2/9/2020

1

Comparative lawAn Introduction

Why are we doing this?

What are the advantages for law students in comparing legal systems?

2/9/2020

2

Practical benefits of Comparative law:

Comparative law aids legislators in writing laws.

Comparative law aids lawyers in interpreting laws.

If no statutory provisions can be found, the judge must apply customary law, failing which he must decide according to the rule he would adopt if he were a legislator.

This is the rule in most of Europe, and in Turkey.

In a case like this, it is often very useful for the judge, like the legislator, to look to foreign laws.

2/9/2020

3

Comparative law helps lawyers to challenge assumptions about our own systems

When we learn law, we are often taught that the way things are in our own legal system is the way that they have to be.

A law student who studies comparative law will learn to respect other legal systems and may be able to understand his/her own system better.

Comparative law is necessary for the unification of law.

E.g., harmonization of laws of members of the EU.

UNIDROIT – worked on law of sale of goods

UNCITRAL – harmonization of trade lawConvention on Contracts for International Sale of Goods (CISG).

2/9/2020

4

Legal Traditions of the World

Families of legal systems

Civil Law

Common Law

Mixed (Civil and Common Law elements.)

Religious or customary law

(e.g., Islamic law, Hindu law, African customary law.)

2/9/2020

5

Civil law systems are often further divided into

Romanistic

Germanic

Scandinavian (maybe)

Far eastern law (Japanese and Chinese law)See: Konrad Zweigert, Hein Kötz, An Introduction to Comparative Law (3rd ed. 1998.)

Romanistic

Includes all of those systems which are based on or descended from the French Code Civil of 1804.

Includes France and most French-speaking countries, much of Latin America Plus, there are several mixed systems – like that of the US state of Louisiana and the Canadian province of Quebec – in which the civil law part of the mixture is descended from the Code Civil.

2/9/2020

6

Germanic

Includes countries that were influenced by the Bürgerliches Gesetzbuch (or BGB) of Germany and German scholarship:

Includes German-speaking countries, much of Eastern Europe.Turkey can be considered a part of this group.

Other “families” have been suggested. One scholar suggested grouping legal systems into

Romanistic-German

Common law

Socialist law

Others (Islamic law, Jewish law, Hindu Law, Far Eastern Law, African Law.)

2/9/2020

7

Civil Law vs. Common Law

Note: This will not just be a rehash of what we learned in Introduction to Common Law. Those of you who did not take (or are not now taking) that class should see me.

Common Law

Developed from English traditional law (though no longer a system of “customary law” in the way that this term is understood in civil law countries.)

Jury system

Adversarial procedure

Importance of judge-made law and judicial decisions to interpret statute law

Codification either less important than in civil law or actually seen as undesirable.

Practical rather than scientific

Judges generally more important than academics

Traditional division between “law” and “equity.”

2/9/2020

8

Why did English law develop separately from law in the rest of Europe.

The history of the common law begins in 1066, when the Normans invaded and conquered England.

Until very shortly before the Normans arrived, England was divided up into many small independent kingdoms.

When the Normans invaded, they conquered the whole country and established a strong central government.

The Norman king established royal courts and a single, unified (or common) system of law throughout the country.

2/9/2020

9

This might not seem very remarkable. Modern states always have a unified system of law.

However this was not the case in Europe until relatively recently.

France did not have a real national law until nearly 500 years later, and the law was not totally unified even at the beginning of the 19th century.

There was no unified German law until the late 19th century. (Germany was not a unified country until 1871.)

2/9/2020

10

When these countries developed unified systems of national laws in the 19th century, it made sense for them to base them (mostly) on the Roman law which had been taught in European universities for hundreds of years, rather than to choose one kind of local customary law out of many.

As we will see later, the fact that European countries first created unified national laws in the 19th century is responsible for the different character civil law has from common law, which has developed slowly over roughly 1000 years.

2/9/2020

11

But for now the point to get is that English lawyers did not need to sit down and create a new national law in the 19th century, because a national “common” law already existed.

Comparisons: Why are scholars more important in civil law than common law?

As the common law developed in England, a class of jurists formed in London. These legal practitioners organized themselves into several independent “guilds.”

Four of these, which are called “Inns of Court.” still exist today.

2/9/2020

12

In most of Europe, lawyers were trained by universities.

In England, lawyers did not go to law school. Instead, these organizations were responsible for the training of lawyers.

The lawyers all lived, worked and studied together in these guilds.

The education was very practical, with younger lawyers learning from older ones.

See Zweigert and Kötz, Comparative Law (1998) pp. 191-192

Today, law students in England study at university. However, the Inns of Court still perform the function of training barristers.

2/9/2020

13

Today, if you want to become a lawyer in a common law country, you have to go to law school at a university.

However, the focus on practical education, rather than theory, remains.

It would be very unusual for a US law school to hire a teacher who did not have some practical experience working in his/her field.

Because civil law is systematic and abstract, it is a law dominated by scholars.

Because common law is practical and concrete, it is a law dominated by its most senior practitioners. These are usually its senior judges.

Remember, in common law countries, one usually has to be an experienced lawyer before becoming a judge.

2/9/2020

14

This practical focus also makes legal scholarship less important.

Because law is seen as being a practical tool for solving problems, the people who actually work in that system are regarded as being the most qualified to understand it.

Civil law students are taught “[t]hat law is a science, and that the task of the legal scientist is to analyze and elaborate principles which can be derived from a careful study of positive legislation into a harmonious systematic structure. The components of this system are believed to be purely legal, a set of ultimate truths related by rigorous deductive logic. Hence, the legal scientist’s inquiry is almost exclusively directed towards the legal norm. . .” .

2/9/2020

15

Though lip service may be paid towards the relevance or utility of facts derived from non-legal disciplines, such as anthropology, sociology, political science, or economics, it is hard for the legal scientist to escape the feeling that consideration of non-legal facts detracts from his search for absolute principles and the true nature of legal institutions.”

Woodfin L. Butte, Stare Decisis, Doctrine, and Jurisprudence in Mexico and Elsewhere, in The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions 315 (Joseph Dainow ed. 1974). Quoted in James G. Apple and Robert P. Deyling, A Primer on the Civil-Law System.

“The common law lawyer, by and large, simply doesn’t care whether such a [comprehensive, logical, legal] system exists or not. He is busy deciding cases, with the aid of judicial precedent and with or without the aid of statutory enactment of rules in particular cases. . . .

2/9/2020

16

If from this process scholars can begin to see bits and pieces of a system emerging, he is interested in it as a potentially useful tool; but he does not regard the discovery or the development of such a complete and logical system as essential or even important in his continuing task of achieving justice in an infinite number and variety of individual cases.”

John H. Merryman & David S. Clark, Comparative Law: Western European and Latin American Legal Systems 213 (1978). Quoted in James G. Apple and Robert P. Deyling, A Primer on the Civil-Law System.