LESSON

1.CONCEPT OF PRIVATE COMPARATIVE LAW

Comparison of the different legal systems of the world.
- It permits us to catch sight
- See the differences and similarities
- Unitary sense of justice

Levels of comparison
Macrocomparison: Research into methods of handling legal materials, procedures for resolving
and deciding disputes, the roles of those engaged in the law. Ex: styles of codification
Microcomparison: Concentrate on individual concrete problems and their solutions. Study
specific legal institutions or problems and the rules used to solve particular conflicts.

What comparative law is not

 Private international law: contains rules of competence which determine which specific
national law is to be applied an what lead.
 Public international law supranational and global system of law.
 Legal history and ethnology it studies systems that are consecutive in time. Comparative
law studies systems that are coexistent in space.
 Sociology: it aims to discover the causal relationship between law and society.

2. AIMS OF COMPARATIVE LAW

o Aid to the legislator: foreign laws can help framing domestic legislation.
o Tool of construction: provide a tool of interpretation for judges for gaps in national law.
o Learning and knowing: understand own law, develop critical standards, learn how laws are
conditioned by social facts, etc.
o Contribution to the systematic unification of law: harmonization of law. Reduce or
eliminate discrepancies between national legal systems and adopt common principles of
law.

3. METHODS OF COMPARATIVE LAW

method: “medio” of obtaining data, information classified into usable conceptual units and a
means of ordering and measuring data. Observation, documentary research, surveys, statistical
operations, context analysis and in-depth interviews…

▪ Kamba (1974) 3 stages:

- descriptive → description of the norms, concepts and institutions of the systems concerned.
- identification → identification of differences and similarities between the systems.
- explanatory phase → resemblances and dissimilarities between systems, concepts, institutions

1. Functionalism → same needs, shared problems, probably good solutions abroad.

Law responds to human needs and therefore all rules and institutions have this purpose.
Step 1: Identify some aspect of domestic law which seems confused or lacks a clear rationale.
Step 2: Identify the social problem that is the recurrent source of dispute between citizens.
Step 3: Examine the legal doctrines and techniques by which systems tackle the same problem.
Step 4: Evaluate the foreign legal system to decide if is superior in technique or result.
Step 5: Analyze the legal system again to reveal the conceptual obstacles to the achievement.

Advantages Disadvantages
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The problem- solution: practical use. Legocentric: it relies too much on positive legal
system and too little attention to “law in action”

Objectivity: looking from the outside is Problems not always coincide

positive to understand hidden problems.

2 Hermeneutic: the task of the comparatist is to go beyond that technical surface and to
uncover what the rule signifies in terms of its political, social, economic, and ideological
context.

•Specificity of legal traditions and cultures is central.

• Foreign law may only be used as a tool to encourage criticism of the presuppositions, but not
to provide a model for its reform because each legal tradition is irreplaceable.

Advantages Disadvantages
Deconstruct the ambiguities and contextualize Functionalists have accepted that the
the objects of comparison comparative study needs to be contextual

3 Comparative method on practice

1. Identify the problem and state it as precisely as possible.

2. Identify the jurisdictions being compared and their legal families

3. Decide what primary sources of law you will need.

4. Gather the relevant materials

5. Organize materials according to legal philosophy and ideology of the system investigated.

6. Map out the possible answer to the problem

7. Analyze the intrinsic value of the legal principles.

8. Conclusions.

4. HISTORY OF COMPARATIVE LAW

o Origins:
The earliest comparative researches are found in Greece:
-PLATO: comparison of the laws of the Greek city-states.
-ARISTOTLE: studied 153 city-states constitutions.
-THEOPHRASTU: “OnLaws” tries to discover the general principles in Greek legal
systems.

The Roman Empire didn’t use comparative law.

CICERO: the non-Roman law is “confused and quite absurd”.
Collatio legum Mosaicarum et Romanarum: classic roman jurists are set against law of
Moses.

o Middle Ages: There aren’t none examples of comparative law. Canon and Roman law had
such authority that no other kind of law had interest for scholars.
In England: Laudibus legum Angliae and The Governance of England: they compare English
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& French law, not with a comparative view, but to demonstrate the superiority of English
law.

o Age of Humanism: There were more serious attempts at comparative legal analysis.
STURVE and STRYCK (17th century): comparison of Roman and German private law.
Other philosophers had ideas about the need of open-minding in legal studies and helped the
developing of comparative law (BACON, LEIBNIZ et al).

o The actual comparative law: as a science

 Comparative law, as it is practiced today, started in the mid-nineteenth century (c. XIX) in
Germany.
 Legislative comparative law in Germany grew with the movement for the codification and
unification of law within Germany. It started in that area of law where unification is most
urgently called for: commercial law. Later, the same happened with Criminal Law and Civil
Code.
 In 1900 there was the first International Congress of Comparative law in Paris. It was the
starting point of Comparative Law as a science.

5.LEGAL TRANSPLANTS
Definition: A legal transplant is a rule, institution or a law that has been displaced from one
country to another. A law that has been brought from a jurisdiction to another that is not the
native one.

exemple: Laws of Eshunna (date from at least the 18th century BC), after The Babylonian Code
of Hammurabi (17th century BC) and later Exodus (centuries after Code of Hammurabi)

Reasons to transplant:
National legislators are the ones who unes legal transplants more, but it’s a practice also made
by judicial activity or commercial practice.

o Advantages:

 Easier and cheaper

 Practical experience with foreign model
 Harmonization of law in international agreements
 Practical in technical rules (data protection, road traffic law, election laws, etc.)

o Disadvantages

 Difficulties in fundamental values such as human rights

 Translation: words have a moral behind. Inscribed word a + meaning x .
 Sometimes legal transplants are imposed: i.e. military force
 Laws are not autonomous, they have an historical, epistemological and cultural
baggage.

The process:
Borrowing legal ideas is a dynamic process which can take several years.
Comprehensive adjustments to merge it successfully with existing rules of the new system.
Once they have found their way into new environment, foreign legal ideas are useful.
The process ends with the transplant of the legal institution or law
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Recent examples
The French Civil Code or Napoleonic Code (1804) has been taken as a model by other
countries. Philippines: parts of the Spanish CC came in 1889. It remained during the US
colonial period. In 1950 it was substituted by a new English civil code that exhibited Common
Law influences in contract and property law. In 1988 family law was transferred to its own
family law code. A separate Code of Muslim Personal Laws has applied since 1977. Puerto
Rico essentially adopted the Spanish Código civil in 1902 and in 1930 it was replaced.

1. LEGAL FAMILIES OF THE WORLD

- A Legal system is the set of laws, customs, jurisprudence of positive law that governs a
certain community. Bc of the number of systems in the world it is impossible to compare
everyone. - Comparative law reduces them to groups taking into account affinities and
common elements. -A legal family is a set of legal systems that share characteristics. “Legal”
refers to the national law of a State, while “family” to the set of legal systems that go beyond
the borders of a nation.

CONCEPTS: Can we divide the number of LS into a few groups (legal families)? YES. But…

 The division of the world’s legal systems into families is susceptible to alteration as a
result of legislation or other events, and can be only temporary.
 One’s division of the world into legal families and the inclusion of systems in a
particular family is vulnerable to alteration by historical development and change.

Classification: Macro comparative, the criteria used to classify legal systems into legal
families:

a. Historical background and development.

✓ Common law was developed in and by the courts, giving judge-made law huge weight. Civil
law was formulated, compiled and refined in universities, codified and given statutory force.
✓ Roman law, with its notions of codification, principles and divisions of law, has left its
lasting imprint on the French and German Codes.
✓ Socialist legal systems were born in Eastern Eur and Soviet Union followed Marxist Leninist
✓ Germany, Austria and Switzerland took no part to the expansion of the French Civil Code.
✓ In German-speaking countries, 19th cent create a formal technique with clear-cut concepts.
✓ Colonialism: American jurisdictions origin is found in British colonialism.

b. Predominant and characteristic mode of legal thinking

✓ Civil law use abstract legal norms, have well-articulated system containing well-defined
areas. ✓ Common law: court based approach, seeking answers to issues before the court.
Englishman improvises, never making a decision until he has to. Case-law proceeding and
precedent.
✓ Common law and civil law systems have been coming closer together in their use of case and
✓ Socialist law: is based and developed on Marxist-Leninist ideas.

c. Especially distinctive institutions

✓ In Common law, the institutions are agency, trust, tort principles, consideration and estoppel.
✓ Romanistic family: tendency to formalism and rules protecting moral and economic integrity.
✓ Germanic family: abstract real contract, clausulae generales, notion of unjust enrichment...
✓ Socialist legal systems: different types of ownership, unique notions of the role and status.
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d. Sources of law
✓ Differences between methods of interpretation, court structures and procedures.
✓ The primary source of law in civil law countries: it is still predominantly case law.
✓ Other criteria must also be taken into account (...) 10

e. The ideology
✓ Religious or political conception of how social or economic life should be organized.
✓ Islamic and Hindu law offer examples of this.
✓ This is not a factor which helps us distinguish between the various “Western” legal systems.

▪ A possible classification of legal families of the world:

1. Civil law: - Romanistic: France, Italy, Spain, Portugal, South America - Germanic:
Germany, Austria, Switzerland and a few affiliated systems

2. Common law: England, Australia, New Zealand, USA

3. Scandinavian family (Nordic countries): Sweden, Denmark, Iceland, Norway, Faroe Islands

4. Far Eastern Systems: Vietnam, Laos, Cambodia.

5. Mixed Systems: Scotland, South Africa, Louisiana, Israel, Puerto Rico

6. Islamic Law: Saudi Arabia, Sudan.

ROMANISTIC LEGAL FAMILY

History : the code civil of 1804

1. It’s the model of the codes of private law of the Romanistic legal family.
2. The Code has its bases in the Roman law, but is it influenced by costumes and natural law.
3. The main purpose was to put social life in order through a structured plan.
4. Complete but flexible. The code gives to the courts room for interpretation.
5. The Code has been modified by the legislator. ex: capacity of the married woman…
6. Because its flexibility, it was for courts easier to adapt the Code to the present.
Jurisprudence and doctrine have become more important, the Code can be reinterpreted.

The influence of the code civil

 The French Revolution and its demands: equality to all citizens, secularization of legal
family, emancipated landed property, freedom to economical activities.
 Political situation: Napoleon.
 Flexibility: interests of bourgeoisie but also space to progressive interpretation.
 Military expansion and political influence.

- It has influenced Latin people in Europe and America. It had prolonged influence on law
development in other European countries.
- Despite in Germany and Switzerland the influence of the Code has decreased after the
enactment of BGB and the ZGB, legal systems of Spain, Italy and Portugal are still romanistic.

Main features:
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Sources of French law:

1. Primary sources of law: legislation (enacted law statutes, constitutional law, regulations, the
five Napoleonic Codes, general principles of law and custom.)
2. Secondary sources of law: the judge, court decisions (jurisprudence), learned annotations of
academic writers (doctrine), textbooks, commentaries, monographs by experts...

 Primary legal methodology: codification.

 Rigid separation between:
- -Private law (droit privé): rights and duties of private persons and corporations
- Public law (droit public): relations to which the State is a party
 Legal institutions: abuse of rights, direct action and oblique action.
 Distinction between ordinary courts and the administrative courts.

Development of the Law in Spain

o Middle Ages: “fueros” , laws particular to different localities.

o “Las Siete Partidas'' c. 13th : law book influenced by Roman sources.

o The law of the Spanish kingdom until the 19th century was called “The fuero system”.

o In the 19th century: plan to unify Spanish private law:

- Commercial law was codified 1829 and greatly modernized in 1885 (Código de Comercio).
- Código Civil: 1889. This Code, relies on the French Code, specially in the law of obligations.

2. THE COMMON LAW

Introduction
In the common law there is no codification. Common law has not been influenced by Roman
law or codification. This difference has its explanation in the history of common law.

History
-Common law began when William I invaded England 1066 & formed a new age in English
history.
-The next centuries led to the centralization of justice and the unification of English law.
-Middle Ages. The development is very similar to Roman law. Dominated by procedural
thinking.
-17th century. Englishmen thought about Common law to guarantee freedom.

The spread of the Common law

Colonial power and other circumstances are the reason of the spread of the Common law.
- It has influenced North America, India, Australia, New Zealand, parts of Africa, South-east
Asia.

Main features
Civil lawyer ‘approaches life with fixed ideas, Common lawyer, in contrast, ‘is an empiricist’ who ‘is
and operates deductively’ not given to abstract rules of law’
Public and private law Conscious rejection to the dichotomy
Codification Little attempt at doctrinal organization, law remained in
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the hand of practitioners.

The precedent structure
Formal structure of the law and the procedure

 The precedent: it was seen as endowing the law with stability and certainty.
 Ratio decidendi. Cases do not bind, but ‘their rationes decidendi do’. It has to be
distinguished from any obita dicta (things said by the way), which are not binding.
 Case-based system law. The predominant mode of interpretation: case law (not codes). No
codification (no contained in enacted collections of authoritative and prima facie exhaustive
rules of law).

Sources
1. Judicial Precedent or Case Law
2. Legislation or Statutory Law
3. Custom
4. Books of authority

3 THE GERMANIC LEGAL FAMILY

History
-During Middle Ages. The reception of Roman law was much greater than in France. There was
no German common law, because there were not central political and judicial organs.
-During the Enlightenment. Its aim was to free the individuals from traditional authorities and
costumes on the basis of reason.
-Middle nineteenth century. Codification.
Wechserlordnung(1848): law of negotiable instruments.
General German Commercial Code (1861): commercial law.

The German Civil Code (1900): BGB in language, method, structure and concepts the BGB is
the child of German Pandectist School: abstraction, precision and logical symmetry.

It is not addressed to the citizens, it is addressed to the professional lawyers. (In France ordinary
citizens may have the feeling of closeness to their Code: in Germany not even the lawyers
does.)

Five books:
 Book 1 - General Part (common institutions to the whole of private law)
 Book 2 - Law of Obligations
 Book 3 – Law of Property
 Book 4 – Family Law
 Book 5 – Law of Succession
- BGB influenced Italian law, Austrian and Swiss law. To a lesser extent, French.

Main features
✓ German Law thinks in terms of general principles, rather than in pragmatic terms.
✓ Codify laws: comprehensive, authoritative and precise to distinguish it from common law.
✓ Case law → for interpretation.
✓ Now, Constitution as the apex of laws having priority over all other law.

4 THE SCALDINAVIAN LEGAL FAMILY

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History
Origins. The Scandinavian or Nordic legal family was based on old Germanic law, with certain
local variations in different parts of Scandinavia.
14th c. Land Law was effective when the lowlands and City Law was valid in towns of the
Empire.
17th-18th c. Codification of private law, criminal law and procedural law.

Main features
 The influence of Roman law was confined to some areas (i.e. contract law) and the rest
had less influence.
 Lack of a general civil code. Use a system of less comprehensive statutes supplemented
by analogies from statutory provisions, case law and legal doctrine filling the gaps.
VINDING KRUSE attempt to codifying the whole private law in Nordic Civil Code
(1948), without exit.
 Cooperation. Nordic countries have been during the last hundred years in harmonizing
their legal systems.
 Intermediate position between continental law and the common law system.

5 MIXED SYSTEMS
History
Colonial possessions of France, the Netherlands or Spain.
They are called mixed systems because legal professionals were unable to fit them into the civil
law or common law. The name continuous in part because of tradition and convenience.

Main features
French group Dutch group Spanish group
Quebec. Louisiana South Africa, Sri Lanka Puerto Rico, Philippines
Influenced by code napoleon. Uncodified roman dutch-law Influenced by civil code of
Spain

6 ASIAN AND AFRICAN SYSTEMS OF LAW

ASIAN
 Traditional law.
 Importance of Confucian ethics.
 Compromise and conciliation.
 Chinese conception of law: Chinese judges have been prepared to ignore the Codes and
formalistic laws if they conflicted with more humane Chinese customs.

AFRICAN
 Traditional law.
 Variety of systems of law. Transmitted orally.
 Codification is recent. Native customary law is codified.

ISLAMIC LAW
 Sharia it is referred to God’s immutable law, the path or way marked by God. It
regulates public and private life of a Muslim.
 Religious norms are legal norms.

HINDU LAW
 India, Pakistan, Singapore, East Coast of Africa, etc.
 Hindu law applies regardless of nationality or domicile to all persons who are hindus
(according to ethnicity and religion). It embraces a great variety of cults and rituals.
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 In Hinduism, law is discussed as a subset of Dharma which signifies behaviours that are
considered in accord with “rta”, the order that makes life and universe possible.

EUROPEAN UNION (EU):

▪ Political and economic union of 27 member states (Brexit).
▪ Internal single market.
▪ Free movement of people, goods, services and capital.
▪ Common legislation and justice (in some affairs). Common policies trade: agriculture,
fisheries…
▪ Monetary union: 19 EU member states. 4
• Origins: European Coal and Steel Community (ECSC): Treaty of Paris 1951 and European
Economic Community (EEC): Treaty of Rome 1957.

Legal system in EU:

▪ Acts:
- Regulations become law in all eu states the moment they come into force, without
requirement.
- Directives: require member states to achieve a certain result while leaving them discretion as
to how to achieve the result. The details of how to be implemented are left to member states.
- Decisions: offer an alternative to the two above modes of legislation. They are legal acts
which only apply to specified individuals, companies or a particular member state.
Regulations, directives & decisions are of equal legal value and apply without a formal
hierarchy.

▪ Treaties of EU are international treaties between the EU states to set EU’s constitutional
basis.
- They establish the various institutions together with their remit, procedures and objectives.
-The EU can only act within the competences through these treaties and adjusting to the treaties
requires the agreement and ratification of every single signatory.
▪ Two core functional treaties:
- The Treaty on European Union (signed in Maastrich in 1992)
- The Treaty on the Functioning of the European Union (signed in Rome in 1957)

Institutions in EU:
1. The European Council: 2. The European Commission:
- Provides impetus and direction. - Executive
- Summit of the head of state, president of the ECouncil and - Submit proposals for legislation to the parliament & Council.
the president of the EComission. - Implements policies
- Gives political impetus for the development and sets - Administers the budget
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objectives and priorities. - Ensures compliance with European law (“guardian of treaties”)
- Does not legislate. - Negotiates international agreements
- Based in brussels. - Based in Brussels.

3. The Council of the European Union 4. The European Parliament

- Legislature.
-Acts together with parliament the budget power.
-Ensures coordination of broad economic & social policy
and sets out guidelines for the Common Foreign & Security
policy.
- Concludes international agreements.
- Based in Brussels.
-Legislature
-Acts together with the council as a legislature.
- Shares with the Council the budgetary power.
- Exerts the democratic control over the institutions including the E.
Com and approves the Commission and it’s members.
- Based in a plenary session in Strasbourg, first meets in Brussels.

5. The Court of Justice of the European Union 6. The European Central Bank
- Judiciary. - Central bank.
-Ensures the uapplication and interpretation of Eur. law. - Forms together with the national central banks the European System
- Has the power to decide legal disputes between member of central Banks and thereby determines the monetary policy of the
states, the institutions, businesses and individuals. eurozone.
- Based in Luxembourg. - Ensures price stability in the eurozone by controlling the money
supply.
7. The European Court of Auditors - Based in Frankfurt.
- Financial auditor. - Checks the proper implementation of the budget.
- Based in Luxembourg.
1.HARMONIZATION OF PRIVATE LAW IN THE EU: THE
POLITICAL INITIATIVES.
Harmonization: the process by two states change their legislation to some area of common
concern to conform the statute to facilitate compliance and enforcement across borders.
The harmonization in EU consolidates the European legal culture (with shared fundamental
values) and European structures are strengthened.
The directives cannot establish a solid, homogeneous and structured system of Eur private law.
- European Contract Law
- European Frame of Reference
- European Sales Law
- Single digital market

2. PRINCIPALS OF EUROPEAN CONTRACT LAW

Origins
 The Commission on Contract Law was a group of experts from the EU States that
elaborated the Principles of European Contract Law.
 Professor Ole Lando was the chairmanship.
Aims
 General contract law infrastructure
 Modern European lex mercatoria
 Harmonisation of general contract law within EU

3. THE COMMON FRAME OF REFERENCE (CFR)

Definition: the result of more than 25 years of academic research on european private law.
 It indented to be a basis for a optional European code of contract law
Characteristics
 For political reasons, we only have the Draft of the Common Frame of Reference (CFR)
 It contains principles, definitions and model rules of private law
 The rules are general, abstract like the rules in a civil code.
 It is an academic research text and serves as a basis for drawing up the CFR
 Influence in the Libro Sexto Código Civil de Catalunya (2017).
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4. COMMON EUROPEAN SALES LAW

Objective. Optional instrument ruling EU-wide sales law for consumers and medium-sized
enterprises for online buying of digital products.
Characteristics. Common regulation of sales law. This regulation is facultative (parts can
decide if use it or not), depending on the internal law of each country.
Present and future of CESL. On December 2014, the Commission decided that CESL will be
modified or withdrawn. However, the CESL proposal formally is not withdrawn.

5.NEW PROPOSALS OF EUROPEAN DIRECTIVES: THE SINGLE

DIGITAL MARKET
Objective. Instrument ruling a digital market in EU.
Characteristics. Common regulation of the digital market. It aims to tear down unnecessary
regulatory barriers and move from an individual national market to one single EU-wide
rulebook.
It’ll give better access to the digital market for consumers & businesses to services across
Europe.

difficulties advantages
It requires extent reforms New offer and demand: new gains
Criticized for new regulations that are too restrictive on e- Economical benefits for EU.
Commerce. Same price in whole EU?
harmonisation harmonisation