Comparative Law

Professor Pedro A. Malavet

Class Notes Part One

(Last Updated: August 29, 2007)

First Session: an Overview of the Course

My Rules
My idiosyncrasies
Mandatory Attendance, Daily Roll
Class Participation is at least 20% of the final grade
Practical Project
Exam

Exam
Take Home
3000 word limit
To be turned in on or before the date set for the exam.

I. Introduction to Comparative Law

What is Comparative Law?
áComparative law is by definition the study of foreign law. It is comparison of law, not really a field of substantive law.
áIt is more often than not, descriptive. But, it can also be truly comparative.
áExample. The public prosecutor, procurator, in France, is a career civil servant. Their function is nonetheless very similar to the elected American District attorney. —
 
A. Definition:
The Comparative Method
            . . . Comparative Law is not a body of rules and principles. Primarily, it is a method, a way of looking at legal problems, legal institutions, and entire legal systems. By the use of that method it becomes possible to make observations, and to gain insights, which would be denied to one who limits his study to the law of a single country. P. 15.
 
A. Definition:
The Comparative Method, 2
            Neither the comparative method, nor the insights gained through its use, can be said to constitute a body of binding norms, i.e. of “law” in the sense in which we speak of “the law” of Torts or “the law” of Decedents’ Estates. Strictly speaking, therefore, the term Comparative Law is a misnomer. It would be more appropriate to speak of Comparison of Laws and Legal Systems. . . P. 15.
                        Rudolph B. Schlesinger, et al., Comparative Law 1 (5th ed. 1988).
 
We will thus cover:
1. Comparative Method Generally
2. Special Hazards in Comparative Law
3. Overview of the Civil Law Systems
4. Comparative Method in U.S. cases
5. Foreign Legal Education
6. Foreign Legal Professions
 
Coverage Part 2:
7. Roman Law Roots of Civil Law
8. Local Codes and Canon Law
9. The Codification Process
10. The Modern European States
11. Structure of the French Legal System
12. Judicial Review and Modern Constitutionalism
 
System vs. Tradition
1) Civil Law System: an operating set of legal institutions, procedures, and rules. (Merryman)
2) Civil Law Tradition: set of deeply rooted, historically conditioned attitudes about the nature of the law, about the role of law in the society …
3) Relationship: The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.
 
B.1. Origins of Comparative Law, p. 16
•Ancient, in many ways
•Modern version dates to 19th Century and was centered in France
•The abandonment of the old ius commune and the development of national legal systems made it a necessity. P. 17.
 
Objectives of Comparative Law CB-17
– Practical
– Sociological
– Political-Cultural
– Personal? Because it is entertaining
“I have no other reason than that it pleases me to compare them.”
(Applicable to both bricks and law. P. 25)
 
A. Practical, pp. 17-18
•Transnational law practice:
•paying special attention to understanding the opinion of foreign counsel or
•the needs of foreign or foreign-born clients
2) Understanding foreign law
•For domestic use
•For private foreign use
•Because of public international law
3) Mortgage example, note 12, p.29-30
 
A. Practical, pp. 18-20
3. International Unificiation or Harmonization of Law
–In the US? Absolutely, e.g., NAFTA and WTO
–Abroad: Essential to understanding the European Union and its member states
 
Harmonization in the EU
Note 5 at page 27:
Article 3(h) of the Treaty of Rome establishes major goal of the Community (now the Union) as “the approximation of the laws of the Member States to the extent required for the proper functioning of the common market.”
 
“General principles of law”
pp. 19-20
art. 38(1)(c) of the Statute of the International Court of Justice directs the court to apply inter alia “the general principles of law recognized by civilized nations.”
art. 215 of the Treaty of Rome establishing the EEC provides that the noncontractual liability of the Community is to be governed by “the general principles common to the laws of the Member States.”
•Practical Objectives

•4. Developing Policy
•Mostly focusing on domestic legal reform
•What works abroad that might work for us?
 
B. Sociological Objectives of Comparative Law, pp. 20-21
Sociological:
            “Hence Comparative Law is the method by which the legal sociologist explores the world’s legal systems with a view to establishing general principles relating to the role of law in society.” —p. 20.
Generally referred to as “legal penetration” or “rule of law” projects and studies
 
C. Political/Cultural Objectives of Comparative Law, pp. 21-24
–Political-Cultural
•International Understanding
•What does specific legal language in a treaty mean? Do the signatories really understand what they agreeing to? Do they really agree at all?
 
2. Understanding a Culture
–What is the role of law in a culture? Will I be able to enforce a contract? Keep the land I purchased?
 
C. Transnational Law Practice, p. 22
1) Better Service to US clients/Liability
2) Trade in Services Sector of the economy is large
3) “Bridging the Cultural Gap,”
            “By the cultural gap I mean the tremendously important, yet sometimes hidden, barriers to international business and trade that are created by differing cultural, social, political, and economic systems.”
E.g., K, Language, p. 24

MAP: Europe Today

MAP: Europe in Roman Times

MAP: The Fall of the Roman Empire

MAP: Europe, circa 900 a.d.

MAP: Our World

B. Comparative Methodology

C. Comparative Methods, p. 30
1. Scientific Explanation: compare
(a) Description
E.g., Constitutional Courts Exist in some European nations but not others, in Italy, for example, but not in France
(b) Explanation:
adding meaning to the description (usually in ways that the fit the frame of reference of the observer, in this class, seeing law from an American perspective)

Scientific Methodology, p. 32
Using empirical observation to generate or test general explanatory propositions of law
Distinguish this from mere fact-finding required by law, especially criminal prosecution and civil litigation

Conclusion: Explanation is the Key, p. 32
Explanatory comparative law is most useful (especially to U.S. students) because it attempts to be predictive of certain legal results and how legal processes work.

Lawyers [Graphic]

Functionalism in Comparative Law, pp. 33-34
In English: comparing apples to apples and oranges to oranges
How does the system being compared approach the legal question/problem that you face
Be prepared to have to look outside the legal categories that you find familiar

Laboratories of Comparative Law(p. 34)
Note the first example: the European Union compared to U.S. federalism
Other types of federalism: Australian, Canadian, Swiss, and German federations
Germany in particular takes a very interesting approach to “states rights”
Spain allows its states to “customize” the level of regional (state) autonomy they want

Separation of Powers

Laboratories of Comparative Law, p. 35
Simply put, looking at entire SYSTEMS to see how other people solve certain problems, and analyze their experience and attempted solutions
Policy Objectives: to use as reference
Better Understanding of a problem
Evaluation of one’s own institutions, indeed, critical evaluation of one’s own systems

Legal Transplants: Why?(p. 36-38)
Why adopt someone else’s laws?
1) General Respect for Donor system
2) National Pride
3) Language and Accessibility
4) History

Caveat: Law and Development(p. 38)
Well-intentioned and funded program to help underdeveloped countries
A failure to understand legal culture (and culture more generally) produced failure
Damaged the interest in such programs

The Failure of Law and Development, Merryman, p. 39
These characteristics: unfamiliarity with the target culture and society (including its legal system), innocence of theory, artificially privileged access to power, and relative immunity to consequences, have been typical of many law and development proposals and programs for the third world.
Put another way, we were probably incompetent to propose or execute third world law and development action, we were encouraged (by our own self-image, by the foreign assistance psychology and by third_world conditions) to do so, and we did not suffer the consequences of having done so

Merryman’s Proposal, p. 39
an opportunity to rejuvenate comparative law, to enrich law and society and to strengthen the role of the social sciences and the humanities in legal scholarship. It casts the U.S. scholar in the third world in a more modest and appropriate role, as in_quirer rather than adviser, and puts the developing nation in the more dignified position of host rather than target.

Political/Ideological Comparative Law(p. 40)
I can provide “Cover” to criticize your own system
It can also provide some very interesting examples across the political spectrum

Glendon: Hortatory Comparative Law, p. 40
Compulsory vs. Rhetorical Law Making
Compulsory: Law is a command backed up by organized coercion (by the state).
Rhetorical: Exhortative.
What you ought NOT to do vs. What you OUGHT to do.

Glendon, p. 42
In England and the United States the view that law is no more or less than a command backed up by or_ganized coercion has been widely accepted. The idea that law might be educational, either in pur_pose or technique, is not popular among us.
The rhetorical method of law making appears not only in the great conti_nental codifications, but also, here and there, in all sorts of contemporary European legislation. It is most es_pecially evident in continental family law

C. Special Hazards in Comparative Law

Chapter 2: Law as Legal Systems, p. 45
Legal Rules:
defined in the way you would expect, a comparison or perhaps merely reading of laws
Rule fixation:
A focus of black-letter law and very specifically on substantive black-letter law

Legal Systems (pp. 46-48)
In U.S. terms, think of substantive AND procedural justice, legal rights and their enforcement
Legal Extension
Legal Penetration
Legal Culture
Legal Structures
Legal Actors
Legal Processes

System vs. Tradition
1) Civil Law System: an operating set of legal institutions, procedures, and rules. (Merryman)
2) Civil Law Tradition: set of deeply rooted, historically conditioned attitudes about the nature of the law, about the role of law in the society …
3) Relationship: The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.

Legal Systems, (p. 46-48)
Legal Extension:
Social reach of law, the aspects of social life that law proposes to regulate,
Legal Penetration:
Social grasp of law, the extent to which law actually regulates social conduct,
Legal Culture:
those historically conditioned, deeply rooted attitudes about the nature of law and about the proper structure and operation of a legal system that at large in a society.

Legal Systems, p. 46-48
Legal Structures:
Legislature, Executive, Judicial branches.
Legal Actors:
professional roles played by participants in the system: advocates, notaries, police, judges, administrative oficials, legal scholars, etc.
Legal Processes:
legislative and administrative action, judicial proceedings, the private ordering of legal relations, and legal education.

What is Comparative Law? (p. 49)
In brief, an adequate description of the civil law requires attention to all dimensions of the legal system and a de-emphasis on rules of law. This is particularly disagreeable because rules are so easy to find and to read, while it is very difficult to find reliable information in law libraries about legal extension, legal penetration, the legal culture, and the structure, composition, and operation of the law machine.

Japanese Legal System(p. 49)
A Cultural Comparison
Concept of Law in Japanese Culture
Obviously, from our perspective, relatively new.
Societal customs provided more control than law prior to the 20th century.

Japanese Legal System
A Cultural Comparison
The Interplay of Law and Language, P. 49.
Translation is often quite inadequate
Understanding language nuance generally, and technical legal language in particular, pp. 52-53

The Concept of Law in Japanese Culture, p. 50
The official legal system
The cultural practices that affect law
Law abiding? Non-litigious?

Bar Passage in Japan
1949: 2,512 / 265 / 10.5%
1950: 2,755 / 269 / 9.8%
1960: 8,302 / 345 / 4.2%
1970: 20,160 / 507 / 2.5%
1980: 28,656 / 486 / 1.7%
1985: 23,855/ 486 / 2.0%
1990: 22,900 / 499 / 2.2%
1992: 23,435 / 630 / 2.7%
2002: 41,459 / 1,183 / 2.85%
(update)

B. Language Difficulties(p. 53)
“Words are very rascals,” says Shakespeare’s Clown in “Twelfth Night.” . . . The flavor of a sentence is apt to change or disappear in a translation; and just this flavor may change the aspect of the case.

Think of this even in English vs. Legal English or
American English vs. British English

Language Difficulties
Multiple official languages in certain countries, e.g., German, French and Italian in Switzerland, p. 54
Multiple official languages in international agreements, p. 54
English “Debt”: duty to pay a sum certain
French “Dettes”: generic category of “obligations” which includes contractual and extracontractual obligations (torts to us)

Language Examples, p. 54
The German word eventuell, for instance, does not mean eventually, but perhaps
French transaction [may mean] compromise, while the French compromis means arbitration clause.

Divorce? P. 55
Romans used the term divortium in the sense of the American term divorce
Spain and the Latin-American countries the canonical law, opposed to a dissolution of the marriage bond, was applied directly or indirectly to matters relating to marriages, and therefore the word divorcio was used in the sense of separation.

“Law” vs. “Right”, pp. 55-56
Latin, French, Italian, Spanish and German, there is only one word for “law” and “right” (ius, droit,
diritto, derecho, Recht).
Term denoting a code or statute (loi, legge, Gesetz)
Even more complex cultural difference, p. 56
In China and Japan “right” was not a known concept
Duty and obligation were common, but not defined as we might define them

East African Law, p. 56
“The essence of customary law may be that even litigation is essentially a negotiating process, the goal of which is the wise pacifying of both par_ties rather than the effectuating of ’rights’ of an in_jured party. The aim would therefore be to provide a satisfactory framework for future relations whether or not the ’command’ of the judge con_forms to prior notions (if any) of general rules. And it may follow that there is a large and essential element of ’unknowability’ about customary law and that an at_tempt to make it known in the sense that noncus_tomary law is known, is to change its charac_ter quite radically.”

Code Translations, pp. 57-58
As the Swiss code provisions show, this can be extremely dangerous

Differences in Classification, p. 59
Conflicts of Laws
Private International Law
Notaries, pp. 60-61
In pretty much the rest of the planet, legal professionals
Monopoly over certain transactions: meaning that notarial form or intervention is required
Have the power of the state to certify
Are public records holders
Collect certain taxes (usually those related to the transactions that they formalize)

Lawyers/Population/Notaries

C. "Corruption”? P. 62, 64
“A recent empirical study of Rio de Janeiro lawyers found that 80% of those interviewed customarily made grease payments to the clerks.... In some states, payment of both “speed money” and “delay money” is common. Payments to make the entire file disappear are not infrequent in some areas.”

“Corruption”? P. 64
“. . . judges, police chiefs, and other local officials in Latin America are notoriously underpaid and provided with inadequate working facilities; judges in smaller cities are usually isolated from each other for months or years at a time—there are no annual conferences or conventions; and finally, their tenure may well depend on maintaining their local political contacts and friendships. Not surprisingly, then, while adequate social and economic legislation (such as labor and water laws) is not difficult to find in Latin America, in many cases it is ignored, inefficiently enforced, or implemented in a manner that unduly favors a given element of society.”

Foreign Corrupt Practices Act, p. 65
1972 U.S. Law
Are bribes deductible?
Can they get you thrown in jail?
The answer to both questions depends on where you are.

Law in Action, 66-73
Background on specific uses of and need for studying an entire legal system, not just its substantive rules
Read as background to discuss Chapter 4 next week.

Law in Action, 66-73
Background on specific uses of and need for studying an entire legal system, not just its substantive rules
Read as background to discuss Chapter 4 next week.

This is the end!