The World’s Legal Systems, lectures
Lecture 1
What is a legal system? A set of rules that is coherent and applied in a certain territory. Usually this territory is
confined to the boundaries of nation-states. Usually legal systems are systems of countries. A legal family is more
enlarging in the sense that a legal family can include several legal systems.
Introduction
Comparative law
o What is comparative law?
Comparing + explaining/classifying differences + methodology (p. 5-6)
More than studying foreign law, but not less (p. 6-8)
o First eight lectures: triple structure (traditions v. change, differences as the result of both)
Comparative law is about comparing obviously, but it is more than comparing, because often it is the usual thing that
the conclusion must be that there are either differences or similarities. This is only the first step of comparative law.
Difficulties in which comparative’s are struggling have mostly to do with the fact that these differences have to be
classified and at the same time be explained.
Explaining the differences is the real harsh part. These differences relate to the legal system enlarged (often). These
differences can be classified. The legal family is an example of how different legal systems can be busted together.
The question is then, what criteria will be used? And what criteria will be used in order to say that the US belongs to
the common law family and German legal system belongs to the civil law legal family? Finding the right criteria is an
exercise and is not easy.
Also explaining why things change is not easy. It is possible that there are very short-term reasons for change.
Foreign law must be studied and understood in order to make a good comparison of laws, but it is not sufficient in
itself.
In the first 8 lectures the lecturer will speak of a triple structure. On one handside we have traditions and on the other
hand change and both can be causing differences. So we are going to look to the differences and they find either a
explanations in tradition or in change. Traditions are more durable, they last longer (sometimes centuries) and
change can be very abrupt and sudden. The causes for these differences are very different.
In this course, the idea of comparative law is that one must always look to the history of the legal systems or legal
family. The history explains a lot of the differences. The emphasis will be a little bit more on traditions than on legal
change.
Triple structure
o Traditions
Durable ≈ legal families
Often “slow” sources of law: jurisprudence/case law
Forms (from concrete to less concrete)
Concepts
Paradigms
Sort of underlines certain rules
It makes it more explicit
Political and economic constellation
One element that is very inherent to the notion of traditions
Legal reasoning: civil and common law traditions (lectures 2-5)
Common law tradition: it is typical to look for cases
Civil law: can rely on own reasoning; idea of law is reason is very strong
Traditions are durable, they last for a long time. These traditions are usually common to the systems that are in
capsulate or deceptively of legal families.
The basic characteristics of the traditions can be found in ‘slow’ sources of law. Those are very slowly changing.
, - In the civil law tradition this is certain the case for jurisprudence. Lots of ideas over time have been linked to
this concept and we kept that concept. Lots of meanings that have been attached to this label of contract or
still relevant we can find it in jurisprudence.
- In common law tradition there is another slow source: case law. This is linked with the idea that if the
common lawyer wants to understand what law is about, if you want to solve a legal problem, the first thing
you do is to find for cases that are based on facts before you. You have to find verdicts that had been
imposed in the past and these verdicts are based on facts that are more or less the same as the ones you are
facing.
Before the problem, you have a practitioner, and someone asks him an opinion, then the way in which he/she
precedes/reflects on a problem is legal reasoning (=method).
Reasoning in the civil law tradition means something different that in the common law tradition. see above
o Change
Often abrupt
Especially during the war laws were made abrupt; in these times of trouble some
things needed to be done abrupt
Legislation
Reasons:
Crisis
Most economic crisis, but also circumstances of war that change the policy
So crisis can explain why, at a certain moment of time, a new rule is imposed
and a new policy is drafted
Ideology
o Case study: law of credit and insolvency (lectures 6-8)
o Differences
See below, remainder of this lecture
In both civil law and common law tradition, common law traditions go back to 50 years and civil law even further, the
idea that the legislator has the monopoly of making law and to control the most important source of law legislation.
Last four lectures: transplants and compatibility
o Themes: Chinese law, Hindu law in India, Islamic law in the UK
o How do we reconcile laws etc. belonging to one tradition to another tradition?
These topics discussed in the last four lectures are important to comparative law as well, but they relate more to
confrontation. The first 8 lectures are about trying to understand traditions and how things can change within
tradition. The last 4 are more about: how do we reconcile laws, customs etc. belonging to one tradition to another
tradition.
A legal transplant is a matter of borrowing law; legislators can look at foreign law and copy and paste that law and
use it in their own legal system.
Also the problem of compatibility in situation where human rights are very important, we have to balance human
rights.
Practical stuff
Book (for lectures 1-8):
o M. Bogdan, Concise Introduction to Comparative Law, Maastricht, 2013 (Europa Law Publishing)
o For lecture 2 and 3: B. Wauters and M. de Benito, The History of Law in Europe, Edward Elgar, 2017
Exam: closed book, essay questions (language)
Comparing law: why?
Why?
o De lege ferenda (p. 16-18)
o Harmonization (p 18-20)
≈ Theory
,In the book is explained there are several reasons to do comparative law.
The idea is that the comparative is actually providing solutions and conclusions that can be used by the legislator.
The idea of comparing, is that after found the differences, providing an explanation and say that a certain law is
simple and can be used in a certain legal system = approach de lege ferenda.
The comparing has the name of adapting of changing a legislation of their own legal system.
It is a fact that foreign law has an important part in the process in 2 ways.
- Foreign law is used as an example. F.e. in the parliament, they know about certain arrangements that is
enforced in another country, they know it is practices a lot. Then they can borrow and look into the content
of legislation and import that in their proposal.
- Also the opposite is true, this is not only for the legislators, but also for the example in the highest and
constitutional courts where legislations have the impact of showing the judges and members of parliament
what they do not want. This confrontation with foreign elements results in clear approach/ideas on the way
forward.
Sometimes you have the incentive of unifying a certain market or holding thresholds. Harmonization is the main goal
and usually this is done by directives. Directives are sent out and they are an incentive for member states to adjust
legislation accordingly.
2 approaches:
- the comparative exercise has the aim to show what has to be abolished
- either the comparative exercise has the goal to identify which rules are common and on to which the
directive can build; the directive has a supplementary function; it adds to the common core of rules that
apply within the legal systems of the member states (minimal harmonization)
Theory
Common core:
= Sort of assumption, they have certain ideas about reality, if they have no idea they assume that it is this
and this..
One of the assumptions that underlines this idea, the common core, is that law has properties that are
typical for certain legal systems, but in the core, in most of the member parts of law, there are a lot of
similarities. Then we can assume that if no explicit differences are there, that there are similarities. This is
one of the core ideas that underlines the functional method.
History of comparative law:
1) Enlightenment: Montesquieu, Voltaire
The history of comparative law is explanatory for these features; comparative law lays back
to the second half of the 19th century. At that time there was a big war going on between
Russia and France (1870). After that war there was a consensus not again; legal practitioners
convened that they should negotiate or talk to each other in order to find a common
ground. That common ground would be used in order to secure world peace. Common
ground will be translated into treaties signed by each country and was international
convergent law and this law would guarantee that there was no war.
The fact that this was done was based on the assumption that there was a common ground
of course.
This goes back even further, back to the Enlightenment.
2) International cooperation
3) Convergence
Functional method (p 48-50)
Each system has similar problems
That are addressed in law in more or less the same way
Consequences:
1) Phrase the problem detached from contents of the law
2) Interpret as if they were alike (praesumptio similitudinis)
3) If you find nothing, search again!
, If we say there is no such thing as the typical problem in society, then comparative law will be very difficult.
Comparing law: how?
Find foreign law
o In order to grasp the functioning and impact on system we also need to get in touch with
practitioners. They can help you.
Formulating a question (see below)
Differences:
o Comparing is about explaining differences
o Problems in assessing differences:
Law-in-the-books v law-in-practice: there is a difference what legal practitioners do (how
they work) and the text of the law (what can be found in the constitution)
Question formulated too narrowly
F.e. Euthanasia life-ending medical actions; medical actions that may cause
death; actions; omission
Legal pluralism
Pluralism refers to the fact that law is not only to be found in the sources that
emerge from within the states, but can be found in day to day practice, can be found
in religious convictions and in moral ideas.
In order to understand the law one has to look towards morals/ethics and society
Language
Constitutional system
Relevant because the legal value of law is different in systems where you have
strong constitutional courts, meaning courts that have an easy excess (low
threshold).
Going back and forth
How to categorize differences? Legal families (pp. 71-78)
o Market system
o Definition of David
Ideological part: you have to look towards the goal
o Mixed systems
How to categorize these differences? We have the concept of legal families, so different legal systems can be brought
together under the label of a legal family if e.g. a lawyer or jurist moves from one system to the other system and
does not experience a lot of difficulties (said by Renee David).
The second criteria proposed by David was the ideological part; whereby you have to look towards the goal.
Next to this you have the mixed systems.
Comparing law
Voluntary active euthanasia
Palliative sedation (2 types: intent of alleviating pain or intent of shortening life)
Refusing life-saving treatment
Non-medial assisted suicide
Right-to-die
Comparing law: conclusion:
Foreign law: in depth approach
Context matters
History matters (tradition, changes)
No end of comparative law: useful (own law, understanding legal change and how law functions)
Next week:
Tradition v legal change in civil war
o Tradition: legal reasoning, jurisprudence
o Legal change: legislation
