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					                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

What is Comparative Law?
   “Comparative law is legal history concerned with the relationship between systems.”
   Watson says it doesn‟t exist
    o There‟s no comparative branch of the law, like family or tax law - it‟s a
    o Whenever we study foreign law, we‟re inevitably practicing comparative law –
       and it illuminates our own system
    o Watson says comparative law is about the nature of law
            It‟s legal history combined with the relationship between systems, and how
               the law develops
            b/c almost every culture borrows law to some degree, legal systems aren‟t
               necessarily based on their people
   VC says it‟s a hybrid
   While we like to think that law is universal, comparative law teaches us that it isn‟t
    o It forces us to separate the necessary from the contingent
   Comparative law is interdisciplinary
    o Glendon: b/c it‟s collaborative in nature
            Language and communication barriers make collaboration difficult
            Notes that Toqueville, Montesquieu and Plato write about “The Stranger”
               in analyses of law to critique their own systems of laws
            Written before freedom of expression truly allowed criticism of govt
    o Rabel: b/c you must understand context, i.e. history, politics, language, etc. to
       practice comparative law
   Other random perspectives:
    o “resisting arrogance” – temptation to see foreign law as inferior
    o James Boyd White sees law = rhetoric
            Language used to express law illuminates its role in society
    o Gertz says “law is not the whole story” – it isn‟t capable of capturing everything,
       nor should it try
    o Luhmann says distinction between what‟s legal and illegal is central question of
    o If laws reflect universal human needs and attributes, comparative law may be a
       way to discover objectively verifiable human universalities

Functionalism – emphasizes function and context when comparing legal rules,
institutions and systems
 Must examine legal, economic and cultural context to understand how they function
 Approach developed by Ernst Rabel and other German Jews who escaped the
    Holocaust and a system that treated them as different
    o therefore they use praesumptio similitudinis – basic laws are all the same and
        comparative law must start with this presumption
             comparative law is the search for community rather than isolation
             this means if comparatist doesn‟t find similarity in different systems, he
               has failed
             paradox was that functionalists viewed Naziism‟s persecution of The Other
               as a universal human trait rather than an aberration

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

   o Zweigert and Kutz were influenced by Rabel, believing in similarity of human
     beings and laws
         Presumed that any time the law allowed distinctions or differences, it led
           to repression, exclusion and discrimination
         For the rule of law to work, it must be objective – so we look for similarity,
           evidencing that an objective standard exists

Borrowing with adaptation –Watson says private law of every country is borrowed,
from Rome or elsewhere, but often with mistakes
    Montesquieu said b/c laws reflect the particularities of their people, the importing
      state interprets borrowed laws to fit its people‟s needs; Savigny agrees
    Same borrowed laws may characterize different states, but they‟re interpreted
          o We naturally assume that if we find a translation, every aspect of that
              concept is the same as it is for us
    Why borrow? Watson says for prestige and security – allows you to learn from
      what worked and didn‟t work for others in the past
    Functionalist view of this:
          o Function – same statute can be interpreted in different ways in different
          o Context – you can‟t understand a law without understanding its context
              (history, politics, system that produced it)

Impact of globalization on law
    in US, when there‟s no precedent, courts may look to foreign court decisions
         o Scalia approves of this in all but constitutional law – biotech cases, e.g.
         o Problem is that US judges don‟t understand the systems that underlie
             these cases
    International forum shopping – Yahoo case, where French court ordered Yahoo
     to withdraw racist info on web that violated French law
         o Yahoo went to US courts, where it wasn‟t a violation; US courts
             misunderstood French decision
    Nation-state becomes less influential, sovereignty less absolute

Common core project
   Started by Schlesinger who brought field to US
   Functionalism + legal formants could predict the outcome of legal issues in
    different legal cultures
        o LF were Rodolfo Sacco‟s concept – all aspects of society that influence
           law and are influenced by law
        o Problems: question formats already implied the answers
   Hugo Mattei – first to pursue internationalization of law in the era of globalization
    through common core of European Private Law
        o The Trento Project sought universal private law for EU
        o Lando is drafting a uniform contract law for Europe and anyone else
                 All participants are asked to consider their legal formants

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

Law & Science
    Langdell introduced case law method in US
          o Through cases, one can study law scientifically and infer principles
    Associating law with science gives it more prestige and legitimacy
          o b/c law impacts people‟s lives so seriously, they must see it as something
              other than arbitrary
    Schlesinger‟s common core method seeks to solve problem that law lacks

Evolution of Legal theories
 Natural Law – Universals exist in nature (come from God and human nature) and
  should be reflected in law; if not, there are “bad laws”
   Major criticism of communist societies is that their laws defied human nature
 Savigny (19th cent.) – positivist or natural law proponent? Fuller says not positivist
      o a “bad rule of law” doesn‟t express the spirit of the people
      o Law must be tailored to the spirit of the people, Volksgeist
      o Could be viewed as a positivist, but more natural law-based
 Positivism (19th cent) – there are no universals, no higher authority to justify law –
  legitimacy comes from the state, whether democratic or authoritarian; gaps in law
   No reason for all legal systems to resemble each other
   Custom must be weak in positivist theory b/c it isn‟t handed down from the
      legislature, isn‟t enacted law
   This term also refers to the social science of law (Auguste Comte, 19 th cent.)
          o Laws are to be analyzed like natural phenomena, to be observed,
              evaluated, detached from preconceived ideas
   Hobbes founded legal positivism on a natural law basis
          o Ultimate aim of society is peace & order, and our war-like nature frustrates
              it – we need a sovereign to establish peace & order, and “the rules it lays
              down for the settlement of disputes we shall call law”
          o Sovereign should follow natural reason as much as possible in seeking to
              establish peace
                    Disobedience creates greater evil and undermines peace & order –
                     thus, people must obey sovereign, even when commands are
                     unjust, unreasonable
                    Hobbes justifies this based on people‟s consent to be governed;
                     later positivists echo the principle w/o justification
          o Judges are agents of the sovereign
                    It may look like they make law, citing custom and reason, but the
                     sovereign goes along with them and they reflect him
          o Writers and professors may also help shape the law, but they don‟t even
              qualify as agents – they may influence the agents
   Austin (follower of Hobbes) – “imperative theory of law” has undergone a
      change b/c govt has become more complex
          o We have checks and balances rather than one absolute sovereign

                           Comparative Legal Cultures of the Western World
                                     Fall 2006 Professor Curran

                        now sovereign is the person/group whom society is in the habit of
                     del Vecchio says this depends on whether sovereign is consistent
                         with human reason
            o positivism looks at “the law that is” – if people disobey it, a new sovereign
                has probably emerged
                     test distinguishing the law that is from the law that ought to be is the
                         sovereign for Austin
                     sovereign absorbs the little revolutions, characterized by
                         permanence & unity
                     if custom determines who the sovereign is, custom becomes
                         exactly what the sovereign allows
            o some criticize Austin as ignoring the evolution of law
            o inconsiderate sovereign problem – one who limits his own power and
                issues contradictory commands
                     positivists say either real power lies elsewhere (in Congress?) or
                         sovereign can‟t limit his own powers and contradict himself
            o gaps in law – many say no gaps exist, b/c what the sovereign doesn‟t
                forbid he permits
                     there‟s a judicial mechanism to handle gaps in the law, so no gaps
                     others say natural law enters through the gaps
     Von Jhering was a proponent of positivism and practical side of law
     Isaiah Berlin says you can‟t understand people if your society is different, b/c
        ideas lose their meaning across cultures
     Fuller’s criticisms: positivism is very dangerous – if laws can be bad, sovereign
        can get away with everything
            o biggest problem with positivism is that custom is the basis for determining
                who the sovereign is, then the sovereign dictates custom
   Free Law School (1906) – good judges are needed to interpret the law, you can‟t
    just rely on what‟s on paper
     Judges bring human experience to their role and make the law
   Sociological School – you can‟t understand law without understanding sociology
   World War II era, Stalinism and Naziism caused identity crisis for law (and
        o These societies were highly legalistic and used that structure to legalize
            racism and other atrocities
        o Hitler was more or less granted power in a legitimate way
   After WWII, world idealized law as the solution
        o Universal Declaration of Human Rights drafted by Cassin, who believed in
            triumph of civilization through law and universality of law
        o Radbruck – return to Natural Law; evil law isn‟t truly law
                 Dyznehaus said Radbruck‟s theory should have been applied to South
                    African apartheid cases
        o Hart – British positivist
                 the government is the law-generating institution, and what it says is law
                    is law ; if it‟s evil, you don‟t have to obey it

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

Civil vs. Common Law Contracts
    Canon law in Europe evolved into a larger civil law based on morality
           o Pacta sunt servanda guides – civil law courts hold people to their
             promises, even if it seems inefficient
           o Contrast to common law, which emphasizes efficiency
    Volkswagen case – prior to WWII, German people prepaid for Volkswagens, but
       Russians took the money
           o German Supreme Court later held pre-war contracts were enforceable,
             meaning court had to track down thousands of buyers and get them to pay
             a bit more money
           o Dawson considered Volkswagen example a “bizarre legal phenomenon”,
             unfeasible and silly
                 Too hard to track down all the original payors, etc.
                 Amazing to Dawson that scholars didn‟t criticize it
           o Under German law, if the foundations of the contract are destroyed, then
             performance is excused
                 Pufendorf felt that didn‟t happen in this case – Volkswagen still
                    existed, it still made cars, they could track down many people

Can you ever really understand another legal culture?
   Comparative law is like translation
      “the comparative act inevitably is a form of translation, illustrative of both the
        potentials for communicating the new and the pitfalls for betraying or losing
        the original in a process of transmutation,” writes VC
      Grossfeld claims “there are no intercultural synonyms”
           o Translation is always approximate – there are implications and
               nuances that one must know the culture to perceive
           o We are prejudiced, seeing things through our own eyeglasses
                    “we need to know the entire code of the relevant culture in order
                       to understand its language transmission”
                    France & Belgium have basically the same civil code, but it‟s
                       interpreted differently
           o Principle of equivalence – by associating things that are similar,
               language conveys commonality between different matters
                    Birds & butterflies are the same in some languages b/c both fly
      Westerners trust language and demand that law be closely tied to it – not the
        same everywhere
      Derrida – comparative analysis is integral to all legal analysis, but we don‟t
        recognize this b/c:
           o The West treats identity as a foundational concept and difference as
                    VC says difference is also a foundational concept; neither
                       identity nor difference can exist without the other
           o Traditional categories of legal analysis obfuscate differences within
               those categories

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

                        Cognitive science says we only understand by comparing
        Dworkin’s constructive interpretation – imposing purpose on an object or
           practice – but the purpose is the interpreter‟s
               o The Heisenberg principle – you can affect what you observe by
        Semiotics – we communicate with a system of signs that each come with
           their own connotations
               o Selbsbewusst translates to “self conscious,” but that connotates
                   shyness, and it‟s the opposite in German
      Cultural immersion approach (advocated by VC)
        Valid examination of another legal culture requires immersion into its political,
           historical, economic and linguistic contexts
           o When other courts quote US decisions, they don‟t always consider context
               behind the decisions
        We should try to understand a foreign legal culture in untranslated form
        Curran has 3 central concepts:
               o Categorization is critical, and categories come from our experiences
                    Our biological capacities of perception are fixed as human beings,
                       and we process data based on our own community and individual
                    These capacities both limit and enable perception
               o Comparative act is such a normal part of understanding that it goes
               o Inevitable transmutation through comparison
      Animal trials are a source of mystery for us (Ewald article) – why were rats tried
       in France for eating & wantonly destroying crops?
           o VC thinks people considered animals to be almost human and that courts
               thought if they pronounced God‟s will, God would make the sentence
                    During Renaissance, when humans were exalted as above
                       animals, animal trials ended
           o By writing this, Ewald may suggest that we sometimes hold trials that
               would look absurd to outsiders – e.g. proclaiming school desegregation
               and assuming it will automatically happen, O.J. & Michael Jackson trials
                    The heretics in the village weren‟t going to have a trial at all before
                       being exterminated
           o Legal systems can be completely different from one another (such that
               they allow trials of animals)
                    Yet, there are still basic principles that allow us to understand these
                       different systems

Issues reflecting disparities between legal cultures:
 Drafting CISG
    When drafting CISG, terms meant different things to different countries and had
      to be ironed out

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

          o Not only differences between common and civil law, but between
              industrialized and developing countries, market economies and socialist
              economies, etc. had to be taken into account
          o “obligor/obligee” solves the fact that in common law, Buyer = debtor and
              Seller = creditor, while it‟s the opposite in civil law
     3 major differences between systems reflected in CISG:
          o Good faith – compromise on language
                   English said it was too narrow, civilians said too broad
                   In common law, it‟s still thought to encompass efficient breach; not
                     in civil law
                   UNIDROIT provides for good faith
          o Specific performance
                   Art. 46 allows it, but Art. 28 says a court doesn‟t have to order it if
                     its own law doesn‟t provide for it – so forum is the key
                   UNIDROIT says you can require other party to perform unless you
                     could get performance elsewhere
          o Penalty clauses
                   Omitted b/c it was too hot to handle
                   UNIDROIT allows penalties, and civil law countries are used to
     Uniform application is a major goal of the CISG
          o Art. 7(1): “In the interpretation of this Convention, regard is to be had to its
              international character and to the need to promote uniformity in its
              application and the observance of good faith in int‟l trade.”
          o Art. 7(2): gaps should be filled by looking to general principles, or in the
              absence of such principles, in conformity with law applicable by virtue of
              private int‟l law
                   Big issue is what legal authority to look to for guidance – Art. 7(2)
                     satisfies both systems
          o Challenges to uniform application:
                   Language - cases interpreting CISG are in 6 different languages,
                     words don‟t always translate the same
                   Oversight – by a variety of different courts in different systems
                   Differing approaches to interpretation: Civilians look to academic
                     commentary and UNIDROIT, common law to cases; creating a
                     hybrid approach
     Comparison to UCC:
          o Llewellyn included civilian elements, such as good faith requirement
          o It looks like a civilian code, but it‟s been adapted to fit common law
                   Swiss cheese theory – gaps in UCC send courts to case law
                   Even in areas where UCC clearly governs, courts apply it through
                     case law – we can‟t escape the cases
   Legality of suicide
       o Globalization of law means that when a new technological or biological matter
          comes up in law, courts look to other courts around the world for guidance

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

      o Laws in Oregon, Belgium & Netherlands allow terminally ill person in terrible
        pain to resort to physician-assisted suicide
      o In US, we think suicide is linked to mental illness, so person wanting to die
        can‟t be rational
      o In Eastern cultures, concept is much more natural

Bases for civil law system:
   Roman Law
          o First jurists & lawyers emerged in 1st cent. BC; fullest development during
             Classical period, 117-235
          o Justinian Codes – 6th cent. AD, when empire had begun to fall, Byzantine
             Emperor compiled Roman law into Corpus Juris Civilis
                   4 parts: 1) Institutes, 2) Digest, 3) Code, 4) Novels (new)
                   Digest summarized what was seen as most important part of law
          o Juris Consults of Rome recorded case decisions and passed them on, but
             it turned into a basic code of abstract legal principles (like a Restatement)
   Canon law – hybrid between Christian notions & Roman law
          o Primarily governed marriage and property law
          o Dominated from 5th to 11th centuries
   “Customary thicket” of Middle Ages – law was the custom of each tribe; no
     comprehensive system
   Around 1050, Corpus Juris Civilis rediscovered with return of political order and
     desire to return to antiquity
          o University of Bologna had lectures on CJC
                   Looked to Digest b/c original texts weren‟t preserved
                   Glossators – interpreted and explained arcane concepts of CJC
                   Commentators – adapted CJC to present times in 13th century
   Reception – incorporation of Roman private law into courts, not just academic
          o Today, concept of systemization underlies civilian approach – the CJC
             gave Europe the order it sought
   16 and 17th centuries, center of legal scholarship moved to France & Holland

          o French humanists – saw CJC as a historic text rather than as totally
          o Dutch Natural Law – theory grounded in universal law of nature
   Jus commune– revival of Roman law that became common law of Europe,
     trumped by some local law and customs, that was displaced for codification in
     18th century
          o Marked by exchanges and interchanges among judges
          o Never took in England, although universities taught it – their own system
             was too well established
          o Gradually merged with local legal customs in most states
          o Rise of the nation-state and codification in 19th century marked the end of
             jus commune (and of interchanges between judges)

                           Comparative Legal Cultures of the Western World
                                     Fall 2006 Professor Curran

       19th century public law & law of nations developed from American, French and
        English ideas about equality, democracy, separation of powers, natural rights to
        life, liberty and property
     Did Roman law survive or was it rediscovered?
             o Some argue it continued to influence legal customs of Barbarian tribes
             o Commentators represent legal transplanting – they adapted Roman law,
                 which is why it worked
                      All Commentators & scholars shared Latin as a common language
     19th Century Codes
             o Both French and German combined jus commune with their own national
                      Both grounded in 19th century liberalism – autonomy, freedom of
                        contract, private property
                      Both have underscored the modern Civil Law tradition, although
                        French moreso – it was earlier and was less technical than German
             o French Civil Code of 1804, developed under Napoleon
                      Contained 5 separate codes: civil, penal, commercial, criminal
                        procedure and civil procedure
                      3 ideological pillars: 1) private property, 2) freedom to contract, 3)
                        patriarchal family
                             Consciously sought to break up estates of aristocracy
                      Emphasized masculine power moreso than later German code
                      Code was general, sparse and short – it had “stylistic beauty” and
                        traveled well
             o German Civil Code of 1896
                      Replaced disastrous Prussian Land Code of 1794, which tried to
                        foresee every possible contingency and legislate for it
                      When Germany became unified in 1871, Roman jus commune was
                             Pandectists investigated Classical Roman law to adapt it,
                                but they believed in superiority of Roman institutions
                             After 20 years of research & compilation, it went into effect in
                      Not as widely accepted as French Civil Code b/c it was so technical
   20th century law reform marked by eclecticism – looking to different systems for
    ideas; notions of diversity and pragmatism govern
        o Perhaps we‟re experiencing a return to jus commune for this reason
        o Civil code doesn‟t govern every aspect of law today
                  Personal status (i.e. family), property, obligations (through K or
                     conduct) are covered
                  Modern civil law has started to separate landlord/tenant law,
                     employment law, insurance, competition, agriculture
                  Modern French tort law is almost entirely judge-made – the Code
                     couldn‟t foresee it

Constitutional Law in France & Germany

                           Comparative Legal Cultures of the Western World
                                     Fall 2006 Professor Curran

   German Constitution of 1949 – “basic law” of transition until reunification (but plan
    to draft new one was rejected)
        o Pushed by the Allies; between loose federalism of France and tight
            centralization of Germany
                Although Germany has a federalist system, federal government has
                   much more power than ours
        o Bill of Rights is item # 1, judicial review is codified
                Commitment to democratic principles and human dignity can‟t be
                Everyone entitled to basic necessities, food & shelter, life sentences
                   reviewable every 15 years, increasing social & economic rights
                ideological drift regarding human rights reflected:
                        Peep shows were forbidden at one point for violating women‟s
                        Art. 2(1): right to develop your personality within the confines of
                          the rights of others
                        Asylum granted to anyone persecuted for religious reasons
                          (later restricted due to influx of immigrants)
                        Bodily integrity (now means freedom from contamination)
                        Anyone has standing to assert constitutional rights
                        Right of civil obedience
        o Presidency has less power and authority
                Chancellor has more, can be brought down if majority of Cabinet
                   agrees on successor
   French Constitution of 1958 (No. 12)
        o President has the most power, legislature makes specific laws only
                Hybrid of presidential and parliamentary system – response to
                   parliamentary chaos and instability of earlier governments
                President elected by universal suffrage in 1962 – opening door to
                   gridlock, or cohabitation
                President has emergency powers and can dissolve government
        o rights not outlined – reference to 1789 Declaration
        o Where legislative and executive are “powers,” legislature is an “authority”
                No pretensions of equality
                De Gaulle established Const. Council with eye to strengthening
                   presidency if he didn‟t like Parliament‟s legislation
   US perception of Constitution is akin to civilian perception of Code
   German Constitution travels much better than US or French
        o Modern conceptions of human rights, rather than 18th century ideals

Judicial review in Civilian Systems (“idea that courts pronounce the legitimacy of
 Parliamentary system characterized by legislative supremacy
        o Accentuated by fact that executive is head of party with legislative majority
 Judicial review isn‟t really compatible with parliamentary system

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

       o Civilians trust the political process more than we do
               US views judiciary as protector of minorities and individual rights, while
                  legislature is voice of the majority
               Continental Europe sees it as the expression of the general will, a
                  natural protector of minorities
                       YET these societies were very homogenous when founded
       o French judiciary follows the legislature‟s will
               Judges are disliked; as unelected officials, they shouldn‟t have power
                       Originally, judges could buy or inherit positions – viewed as
                          arbitrary and abusive of power
               Robespierre spoke of a country with no judges (or at least where
                  judges had no power)
               “government by judges” is a very negative term, insinuating corruption
   Eventually, every system felt need for judicial review, even though it didn‟t fit easily
       o First appeared in Austrian Constitution of 1920
               Only a special constitutional court could decide on constitutionality of
                  legislation on referral from an authorized person
               review can be a priori or a posteriori
               Austria had first Constitutional Court in Europe – constitution drafted by
                  Kelsen, who incorporated parts of US judicial review that he liked
                       Seen as a way of preventing dictatorship

               Technically denied                       Actively exercised
        France                                    Italy
        England                                   Germany

   Judicial review in France
       o Constitutional Council has abstract and a priori review IF executive or
          legislature asks
               1971 it claimed power to review laws for conformity with other laws and
                  the Republic
                       No public arguments or lawyers, allocation of votes undisclosed
                       187 decisions concerning constitution between 1959 and 1987;
                          70 were nullifications
               Council comprised of former legislators and Cabinet Ministers, all
                  appointed by President (no confirmation)
       o Review is abstract, a priori
               Marked contrast to US, where constitutional concerns must involve a
                  live, concrete controversy
                       VC says declaratory judgments indicate a certain amount of a
                          priori ruling in US
               Standing often not granted to individuals, just judges and government
                       If a judge finds a constitutional question in his case, he refers
                          that question to Constitutional Council

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

                        Parliament can also refer bills to Const. Council to ensure they
                         aren‟t later overruled
                            o The fact that it‟s already been argued in Parliament
                                 means Council has an opinion
                            o Decisions of Const. Council later viewed as part of
                                 legislative history of resulting bill
       o Council of State is the highest administrative court in France – like a second
          Constitutional Court
               laws made by executive are subject to CoS review
               Const. Council can also go to CoS for opinion if it chooses
       o No one ever expects to have true judicial review in France, due to corruption
          and abuse of past – judiciary should be mechanical, mouth of legislature
               Advent of EU law and need for French courts to determine whether
                 national measures violate it has expanded judicial review
       o French abortion decision
               Based almost entirely on text of the law – both Parliamentary statute
                 and Constitution, as well as ECHR
               Brought by the legislature; Council upholds the law
               Court considers this law might violate ECHR right to life – but court
                 says it can‟t hear that issue
                      Where France has signed a treaty, int‟l law always trumps
                      It doesn‟t want to be seen as violating EU law, so it looks to ECJ
                      French courts realize and accept that they‟re supposed to apply
                         the law that Parliament has enacted mechanically
   Judicial review in Germany
       o Can be brought by parties in live controversies – case referred to
          Constitutional court; later, original proceedings resume
               Individuals can also file suits in Constitutional Court provided they have
                 exhausted other legal remedies
               Government agencies can also run legislation by Court to see if it‟s
                 okay in the abstract
       o Court has 4 kinds of competences:
               Determination of hierarchy of legal norms
                      abstract judicial review per government request
               protection of federalism
               separation of powers
               protection of human rights – majority of court‟s activities
       o rulings can be a priori or a posteriori (in Austria, too)
               a posteriori review deals with actual problems that may not have been
       o rulings binding on all courts in future (unlike other German court rulings)
       o German abortion decision: stylistically resembles French decision, laying
          out the text and deducing the answer

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

                Court applies proportionality in weighing mother‟s right to self
                 determination and bodily integrity and fetus‟ right to life
               Chooses fetus‟s right to life as more compelling
               Court says validity of punishment is whether it actually guarantees
                 protection of the legal value
                      if you punish mother who gets abortion, she‟ll either go abroad
                        or go to unlicensed physicians
                      this scheme favors rich over poor
               Therefore, abortion is decriminalized
               Both majority and dissent are heavily influenced by aspects of the Nazi
                 era and its use of punishment, devaluation of human life, etc.
   res judicata vs. erga omnes
       o res judicata binds the 2 parties to the case, erga omnes binds EVERYONE
       o however, in US, res judicata + stare decisis = erga omnes

A. Role of judges
 Investigatory
   o Do most of the fact-finding, question witnesses
           Witnesses are NOT questioned outside court
   o Hire expert witnesses (these are more neutral, as they‟re witnesses of the court)
 Frame issues and legal theories of the case (statutory duty)
 During proceedings
   o Apply legislature‟s will – don‟t have that much power
   o Cases heard in 3-judge panels
           In Germany and Italy, judge who investigates sits on panel that renders
           In France, one investigates and others preside
   o Step in if lawyers are weak –can ask for further proof, correction of
      misunderstandings, amplification of allegations
   o No contempt power – can issue fines using in rem jurisdiction if you don‟t comply
      with court order
 Working conditions for judges were pretty bad in the past, although they‟re improving
   o More female judges in Germany and Europe
 Problems: few checks on judges‟ power, little accountability if judge is no good
   o De novo appeal and 3-judge panels provide checks

Role of Legal Scholars
 University professors (generally have PhDs in law)
   o Working conditions are pretty bad – no offices, low pay
          Germany and Switzerland have some of the best
   o Graduate students end up doing much of the teaching
   o In Germany and France, it‟s very difficult to get a professorship – few law
      schools, lots of qualifications are set by govt
 Draft the Civil Codes when they need to be amended

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

   Run the law reviews
   Interpret court decisions by writing “doctrine”
    o body of writing that steers future court decisions – similar role as our case law
   Select cases worthy of commentary – because not all cases are published, scholars
    ultimately determine which decisions are important
    o Because cases don‟t serve as precedent, this isn‟t such an issue
            In Germany and Austria, you can‟t access decisions at all

Civil Court Procedure
 Rules come from Civil Procedure Code
 Trial is last stage of a process: no counterpart to pre-trial discovery and motion
   practice ; Continuous process of meetings, hearings, written communications, taking
   of testimony
   o Proceedings are unconcentrated, and you can always amend or introduce new
       motions or theories, with 3 consequences:
            Pleadings are very general
            Less pressure to arm yourself with information and arguments about every
              fact that could potentially arise
            Civil suits often take a long time
                   Stuttgart procedure – parties prepare a case thoroughly, have
                     one preliminary meeting, then resolve everything conclusively at
                     the hearing
                   Judge can choose this method of proceeding
 Evidence: No real rules of evidence - trials are much less rigid than US trials
   o documents aren‟t formally admitted into evidence
   o No “preponderance of evidence” standard
            A common error is to think that there‟s the same standard of proof for civil
              and criminal law or that standard is much higher than ours
                   opinions are written in the tone of utter certainty and truth – but
                     that‟s just the style, that doesn‟t mean there has been 66% proof
                   There is no written standard of proof in most systems
                         o France – “intimate conviction” of judge leads to resolution
                         o Italy – prevailing probability
                         o Germany – “high probability”, some discuss concept of
                             greater than 50% in Germany & Sweden, but it‟s not codified
                         o Spain – commonsense rules of reason, average experience
                             of the world
            In France & Italy rules only limit use of oral evidence to prove contracts,
              similar to parol evidence rule
 Jurors
   o France: usually no lay assessors, only judges
            In juvenile court, int‟l espionage, terrorism, no juries – only 7-judge panels
 Greater importance of writing
   o Dossier is the core of the process
   o In Germany, written evidence allows shortcuts in procedure

                              Comparative Legal Cultures of the Western World
                                        Fall 2006 Professor Curran

   Costs: Loser generally pays winner‟s fees and court costs
    o Discourages frivolous claims
    o Court costs vary – none in France, in Germany & Austria they‟re determined by
       “basic units,” depending on number of stages of proceedings; amount relates to
       amount at stake
            Legal aid available – you generally have to be really poor to get it
                   this has now been extended in Germany to legal advice on matters
                      of civil, criminal, administrative and constitutional law (not labor, b/c
                      unions do that)
                   legal insurance common in Germany
    o No contingency fees – considered unethical, because lawyer shouldn‟t have a
       financial stake in the outcome; she‟s an officer of the court
   Problems: trials are loooooonnng

      Civil Trials in Continental Europe                               Civil Trials in US
   It‟s a “process” – series of meetings                 One concentrated event
   Judge runs the show                                   Judge technically supervises, but parties steer
   Judge decides result                                  Jury or judge decides result
   No rules of evidence – anything relevant              Elaborate, evolved laws of evidence (partially
    comes in, as we‟re searching for truth                 b/c we don‟t trust jury‟s judgment)

 In some countries, it‟s a de novo review of both law and fact, and new evidence can
  be presented
   You don‟t trust the original judge 100%, lack of deference
 France: “cassation” comes from “to break” – French court can nullify what a lower
  court has done if lower judges misapplied law or overstepped jurisdiction
  o If it disagrees, it remands the entire case to be tried again
  o Court of remand doesn‟t have to follow appeals court‟s lead
  o If it doesn‟t, appeals court sits in plenary session, and if they remand again, lower
      court is now obligated to follow
  o Felt obligated to establish intermediate appeals court by ECHR – fundamental
      human right to appeal conviction
 Italy: similar to French cassation, but lower court must follow higher court
 Germany has revision on questions of law
  o Higher court can either reverse and remand or modify opinion and enter final
  o de novo appeal in minor criminal cases, but not serious offenses, which are given
      more time, more professional attention
  o No intermediate appellate court in Germany

Criminal proceedings
 Parties
    Prosecutors have little pressure to get convictions – they‟re not accountable to
      o More closely tied to judges, and position is often a step to becoming a judge

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

                  Prosecution is the standing magistrate, while presiding judges are
                   sitting magistrates
        o No role in politics, don‟t get appointed for their views
        o Come after Defendants rather than before
     Defendants virtually always testify and testify first
        o In France, defense attorneys have very little respect – they‟re not equal to
           Prosecutor and are seen as undermining Prosecutor
        o Advocate wasn‟t originally considered an agent of the client
                Supposed to be independently wealthy, but client could make a gift
                Defendant receives an “honorarium” today
                Partial contingency fees are now permitted and lawyers can sue clients
                   if they refuse to pay
        o No law partnerships were allowed until the 1950s – all had to be “sole
     Victim is present and can be a party in some countries
        o France: anyone who has been harmed can be a party to civil or criminal suit
                They hire a lawyer, can make arguments, have access to dossier, can
                   call witnesses
        o Germany: can join the suit, but if they want personal damages, must sue
           independently later
     Jury – any citizen over 18 can be a juror, because judges guide them through
        process, so no voir dire
        o Jury originated in 16th century England, thinking D should be judged by
           someone who spoke their own language
   Pre-trial
    o many countries now interrogate suspect in attorney‟s presence and expressly
        provide a right to remain silent
    o defense counsel has absolute and unlimited right to inspect dossier
            even English courts follow this now
            argument that D will abuse this privilege by fabricating defense is fairly
                    D has already stated his version of the facts on record
                    Previous testimony of witnesses can be read at trial if they refuse to
                        speak, contradict themselves, or disappear
   if charges are brought, dossier goes to 3-judge panel which determines whether
    there‟s “reasonable cause” to proceed with trial
    o defense counsel can submit arguments or ask for more evidence
   Procedure
    o trial usually consists of mixed bench – 3 professional judges and lay assessors
            as a single body, they determine issues of law and fact, then guilt and
               sentence (in most countries, need not be unanimous)
            usually only the Presiding Justice is familiar with the dossier – so only
               evidence received in open court can be considered in reaching a decision
     Judge does the questioning, and while lawyers can ask additional questions after
        judge is finished, they rarely do – seen as impolite, improper

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

         No plea bargaining – thwarts the search for truth; undermines justice because
          parties are assuming judge‟s role
          o In Germany it‟s becoming more common, especially with white collar
             crime and complex cases
          o In France with 2004 reform it‟s permitted for only minor crimes
                  Judge participates, lots of restrictions
                  Thought is that it encourages innocent to bargain to avoid the
                     chance of getting a harsh sentence
        Dossier is the core of the case, writing is somewhat sacred
          o French principle of orality – some things MUST be done orally, because
             writing favors the educated
        No bifurcation of trial and sentencing
          o We don‟t allow prior convictions when considering guilt, while civil law
          o Professional judges will guide lay assessors and tell them not to pay too
             much attention to this
        No cross-examination
          o by the time we get to trial, the dossier has been put together and most of
             the factual issues have already been found
          o There‟s no point in D changing his story
          o French law now provides for cross-examination, but it‟s not really done
   Defendant’s rights
     Right to physical integrity – no physical abuse to make suspect talk
     Most systems give accused right to counsel from beginning
     Right to remain silent – although this often hurts D
           Version of Miranda rights are given in Europe, but they‟re usually waived
                  Part of French reform in 2000, although it was unpopular – it
                     discourages D from telling the truth
     No perjury or swearing in of D – we want D to feel free to tell the truth
     No pro se representation – system doesn‟t trust/allow people to protect
       themselves; you also don‟t reach the truth that way
          o Value of uniformity and equality – all prosecutors and judges have been
             trained the same way
     Rarely is D imprisoned before conviction unless there‟s a serious chance of
       escape – in that case, no bail
           suspect receives a summons to court
       o in Germany, arrest is justified if all 3 are present:
              strong reasons for believing suspect committed crime
              evidence shows specific, rational ground for pre-trial detention, like risk
                 of flight or of tampering with evidence
              detention must meet proportionality requirement
   Evidence
     No exclusionary rules – if judge decides it‟s relevant to guilt issue, it comes in as
       o Hearsay is admitted, even though it won‟t be accorded great weight
       o Respect for D’s privacy is very strong

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

     DNA evidence – if statute says it‟s permissible, judge can use it
   Concepts of guilt
     There‟s a false idea that continental Europe has a presumption of guilt
       o Declaration of the Rights of Man establishes presumption of innocence in
       o 2000 reforms in France affirmed this concept, because even French lawyers
          believed there was a presumption of guilt
               Less Ds put in preventive detention after this
       o 92% of all Defendants are convicted in France (80% in US)
               a case doesn‟t get to trial unless there‟s substantial evidence – trial is
                  the last stage in the entire process
   Punishment
     prison terms are much shorter in Europe, no capital punishment
       o focus is on rehabilitation and education – although in France, prison
          conditions are pretty bad
     view of US system is that a rich defendant can buy an acquittal
       o US attorney counters that the state has so many resources that hiring a fancy
          defense lawyer evens the playing ground
       o At the same time, prosecution is spread thin and is handicapped by rules of
          evidence excluding proof
   Verdicts
     Weighted majority determines the verdict, but you never know what the number
       o In the US, it‟s guilty or not guilty with no reasoning behind it
       o state jury verdicts don‟t have to be unanimous, federal jury verdicts do
               When jury is 6-person, unanimity is required to convict
               In continental Europe, a weighted majority determines the verdict, but
                  you never know what the number was
     No official court transcripts in France – but there are elaborate transcripts
       prepared by private stenographers
       o Official court reporters in Germany
   Appeals
     Both sides can appeal
       o Prosecutor can even appeal if D is convicted – if she thinks D is too indigent,
          if she thinks sentence is too harsh, too lenient
       o We wouldn‟t appeal acquittal for fear of double jeopardy – but they view it as
          all one process, so D can be retried without violating his rights
               Double jeopardy rule applies after final appeal
   Costs: Loser pays, even in criminal cases

   French “Dutroix cases” involved wrongful convictions – sought to remedy that
    through change in laws
    o No detention without conviction
    o Punishment for judge misconduct – you can‟t sit alone as a judge for 5 years
    o Greater possibilities for appeal where D had a single judge and alleges

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

Schlesinger critique of US system
 US system presupposes that legal rules are stronger than logic
  o Logic says we can make a permissible inference from D‟s silence, but US rules
      say no
 US rules that are “truth-defeating” in criminal procedures should be rejected if:
  o The “other value” that overcomes the value of truth is explicit
  o Truth-defeating rule truly promotes the other value in light of experience
  o Other value is so strong that it justifies suppression of truth
 punitive damages reflects perception that we combine the criminal with the civil,
  punishing in a case that has a lower standard of proof

Italian Criminal Justice system
 Reformed in 1988 in pursuit of 2 goals:
    o To reconstruct Italian criminal procedure along (US-inspired) adversarial lines b/c
       defendants‟ rights weren‟t thought to be sufficiently protected
    o To establish more efficient procedures to cope with judicial overload
            Adversarial model shifts the burden of fact-finding to attorneys
 Original system:
    o Phase I – inquisitorial
            either prosecutor or investigating magistrate collects evidence both for and
              against accused
            Procedure was written and largely secret, although reforms in 1960s and
              70s allowed D to participate more
    o Phase II – accusatorial
            pre-trial inquiry and trial, characterized by openness and orality
            trial judge had already been given dossier and likely formed an opinion
            judge ran the show, questioning D first
            criticized as a repetition and confirmation of what took place in Phase I
    o Public felt this was very slow and unable to protect D‟s right to fair trial
    o Italy has always had a unitary system, with one unit of adjudication
            judges & lay assessors form one unit
            guilt and sentencing are also one unit
 Big differences:
     prosecutor is now a party, while judge becomes more passive
     judge doesn‟t know dossier prior to trial
     severe limitations on use of prior statements at trial – now mainly for credibility

New quasi-adversarial model
 based on US system, which was thought to protect individual rights
 Initial stages:
  o Public prosecutor receives a complaint, registers it and must complete
      investigation in 6 months (or get extension making it up to 2 years)
           Preliminary investigation the same as pre-1988 version
           Evidence obtained after investigation can‟t be admitted

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

               If there‟s not enough evidence to lead to conviction, can ask judge for
                      Prosecution is supposed to be compulsory – but in practice,
                        Prosecutor decides
                            o Office has been removed from Ministry of Justice, meaning
                                there‟s no accountability for Prosecutor‟s choices
                            o Yet trial judge can override Prosecutor and go forward even
                                if Prosecutor doesn‟t want to (but rarely does?)
              If there is enough, makes formal request that person be committed for trial
              Criticism: evidence no longer collected in an impartial, truth-seeking way,
                b/c prosecutor is partisan
                      only collects evidence favoring D to see if case is strong enough to
                        bring him to trial
                      Once that decision is made, no need to look for evidence favoring
    o Judge can supervise parties during investigation, but doesn‟t actively participate
              Can preserve special evidence which may not be available at trial
   Preliminary hearing – judge evaluates evidence, decides if more needs to be
    collected or if there‟s enough for trial
    o D can add evidence in his favor
    o Alternative options can be chosen – like a plea bargain
   Trial characterized by 3 principles:
    o Immediacy – evidence presented to judge in court rather than in a file to avoid
    o Orality – with few exceptions, previous statements should not be read in court
    o Temporal concentration – trial should be only one day
    o Procedure: Each party presents his own case and calls his own witnesses, P
        first and then D
              D can choose not to take the stand and this shouldn‟t be held against him
              Victim can be co-plaintiff with Prosecutor and pursue civil remedies
              Cross-examination occurs
              Character evidence about D prohibited; hearsay prohibited unless parties
                agree otherwise
                      D still isn‟t under oath and can make “spontaneous statements” at
                        any point during trial
              Judges are accompanied by lay assessors in very serious cases
    o Differences from normal adversary procedure:
              Prior witness statements can be read at trial if all parties agree to it
                      Statements only read outside of court have lower probative value
                      judge can ask for original proof
              Judge can raise new issues and evidence
              Expert witnesses are officially appointed and can be examined ex officio
              Judge can examine proof sua sponte
    o Non-bifurcated trial – both guilt and sentencing are decided in one
   Evidence differs from US rules in 2 ways

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

    o Exclusionary rule – trier of fact shouldn‟t consider evidence of prior convictions in
       determining guilt or innocence
            No exclusion of illegally-seized evidence for the purpose of deterring
               police misconduct
    o Parties must honor the rules of evidence and not try to admit anything that other
       party doesn‟t object to
            Objections are irrelevant, and your failure to object won‟t harm your
               chances to appeal evidence improperly admitted
   Other procedures that aim for efficiency:
    o When there‟s lots of evidence, preliminary hearing can be skipped
    o Alternatives to trial:
            Sentencing by parties‟ request – a type of plea-bargaining that only
               involves the sentence, not the charges
            Proceedings by penal decree – parties agree D will pay a fine only
            Summary proceedings – like a movement for summary judgment on the
               record, and D gets a 1/3 reduction in sentence
                    Occurs at preliminary hearing
   Criticisms
     Biggest criticism is that the model didn‟t take – only some features of the
       adversarial model stuck, and when divorced from their context, they mean little
       o New model doesn‟t protect D‟s rights any more than first; author thinks D is in
           a worse situation
       o VC thinks it may need more time and lawyers need experienced professionals
           to train them how to practice in this system
     Rather than adapting to the new system, back-tracking occurs
       o Judges have expanded their role, falling back on their old habits and old
           notions about truth-seeking
       o Grande suggests a bifurcated adjudicating body would curb judicial activism
     Although prosecutor has now become a party, it‟s not an equal party with
       o Prosecutors and judges are considered colleagues and members of same
                Prosecutor has far greater access to judge than does defense; judge
                   trusts prosecutor
       o Prosecutors still have advantage in collecting evidence; defense has no
           greater ability than before
                Prosecutor can threaten to prosecute anyone who doesn‟t give info,
                   but defense attorney can‟t
                D is often detained, limiting his ability to gather exculpatory evidence
                Prosecutor can make searches, seizures, intercept communications,
                   while defense can‟t
     System originally limited probative value of pre-trial activities – but Constitutional
       Court decided that often dossier evidence can be admitted into trial
       o hard to abandon the notion that the truth cannot emerge without unlimited
           probative evidence

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

       o adversarial value for procedure as the method of safeguarding fairness hasn‟t
          taken root
       o inequity between prosecutor and defense perpetuated when all evidence is
          allowed in at trial
      pre-trial statements can come in, affecting D‟s decision to remain silent
      prosecutorial discretion – office is all-powerful in making determinations of
       whether to prosecute

Sources of Law in Civil Systems
Primary sources: 1) Enacted law; 2) Custom; 3) General Principles
 Constitution above all; then legal rules adopted by legislature, executive,
   administrative agency or popular referendum
 Codes
   o The great codes (French & German) reflect the period of reason and science – if
      you base system on reason you have order
           US Constitution may be comparable to civil codes.
   o method of codification characterized by several tenets:
           Law shall be written
           Laws in the code must be systemized
           Laws in the Code should be dealt with in a single fabric
           Code should be written by experts
   o Advantages to codes:
           Creates order from a mass of legal concepts, presenting the law as
                  Civilian system values certainty and predictability in the law; this
                    can cure life‟s uncertainties
                  code‟s meaning becomes more concrete as more commentators
                    write about it and judges decide on it
                  In every single case the judge can do whatever he wants, but in
                    order to treat everyone equally, they try to do the same thing over
                    time –idea that jurisprudence becomes constant
                        o In common law, stare decisis provides certainty
           Process of codification requires that every type of law be taken into
             account, including foreign laws
           All the law is united in one place or book
                  b/c of the commentary, this isn‟t exactly true
           Average man can read and know the law – professional advice
                  Supposedly written clearly and simply; idea of egalitarianism
           Legal practitioners have an authorized framework within which to conduct
             their work
   o Disadvantages:
           The idea of capturing everything in one volume isn‟t realistic
                  Must be flexible, b/c you can‟t cover everything
           Can be either too particular and detailed or too vague

                           Comparative Legal Cultures of the Western World
                                     Fall 2006 Professor Curran

              Code can be trapped in a particular time frame
                    Some argue core social values are always the same
                    However, the role of women has changed, individualism has grown
                    These changes have been reflected in judges‟ interpretations
                    Sometimes judges decline to apply one provision and apply another
                       to achieve a more just result
            Codifiers haven‟t come up with a good way to keep it up to date
                    In principle you can amend the codes
                    b/c no stare decisis, elastic concepts can theoretically change with
                       the times
                    Commentators also critique cases as not doing the right thing
                       where society is changing
   Codification vs. Common law
     In US, common law draws on experience and empirical observation
           o Holmes said “The life of law is not logic, but experience.”
     Hahlo and Ernst Rabel: codes can be nearly identical in two countries, but the
       law can develop very differently
           o Hahlo says a code provides a general legal framework, but commentary is
               needed to really understand it – common law isn‟t that complicated
           o In reality, civil law system is very logical and attorneys do rely on code and
               logic and not commentary
           o Hahlo: common law works more efficiently, based on flexibility of system
               of stare decisis – though judges are bound by precedent, they can
               distinguish cases to allow law to develop
   Custom (jus commune – local custom)
    o Outside of code unless it is codified
    o In Spain and Latin American countries, has considerable weight
    o In France and other countries, used to supplement written law, but can‟t trump
       the code
   General Principles – basic concepts of justice or legal principles that supplement
    gaps in code; “spirit of the code” and the legal culture that shaped it
       o Much more common in civil law systems (ICJ statute refers to this, European
           Convention on Human Rights Article 7), as civil codes are more vague
       o Austrian, Spanish, Italian and Swiss codes direct judges to use general
           principles to fill gaps in law
                Swiss Code Article 1 says when faced with gaps, judges should “act as
                   legislators” – but judges almost never use Article 1 in opinions
                They act creatively, using it implicitly to satisfy civilian perception that
                   judges shouldn‟t make law
       o France: courts don‟t traditionally look to general principles; consistent with
           mistrust of judges
       o Germany: judges are entrusted with looking to these principles to aid them
                Hedeman‟s Flight into General Principles warned that judges would
                   take over by determining everything by general principles, but public
                   wasn‟t too concerned

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

                Write opinions similar to American style of outlining the facts and the
                 process of reaching their decision
      o “good morals” provisions
      o Helps resolve tension between wanting all law to be captured in writing and
         the fact that it‟s virtually impossible to do that
               By following “spirit of the code,” you‟re still in accord w/ Code itself
      o Radbruch’s formula – if enacted law defies Natural Law, it shouldn‟t be
               German court followed Radbruch‟s formula to reduce pension of East
                 German officials who shot people for crossing the border
               Radbruch wanted judges to use it to be courageous, even to apply
                 laws that might be viewed as retroactive
               Nuremberg trials were ultimate forum for Radbruch‟s formula
               US case against Canada argued Radbruch‟s formula in Chinese Head
                 Tax case
               Curran believes principles of equity built in to common law give our
                 judges that type of discretion
   General clauses – give judges leeway to interpret and apply the law
      o French and German codes provide that transactions offending good morals
         are void; you must perform obligations in good faith

Secondary sources: Authorities
 Case law – principles in codes are often seen as too general and in need of
  formulation by jurisprudence; but no stare decisis
  o Important because it reflects the right way of solving problems
  o Judges are deeply committed to uniform application of the law
          Lots of informal consultation among judges before making decisions to
            reach this aim
  o When case law is well-established and consistent, it becomes authority
  o Biggest argument undermining influence of case law is that at least in France,
     cases aren‟t directly cited in judgments, so you don‟t know if or how they
     influence judges
 Doctrine – legal commentary by scholars
  o Before cases were published, this gave lawyers access to cases that were
     subject of commentary
          Even now that cases are available, scholarly interpretation of the case is
            seen as more important than the case itself – explains the case and its
          Doctrine is “one set of authorities filtered and pre-selected by another”
  o Judges aren‟t obligated to follow it – discretion in whether and what to follow
          Factors influencing them are reputation of author and level of agreement
            among commentators
          German judges traditionally sent confusing cases to scholars to obtain
            their opinion on how to resolve – not so much anymore
          In France, official advisors give judges their opinions on how to resolve

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

           Scholarly commentary is most key when issue is unresolved, uncertain
      Mattei is critical of US legal scholarship in the EU because US legal scholars
       don‟t consider ethics the same way
          o US legal scholars don‟t have the same role as civilian scholars – they only
              make suggestions that don‟t carry much weight
           Also, judges in US are very careful to distinguish between holding and

Interpretation of the Law in Civil Systems
 When does judicial interpretation (rather than simple application) occur?
        o To explain language of textual law
        o When terms are ambiguous or mutually inconsistent
        o When textual law has gaps
        o When result would be absurd
 Grammatical interpretation – first rule is “interpretation stops when a text is clear”
    (interpretatio cessat in claris)
        o Doesn‟t apply to general clauses
        o Exception is when absurdity would result
        o This is seen as the crucial first step in civil law, b/c text always governs – in
           US, there are fewer statutes (BUT our textual law is growing)
 Logical interpretation
        o Reasoning a contrario – if text states one thing, it negates the contrary
        o Inclusio unius exclusio
        o Looking to other positive law
 Exegetical – look to legislative intent to fulfill its purpose
        o Studying legislative history, preparatory works, ministry‟s responses to
           parliament‟s questions
        o Geny and Saleilles didn‟t like this – it traps the law in time, it looks to
           subjective intent
                But when old statutes are involved, judges look to social objectives of
                   provision rather than the ancient purpose
 Teleological – French Court of Cassation uses this only where plain meaning would
    be absurd

French approach
 Article 5 of Civil Code says “Judges are forbidden to pronounce by way of general
   and regulatory disposition on the cases submitted to them”
      o BUT, Article 4 says a judge can‟t refuse to decide a case b/c the law is
          unclear, silent or incomplete
      o French legal community never accepted the idea that there are gaps in law
          that judge must fill – inconsistent with judge‟s role as applying law that the
          legislature makes
               As a result, even though judges actually create law through
                  interpretation sometimes, they can‟t acknowledge it
 Some scholars support this role for judges

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

       o Saleilles said judges should look “beyond the code, through the code”
                Judges who interpret actively describe their method as looking
                  “through” rather than “beyond” the code
       o Geny‟s libre recherche scientifique – when text is unclear or silent, judge
           should be free to consult whatever materials are available to resolve issue:
           case law, custom, writing, social and economic context
                Both emphasized that good judges were needed to do this, in contrast
                  to French view that the best and the brightest don‟t become judges
   Judicial opinions:
       o Court of Cassation tried to follow Code‟s restrictions by writing cryptic
           opinions that recited legal provisions, then made it look like the decision
           followed logically
       o In 1971 commission set up to reform decision-writing, chaired by Touffait
                Argued that litigants rarely understood the bases for decisions – why
                  cases came out the way they did
                Classical method was too obscure – judges should write in simple,
                  clear language and explain the facts and their reasoning
                       Traditional view was that as long as the result was consistent
                          with other jurisprudence and law, no need to explain it
                       Criticized court from divorcing law and reality
                       Clear, simple language seen as consistent with the Code
                Resistance to a more US-influenced method cited US judges‟
                  propensity to “ramble” and write huge, long opinions
                Also suggested that dissenting and concurring opinions be written;
                  judges feared loss of judicial independence and respect for the court‟s
                       There‟s always been political pressure on judges in France, and
                          revealing what judges decide might increase this
   Goals of interpreting: to give effect to 1) the Code‟s words and 2) the rule‟s purpose
       o No strict canons of interpretation; no hierarchy of approaches
       o Methods of interpreting:
                       Grammatical                     Preparatory texts
                       Logical                         Teleological
                       exegetical

German approach (Brugger)
 Judicial interpretation has become widely accepted in Germany as “open
  development of the law”
 Jhering (turn of 20th century)
 Free Law School – Kantorowicz, Ehrlich
     o Influenced Geny, saying social and economic context should be taken into
         account when interpreting law
 Savigny established classical method of interpretation in 1840:
     o Textual/grammatical interpretation
     o Structural/contextual interpretation
     o Historical interpretation

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

        o Teleological interpretation
                From today‟s perspective, what should the outcome be? Consistent
                   with Free Law School
                Is this consistent with civilian outlook? Yes, b/c it enhances uniformity
                   (judges want to solve problems of people before them) and is in
                   keeping with the flexibility inherent in the code
                Opposition says the law means nothing if you can change it
   Constitutional interpretation
        o Prevailing view is that Constitution is more political, open-ended and
           incomplete than laws
        o Actualization – rather than construe Constitution, results must be creatively
           determined in conformity with constitution
        o Konrad Hesse‟s five points of reference for Constitutional interpretation:
                Interpretations must support unity of Constitution
                Use practical concordance to harmonize conflicting provisions
                Respect separation of powers
                Interpretations must aim for social & political cohesion as well as a
                   resolution for the parties
                Normative force of the Constitution – each interpretation should
                   attempt to optimize all these elements
        o These are widely used by scholars and judges, but it‟s not wrong to use the
           same methods of interpretation for both laws and Constitution
   Lots of support for using all methods of interpretation, keeping in mind:
        o Each interpretation must conform to grammatical analysis
        o Objective, textual and teleological methods preferable to subjective historical
                Once a law is passed, it‟s not limited to what those who passed it
                   thought – it governs future situations as well
   Legal coherence – all provisions of the law should form a bond of unity, and judges
    should read the law as a rational continuum
   Ethical coherence/legitimacy – social and political values should also be interpreted
    in legal provisions

Problems with judicial legitimacy in Germany
 Famous 3 German code general clauses “could be described as roving search
   lights, supplied with beams that could penetrate anywhere in private law”
       o Art. 138 – transactions that offend good morals are good
       o Art. 142 – good faith required in commercial transactions
       o Art. 826 – reparation required where one intentionally injures by offending
           good morals
 By including these clauses, Code drafters acknowledged that Code was incomplete
   and had to be supplemented by sources outside code, especially judges
       o Others say code is complete – answer is always within the Code, just through
           interpretation of general clauses

                           Comparative Legal Cultures of the Western World
                                     Fall 2006 Professor Curran

        o Dawson believes this gave German judges a license to proclaim what they
            saw as the correct moral outcome of a case, especially in the twenty years
            after the Code came out (in 1900)
                 The abstractions removed the incentives for close and careful
                 “in that short interlude the German judiciary did what it could, and at
                     that with considerable success, to undermine the power of a
                     democratic government to protect itself against implacable enemies
                     that were determined to destroy it and very soon succeeded.”
                 Law-making in that period was transferred from the legislature to the
   While some in US law protest similar requirement of “conscience” in UCC, this is
    consistent with common law
        o Problems at one point with common law when principles were seen as too
            rigid to expand to new needs and developing moral values
        o Merging of common law and equity makes this necessary
   John Dawson argues judiciary has allocated itself a great amount of power in
    Germany, putting itself “at the intersection between the legal order and the human
    affairs that it regulates”
        o Judges view themselves as part of the government and everyone views the
            government in a positive light in Germany – they‟re more willing to be creative
            in interpretation
             During hyperinflation, German courts changed fixed amount of prices to
                alleviate injustice caused by devaluation of DM
                      In other cases involving economic interests and individual rights,
                        German judges used the general clauses to strike down economic
                        practices that hurt citizens
             In contrast, French “a franc is a franc” cases held that judges can‟t
                interfere in setting currency
        o “Judges have the highest credibility and contribute most when they perform
            the function that is assigned to them . . . the function of applying existing law
            in settling disputes”
   Even though we have lots of legislation, the activities of our legislatures are still
    selective – areas where social interest must be protected or social purpose

Convergence & Divergence
Sources of law that originally shaped common and civil law systems have been
transformed by:
 Transgovernmentalism - globalization and cooperation causes more encounters
    (between judges, lawyers), producing convergence
        EU – more bimethodological decisions coming out of national courts
          interpreting EU issues
        Some say no b/c EU bar of specialists are almost the only ones who appear
          in front of ECJ

                           Comparative Legal Cultures of the Western World
                                     Fall 2006 Professor Curran

   Rise of statutory law in both civil and common law systems, making statutes the
    primary source of laws, decreasing the power of common law
        In late 19th century in both systems, statutory law exploded, regulating factory
          safety, workmen‟s compensation, contracts, commerce, public utilities
        “each country laid down the main lines of its legal treatment of industrial
               In common law system, this removed from judges areas that
                   traditionally depended on them
                        Frankfurter wrote in 1947 that almost no matters of common law
                           come before Supreme Court
                        Counterargs: new statutes are no longer codes – it‟s more
                           detailed, more specific, binds judiciary in a different way
                        common law still looks to precedent to interpret what statutes
                           mean, using analogical reasoning – civil law doesn‟t pay such
                           attention to facts, to prior cases
                               o VC cites decline of precedent in common law countries
                                  as a corollary to recognizance of individual rights –
                                  reluctance to trust the past, looking more to public policy
                               o Perhaps this represents the equity and law-making
                                  functions of common law
               In civilian systems, codes have declined in importance, while “special
                   legislation” has increased – statutes outside framework of code
   Increasing variety of legislation
        In US, statutory law has been augmented by bureaucratic law – revenue-
          raising laws, social security, public assistance laws
               Highly detailed and specific, giving judges little leeway
        In civilian countries, ordinary legislation isn‟t as general or conceptually
          unified as Code
               More particularistic and sensitive to political and economic currents
               Reform under Code was difficult, but statutes outside code can be
                   easily amended as circumstances change
        In both systems, increased volume of enacted law also increases necessity
          for its construction, interpretation and application by courts
   Decline of precedent in common law
        proliferation of regulatory law and increasing number of cases dealing with
          social conflict make reasoned elaboration of principle more difficult
               Supreme Court decisions in recent years seem to show little effort to
                   build a bridge to preexisting authority
               Change in nature of decision-making: some suggest US courts now
                   give more weight to creating individualized justice in particular cases
        “it is now generally accepted in civil law systems that judges do and should
          take heed of prior decisions, especially when a consistent line of cases has
        In both systems, line between adjudication and administration has become
          blurred – focus on efficiency and system maintenance, having clerks do lots
          of the work has caused bureaucratization of courts

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

   Emergence of administrative law
       Social services, environmental, health and safety laws have the most direct
         impact on the lives of most people
   Expansion of functions of state and rise of public law
       Laws regulating labor, education, transportation, electricity, social assistance
         to the poor abound
       Great distinction between public and private law of the past is no more

Is this producing convergence?
 “it is probable that new and unconventional groupings of legal systems will emerge
    and that a country may be said to belong to a given legal group for one purpose but
    to others for other purposes”
 In both systems, traditional mechanisms for maintaining continuity and predictability
    while providing for growth have fallen out of equilibrium
 There‟s an increasing understanding that law cannot be “scientized,” in contrast to
    civilian attitude that everything can be
 Increasing convergence of German and US methods
        o German and US courts have taken similar approaches to resolving disputes
            about form contracts, but German courts have had greater success
                 They‟ve looked to general clauses to achieve a fair result, where US
                    has hesitated
        o There is increasing convergence in the way German and US courts apply
            case law
                 Differences still include:
                         Publications of dissenting opinions in US
                         Americans show more disrespect for judges and criticize them
                            more severely
                 Both systems distinguish between obiter dicta and necessary grounds
        o In past 50 years, German courts have become more active in making law
                 Legal scholarship has receded to a less prominent role
                 There is a “boldness and wealth of judicial innovation in Germany in
                    the last 50 years”
        o Perhaps one reason German judges can be trusted more in making law is
            that their legislation applies nationwide, and they guide each other
                 We have different laws in all 50 states and an abundance of legal
                    periodicals and treatises
 Trade and Human Rights are big movers of universalization in law
        o Human rights have tended to be more rooted in the national law
        o International arbitration has become increasingly popular
 Way civilian and common lawyers are educated makes convergence difficult
        o Civilian students are provided with systematic overview and framework
                 Kept at a distance from facts and specifics
                 Learn “the grammar of law” – network of interrelated concepts, broad
                    principles and classificatory ideas
        o Common law student is taught to mistrust generalizations and focus on the
            facts and specifics

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

      o Civilian lawyers have told Viv that civil law education does NOT encourage
        innovation, and innovation is needed in globalizing legal world

Public vs. Private Law in Civilian System
 Distinction between private and public law is key to civilian system; originated in
  Roman law
      o In 19th century, courts could only hear private law claims – public law was the
         sovereign‟s domain
      o Even today, different courts for private and public law
              France‟s separation of powers led to separate courts for public law
              Germany has separate administrative courts
 Traditional notions of the distinctions:
      o Public law – constitutional, administrative and criminal
      o Private law – civil, commercial
      o Mixed – labor law, social security, some other new areas
 Constitutional law is seen as something in itself, like political science
      o Judicial review of constitutionality of acts is fairly recent
 Public law today – mostly administrative; even criminal law is considered part of
  private domain
      o Administrative law – norms that regulate organization, functions, interrelations
         of public authorities and between them and citizens; tax law
              Largely uncodified – based on case law and scattered statutes
              Case law is bigger in France, while in Germany and Austria, enacted
                law is more important
              Not really an area of convergence with common law b/c the rule of the
                case is used rather than the facts
 Private law – commercial, civil, family, property law
      o Separate commercial code, with basis for contracts in civil code
              Switzerland has no commercial code
              Commercial law also involves consumer law (which is tied to public
              There‟s an idea that the law of contracts is common in Europe, but it‟s
      o Civil law includes questions of civil status, domicile, voting
      o Property law based on distinction between movable and immovable property
              Rights are seen as diminished; US is last bastion of right to property
              In civil law systems, no concepts of future interests or equitable
              Leases are part of contract law
              Once a will is notarized, it can‟t be challenged
                     In US you can disinherit children but not spouse – in civilian
                        countries, it‟s the opposite

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

                         Now in France some economic obligation toward spouses is
                        Legitimacy was a major aspect of inheritance law – illegitimate
                          children weren‟t entitled to anything until recently
        o Crimes are still considered private law; constitutional is separate
   While result is usually the same depending on whether subject is classified as
    private or public law, substantive rules might be different

Law of European Community
   Idea of unifying Europe may have begun with Napoleon spreading the code
         o Jean Monnet was a key player in EU – sought to unify France and
           Germany economically so that war was impossible in the future
   Two different strains: fundamental principles are similar, but national differences
     are important
   Democratic deficit: biggest criticism has been lack of transparency
         o Most EU officials are appointed rather than elected, and elected
           Parliament doesn‟t have much power
                b/c MS governments are elected democratically, maybe this isn‟t
                   such a problem
                Many in European Parliament lost national elections – viewed as
                        In Italy, you can serve simultaneously in Italian and EU
                        Low voter turnout (25% in new states, 45% in core states)
                        Center right group is most powerful, Social Democratic party
         o Constitutional Treaty was thought to solve this democratic deficit by
           establishing greater accountability
                No Constitution originally b/c all MS had democratic set-ups and
                   their legitimacy was transferred to EU
                Legal personality of EU was also unclear
         o European benchmarks of democracy and how they relate to EU
                Accountability of executive to legislature (Parliament can fire
                Rule of law – standard to which all authorities are held
                        ECJ has constitutional review
                Transparency in governance
                Equal treatment and welfare
   Greatest challenges:
         o Expanding borders of EU, coupled with free movement of people within
           those borders (Turkey‟s accession)
                Barroso says EU must resolve issue of Constitution before further
                   enlargement (Croatia, Turkey) can occur
                20 official languages – expressing yourself in your own language is
                   a fundamental right

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

          o Continued economic growth while maintaining welfare states
                Lisbon project – EU should become largest knowledge-based
                       No real consensus on how to implement this – EU can‟t tax
                       Revenue comes from MS, 1% VAT and customs charges,
                          but more extensive taxation proposals have been shot down
          o EU is currently world‟s biggest trader, with 20% of world‟s imports and

Is EU headed toward supranational state?
     It‟s uncertain – it‟s also been called “post-national”
     Peculiar legal problems arise
           o Accepted principle of international law is that states can amend treaties,
              and some MS argue they can amend their treaties following national law
              (that‟s how international law works)
     Can it have its own seat as a member of international organizations?
           o Does that mean member states lose their seats in favor of EU?
     Different layers of integration have been proposed, maintaining “the kernel of
      Europe” as the most unified – how would this work legally?

Courts in the EU
   aim to make law not uniform, but harmonized
         o The idea of making law uniform and applying it equally to everyone is very
         o At the same time, the idea of one court that makes precedents binding
             others is more common law
                  Observing whether member states are correctly applying EU law
                      has more of a civilian aspect
   EU Court of First Instance – competition law, anti-dumping
         o Court does fact-finding
         o appeal possible, but NOT de novo
   Advocates General – taken from French administrative court system
         o Lawyer-employees who act like judges in many ways
         o Can ask questions, submit opinions – a unique feature
                  In French system, they used to deliberate with judges but didn‟t
                      vote – not anymore after recent ECJ decision
         o Considered very influential – final decision often reflects what AGs have
   European Court of Justice
         o Court opinions are anonymous, no dissenting opinions, written in
             language of parties bringing dispute
                  Consistent with civilian desire to insulate judges from political
                  Loser pays costs
         o Use of general principles: looks to international treaties of MS and
             common constitutional traditions of MS from 1969 on

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

                    Examples: Human rights: Right to privacy, right of ownership,
                     freedom of association, freedom of religion, freedom to practice a
                     profession, right to form trade unions, democratic government
                    Other principles: proportionality, legal certainty, legitimate
                     expectations, equality
                    1977 Join Declaration of Community Institutions endorsed this
                    Unectef v. Heylens (1987) – right to a judicial remedy when one of
                     these rights has been violated is also fundamental
                    Economic rights have increasingly been recognized as fundamental

Supremacy of Community Law
   Doctrine of direct effect – community legal norms that are precise, clear, self-
     sufficient have direct effect in MS law
         o Vertical effect – individual can sue MS
         o Horizontal effect – individual can sue individual (EXCEPT w/ directives)
         o This is uncivilian – usually only Constitutional courts can perform judicial
             review and bind the entire country
                  BUT it has given national courts more power – if they don‟t approve
                    of national legislation, they can refer it to ECJ and stick it to the
   Doctrine of supremacy – any Community norm trumps national law when the
     two conflict, regardless of when in time national law appears
         o from 1964 on, ECJ has developed this doctrine (does not appear in
         o national law is supreme in its own sphere of competence (jurisdiction) –
             but when there‟s doubt as to competence, ECJ decides
   therefore, Community law that has direct effect is the “Higher Law” of the land

Judicial Review in Community
    both acts of Community institutions and Member State acts are subject to judicial
      review for their conformity with Community law and policy
    Commission or MS can bring an action in ECJ against MS for failing to fulfill its
      Treaty obligations
          o Weaknesses to this approach: 1) procedure is political in nature, 2)
             Commission can‟t monitor or be aware of all MS infractions, 3) small
             violations may not be worth all the resources needed to go before the
             ECJ, 4) no real enforcement – only “declaratory judgment”
    National courts and EU law
          o Member States can perform judicial review in conjunction with ECJ
                  Like an interlocutory appeal, MS court can send an issue to ECJ,
                     pause proceedings, then resume once decision is made
                  This integrates national courts and ECJ into unitary system of
                     judicial review and makes it more likely that MS will adhere to ECJ

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

                  Weaknesses: 1) not all violations come before national courts, 2)
                   MS use delays of system to defer ruling
          o ECJ rulings have erga omnes effect – after it has spoken to an issue,
            national courts can strike down or suspend national statutes that are
            inconsistent with ECJ ruling
                 Similar to common law role of precedent
          o Citizens can sue their govts and others in national courts when EU law
            has been violated – strongest monitoring of EU law has been through
            individuals challenging national laws
      No appeals of ECJ decisions, but there can be:
          o Revisions of a decision based on info that wasn‟t available when decision
            was rendered (10-year statute of limitations)
          o Requests for interpretation – national courts refer an issue to ECJ and
            ask how past cases determine its outcome
                 ECJ performs the common law-like function of analogizing ad
                   distinguishing issues in line with precedent
          o Reconsiderations – third parties who claim they‟ll be harmed by the
            decision (2 month statute of limitations)
                 Applicant must prove they had no notice of proceedings and
                   couldn‟t intervene

Interaction between Member State and Community law
     Monists vs. Dualists
          o Greece, Luxembourg, Netherlands, Portugal, Spain, Belgium and France
             have monist approaches to international law
                  France didn‟t fully accept this until 1989
          o UK, Ireland, Denmark are more dualist, requiring national legislation to
             transform international agreements into domestic law
          o Italy and Germany resisted supremacy of Community law the most
                  Concern that non-amendable aspects of their constitutions were not
                    properly addressed in EU law (i.e. fundamental human rights)
                  National courts ruled that Italy & Germany reserved the right not to
                    follow EU law in these areas – presumption created that German
                    law in some areas was better and would trump EU law
                         Maastricht decision reversed this – new presumption is
                           that EU law trumps, but German Court reserves the right to
                           ignore EU law if it isn‟t sufficient in some areas
          o ECJ through case law ruled that national legislation can‟t trump prior EU
             commitments, thus sort of forcing all EU countries to be monist
     Innovation of civil law methods – the ECJ “has become one of the major
      sources of legal innovation in Europe not only because of its position as the
      Community‟s judicial institution, but also because of the strength of its
      comparative methods.”
          o Use of case law has grown and private law expanded
                  1985 directive on contracts requires writing and allows consumer to
                    repudiate more easily – formerly unheard of in civil law

                         Comparative Legal Cultures of the Western World
                                   Fall 2006 Professor Curran

                   By forcing MS to interpret their law as in line with Community law,
                    has changed national rules
                 Has forced national law to be more collective and universal (esp. in
                    regulating unions or competition policy)
                 Has increased use of functional and economic approaches to law
                 Has blurred distinction between public and private law
                         Berr‟s poles of coherence – rather than maintaining
                           traditional divisions of private law, law is now developing
                           around forms of economic activity (competition, employment)
                         Berr believes European jurists must establish foundations of
                           “economic law”
          o Institutions other than courts play the role traditionally assigned to courts
                 Commission issues general communications (coordinate law and
                    set basis on which Commission regulates) and pre-merger
                    approvals or denials
                 Mengozzi says that these tools represent aim for legal certainty and
                    hesitation to call Community institutions law-makers
          o Public law has been the most innovated by the Community approach
                 Esp. regarding general principles of law
                 ECJ has sought to extract broad principles from comparative
                    analysis, finding law in the common legal tradition rather than in
                    specific legal systems

Common law aspects of ECJ
   ECJ decisions are viewed as rules of law in MS and institutions and have erga
    omnes effect
        o BUT rules are decontextualized – they become like Code articles, not
           rooted in factual context
                “what we find in every country is that judges do what they know
                  how to do” – while our judges reason by analogy, their judges
                  reason deductively
                Still, someone interprets that case to find the rule of it, like in
                  common law
        o Civilians don‟t perceive ECJ as a lawmaker through case law
                We have different perceptions of what “case law” means – civilians
                  say ECJ interprets EU law through cases rather than using cases to
                  make law
                Some criticize ECJ for overstepping its bounds using case law
   In a request for interpretation, national courts refer an issue to the ECJ and
    ask how past cases determine its outcome, making ECJ analogize and
    distinguish precedent

European Human Rights System
    Council of Europe formed in 1949 – first supranational institutional system for
     protecting and promoting human rights
    first to codify and enforce a state‟s responsibilities to its citizens

                                     Comparative Legal Cultures of the Western World
                                               Fall 2006 Professor Curran

                 o Two purposes: promoting democracy, rule of law and human rights
                 o 46 Member States - All EU MS plus Albania, Andorra, Armenia,
                    Azerbaijan, Bosnia, Bulgaria, Croatia, Georgia, Iceland, Lichtenstein,
                    Macedonia, Moldova, Monaco, Norway, Romania, Russia, San Marino,
                    Serbia, Switzerland, Turkey, Ukraine
             European Convention on Human Rights produced in 1950 (effective 1953)
                 o At least Nine Protocols with additional rights have been added
             European Court of Human Rights supervises Convention
                 o Individuals have standing to sue states for personally suffering violation of
                    Convention right (can‟t sue other individuals)
                         Even non-citizens of MS can sue a MS if they suffered harm there
                         while states can choose whether or not to make themselves subject
                            to suit, almost all have consented to Convention provision
                 o Member states can also sue each other
                 o Preconditions to suit:
                         individual must exhaust all national remedies
                         must file within 6 months of loss in national court of last resort
                 o Court doesn‟t order states to take measures – it declares violation, then
                    Committee of Ministers must take action
             Two great novelties:
                 o Obligations of states to individuals can be enforced (rather than just
                    obligations between states)
             European Social Charter, created in 1961, addressed common social and
              economic goals
                 o Incorporated in a different instrument because of the disparities in social
                    and economic conditions of MS and difficulties in agreeing on standards
                 o Law without a sword – no real enforcement mechanisms other than
                    political pressure or expulsion of member

     Council of Europe Institutions
           Body                          Make-up                                            Function
Parliamentary Assembly        Elected by national parliaments                  Elect judges on Court
                                       of parties                              Investigates, recommends, advises
                                       Divided by political groups (not         (called on Russia to abolish death
                                       national groups)                         penalty)
                                                                               No legislative function

Committee of Ministers                 Foreign Minister of each MS,        Executive, decision-making body
(called “guardian of the Council‟s     representing governments             Discuss national approaches to
fundamental values”)                   (46 currently)                         European challenges
                                                                            Formulate European responses to
                                                                              these challenges (need 2/3 majority for
                                                                            Monitor state compliance (decide how
                                                                              state responds to Court judgment,
                                                                              issue decisions on issue w/in a state,
                                                                              then demand a report from state)
                                                                            Elect Commissioners

                                      Comparative Legal Cultures of the Western World
                                                Fall 2006 Professor Curran

Euro Commission of Human                Number equal to that of                 Receives applications from states &
Rights                                  Contracting Parties to                   individuals alleging violations of
                                        Convention (but not all                  Convention (w/in 6 months of
                                        Commissioners must be from               exhausting domestic remedies)
                                        contracting states)                 1) Investigates violation with parties
                                                                            2) Tries to reach a friendly settlement
                                        elected for 6-year renewable        3) if no settlement, can refer case to court
                                        terms                               within 3 months
Euro Court of Human Rights              46 judges (one from each MS)        Interpret & apply Convention (civilian role);
(called The Constitutional Court of                                         follow binding precedent (common law role)
Europe and “the embryo of a             Elected for 9-year renewable
European Constitution”)                 terms                               Hears cases referred to it by Commission,
                                                                            Contracting Parties and individuals

                                                                            25+ decisions per year

     Developments between ECJ and ECHR
      1974 Nold case – ECJ holds that its human rights standard is determined by MS
       traditions and ECHR
      1974 Solange case of German FCC – b/c EU hadn‟t adopted set of HR that fit
       Germany‟s standard, it had right to review EU law for compliance with its own
           o 1995 Brunner case (Maastricht decision) - FCC reversed this presumption
      Commission rejected claims against EU in 1995
      1996 ECJ ruled that EU can‟t be a signatory to the Euro Convention on Human
           o if it could, MS or other party could sue EU for violation and ECHR would have
               final say, rather than ECJ
                    What if state implementing EU policy by statute violated ECHR
                            You could sue your own MS in ECHR, but ECHR has dismissed
                              these cases
           o ECJ has independent jurisdiction over human rights issues
      2000 EU Fundamental Rights Charter

     Is convergence occurring in Europe?
     A. Constructing the Chunnel
         o Treaty of Canterbury set applicable law as those principles common to English
           and French law
           o In the absence of principles common to both, general principles of
              commercial law would govern, as defined by national and int‟l courts
           o If parties agreed, principles of equity could apply
      French criticized English common-law contract drafting:
           o “excessive religion of contracts” – every word is weighed and counted, like a
              religious rite
           o British attempt to frame parties‟ acts in every aspect of contract and attempt
              to foresee every possible contingency
                   Inclusion of “endless, useless and inappropriate phrases,” very rigid

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

        o From a French perspective, there was no need to duplicate every aspect of
            the Code in the contract – Code governs regardless of whether you put all
            those provisions in
                 You must include enough so that court sees the basic type of contract
        o French lawyer later said British law is so rigid b/c of stare decisis, which is
            “tyranny” and causes common law attorneys to engage in acrobatics to find
            that something is identical
   British perception of French contract drafting:
        o Contract was so skimpy it wasn‟t valuable at all
        o French didn‟t try to forestall or foresee future problems, meaning that in the
            event of a dispute everyone would be highly vulnerable
                 Practice was “reductionistic” and failed to build on past experience
   Common law contract is rooted in fact, just as common law legal system
        o We incorporate wording that was interpreted in other contracts to govern
            problems that have occurred beforehand
                 Meticulous recording of paper trail
        o In civil law countries, the parties control less and the law controls more

                     Civil                                            Common
   Identify general K category from Code             Create a document tailored to this
   Governing Civil Code principles                    transaction
    mandate uniform interpretation of all Ks          Contracts attentive to facts 1) that this
    in same category                                   K will generate, and 2) of case law
   General language suffices                          where past facts had past legal
   Parties‟ intent can be explained in case           significance
    of dispute                                        Parole evidence rule will bar testimony
                                                       re: parties‟ intent, so needs to be

B. Pretty v. UK case (ECHR 2002)
o ECHR‟s bi-methodological opinion became a source of law for all EU member
   states, demonstrating convergence
        Court found that UK‟s failure to excuse man who might help his wife commit
          suicide didn‟t violate any principles of Euro Convention on Human Rights
               What court really examines is whether UK courts violated Convention
                  by making assisted suicide a crime – did it go beyond the “national
                  margin of appreciation” and done something excessive?
        analyzed lower UK court proceedings and the cases relied on there,
          distinguishing some precedents on their facts
o Two challenges represented in Pretty:
        Changes in law that occur without anyone really acknowledging it
               i.e. to keep up with medical and scientific technology
        ambiguity regarding post-WWII sanctity of human life standard vs. modern
          British standard of quality of life

                              Comparative Legal Cultures of the Western World
                                        Fall 2006 Professor Curran

                      Airdale v. Bland (HoL 1993) – doctors can remove feeding tube if
                       consciousness has departed forever, emphasizing sanctity of life but
                       really looking to quality
                           o Pretty cites Bland for normative principle that life is sacred –
                               decontextualized reference to a precedent
                           o P claims that UK statute discriminated against the disabled b/c
                               she couldn‟t invoke her right to commit suicide b/c she was too
    o In France, common law portions of the opinion were omitted
             excerpts from decision rather than entire decision published, legal analysis
                afterward took a totally civilian approach
             Resistance to common law portion wasn‟t willful, but a result of classifications
                and categorizations that haven‟t been altered so they can accept the new
    o French scholar balked at UK court‟s decision not to prosecute
             In civilian countries, law must always be applied – leeway comes by not
                punishing someone
             “the very objective of law . . . lies in its symbolic expression rather than its
                application in reality” – Antoine Garapon, French judge
   Few people read European court decisions in their original form
    o lawyers read them after they‟ve been converted into legal code of national system or
       in commentary that puts its own spin on decisions
   National Supreme Courts are no longer supreme – EU courts are above them
    o “national legal cultures process and absorb European court decisions through the
       filter of national legal categories, with cognitive grids of civil or common law creation
       that do not assimilate information from the other system of legal thinking and
   Stare decisis – civilian countries have adopted it in a strange and different way
    o Rule of the case governs as precedent, but as a factually decontextualized,
       normative principle (like a Code provision)
             not fact-based at all, no inductive, analogical reasoning applied to cases that
    o Italian Supreme Court decisions are recognized as law – but they‟re maxims,
       meaning they apply equally to situations that are factually similar and those that
             Civilians who oppose this fear granting too much power to judges
             Those in favor say judges are applying enacted law
   European law is causing a move toward common law methods
    o Directives are specific and detailed, unlike code provisions
             MS must change laws to incorporate them – defies concept that law
                emanates from a coherent whole
    o Increasing regulation and more detailed statutes defy civilian idea that laws should
       be general, which helps them adapt and retain continuity
             Montesquieu‟s theory in The Spirit of the Laws: never separate the details
                from the whole
             Delmas-Marty cites many new norms developing spontaneously without
                overarching set of rules as dangerous fragmentation

                             Comparative Legal Cultures of the Western World
                                       Fall 2006 Professor Curran

             Slaughter says disaggregation is okay because it comes from democratic
              process, just on a transnational level
          Some Europeans relate profusion of statutes to Fascist governments‟
              codification of everything and demise of the rule of law
   Some propose an EU Civil Code to stem this fragmentation
    o Viv thinks common law/civil law divide is central to understanding this debate
         o French fear subordination of their Code to a piecemeal standard that „s less
              universal, fearing judicial empowerment
         o Increase in highly specific laws also reminds many of fascism
    o Ugo Mattei thinks a European Code will promote fairness

       Metamorphosis is the best way of describing law and the nature of law – although
        this might be a typically common law perception

    Chinese Law
     Society characterized by skepticism regarding rule of law
     Two camps: Legalists and Confucians
         o Legalists – external rules and positive laws should govern society, achieving
             uniformity, predictability (rule of law)
                  Criticizes Confucian view for allowing individuals to corrupt system
         o Confucians – normative view of law; look to custom and people‟s values,
             moral standards of society to determine which rules govern (rule of people)
                  Takes into account social hierarchies and roles of Chinese traditions
                  Believe legalist view is incomplete, overly rigid and mechanical
                         Law must be tailored to needs of community
                         Looking to external rules is moral weakness, undermines
                            authority of those rules
     Confucian view tends to prevail
         o Legalist rulers tended to be harsh and corrupt in making and implementing
             rules – focused on criminal law and punishment
                  Crimes included political indiscretion, family impropriety
         o Good example of role of legal formants and need to approach comparative
             analysis by examining function and context
         o IP law example: IP laws reflect rule of law, but there‟s much disclosure of
             proprietary information resulting from gaps in bureaucracy (reflecting rule of
                  Chinese view IP laws as open to abuse, as mechanical and penalizing
                  In the West, IP laws are based on exclusivity, individualism – Chinese
                    collectivist society counterbalances, modifies this
                         Highest form of flattery is copying product as accurately as
                  Because personal relationships & family ties are so important, formal
                    contracts with third parties aren‟t so popular
         o Contracts are often just pieces of paper rather than binding agreements

                          Comparative Legal Cultures of the Western World
                                    Fall 2006 Professor Curran

   Modern legal system developed in 1970s, copied from Soviet Union
        o Family law developed first b/c men wanted divorces; it was originally a crime
           (w/ capital punishment) to abandon your parents; crime to fail to support
           parents or younger siblings
        o Criminal law – throughout history, punishments were horrifying in order to
           deter crime
   Judges exercise lots of discretion, interpreting rule of law and Constitution as
    consistent with common values
        o Courts interpret wills according to people‟s values – you‟ve given this person
           too much money, this person needs more, was the heir dutiful and deserving
           of inheritance?
        o Judges are better now than they were in the 1980s, when they were very
           corrupt and many were military - still corruption, still fairly political
                 Now there are special judges‟ universities (as an alternative to law
                   school), and judges must pass the bar and have experience
                 Compensation for high-level judges is good now, so bribes aren‟t
        o Three-person panels hear cases – one judge and two “listeners” elected by
           the people; judge writes opinion
   There are lots of statutes, regulations and laws, and they‟re theoretically accessible
        o Lawyers provide access to laws, navigate through bureaucracy, help parties
           negotiate – system is unpredictable
   Mediation and arbitration plays a much bigger role and is more formalized than here
    – judicial system seen as reserved for more high-profile political issues or issues
    involving foreign investors
   Law is an undergraduate degree, higher degrees available – no law schools until the
        o Because anyone can take bar exam, many lawyers haven‟t studied law


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