Comparative Law
Professor Pedro A. Malavet
Class Notes Part One
(Last Updated: January 22, 2002)
I. Introduction to Comparative Law
A. Overview of the Civil Law system, 1-27
What is Comparative Law?
Comparative law is by definition the study of foreign law. It is comparison of law, not really a field of substantive law.
It is more often than not, descriptive. But, it can also be truly comparative.
Example. The public prosecutor, procurator, in France, is a career civil servant. Their function is nonetheless very similar to the elected American District attorney. -CB-1
We will thus cover:
I. An Introduction
II. Comparative Method in US Practice
III. Foreign Legal Education
IV. Foreign Legal Professions
V. Historical Basis: Europe
VI. Revolutions and Codes
Coverage Part 2:
VII. Legal Interpretation
VIII. Substantive Rules
IX. Structure of Civil Law Systems
X. Judicial Review
XI. Procedure
XII. The Future of the Civil Law
Why Comparative Law?
1) Different approaches to law
2) Practical
3) Examples of possible solutions
4) Legal Unification
5) Sociology of Law
System vs. Tradition
1) Civil Law System: an operating set of legal institutions, procedures, and rules. CB-3
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 ...
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.
"Us" and "Them"?
"A lawsuit in the United States is often a traumatic experience for a German business.[ ] To be involved in an American lawsuit is a nightmare for most German businesses."–CB-10
In dealing with a German client, the American lawyer ought to be aware that the client my view the U.S. system of litigation as inefficient, expensive, and indeed fundamentally unjust, if not uncivilized.–CB-10
As I mentioned in class, this refers, among other things, to the view that American law is made backwards, i.e., going from the specific case to the general legal proposition. The idea that American law is somewhat unsophisticated. These are some of the charicaturistic views of the law. Just as we often have misconceptions about foreign systems, they may harbor some of their own about ours.
Decadence of Comparative Law in the US
1) Insulation of American Law? (more the rejection of natural law).
2) Historical Jurists: Law must grow spontaneously in the life of the people. (paradoxical?)
3) Analytical Jurisprudence. Law is a sovereign prerogative.
4) Self-sufficiency of local law. (Nationalism/ Regionalism)
–CB-15-16
Convergence/Divergence
Philosophies of Convergence
1) Return of the
Jus Commune
2) Legal Evolution
3) Natural Law
4) Law as Superstructure
5) International Transactions
6) International Integration
7) Simplicity and Certainty
CB-16-20
Strategies of Convergence
1) Unification of Law
2) Legal Transplants
3) Natural Convergence
CB-20-23
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. –CB-53
B. What is Comparative Law? 28-54
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.
CB-page 53
I like the previous quote, because it illustrates the purpose of today's session: to point out the possible uses, pitfalls and complexities of Comparative Methodology.
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.
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. . .
Rudolph B. Schlesinger, et al., Comparative Law 1 (5th ed. 1988).
The "Psyche" of [European?] Comparative Law, CB-28
"Legal Science"
Natural Law, both secular and religious
"Positive Law"
Customary Law
Legislation
"Common Laws"
(Remember, this means laws in common).
Roman
Canon
Objectives of Comparative Law CB-29
Practical
Sociological
Political-Cultural
Personal? "I have no other reason than that it pleases me to compare them." (Applicable to both bricks and law.)
A. Practical:cb.-29-30
1) Transnational law practice;
2) Drafting/implementing International agreements;
3) Unifying law, harmonization;
4) Policy, i.e., legislation and legal reform.
"General principles of law"
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."
Objectives of Comparative Law CB-29
Practical
Sociological
Political-Cultural
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." -CB-31
Objectives of Comparative Law CB-31-32
Practical
Sociological
Political-Cultural
1. International Understanding
2. Understanding a Culture
Transnational Law Practice, CB-32
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, cb-33
Scientific Methodology
- "Constitutional courts exist in some European nations but not othersin Italy, for example, but not in France."Is comparative in only an illustrative sense. CB-34-35.
Illustrative
Explanatory
Explanatory vs. Prescriptive
Empirical Observations
Japanese Legal SystemA Cultural Comparison
A. Concept of Law in Japanese Culture
B. The Role of Law in Japanese Society
C. The Interplay of Law and LanguageSubtle and complex: probably one of the biggest challenges of comparative law.
CB-37-40.
Legal Inertia?: One View
Legal rules, once created, live on. They are frequently remote from the experience and understanding of non-lawyers, and are kept in existence by factors such as the absence of effective machinery for radical change, by indifference, by juristic fascination with technicalities, and by lawyers' self-interest.
One of the most striking features of legal rules is their power of survival. CB-43.
Legal Inertia? Another View:
"Some of the old is preserved among the mass of the new. But what is kept of old law is highly selective. Society in change may be slow, but it is ruthless. Neither evolution nor revolution is sentimental. Old rules of law and old legal institutions stay alive when they still have a purposeor, at least, when they do not interfere with the demands of current life"; History of American Law (New York, Simon and Schuster, 1973), p. 14.CB-43, fn.
Laboratories of Comparative LawCB-45-46
Policy Objectives: to use as reference
Better Understanding of a problem
Evaluation of one's own institutions
Legal Transplants. CB46-47
1) General Respect for Donor system
2) National Pride
3) Language and Accessibility
4) History
Hortatory Comparative LawCb. 48-50
"Cover" to criticize your own system
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.
Law as Legal Systems
Legal Rules (cb.-50),Rule Fixation? (cb. 51).
Legal Systems
Legal Extension
Legal Penetration
Legal Culture
Legal Structures
Legal Actors
Legal Processes
Legal Systems, cb.-51
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, cb.-52
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?
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. CB-page 53
C. Case Illustration of the Comparative Method, 54-69
Art. 177.
The master is answerable for the damage caused to individuals or to the community in general by whatever is thrown out of his house into the street or public road, and inasmuch as the master has the superintendence and police powers of his house, and is responsible for the faults committed therein.
Art. 2315
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Facts (CB-55-57)
Circumstances of the Assault
What Songy (Assistant Building Mgr.) knew
What Lynch (Building Manager) knew
Charge to the jury on
Negligence
ordinary care
reasonably prudent person
burden of proof
The court did the following types of legal analysis:
- Textual (CB-57)
- Contextual(CB-57-58)
- Historical (CB-58-62)
- Evolutive (CB-62-64)
Contextual Analysis
Chapter 2: Of Free Servants, Book I, Title VI, Of Master and Servant.
"The position of an article in a code is more important than the position of a provision in a statute, because a code is conceived of as a complete and systematic compilation of co-ordinated principles of law; a common law statute is not so considered and need not be systematic." Fn. 11, CB-57.
Noxal Liability
Note that noxal comes from the Roman term Noxa, meaning liability of the master for the acts of his slave (or children under potestas).
It is, in this context, synonymous with delictum, something for which a penalty might be imposed, and damnum, damage;
Could also mean "the thing that caused the damage".
Berger, Encyclopedic Dictionary of Roman Law. pp. 600-601.
CORPUS JURIS CIVILIS:
Compilation of Justinian's Digesta, Codex and Institutiones, supplemented by the Novellae.
1) CODEX: there are two: 529, 534 a.d., compilation of laws from prior codes and constitutions, eliminating repetition and obsolete rules;
2) DIGEST: mostly opinions of jurists that had been issued as responsa;
3) INSTITUTES: a basic law book intended for educational purposes, succinct statement of the new law;
4) NOVELLAE: special statutes, decisions or instructions issued by the Emperor after the code. From the Imperial Constitutions.
Sources of the Louisiana Code
RomanJustinian
French Code Napoleon (1803-1804)
Code Louis
Ordinances D'AguesseauPothier,
Domat
Spanish
Fuero Juzgo (634)
Fuero Real (1255)
Las Siete Partidas (1265/1348)
Recopilación de Leyes de los Reynos de las Indias
La Nueva Recopilación
The court did the following types of legal analysis:
Textual (CB-57)
Contextual (CB-57-58)
Historical (CB-58-62)
Evolutive (CB-62-64)
Evolutive (CB-62-64)
"In civilian jurisdictions new wine sold in old bottles is not a deceitful trick. It is inherent in the evolutive construction that is essential to making a code live and work."
Caselaw
Simmonds v. Southern Rifle Club (CB-62)
Miller v. DeRusa (CB-63)
DeHart v. Travellers Ins. (CB-63)
Finney v. Banner Cleaners & Dryers (CB-63-64)
Thompson v. Commercial National Bank (CB-64)
This is the end!