Showing papers in "American Journal of Comparative Law in 1995"

Comparative Jurisprudence (II): The Logic of Legal Transplants

Abstract: WILLIAM EWALD is Assistant Professor of Law and Philosophy, University of Pennsylvania. This is the second of a series of articles attempting to re-examine the foundations of comparative law. The first in the series is, "Comparative Jurisprudence (I): What was it Like to Try a Rat?," 143 Penn. L. Rev. 1189 (1995). I should like to thank Stephen Burbank for his comments on an earlier version of this article, and for first having pointed out to me the importance of Watson's work for legal theory. 1. Watson's writings to date fill some twenty books and one hundred articles. They touch on much of Western legal history, but are centered on Roman Law and its subsequent influence in continental Europe. His chief works include: Contract of Mandate in Roman Law (1961); The Law of Obligations in the Later Roman Republic (1965); The Law of Persons in the Later Roman Republic (1967); The Law of Property in the Later Roman Republic (1968); The Law of the Ancient Romans (1970); The Law of Succession I The Later Roman Republic (1971); Roman Private Law Around 200 B.C. (1971); Law Making in the Later Roman Republic (1974); Legal Transplants: An Approach to Comparative Law (1974; 2d ed. 1993) [hereinafter Transplants]; Rome of the XII Tables; Persons and Property (1975); The Nature of Law (1977); Society and Legal Change (1977) [hereinafter Society]; The Making of the Civil Law (1981) [hereinafter Making]; The Sources of Law, Legal Change, and Ambiguity (1984); The Evolution of Law (1985) [hereinafter Evolution]; Roman Slave Law (1987); Failures of the Legal Imagination (1988); Slave Law in the Americas (1989); Studies in Roman Private Law (1991); Legal Origins and Legal Change (1991); Roman Law and Comparative Law (1991) [hereinafter Roman and Comparative]; The State, Law, and Religion: Pagan Rome (1992); Joseph Story and the Comity of Errors (1992); International Law in Archaic Rome: War and Religion (1993). Watson's articles that are most relevant to the present topic are: "The Definition of Furtum and the Trichotomy," 28 Revue d'Histoire de droit 197 (1960); "The Development of Marital Justifications for Malitiosa Desertio in Roman-Dutch Law," 79 Law Q. Rev. 87 (1963); "Some Cases of Distortion by the Past in Classical Roman Law," 31 Revue d'Histoire de droit 69 (1963); "Roman Private Law and the Leges Regiae," 82 Journal of Roman Studies 100 (1972); "Personal injuries in the XII Tables," 43 Tijdschrift voor rechtsgeschiednis 213 (1975); "Legal Transplants and Law Reform," 92 L.Q. Rev. 79 (1976); "Comparativc Law and Legal Change," 37 Cambridge L.J. (1978); "Two-Tier Law A New Approach to Law Making," 27 Intl. & Comp. L.Q. 552 (1978); "Society's Choice and Legal Change," 9 Hofstra L. Rev. 1473 (1981); "The Notion of Equivalence of Contractual Obligation and Classical Roman Partnership," 97 Law Q. Rev. 275 (1981); "Legal Change: Sources of Law And Legal Culture," 131 U. Pa. L. Rev. 1121 (1983); "An Approach to Customary Law," 1984 U. Ill. L. Rev. 561 (1984); "The Evolution of Law: The Roman System of Contracts," 2 Law & Hist. Rev. 1 (1984); "The Future of the Common Law Tradition," 9 Dalhousie L.J. 67 (1984); "Law

By chance and prestige: legal transplants in Russia and Eastern Europe

Abstract: GIANMARIA AJANi is Professor of Private Comparative Law, University of Trento, Faculty of Law. Director of the Department of Law, University of Trento. I wish to thank James Gordley, Professor of Law at the University of California, Berkeley, and Ugo Mattei, Professor of Law at the Universities of Trento and California at Hastings, for their helpful comments. Research for this paper has been done at the University of California, Berkeley and San Diego, and at the University of Leiden, in The Netherlands. 1. This article deals with the fact of a widespread borrowing of legal models in post-Soviet States and Central and Eastern Europe; it also raises some questions on the effects of that borrowing. In order not to lose the focus of this study, I have not entered the terminological debate on the meaning of current notions used to explain legal change. "Legal transplants," "circulation," "influence," "borrowing," are used here as words that refer to the same phenomenon: a wide supply of scholarly and statutory legal models to post-socialist legislators. This is not to say that I do not consider the difference between a set of more general terms (such as borrowing, or influence) that indicate the process of legal change, and narrower concepts (such as legal transplants, or reception), that refer to the result of a circulation. A second note is related to the aptitude of the new models to match the needs of post-socialist societies. Here I am simply casting some doubts on the consistency between the contents of new models supplied by foreign institutions and the needs of the post-socialist economies. Further research on the implementation of the borrowing, as well as on the role of legal professions in the application of new solutions, will help us to understand the capacity and the significance of legal reforms in post-Soviet states and Central and Eastern Europe. On terminology see Wise, "The Transplant of Legal Patterns," 38 Am. J. Comp. L. 1 (1990 Supp.). Following Wolfgang Wiegand: "It is possible to differentiate between transfer, transplantation, importation and reception. A closer observation, however, reveals that such terminology does not adequately describe or explain the effective procedure of reception," "The Reception of American Law in Europe," 39 Am. J. Comp. L. 229, at 236, fi. 14 (1991). Alan Watson has noticed that: "Actually, receptions and transplants come in all shapes and sizes. One might think also of an imposed reception, solicited imposition, penetration, infiltration, crypto-reception, inoculation and so on, and it would be perfectly possible to distinguish these and classify them systematically. [Watson suggests that there is] no point in elaborating a detailed classification of borrowing until individual instances have been examined to see what they reveal." Legal Transplants. An Approach to Comparative Law at 30 (1974).

Comparative legal research: its function in the development of harmonized law

Abstract: Most jurists assume that the law of a single country can be studied independently of the law of others. Law students study the law of their own nation. Judges consult national codes and case law. An American or a German scholar assumes that he can write about American law or German law without examining French or Italian law. Even scholars in comparative law often assume that they should first find out what the American, German, French and Italian law is, and then make comparisons. I do not think the law of a single country can be an independent object of study. To understand law, even as it is within that country, one must look beyond its boundaries, indeed, beyond one's own time. Curiously enough, the need for such a transtemporal transnational approach to law was explained most clearly by Portalis, the architect of the French Civil Code. We associate the Code with the emergence of national legal systems in the 19th century. Eventually, nearly every country enacted its own code, each supposedly containing a distinct law. Portalis explained that the French Civil Code could not be the unique source of French law. It could not "govern all and foresee all."' Indeed, virtually every case would present the judge with a problem that the Code by itself could not resolve since "no one pleads against a clear statutory text."2 Unlike 19th century French jurists, he did not say that answers were to be found by exegesis of the Code. He did not say they were to be found by consulting precedent. "Few cases are susceptible of being decided by a statute, by a clear text. It has always been by general principles, by doctrine, by legal science, that most disputes have been

Constitutional Law in Theory and Practice

Abstract: David Beatty draws on more than twenty years' teaching experience to produce a comprehensive introduction to constitutional law, accessible to students of law and non-specialists alike. He reviews the leading cases that have come before the Privy Council and the Supreme Court of Canada concerning the BNA Act and the Charter of Rights and Freedoms. As well, Beatty reviews important decisions made by courts around the world and analyses the function judges perform in liberal-democratic societies when they enforce written constitutions that include bills of rights. Chapter 1 introduces constitutional law - what it is all about, what its function is, and how it interacts with the constitutional text. The book examines Canadian federalism law and the Supreme Court of Canada's experience with the Charter of Rights. It also looks at significant human rights cases decided by major courts around the world, showing how the same principles and methods of reasoning are used elsewhere to resolve legal disputes. The author concludes that a theory of constitutional law that puts greater emphasis on the social duties politicians must respect than on individual rights should be responsive to the concerns of both those who are sceptical about the virtues of law and the courts and those who fear Western cultural imperialism. Beatty proposes a radically new way of thinking about 'rights' - one that emphasizes the social duties inherent in the very conception of rights. By reorienting our thinking about rights and the rule of law, we can see that democratic decision-making and judicial review, rather than being in conflict with each other, support a common set of values and ideals.

The past and future of Comparative Law

Abstract: It is with genuine appreciation that I accept the great honor bestowed upon me by the University of Trento. In my eyes it is of particular significance that this degree is awarded by an institution whose Law Faculty-from its inception a decade ago-has devoted a large part of its energy to the study and teaching of Comparative Law. The tenth anniversary of this distinguished Comparative Law Faculty furnishes an apt occasion for taking a brief look at the past and the future of that particular branch of legal scholarship that is commonly referred to as Comparative Law. Let me begin with the obvious: To compare means to observe and to explain similarities as well as differences. In comparing legal systems and institutions, depending on the purpose of the undertaking at hand, the emphasis is sometimes on differences, and at other times on similarities. In Europe, where endeavors directed at legal comparisons have a long and venerable history, periods of contractive comparison (with emphasis on differences) have alternated with periods of what we might call integrative comparison, i.e., comparison placing the main accents on similarities. Any discussion, however summary, of the past history of Comparative Law has to include a careful look at the period that elapsed from the days when Irnerius began to teach at Bologna until the more recent era marked by codification of private law in most civil-law countries. During those seven centuries there emerged what we call the ius commune of continental Europe. As you know, this did not mean that the law became entirely uniform throughout all of the hundreds of principalities and municipalities into which the European continent was divided at that time. It did mean, however-to use the insightful expression coined by Professor Sacco-that some of the "formants," or formative elements, of the law were shared (at least during part of that period) by most or perhaps all of the civil-law

From legal transplants to legal formants

Abstract: Comparative law as an academic discipline is a very personal subject, giving its proponents great liberty to choose their interests.' Not surprisingly it produces wonderful, flamboyant scholars, like Rudolf Schlesinger,2 who remain forever youthful. His Comparative Law (first edition, Brooklyn, 1950) has been a constant inspiration. For long my own focus on comparative law was on legal borrowings,3 but I was aware that other general factors were at work.4 I realized, for example, that for most of the time rulers and governments in the Western world as a whole were little interested in making private law. Instead, the task devolved upon some group of the legal elite who became in effect subordinate law makers without having been given power to make law. Thus, Roman jurists as such were private individuals with no ties to government: they made law when their opinions came to win approval from other jurists. English judges in the Middle Ages and later were appointed to decide cases: the tradition long was that they found the law but did not make it. Continental law professors were appointed to teach law, not make it. But they did make law when their writings were accepted as having authority by courts or their fellows, perhaps centuries after they wrote. A good jurist was a jurist who was thought to be good by other jurists and persons of similar standing: likewise with judges and professors. The result of their theoretical exclusion from law-making powers was that these law makers developed their own legal culture which was to that extent distant from social reality. This culture determined the parameters of their legal reasoning, the systems of law that they would borrow from, and even the extent to which they would borrow. Above all it would determine the standing of each individual within the culture. The nature of this culture varies from

The Comparative Law and Economics of Penalty Clauses in Contracts

Abstract: Imagine the following monologue by a father afflicted by a severe attack of nerves. "My daughter's wedding is scheduled for next month and I'm in deep trouble. She has expressed a strong desire to hold the party in our old country house. A long time ago, I promised her that I would organize the party there. But then I forgot to make arrangements with the builders. A lot of work needs doing to the house. There's no way she can hold the party there without the work being done. All the invitations have already been sent. If I don't get things sorted out my daughter will never speak to me again. Yesterday I rushed around looking for a building contractor. None of them could promise me that they'd finish the work on time. None of them ruled it out, of course, since they didn't want to loose a customer. But they made no promises. I can't take the risk because it would ruin my relationship with my daughter. I'd pay any money for the certainty. This situation of the absent minded father, late in organizing his daughter's wedding, is a typical one in which penalty clauses would be very helpful. He may eventually find a builder willing to rush the work, and willing to promise to have the job finished by the date of the wedding, but in return for a high extra price (say 900 dollars extra). But how can the father be sure that the contractor is not making the promise to attract a customer, charging 900 dollars more than the usual price and then finding an excuse for not meeting the deadline? Of course, if this happens the father can sue the builder for damages. It is equally obvious, however, that he will regard damages

The Influence of Comparative Procedure in the United States

Abstract: Comparative law, especially the study of legal institutions and procedures, should be ranked among the most illuminating branches of legal science. When teaching a course that emphasizes comparative procedure, I remind students of the justification that was given them when they were asked to learn Latin in school: We study Latin to learn English. So with comparative law. American law students are not training to become lawyers or judges in Berlin or Paris. The purpose of comparative study is to help understand what is distinctive (and problematic) about domestic law. Study the European civil-service judiciary, for example, and you will be forced to ask why in the Anglo-American legal systeras we construct our judiciary so differently: Why do we select our judges so much later in their professional careers? Why do we recruit our judges exclusively from the ranks of practicing lawyers rather than training them as a career magistracy? Why is political partisanship still so prominent in judicial selection in the United States? Foreign example teaches you about your own system, both by helping you ask important questions, and by suggesting other ways. Comparative procedure is, therefore, a profoundly interesting and instructive discipline. I have been asked to report to the International Association of Procedural Law on the influence of that comparative procedure in the Unites States. My report is short and sad: The study of comparative procedure in the United States has little following in academia, and virtually no audience in the courts or in legal policy circles. I begin with academia. Over the last generation, American university law schools have experienced what many regard as a golden age. The prestige of the elite law schools has never been greater. The devotion of their alumni is astonishing. The law schools of Yale and Harvard are currently completing fund-raising campaigns that have

Judicial disapproval of discrimination against illegitimate children: a comparative study of developments in Europe and the United States

Abstract: "We start from the premise that illegitimate children are not 'nonpersons'. They are humans, live and have their being. They are clearly 'persons' within the meaning of the Equal Protection Clause of the Fourteenth Amendment".' With these three sentences, Justice Douglas started in 1968 the U.S. Supreme Court's decade-long attack against the traditional legal discriminations suffered by illegitimate children.2 The apparent necessity, only 27 years ago, to make such an obvious statement can and probably will shock the average reader in 1995. As relatively recent as 1939 however, the "bastard" was called a "disreputable social type", belonging in the same category as prostitutes, thiefs and beggars.3 During the past quarter century, the legal status of illegitimate children in Europe and the U.S. has gone through fundamental changes. For centuries, both the common law and, especially,4 the civil law tradition subjected children born out of wedlock to numerous disabilities. While the reasons for the illegiti-

Procedural harmonization in Europe

Abstract: The concept of legal unification is familiar; procedural unification is but a form of it.2 Therefore one should be reminded of the goals pursued by any attempt to unify rules of law that are at variance. Such goals may be classified at two levels, one being ideal and the other practical. On the ideal level, unification of law is understood as a method of improving the quality of legal rules. Unification of various legal systems (or, as is almost always the case, parts of them) takes place after a qualitative comparison of the respective norms, with a view towards choosing the best one among them and adapting all the others. Of course, rarely will one set of rules prove to be superior to all other sets under comparison. More often than not, advantages and disadvantages will be dispersed, in varying degrees, among the sets of rules falling for consideration. The task of unification will then consist in exactly identifying advantages and making a proper synthesis. But this synthesis will again be guided by an effort to design the best possible solution. Therefore unification is, on this level, a step towards improving the actual state of the law. Unification benefits from the availability of comparison between several legal approaches and is oriented towards the best rule. In this process of qualitative choice, some elements of natural law inevitably come into play since

The Moral Right of Maurice Utrillo

Abstract: It has been said of Corot that of the approximately two thousand works created by him during his life, five thousand are in the United States alone.' Since museums and collectors strongly prefer authentic works i.e., works that were produced during the artist's life by the artist2authenticity is potentially a problem in every art transaction, and the law inevitably becomes involved. In the United States, the infrequent occasions for a judicial determination of the authenticity of questioned works of art are provided by civil actions brought by purchasers for breach of warranty of authenticity and criminal actions for fraud, forgery or criminal simulation. In France, however, there is an additional possibility: the holder of the artist's moral right of attribution (sometimes called the right of paternity)3 has standing to institute seizure of the offending work (la saisie contrefagon) and an inquiry into its authenticity and to bring civil and criminal actions for wrongful attribution of the work to the artist. If the questioned work is found to be inauthentic a variety of remedies is available, including damages, destruction of the offending work and publication of the determination of inauthenticity. The narrowly defined right of attribution in the United States

The Reception of Foreign Law in the U.S. Federal Courts

Abstract: The global economy has brought an increasing variety of foreign law issues to the federal courts. Indeed, one international commercial transaction may implicate the law of several nations. Aside from foreign law issues arising in cases relating to foreign trade, federal courts throughout this nation are faced daily with immigration matters, tort claims, public law disputes, arbitration enforcement proceedings, domestic relation suits and even criminal cases that call for the determination and application of foreign law. These cases are beginning to form a significant part of the business of the federal courts. And yet the tendency of the federal courts is to duck and run when presented with issues of foreign law. Why should this be so, when we federal judges have at hand so many methods that we may employ to resolve foreign law issues? I think that the answer lies in our fear of the unknown. Let me give you an example. Less than two months ago, a panel of my court was confronted with an appeal from a district court judgment denying relief under a federal statute that allows for discovery in aid of foreign litigation.' The litigation for which assistance was sought was pending in France. The district court held, in light of the limited discovery allowed in France, that it would be contrary to French law and policy to permit the discovery to go forward here. The majority of the panel disagreed with the district court and reversed, concluding that discovery assistance should be provided absent specific direction to the contrary by the foreign court. The majority saw the purpose of the statute as "promoting efficiency in international litigation and persuading other nations, by example, to do the same."2 I, for one, have never assumed that it was the duty of our federal courts to persuade foreign courts to do anything. I certainly would never urge them to adopt our discovery practices. The dissenter in the case thought that

Brussels and Lugano, should you race to the courthouse or race for a judgment?

Abstract: In international disputes, it is not unusual that jurisdiction for suits concerning the dispute may exist in several places, such as the home countries of the two (or more antagonists). In that case, for both substantive and procedural reasons, each party may be tempted to start litigation in the forum most favorable to it. What happens in such a case? Will the institution of the first action prevent the institution of another, related action elsewhere and, if not, will a judgment rendered in one action be affected, in its enforceability or otherwise, by a judgment rendered in the other? The answer to these questions obviously affects the behavior of the parties. If the institution of an action blocks the institution of a second action elsewhere, each of the antagonists may try to be the first one to start litigation; if the rendering of a judgment in one place affects the enforceability of a later judgment, each party will attempt to expedite the litigation pending in the forum most favorable to it, and to stall the litigation pending in the forum more favorable to its opponent. National answers to these questions vary a great deal,' thus encouraging multiple litigation. In spite of the importance of the resulting problems, and in spite of my general interest in problems of international civil procedure, I have to admit that I was little concerned with the "race to the courthouse" and the "race to judgment" until Rudi pointed the resulting problems out to me. One particular attempt to provide a multinational solution is represented by the identical provisions of the so-called Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments2 among the Member States of the European Community

The judicial explanation in Chinese criminal law

Abstract: As we know, when law has been made by legislators, it will remain as "the law on paper," if it is not implemented by judicial officials,' especially by Judges. The understanding of the law by Judges is "the law in action" and therefore plays a very important role in legal systems. In the United States and the Federal Republic of Germany, as well as other western countries, this kind of "understanding of Judges," i.e., "the law in action," is displayed in the form of the case reports or Gerichtsentscheidungen. In the Chinese Criminal Justice System, however, it appears as the judicial explanation. Judicial explanation has a long history in Chinese legal systems. The famous "Tang Lu Shu yi"2 is a good example of this kind of explanation in ancient time. After 1949 when the People's Republic of China was founded, the People's Supreme Court had given many judicial explanations, although they were substantively fragmented and generally confidential.3 However, the Chinese judicial explanation today is fundamentally different from the former ones. Since 1979, when the Chinese Criminal Code and Criminal Procedure were published, the Chinese judicial explanation has been progressively developed in a declaratory and systematic way.4 Today, the judicial explanation has been playing a more and more important role in bringing the established frame of the socialist legal system to perfection and in keeping good implementation of the laws. The judicial explanation has become indispensable for scholars to get a complete picture of the Chinese legal system and for practitioners to apply Chinese laws.

Time and meaning: notes on the intertemporal law of statutory construction and constitutional interpretation

Abstract: For some thirty-five years now, I have used Rudi Schlesinger's casebook on Comparative Law. Other than making this a subject of academic instruction in the United States, Rudi has achieved (at least) two other things dear to my heart. First and foremost, he has revolutionized the pleading and proof of foreign-country law in United States federal courts (and eventually, in most state courts). Secondly, his steadily expanding, masterful soliloquy as Professor Comparovich has guided generations of former law students in transnational litigation. Together, these two achievements have made the proof of foreign-country law more convenient but also more necessary-a valuable and much appreciated subsidy for the foreign-born. But Rudi's fourth major contribution to contemporary United States legal culture has a somewhat different Rezeptionsgeschichte. He teaches most of us (and he reminds others) that since the French Revolution, civil lawyers and their courts have haltingly but progressively adapted the Civil Codes of their countries through analogy and through evolutive interpretation of general clausesincreasingly with the aid of constitutional provisions progressively expanded and updated in much the same manner. We live and teach in a legal culture, however, where dynamic or evolutive interpretation of statutes still has to fight for recognition, and where the centuries-old evolutive judicial interpretation of the basic constitutional document (much admired abroad) is frequently on the defensive. Yet the common law keeps evolving by analogy from case to case, and even its more daring creations such as products liability are eventually circumscribed legislatively but not challenged as to their legitimacy as rules of law. How can all that be? The following lines do not supply the answer, but perhaps they will help us see the essential dimensions of