of law: the judge, court decisions (jurisprudence), learned annotations of academic writers (doctrine), textbooks, commentaries, monographs by experts... Primary legal methodology: Codification. Rigid separation between: Private law ( droit privé ): Rights and duties of private persons and corporations Public law ( droit public ): Relations to which the State is a party. Legal institutions: Abuse of rights, direct action and oblique action. Distinction between ordinary courts and the administrative courts. Development of the Law in Spain ▪ Middle Ages: “ fueros ”, laws particular to different localities. ▪ “ Las Siete Partidas ” c. 13 th : law book influenced by Roman sources. ▪ The law of the Spanish kingdom until 19 th century was called “The fuero system”. ▪ In the 19th^ century: plan to unify Spanish private law:
Commercial law was codified 1829 and greatly modernized in 1885 (Código de Comercio) Código Civil: 1889. This Code, which is still in force, relies heavily on the French Code, specially in the area of the law of obligations, where most of the provisions are a simple translation of the French text. Movement for autonomy: Catalonia, Basque provinces, Navarra, Galicia... These fueral laws are being codified to a basis for the future creation of a private law common to the whole of Spain. THE GERMANIC LEGAL FAMILY The origin of Germanic family: Germany ▪ In the Middle Ages in Germany there were no central political and judicial organs to lay the foundations of common German private law. No central administrative bodies, no staff of royal officials, no effective royal jurisdiction. ▪ The weakness of imperial power in Germany, the absence of a strong system of imperial justice, and the non-existence of an influential class of imperial jurists made it easier for the reception of Roman law. ▪ Importance of rationalism movement: the law of reason. Savigny and Pandectism: ▪ “ German Historical School of Law ”: Savigny (1779- 1861): Law as a historically determined product of civilization. Law as a product of the formative reason. All true law is customary law, developed and captured. ▪ The people’s representatives: the lawyers. ▪ Legislation inorganic and unscientific, was no the right way to create a common German law. What was needed was a absorption and cultivation of the legal material which they had and make it grow. ▪ The Pandectist School (directed by Savigny). Aim: The dogmatic and systematic study of Roman material. One only had to apply logical or “scientific” method in order to reach the solution of any legal problem. To study all historical sources that had shaped German legal history. The German Civil Code (1900): BGB (Bürgerliches Gesetzbuch) => Later tan French Civil Code.
▪ Origin: England (not Britain) Middle Ages. It was successfully transplanted from England to many countries (colonization): Australia, South East Asia, India, Hong Kong, North America, ... ▪ Case-based system law. The predominant mode of interpretation: case law (not codes). No codification (no contained in enacted collections of authoritative and prima facie exhaustive rules of law). ▪ Typical institutions such: trust, tort law, estoppel and agency. ▪ Improvisatory and pragmatic legal style. ▪ No substantive or structural public/private law distinction. The English Common Law system: ▪ Sources: Judicial Precedent or Case Law Legislation or Statutory Law Custom Books of authority The doctrine of precedent: This doctrine governs case law system. Decisions of higher courts are generally binding on lower courts. That part of the case which is considered binding on a subsequent court is the ratio decidendi (the reason for the decision), which is broadly the principle established in the case. Other comments of the judge: obiter dicta. Judges pay attention to the particular facts of a case and make a ruling based on a careful study of whether that case fits into any previously case. If and English judge does not wish to follow a previous decision, he has the option of “ distinguishing ” (deciding it is not applicable) on the basis of its facts, or law, or both. THE SCANDIVANIAN LEGAL SYSTEM
▪ Northern Europe: Denmark, Finland, Iceland, Norway and Sweden (very close between them). These countries have historical development, cultural links, language, politic, population, economic power: very similar. ▪ All basic legal concepts used in Scandinavian law are derived from civil law, primarily via German law. ▪ Few stylistic hallmarks of the common law such as the typical methods of finding law, and the standing and career of the Anglo-American judge. ▪ Lack of a general civil code. Use a system of less comprehensive statutes supplemented by analogies from statutory provisions, case law and legal doctrine filling the gaps. ▪ Less theoretical and conceptualized approach to legal problems. SOCIALIST SYSTEM ▪ Socialist law or Soviet law denotes a general type of legal system which has been used in communists states. It is based on the civil law system, with major modifications and additions from marxist-lennist ideology. ▪ Socialist law is similar to civil law (LAW in center) but with a greatly increased public law sector and decreased private law sector. Main features: Disappearance of private property and social classes. Law is subordinated to the creation of a new economic order. Pseudo-religious character. Prerogative instead of normative. Low respect for privacy, extensive control of the party over private life. ▪ Countries: Soviet Union, Cuba, Vietnam, ... MIXED SYSTEMS ▪ Jurisdictions in which is more than one system co-existing with one another: combination of civil law, common law and/or others. ▪ Some examples: Quebec → Canadian province with French origin. Civil code from European favor but judicial system based in common law.
