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Comparative Law: Origins, Legal Families, and Europeanization, Sintesi del corso di Diritto Privato Comparato

Università commerciale Luigi BocconiDiritto Privato Comparato

An overview of comparative law, tracing its historical origins and evolution. It explores key concepts such as legal families, legal traditions, and the europeanization of private law. The text examines the influence of roman law, canon law, and the development of national legal systems. It also discusses the unification of law through international institutes and the impact of european law on national legal systems, including the role of soft law and the acquis communautaire. The document further delves into contract law, good faith, and the perspective of european codification of private law, offering a comprehensive insight into the field of comparative law and its historical and contemporary contexts. It also touches upon african customary law and legal pluralism.

Tipologia: Sintesi del corso

2022/2023

Caricato il 06/09/2025

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Lecture 1
CONCEPT AND HISTORICAL DEVELOPMENT OF COMPARATIVE LAW
1. Comparative law: compares the national legal system with another (intellectual operation)
2. Foreign law: proper legal system in force in a state (other than that being used as reference)
1. Horizontal comparison: is between two (equal) national legal systems
2. Vertical comparison: is between a supranational legal system and a national one (EU vs IT)
1. Ius commune (roman period): comparative law not particularly relevant (legal universalism)
2. Ius patrium (medieval period): the need of comparison started to be relevant since there was
more than one established legal system (emergence of nation states)
• E. Amari (1810-1870): true founder of comparative law in the modern sense (“Critica e storia di
una scienza delle legislazioni comparate”)
• Congrès international de droit comparé (Paris, 1900): historical birth of comparative law
• E. Rabel (1874-1955): one of the main fathers of comparative law. Defined the scope and the
methods of this field of knowledge and laid the foundations for its further development in
Europe (treaty of Versailles). Rabel confronted the issue that national laws may differently
qualify the same legal institution, thereby highlighting the need for a comparative assessment.
Lecture 2
COMPARATIVE LAW AND COMPARATIVE KNOWLEDGE
Statism and nationalism (beginning 18th century)
• The historical development of western legal tradition conceptualize law as a set out by nation
states, each exercises sovereign powers to enact and apply its own law (statism and
nationalism embodied in the codes). Law becomes the outcome of political decision of a
sovereign entity (absolute monarch or democratic parliament), no longer hinged on the
rationality of legal reasoning. Overwhelming nationalism of legal education, which is the worst
threat to the future of law and of legal knowledge!
• This view is challenged by international law, also because for centuries there was ius commune,
a proper common law for Europe, not a state/domestic law.
Statism = emphasizes a strong government role within a state
Nationalism = prioritizes the interests and identity of a specific nation
Westphalian paradigm (1648) – contrast in development of domestic and international law
1. Domestic law: (1) The State’s sovereignty entitles it to bind its own citizens by enacting legal
rules. (2) The way to legal nationalism was thus opened and led to the major codifications of
private law of the 19th century.
2. International law: (1) The State’s sovereignty can be voluntarily self-limited by means of
agreements with other States. (2) Each contracting State has a duty to give execution to the
international agreements it has entered into.
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Lecture 1

CONCEPT AND HISTORICAL DEVELOPMENT OF COMPARATIVE LAW

  1. Comparative law: compares the national legal system with another (intellectual operation)
  2. Foreign law: proper legal system in force in a state (other than that being used as reference)
  3. Horizontal comparison: is between two (equal) national legal systems
  4. Vertical comparison: is between a supranational legal system and a national one (EU vs IT)
  5. Ius commune (roman period): comparative law not particularly relevant (legal universalism)
  6. Ius patrium (medieval period): the need of comparison started to be relevant since there was more than one established legal system (emergence of nation states)
  • E. Amari (1810-1870): true founder of comparative law in the modern sense (“Critica e storia di una scienza delle legislazioni comparate”)
  • Congrès international de droit comparé (Paris, 1900): historical birth of comparative law
  • E. Rabel (1874-1955): one of the main fathers of comparative law. Defined the scope and the methods of this field of knowledge and laid the foundations for its further development in Europe (treaty of Versailles). Rabel confronted the issue that national laws may differently qualify the same legal institution, thereby highlighting the need for a comparative assessment.

Lecture 2

COMPARATIVE LAW AND COMPARATIVE KNOWLEDGE

Statism and nationalism (beginning 18th^ century)

  • The historical development of western legal tradition conceptualize law as a set out by nation states, each exercises sovereign powers to enact and apply its own law (statism and nationalism embodied in the codes). Law becomes the outcome of political decision of a sovereign entity (absolute monarch or democratic parliament), no longer hinged on the rationality of legal reasoning. Overwhelming nationalism of legal education, which is the worst threat to the future of law and of legal knowledge!
  • This view is challenged by international law, also because for centuries there was ius commune , a proper common law for Europe, not a state/domestic law. Statism = emphasizes a strong government role within a state Nationalism = prioritizes the interests and identity of a specific nation Westphalian paradigm (1648) – contrast in development of domestic and international law
  1. Domestic law: (1) The State’s sovereignty entitles it to bind its own citizens by enacting legal rules. (2) The way to legal nationalism was thus opened and led to the major codifications of private law of the 19th century.
  2. International law: (1) The State’s sovereignty can be voluntarily self-limited by means of agreements with other States. (2) Each contracting State has a duty to give execution to the international agreements it has entered into.
  • The ancient ius gentium was thus replaced by the ius publicum europaeum , a body of rules negotiated by the states, with the aim of binding the contracting states themselves, but not their citizens.
  • Customary law is set apart both at the national and at the international level, although it does not disappear completely but operates in the interstices of law laid down by nation states (for example to interpret it, or to fill its gaps). Ius gentium = concept of international law within the ancient Roman legal system considered to be universally applicable to all nations and peoples, especially non-citizens (type of customary law) Ius proprium (medieval period) = statutory law of a town or a local custom, in contrast with ius commune , the latter having an integrative role (subsidiary to ius proprium ) Comparative law
  • The existence of plurality of legal systems itself constitutes the reason for their comparison. This comparison aims to “measure” similarities and differences between legal systems. In this regard, one can speak about comparative law. Comparison: between classification and qualification
  • Comparative law is situated within the wider realm of comparative disciplines that investigate the similarities and dissimilarities of different cultural or social phenomena.
  • For an extended period, the emphasis was placed on the intuitive recognition of similarities that illuminated shared characteristics. But gradually, the quest for unique characteristics commenced, contemplating and systematically applying a tertium comparationis to establish connections of similarity and dissimilarity.
  • Tertium comparationis : triadic relation between two objects (a and b) and a certain quality (T)
    • New definition of similarity: a and b are similar with regard to T if both share that quality, although both to a different degree
    • For example, to say that two brothers are alike in being beautiful (classification) does not imply that they possess the same degree of beauty: one of them may be even more beautiful than the other (qualification)
    • Beyond an objective point of view similarity must be accompanied by corresponding dissimilarity (a conceptual distance to identical properties). If T is a property of a and b, but both to a different degree, we can argue that they are both actually different with regard to T (subjective judgement).
    • For example, where two violinists are said to possess a similar sound, it may be difficult for some to perceive, inducing them into thinking the opposite. Complex comparisons: family similarity and the idea of an idealtypus
  • Social concepts cannot be defined by indicating the closest category ( genus proximum ) and its specific distinguishing characteristics ( differentia specifica ). Thus, Wittgenstein argued that many concepts can only be explained by giving examples.
  • However, examples alone do not help us to structure and understand reality. In order to avoid misleading or impossible classifications, Max Weber introduced the concept of an ideal type ( Idealtypus ) as a means of describing social realities like “feudalism” or “capitalism”.
  • For example, the ideal type of feudalism serves as a simplified model that captures the core elements of the feudal system, making it easier to study and compare historical instances of feudalism across different societies, i.e. reality.
  • Cryptotypes : hidden formants which lawyers apply without being aware of their presence (implied silent knowledge). The cryptotype can be unveiled through a comparative analysis with another legal system, especially when the same rule is clearly stated in that system.
  • For example, in Italy, there is a custom for harvesting wild fruits, which is limited by an explicit law. In Switzerland, both sources are expressed by one article in the civil code. Unification and functional approach
  • In the late 19th century, an increasing number of comparative lawyers turned their focus towards the alignment/harmonization of national legal systems via a process of unification.
  • Its assumption that only similar things could be compared led to rather a narrow concentration on statutory law and on the legal systems of Continental Europe.
  • Unification is only possible when significant initial differences exist, and any thorough investigation aimed at unification must acknowledge and consider these distinctions. Legal transplants
  • A legislative mechanism through which a law from one country is applied, with relatively few modifications, in another country, aiming to minimize disparities between legal systems and promote their alignment.
  • However, rigidity or deeply ingrained presumptions within the legal scholarship and the case law of the receiving country can actually lead to a rejection crisis in that country, ultimately hindering their intended purpose and turning into significant legal challenges (see R. Sacco). Micro-comparison vs Macro-comparison A. Microcomparison (focus on specific legal problems): a comparison between legal systems based on the operational solutions that they give to the individual practical problems that must be addressed and resolved by the law. B. Macro-comparison (focus on general questions): a comparison between legal systems on the basis of their different constitutional and institutional features, as well as the legal mindset of the jurists associated with each system. Legal families (micro/macro-comparison)
  • Groups of national laws - connected by a number of characterizing features (ex. private law).
  • Pros: highlight the similarities
  • Cons: underscore the differences Legal traditions (macro-comparison)
  • Whereas entire legal systems are slotted as members of a particular family, different legal traditions can interplay within one and the same legal system.
  • The most obvious examples are the so-called “mixed legal systems” of Scotland, South Africa, Quebèc, and Louisiana, where common and civil law traditions interact very openly. Reasons to look for similarities or differences
  • Comparing differences and similarities can be used to find the cause of a certain effect through a process of elimination in which a common denominator is found for situations where this effect occurs, and which is absent in situations in which the same effect does not occur.
  • For example, if it is debated whether a lower speed limit should be introduced for road traffic, it will be helpful to know which other countries have introduced such a speed limit, and whether or not road traffic accidents have declined since the law was changed.
  • However, the disparities among legal systems and their unique historical, economic, social, geographical, political, and cultural settings frequently pose significant challenges when drawing reliable conclusions about how specific legal regulations will function in contexts different from their place of origin! Convergent and divergent comparisons (Jürgen Osterhammel) A. Convergent comparison: contends that individuals in various societal contexts have devised comparable fundamental models of socialization and similar problem-solving strategies → The purpose of the enquiry (Erkenntnisziel). B. Divergent comparison: operates under the premise of a universal history, but it recognizes that this history can be organized by discerning distinct paths of progress. Purposes of comparative legal enquiries (Erkenntnisziel)
  • Unifying law
  • Solving particular problems
  • Applying foreign law
  • Facilitating choice between legal systems
  • Understanding law Steps of comparative enquiries (investigations)
  1. Selection (what will be compared?)
  2. Description (of the law and its context in the legal systems under consideration)
  3. Analysis (explaining differences and similarities, learning between legal systems)

Lecture 4

COMPARATIVE LAW AND THE EUROPEANIZATION OF PRIVATE LAW

The ancient world

  • Aristoteles’ Politics: may be considered one of the founders of western comparative law. He examined the governmental structures in numerous Greek city-states, widely advocating the comparative method.
  • Gaius’ Institutes: described what ius proprium , ius commune and ius gentium were about.
  • Justinians’ Institutes: described what ius naturale was about.
  • Collatio legum mosaicarum et Romanarum : how Roman law aligned with the principles of the Mosaic law. The early and high middle ages
  • Marks the entry of the Germanic people into the Roman empire. In the Kingdom of the Burgundians two «codes» were produced (late 5th and early 6th centuries), Law of the Burgundians and Roman Law of the Burgundians.
  • The Canon law case : the primary canonical sources were lacking, especially in the realm of what we refer to as private law. Therefore, complete segments of Roman Law were integrated into the canonical system (ex. Romano canonical procedure). Despite that, differences between Roman law and Canon law remained.
  • Italian legal scholars have become accustomed to citing differing customs and statutes of the Italian city-states. When they could not reconcile them with their knowledge, they merely acknowledged their divergence.

Civil law jurisdictions

  • The basic characteristic of such jurisdictions is that they have fully implemented the doctrine of separation of powers , the origins and genesis of which are traced to the French Enlightenment political philosopher Baron de Montesquieu (1689-1755), who advocated a division of political power into three lines:
    1. Executive: entrusted to the government and the administration
    2. Judiciary: entrusted to courts
    3. Legislature: entrusted to the Parliament, which is the only state organ holding the power to adopt new legal rules or to change or repeal the existing ones (prevalence of statutory law)
  • The core of private law is gathered and systematically organized into a civil code:
    • Code civil (1804)
    • Bürgerliches Gesetzbuch (1900)
    • Codice civile (1865, 1942) Common law jurisdictions
  • In contrast to the continental ius commune , the English common law did not rely on a fundamental text to be dissected by scholars and taught at universities; instead, it evolved organically through the operation of a royal judicial system over time.
  • The Norman conquest of England (traditionally marked by the battle of Hastings in 1066 ), was followed by the development of a new common law during the reign of Henry II (1154-1189), which, by the middle of the thirteenth-century, amounted to a full-fledged legal system.
  • The political and juridical unity achieved by England already in the 11th century prevented the ius commune of continental Europe from expanding. Moreover, the tenets of the French revolution could not gain ground in England, because democratization of politics had already been achieved through the civil war ( 1642 - 1651) and Glorious Revolution ( 1688 - 1689).
  • As a result, common law develops through a case approach by courts ( precedents ), not upon acts approved by the Parliament (statutes), particularly it is not codified. Judge-made law is typically expressed through the rule of “ stare decisis ” (“to stand by things decided”), pursuant to which precedents are binding for courts.
  • The US and UK legal systems share an extensive bulk of commonalities, especially two different components: common law and equity, which reflected two judicial hierarchies. Their co- existence caused more and more complications, to the extent that the US overcame this dualism, followed by the UK through the Judicature Acts of 1873 and 1875.
  • The English common law system evolved gradually from royal jurisdiction, aiming to maintain peace and provide an alternative to feudal lord justice. Litigants could seek the king's intervention through written orders called writs. Specific writs were created for different types of cases. However, the rigid formalism of common law led to gaps and injustices, prompting appeals to the sovereign (Royal Chancery). Consequently, the Lord Chancellor and later the Court of Chancery developed its own jurisdiction known as equity , which aimed for fairness and consistency in decisions, becoming a rival to common law (favored by Parliament). This conflict escalated during political events like the civil war and glorious revolution. Ultimately, King James I's decision favored equity, leading it to transform into a proper legal system. The advent of national law ( ius patrium) and the ideal of its codification
  • During the seventeenth century, the universalism of the ius commune was increasingly challenged by the growing complexity of the interplay between the sources of Roman law and the many strands of local law, which caused a tremendous lack of legal certainty; an extreme legal particularism was widespread.
  • Thus, in the eighteenth-century, there was a strong advocacy for codification of national laws. The trend toward a nationalization of private law coincided with the drive to make it more systematic and straightforward, a principle strongly advocated by proponents of natural law.

Lecture 7

NATIONAL AND INTERNATIONAL LAW

Private international law

  • Example: Suppose a contract is concluded in Italy between a French party and a German party. The question arises whether applicable to the contract will be the Italian law, or the French, or the German. Such collisions of laws are addressed by a branch of each legal system, which is called international private law.
  • Private international law may, in turn, be subdivided into a procedural part (which court is competent to hear the case and which law governs the proceeding) and a substantial part (which law rules the rights and duties of the parties and decides how the case is to be adjudicated). In fact, it is very possible that a national court decides that while it has competence to hear the case, the substantive law to be applied is not that of the forum ( lex fori ), but that of another country ( renvoi ).
  • There’s also the tendency to uniform private international law by means treaties between nations, regarding both its procedural and substantial dimensions (ex. EU member states). Uniform law
  • Uniform law comes into existence when many states intend to have identical rules in their own legal systems.
  • The instruments (sources) of uniform law are either:
    1. International conventions: oblige states to change their own legal systems accordingly.
      • One of the most successful instances of uniform law is that of the United Nations Convention on the International Sale of Goods (CISG), established in 1980.
    2. Legal transplant (model laws): not binding ( soft law ) but command a wide consensus and, therefore, are voluntarily mirrored by national legislators.
      • In the US, the push for a uniform commercial law resulted in the adoption of the Uniform Commercial Code (UCC), established in 1952. International conventions and model laws
  1. Institut international pour l’unification du droit privé (UNIDROIT): established by the League of Nations in 1926.
  2. United Nations Commission on International Trade Law (UNCITRAL): established in 1966.
  3. European Law Institute (ELI): established in 2011.

Lecture 8

EUROPEAN UNION LAW ( acquis communautaire ) History of the European Union

  • Concept of a transnational unity, with the goal of attaining peace and liberty for European citizens.
  1. Paris Treaty (1951-1952) = European Coal and Steel Community (ECSC)
  • The Treaty on the Functioning of the European Union (TFEU)
  • General principles drawn by the ECJ
  • They are directly applicable not only to Member States but also to their citizens ( van Gend en Loos case from 1963). B. Secondary sources (Art. 288 TFEU)
  • Regulations: general application, binding in their entirety and directly applicable in all EU Member States
  • Directives: binding as to the result to be achieved, but leave to the national authorities the discretion in choosing form and methods of application
  • Decisions: binding legal act that either may be of general application or may have a specific addressee
  • Recommendations and opinions: non-binding acts The Court of Justice of the European Union (CJEU) a) Court of Justice: deals with requests for preliminary rulings from national courts, certain actions for annulment and appeals. b) General Court: rules on actions for annulment brought by individuals, companies and, in some cases, EU governments.
  • If a private individual or a company has suffered damage as a result of action or inaction by an EU institution, action can be taken against them in two ways:
  • Indirectly through national courts (which may decide to refer the case to the Court of Justice)
  • Directly before the General Court Advocate general
  • The advocate general participates in the court cases and may question the parties, after which they craft their opinions (not always needed). It is only after their opinion (not binding) that the Court of Justice starts to make its judgment.
  • Arts. 19 and 252 TFEU state that the Advocate General must act with complete impartiality and independence. The supremacy of EU law over the national laws
  • There had been an initial clash between the ECJ and national (Constitutional) Courts. However, today it is a shared principle that EU law is always to be preferred regardless of whether it was approved before or after the conflicting national law (ECJ, case Costa vs. Enel, 1964).
  • The European Union and the Member States are considered distinct and autonomous jurisdictions, each of them having its own system of sources. Nevertheless, the competence to interpret and apply EU law lies above all with national courts (direct applicability), which can the resolve doubts about its interpretation by issuing the preliminary ruling , i.e. suspending the judgement and referring the interpretive question to the ECJ.
  • When Italy signed the first Treaty, it transferred competence to the European institutions with regard to certain subject matters and policy areas and, as a consequence, accepted that European law has precedence over Italian law (so-called supremacy). Ius communitatis = set of legal rules dictated by the EU (ex. treaties, regulations, directives)

Ius commune europaeum = set of principles and general rules that national legal systems have in common for historical reasons or related to their trade [soft law projects (ex. DCFR, PECL, PICC) and ECJ decisions]

Lecture 9 and 10

THE EUROPEAN COMMON CORE OF NATIONAL PRIVATE LAWS ( acquis commune ) History and concept

  • In recent decades, the idea that national laws share a common core that may be deemed European has gained a growing consensus and has been developed in different ways.
  • Starting from the 1980s, the prospect of a European qualification launched by the Parliament induced some study groups to draft projects on European private law.
  • These works, which to a certain extent were to demonstrate similarities with the model of the contract restatements drafted by the American Law Institute, have been based on comparative research, with the aim of finding the best solution for achieving the harmonization of the law.
  • Therefore, this constitutes a law beyond the state , which may be defined as European and scientific. European because it represents the common core of the Member States' national legal systems and reflects their historical foundation rooted in Roman legal tradition. Scientific because it was made by private law scholars through the application of doctrinal methodology. Draft projects of EU private law
  • The projects were drafted according to the usual standards of the legislature and they resemble a true civil code. They are referred to as principles solely because they are not binding in a positivistic sense, they do not belong to an individual legal system, and they are precise in their content and pertinent to a would-be enforcement. Nonetheless, they have proven to be effective as model laws. They may be therefore considered sources of soft law , which functions within the realm of interpretation, complementing and offering an alternative to national law. European restatements and model laws regarding contracts
  • Scientific projects about the European codification of private law were focused quite exclusively on contract law , which is the field of private law that more naturally fits internationalization and harmonization. The most successful project of a European and scientific private law is the Principles of European Contract Law (PECL), aka “Lando Principles”.
  • PECL’s analogous features are shared by the Principles of International Commercial Contracts (PICC), which, however, being prepared by the UNIDROIT, go beyond a pure European dimension and constitute instead a project of global law.
  • The PICC is a modern rationalization of the lex mercatoria , a collection of commercial customs that concern international transactions. Consequently, they exclusively address commercial contracts and therefore do not apply to consumer contracts, unlike the PECL that address both.
  • Both proved quite influential on national, uniform and EU law, which was enabled by the fact that they have been referred to in some civil codifications and they served also as a model for the codification of private law in countries of middle and eastern Europe, which recently entered the EU. Moreover, national courts referred to them in order to check new solutions and suggestions of national private law on a European level.

the leading Member States officially held that the proposal was in breach of the principle of subsidiarity (Art. 5 TEU). Consequently, the CESL legislative proposal was withdrawn (in 2014), which marked a turn in the making of private law at the European level. Acquis communautaire = specifically refers to the normative body of EU laws and policies Acquis commune = shared heritage or common elements within a community, without being limited to EU-specific matters (ex. national laws)

Lecture 11

COMPARATIVE LAW AND AFRICAN CUSTOMARY LAW

Western law and the law of surviving societies

  • Because of their economic, politic and cultural predominance, Western societies amounted to forge a Western paradigm of law , which tends to be identified with the law itself (the one and only). The risk is thus engendered that the features of their laws are turned into necessary and absolute requirements of law as such, so that any societal organization not matching Western standards may be deemed to be devoid of law at all (ethnocentrism).
  • The risk that western law is considered as the final stage of human history is thus also engendered (traditionalism).
  • It is highly disputable whether it is possible to infer that Western societies in the previous stage of their historical development might have had the same characteristics of primitive peoples. Particularly, it is contended whether law necessarily requires an institutional authority to be in charge of its enforcement and, in that case, what requirement such authority should meet. The first question has long been answered in the affirmative and the State and its officials have been identified as the central authority that law must be enforced by. However, experience shows that law may well be encountered in primitive tribes or indigenous peoples which do not acknowledge central authorities in charge of its enforcement. African customary law and comparative legal studies
  • In Europe, the systematic examination of foreign legal systems commenced during the 15th and 16th centuries, coinciding with the conquest of the Americas and the establishment of trade connections to the East.
  • It was only after a significant period, during the era of the Scramble for Africa (1880-1914), that focus turned towards the traditional legal systems of sub-Saharan Africa (Islamic law primarily governs North Africa).
  • The colonial authorities couldn't successfully impose their own legal systems on the native populations. Consequently, all colonial administrations were compelled to acknowledge and respect Africa's customary laws to some extent. Customary law
  • A particular conduct has been regularly repeated over an extended period of time. As a result, it generated an expectation within the broader community that it would be repeated in the future. This expectation could subsequently manifest as an obligatory right or duty.
  • The most problematic part of of this equation is the translation from fact to obligation since, according to the old maxim, fact cannot of its own accord become law ( ex facto non oritur ius ).
  • Custom is subject to alteration and seems to evolve without a clear purpose, often appearing arbitrary in its progression (random). The positivist viewpoint held that law originated from the

orders of a sovereign authority, making it rational and intentional in nature. As a result, custom was regarded as a primitive system, considered less deserving of examination compared to genuine «law». Since the loosely organized African political entities did not conform to European notions of statehood, they were not deemed sovereign, and as a result, they were believed to lack a legal system. Traditional African law and sacredness

  • In Africa law is linked to the supernatural, north of the Sahara it is linked to the divine, and south of the Sahara it is linked to the sacred. However, there is no sharp contrast between what is Islamic and what (in a different sense) is sacred-magical. Traditional African law characteristics
  • diffuse power law (decentralized legal authority)
  • unwritten rules (rather oral traditions, customs, and precedents)
  • wisdom often transmitted by voice (considered a form of scholarship and science)
  • process and final decision often ignore the written (disputes are often resolved through mediation, negotiation, and community involvement) The Colonial Encounter
  • Colonial standards provided the criteria for the study of custom, and these have proved difficult to shake. Throughout Africa, European laws have constituted the basic laws of the land and customary laws were applied only as matters of exception.
  • By its very nature, customary law stood condemned. As a pre-legal order, custom was considered to be no more than conformity to tradition. Relations between European laws and customary laws
  • European laws represented therefore the constant comparators for customary law, as the ideals to which it is expected to conform.
  • Accordingly, courts could refuse to apply customary law if they found it incompatible with natural justice, equity, morality, or public policy.
  • The fundamental rights and freedoms of Europe were to be the basis of the colonial legal order. The Transformation of Customary Law into a Western Legal Form
  • Indigenous customary law is primarily preserved through oral tradition, with very limited exceptions. The absence of written laws presents a formidable challenge to the Western idea of justice, which is based on the assumption that courts must apply a fixed set of rules.
  • The transformation commenced where oral customs were documented in written form to provide the judiciary and administration with official texts (ex. Code of Zulu). Nevertheless, when an oral legal tradition is converted into written form, the rules undergo subtle and irreversible alterations (due to inaccurate transcription and translation). Problems connected to oral laws
  1. The creator is typically unknown, having faded into the distant past, and there is no way to reference an authoritative original source.
  2. Whether intentionally or unintentionally, individuals inject their own personal interpretations into the information they communicate.
  • For analytical purposes, anthropologists distinguished between two different societies:
    1. Acephalous societies: the only method for dealing with disputes involves individuals taking matters into their own hands, where aggrieved parties must either resort to an outright contest of strength or participate in a negotiation process (persuasion). Rules do not play a decisive role in determining the ultimate result.
    2. State societies: the ruling elites possess complete authority over the instruments of power, allowing them to wield institutionalized force to ensure adherence to their decisions.
  • Broadly conceived, customary law embraced both general and specific 16 rules, the former being associated with disputes about relationships and the latter with particular rights or values.
  • In small village communities, customary law was considered to be no more than ‘a broad and flexible basis for discussion’. It was never ‘inviolable and imperative’. Decolonization (1960s)
  • One of the main demands put forward by African nationalists was the unification of the colonial judicial system, that operated on the basis of two parallel systems of courts and law. The one structure, imported from Europe, primarily served the needs of the state and the colonial settlers, while the other structure, based on recognition of traditional authorities, served the immediate domestic needs of Africans.
  • Another demand was to give customary law a greater role to play in new post-colonial legal systems, but all too often it was regarded as an obstacle to achieving the two major goals of independence: national unity and modernization. Legal pluralism (John Griffiths)
  • Legal pluralism is a specific viewpoint that has emerged from a profound dissatisfaction with legal positivism and its belief in the state's exclusive control over all legal institutions.
  • In fact, studies on legal pluralism conducted in the field revealed that the state's authority was not as extensive as positivism suggested, and in everyday life, the formal legal system was often treated as a secondary, not a primary, source of regulation.
  • The central concept in legal pluralism is the semi-autonomous social field: which can be any social unit like a village, family, church, or workplace. Since individuals may belong to multiple fields simultaneously, they can be bound by concurrent and conflicting obligations.
  • Nevertheless, positivism presupposes the necessity for a clear distinction between legal and non-legal norms, with legal norms being considered to possess ultimate authority. The implications of pluralist research
  1. Official customary law (altered): typically found in texts produced by state authorities, such as statutes, codes, judicial precedents, and certain restatements. It is more likely to have deviated from actual social practice in order to serve some ulterior purpose.
  2. Living customary law (authentic): the law that is actively followed and practiced by its subjects.

Lecture 12

LAW AND SOCIETY

The functions of law

  • The basic idea is that every society needs to have rules ( no society without law ). In fact, the assembly of individuals in a society requires the establishment of a certain degree of self- organization, which is provided by law.
  • According to T. Hobbes, the negotiation of a social contract would have marked the foundation of society, where men agreed to exchange a certain degree of their own freedom for the advantages of mutual cooperation.
  • The reasons why law exists are to be identified in its social functions:
    1. Negative function: law serves the purpose to prevent and to solve conflicts among the members of a group (impeding the disturbance of society).
    2. Positive function: law provides guidelines of behaviors deemed to be beneficial to the survival or rise of a group (strengthening the cohesion of society). Law and religion
  • As pointed out by H. Patrick Glenn, each legal tradition is founded upon a substrate of religious nature. In some cases, we can identify some elements in the religions that are the basis of the law. Both law and religion may be therefore understood as techniques of societal control.
  • In the history of the western legal society, the Enlightenment of the 18th century marked a pervasive secularization of society and the increasing replacement of religion with the state’s legislature. Juridification of Western society
  • The replacement of religion’s social authority with a state constitutionally based on the rule of law commenced a large process of juridification of Western societies. The state started to intervene in areas of social life which had previously been left to the freedom of single individuals and groups. But it must be considered that law still had to compete with religion and other systems of private ordering to hold a grip on such societies, which therefore maintained a considerable degree of pluralistic attitude. Mute law
  • Law and language are strictly connected. At its historical origin, law consists in a corpus of oral traditions, which are passed down through generations. At a certain degree of its development, law tends to be reduced to writing and embodied in a text which makes it stable. In all these forms of transmission, law is conveyed through linguistic signs, whether oral or written.
  • It has however been suggested that law may have preceded language, since legal rules can be acknowledged and followed even by people who are not able to conceptualize and convey them through language (mute law). According to Rodolfo Sacco, mute law is that which nature taught to all living beings. Animal law
  • If law is explained in terms of behavior taken by members of a group, its human nature may be questioned. The question is raised whether some animals, in particular those who are able to gather in organized groups, could be potentially vested with rights and duties.

Lecture 13

LEGAL FACTS AND LEGAL ACTS

Structure of norms

  1. Unilateral: act performed by the declaration of intent by a single party (ex. will).
  2. Bilateral: manifestation of mutual agreement between two parties (ex. contract).
  3. Multilateral: (ex. companies) A. Patrimonial: the intent of the party or parties is driven by an interest that can be evaluated in economic terms (ex. contract). B. Non-patrimonial: the intent of the party or parties is driven by an interest that cannot be evaluated in economic terms (ex. will and marriage). A. Inter vivos acts : usually aimed at regulating the interests of the parties while they are still alive B. Mortis causa acts : carried out in order to make a disposition of the author’s property that is to take effect after their death A. Illegality of a legal act: when it violates or circumvents a mandatory prohibition. B. Invalidity of a legal act: when it is affected by a legal pathology.
    • Voidness (or nullity): entirely or partially ineffective right from the beginning ( ex tunc ), regardless of whether or not any of the parties has disaffirmed it.
    • Avoidance (or annulment): occurs when the aggrieved party has the possibility to disaffirm such act. o Affirmation (or confirmation): of a voidable legal act is generally allowed, but with the condition that the reason for annulment has ceased to exist.

Lecture 14

COMPARATIVE CONTRACT LAW

Origin of contract law

  • For an extended period, legal rights obligations were determined by an individual's affiliation with their family, kin-group, or tribe of origin, rendering contracts in the modern connotation unnecessary.
  • Even in instances where transactions occurred, there was no requirement for an intricate body of contract law.
  • The progression of advanced societies has thus far involved a shift from a state of fixed social positions to one characterized by contractual relationships. Contracts in civil law
  • In civil law jurisdictions, a contract is an agreement meant to bind the parties (donations included).
  • Contracts allow consumers to purchase goods and services. Contracts allow businesses to organize themselves and to trade goods and services both with other businesses and with consumers. Contracts in common law
  • In common law jurisdictions, a contract is a bargain (exchange).
  • Gratuitous promises are not contracts (if not made by deed). Common law recognises a promise to be legally binding if it is contained in a deed under seal. A seal may be affixed to a contract by placing a red sticker on the paper or simply drawing a circle with «LS» ( locus sigilli ) stamped on it. The deed then takes effect upon delivery.
  • Gratuitous bailments are not contracts. A bailment occurs when a person (the bailor) transfers possession of an item of property to another (the bailee).
  • Consideration (main element of a contract): is something of value (promise or forbearance) which each party gives to support their side of the bargain. If only one party offers consideration, the agreement is not legally binding and thus unenforceable. Contracts and Obligations
  • A contract is essentially a source of obligations.
  • For example, the contract of sale (the contract having as its object the transfer of the ownership of a thing or the transfer of other rights in exchange for a price).
    • Obligations of the seller: to deliver the thing to the buyer, and to warrant the buyer against eviction and defects in the thing sold.
    • Obligation of the buyer: to pay the price within the time and in the place fixed by the contract. The formation of contract
  • Offer and acceptance are perceived as statements of intent (declarations of will), generated by both parties and dispatched to each other (offeror to offeree).
  • An invitation to treat allows the other party to make an offer. Whereas in an offer , there is usually only acceptance or rejection of it, making it legally binding by entering into a contract.
  • Any form of statement or conduct by the offeree is an acceptance if it indicates agreement to the offer. Silence or inactivity does not in itself amount to acceptance. Irrevocable offer
  • Jurisdictions which generally allow the withdrawal of an offer, stipulate, however, that the offeror can voluntarily bind himself to his own offer, which thus turns irrevocable.
    • Civil law: it suffices that the offeror unilaterally promises to keep the offer open.
    • Common law: a proper contract shall be concluded between the negotiating parties, which is called option (if gratuitous, it must be made by a deed). Contract of option
  • An option is a preliminary contract through which one party (option issuer) binds himself to his own offer and the other party (option holder) is given the right to close unilaterally the deal.
    • Call options: give the holder the right to purchase an underlying asset at a specified price.
    • Put options: give the holder the right to sell an underlying asset at a specified price. Time when a contract is closed
  • In commercial practice, individuals must determine precisely when they become bound to a contract and, as a result, assume their contractual rights and obligations.
    • Civil law: the contract is formalized when the acceptance is notified to the offeror (knowledge rule).
    • English common law: when the acceptance is dispatched by post, the contract is formalized at the moment the acceptance is posted (postal rule). The offeree bears the risk of revocation from the offeror only for the extra period between the arrival of the offer and the dispatch of the acceptance. For revocation to be effective, the postal rule doesn’t apply. Good faith in common law