Comparative Law Prof ssa Letizia Coppo I THE

Comparative Law Prof. ssa Letizia Coppo

I THE CONCEPT OF COMPARATIVE LAW Starting point: legal rules are not identical anywhere in the world and the solutions adopted to legal problems vary from system to system Definition of comparative law: the science that studies law (i. e. the different legal systems of the world*) through the comparative method. *a legal system is more than just a set of legal rules; and law is not reduced to legislation

THE TWO LEVELS OF COMPARISON 1. Macro-comparison: comparison on a large scale; it deals with the spirit and style of different legal systems, i. e. methods of handling legal materials, procedures for resolving and deciding disputes or the role of the various legal players, and the like. 2. Micro-comparison: comparison on a small scale, i. e. focused specific legal institutions or problems, in other words, on the rules applied to actual problems or particular conflict of interests N. B. : the dividing line is flexible and the two levels intertwine.

THE RISE OF COMPARATIVE LAW Time and location: international Congress for Comparative Law (Paris, 1900) organized by Eduard Lambert and Raymond Saleilles Context: fall of the jurists’ illusion to live in the ‘best legal system’, the only one worth analysing; widespread trust in progress; trend towards universality.

THE AIMS OF COMPARATIVE LAW IN A NUTHSELL Original aims: to build a common law of mankind (droit commun de l’humanité); to reduce the accidental and divisive divergences in the laws of countries that have reached the same stage of cultural and economical development (Lambert). Current aim: to perceive the real and apparent convergences and divergences in the laws of the various legal systems on a global scale.

COMPARATIVE LAW AND LAW GLOBALISATION Main triggers of law globalisation • The technological revolution reduced the physical distance among countries, encouraging people to travel cross-borders • The digital revolution increased the transnational dimension of exchanges.

COMPARATIVE LAW AND LAW GLOBALISATION The impact of globalisation on law • • Circulation of laws (the so-called legal transplants) Need for uniformity and harmonisation Sources pluralism and complexity Circulation of contractual models (‘alien contracts’) Transfer of functions from the State to the Market Creation of a ‘third legal order’ named lex mercatoria Cultural cross-contamination

COMPARATIVE LAW AND NEIGHBOURING SCIENCES 1. Comparative Law and Conflict Private international law Conflict of laws rules are part of the positive domestic law. They do not compare and contrast laws but provide criteria to identify which law applies to a legal relationship that has foreign connections. Comparative law is useful in the process of qualification or characterization of connecting factors (qualification according to the lex fori v. qualification in the light of comparative law)

COMPARATIVE LAW AND NEIGHBOURING SCIENCES 2. Comparative Law and Uniform Private international law is again part of domestic law or at least an optional tool that parties can choose to regulate their relationships on the basis of a common set of rules. Comparative Law can both promote further attempts of harmonisation by highlighting shared problems and suggest uniform solutions; and facing the challenge of granting a uniform interpretation of such rules (see below)

COMPARATIVE LAW AND NEIGHBOURING SCIENCES 3. Comparative Law and Public international law is a supranational and global system of law, the players of which are States and International Organisations. Comparative Law plays a leading role with regard to international law sources: it improves the understanding of the ‘general principles of law recognized by civilized nations’; it helps finding progressive solutions capable of becoming general principles of law.

COMPARATIVE LAW AND NEIGHBOURING SCIENCES 4. Comparative Law, Legal History and Legal Ethnology Legal history may adopt a comparative method but in a diachronic rather than a synchronic perspective. Legal Ethnology focuses on the legal features of existing ‘uncivilized’ societies, trying to unearth the typical and atypical factors which contribute to their evolution.

COMPARATIVE LAW AND NEIGHBOURING SCIENCES 5. Comparative Law and Legal Sociology aims at understanding the causal mutual relationships between law and society and identify the patterns from which one can infer whether and under what circumstances law affects human behaviour and how law is affected by social change. Comparative law and legal sociology need to interact in the sight of a more accurate definition of the problems and the unveiling of possible cultural biases (see the link between legal evolution and social changes).

THE ROLE OF COMPARATIVE LAW IN CONTEMPORARY SOCIETY General remarks: like all sciences, comparative law is aimed at providing knowledge. It extends and enriches the ‘supply of solutions’ and improves the scholars’ critical capacity to find the best one. In particular, comparative law is: 1. an aid to the legislator 2. a useful tool of construction 3. a fundamental step of legal education 4. a tool for law unification and harmonisation. 5. a glimpse into the common roots of the European legal tradition.

THE ROLE OF COMPARATIVE LAW IN CONTEMPORARY SOCIETY 1. Comparative Law as an aid to the legislator Legislators have found that on many matters good laws cannot be produced without the assistance of comparative law, whether in the form of general studies or of reports specially prepared in the topic in question. Instances: XIX century unification of German Law (private law, civil procedure, criminal law, bankruptcy law, court system organisation); dissolution of former Soviet Union countries.

THE ROLE OF COMPARATIVE LAW IN CONTEMPORARY SOCIETY The problem of legal transplants: the reception of foreign models may raise problems and even lead to rejection, due to the inevitable differences in courts procedures, the power of the local authorities, economy or general context. Efficiency test: in order to assess the success chance of a transplant one should answer to the following questions: 1. whether the model has proved satisfactory in its home country; 2. whether the model is likely to work in the receiving country.

THE ROLE OF COMPARATIVE LAW IN CONTEMPORARY SOCIETY 2. Comparative Law as a tool for interpretation Key question: are national jurists entitled to a comparative-law-oriented or a harmonisation-oriented interpretation of domestic legislation? Possible answer - Such interpretation cannot turn into a circumvention of national law. - So, jurists are entitled to such interpretation provided that they use it to fill the gaps of domestic law. - Regardless of gaps, comparative interpretation can always be an argument to select between the two possible meanings of an ambiguous provision.

THE ROLE OF COMPARATIVE LAW IN CONTEMPORARY SOCIETY Furthermore… Comparative-law-oriented or harmonisation-oriented interpretation seems to be allowed in some countries* * As to legislation, see the Swiss Civil Code, art. 1, pars 2 e 3: «if no statutory provisions can be found, the judge must apply customary law, failing which he must decide according to the rule he would, were he a legislator, decide to adopt. In so doing the judge must follow accepted doctrine and tradition»

THE ROLE OF COMPARATIVE LAW IN CONTEMPORARY SOCIETY … And actually courts do use comparative law as an interpretative tool in many cases, also through the quotation of foreign precedents* • See, e. g. the influence of French case-law on the issue of wrongful birth / wrongful life. • Or see the English case Interfoto Picture Library v. Stiletto Visual Programmes (available within the course materials), about good faith in precontractual negotiations.

THE ROLE OF COMPARATIVE LAW IN CONTEMPORARY SOCIETY Further questions • In using the suggested method, are we entitled to look also to systems which are not so close to our tradition? • Can the judge choose whichever of the foreign solutions seems to him the best or can he choose only a solution which is common to a number of other systems? • Are we entitled to choose an interpretation of our legal rules independent from the conceptual structure of our own system?