Summary with Comparative Law - Siems - 1st edition

Why is there a need to compare laws? - Chapter 1

Most lawyers are completely trained in the law of their own jurisdiction. When they leave the borders of their own country, they can feel lost. Comparative law aims to address this problem. But where do you have to start? And which method should you apply?

1. Why compare laws?

How to get into comparative-law thinking

Becoming interested in comparative law happens most of the time quite naturally. Assume that a lawyer from country A is dealing with a tricky problem and someone suggests that it can help to look at the neighbouring country B. The lawyer finds a similar rule in country B and starts wondering why it’s slightly different. This is how the lawyer will slide into comparative law, he will start to do research at the background of the domestic and foreign legal rules and might even look at country C.

Purposes of comparative law

Comparative lawyers often use different classifications when they discuss the objectives of comparative law. Three categories can be distinguished:

  • knowledge and understanding: knowledge of foreign laws is valuable where these laws are relevant for the domestic legal system. Knowledge of foreign laws can make lawyers of students reflect on their own laws. Next to that, comparative law broadens the understanding of how legal rules work in context.

  • use of comparative law at the domestic level: foreign law can be an important aid to the legislator. It can provide models of how well different sets of legal rules work in addressing a particular problem. Also judges can make use of foreign law. In some cases conflict of law rules may require them to do so, but in other cases, judges may wish to take the foreign ideas into account. A potential problem may be that the context of foreign law may be different and there may problems concerning national sovereignty.

  • use at the international level: legislators at international level may use comparative law when they deal with questions of unification of the law. Also judges who apply international or supranational law often need to consider the diverse domestic origins of the rules.

2. What belongs to comparative law?

Status quo

Harold Gutteridge states that a literal interpretation of term ‘comparative law’ is impossible, since it does not have its own subject-matter, such as contract or family law. This problem is reflected in the status quo of comparative law. The situation in comparative law is potentially confusing. According to some authors comparative law is a label for apply a comparative method to legal research: comparative study of law or comparative legal studies. Other authors have a more substantive focus, comparative law is regarded as a body of knowledge.

‘Law’ discussed in this book

The main focus of this book/summary will be on the method of comparative law, so not on the specific legal families or areas of law. Although, these latter topics will not be ignored, comparisons of specific areas of law can be interesting and useful.

Three dimensions of comparative of ‘comparative law in context’

The figure above suggests that knowledge about law can be thought of as a three-dimensional space. The height refers to the different areas of law. The width refers to the differences between legal regimes. This can be countries, but also supranational regimes, like EU or rules of transnational law. The depth addresses different approaches to legal knowledge. Many lawyers are primarily interested in one ‘dot’. However, it is crucial for a comparatist to appreciate all three dimensions.

Structure of this book

Part I deals with the traditional comparative law. Part II is called ‘extending the methods of comparative law’. Part III is on ‘global comparative law’. Part IV goes further in the presenting of ‘ implicit comparative law’.

Practice questions

  1. How are lawyers becoming interested in comparative law?

  2. What are the purposes of comparative law?

  3. What is meant by the status quo of comparative law?

  4. What are the Three dimensions of comparative of ‘comparative law in context’?

Which method should be used for comparing laws? - Chapter 2

1. Typical structure of a comparative paper

The traditional books and articles of comparative law often provide a guidance on how a comparative analysis should be conducted. The four following steps can be distinguished: (1) preliminary considerations, (2) the comparatist has to describe the laws of these countries, (3) she has to compare them and in particular explore the reasons for unexpected similarities and differences, and (4) she should critically evaluate her findings and if possible, making policy recommendations.

Preliminary considerations

Not all comparisons that involve particular legal questions are part of comparative law. For example, comparative law is not about comparing past laws with current laws. Most comparatives lawyers think that a comparative analysis should not start with a particular legal topic, but with a functional question. For example the comparatist should have asked how commercial disputes are solved, avoiding any legal terms in the description of this problem. A real life, socio-economic problem should be the starting point.

The core interest is in the laws of countries. So this excludes inter- and supranational laws on the one hand an on the other had regional and municipal laws. The comparatist has to check the availability of primary and secondary resources on the legal systems which he wants to compare. It is a good advice to start with the primary sources, like legislation and court decisions, which are published in the original language. Preferences should be given to countries whose language the comparatist can read. Also secondary resources, like academic books and articles, should also be consulted.
Another important question is how many legal systems the comparatist should include. A frequent suggestion is that three systems may be good. Choosing two countries may overemphasise the contrast between the systems an can lead to false results, whereas with three the comparatist is able to show what determines between the similarities and differences.

A difficult question is to assess in advance how the choice of the legal systems may influence the results in which the comparatist is interested. At the stage of choosing the legal system, the comparatist already needs to anticipate what type of differences and similarities she may be able to identify.
Which types of legal systems should be included in the comparison? The traditional comparative lawyers prefer legal systems which are neither too similar nor too different, like a comparison between a civil law and common law country.

Description of laws

The different perspectives may be adopted for describing a foreign law system. The comparatist may analyse it from her own perspective, she could aim to adopt the viewpoint of the other legal system or she could try to take a neutral stance. Traditional comparatist agree that the first one is not right, since we should not impose our own preconceptions on other legal systems. Regarding to the other two options, opinions are divided.

There is a disagreement on the question of whether or not translate foreign legal terms. If it is not straightforward to translate, the comparatist may also create neologism or develop ‘a socio-legal Esperanto which abstracts from the language which is used by the members of different cultures’. Foreign law should not be misinterpreted, so the suggestion is to keep the original foreign legal terms.

How to deal with foreign terms in practice? In a paper, the use of foreign terms may often be a matter of presentation: for example, the comparatist may simply clarify her translation by way of putting the original term in brackets. When teaching comparative law, it can be useful to mention the original term before translating them. Another point is that the reader should not be underestimated. When you use for example the word ‘judge’ for both the English and US law, the reader will understand that even though the same word is used, but that doesn’t imply that there are no differences between them.

The comparatist has to consider all law. Legal theorist and philosophers argue about the meaning of ‘law’, but the comparatist ahs to be pragmatic and treat as law that which the people of the legal system in question view as law. This includes the statute law, case law and customary law. Legal systems must be studied in their entirety, because across countries, problems may be addressed by different areas of law.
In addition to the positive law some further aspects need to be considered:

  • a comparative study should not only describe legal rules, but also explain their underlying theories and conceptions as well as scholarly writings,

  • the comparatist has to illuminate the historical, cultural, social and economic context of the law in order to who why these rules exist in a particular place,

  • she has to consider the law in action, following the functional perspective,

  • functionalism requires consideration of the fact that societies are juridified to a different extent, so the study also has to consider non-legal forms of social control and dispute resolution.

The comparatist has to consider whether she wants to address these three latter additional aspects in the descriptive section of her comparative paper. It can be useful to keep the descriptive part focused on the black letter law, and use everything else for the subsequent comparative analysis.

The comparative analysis

To do comparative law, the description of laws has to be followed by the identification of similarities and differences. A frequent approach is to distinguish between the formal and functional aspects. The formal dimension contains the legal rules. The functional dimension asks how the law actually works.

The second step of the analysis is to explain the differences and similarities. Particular considerations should be given to the unexpected results, for example when relatively similar countries have relatively different laws. To explain the differences, the comparatist has to take into account all three major fields of scholarship: humanities, social and national sciences. Two further explanations are sometimes suggested but it’s better to avoid them:

  • in the 19th century Sir Henry Maine, and other comparatists, took the view that legal systems went through a natural process of legal evolution. Yet today, such ‘comparative historical reconstruction’ is not regarded as acceptable as it marginalises the traditional legal systems

  • the concept of legal families is still popular today, and attempts are made to use it to explain particular legal differences.

In the today’s world it is most of the time a matter of institutional design whether countries have similar rules, like the fact that the belong to the same regional organisation, such as the EU. A functional view assumes moreover that the actual result of legal rules is often similar across countries, even where there is no apparent relationship between them.

The critical policy evaluation

As said, one of the reasons for comparative law is to get a better understanding of the legal world. In principle, also some policy evaluations may be provided, but how fair should the comparatist go? It is acceptable to evaluate the efficacy of a given solution or approach to a legal problem in terms of the cultural, economic, political and legal background of that particular jurisdiction.

A comparative analysis can be used to treat the foreign law as a test case of what might happen if the domestic law was changed accordingly. However, the foreign models will not always be suitable, because they may only work in the context of the other legal system. So models from other countries may be used, taking into account the differences in context. Another type of recommendation can be the unification of the law. This will raise questions like do the benefits outweigh its costs, which model should be chosen and how should the unification be implemented?

2. The functionalism and universalism in particular

Functionalism: the origins, use and consequences

Functionalism may be helpful for the analysis of non-Western societies, since it may be shown that informal structures within these societies fulfil certain functions equivalent to the state in the Western world. Comparatists mostly agree that a socio-economic problem should be the starting point of a comparative analysis. The advantage of this approach is that it provides the link between the different rules. So the shared purpose of these rules is the common dominator which allows a comparison of both the legal systems. This method is regarded as preferable to a strong positivist approach.
The last two decades the functional method has received a lot of support. Now, one can start with the way different legal systems deal with a particular problem and then compare these in terms of economic efficiency.

Functionalism requires comparability. So the first limit is that ‘incomparables cannot be usefully compared and in law the only things which are comparable are those which fulfil the same function’. Second, some the legal systems may need to be excluded from a comparative analysis. Comparisons must be between alikes. Political differences may make some comparisons fruitless. Third, certain areas of law are less suitable for comparative analysis than other, because they can be heavily influenced by distinct cultural values and socio-political peculiarities. Family law can be seen as an example of this, because it is closely related to sentiments and traditions, moral considerations and psychological influences.

The comparative law’s interest in finding commonalities

The idea that certain laws are common to all human beings has been a frequent topic. For comparative lawyers the question about universal law is an obvious point of interest. Legal universalism will be a problem for comparative law, since it would make comparisons obsolete. But, in reality, it is clear that legal rules are not completely uniform across the world. Comparative lawyers have searched how universalist ideas and comparative law can be linked. A suggestion may be to identify how far commonalities of legal rules confirm rebut universalism. The outcome was that functionalism and universalism are seen as complementing each other. Some comparatists suggest that similar practical problems lead to similar results all over the world. This was an idea by Zweigert and Kötz and is called praesumptio similitudinis. It should be noted that this statement is only made for developed countries. So there was a focus on Western countries, a functional perspective and a call for unification of the law.

Example of the Common Core project

This project is a good example of functionalism, universalism and the mainstream comparative law. The term ‘common core’ comes from a project organised by Rudolf Schlesinger, which was dealing with the formation of contract from a comparative perspective. Country experts were asked how their legal systems would solve a list of factual problems. The answers were used to produce a general report showing emerging themes of agreement, the ‘common core’, and the subsequent parts of the two-volume book reported the found details of the legal systems, but did not produce the initial working paper. In the mid-1990s this approach was picked up by European academics. The Common Core starts with a social problem by way of using hypothetical cases. It restricts itself to Western countries, in particular to the European. The organisers of the Common Law are not only interested in the actual results, but also how different elements of statutory law, case law and scholarly writings interact with each other in a specific legal system and how policy considerations, values, economic and social factors and the structure of the legal system may influence the outcome of the case. So, the approach is legal and practical.

3. The critical analysis

Simplistic approach

This first approach challenges the very idea of a blueprint. It has been said that the best approach may depend on the legal systems which are will be compared, the subjective abilities of the researcher and the affordability of the costs. It can be helpful to have a theoretical chapter before the actual comparative analysis. This approach is also suggested in other comparative studies. The traditional comparative method is also criticised for being too much focused on the positive law. The law needs institutions that enforce it. This enforcement is a problem where, due to high levels of corruption, the state law is ‘thin’. According to John Bell, comparatists should consider the role of institutions more generally.

Rodolfo Sacco means that law is an aggregate of various ‘legal formants’. Comparative law should not only consider the law, but also court decisions and legal scholarship. Sacco introduces the term ‘cryptotype’. This refers to the unformulated elements of legal formants, for example the mentality.
A more general response is that the traditionalist are negligent with respect to the cultural and socio-economic context of the law.

What can be concluded for this line of criticism? It raises important points, but not all of them are completely fair. It is true dat traditional comparative law focuses on positive law, but is not a necessary consequence of the main method of functionalism. It is important to notice that a comparative analysis that starts with a functional question would have to consult not only the law, but also the way it is enforced and how it is related to non-legal solutions. It is also clear that the traditional comparative research does not support a shallow description of statutory law, but it asks for a careful examination. A valid point of criticism is that the limitations of the tradition method can exclude a great deal of interesting research.

Focus on Western countries

The country-level analysis is based on the idea that legal systems are distinguished by nation states. This conception is however outdated, since international, transnational and regional legal orders are playing a crucial role today. Furthermore, the focus on states disregards the role of non-state law. On the other hand, it can not be said that countries doesn’t matter anymore.

The disregard of non-Western countries by traditional comparative law is hard to excuse. It can be said that these countries are too different to be compared, but in today’s globalisation non-Western societies often use terms and concepts which really lookalike. Moreover, the functional method can offer a feasible tool of comparison. The way different legal systems deal with problems will be diverse, but that is not a problem: it can be interesting to explain this diversity. To conclude, non-Western legal studies can be a part of comparative law and should not be marginalised into other area studies.

Critics of functionalism

A first line of attack criticises the focus on similarities. On the one hand it concerns the endeavour to identify functional equivalents. On the other hand, it has been raised against the presumptions of functional equivalents. A second key criticism is that it is regarded as unacceptable to assume that all societies face the same social problem. Thirdly, the idea that law serves particular functions has been challenged. Law-makers may have responded to some conflicting aims or they may have just offered a legal framework, being indifferent how it will be used. The critics show that functionalism may not work very well in some areas of law. However, a functional starting point can be used for comparing between Western countries.

3. Conclusion

The traditional comparative legal method has the benefit that it provides a guidance to how a comparative analysis should be conducted. However, as we have seen, the critics raise a number of valid objections. It concerns mostly the limitations of the traditional method, in particular that it is not suitable for all areas of law and for all countries of the world. A researcher should therefore justify why this approach is most suitable for his topic.
Most of the examples of this chapter concerned comparisons between two or more countries on a specific topic. This can be called ‘micro-comparisons’. This can be distinguished from ‘macro-comparisons’ which deals which legal systems as a whole. Of course, this both types overlap.

Practice questions

  1. How should a comparative analysis be conducted? What are the four steps?

  2. Which sources does the comparatist have to use?

  3. How many countries should the comparatist include?

  4. Which types of legal systems should be included in the comparison?

  5. Which perspectives can the comparatist use to describe a foreign legal system?

  6. How has the comparatist to deal with foreign terms in practice?

  7. Which aspects has the comparatist to consider when it comes to positive law?

  8. What is the formal dimension?

  9. What is the functional dimension?

  10. Which steps has to be taken in the analysis?

How to classify all the legal systems in the world? - Chapter 3

The idea of legal families is that the diversity of the legal systems all over the world is not random, but the countries share common features in terms of history, thinking and positive rules. Chapter 4 will discuss attempts to classify all legal systems of the world. This chapter starts with a critical analysis of the distinction between common and civil law countries. The reason for this is that common law and civil law are said to ‘constitute the basic building blocks of the legal order’ and to be ‘the dominant legal systems of the world’.

1. Terminology and origins

The words ‘common law’ and ‘civil law’ have different meanings. In the current context they are meant to refer to ‘labels’. The common law countries are, broadly speaking, based on English law and civil law countries are influenced by continental European traditions. Other meanings are related to this distinction. In a common law country we can distinguish ‘common law’ and ‘equity’. ‘Equity’ refers to those types of claims that had not been part of the original forms of action. ‘Common law’ can also refer to case law of a common law country. The term can also simply refer to the law that a wider range of people have in common.

The civil law tradition is based on Roman law. Three features are worth to mention:

  • universities supported the reception of Roman law,

  • the received Roman law was common law/ius commune,

  • enforcement of the law was kept under control of the state.

This version of civil law changed later on when states began to codify the Roman law. The most important was the French Civil Code. The civil law was also spread by colonial empires of the European countries. Countries like Japan and Turkey voluntarily transplanted major codes of the civil law.

The origins of common law are very clear. William the Conqueror, crowned in 1066 as King of England, used a feudal system of land ownership and a new court system to control the country and the unification of the law. The system was based on standardised forms of actions, called ‘writs’. They became the basis of the common law. The courts were centred in London, but travelling judges went all around the country. In the 17th century King James I was claiming ownership of the entire land, the Parliament intervened and a stronger protection of property rights emerged. The judges transformed the ‘writs’ in more substantive rules. Colonisation meant that the common law spread to parts of the world like the United States, Australia and India.

2. Juxtaposing civil and common law

The legal methods and sources of law

The main codes for civil law, commercial law, criminal law, civil procedure and criminal procedure emerged in the 19th century. According to common law, the lawyer Field drafted a code of Civil Procedure in the mid-19th century. Next to that, some US States have a Civil Code and the model law of the Uniform Commercial is adopted by all US States.

But there is difference between these codifications in common and civil law. The codes of civil law countries follow the idea of the Enlightenment and provides a clear, systematic and complete treatment of all parts of law. Even though, modern pieces of legislation can also deal with particular issues in a more ad hoc fashion way. The law-makers can still be seen as keeping the idea of codes alive. It’s been said that European law-makers focus on public-interest regulation and common law focuses on the market-failure regulation.

Today a common tool of civil law is to find the intention of the law-maker through the historical background, this is called ‘exegetical method’. When the will of the law-maker isn’t clear, the interpretation can be based on the objective purpose of law, this is the ‘teleological method’. Exceptionally, the judge can interpret the provisions extensively. In common law the interpretation focuses on the text, the ‘literal rule’, unless this would lead to an absurd result, ‘golden rule’, or when it would not address the defect of law had sought to remedy, the ‘mischief rule’. The main source of common law is case law.

In common law the trials are not only meant to solve an individual conflict, but they also have to develop the law ‘from below’. Previous cases are regarded as binding precedents. It has been said that common law judges are really creative and they are open to arguments from economics and other social sciences. They are working very ‘market-wise’. Civil law judges reason very different. They have more discretion in interpreting statutory law, but once it is completed, they are just to be law-appliers. The judge follows legal reasoning based on syllogism:

  • identifying the legal rule and how it should be interpreted,

  • subsuming the facts within these rules, and

  • applying the consequence of the legal rule.

The civil law tradition is associated with the concept of ‘learned law’. Countries professors write detailed annotated guides on the main codes. A predominant view emerges which is almost as important as the positive law. The courts of civil law consider academic writings, even if it is not a source of law. In common law the scholarship and practice are less intertwined.

Courts and the civil procedure

Civil law countries have different courts for different areas of law. There are regular courts on private and criminal law and there is often a variety of specialised courts. Common law countries used to distinguish between courts for ‘common law’ and ‘equity’. Nowadays, this distinction is mostly obsolete because a court would not dismiss a claim on this basis.

In civil law countries the possibility to appeal is extensive: the first level of the appeal courts re-examine the law and the facts as well. A second appeal to a higher court is also possible. In German law a ‘revision model’ is followed, in French law a ‘cassation model’. The French model only allows the higher court to squash the decision of the lower court and refer to it as to a new assessment, and in the German model it’s possible for the higher court to replace the decision of the lower court.

Traditionally, civil law courts are deciding by way of panels of judges, whereas in common law the individual judges are more prevalent. Nowadays, the structure of the court can also depend on the type of the case. In the civil law countries the organisation of authority has a hierarchical (vertical) ideal. In the common law a coordinate (horizontal) ideal is followed. Juries or lay judges play a role in both civil and common law, but they are more prevalent in the latter ones. A trial in common law is traditionally an oral event at which all evidence is received. In civil law countries, written proceedings are more prevalent. It has been said that the civil law judge is more managerial then the common law judge, which is more neutral. According to the role of the parties, the common law follows an adversarial system in which the parties are actively involved. In civil law countries the trials are less confrontational and more likely to promote compromise. There are also differences in the role lawyers play. In common law countries it is usually accepted that the lawyer focuses on the client’s interest. In contrary, the lawyers in civil law countries also have to act in the best interest of their clients, but there is also a strong emphasis on the public responsibility.

When judges decide in panels, two ways can be distinguished: the courts speaks with one voice or there can be individual concurring or dissenting opinions. Civil law courts use the first option (sometimes an exception is made for the constitutional courts) and common law courts use the second way.
A further distinction has to be made between the German and French judgments. German judgments have an academic style. The language is very technical and frequent references to the positive law are made. Moreover, previous decisions and academic writings are regularly used. In contrast, the French judgments don’t contain any references to academic literature and previous cases. The judgments are short and fill hardly more than one page.

In both civil and common law countries, the judgment are binding between the parties. An interesting distinction is that some legal systems allow ‘class actions’, which have effect for everyone within the class who does not opt-out. A typical feature of common law countries is that judgments not only decide individual cases, but they are also precedents for future ones, this is called ‘stare decisis’. In civil law countries the tradition is that previous court decisions are not binding and case law is not a source of law.

We can conclude that the separation between civil and common law is not always a clear-cut. However, courts operate differently in civil and common law countries. The individual points of variation are not somehow arbitrary, but they complement each other most of the time. Topics as the use of juries, form of civil proceedings and the style and effect of judgments have shown that they are all closely interrelated. It may be said that common law and civil law seem to be coherent bundles that can’t be mixed.

Comparative contract law

The topic contract law is very popular for comparative lawyers, because the systems seem to share the initial division of this area of law into questions like contract formation, and non-performance. In common law countries the starting point is case law, statute law plays a secondary role. In Civil law the analysis will start with the civil codes and also case law and special statutes play a role.

Most contracts are concluded by offer and acceptance. This is starting point in civil and common law countries. But in common law countries contracts are defined in a objective way, they require an exchange of promises. In civil law, on the other hand, more emphasis is put in the subjective element of a meeting of minds. According to the interpretation of contracts, common law countries use an objective starting point and in civil law countries preference is given to the intention of the parties. Another important difference is the doctrine of consideration. This means that a valid contract requires that the parties agree to exchange something valuable. When there is no consideration, there is no contract. This doctrine is only developed in the common law countries.

There is in civil law, in contrary to common law, a general principle of good faith in contract law. This general principle can be used to conclude contracts, good faith can ensure fairness. It is also used to strike down unfair contractual provisions. In common law countries good faith in contract law is a controversial topic. Yet, some legal tools of the common law countries have the same effect as good faith, for example the concept of ‘implied terms’.
Back to civil law countries, it would, however, be misleading to overemphasise the role of good faith. Good faith is not about morality, nor does it give unfettered discretion to the judges.

In the field of contractual remedies there are also some differences between civil and common law:

  • A fundamental question is whether the main remedy is specific performance or damages. In civil law the starting point is that each party can force the performance. In common law it’s exactly the opposite: you must pay damages if you do not keep the contract.

  • Another fundamental question is whether a claim for damages requires any fault on the part of the other side. In Germany there is often a shift of the burden of proof. Other civil law countries distinguish between types of contract and exclude damages only in the case of force majeure. On the other hand in common law, the starting point is strict liability.

  • Civil law and common law differ in their treatment of penalty clauses. Civil law countries allow penalty clauses. However, courts have some mean of control. Common law countries distinguish between penalty and agreed damages clauses, because agreeing on a penalty would be against the doctrine of consideration.

The main feature of the contract law in a common law country is that it places strong emphasis on the predictability of the results of a case. In contrary the contract law of a civil law country its principle of good faith has been related to Kantian principles of personal freedom of will and personal responsibility. These different are remarkable, since Western societies are fairly similar.

3. Critical analysis

The diversity in continental Europe

The legal systems of Europe can’t be regarded as modern versions of Roman law. The civil law countries even have rules which are the opposite of Roman law. There is even a big diversity between the civil law countries. Consequently, most classifications distinguish between a Roman and German model of civil law. Countries are differentiated by whether the main codes are akin to the French or the German models.

Differences between England and the United States

Even though, England and the United States are both common law countries, several significant differences can be identified. The constitutional structure of both countries is very different. The US has a written constitution and is a federal country. It has put a stronger emphasis on human rights. Criminal sanctions are more severe, the social insurance is less important, while the tax rate is lower than in other (developed) countries. There are also some different in the courts, the civil procedure and legal thought. The US is more ‘civilian’ than England. It has been said that the Code of Civil Procedure and the Uniform Commercial Code are influenced by civil law. The extensive legislation (which is maybe similar to the civil law countries) is seen as a typical feature of the US law. Regarding the doctrine of precedent US judges are usually more flexible than the English judges. In the US the jury still plays an important role, in contrast to England and other countries. It is a single event and the trial follows a strong adversarial tradition which is controlled by the parties and their lawyers.

It’s crucial for the parties in a American trial to be able to afford the best lawyers, because, in contrast to other countries, legal aid for civil cases is not available. Even the winning part has to pay his own costs. On the other side, the possibility of class actions makes that the winning party does not get only justice, but can also make a profit. In the US the selection of judges is democratically legitimised. In England the focus is on professional qualifications.
Furthermore, the US judges are in the role of guardians of the constitution. The judges are central players in a politically fragmented system. In England, judicial review of legislation isn’t possible, because the judges have to respect the primacy of parliament. Another division can be seen in the legal thought more generally. In the US the main trends, realism, society and economics have a big influence, in contrary to England where there is a focus on the black letter law. We can conclude that there are several fundamental differences between these two common law systems.

Western law instead of civil versus common law?

It is justified to talk about a comprehensive Western legal tradition, but the different countries are definitely different. This has to do with ideas like capitalism, liberal values, individualism, Christianity or the Enlightenment. It’s even to simplistic to say that the civil law, and not the common law, is based on Roman law. No legal system is entirely based on Roman law, because also own local traditions have played an role.

The distinction between countries with or without codes has lost its relevance. This is because in civil law countries the main codes are no longer seen to be the most important sources of law and common law countries are said to have reached the ‘age of statutes’. The legislative style in both civil and common law is more mixed. In areas like tax law or land law, both systems use precise and detailed rules. Other rules are drafted in a more principled fashion, this is not only in civil law, but also in common law. Words like ‘reasonableness’ and ‘unfair’ are frequently used. According to interpretation the clear division between civil and common law has also been challenged. English courts have moved away from a narrow interpretation. When it comes to the role of legal scholars, a strict common/civil law divide fails either. Duncan Kennedy identifies three globalisations of legal thought:

  • 1850-1914: based on German concept of ‘legal science’,

  • 1900-1968: the social, driven by French scholarship on the limits of positivism,

  • since 1945: policy analysis, neo-formalism and adjudication from legal scholarship.

4. Conclusion

We identified some interconnected similarities between the rules of countries of the same legal family. However, the more general conclusion has to be a more sceptical one. Many people say that comparison all too often proceeds through misleading or exaggerated dichotomies and binaries. This chapter has shown that this is also a problem for the division between civil and common law. We shouldn’t deny that the systems differ in many ways, but it can be misleading to regard this divide as the main tool to understand them.

Practice questions

  1. What are the different meanings of the terms ‘common law’ and ‘civil law’?

  2. What are the origins of the common and civil law?

  3. What are the differences between the common and civil law codifications?

  4. Which methods to understand the law can be distinguished in common and civil law?

  5. What are the differences between common and civil law regarding courts and judges?

  6. What are the differences between England and the US regarding the system of common law?

How to map the legal systems of the world? - Chapter 4

1. The background and purpose

Classifications are common in most of the academic disciplines. For example in linguistics you can distinguish between Indo-European, Afro-Asiatic and Sino-Tibetan. There are also classifications of religions, cultures and political and economic systems.

But why do comparative lawyers want map the legal systems of the world?

  • Classifications facilitate the description and understanding of foreign law,

It will give a benefit when learning about foreign laws: when someone has, for example, become acquainted with English law and he wants to study the legal rules in New Zealand, he doesn’t have to start from the beginning, since New Zealand’s legal system is based upon English law,

Legal families go further that classifications, which only provide an initial picture.

  • Being part of the same legal family does not ‘just’ mean that legal systems have a set of legal rules in common,

  • Legal families can help to predict the success of legal transplants,

  • The classifications can be used to show how legal similarities and legal differences are related to the non-legal ones.

2. Classifying the countries

The bases for classification

Jaakko Husa has stated that various legal families are based on things like: history, legal style, codification level, structure of court system, economical basis of law, role of tradition in law, philosophy of legal thinking, etc. The problem is that these criteria do not always lead to a clear division of the systems. So, a decision has to be made about some aspects that matter. Methodologically, two approaches can be distinguished: on the one hand, it has been said, that the legal systems have evolved historically into real types of family. But, on the other hand, the comparative lawyers have developed ‘ideal types’ of legal families. These starting points seem different, but the historical reasoning doesn’t mean that the legal classifications are permanent.

A review of the main classification

For this part of the summary you should check the book. Page 76 gives a nice table which displays how academics have tried to map the legal systems of the world.

The main commonalities

There are some constant features in the legal family classifications over the past one hundred years. The most prominent divide is the one between civil and common law. Within civil law, a distinction is made between the French-Roman and Germanic sub-families. The borders between civil and common law and the rest of the legal world are not entirely clear. An extreme view would be that civil and common law are a part of a Western legal family, distinct from all the other legal cultures and that all the other systems in the world have followed the civil and common ones. A predominant view would be: civil and common law are the most prominent in the West, but have also had some influence in other parts of the world.

3. Critical analysis

Overemphasis of differences

No one can deny that there are differences between the legal systems. Dividing the world into different legal families can give a clear view and will make you aware of the differences. Al though, there is a risk of a mistaken black-and-white thinking. In the previous chapter we’ve seen that the Western civil and common law have more in common than it divides them. Highlighting the similarities between the Western world and other parts is also possible.
It has been said that East Asian law is markedly different from Western conceptions of law. Law is seen as less important, because the society is mostly build on personal relations and networks. The formal standards are: consensus, harmony and goodness. Things like individual rights, the rule of law or formal legal reasoning are seen as alien. The only law is focused on criminal law and contract law is seen as unimportant. This seems shocking for someone who thought that all countries of the world have a similar understanding of the law. But when you visit a country like China or Japan, you will find out that these legal systems have codes and statutes similar to the Western countries. And next to that, the Chinese legal culture has changed enormously in the recent decades and the need for legal rules is increasing. This example shows that the view that there is law in the West and culture in the East can be really misleading.

Overemphasis of similarities

Chapter 3 already showed two examples of overemphasising similarities: civil law of continental European countries is diverse and England and the US are following fundamentally different paths. Now we will deal with the systems of Africa, Asia and Latin America. The countries of Africa and Asia are frequently classified as African law, (East) Asian law, or sometimes even Afro-Asian law. It’s not clear how meaningful these categories are. There are so many differences between all African countries that any description of all these systems as a single group will overemphasise similarity. Next to that, a common culture can play a role in some instances, but it is not necessarily that cultural proximity also translates into a legal one.

Latin American countries are usually seen as being part of the French version of civil law, because they were influenced by the French codes in private, criminal and procedural law and some limited influence from the German, Spanish and Portuguese law. Recent research has shown that calling the legal systems of Latin America ‘French civil law’ doesn’t do them justice. For example, the French judges had disregarded the strictness of the civil code and were creating judge-made law. In contrast, the courts of the former colonies found this unacceptable, since there has to be a strong separation between legislators and judges. The question is why Latin America still have the formal version of the French codes. Jorge Esquirol says: ‘Latin American societies are not European, only their jurists pretend to be’. Other research has explored that Latin America is not limited to the codes from Europe anymore.

The disregard of hybrids

a. The mixed legal systems

Hybrids are often equated with the mixed legal systems, but the mixed legal systems are only one of its sub-categories. Following the focus on common and civil law, the term ‘mixed legal systems’ is often limited to the legal systems which have been strongly influenced by both of these systems. The main examples are: Israel, Louisiana, Quebec, Puerto Rio, Scotland, Sri Lanka and South Africa. Some legal scholars have tried to identify legal systems which go beyond the mixture civil/common law. An example can be found on the website of the University of Ottawa. It uses the categories common law, civil law, customary law and Muslim law, and looks for mixtures between them. Most of the African and Asian countries are seen as being mixtures. For example Iran is seen as Muslim law with elements of civil law. The mixture of Western legal traditions and customary law has also been a general topic.

Four types of customary law can be distinguished:

  1. ‘living customary law’ is the original and unwritten version,

  2. textbook customary law: academics/state officials have tried to consolidate the customary practices,

  3. codified customary law, and

  4. judicial customary law: this is about the way judges make use of living, textbook and the codified customary law.

The Ottawa map doesn’t consider that most of the legal families taxonomies distinguish between German, French and Nordic civil law countries. This means that a lot of legal systems in Central and Eastern Europe can be seen as mixed civil law countries.

In general it has been suggested that in South-East Asia, Islamic, Hindu, Chinese, indigenous customary and European legal norms all play a role and that the idea of legal families ‘makes no sense whatsoever’, but the complex mixtures has shown that the idea that there has to be ‘one correct’ taxonomy of legal families has to be abandoned.

b. The horizontally divided legal systems

Another form of hybridity is the horizontally divided legal systems, also called ‘bijural’. This concerns differences between regions of a particular legal system. We can start again with the common and civil law. Cameroon, for example, has (through colonisation) been influenced by both English and French law. But, in contrary to the mixed legal systems, the division is spatial: the English common law has influenced the North and South West and the French civil law the other parts of the country. The horizontal divisions can also be related to customary, religious and political law. In Nigeria, for example, Islamic law is applied in the northern states, but Christianity in the southern ones. The relationship between customary and Western law in Africa can also be seen in a horizontal division, because Western law may be ruling in the cities and customary law can be dominant in the rural areas.

c. The vertically divided legal systems

The vertical division between areas of law is also called ‘legal polytheism’. To understand the difference between the vertically division and the mixed legal systems, there is a helpful device: Örücü’s ‘salad bowl analogy’. He distinguishes between bowls where the ingredients are a purée (‘covert mixtures’), where they are clearly visible (‘Italian salad bowls’) and where they are clearly separate (‘English salad plate’). The mixed legal systems (as discussed in the first subsection) are the first two types, because the entire system is in-between legal traditions. In the present part we will look at the ‘English salad plate’, in which one or more areas of law follow their own logic.

Most taxonomies focus on the topics of civil procedure, as regards the distinction between the civil and common law countries. Regarding criminal law, it has been said that the common/civil divide is here even sharper. The legal family may be fairly similar in both areas of law, but this is different if we go beyond the Western legal systems. In some Muslim countries, the private matters are dealt with by courts which are similar to the Western world, but the criminal procedures are being based on Islamic. We can talk about vertically divided systems. It has to be noted that just because a country adopts a set of rules for a particular topic, that does not mean that it would be justified to talk about a vertically divided legal system, especially when the main bases for classifications are the general features of legal systems and not the specific legal rules.

d. The parallel legal systems

You can talk about a parallel legal system when a legal system applies the rules of different legal traditions to different persons. For example, India, where different legal regimes are applicable to Hindus, Muslims and Christians. Another case of parallelism arises where citizens can choose between different legal regimes.

4. Conclusion

The previous and present chapter have shown that classifications into legal families not always provide an accurate picture. The question remains whether thinking about legal families does not cause more harm than good. Legal families have the aim of understanding the world’s legal systems, but in many instances a comparatist can be mislead by such categories. It is also possible to conduct comparative legal research without using the legal families. An alternative can be as follows: the starting point is a comparison between Germany, France, England and the US. Concepts like common or civil law are not used. One can discusses how these laws have influences other parts of the world en see if it was direct or indirect. Some countries can even be influenced by multiple foreign legal systems. The result will be a tree-like model.

Practice questions

  1. But why do comparative lawyers want map the legal systems of the world?

  2. Which criteria can lead to a clear division between the legal systems?

  3. What are the main legal systems?

  4. How can you overemphasise differences?

  5. How can you overemphasise similarities?

  6. Which four types of customary law can be distinguished?

  7. What is the ‘Örücü’s ‘salad bowl analogy’?

What is postmodern comparative law? - Chapter 5

1. From Bush to postmodernism

The former president of the US, George W. Bush observed that not everyone thinks the same way. The same words can mean different things to different people. Postmodern comparative lawyers have an interest in the way concepts and words are understood at home and abroad. They focus on differences, namely that apparently similar words and concepts often have different meanings in different legal systems. The postmodernist is said to start from the premise that reasoning, language and judgement are determined by inescapable and incommensurable epistemic, cultural, linguistic and moral frameworks.

2. The deep-level comparative law

Law as reflecting the jurisprudential concepts

Linking the legal philosophy and comparative law is not new. Over the years there have been many authors who wrote about it. These authors have in common their use of a conceptual approach in order to explain the differences between legal systems. It is also possible to go deeper in order to find the common structures. For example, Martin Shapiro’s study on courts had the explicit aim of moving beyond the descriptions towards a more general theory of the nature of judicial institutions. The question is how different these conceptual approaches are from the traditional comparative law. The difference is mainly a formal one: either start with a black-letter analysis of the law followed by more jurisprudential concepts, or adopt a jurisprudential approach from the beginning.

The law embedded in culture

a. The positive approaches

Postmodern legal scholars state that the law should not mainly be seen as a technical tool, but it has to be seen as part of culture.
Like literature and film studies are a part of the culture studies, it has also been said that comparative literature and film studies can be revealing for the comparative lawyers. Other scholars have referred to the connections between the law and religious studies and traditions. In some legal systems a cultural view may be particularly relevant. For example, Mautner starts his book with the law and culture of Israel and observes that Israeli law reflects the struggle over the shaping of the Jewish culture and identity’. Both criminal law and criminal procedure have been subjects of the cultural approach of comparative law. It has been suggested that the criminal trials should equally not be seen in just functional terms.

But there are a number of functional problems:

  • practical level: it might be difficult for a comparatist to be fully familiar with the entire culture of all the legal systems she wants to compare, so there is a risk of imposing unrealistic standards, and

  • there is the risk of treating a country’s culture and law as ‘coherent woven wholes’.

The comparatist has to be open as to the precise role that cultural factors can play in a particular legal question.

b. The normative approaches

Cultural aspects are sometimes used in a normative manner. A variant of this is the ‘cultural constraints argument’. This argues that differences between legal systems are ‘unbridgeable’, because laws are embedded in ‘unique national cultures’. The legal diversity is now presented in a positive way. Seeing that law is culture-specific will lead to tolerance, respect and appreciation of difference. On the other side, there is the apparent risk of cultural relativism. If we always had to appreciate the foreign laws as a part of another culture, this would also embrace dictatorial and cruel laws. The question is whether a view of law-as-culture may be used for the opposite purpose, namely to challenge a particular legal model. Watts makes the following suggestion: law is a ‘contextualised cultural phenomenon’ and comparative law is a way of questioning legal norms.

Law as requiring immersion

These views have in common the view that law is not seen as something that can plainly be understood as fulfilling certain functions. Recommending ‘immersion’ into a foreign legal system can have the advantage that it doesn’t start with a pre-defined concept of culture. The work of Richard Hyland’s is an example of such an approach, he calls it an interpretive method. The approach of John Bell is similar, he is using the term ‘immersion’ explicitly. He is also suggesting that we should understand the legal systems on their own terms. This means that you have to take the insider’s view on legal systems, becoming the voice of that system. However, it should be added that Bell also suggests that the description of foreign laws can be accommodated to make them understandable to the local audience. Curran discusses the concept of the immersion in detail, she acknowledged that total immersion impossible, because one’s own legal culture will influence one’s interpretation of foreign law. But, even though, the comparatist as an ‘outsider’ should have precisely the aim of understanding the view of an insider.

The writings of these authors are very important in stressing the limits of functionalist. While the view of law as requiring immersion is useful as general guidance of all the legal research, it doesn’t provide a specific comparative tool. This does not mean there is something wrong with this approach, indeed, some comparatists have expressed that we should think about comparative law as a variant of legal research more generally, not a unique and distinct method.

Law as legal pluralism

Another important view of deep-level and postmodern comparative law is that it argues that law has to be understood in a wide sense: as legal pluralism. This reflects also research in other academic fields like cultural, political, structural and socio-economic pluralism. Legal pluralists reject the view that only the state can make law, or even regard this as a ‘myth’. The social order is based on a variety of sources of normativity. Pluralism is in first instance between state and non-state legal orders and second, a plural situation occurs since the local and personal non-state laws are not pure any more, but they are related with other legal domains, including the ones of state law. An example: in Europe, legal pluralism has re-emerged due to the overlapping normative orders of the national legal systems, the European Convention on Human Rights and the European Union. A problem is how far it is feasible for a comparative researcher to consider everything that will contribute to the social order, for example, whether it also includes things like customs, moral norms, language and etiquette. Pluralist notions of law should be included in the comparative legal research as far as relevant and possible.

3. The critical comparative law

Law as discourse

The view of law as discourse has as core element the belief that a particular subject is shaped by our own preconceptions and the language we use to describe it. It is therefore relativist in seeking to celebrate the plurality and in exposing the differences between ‘us’ and ‘them’, instead of seeing law as an instrument of solving problems or of finding commonalities between the legal systems. For example, Mitchel Lasser, he asks comparatists to ‘understand discursive and conceptual patterns’ in order to gain the access to the ‘ideolects of foreign legal actors’. He examined how literature theory can help in the understanding of French and US court judgments. Frankenberg advocates a critical approach to comparative studies which are sensitive to the relationship between the self and the other. It is important to recognise the subjectivity of knowledge and in particular to be aware of cultural ties and biases. He states furthermore that critique can turn into a tragedy.

Demleitner is more optimistic and sees the aim of comparative law, which is to help us understand how other people conceive of the world.
Pierre Legrand deserves special attention, since he is one of the most prolific contemporary comparatists. He is influenced by culturalist ideas that societies are as unique as individuals. Regarding comparative law, we should understand law in its fullest sense: how foreign legal communities think about law, why they think about law as they do, why they can’ think about law in another way and how their thoughts are different from ours. He often uses terms like ‘cognitive structure of the law’, the ‘collective mental programme’ or ‘legal mentalities’.

In assessment of these comparatists, three types of criticism can be distinguished:

  • some have disapproved of their writings on the basis that they can’t be put to practical use. Like Markesinis and Fedtke express the view that the need for applied legal research will not allow that comparative law will fall into the hands of philosopher or anthropologists. Legrand takes the opposite position,

  • the strong emphasis on the limits of understanding foreign law is open to criticism, legal systems should not be seen as ‘closed frameworks’ that foreigners can never enter, and

  • the emphasis on differences can be seen as problematic. Discourse-oriented comparative lawyers are influenced by literature and cultural studies, it is interesting to note that here too it is often seen as possible to identify some unexpected similarities.

Law as politics

Political or ideological factors can, on the one hand, be used to explain similarities and differences. Such a political dimension is obvious when you compare the constitutional law of countries with different political systems, and ideology can be a decisive factor for areas like immigrations and labour law.
But, on the other hand, politics can also be used in a more normative way.

The political views are frequent in the discussion about postmodernism, comparative law and hegemony. Critical studies see it as a main feature of the postmodern world that the capitalism of these days only works for the benefits of multinational corporations and their supporting elites. Also law plays a role here. It has been said that Western legal influence and comparative law have hidden political agendas. Therefore, it has been suggested in this literature that law should not be seen as depoliticed and neutral, but it is necessary to reconnect the law with politics in order to make use of it emancipator potential.

Also the opinion of David Kennedy deserves some attention. Amongst others, he shows how political attitudes determine the views of comparative lawyers. This can be seen in the cultural and technocratic forms of comparative law. According to Kennedy, the cultural version is interested in the field of private law, legal cultures and area studies. The left-wing comparatists holds the view that national differences in legal culture and legal rules, specifically in the private law field, should be left supports the standardisation intact and the local cultures should inform the universal one. The right-wing comparatists supports the standardisation and codification of private law and the use of legal transplants in order to reduce transaction costs set by the local cultures.
The technocratic variant is concert with topics of international economic law, development and harmonisation. Also here Kennedy identifies two wings. The left-wing view supports on the one had international law, but on the other hand, regards the WTO as a system that suppresses differences and cultural specificity. The right-wing view favours internationalisation as a bargain process between the countries and supports a system of regulatory competition in which the universal rules emerge. Kennedy also indicates the contribution which comparative lawyers can make to the governance debate. Their task is mainly seen as highlighting differences, for example: the comparative law can show international governance can accommodate cultural differences, or where the unification of the law won’t be appropriate. It is very revealing how Kennedy shows that the choices comparatists make are not the choices of entirely neutral academics, but they are shaped by political views.

4. Conclusion

The different postmodern approaches to comparative law have illustrated that there is a diversity in the way comparative law can be approached. They also stimulate the methodological awareness.

Five possible shortcomings have been identified by the postmodernists:

  • traditional comparatists have a tendency to regard the similarities between legal systems as more plausible and interesting than the differences,

  • traditionally, comparative law tends to focus on the black letter rules, and the postmodernists highlight that also history, culture and politics are often of crucial importance,

  • postmodern approaches teach us that functionalism is often problematic since the law may not always be geared towards certain functions,

  • these points can also impact on the way a comparative paper is structured,

  • traditional comparative law is sensitive to problems of ‘getting the foreign law right’, but the postmodern approach shows that it is also necessary to go further and consider how biases and preconceptions influence our understanding of the foreign legal systems.

So, the postmodern approaches to comparative law are valuable. However, they should not be the final word on the methods of comparative law, because they have a number of shortcomings. This will be discussed in the following chapters.

Practice questions

  1. What focus postmodern comparative lawyers on?

  2. What are the functional problems when it comes to the connection between law and culture?

  3. How are cultural aspects used in a normative manner?

  4. What does the view ‘law as requiring immersion’ mean?

  5. Which problem occurs when it comes to law as legal pluralism?

  6. What is the aim of law as discourse and who are the most important authors?

  7. What are the three criticism regarding law as discourse?

  8. Which role play the politics when studying law and what Kennedy’s view regarding this?

  9. Which five possible shortcomings have been identified by the postmodernists?

Which socio-legal approaches are there to compare laws? - Chapter 6

Some studies use socio-legal approaches to comparative law. Some of them are based on quantitative data, some on qualitative data or a mixture of both. An understanding of the socio-legal comparative law faces a number of challenges, especially the complex relationship between law and society.

1. Setting the scene

There are two elements which characterise the socio-legal comparative law:

  • it replaces the formal understanding of ‘law’ (which is attributed by the traditional comparative law) with a socio-legal one, namely ‘legal culture’, and

  • it reflects on whether and how law and society are related in a causal way.

The legal culture and comparative law

The term ‘legal culture’ goes beyond the ‘law in books’ and considers the ‘law in action’. Legal culture is, in addition, not only about concrete actions, but also about the attitudes of the public towards the law. So it can be fruitful to use cross-country surveys in order to compare legal cultures. A distinction can be made between external legal culture (the aspects which are related to the behaviours and the views of the general public) and the internal legal culture (this refers to the people who make the law). Finally, the legal culture is not only about formal institutions of law making, but also other ways of achieving social order may be even more important.

Most classifications in legal families incorporate elements of legal culture, like legal style and the operation of the courts. Socio-legal comparative law has the advantage of being able to provide empirical data to support or refute the similarities between countries of the same legal family. The socio-legal comparatists are not only interested in the descriptive questions, but also in causalities.

Causality problem in socio legal research

The mirror view of the relation between law and society assumes that law reflects the society in question. One variant of this view states that the law is a product of society’s history. Montesquieu and Von Savigny argue that there is an organic connection between a particular people and its legal system. Another version is that law reflects the society as it is today. This can be based on the Marxist understanding, but nowadays this version is often phrased in a general way: law reflects the needs of the current society, law changes over the time in response to the social developments and law is the result of felt social needs.

The question is what determines how quickly law is able to respond to new or changing circumstances? A meaningful catalogue will take into account the role of courts, the legislature, legal practice, academics and the general public of a particular place. There is also a view that law is largely autonomous of past and present social structures. The reasoning behind this view is that mainly the internal discussion between judges, law professors and other legal experts determine the substance of legal rules, and not the society as a whole. A problem with this line of reasoning is that it is based on a very narrow and positivist conception of the law. Law and society can interact in various ways. Think of cases in which there is a conflict between law and religion, for example laws against religious symbols.

2. The civil litigation, courts and lawyers

One of the key topics of the comparative counterpart of socio-legal research has been the examination of similarities and differences in civil litigation, in particular litigation rates, the number of lawyers and judges and the ease of litigation.

The civil litigation and other forms of dispute resolution

The comparative research on the use of civil litigation is a frequent topic of socio-legal research. It is not easy to say with certainty why there is more litigation in some jurisdictions than in others. It can be that differing attitudes towards litigation play a role. Another line of research is to compare the data on cases filed, resolved and pending per judge, on the time which is needed to resolve a case, on the clearance and congestion rates. Comparative data on civil litigation in developing countries of Asia and Africa are less frequently discussed. This may have something to do with the fact that its population largely lives under an indigenous legal tradition which can’t be called ‘law’ in the Western world.

Litigation rates

Do the litigation rates differ between the US and England, Germany and the Netherlands, and Japan and the Western countries? Research on this can be interesting, because it may confirm or refute the relevance of legal families. Now two examples. First, litigation rates are considerably higher in the US than in England. A possible explanation can be the differences in national character: Americans are seen as more aggressive, the English more restrained and fatalistic. It can also be helpful to consider the availability of alternative institutions. Sandefur distinguishes between formal institutions (like the court and administrative agencies) and ‘auxiliaries’. She explains that the monopoly on legal advice stronger is in the US than in the UK. Second, according to Germany vs the Netherlands, the litigation rate in Germany is higher than in the Netherlands. What is the reason for this difference? Blankenburg argues that the lower number of lawyers in the Netherlands is a result of other ways to the courts.

The examples show that one has to be careful about making assumptions about the relationship between litigation rates and legal cultures. It is important to note that cultural and structural determinants for litigation are mutually interdependent: on the one hand, structures can be a reflection of cultural values, but, on the other hand, a culture can change, this can be determined by structural decisions.

More research on judges, lawyers and public

Next to the litigation rates, also the personnel of the civil process have been a frequent topic of comparative socio-legal research.
A good starting seems to be to compare the number judges, but these data can be misleading, since in some countries, judicial functions are performed by lay judges. When it comes to the term ‘lawyer’ the problem will be whether to include everyone who studied law or only persons who are qualified to represent clients. These points don’t speak against comparative socio-legal research, but it made very clear what the numbers really show.

3. The substantive law ‘in action’ and society

The following examples will show how societal factors may shape the law, and how, in turn, the law may shape society.

The comparative commercial law

An analysis of private and commercial law is particularly interesting where the choices are left to private parties. In a comparative context, one can then examine how the differences and similarities in the positive law are related to the way it operates in practice across the world. An example from comparative contract law. It is often said that contracts tend to be wordier in common law than in the civil law countries. Comparative socio/legal research is rare, but an empirical study by Arrighetti and his colleagues studies topics related to the form, duration and substance of contracts. For instance, the they reported that 91% and 84% of the Germany and British interviewees indicated that they always used legally binding contracts, in contrary to Italy where these were only 58%.

Comparative company law is often approached by a socio-legal perspective. A straightforward line of research is to consider certain countable events which are related to company law. For example, company law typically provides different types of companies, it allows takeovers and mergers, and it enables shareholder suits. It can be interesting to find out how the often certain types of companies are incorporated, sued or merged in different jurisdictions. A common view is that the country and firm level of corporate governance are substitutes.

An even more challenging question is whether company and commercial law shape society. The mainstream research uses categories which are similar to the general division in legal families. On the one hand, there is the Anglo-Saxon common law model. This is a market-based approach, where the shareholder’s individual interests are to the fore.

How can the close link between company law and financial markets be explained? One view stresses that law matters for financial development. For example, the common law countries are seen as having good low which protects the investors and motivates people to invest in shares. In civil law countries, by contrast, investor protection is seen as inferior, and that’s why the financial markets are less developed. Another view comes from Michael Bogdan: ‘from a lawyer’s viewpoint, it is extremely satisfying that the importance of law as a pre-condition of desirable economic and social development is now generally recognized’. Nick Foster emphasis the fact that the legal differences are not mere technicalities, but historically and culturally conditioned.
When you add the commercial law of Muslim countries to the picture, the mutual interdependence between law and society is confirmed.

The comparative criminal law

The present section will focus on capital punishment as a paradigmatic case of comparative criminal law. Is it possible that criminal punishment reduce the crime rate? This view can be based on a simple belief of criminal law as deterrent. Even though, it can be seen as unlikely that individuals can accurately predict possible sanctions, criminal law can still be able to influence behaviour by way of ‘habit formation’. Comparative research can provide information on the possible effects of relatively harsh or lenient criminal laws. But this research has to include control variables on other factors that may influence differences in crime rate.

A more general question is why countries differ in the harshness of punishment. A good starting point will be the debate about differences in criminal punishment between the US and Europe, especially regarding the death penalty. One view is that legal systems mirror their histories. David Garland, for example, has linked the racially motivated lynchings in the 19th century southern states of the US with their frequent use of the death penalty.
There are also various reasons why current factors may be decisive, like the religion.

The tangible features of current societies can be seen as more important. An explanation could be that the higher crime rate in the US is accountable for its harsher punishment, but the punishment should also have effect on the crime rate, so the causal relationship is not completely clear.
Another potentially cause are the political structures. Andrew Hammel states that the existence of a cohesive group of elites and a centralised political systems account for the fact that the abolition of the death penalty happened in Europe, but not in the United States. The role of European elites is seen as crucial for this abolition.

4. Conclusion

Socio-legal comparative law not only considers the positive law, but also other data which are related to the society. These other data can be qualitative or quantitative. The qualitative comparative socio-legal research focuses on the details on the details of particular legal systems, so on the differences between legal systems, akin to the postmodern comparative research. The quantitative comparative socio-legal research may be better able to show the similarities between apparently different legal systems, akin to its traditional counterpart. Next to that, quantitative research often has the ambition of showing casual relations. It is clear that applying socio-legal methods to comparative research has many benefits. It can help in shoeing whether alleged differences between legal families are just technicalities, or whether they are correlated to the real-life data like crime rates. And it can improve our understanding of the relationship between law and society.

Practice questions

  1. Which two elements characterize socio-legal comparative law?

  2. What are the aspects of legal culture?

  3. What is the difference between external and internal legal culture?

  4. What are the advantages of socio-legal culture?

  5. What can be learned from the research on litigation?

  6. What can be learned from the comparative company law?

  7. What can be learned from the comparative criminal law?

What is the numerical comparative law? - Chapter 7

Lord Kelvin (1883) stated the following: ‘when you can measure what you are speaking about and express it in numbers, you know something about it, but when you can’t measure it, when you can’t express it in number, your knowledge is of the meagre and unsatisfactory kind’.
Numerical comparative law can refer to any quantitative research which are related to comparative law. In the following chapter, two topics will be excluded, because they will be discussed in other chapters. Quantitative comparative research about socio-legal data was already dealt with in the previous chapter. Economic research that uses law as an explanatory variable will be only considered here as far as it concerns the coding of the law, the question of a possible causal relationship will follow in the chapter about implicit comparative law.

1. Measuring the impact of the foreign legal ideas

Cross-citations between the courts
There have been several non-quantitative researches on whether courts should consider the case law from other jurisdictions.
Whether the courts should consider foreign case law is controversial in the United States. The Justice Scali has expressed its critical view most prominently, namely that the Court should not impose foreign moods, fads, or fashions on Americans. This sceptical view is shared by some judges in Europe, but this explicit criticism is more frequent found in the literature. The main arguments here are:

  • it may circumvent national sovereignty and democratic controls,

  • it may disregard the context of foreign legal decision, and

  • it may invite cherry picking.

The US Supreme Court has a more positive view: ‘cross-country results resemble each other more and more, exhibiting common, if not universal, principles in a variety of legal areas and it reflects a near universal desire for judicial institutions that, through guarantees of fair treatment, help to provide the security necessary for investment and, in turn, economic prosperity’.

Also in the literature a trend towards ‘transjudicialism’ is identified. But does that mean that the courts actually refer to foreign courts more frequently? Several researches have taken place and the publications have often tried to explore when and why foreign courts are cited. The general report to the comparative law congress, for example, made a distinction between citations in terms of necessary comparison, legal rules with an international element and legal rules with a purely domestic character.

The citations of foreign case law are a sign of judicial comparativism. There is a growing effort to evaluate these cross-citations quantitatively. Most of these researches have a time dimension. Researches show that the majority of the citations have been made for purely comparative reasons, they were not triggered by international or European law or a problem of conflict of law or jurisdictions. From the research also follows that courts form Austria and Ireland cite frequently, in contrary to France, Spain and Italy. These differences mainly reflect the style in which the judgments are drafted. Common law judges or the courts in the German-speaking countries often write long opinions with many citations to other cases, in contrary to Italy and Spain where it is less common to provide detailed references. So, in these latter countries, foreign case law may not be disregarded, but is just left uncited. To identify the hidden influence, it will be necessary to employ other empirical tools, like interviews with the judges.

Also econometric analysis of cross-citations are possible. A distinguish has to be made between the dependent variable (the variable that is to be explained, in this case the number of cross-citations between different courts) and the independent variables (potentially explaining differences).

Measuring the foreign influence related to academic research

Adding the academic research, leads to some further questions related to the impact of foreign legal ideas, for example: are the foreign academics cited in domestic judgments, are foreign law or judgments cited in the domestic law journals and have foreign academics had an influence on the domestic laws?
It is also interesting to measure the international impact of academic research or how the impact of comparative law has changed over the time.

Measuring the influence of foreign statute law

To measure the influence of foreign statute law, it may be possible to count the number of citations of foreign legal systems. The potential influence may also be quantified by way of opinion polls. Another approach is to measure the actual ‘output’, the relevant statute laws, three variants can be distinguished:

  • one may start with a particular law and then try to examine which laws may have influenced it,

  • it is possible to ask the reverse question, namely, whether particular legal rules have had an impact on other legal systems, and

  • a functional approach starts with a question, like: ‘what are the possible ways of protecting shareholders?’ and then develops an index that translates details of the law into numbers. These numbers can be used to examine the similarities and differences between countries. They may also show whether foreign legal systems may have had an impact on the legal rules in question.

The reverse trend can also be explored: how legal systems that had been fairly similar have gradually diverged.

2. Measuring the similarities and differences

One of the key questions of comparative law is to understand the similarities and differences between the different legal systems. It is useful to distinguish between possible formal and substantive similarities and differences.

The formal features of the legal system

How much do countries rely on formal, as opposed to informal ways, of achieving social order? A possible way to quantify the possible differences is the use of cross-country surveys. Alternatively, you can employ objective measures. How exactly should this be done in comparative law? A comparatist can find it interesting to explore whether such an analysis could show some differences and similarities in legal methods. However, the conceptual and linguistic differences can make a direct textual comparison across the legal cultures difficult.

Another interesting question is whether the courts differ in the extent to which they make references to the academic literature and other court cases. It has been often said that the academic literature is cited more frequently in Germany than in England, and it can be assumed that in a common country like England, case law is more cited than in a civil law country like Germany. A related question to this is whether there are differences in the way courts cite their own decisions.

In the book (page 162 and 163) two tables can be found, which are showing how often the German Federal Supreme Court and the Court of Appeal of England and Wales have cited its own decisions. The general shape of the curves is that there are initially no citations, then a steep rise and finally a smooth decline. There are three reasons to explain these developments:

  • it is likely that there is an initial excitement about new decisions, but subsequent decisions may modify or even reverse their findings,

  • courts may prefer to cite the most recent decision, so the original decision is still ‘good law’, but falls victim to the shorthand citation, and

  • court decisions reflect the socio-economic problems at that time.

The substance of legal rules

Comparative lawyers seem sometimes getting frustrated about the debate of whether there are more differences or similarities between legal systems. However, nowadays, quantitative tools are available to make assessments. There are several approaches:

  • the use of surveys,

  • one can start with a particular legal system and then examine quantitatively how far it differs from others, and

  • if one is interested in the way particular interests are protected, one may use a functional approach.

3. Measuring quality of the legal rules and institutions

Measuring the quality of legal rules and institutions, like as court and administrative agencies, is the most challenging. It is good to consider who is involved in the research. Regarding the data in question, a general distinction is often made between performance and perception data. One can distinguish whether the aim is to measure the quality of the black latter legal rules or whether one is interested in the institutional structures, like the operation of courts.

Measuring the legal rules

he most influential study that tried to measure the quality of the legal rules across the world is the research by Rafael La Porta and colleagues on ‘Law and Finance’. The study coded the law on shareholder and creditor protection across the countries. They looked at 49 countries and each legal measures. They calculated a score for the strength of ‘anti-director rights’ for each of the legal systems. After that, they grouped the countries into legal systems, with the result that the common law countries had the strongest and the French civil law countries the weakest legal protection. At the end, they drew these numbers as independent variables for the statistical regressions, finding that the good shareholder protection leads to more shareholder ownership, this can be seen as an indicator for developed capital markets.

Many other papers have used a similar method. These studies also had an impact beyond the academia. For example, the EU Commission’s impact assessment on the Directive on Shareholder’s Right explicitly referred to the ‘Law and Finance’ article in order to justify the reform proposal. Even more important, the World Bank incorporated some of the studies of La Porta.

But the research by La Porta has remained very controversial. First, it concerns the way they classify all the legal systems of the world into distinct Western-based legal origins. Second, there have been frequent criticism on the coding of the legal rules. Third, comparative lawyers may object that the approach is too simplistic, because the legal systems are treated as mere compilations of information which can be coded and aggregated in a numerical way. Fourth, the legal indices of La Porta do not provide an accurate numerical description of the law of different countries. Fifth, the number of variables are very limited.

Following the approach of the Common Core Project, a comparative researcher can also start with a hypothetical problem in order to examine how this problem would be solved in different legal systems. A comparatist can also start with a question like: ‘how do legal systems protect shareholders?’ and then examine the different tools of different legal systems. Which of these two techniques is preferable? The first approach seems to be more straightforward, but there are two problems: first, the evidence on the state of law as seen by practising lawyers is not available on a historical basis, so the case-based approach can’t collect time-series data, making the claims about casual relationships between the law and finance doubtful. Secondly, this approach has to assume that the same problems exist in different legal systems, this is far from obvious, because the legal systems differ socially and economically. But also the second approach has its shortcomings. The index may be seen as objective, but the legal world is very complex and this involves some subjective elements.

Measuring the courts and other legal and political institutions

When one takes the view that the most important factor is not the details of the positive legal rules, but the quality of the political and legal institutions and the strength and quality of law enforcement, then the measurements of La Porta may be regarded as unsatisfactory. It is difficult to establish which measures are the appropriate ones. One can distinguish between the input and output measures. For example, the input measures can refer to the financial resources provided to a particular enforcement authority and the output measures can aggregate the fines imposed by this authority.

The combination of legal data with non-legal ones has been criticised. On the hand the criticism concerns the choice of indicators, on the other hand, it is difficult to know whether and how to aggregate data. The criticism here is therefore that categories such as ‘law and order’ are too broad and fuzzy to give good information.

Djankov and colleagues had dealt with the efficiency of courts and the entry procedures of start-up firms across countries. A critical assessment has to address three problems:

  • Djankov seem to assume that it’s good to have cheap courts which decide many cases in a short period of time, but is this really desirable? The danger is that the quality of decision suffers.

  • The aim of Djankov is to measure the operation of the courts, but in many countries there are special laws to protect tenants. So considering the duration of the proceedings does not provide the general information on the courts, but it mainly shows the strength of tenant protection.

  • Doubts can raise about the accuracy of information on the duration of the judicial proceedings, because the data are collected by way of questions sent to lawyers, so everything is from a lawyer’s perspective.

Surveying the perceptions about law and its enforcement

The comparative survey methods are frequently used in the social sciences. They are also important to governments and other policy actors.
A critical analysis of this research has to address first who was asked, because this can make big differences for the results. For example: did the survey ask the general public, the managers or a specific group like the refugees in a camp in Nepal? Second, which questions are included in the survey? Third, there can be problems with the collection of the data. The participants may be reluctant to disclose the participation in illegal behaviour, like corruption. Fourth, it has been suggested that the participants often give ‘top of the head answers’ based on the stereotypical views. So, overall, one has to be sceptical: the surveys can provide interesting information, but there are good reasons to be cautious as to whether perceptions can really be used to assess the quality of the legal systems across the countries.

The combined approaches

The scholars and policy actors have combined the indicators and approaches in different ways. Some of the combinations are mainly aggregates of data collected by other organisations. The studies that combine data which are collected by various other studies, raise the question of which studies to include and how to aggregate the data, because the results often the results are very sensitive to small changes. It is moreover preferable to use on primary data.

4. Conclusion

Numerical comparative law can contribute to many core topics of comparative law, like judicial comparative law, legal transplants, legal families and comparisons which are a basis for making policy recommendations. But this does not mean that all these studies are without doubt. It is not clear which one of the three methods (conducting surveys, counting empirical facts, coding legal rules) is preferable. The surveys show an interesting insight into the perceptions about judicial comparative law, the differences between legal systems and the quality of legal rules. But, there is an inherent limitation, because the general public, and even the lawyers, may have a misleading view about the law. So, counting the empirical facts may be preferable. Here is the inherent problem that we can’t be certain what the numbers really tell, so the challenge is the interpretation of possible causes and consequences.
Coding the legal rules is akin to a black letter approach of the law. This has the advantage that it may actually tell us what the law is. It can be used to identify the legal transplants, to evaluate the relevance of the legal families or to test whether the formal legal rules really matter.

It is therefore suggested that the integrated approaches are most likely to provide a good comparative picture. This doesn’t mean that a comparatist can’t specialise in a particular approach to numerical comparative law. But is some cases, she has to be aware of which conclusions can and can’t be drawn from the statistics.

Practice questions

  1. What is the criticism regarding whether the courts should consider foreign case law?

  2. What are the reasons for judges to cite foreign case law?

  3. What is the difference between the dependent and independent variable?

  4. How can the influence of foreign statute law be measured? And which three variants can be distinguished?

  5. What is the difference between formal and substantive similarities and differences?

  6. Which method was used by Rafael La Porta?

  7. What are the critics on the method of La Porta?

What are legal transplants? - Chapter 8

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1. The conceptual research on legal transplants

The research which will be discussed in this section often distinguishes between different variants of legal transplants. For example: between the reasons for their adoption and the way they work or don’t work.

Rationales for legal transplants

Legal transplants are seen as a smart way of choosing a foreign legal model that has proven to work well. But, this is not the whole picture, because not only the transplant country (the importer), but also the origin country (the exporter) may have an interest in the transplant. There are a number of reasons why a country may deliberately adopt a legal rule from another legal system, this is known as ‘legal borrowing’. The most intuitive category is that the transplant country compares the laws of different countries and chooses the best one. It may also be the case that the transplanting country seeks ways to improve its own legal rules and therefore identifies legal rules that have been already successfully tested abroad. Transplanting can also be cost-saving, although sometimes it’s more efficient to make one’s own law, than ‘buying’ it from somewhere else.

Another type of legal transplant is called the ‘legitimacy-generating transplant’. In this type the transplanting country may be unwilling or unable to evaluate the potential benefits of all countries of the world. Rather, certain models can be seen as more prestigious. Related to this are the ‘entrepreneurial transplants’. This refers to the legal transplants initiated by those groups who are benefited by investing their energy in learning and encouraging local adoption of a foreign legal model. The final category regards the transplants that aspire to benefit both the transplant and the origin country. Such benefits can follow from the aim of reducing the transaction costs that arise from the differences between the legal systems.

When dealing with the origin country, a distinction can be made between tangible and intangible benefits. For example, a country can benefit when its law is being transplanted, since a familiar legal system makes it easier for the firms to do business. A country may also see it as a tangible benefit when another country follows its values. The transplant may also be regarded as having intangible benefits, because a country is interested in the ‘prestige’ of having an influential legal system. But this intangible benefit also has a tangible effect, because foreigners may want to buy the literature about this legal system.
Another distinction can be made between the forms of influence. The soft forms of influence can start by simply making the domestic law accessible to the foreign readers. Going further, a country can start discussions with other countries in order to promote its own law. A more heavy form of influence is an ‘externally-dictated transplant’, also called ‘legal imposition’ or even ‘legal imperialism’.

Often the process that leads to a transplant is not deliberate, so here it’s better to talk about ‘legal circulation’, ‘cross-fertilisation’, ‘diffusion’ or ‘migration’. It is hard to determine when this kind of diffusion occurs, since it requires an analysis of the historical and cultural circumstance.

The way the legal transplants ‘work’

Scholars disagree on how and whether the legal transplants ‘work’. The following will show some of the different conflicting views.

a. The positive view: they work as in the origin country

Alan Watson is seen as the founding father of the concept of the legal transplants. Watson states: ‘borrowing, even mindless, is the name of the legal game’. This borrowing is not limited to legal rules. Topics of private law are typically not of interest to governments, but left to the legal experts. So, according to Watson, its rules and concepts can survive without any connection to any particular people, period of time or place.
This positive view of legal transplants is shared by comparative lawyers. These lawyers aim to strengthen the practical value of comparative law.

b. Sceptical view: they are largely irrelevant

The positive view is challenged by the scholars, notably by Pierre Legrand. He states that law is not only about words, but also the meaning also has to be considered. Following from this, he advocates that a legal rule can’t survive the journey from one legal system to another unchanged, because as the understanding of a rule changes, also the meaning of the rules changes. So, the legal transplants are impossible.

c. Negative view: they are often harmful

Two variants of view can be distinguished. On the one hand: the criticism refers to the relationship between the transplanted and the previous law, so foreign ideas have polluting effects on the domestic legal order. On the other hand, the negative effect may refer to the relationship between the transplanted law and the cultural, social, economic and political environment, because law should not be simply copied from other countries.
But both of these criticism go way too far. In the world of today there are no pure legal systems and all legal systems have managed to incorporate ideas from various parts of the world.

d. Differentiated view: they function in a modified way

So, most of the scholars take an intermediate position. Legal transplants are often not a clear success or failure, but the picture is rather a mixed one.
It is crucial to examine how the foreign rules are received in the transplant country. According to the question of how identical the transplant will be to the law of the origin country, the best response will be that the outcomes differ according to the relevant circumstances. Margit Cohn has developed a typology: the transplant has been more or less successful (full convergence, fine-turning and pro-transplant transposition) or the transplant has not been well received (counter-transplant cross-fertilisation, distortion, mutation or rejection). What are the conditions for the transferability? Katharina Pistor refers to:

  • ensure complementarities between the new law and pre-existing legal institutions, and

  • the relevance of economic differences.

It is furthermore necessary to consider the countries which are involved in the transplantation process.

Further variants of the legal transplants

On page 201 of the book a table can be found with a summary of the different types of legal transplants.

2. The legal transplants throughout history

The legal transplants in continental Europe

The reception of Roman law is seen as a early example of legal transplants in Europe. Another popular object of the legal transplants has been the French Civil Code. Apart from the French law, also the German legislative models played a role in Italy, Spain and Portugal. Foreign influence has not been limited to the legislative transplants. For example in the 19th century, German lawyers travelled to Greece to give lectures and the Greek lawyers travelled to Germany to learn law there. The general picture is that legal transplants between continental European countries have been fairly common. They did not just concern the positive law, but also the deeper structural levels, like the relevant legal methods. Since the Second World War, and moreover since the fall of communism, US law has played a growing role in continental Europe. The US transplants concern a variety of topics.

The colonialism and post-colonialism

The literature often identifies different paths of colonisation. A first distinguish can be made between conquered and settled colonies. In the most colonies, however, there was a significant indigenous pollutions. This was leading to different colonial strategies, the French one and the English one. The French one followed the principle of ‘direct rule’, trying to apply the French law universally. The English one followed the principle of the ‘indirect rule’, this meant that, in principle, the existing customary law and the role of native chiefs were retained for the local population. So the main focus was not on ensuring universal application of English law, but merely on gaining political sovereignty over the occupied territories. This difference may be related to the difference between common and civil law: the civil law structure of the French law can mean that one may rationally and systematically develop legal rules which can be applied to the people of any culture and religion. The common law, by contrast, is more willing to accept diversity, for example by using juries. However, this division is not beyond doubt. In practice the French direct rule, wasn’t that direct, since the French had to rely on the local chiefs and interpreters. And with respect to the English law, it’s remarkable that some of the characteristics, like the use of juries, were not fully transplanted.
Moreover, the line of influence didn’t go simply from one colonial power to its colony, because more countries left their mark.

Most of the Latin American countries had already gained independence at the beginning of the 19th century. The French Napoleonic Codes were the main source of influence at that time. After the independence the traditions became more mixed. This eclecticism continued with the influence of the US law. More generally, it is sometimes held that the role of the colonial transplants should not be overstated, but one must ask how much effect less than a century of colonial domination could have had on the many peoples of Africa. There also have been some examples where countries have deliberately attempted to change their legal family. Rwanda, as a former colony of Belgium, had initially a French-inspired law, but in the early 21st century it shifted closer to the common law. Finally, in some of the former non-Muslim Asian colonies, the colonial law is still playing an important role. But in other Asian countries, the colonial laws have been largely superseded.

Overall, the picture emerges that the legal transplants did not stop with independence. Often (but not always), the colonial laws were kept and further foreign laws were transplanted, although not always voluntarily. So most of the former colonies are nowadays a mixture of voluntary and involuntary transplants from the West plus other transplants from neighbouring countries and indigenous forms of law and order.

The transplants in non-colonial countries

A broad distinction can be made between two different phases. In the first phase, legal transplants often concerned entire codes. The second phase is characterised by more piecemeal legal transplants, now often from the US. Both of these phase are akin to the transplants in continental European and colonial countries: the transplants in the past, but more selective ones today. Do these transplants fit better or worse than in other countries? On the one hand, the transplants in the countries that were not under colonial occupation might work better, because they tend to be voluntary. On the other hand, Western legal transplants are more likely to be rejected in the non-Western countries, nor have the countries discussed here experienced a diffusion of the Western culture through one of the colonial empires. From the researches can be concluded that in non-colonial non-Western countries, the experience of legal transplants show many similarities to those of colonial and Western countries: the laws have been frequently transplanted, affecting the local environment, but not in a naive and mechanical way.

Globalisation of the human rights law

Nowadays, human rights play a role in all parts of the world. France and the US are often seen as the origin countries of codified human rights. In the 19th and 20th centuries the human rights were incorporated in the constitutions of other continental European countries. Comparative law has played an important role: the way in which the human rights are formulated gives judges a scope of interpretation; more specifically, the European Court of Human Rights often considers whether there is a way the human rights can protected at national level. This can be a very challenging tasking, given the differences between civil and common law countries in Europe. Overall, it can be seen that the protection of the human rights has become accepted in the whole Western world, with legal transplants playing an important role, though it can’t be said that all countries provide the same set of rights.

The cultural relativists state that the Western origins mean that human rights are not universal and that they should not be imposed on other cultures. If a imposition like this occurs, this can sometimes be seen as a ‘neo-imperial’ endeavour. The non-universality of human rights may be already seen in the Western world, given the variation in the availability of the economic, social, cultural and community rights. In other parts of the world, the idea of individual human rights can be challenged. Human rights may be of Western origin, but this does not have to lead to a genetic fallacy. A modified version of this view is that the human rights are an expression of modernity and that’s why they can be transferred to non-Western countries. A compromise between these two views is that the human rights can play a role all over the world, but they don’t have to be only of the Western origins.

The international regime of the human rights, which is starting with the UN Universal Declaration of Human Rights covers a lot of rights like the civil, political, economic, social and cultural ones. There is some evidence that the ratification of human rights treaties leads to lower violations of the rights, but the evidence is not very strong, in particular not for the non-democratic countries. The case of human rights can be seen as a challenge to the concept of legal transplants, because copying the precise text of a particular provision is neither a necessary nor a sufficient condition for he effectiveness of the human rights.

3. Conclusion

The legal transplants were crucial for the emergence of legal families of legal families in Europe and in the way those models spread to other parts of the world. But the legal transplants are very topical today, because nowadays all traditions are constant in contact with one or more of the other legal traditions. This implies the following:

  • legal transplants are now more often voluntary than in the past,

  • legal families have become less important for contemporary legal transplants, and

  • there can be different dynamics in different areas of law.

The question remains whether we can say that the modern legal transplants work. In the past, it was often the case that legal transplants were purely meant to copy or translate a particular foreign legal text. But, nowadays, the main aim is to transfer a particular policy, be it driven by the transplant or origin country. So there is an interest in the transplanted law working. This can be unfulfilled, but a comparative analysis can reduce this risk.

Practice questions

  1. What are the reasons why a country may deliberately adopt a legal rule from another legal system?

  2. What are the different types of transplants?

  3. What is the difference between tangible and intangible benefits?

  4. Explain the 4 different views on how transplants work: the positive, sceptical, negative and differentiated view.

  5. Which different paths of colonisation can be identified?

  6. Which two phases can be identified according to the transplants in non-colonisation countries?

  7. What can be seen as the connection between the human rights and transplanting?

What is the role of state borders in the comparative law? - Chapter 9

The primary interest of traditional comparative lawyers is to explore legal differences and similarities between countries. So for this type of research the existence of state borders is very important. The more fundamental question is whether or not we can talk about a decline of the notion of the state borders and which implication it will have for comparative law. This chapter discusses three topics: convergence (national legal systems have become more similar), regionalisation (laws are unified for a group of neighbouring countries) and transnationalisation (the applicable law is not related to a particular country). It is important to note that these topics are not independent of each other. Regional and transnational law can be forces for the convergence of the legal systems, regional laws can be influences by the rules which the countries have in common and transnational laws are dependent to the national legal systems which accept and enforce them.

1. Setting the scene

‘End of history’ and ‘end of state’?

Some researchers have concluded over the past years that there has been a continuing trend towards liberal democracy. They take the view that cultural values have been affected, especially human rights, accountability of the state powers and the rule of law which non-Western societies are converging. The modern laws are being called ‘practical, problem-solving and technical’ and they don’t differ much from country to country. Other researchers go further and state that globalisation is not merely seen as a force of approximation, but it is leading to an ‘erosion’. According to the domestic level: instead of mandatory and hierarchical legal norms, cooperative and other innovative forms of law-making are being used. They say that the disaggregation of the state will continue at international level. It is a sign of ‘transgovernmentalism’: not only the governments will interact together, but also the courts, regulatory agencies and other parts of the state will. This interdependence of societies will challenge the national sovereignty. All these claims seem a bit exaggerated, so the following will contain two more specific themes which will make clear whether and how laws have become similar, more regional and more transnational.

Role of public and private international law

To understand international law, it can be relevant to take a look at the domestic laws, because international laws can be based on the legal concepts which already exist at the domestic level. It is said that the mind-set of international treaties is more ‘civilian’ in origin than ‘common’. Sometimes international law explicitly requires a comparative approach. For example: the International Court of Justice shall not just apply international conventions and customs, but also has to apply the general principles of law recognized by civilized nations and also the general principles of law derived from the national laws of the legal systems of the world. This raises a few problems:

  • the terms ‘civilised nations’ and ‘legal systems of the world’ are unsatisfactory,

  • has the focus of traditional comparative law on major legal systems and legal families become outdated?, and

  • it may be doubtful whether the principles of national law can be really transferred to international law.

The local context is relevant for the impact of international law on the domestic law. Some countries treat international law and domestic law as a unity, this is called ‘monism’, and other countries require a transposition of international law into the domestic context, this is called ‘dualism’.

It has been said that globalisation has impacted on the international law since the cooperation of independent states is now replaced by an interdependence of states. This can be seen in the fact that complex and dynamic forms of experimental and networked governance have supplemented the forms of international law.

Figure 9.1 (from the book Comparative Law) shows the possible causal effects of internationals law as ‘the law of globalisation’.

In the private international law a distinction can be made between a European and a American model. The European model aims policy-neutral rules of private international law, which are agreed on a multilateral basis and which want to determine the applicable law with legal certainty. The American model uses unilateral rules of private international law based on a country’s own domestic interests.

Private international law can have the aim to decide on the applicable law, but how far can this really be achieved? It would require internationally uniform rules of private international law and they have to be applied in a uniform way, but there is an absence of global private international law. It has been suggested that the private international law problems for the cross-border businesses are a motivation for transnational law, like the (new) lex mercatoria.

When countries van decide unilaterally which law they will apply, this will have the consequence that domestic laws have an effect beyond their own borders. This extraterritorial effect of legal rules is not only found in the US, but it can be seen as a general phenomenon that in this interconnected world more than one legal system is applicable. Another way of addressing these problems of private international law is to let individuals or companies choose the applicable law. The important consequence of this choice is that it can stimulate the regulatory competition by creating a ‘law market’.

Several connections can be made between regulatory competition and the topics of this chapter:

  • does regulatory competition stimulate legal convergence?

  • regionalisation plays a role as far as the region supports the idea of intra-regional regulatory competition, and

  • in the context of the regulatory competition, transnational law can provide additional legal rules to choose.

The forces for convergence, regionalisation and transnationalisation

Another book has examined the reasons for the convergence in shareholder law. It drew a distinction between ‘convergence through congruence’ and ‘convergence trough pressure’. ‘Convergence through congruence’ can arise then the political, social and economic circumstances become the same internationally. Regarding the ‘convergence through pressure’ both private entities and public ones play a role. It can also be helpful to distinguish between international and national lobbying. For example, international organisations will advice most of the time countries to follow the same model of legal rules. The lobbying of corporations, far law firms, business consultants and other private entities has a similar outcome, as far as they conduct business in more than one country, uniformity has the benefit of reducing the risks and costs which are related to the different legal regimes.

2. Convergence of the laws

Terminology and typology

‘Convergence of laws’ means the trend that legal phenomena become more similar. They don’t have to become identical. The topic convergence of law is related (not identical) to ‘legal transplants’ and ‘harmonisation’. Legal transplants can contribute to the convergence of legal systems, but it also make the systems more dissimilar. A convergence can also happen without legal transplants. Harmonisation can be regard as a deliberate process, convergence is more seen as something that evolves spontaneously. Convergence is seen as the wider term, so there are different types of convergence, some are based on a deliberate programme for legal unification (the harmonisation) and others are natural/evolutionary convergence.

Examples of constitutional and company law

Constitutional law and company law are seen as really different, but convergence is these areas shows some parallels. This section with deal with: convergence of main policies, convergence of the actual details of the law, convergence forces and convergence of law in practice.

  1. First: in both areas it has been found that countries have converged in a number of dominant legal policies. There is a slowly, but steady spread of democracy and at least a little understanding of the rule of law. Moreover, there is a conception of a constitution that represents the fundamental law. And the institution of judicial review of the constitutionality of state action, legislation included, is gaining acceptance.

  2. Second: the researchers have also shown that the precise texts of the constitutions have converged. At least the words of the constitutions are often very similar. They share the same vocabulary, similar institutional paths, comparable elements and a basic design. In the modern company law the model of ‘good corporate governance’ has emerged and countries are expected to follow it.

  3. Third: in both areas of law the convergence can be related to the convergence forces which were set out in the previous section. The convergence of constitutional law an also be related to the reasons of congruence. This link is clear as far as the constitutions are seen as ‘manifestations of a society’s moral commitments’. Similar to the company law, another form of pressure is the desire to attract foreign capital (including human capital). This can induce countries to provide constitutionally protections of property rights and the rule of law.

  4. Fourth: there has also been a convergence beyond the black letter law. An objection can be that in ‘new’ democracies the constitutional law is often ineffective, because of reasons like a weak civil society, the lack of democratic culture or fully free press.

According to company law, the previous work explained that current and future convergence als involves a ‘convergence of law and reality’. ‘Convergence through congruence’ is nowadays based on a change in the factual circumstances, in contrary to before, where the competent courts and authorities lacked the practical experience of applying the law.

Discussion: normative and positive

In the normative debate about convergence some statements are a little extreme. On the one hand there are researchers who state that global uniformity of laws is ‘terrifying totalitarian’, and on the other hand researchers say: no legal system should contain a contrarian rule unless otherwise cogently rationalized. Both statements are too radical and fail to consider the benefits of uniform law in terms of reduced transaction costs.

More has to be said about the positive question whether it is actually justified to talk about a convergence of the legal systems. It is possible to point towards the reasons why the black latter law countries don’t convergence. You can start with the suggestion that countries will continue to differ in terms of their economies, cultures and societies. But, convergence doesn’t mean identity. Three path dependencies can be distinguished:

  • weak path dependency: this exists in so far as the terminology of the company laws is different, but nonetheless leads to comparable results,

  • semi-strong path dependence: this means that the costs of law reform would exceed the benefits, and

  • strong path dependence: this assumed for the question whether and how company law should consider the interests of stakeholders, like employees, because now political considerations can hold legislators back from adopting economically efficient solutions.

Beyond the discussion about path dependencies, some scholars have found more complex forms of legal evolution, for example, inspired by the game theory or the Darwinian theory, and convergence not necessarily as outcome.

Another question is whether it actually matters that positive law is converging. Two lines of critique can be distinguished:

  • the first one is related to the view that legal transplants are largely irrelevant. Legrand takes the view that convergence only exists at a superficial level if one pretends that legal rules are completely unconnected to their cultural environment, and

  • the second line argues a more socio-legal perspective that in practice similar rules have fundamentally different effects across countries.

The convergence forces not only steer countries to a legal convergence, but also to convergent constitutional practices. There can even be a situation in which the formal constitution is diverse, but that common circumstances influence the political reality of the countries in a similar way, this is called ‘functional convergence’.

3. Regionalisation

The terminology and typology

The terms ‘region’ and ‘regionalisation’ need some clarifications:

  • we are interested in ‘macro-regions’, groups of countries which can be distinguished from the ‘micro-regions’ which are in one country,

  • it has been said that ‘regionalisation’ refers to a natural growth of social integration, which can be distinguished from ‘regionalism’,

  • regional agreements can start with the modest aim of ‘regional cooperation’, but will lead to ‘regional integration’ later on.

Five types of economic regions can be distinguished:

  1. regional agreements can be limited to one or more specific aims,

  2. free-trade areas eliminate tariffs between its members,

  3. customs unions have a common external tariff,

  4. common market is created when further barriers are removed, and

  5. countries of a monetary union have a single currency, harmonised monetary and maybe also economic policies.

Regional cooperation is not limited to economic cooperation, political integration is also possible, like the African Union.

European Union as an example of regional integration

It can be noted that the EU has managed to create a legal order that incorporates elements from various traditions, especially from both civil and common law countries. It has achieved a greater level of economic integration than most other regions and it has also got involved in other areas, like justice and home affairs. But this doesn’t mean that the EU has now as many power as a federal state. There is a desire to create a common European legal culture. But there will be a ‘chicken and a egg problem’: for example, when a student still wants to study the domestic law in their home countries as far as it still differs from the Member States and these differences will remain as far as distinct national legal cultures impede full legal harmonisation.

Discussion: going to multi-level governance?

European integration has not been without critics. It can best seen as political, some people regard the EU as a threat to national sovereignty and democratic representation.

4. Transnationalisation

Terminology and typology

‘Transnational law’ can, in general, refer to any law that transcends national states. It is therefore different from the plain domestic laws, but it can include EU law and international law. When you see it more narrow, the focus is most of the time not on laws that are only relevant to a particular territory, such as a region. It has a different focus than international law, because its main concern is not the international treaties and conventions which emanate from the sovereign states.

The following variants can be distinguished:

  • transnational law can emerge at private level, for example through contracts between firms which are based at different countries,

  • non-state organisations may draft rules aimed to be used irrespective of national borders,

  • states and intergovernmental organisations may coordinate laws that have a transnational dimension on an informal basis, and

  • states and intergovernmental organisations may agree on formally binding laws, like treaties and conventions.

Transnational law can be found in many areas of law. The relationship between the different areas of transnational law can be complicated.

Discussion: can private law-making be seen als legitimate?

The main question which raises is whether transnational law gives too much power to private law-making. The reasons why these private forms have emerges are both related to the deficiencies of state laws and to the benefits of private law-making. General benefits are the liberality and the flexibility of private law-making: it allows more easily the exceptions in justified cases, the enforcement mechanisms can be more varied and it can be adapted more easily to the changing circumstances than state law.

But the following lines of critics can be distinguished:

  • there are various practical problems with the private law-making in transnational law. The ‘softness’ can mean that it is not entirely clear when it’s applicable,

  • private parties typically act in what is good for themselves without giving consideration to interests of common good and outsiders, the risk will be that transnational commercial law is infected with severe power imbalances and inequalities, in particular, since the businesses may be better able to exert their influence than consumers, employees and other stakeholders.

But it has to be said that these points of criticism need to be qualified with much depending on how exactly the instruments of transnational law are structured and applied. Many of the legitimacy concerns are based on the idea that transnational law constitutes an ‘autonomous regime’ independent of the state. But often the picture is a mixed one. It can be said that the flexibility that institutions and private persons have is only possible when the state has allowed it in advance. An alternative can be that the process will be reversed: private self-regulation is subsequently embedded in more formal institutional structures.

5. Conclusion

This chapter has shown that the state is still relevant, this is the case for convergence, because it concerns the way national legal systems react to external changes. It has also shown that regionalisation and transnationalisation depend on state’s support. So, the traditional approaches to comparative law which mainly focus on comparisons between countries can be really misleading, because they tend to overemphasise the role of state borders in today’s world.

Practice questions

  1. What are the different views of researchers regarding ‘the end of state’?

  2. What are the parallels between constitutional law and company law?

  3. What are the differences between the American and European model?

  4. Which three path dependencies can be distinguished?

  5. How can the terms ‘region’ and ‘regionalisation’ be explained?

  6. Which five types of economic regions can be distinguished?

  7. Which different types of transnationalisation can be distinguished?

What role does comparative law play in development? - Chapter 10

The title of this chapter can be understood in two different ways, which will be both discussed in this chapter:

  • ‘comparative law’ and development: the chapter considers how insights drawn from comparative law can assist the development policy. This shows the aim of the traditional comparative law to provide policy recommendations,

  • Comparative ‘law and development’: it has to be submitted that there is more than one concept of ‘law and development’; for example, a distinguish can be made between law and economic development and law and human development.

1. Evolving ideas of ‘law and development’

The literature distinguishes between various phases starting in the 1930s or after the Second World War, but these ideas on law and development can als be seen further back in the time. The general notion of ‘development’ is a feature of the Enlightenment. In the first three decades after the World War II the external help and an active state were seen as crucial for economic development. More specifically on the law and development, were the initiatives of the US to promote law reform in Africa and Latin America. The focus was on modernisation of institutions, like legal education and legal profession. This ‘first wave’ of law and development was, however, not really successful, due to the mismatch between the US models and the local conditions in Africa and Latin America. In the 1960’s and 70’s there was a political backlash against the influence of the US.

The establishment of the UN Conference on Trade and Development aimed a development-friendly integration of developing countries into the world economy. Late in the 70’s a fairly radical version of economic liberalism became the dominant paradigm. The trends in law and development were mainly shaped by economists in this period. Also international development organisations have played an important part in this phase. The World Bank and the IMF provided funds to the countries, under condition of structural improvements of their legal systems. Since the 90’s critical approaches came to this consensus. This didn’t lead to a complete paradigm shift of the World Bank, but the articles of agreement of the sub-divisions of the World Bank Group limited their activities: they were no longer allowed to interfere in the political affairs of the recipient countries.

Of course, also other countries and organisations played an important role. For example the Millenium Declaration of the UN General Assembly, the World Health Organization or the World Social Forum.

The suggestion of Amartya Sen is that of development as freedom, this means that the main aim should be to enable everyone to be able to do and to be. This will require not just income and wealth, but, for example, social security, education and equal opportunities. Regarding to the law and development, Sen’s view implies that the essence of court and rights is not primarily to secure the existing entitlements, but also to provide justice for the poos. So, law and justice are not merely seen as a means to another and, but they are an important part of the development process on their own.

2. The development and rule of law

The terminology, typology and purpose

A distinguish can be made between procedural (or formal) aspects and substantive ones. Starting with the procedural aspects, the ‘rule of law’ can be distinguished from the ‘rule by law’, the latter means that a head of state just uses the law in a way to implement his or her wishes. The rule of law, by contrast, requires that there are clear, transparent, general and prospective laws. Institutions have to apply these laws in a reliable and equal way and should not overstep their powers. The rule of law also discusses topics like the structure of the courts, the availability of access to justice or the operation of trials. It is controversial whether it should also include the standards about the way laws are enacted.

Most of the concepts of the rule of law also embrace some topics of substantive law. Nowadays the suggestion is that the rule of law also means something like ‘rule of good law’. This will refer to at least some ideas of ‘justice’.

What is the actual function of the rule of law? Three positions can be distinguished:

  • a conceptual one: compliance with the rule of law explains why certain countries have been economically successful,

  • the rule of law may be used as a target that countries are encouraged to achieve. The rationale for this target can be moral or ethical, and

  • criticising such a view, it can be suggested that effectively promoting the rule of law does not mean imposing international ‘best practices’, but developing rules that are appropriate for the country in question.

Rule of law in China and Russia

China is the most frequently cited example for showing that rapid economic development in the last thirty years did not require compliance with the rule of law. It is impossible to state that the formal legal institutions, like strong protection of property rights, have contributed to China’s economic success. Its success came moreover from personal connections, business networks, trust and mediation, political decentralisation, etc. However, the rule of law had also made some progress in China. For example, the modern Chinese business laws have strengthened the protection of the shareholders and creditors. It has been suggested that the sustainability of China’s economic growth now depends on the improvements of the rule of law. So overall, the Chinese experience should not be seen as evidence that the rule of law doesn’t matter.

According to Russia, it may, in contrast, be argued that the legal reform based on the international rule of law was supposed to come first. Russia faced in the early 90’s the challenge of how to move to the modern market economies as quickly as possible. The hope was that the rule of law could be an important tool. But this has not been a smooth transition.

3. Critics of ‘law and development’

The law does not ‘work’

The mainstream view is that law matters for economic development. But this have been challenged, since it ignores the crucial role of culture and politics.
But this reasoning doesn’t make law and development obsolete. The objections are mainly concerned with the question of whether law matters for economic development. May would, however, say that law also serves the aim of creating a fair and just society. Regarding the economic development, quantitative research has shown both positions: law can matter or not.

Against the ‘top-down’ approaches

The western countries and international organisations are often accused of a ‘top-down’ approach to law and development. This means that they try to impose Western or global standards on developing countries.

The Western law out-of-context

As far as the law and development is based on models from Western legal systems, another line of criticism is that the use of those models can be inappropriate in other parts of the world. This refers, on the one hand to the problem that ‘prepacked reforms’ pay no attention to the way new and old law, including the culture and institutions of a country, relate to each other. Furthermore, the judicial reforms may not work as expected, due to the lack of training or financial resources. On the other hand, the imported Western law may ‘clash’ with the culture of the country in question. The view is here that the law may have an effect but, it is seen as dysfunctional, disruptive and therefore inappropriate.

‘Wrong’ legal rules and institutions

The final point of criticism is that legal rules and institutions are promoted by the US, the World Bank and others, which are not very good. This is related to its preference for Western laws, in particular in the common-law variant. This kind of rules are not always preferable. So, in general, it can be said that the diversity of legal systems around the world should provide an incentive to learn from other legal systems. This learning should not be asymmetrical, but it should also include ‘reverse learning’ from the countries which are seen as importers of the Western law. So the main point of criticism is that of the one-sided laws promoted by law and development.

4. Conclusion

The position which has been taken is this chapter is that claims like there are number of phases of law and development, that there Is a choice to be made between formal and informal law, that law does or doesn’t promote ‘the right’ legal rules, etc., are often misleading. It has been shown that law and development evolved gradually with various changes in the main actors and in the substance of this process. The critics of law and development does raise a number of valid concerns, but they seem a bit exaggerated. Another purpose of this chapter has been to the relation to comparative law. In the past, comparatists often excluded developing countries, but in today’s world that’s not longer satisfactory.

Practice questions

  1. In which two ways can the title of this chapter be understood?

  2. Which three was of law and development by the US can be distinguished?

  3. What was the suggestion of Amartya Sen?

  4. What is the difference between procedural and substantive aspects?

  5. What is the actual function of the rule of law and which three positions can be distinguished?

  6. How did the rule of law work in China and Russia?

How does 'implicity' deals with the comparison of laws? - Chapter 11

The theme of this chapter is the research from other disciplines that ‘implicitly’ deals with topics of comparative law. The aim is to map how these other comparative fields have produced a remarkable amount of research that should be of interest to comparative lawyers.

1. The introduction to comparative research in social sciences

It has been said that the comparative method is an applicable tool in all social sciences. The research traditions are not uniform, but there are a few common themes which will discuss most of the comparative studies.

The main rationales for a comparative approach

A frequent used starting point in comparative law is to identify the purposes of comparative law. A distinction can be made between research that uses comparative information as a tool to understand the relations between variables, and comparative research which is interested in particular units for their own sake.

Main types of the comparative research

The two rationales which were outlined in the previous section, are often corresponding to qualitative and quantitative comparative research. Some take the view that qualitative comparative research can also focus on a single case if this particular case is related to a wider comparative framework. Variations in the qualitative research complicate the picture. The following this should be noted:

  • comparative qualitative and case-study research are not identical, because a case study can, for example, also include quantitative time-series date,

  • qualitative research can also deal with a large number of cases,

  • most of the qualitative researchers are reluctant to draw causal conclusions from case studies, but other are more interested in possible causal relationships.

Quantitative research can also be either descriptive or inferential. The descriptive studies can provide interesting information on countries and other comparison units. Which method should the comparatist choose? The following questions should be answered:

  • what type of question does the comparatist want to answer?

  • what is the availability of the sources? The lack of sources can exclude certain methods, and

  • what are the advantages and disadvantages of the method which will be used?

The methods, continued: history, logic and concepts

Historical research is fundamentally different from comparative approaches, according to one school of thought. But according to others, the historical research may have an implicit comparative dimension. It is able to identify the historical connections between countries.
A problem of applying quantitative methods to historical events is that many causal factors often play a role, while only a small number of cases are available.

The choice of units of comparison

In the social sciences, a lot of units can and have been compared. A convenient division is the one according to the scales. These may be, for example, political units, starting with villages, towns, cities, etc. A more factual approach considers units like local communities, cultures or societies.
Another question concerts which specific units should be compared. John Stuart Mill states that the choice depends on the variable of interest, i.e. the variable that the researcher wants to explain. When the units share the variable, it is good to have very different cases, this will make it possible to identify the one factor on which all the cases agree at the decisive cause, this is called the ‘method of agreement’ or ‘most different cases’. When the units don’t share this variable, then choosing similar cases that differ in just one causal condition can explain that this difference is indeed the decisive one, this is called the ‘method of difference’ or ‘most similar cases’.

2. The comparative studies of states and their components

Determining ‘the best’ form of the government

Most of the comparative lawyers take the view that an evaluation about the ‘best’ rules can be part of a comparative analysis. It is not always clear whether the main is to understand or evaluation. The question of causality is very controversial. On the one hand, there is the view that economic development stimulates democracy. On the other hand, the researchers have found that democracy leads to a long-run prosperity, and that it may also promote peace and reduce conflicts. An objection to both of these views is that there are many shades of democracy. A possible problem with these categories is that the formal constitutional rules and practice often diverge. Traditionally, lawyers (so also the comparative lawyers) are mainly interested in the formal rules. But the research on how the state ‘works’ also needs to be considered.

Comparing ‘state in action’

The traditional comparative law tends to be fairly legalistic, but it is not uncommon that the comparatists also want to consider the law in practice. Another reason for researching this ‘law in action’ is that it can challenge the hypothesis that law is independent from politics. An example of the topic ‘state in action’ is the research on the way law-making works in different countries.

Classifying and evaluating the policy choices

Classifying countries on basis of policy choices is closely related to the way legal systems are classified into legal families. These classifications are not beyond doubt, but they may have the advantage that they correspond to a convenient middle way, namely that rejects the extremes of particularism and universalism. Classifications can moreover be seen as test cases to determine which one of the respective models are preferable.
In comparative politics, the political economy and social policy, two classifications can be distinguished. The first one is the distinction between ‘three worlds of welfare capitalism’ and the second is that of ‘varieties of capitalism’.

3. The comparative studies of societies and cultures

Understanding the differences and similarities between the legal systems

The most frequent position in comparative law is that there are both similarities and differences between countries. This view can be distinguished from the more radical counter-views that all legal systems are unique or that all are similar. The research by Emile Durkheim and Max Weber are good examples of researches that try to understand the differences and similarities between societies. Durkheim distinguished between, on the one hand, pre-modern societies with mechanical solidarity and using repressive sanctions and on the other hand, modern societies with organic solidarity.

An important question is why particular cultures and societies are similar, beyond obvious reasons like geography and language. In the anthropology this is discussed in connection with the ‘Galton’s problem’. Tylor presented around the 19th century his anthropological research which was showing the deep commonalities between cultures. Galton objected that these similarities could equally be due to the cross-cultural borrowing. This concept of cultural diffusion has become a frequent topic in the 20th century. The sociologists have explored how ideas are communicated and received across the societies, in this way possible channels of communications and stages of adaption were identified. Economists are also use the concepts of demands and supply as they relate to ideas. The evolutionary psychologists are distinguishing between genetic and cultural evolution. All these researches are interesting for comparative law, because the spread of ideas may lead to socio-cultural changes, which will determine the legal changes and may explain the differences and similarities between legal systems.

Showing the legal universalities and singularities

In the traditional comparative law there is support for legal universalities, but the postmodern comparative law often takes the view of legal singularities. These two views also play a role for other topics of comparative law, like the transferability of human rights and the globalisation of rules. It is interesting that some researches in anthropology and other social sciences also takes the view that there is universality in law and other favour the singularities.
Anthropology has a natural affiliation with the universalities, because it aims for the elucidation of the human condition. The problem with these researches is that the anthropologists do fieldwork in a particular place, so if the findings are really applicable for all human beings, is doubtful. The research on the human commonalities had at least the impact that it is seen as inappropriate to threat certain cultures and societies as primitive or childlike.

Some scholars in other disciplines also suggest universalist views with relevance to the law. The idea of common law of all nations is an early example.
The particularist counter-view is that it is the aim of comparative research to challenge the ethnocentric views that assume that what’s familiar is also universal.

In the recent years, interpretative and postmodern approaches to anthropology have also been sceptical about the positivist claims of universality. It would also no longer be appropriate to identify all the particularists as having a relativist position, since contemporary anthropologists don’t shy away from making policy recommendations.

Measuring the legal mentalities and their relevance

A frequent topic of postmodern comparative law is the importance of alleged or real differences in legal mentalities. This can also be related to other topics like legal families and legal transplants. It also overlaps with themes of numerical comparative law. The background of most measurements is provided by comparative surveys which collect information on various topics like income, work, education and crime. The cross-national surveys face various challenges: the literature discusses problems like the comparability of translations, differences in the response styles and the lack of context for broad survey questions. An alternative to the surveys is to conduct the same experiments in different societies.

4. Conclusion

This chapter has illustrated that also in other disciplines there is research on comparative law. Comparative lawyers have to be aware that other disciplines, even if they use a more scientific terminology and method, they hardly provide certainty.
In the social sciences there is a wide variation, ranging for universalist to relativist views. It is unlikely that one of those views gets everything right. So, it is suggested that comparative lawyers should adopt a position that tries to incorporate diverse methods and views into their thinking. By doing so, the implicit comparative law will become explicit.

Practice questions

  1. Quantitative research can also be either descriptive or inferential, what is the difference?

  2. Which method should the comparatist choose?

  3. What is important to consider according to the choice of units to compare?

  4. What can be said about Determining ‘the best’ form of the government?

  5. What can be said about comparing ‘state in action’?

  6. What is the difference between legal universalities and singularities?

  7. What is the problem with anthropology researches?

Which conclusions can be made about comparative law? - Chapter 12

It has been said that comparative law is an open subject and that it can absorb further research which is not traditionally included. Being an open subject means that one has to be sceptical about recommendations to establish a fixed canon of comparative law. This does not imply a methodological relativism where anything is possible: the methods has to be judged critically on basis of their advantages and disadvantages. In this book the view has been taken that contextual and interdisciplinary approach are a promising way forward to comparative law.

1. The further directions of implicit comparative law

It has been acknowledged in Chapter 11 that the account of implicit comparative law is highly selective. The main examples of this chapter were from the social sciences. The reason for this is that in these fields there are number of instances where non-legal researchers have dealt with topics of genuine comparative legal nature. The inspiration which comparative lawyers can get from humanities and natural sciences is more about the non-legal phenomena. What is the relationship between comparative law and other disciplines? This book has mainly considered that other disciplines can be helpful to the comparative law, but it should not be one-way traffic. There is a need to foster cross-disciplinary communication.

2. Revisiting the explicit research in comparative law

Part I (Chapters 2 to 4) included some critical remarks on the conventional method of comparative law, especially functionalism. The discussions in this book have shown that, today, the comparative lawyers use a variety of further methods. This can not seen as a default option anymore, the comparatist needs to justify the method she plans to employ. The first part also dealt with the distinction between legal families. The view that today’s legal world can be divided into common law, civil law and other legal families can be challenged.

Part II (Chapters 5 to 7) reflected on the general changes in the comparative law, like postmodern, socio-legal and numerical methods, it was said that these were welcome developments. In a appropriate research project, making the second step can be valuable, but the comparative lawyers does not need to have an inferiority complex.

Part III (Chapters 8 to 10) started with the legal transplants. There is no trend of simply copying foreign laws anymore, but it is still a useful conceptual tool. Research in other fields can be helpful, because it can show the availability and advantages of policy choices.
It can also be rewarding for comparative lawyers to consider differences below the state level and also drawing on the research from other disciplines.
The topics in the third part have illustrated the dynamic nature of comparative law. The substance of the comparative law is shaped by a broad political climate.

3. Conclusion

The aim of this book was to steer comparative law into a more contextual direction. Linking comparative law with other comparative disciplines can be seen as a promising way forward. The comparative lawyers are trained in law. So, the challenge is the lack of familiarity with other comparative disciplines. However, it’s not suggested that all of the comparative legal research will become fully interdisciplinary. Different levels of interdisciplinary can be distinguished, ranging from basic to advanced types. Which of these types is preferable to the comparatist, depends on the nature of the problem and the preferences and skills. It is also suggested that comparative lawyers are specifically equipped for the challenges of learning the unfamiliar.

Practice questions

  1. What does it mean that that comparative law is an open subject?

  2. What is the relationship between comparative law and other disciplines?


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Summary with the 2nd edition of International Institutional Law by Klabbers

Summary with the 2nd edition of International Institutional Law by Klabbers

How are international organizations defined and influenced? - Chapter 1

The activities of international organizations are subject to law, and give rise to law. Each and every international organization has a set of rules relating to its own functioning. As international organizations do not exist in a vacuum, their activities are also bound to exercise some influence on other legal systems, and absorb the influence of such systems. While it is possible that international organizations are influenced by, and exert influence on, the law of individual nation-states, the more direct and influential links usually exist within the body of rules known as international law.

What does the critical legal theory say?

The law of international organizations is still somewhat immature. On numerous points the law lacks certainty. In particular, international legal doctrine has a hard time coming to terms with the relationship between an international organization and the very states which are its members. On the one hand, the law is supposed to respect the interests of individual states. Yet at the same time, the law must also take the interests of the international community into account. Following the critical legal tradition, international law is bound to swerve back and forth between these two poles of sovereignty and community. It is this tension which makes international legal rules often ultimately uncertain. This tension also reflects in the law of international organizations, for example regarding the so-called principle of attribution of powers. Strict adherents to the notion of state sovereignty will not easily admit the existence of implied powers; yet for the protection of community interests, an implied power may well be deemed desirable.

The main benefit of critical legal theory is its capacity to make visible the inherent tensions and contradictions which help shape the law. In this way it can provide great services in understanding international institutional law.

How are international organizations defined?

What exactly is an international organization? While it is structurally impossible to define in a comprehensive manner, something which is a social creation (social constructs, created by people in order to help them achieve some purpose) to begin with, it is common in the literature to delimit international organizations in at least some ways. One delimitation often made depends on the body of law governing the activities of the organization. If those activities are governed by international law, we speak of an international organization, or at least of an intergovernmental organization. If those activities are governed by some domestic law, we usually say that the organization in question is a non-governmental organisation.

Usually, those organizations that are subject to international law will have a number of characteristics in common:

  • Created between states: international organizations are usually created between states, or rather by duly authorized representatives of states.

However, there are international organizations which are themselves members of other international organizations, and not all creatures created by states are generally considered to be international organizations.

  • Established by means of a treaty: the creation of (many, not all) international organizations was done in the form of a treaty, which international law in general terms defines as a written agreement, governed by international law. And as the treaty will be governed by international law, so too will the organization.
    However, some organizations have not been derived by treaty but by the legal act of an already existing organization. The UN General Assembly has created several organizations by resolution. Furthermore there is an evident tendency to remain vague about intentions when creating international institutions. Sometimes legal status en structure remain subject to debate.

  • An organ with a distinct will: the organization must possess at least one organ which has a will distinct from the will of its member states. The characteristic of the distinct will goes to the heart of the entire concept of international organization: the problematic relationship between the organization and its member states. The international organization must insist on having such a distinct will. Otherwise, it becomes indistinguishable from other forms of co-operation.

What is the legal position of international organizations? - Chapter 3

International organizations are counted among the subjects of international law. They are deemed capable of independently bearing rights and obligations under international law. As the ICJ recognized in the Reparation for Injuries opinion, the subjects of international law may come in various shapes and guises. There is no standard set of rights and obligations for each and every subject of international law.

What indicators of ‘subjectivity’ are there?

Given the fluid nature of the very notion of subjects of international law, and the circumstance that different subjects may entertain different sets of rights and obligations under international law, the precise degree of rights and obligations is a matter of analysis, and as a starting point most international lawyers will determine the extent of ‘subjectivity’ of any possible subject with the help of three indicators:

  • Treaty-making capacity (jus tractatuum). At present, the treaty-making capacity of international organizations has been accepted. What is still a matter of debate, is where this capacity springs from, or more specifically, whether such power derives directly from public international law or rather from the constituent instrument of the organization in question. The 1986 Vienna Convention on the Law of Treaties appears to choose the first option. According to its preamble, ‘international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purposes’, suggesting that capacity derives from international law. Article 6 of the same convention further specifies in holding that ‘the capacity of international organizations to conclude treaties is governed by the rules of that organization’. Thus, while capacity stems from public international law, it is governed (and potentially limited) by the specific rules of the organization.

  • The right to send and receive legations (jus missionis). A number of international organizations have permanent missions with states, and states have permanent missions with international organizations. Moreover, it is far from unique for international organizations to have missions with one another, and other entities may have missions as well. The existence of the jus missionis is also indicated by the conclusion of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.

  • The right to bring and receive claims. As early as 1949 the ICJ affirmed that international organizations may have the capacity to bring international claims. It did so in its Reparation for Injuries opinion, and the Court appeared to imply that the right to bring claims was inherent in being an organization.

What is the legal personality under domestic law?

Hypothetically, entities can possess legal personality under any legal system, dependent on whether they meet the requirements which that legal system posits for acceptance of the entity’s personality. Each legal system is, essentially, free to develop its own requirements. That is not to say that those various differing legal personalities are unrelated. A legal person under the laws of state X may often be recognized as having personality by state Y, as comity may demand that state Y will not debate the validity of grants of personality by state X. Moreover, domestic legal systems used to look at international law for guidance: entities could be granted domestic personality on the basis of them already having been granted international legal personality.

Nowadays, many constituent treaties of international organizations make some form of provision as regards their personality under the domestic law of their member states. For example, Article 104 of the UN Charter states: ‘The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purpose’. This formula reflects something of a functional necessity test.

Such provisions (granting a broad scope of personality under domestic law) can only affect the organization’s position within its member states. This is an important principle of the law of treaties: the pacta tertiis maxim, holding that states cannot create rights and obligations for third parties without the consent of those third parties. Considerations of international law hardly enter the picture on this issue. The Arab Monetary Fund v. Hashim case illustrates to what extent issues of international and domestic law may get entangled when it comes to personality under domestic law as well as a fundamental degree of uncertainty concerning the legal nature of international organizations themselves. The domestic legal personality of an organization may also extend to its organs, and even its subsidiary bodies.

What is the international legal personality?

The position of international organizations in various domestic legal systems is usually explicitly provided for in the constituent treaty of the organization; the main problem to overcome then is the position in non-member states. The debate on the international legal personality of organizations has been dominated by two theories, both of which invoke the International Court’s opinion in Reparation for Injuries in support: the ‘will theory’ and the ‘objective theory’ of personality:

  • Will theory: it is the will of the founders of the organization which decides on the organization’s legal personality. Thus, if the founders intend to endow their creation with personality under international law, then such will be the case. It is difficult to go against states’ wishes in international law, so when states have clear intentions concerning the legal personality of international organizations they have established, then those intentions must be respected.

    A serious problem is that relatively few constituent treaties explicitly provide for the international legal personality of organizations. Another problem for the will theory is that it opens up the possibility that international legal personality of an organization is an empty concept: what if states wish to create an international organization with international legal personality, yet no one is willing to enter into relations with it? Many advocates of will theory resort to recognition by third parties of an organization’s international legal capacity, but that renders the will theory incoherent: then the importance of the will of the founders becomes difficult to sustain.

  • Objective theory: the legal personality of international organizations follows the same pattern as that of states: as soon as an entity meets the requirements that international law attaches to its establishment, that entity possesses international legal personality. What are the main requirements of international law for possessing international legal personality? The main criterion is that the organization must possess a distinct will of its own. However, considering that most organizations cannot bind members unless the decision is unanimous, the organizations’ distinct will can usually be traced back to the member states. Moreover, the objective theory raises the prospect of going against the intentions of the founders, and therewith elevates itself to jus cogens status.

Practice has shown a more pragmatic approach to the questions of international legal personality, presumptive personality: as soon as an organization performs acts which can only be explained on the basis of international legal personality, such an organization will be presumed to be in possession of international legal personality. Thus, an organization will be presumed to have international legal personality unless and until the opposite can be shown.

Concluding remarks

Presumably, the main position regarding the personality of international organizations in domestic law is that personality is controlled by the rules of the organization. However, under international law personality is, pragmatically, treated as a presumption, to be rebutted if the evidence points in the other direction.

Despite the International Court’s suggestion in Reparations for Injuries, personality seems by no means a threshold which must be crossed before an entity an participate in international legal relations; instead, once an entity does participate, it may be usefully described as having a degree of international legal personality.

What doctrines of powers are there? - Chapter 4

International organizations can only work on the basis of their legal powers. Organizations have acquired certain powers to found their actions on, and once they act beyond those powers, their acts may be declared invalid. That raises the fundamental question of where organizations derive their powers from. Because of the limited number of studies on this topic, questions on the origin and scope of the powers of international organizations have to be answered with the help of court decisions. In a request for an advisory opinion submitted to the Permanent Court of International Justice (PCIJ) in 1922, the International Labour Organizations wondered whether its powers extended to regulation of the conditions of labour in the agricultural sector. The question of the proper scope of the powers of international organizations was regarded merely as a matter of interpretation. No doctrine emerged out of those first opinions of the Court: legal questions were simply to be answered by reference to the established canons of treaty interpretation, rather than political principles (such as national sovereignty) or social theories.

What is the doctrine of attributed powers?

In an advisory opinion on the Jurisdiction of the European Commission of the Danube between Galatz and Braila (1926), the PCIJ formulated what would later be called the principle of speciality or the principle of attribution: ‘As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.’ This positivist mode of thinking became especially clear in the 1927 Case of the SS Lotus, where the Court made it clear that, as a matter of principle, restrictions on sovereign freedoms are not lightly to be presumed. Instead the rules of international law emanate from the free will of sovereign states, as the Court famously held, and from there it is only a small step to proclaiming that organizations must remain within the powers conferred upon them.

The idea behind attribution is, quite simply, that international organizations, and their organs, can only do those things for which they are empowered. Perhaps the clearest expressions hereof are to be found in Article 4 and 5 of the Treaty on European Union. Article 4 relates to member states' sovereignty and obligations. Article 5 sets out the principles of conferral, subsidiarity and proportionality with respect to the limits of its powers. The UN Charter too promises member states that the UN shall not intervene in matters which are essentially within their domestic jurisdiction (article 2, para. 7). Moreover, article 24, para. 2 UN provides that the Security Council shall act in accordance with the purposes and principles of the UN Charter, and article 11 jo. article 10 UN make clear that there are some limits to the powers of the General Assembly.

Its obvious attractions not withstanding, the principle of attribution encounters at least two problems. Theoretically, if the notion of attribution is taken to its extreme, then organizations are little more than the mouthpieces of their member states, and, if that is so, then their very raison d’être comes into question: why choose the particular form of an organization instead of, for example, a series of occasional conferences?

An objection with more fundamental consequences in practice, is that while the notion of attribution may be a nice point of departure when it comes to discussing the powers of international organizations, organizations are usually held to be dynamic, in constant development, and it is accepted that their founding fathers can never completely envisage the future. The constituent documents of organizations necessarily come with gaps, and the organizations should not be limited to those powers granted to it upon its creation; instead the organizations must be allowed some flexibility. It must be allowed certain powers which, while not expressly granted, are granted by implication. And it is this thought, the so-called doctrine of implied powers, which is at the heart of most of the talk about the powers of international organizations.

What is meant by the doctrine of implied powers?

There are at least two ways in which implied powers have been found to exist. The first holds that implied powers flow from a rule of interpretation which itself holds that treaty rules must be interpreted in such a way as to guarantee their ‘effet utile’: they must be interpreted so as to guarantee their fullest effect. This approach to the implied powers doctrine was embraced by the PCIJ in its advisory opinion of 1928 on Interpretation of the Greco-Turkish Agreement of December 1st, 1926 and later in a similar fashion by the Court of Justice of the European Community for Coal and Steel, who argued in

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Samenvatting bij Constitutions compared: An introduction to comparative constitutional law - Heringa

Samenvatting bij Constitutions compared: An introduction to comparative constitutional law - Heringa

Samenvatting bij het boek 'Constitutions compared: An introduction to comparative constitutional law' van Heringa - 3e druk

Introductie in de vergelijking van constitutioneel recht - Chapter 1

1.1 Inleiding in het constitutioneel recht

Het vergelijken van internationale grondwettelijke systemen helpt ons om ten eerste ons eigen systeem beter te begrijpen en te waarderen en om onze blik hierover te verbreden. Vergelijking zorgt er ook voor dat we kritisch naar ons eigen systeem kunnen kijken. Vergelijking heeft daarmee een educatief doel.

Ten tweede kan rechtsvergelijking kan helpen om grondwetten uit te bouwen en verder te ontwikkelen. Hiermee kan geleerd worden van fouten die zijn gemaakt in andere systemen.

Ten derde is rechtsvergelijking cruciaal voor de ontwikkeling van internationale organisaties.

Aan de andere kant zou men kunnen zeggen dat rechtsvergelijking nutteloos is omdat landen onderling te veel verschillen in historie, cultuur, populatie etc. Hierdoor zijn rechtssystemen niet goed te vergelijken. Een ander argument tegen het vergelijken van constituties kan gevonden worden in de verschillende manieren waarop rechtsregels in landen wordt geïnterpreteerd door rechters. Men kan hierbij denken aan de uitspraak Roper vs. Simmons (543 U.S. 551). Hierin besliste het Supreme Court dat de doodstraf wreed en ongebruikelijk is, gebaseerd op de praktijk in andere landen.

Indien men gebruik maakt van rechtsvergelijking, moet er daarom altijd rekening worden gehouden met de reden waarom het gebruikt wordt.

1.2 De betekenis en de rol van een constitutie

De formele betekenis van constitutie is: een centraal geschreven document dat de basisregels weergeeft die van toepassing zijn op de overheid en andere politieke organen, met name staten. Men noemt dit een ‘constitution’, ‘basic law’ of ‘charter’. Het kan echter ook een bredere betekenis hebben. Het gaat dan om het geheel van fundamentele regels waar overheid en andere politieke organen zich aan moeten houden. Deze regels zijn verzameld in één document of in meerdere. Daarnaast kan het gaan om geschreven recht en gewoonterecht.

Een constitutie:

  • Geeft macht aan publieke autoriteiten;

  • regelt de fundamentele relaties tussen publieke autoriteiten en

  • regelt de fundamentele relatie tussen de publieke autoriteiten en individuen.

Dit is een technische benadering van het begrip constitutie. In sommige landen zullen constituties een diepere sociale betekenis hebben. Soms houdt het een breuk in met het verleden of codificeert het een contract tussen bewoners en hun machthebbers. In ieder geval moet een constitutie macht geven en de uitoefening van deze macht reguleren.

Men kan het constitutionele recht verdelen in twee gedeeltes:

  • Grondrechten: dit regelt de manier waarop de staat en zijn instituties functioneren.

  • Mensenrechten: deze moeten de burger beschermen tegen de staat door de relaties tussen publieke autoriteiten en het individu te reguleren.

Ook als een staat geen geschreven grondwet heeft kan het alsnog een constitutie hebben, een voorbeeld hiervan is Engeland. Engeland heeft geen constitutie in de nauwe/formele zin, maar wel in de brede zin. Daarnaast kan het ook zo zijn dat staten die wel een geschreven grondwet hebben, daarnaast ook nog ongeschreven regels hanteren. Internationaal recht kan ook effect hebben op het nationale grondwettelijke recht. Ook gewoonterecht kan in een bredere zin invloed hebben op de constitutie.

Een constitutie in nauw opzicht, het document dus, kan niet het geheel van constitutie in de brede zin bevatten. Gewoonterecht, jurisprudentierecht etc. zijn onderdeel van de brede constitutie.

Een andere nuttige onderscheiding kan men maken tussen de geschreven en de geldende constitutie. Het formele constitutierecht is dat wat is geschreven, de geldende constitutie is het geheel van regels en percepties ten aanzien van dit document. Uit deze onderscheiding volgt nog een argument tegen het vergelijken van rechtsstelsel: de vergelijking kan alleen geschreven constituties omvatten, het is onmogelijk om het geheel van werkende constituties te vergelijken.

Er zijn gevallen waarin de werkende constitutie dermate afwijkt van de geschreven constitutie dat het geschreven document zo goed als geen betekenis meer heeft. Denk hierbij aan communistische regimes of regimes met een dictator als leider.

Het idee van een gelimiteerde overheid, waarbij de macht van publieke organen wordt beperkt door een constitutie, noemt men ‘constitutionalism’. Men kan zich afvragen wat er gebeurt als een publiek orgaan zich niet aan de regels houdt. Het antwoord op deze vraag is afhankelijk van het nationale systeem. Vaak wordt er door verschillende onderdelen controle uitgeoefend op het misbruiken van macht.

1.3 De flexibiliteit van constituties

Constituties hebben een speciale status. Dit blijkt onder andere uit het feit dat als men het wil veranderen, dit moet worden gedaan volgens een speciale procedure. Sommige belangrijke onderdelen kunnen zelfs helemaal niet worden veranderd. Constituties die moeilijker te veranderen zijn dan normale wetgeving noemt ment ‘rigid constitutions’ of ‘entrenched constitutions’.

Een typische procedure voor ‘rigid’ of ‘entrenched’ constituties zijn procedures die twee meerderheden in het parlement vereisen (zoals Duitsland en Portugal); twee parlementaire behandelingen van het voorstel en nieuwe verkiezingen (Nederland en Zweden); ratificatie van het voorstel in territoriale onderdelen (VS en India) of een referendum (onder andere Australië en Frankrijk).

Het veranderen van de constituties is per land verschillend. In Duitsland zijn er enkele fundamentele regels die niet veranderd kunnen worden: mensenrechten en het federale karakter zijn daar voorbeelden van. De Franse constitutie laat geen verandering toe in het republikeinse karakter van de overheid. De strengheid die kan worden gehanteerd bij het veranderen van de constitutie kan zitten in de procedure of in het bereik van de constitutie. De meest strenge zijn de constituties die alleen kunnen worden veranderd door unanimiteit.

Tegenover de rigide constituties staan de flexibele constituties. Een voorbeeld hiervan is de constitutie van Engeland. Omdat deze niet is vastgelegd in en een document, zijn er ook geen voorgeschreven procedures nodig om veranderingen aan te brengen. Deze flexibiliteit moet echter niet verward worden met willekeur. Gewoontes kunnen moeilijker te veranderen zijn dan teksten.

De flexibiliteit van een constitutie ziet veelal op formele vereisten voor wijzigingen. Ook al is een constitutie formeel gezien moeilijk te veranderen, dan zegt dit nog niks over de veranderbaarheid van de materiële inhoud van die constitutie. De wezenlijke veranderbaarheid hangt af van de mate waarin de tekst is geaccepteerd in de nauwe zin en hoe het evolueert met de samenleving mee. Daarnaast kan de interpretatie van rechters ook een rol spelen bij het bepalen van de flexibiliteit van de constitutie. Duitse rechters kunnen bijvoorbeeld een wet interpreteren in het licht van nieuwe maatschappelijke ontwikkelingen. Het Europese Hof voor de Rechten van de Mens interpreteert ook dynamisch. De Verenigde Staten worstelen tussen een liberale behandeling met betrekking tot het interpreteren en een meer letterlijke, conservatieve, benadering.

Men kan nog een onderscheid maken in de verschillende constituties: de manier waarop zij zich ontwikkelt. In beginsel is het ontstaan van een nieuwe constitutie het begin van een nieuwe samenleving. Dit noemt men een revolutionaire constitutie omdat het een evenement markeert dat een transformatie aangeeft. De constitutie wordt dan meestal gecreëerd in een ‘constitutional moment’: een speciaal moment in tijd waarin een oud document wordt omgezet naar een nieuwe.

Het tegenovergestelde hiervan is een evolutionaire constitutie. Deze ontwikkelt zich in de loop der tijd. Een voorbeeld hiervan is de constitutie van Engeland. Ook het Europese recht zou men evolutionair kunnen noemen, er ontstaan steeds nieuwe verdragen en jurisprudentierecht zorgt ervoor dat het recht zich blijft ontwikkelen.

1.4 Termen en begrippen

1.4.1 Staat

Het woord staat kan verschillende betekenissen hebben. Één mogelijkheid is staat als publieke autoriteit, staat wordt vaak gebruikt als synoniem voor overheid. Er zijn nog twee andere relevante betekenissen:

  • Staat als in soeverein land: een socio-politieke entiteit met zijn eigen instituties om controle uit te oefenen over zijn bevolking en territorium. Dit is de betekenis van staat in het publieke internationale recht.

  • Staat als federale entiteit: sommige landen hebben een federale structuur en bestaan uit onderdelen die men staten noemt, bijvoorbeeld de VS, maar ook landen als India, Australië, Duitsland en Brazilië.

1.4.2 Land

In spreektaal is land vaak hetzelfde als staat. In Engeland, Schotland, Wales en Noord-Ierland is dat echter anders, men noemt ze: ‘countries of the UK’. Nederland bestaat ook uit verschillende landen: Nederland, Aruba, Curaçao en Sint-Maarten. Indien soevereine landen worden bedoeld zal voortaan de term staat worden gebruikt.

1.4.3 Natie

Deze term wordt ook vaak gebruikt als synoniem voor staat. Strikt gezien is een natie echter een ethisch-culturele categorie. Men refereert vaak naar het woord natie in de zin: elke natie verdient zijn eigen staat. In dit boek zal de term natie zoveel mogelijk worden vermeden.

1.4.4 Overheid

Dit zijn de belangrijkste betekenissen:

  • Overheid als in staatsorde: verwijst naar het geheel van organen van een publieke autoriteit. Wetgevende macht, uitvoerende en rechtsprekende macht worden gezien als de drie onderdelen van een overheid.

  • Overheid als in uitvoerend: dit is het geheel van ministers en secretarissen die de uitvoerende macht hebben binnen de overheid. Men gebruikt het dan als synoniem voor het woord kabinet.

  • Overheid als in regeringsmeerderheid: in parlementaire stelsels zijn de politieke partijen die de meerderheid hebben in het parlement samen de overheid. Zij zijn bevoegd tot het samenstellen van een kabinet, ze kunnen echter ook worden gezien als overheid zelf.

In het boek zal de term overheid worden gebruikt op de manier die het meest voor de hand ligt in de context, meestal zal het zijn in de zin van kabinet of uitvoerend.

1.4.5 Republiek

Deze term wordt meestal gebruikt om een systeem van regeren aan te geven en de staat die dit systeem gebruikt.

Een staat die zichzelf een republiek noemt heeft een hoofd dat geen monarch is. Een republiek is dus het tegenovergestelde van een monarchie. De term republiek kan ook worden gebruikt in de naam van een staat om de manier van regeren aan te geven: ‘French Republic’ of ‘Federal Republic of Germany’. Niet alle landen laten hun republieke karakter uit hun naam blijken.

Het woord republiek komt van de Latijnse term res publica. Dit betekent gezamenlijke zaken. In de Romeinse geschiedenis stond de republiek voor de periode waarin de publieke macht was verdeeld binnen verschillende instituties binnen een complex systeem.

De term republiek kan ook worden gebruikt om een periode aan te duiden waarin er sprake was van een republikeinse staat, wanneer bijvoorbeeld de monarch is afgezet of de periode voor het ontstaan van een monarchie.

Soms gebruikt men een nationale term in plaats van de Latijns naam republiek. In Duitsland kent men het woord Freistaat. In Estland kent men het begrip Vabarikk, wat ook vrije staat betekent. Engeland kende in de zeventiende eeuw het begrip Commonwealth, dit is min of meer een letterlijke vertaling van het Latijnse res publica.

Dat een staat een monarchie is wil niet zeggen dat het wordt geregeerd door één persoon. De meeste Europese monarchieën zijn constitutionele monarchieën. De macht van de monarch is in deze monarchieën gelimiteerd door de constituties. Hierdoor kunnen monarchieën in de praktijk functioneren als republiek, ze hebben democratische vertegenwoordiging, worden geregeerd door de meerderheid, kennen machtenscheiding en beperken de macht van de overheid in de wet. Absolute monarchieën zijn zeldzaam: Het Vaticaan, Swaziland, Brunei, Saudi Arabie en enkele emiraten zijn de laatste.

Een groot voordeel van een democratie gecontroleerd door de wet is systematische stabiliteit en duurzaamheid op de lange termijn. Dit komt doordat het de overgang van macht op een vreedzame manier reguleert. Een zwakke plek van de democratie ligt in de korte termijn, het is kwetsbaar voor verplaatsingen van autoriteiten die de democratie gebruiken om de democratie zelf uit te spelen. Veel democratieën hebben een mechanisme dat dergelijke verschuivingen tegen kan gaan.

Monarchieën hoeven niet per se een erfelijke basis te hebben, ze kunnen ook op een kiessysteem zijn gebaseerd.


1. Geef drie redenen waarom het vergelijken van internationale grondwettelijke systemen nuttig kan zijn. 

2. Geef twee redenen waarom dit juist niet het geval is.

3. Omschrijf zowel de strikte als de bredere betekenis van het begrip constitutie. 

4. In welke twee delen kan men het constitutionele recht verdelen? Geef van elk deel een voorbeeld. 

5. Wat is het verschil tussen de geldende en de geschreven constitutie? 

6. Wat wordt bedoeld met de term ‘rigid constitution’ en waarom is dit op bepaalde constituties van toepassing? 

7. Wat is het tegenovergestelde van een ‘rigid constitution’? Geef hier een voorbeeld van.

8. Welke drie betekenissen kan het woord ‘staat’ hebben? 

9. Welke drie betekenissen kan het woord ‘overheid’ hebben? 

10. Noem een voordeel en een nadeel van een democratie. 

Constituties vergeleken: de belangrijkste kenmerken en herkomst - Chapter 2

2.1 Een overzicht van het hoofdstuk

De huidige constituties van de VS, Nederland, Frankrijk en Duitsland kunnen worden gezien als een poging om een oudere versie te vervangen voor een nieuwe.

2.1.1 De notie van soevereiniteit

De maker van de constitutie is niet meteen de fysieke auteur, het is eerder de entiteit onder wiens autoriteit de constitutie is ontwikkeld. Deze autoriteit loopt samen met de soevereiniteit. Dit is de bron waar alle macht vandaan komt. De meeste constituties komen voort uit een autoriteit die is uitgevaardigd door de bevolking. Dit noemt men populaire soevereiniteit. Dit is de ultieme macht om autoriteit uit te voeren.

Externe soevereiniteit ziet op de mogelijkheid die een staat heeft om controle uit te oefenen over de bevolking en haar territorium zonder bemoeienis van buitenaf. De interne soevereiniteit is de originele bron van publieke autoriteit in de staat zelf. Soevereiniteit is in deze zin een abstracte notie. Populaire versus Koninklijke soevereiniteit

In absolute systemen is de koning de originele bron van alle publieke autoriteiten. Deze soevereiniteit gaat vaak gepaard met een religieuze claim: ‘by the grace of God’ of ‘divine rights’. In deze gevallen blijft de koning ook soeverein als zijn bevolking een constitutie krijgt. Voornamelijk in de negentiende eeuw, toen de ideeën van de Franse revolutie zich gingen verspreiden, besloten veel monarchen een constitutie in te voeren om de bevolking te sussen. De constitutie was bedoeld om de macht van de publieke autoriteiten te limiteren en richting te geven. Deze constituties deden echter niets af aan de macht van de monarch, deze kon de constitutie wijzigen of intrekken wanneer hij wilde. Deze documenten ging men later ‘constitutions ectroyées’ of ‘imposed constitutions’ noemen. Populaire versus Nationale soevereiniteit

Er valt een onderscheid te maken tussen populaire soevereiniteit, de soevereiniteit van de mensen, en nationale soevereiniteit, soevereiniteit van de natie. Nationale soevereiniteit is ontstaan door de ‘French Declaration of the Rights of Man’ in 1789. Nationale en populaire soevereiniteit worden vaak door elkaar gebruikt, er zit echter wel een verschil in. Het verschil is dat mensen (de populatie) een concrete en echte entiteit zijn: een bestaande populatie op een bepaald moment. De natie daarentegen is iets meer abstract en filosofisch, het valt niet samen met de huidige populatie. In een systeem met betrekking tot volkse (populaire) soevereiniteit is de soevereine bevolking in staat om via zijn wil een verandering te brengen in de constitutie. Een natie is abstract en kan niet op zichzelf handelen, een natie kan alleen handelen via de vertegenwoordigers. Dit kunnen mensen zijn, maar dit is niet noodzakelijk.

Een praktisch voorbeeld hiervan is België. Soevereiniteit ligt in dit land niet bij de mensen, maar bij de natie. De natie is vervolgens gedefinieerd als alle Belgen die ooit hebben geleefd, die nu leven en die er gaan leven. De huidige populatie van België is dus niet de natie. De natie wordt vervolgens vertegenwoordigd door het parlement. De natie, dus niet alleen de stemmers. Een gevolg hiervan is dat het gerechtigd kan zijn om referenda uit te sluiten omdat de Belgische bevolking niet de soeverein is en ook niet de natie vertegenwoordigt (dat doet het parlement). Populaire versus Staatssoevereiniteit

Een potentiële moeilijkheid met betrekking tot volkse soevereiniteit in federale systemen ligt in de mogelijke stelling van individuele staten dat zij hun eigen soevereiniteit willen. Machten die niet gedelegeerd zijn op het federale niveau zijn de soevereine krachten van de individuele staten. Parlementaire soevereiniteit

Engeland staat bekend om het toewijzen van soevereiniteit aan het parlement. Het Parlement in Engeland is een ‘King-in-Parliament’. Dit is een constructie waarbij wetten worden aangenomen door het parlement waarna ze de steun krijgen van de monarch. Soevereiniteit van het parlement houdt hierdoor wetgevende heerschappij in. De ‘acts of Parliament’ zijn het hoogste recht van het land. Bijna niemand kan deze buiten werking stellen. Alleen de ‘King-in-Parliament’ mag voorgaande wetgeving buiten werking stellen. De koning noemt men nog steeds soeverein, hij is gebonden aan de wil van het parlement. Het is belangrijk nooit de soevereiniteit aan de mensen toekent. Soevereiniteit in de zin van heerschappij ligt dus altijd bij het parlement en de monarch die samen handelen. De afwezigheid van soevereiniteit

De Nederlandse constitutie laat zich niet uit over de kwestie soevereiniteit. Dit is om conflicten te voorkomen. De regels die zien op relatie tussen de monarch, het parlement en de overheid worden bijna helemaal bepaald door gewoonterecht in plaats van constitutierecht. Om iets preciezer te zijn: Nederland functioneert als een democratische constitutionele monarchie met een parlementair systeem dat wordt beheerst door de rechtsstaat. Soevereiniteit en Europese integratie

Bij staten die zich bij de Europese Unie hebben aangesloten is de constitutie niet langer gebonden aan strikte nationale condities. De Europese Unie is onderdeel van het nationale recht en moet ook zo behandeld worden. Er zijn verschillende manieren waarop men de Europese Unie kan benaderen. Een vergaande benadering

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