13.
Priva/e Laus of Fl7es/ern civilizalio;: 277
13. PRIVATE LAWS OF WESTERN CIVILIZATION*
1. Roman Law Sigoi&ancc [5. 277j
2. French Civil Code [5. 290]
3. Gcrmaíi and Siviss Civil Codes [5. 302]
4. Civil Luir and Common Law ES. 3i2]
5. The 1 ..aw i o che World ES. 330]
Human history has entered a new phase. That it should have produced
“one world” ve cannot very well see. But that the countries of western
civilization have awakened to a better consciousness of their historical
relations and the immense stock of their common vital behefs, endeavors,
and cultural resources—this is an overwhelming event that should never
again be obliterated. Tbe lawyers have compelling reasons and magnifi
cent opportunities of sharing the great work of consolidation, coopera
tion, mutual understanding, reciprocal aid, universal progress, and inter
national scientific development. Our foremost task is to bridge the age
oid cieft that runs through the western laws, separating the Anglo-
American “common law” from the “civil kw”.
“Common law” is a popular term denoting the law of England and
the United States as a whole, nr at lean inasmuch as it is not changed by
statutes or special doctrines. “Civil law” indicates the law of aH the
countries in which Roman law xvas, at one time, received or one of the
romanistic codes has been imitated. Their territories include all of
Western, South and Central Europe, Louisiana, Quebec, Puerto Rico
and ah countries of Central and South America, the Philippines, Egypt,
South Africa, Ceylon, Japan, China and Siam. Moreover, the law of
several states of the United States has been considerably influenced either
by French or Spanish law.
Study of foreign Iaws and comprehensive comparison of purposes and
effects of the various legal systems affords the answer to many of our
gravest problems.
* Aus: Louisiana Law Review 10 (1949/50), 1—14; 107—119; 265—275; 431460.
In the United States, comparative legal research has beco [2] cuhivated
in an extremely useful judicial and literary work, because of the coexistence
of the several states of the United States, ah legislating in sovereignty.
Out of disparate rules, principies of American law are crystallized and
through restatements and uniform state laws uniformity is growing, in
better harmony with the standardized habits of American life md business.
But everywhere in the states with the only exception of Louisiana, the
Anglo-American law is the basis. Ilere, a French code with Spanish
elements is posited against the background of the Anglo-American sur
roundings. In this state, civil law and common law, these allegedly
irreconcihable antagonists, are parents to the actual law. This, indeed, is
an ideal place where the two halves of our juristie heritage may be
examined and judged.
Many avenues are available to approach the foreign and international
legal phenomena. But an American student lcaving the familiar scene of
his domestic law may prefer to look first of aH on the most outstanding
phenomena of the civil law: the Roman law whose body and soul
migrated through so many transformations, and the civil codes of France,
Germany and Switzerland. Hereafter we shall examine the famous
antithesis between civil law and common law. Finally, ve ought to raise
the question whether the present condition of our laws satisfies the
requirements of the contemporary international hife.
Pan 1. The Significance of Roman Law1
On the main gate of the Imperial Palace of Vienna, the seat of the
House of Habsburg who ruled the core of Europe for six hundred
years, the inscription reads: Justitia Fundamcntum Rcgnorum. [3] In these
° Introduccory Note. The Periods of Roman and Romanistic Luir.
The Twelvc Tables (450B. C.) reflecced che law of a small patriarchal community.
But che jurisconsults from about 100 B. C. to che end of the Republic (28 B. C.) and
subsequenrly, chose of che ,,classical jurisprudence” (uncil about 250 A. D.) reached
a height uorival]cd in anciquicy and middle ages. In che early Byzanrine period (from
Constancine, 300 A. D.) che Roman legal conceptions and rules co a certain extent
were mixed wich Oriental, Greck, and Chriscian elements ja praccice and in che law
schools of che Oricor. On rhc order of the Emperor Jus/inianus, che (later so-called)
Corpus Jons ‘as compiled, consiscing of che Insdrutions, che Digesc aocI che Code
(A. D. 533 534). This work iras taken as hasis fon che law of che Cliurcli (Canon law)
and iras mosc thoroughly buc uncnicically scudied jo Bologna aocI onher universities
by enchusiascic scholars, che “Glossacons” (1080 1250 A. D.). One of chem, Vaarins,
278 13. Prñ’aie La”, rif IJ7esgcrn Ch’ilizagirnz
three words, justice is the fundament of governrnent, which have signi
canee for international life as weil as internal administration, the function
of law was summaeized exacdv as under che Roman emperors. It vas
not by accident that the mono was in Latin. In che origin and dic consoli
dation of the European monarchies at the dawn of che modern srnce,
Roman law xvas an essential factor.
1. 7/jo C’aiiscsfor itt Surt’ipa/
But chis is only a part of the answer to che question what Roman law
has meant to the Occident. Another part is in the words of a Canadian
writer of 1907, that “the Roman law is a great step toward dic growth
of che human mmd, ahhough one which has been strangely neglected in
professed histories of civilization”
was tEse first to teach fornan law iii Oxford, England (frorn 1149 oc a little later).
The subsequeat school of “Legists” of “Postglossators” adjustcd che “Gloasa” co
che praccical aeeds of the Jralian cicies and obcained a comprehensive legal systern
(1250- 1400 A. D.), which in che course of severa! centuries ‘vas adopted in rnosc parcs
of che Luropean Conrinenc, ncc only as a scientific nodel huc as the law ¡a actual
force, though blended in very differenc dosages wirh Gcrrnanic conceptions. This
svsccm vas che ohjccc of alt che fo!loving jurisric cfforcs inspircd by such grcac
currenrs of mmd as che earlier and larer humanism, moral theology, che reformacion,
che phtlosophv of natural law, riad furnished in irs laresc aspecc much of che rna:crials
of which che Luropean codificarions were composed. Around 1800 A. D. the irnmen
selv scatrered ]aws of Prussia, France, and Austria u-ere ur.iicd ja codes. la a rhird
of Gerrnany, “fornan” Iaw remained Lo force uncid che Civil Code (1900). These and
similar codes jo tcaly, Spain, et cececa, have heen hig!y influencial in most councries of
che world. These laws are called “romaniscic” to the excent that cheir contenc goes
hack to the ceaching of the liaban doccors.
Li/erat,,rr:
fl’”mcre, A Panorama of clic W’orld’s Legal Systems (St. Paul, 1928) 3 vols.
£ern1Jn, Roman Law ¡o tite Modero \Xorld (3 cd., New York-, 1917) 3 vds.
1 ina.raJntJ, Romaa Law in Medieval Europe (2 cd., Oxford, 1929).
Bark/rn;d :md McXifr, fornan Law and Common Law (Carnbridge, 1936).
Artic!es (in English )on Rornan 12w La the British Empire and jo che Unired States,
hy Lcc, Shcrman, and Radin ja (1934) 2 Acti del Congrcsso rocernazionale di Diricco
Romano.
.Vchuk, PrincipIes of fornan Law (Oxford, 1936).
Kosrhaker, Europa und das Rümische Rechc (Münehen, 1947).
Slinfting and Landsherg, Gesehichce der deucsehen Reehtswisscnschafc (1880—1910),
Lefro;, forne ant] Law (1907), 20 ilarv. L. 11ev. 606.
13. Prlraic !..aiit, nf ¡Fa/nr,, Ch’i/izaGon 279
Roman law, the law of ancient republican and imperial Rome,
essentially developed by a class of professional lawyers, similarly as vas
its counrerpart, the English law. la the Ro.man republic, che Iawvers
were originally high priests, but relacively early, from abou 300 B.C,,
wcre followed by lavmen belonging co che same ariscocratic ruling class
as the ponciñces. During che following period of thc principate, that is,
the early oc Roman Empire (froni 28 13. C. to 250 A. D.) che lawyers
were high functionaries including former consuis and governors. The
last great jurists were prime ministcrs. They were not judges as xvere the
English leading juriscs. Only cheir personal repucation supported [4]
them when they gaye unof&ial consuliacions, drafted contracts,taughc
• and x’.’roce, and in a conrinuous vivid forensic debate counselcd prudent
little changes in che la;’, which accumulated to a soberlv practical, ah
inclusive transformacion of a small town’s law into dic richest and most
effective set of legal thinking che world ayer kncw before and for a
miflcnium thereafter. Qn dic background of an empire cNpanding tu thc
borders of che lrnown world, legal art grcw in periods, comparable tu the
stages of paincing from Ciotto’s stiff beauty to the faulcless perfection of
Leonardo and RaphaeL The terse responses of Fapinianus have been reputed
in subscquenc times as enigmacic and our cager ccxc cricics have impugned
quite a number of them as spurious. Not ata11. Ir needs a highly equipped
modern jurisconsult co comprehend che wisdom and concentrated thinking
ofthis classic prince of jurisprudence, as he vas callad in che fourch cencury.
Of course, it did not yet amount to whac xve cali legal seience. The
• discussion vas primnrily concerned vith cases, quite as in English
common law, originating in the cribunals. And again, as in common
law, che case vas envisaged as a problcrn of coun proceedings rather
than in the terms of right and duty among citizens outside litigation.
But mf we turn ovar che pages of Enghish legal history, we sometimes
wait breathlcssly: will finally che sama resulc be reached as once in
Roma? Tirias has sold by mouch a slave tu Gaius for 100,000 HS,, or
staced in che English manner, Brown has orally soid four horses te Jones
for 200 pounds. Can thc seller sue che buyer? Yes, said che Romans from
times before Christ; che answer in England was no, as late as ja six
tccnch century, and has been no again from the year 1677 A,D. On tu
chis day, in England and che United Scatcs, when thcrc is a rnemorandum
in writing, the seiler may suc in our courts for damages for nonacceptance
jusi as in classical times, but not always for che price as under Jns/inian,
and as it vilI be dic rule in che future American sales law.
280 /3. ¡‘daifa Lan’.r of Irestern Chilizafio,:
The jurists in Rome thoughr in terms of cases of litigarían but each
of their solutions fined mio the panern of a growing body of categories
and rules. They u-ere eminently conscious of the amin purpose of law,
namelv, rhat of creatiog peace and order. Withour formulating a system,
they created the matcrials for buildingone. And this is what in an awkward
aud hesitating manner the Bvzantine epigones of the grear masters
graduallv anempted to do; and what rhe Postglossators many centuries
[5] later achieved, brilliantly in the opinian of their successors. although
our own ambitions go higher.
Thus it happcned that the Corpus Juris, as elaborated by the medieval
scholars of Bologna, presented itself to the cducated classes of the
European continent as an enormaus collection of gnomic wisdom
plastically manifested in a mosaic of single dccisions, but for the first
time clothed in persuasive theoretical language.
There vas much more to it, however. The most important portion of
the Roman law in the third century A.D. had been freed from its archaic
and national formalities and limitations. A business law was established
suitable for every one of the multitudes of peoples living in the Empire.
Subsequently, the center of this world shifted to the East—where from
time immemorial deep thoughi and legal custom and thriving trade were
flowing in mvstcrious richness; where the mosi ancient laws mingled
with Greek city Iaws and the governmental ordinances of the ldngs, the
successors of Alexander ¡he Great; amI the Roman rule superimposed
new elements upon ibis baffiing fusion. This Byzamine penad, the
period benveen the grear classics (250 A.D.) and Justinian’s compilation
(533A.D.) vas fertile not only in academic studies but changed the
spirit of the Roman insdtutions. Wc have learned to recognize many
Greek and importani Christian innovations, and modern scholars are
hoping ro diagnose more exacnly the measure of the various Oriental
influences. Wc may sa’j that much of the oldest and best proved social
experiences of mankind is bid down in the so-called Roman law.
In the Middle Ages, however, this inhenitance ;vas treasured as
something more than the product of learned jurisprudence. The German
emperors of the Middle Ages considered themselves as the legitimate
successors of the Roman emperors. Justinian, the sponsor of the Corpus
Juris, xvas their vaunted predecessor. The Corpus Junis was a symbol of
the continuous empire, its law book. At Wc same time, the Roman church
based its own law on the Roman traditions. Empire, Papacy, and Roman
law were the threc great piliars remaining upright in the collapse of the
13. Priva/e Laus of ¡res, ero O,iliza/irnz 281
ancient worki, ah three of universal signi&ance “for ah peoples” the ,
pillars on which the medieval civilization rested; and the Roman law
vas the onlv sccular cultural possession secured bv the authonirv of
both the church and rhe emperor. [6]
Ah this must explain the firm conviction prevaihing from the eleventh
until far jano the fifteenth century thai there vas onlE one law, the
authoritative, wrinen, ;vise and eternal law of Bologna, the rano scripta—
the embodicd legal reason. The most astouishing in this sequence of
events is dic socalled reception of the Roman law in Germany, in dic
course of severai centunies, from the fourteentb ro the eighteenth, with
out any histonical preparation, as was the case in South France, without
any legislative act, a book in a foreign dead language.
To gain such a conquest, Roman law had developed new attractions.
Two only may be mentioned. The law of ‘Wc ancient world offered a
system of commercial institutions, which afrer successive adjustments
could support the very considerable business hife of the many flourishing
Italian cides such as Florence, Pisa, Genoa, amI Venice, as well as of all
the trading centers such as Marseifles arad Paris, Bruges and Ghent,
Augsburg and Hamburg and Novgorod. Manitime law can trace its
evolution directly back to the Rhodian Sea law; the “general manitime
law” (in Wc parlance of English and American courts) has lacen strildnglv
uniform throughour the seafaring nations. Qn ‘Wc onher hand, Wc states
emerging from the decay of ‘Wc feudal system needed and used ‘Wc
law’yers trained in Roman law as administrators, judges, notanies and
advocates. The consolidadon of the modern European state was indmately
conneaed with dic binh of bureaucracy—the civil senmnrs being selccted
from ‘Wc ranks of ‘Wc Iawyers. The Hanscatic league chose its office
heads not otherwise: ‘Wc secretarv of ‘Wc “factorv” in Bergen (Norway)
u-as ahways a doctor of laws and in the great steelyard in London uhimately
‘Wc most influennial representative was regularly a man trained in Roman
law .
Tojuhee speaks of an Itallstic Age of wcstern historyt. He tefers to a
new era of Wc oid Italian culture set mio motion by the achievements of the
city-states of Nonhern Italy during ‘Wc Renaissance and continuing in
‘ Jus/inian addrcsscd bis “Constitutio Tanta” introducing Wc Digcst ro Wc Senate
and alt pcoplcs (“ad Senatum ci omnes populos”), vise Grcck version adds “of our
occumcnicity.”
Cia’nej’, The Dawn of a New Era 1250—1453 (1936), 26 f.
Toynbee, A Study in History (rcissuc, 1948) 6 vds.
282 13. Priva/e Laus of IT es/erI Griliza//rm
1 13. Priva/e La,:’; of líes/era Civi/ka/ion
thc Nonh of Europe from the fifteenth into ninetcenth century. This is
quite true with respect to the formation of iaw and state, although dic
historian does not mention this aspect.
Finally, the thinkers in ah the great spiritual movements from the
Farbers of tbe Church to Canonists, ilumanists, and social emancipators,
bave referred to dic ideas of law and jusdce [7] with thcir eyes on the
Roman law or what vas so called at the time. It is curious to read
OirLrfían lvolffand bis deductions from the postulatcs of Natural Law.
Almost invariably, his conelusions end in a Roman rule of law.
At present diere are not many law couns left in the world where dic
Corpus Juris is app]ied as a living statute. It is súlI in force in South
Africa and Ceylon. Even diere, as soon as the South African Suprerne
Court has decided a problem, this decision becomes a source of law, asid
makes the Roman law obsolete. Yet the innumerable transforrnations,
through which the Roman law has gone during the thousands of years
in the distant places of the earth, are dic object of continued passionate
studies conducted by scholars of ah nations. The fragmcntary monuments
of this antique legal world still appear as an inexhaustible storehouse for
tbe most diverse subjects. A learned American lady, Mrs. Ji íarj Brown
Pharr, confirmed this in Thc Classical Journal of April 1947 by an article
on The Kiss in Roman Law.
II. Signzftcant Fontures
1. Roman law in ah its stages has increasingly abandoncd its national
character; it was thc common law of the Roman empire, pagan and
Christian, of northern Italy, of the European continent. In aH these
periods many local customs and Iaws changed the picture from people
to people, from region to region, from town to town. Even at the time
of the Imperium Romanum afrer the Constitutio Antoniniana which con
ferred citizenship on broad classes ofinhabitants, manyother laws remained
alive. And the “Roman” code, in substance, xvas less Ladn than an ayer
age American Statute book is Engllsh.
It is this peculiar abihity of the Roman Iaw of living in symbiosis
(union) with diverse legal organisms that has promoted its functioning
as the medium of legal scicnce. In fact, ve may recognize at last that no
legal scienee, in the usual meaning of the word, is produced by isolated
nations. Cícero, disgusted by the casuistry of bis contemporaries, asked
283
for a thoroughly claborated system of legal rules; but the time xvas not
ripe for it, the oid city law had not yet experienced dic fuli impact of thc
needs of the empire. In thc North, nearer to our times, Scandinavia and
England have demonstrated what sclf-sufficient laws may and may not
achieve. The invasion of the cosmopolitan Roman system into thesc
secluded countries vas successfuliy resisted. \Vhcn T7Jcnr/us in the tweifth
eentury imported dic mor Ita//cus (teaching [8] law in the exegetic manner
of Bologna) into Oxford, King Stephei vas induced to prohibit bis
lectures. And dic Barons at Merton, A.D. 1236, declared, “No/umus legos
Angliae ,,mtare,” marking dic divorce of Enghish law from Canonistic
and Rornan legal thought. In the sixtccnth century the acute rivalry
betwcen the ecelesiastical and civilian jurists—the Doctor’s Commons—
and the common law courts xvas won by thc iatter under the mighty
leadership of Sir Edward Gokc. Now, strong particularistic feeling is a
natural phenomcnon, and the British Isles and remote Scandioavia werc
fonunate in being spared the continental turmoil. \Vhat the English
lawyers achieved by thcmsclves is cxtraordinary. But if ve look to thc
beginnings, we see that oid customs could not provide the logical defi
niteness, the generahizations and abstractions needed for legal syslcm
building. \‘‘ben Clanvil/t (1187) and Bracton (1250), thc founders of dic
English Iaw, attempted to bring ordcr into the mass of decisions, they
simply resorted to thc Giossa. The Glossator Azo prepared dic ground
on which Bracton discussed law and jusdce, king and pcople, the binding
force of judgments, usage, and sovereignty. Of course, he took “logic,
method, spirit rathcr than matter”°. Again, the modern evolution of
Anglo-American thcory started withJohn Austin’sanalytical jurisprudence
under thc influence of thc German Pandccdsts; and the highest achieve
mcnts have ¡icen due to such scho]ars as Sir Freilerick Po//ock and Roscoc
Pound whose broader and superior lrnowlcdge of the outsidc world
revealed the “spirit of the comnion law.” Ronian law has cncountered
in both hcmispheres as much enmity as entbusiasm. It is well recognizcd
that “the true grounds and reasons of law wcrc so well dehivered in the
Digesi that a man could never understand haw as a science so xvell as by
seeking it there”7. Everywhere, the transition to a new era of civilizadon
required essentially more and bettcr cootdinatcd thought on thc relations
‘Alaillanel, A Skctrh of English Legal 1 listory (1915), 42, 44.
7 PIale, quoted after Bishop Borne! by James Bryce (1901), 2 Studies o 1 Iisrory sud
Jurisprudence 477. Sec also Baekland, IEquity jo Roman Law (1912), 131; Lefroy, loc.
ciÉ. supra note 2.
284 73. Priva/e Laos of IT’esten, Cñilizaliw,
between man and man and on the function of legal rules than the original
development could afford.
2. Conceptions of state constitution and administration have changed
so much in the course of history that the ancient methods of governmental
organization are inapplicablc. Only by specious arguments, the doctors
of Roman law bolstered the claims of their masters, emperors and kings,
through quotations frorn the [9] Corpus Juris. A favorite device was to
invoke the fragments that inJustinian’s meaning elevated him over man
kind and human law, as the mediator between God and meo. We may,
however, note the legend about the Giossator Bu4garus, riding on the
right hand of the Empemr Frederie Barbarosrn, while Mar/inris rode on
his left. Barbarossa asked them whether the emperor was not by right
Dominus, lord, of everything held by bis subjects. Bu/garrís replied that
he xvas lord politically but not the owner°. And when Thomas Cromwell
quoted to IIenrj VIII the sentence that ah vas iaw what pleased the
emperor, and turned to the “civilian,” that is Romanist, Sicphen Gardiner
for support, Qirdiner told the king that it were better the king make the
iaw bis viii than make bis will the law°.
3. The most lasting and intensive Roman influence has been exercised
on private law. The Romanistic doctrine offered adequate basic concepts,
sharply defined in concise and consistent terminoiogy; mature rules; a
complete system; logical firmness tempered by a high sense of equity—all
this stabilized by the principie of civic equality. It xvas a iaw designed
for maintaining justice in the social intercourse of free individuais.
Modern international kw, in its efforts for peacefui coordination of
sovereign states, has never found a better model.
The institutions of Roman private law, so smoothiy practicable and
easily adjusted to new purposes, viere capable also of a sort of transmuta
tion. Out of the materiais furnished them by history, the Postgiossators
developed maritime insurance, negotiable instruments and the first doctrine
for the conflict of laws. In the sixteenth and seventeenth centuries such
basic legal subjects as contracting by consent, agency, assignment of
debts, and contracts in favor of third persons were brought to their
simple completion on the lines of their ancient evolution, an achieve
ment that Jusünian’s compilators had been unable to perform.
Bryce, supra note 7, at 95.
° Pluehoen, Thc Relations betwcen Roman Law and Engfish Common Law Down
to the Sixtcenrh Cenrury (1940) 3 U. of Toronto L. J. 24, 46.
13. Priva/e Laos of ¡res/en, Civiüza/iun 285
4. We should stress the social purposes more than technicai qualities
of the law.
Germanic judicial contests viere ofien decided through battie. Church
and Roman iaw united against this deeply rooted custom. In a long
struggle, the medieval ordeais were rcplaced by the modern principie
that litigation is decided by production of evidence. It has taken even
longer, however, to regain the principle [10] natural to the classical Roman
procedure that the judge should cvaluate evidence brought before him
according to bis own conscientious conviction, and not bound by
formalized legal rules determining what this or that document is worth,
how many witnesses are needed, of what kind, et cetera. Common lay
lawyers, it is true, have never adhered Lo this Romanistic view. To weigh
the merits of the exceflent big American compendiums of rules on evidence
against the continental systems may well be one of the many topics for
which comparative research is desirable, wid due appraisai of jury
procedure.
That men are free and equal, in autiquity, xvas a principie restricted to
the citizens, but philosophers and jurists expressed views that inspired
the modern schooi of natural kw in its successfui fight to free the serfs,
the peasants attacbed it the lord’s land--the persons of the serfs as well
as tbeir iand. “Nothing is sweeter than freedom”, said Ocero; “other
nations may endure servitude, our nation cannot.” Lawsuits were
decided, wilis construed “in favor of frcedom.” Divorce xvas permitted
because marriage must be free. And under Justinian freedom is declared
“inestimable” in money. Freedom of speech under the most ilifamed
emperors sharnes many modern states. And it was a firm axiom respected
throughout the oid empire thai. the liaban soil was free. Free ownership was
incompatible with tributes and stipends and forced labor, in strict con
trast with the situations in the Roman provinces, the Middle Ages, and
ail the manifold English tenures up to 1925. America has returned to
these simple ideais.
In the Spanish Siete Partidas, most influential on Spanish and Latin
American iaws, you may frnd quoted the Supreme Commands of Lay’0,
which Justinian took from the ciassics 1’• They illustrate what Dean
Roscoe Pound has cailed the Roman idea of a moral rule of conduct backed
by the authority of the state’2.
° Siete Partidas, ¡‘art. II r, tit. 1, c. 3.
‘ Ulp. Digest. 1, 1, 1.1 pr. 1; 1.10, 51.
12 Pound, Ihe Task of Law (1944), 50.
286 /3. Priva/e Lates of ¡Ves/e,w Crí/ka/ion
Jus eil (‘rs boizi el aeqid. Law is the art of flnding the good and tbe equit
able. Cre/ns nicrito quis nos sacerdotes appellet—of which righdy we may be
callecl tbe priests, and so un. Juris pewecepta srrnt hace: honeste vivere, altenun
izo,, lace/ere, s/iien en/que tribnere.—The cornmands of laW are three: to uve
honestly; not to xvrong another; and to attribute snum en/que. To each his
own! This vas not just a bigh-sounding phrase; the [11] sources bear
overwhclming testimony to the scrious effort made to bring reliable and
equitable jusdcc into dic social rclations. Man is an individual With his
clear cut rigbts in bis own spbere, wbich the state respects and impartialiy
guarantees. Man is protected as an individual, not as the member of a
group or class ‘, a guild or inn, lord or vassa], knight or burgber, squire or
scrf. \Vbat it means, that public and private spheres are neady disdnguish—
cd, we could recognize in observing tbe increasing worship of tbe state
in tbe tutalitarian absorption of ihe individual. No wonder that the Nazis
hated Roman law. If thc citizen frorn his cradle ¡o bis grave is mereiy
tbe ieader’s soldier, he has no right of his own, and no private iaW is ieft
indeed. Alternm non laedere. Do not violate the right of others. The
Rornans kncw the conflict hidden in this maxim. Asking When does one
injure another, they were ¡he flrst to crystailize the profound Greek ideas
of volidon and acdon into a foundation of legal rcsponsibility. The thought
process of more primitive nations resembles thc story told in the Arabian
Nights: A traveber lost in a ionely place flnds a few dates and aher eating
them throws the stones of the dates aWay. Suddenly a demon appears
and accuses him of having murdered by a stone the ghost’s invisible son.
Such is archaic law. The deed makes one hable, not cvii intention nor
negligence. Thc Romans gradually refined thcir concepts of dolus, culpa,
factum, imperitia, neglegentia and so forth. Qn the basis of tbeir doctrine
of fauft, an immense discussionbycanonists,criminallsts, and phllosophers
has since turned the problem of responsibility over and over. As early
as in the Twelve Tables, the universal ancient right of blood vengeance
as, for minor crimes, replaced by fines. The state already was well on
its vvay tu a monopoly of penal jurisdiction.
Oid S//O jure nutrir neminem Iaedit, use of ¡ny right cannot be taken from
me because it injures anuther. As a consequence of individual property,
you may dig in ¡he ground ah the Water ur build a high wall near ¡he
boundary of your iand, depriving yuur neighbur of bis water or ligbt’4;
“ PinmJfs, The Objccr sud Value of the Srudy of Ruinan Law (1881) 15 Am. L.
Rey. 555, 570.
11 Mare-U/Ji. Dig. 39, 3, 1, 12.
/3. Fritare Laus of ¡res/cnt 0,1/izo/ion 287
or you may blast your rocks and undermine thereby the neighbor’s house.
But the Roman rule vas restricted more and more; “for we ought not
to use our right badiy” ‘ and after a long evolution it flnally yielded to
a doctrine of forbidden misuse of right. In contrast, as late as in [12j
1895, Lord Halsbnrj heid that where ¡ny neighbor diverts or appropriates
water Within bis own land so as to deprive me of it, nothing can be
done; it is a lawful act, however ifi the motive might be15. Again,
American decisions disapprove an unnatural, unusual or spitcful exercise
of land uwnership.
ilonesue vh’ere. Pandcctists have said ¡bat this prccept probibits nut
only what is penttlized by exprcss provision but alsu Whatever is cuntrary
tu good customs, afi ¡bat uffends morahs and deccncy. Equity and bonesty
in ¡he Rumanistic traditiun permeate ¡be entire haw; no barrier is erected
dividing iaw and equity. The Cbristian Byzantine sources abound with
sucb terms as pietas, fides, humanitas, aequitas, offlcium.
This is anotber remarkable contrast with the harshncss of English
common iaw from which, however, American courts have in almost
every instance emancipated themselves—in fact though not in theory.
Take the right of a volurnary agent tobe compensated for expenses. This
gues back into ¡he earliest knuwn phase of Roman haW. When the owner
of a place wcnt abruad, it as customary that a neighbor intervened for
his interest, and according tu his presumable intention, defended him in
a laWsuit, rcpaired bis fence ur healed his horse. The civil laW codes
have inherited an elaburate institution of negotiorum &estio starting from
the radonal icleathat, as U/pian said, it is in the public interest that absentees
shuuld be defended, and influencud by ¡he Christian idea that altruistic
actiun is laudable. Ja Engiand, as late as in 1911 a judge refused any claim
for expenses of a vuluntary agent, because “according to English law
habihties are not tu be forced un people behind their backs” 17 Yet
American courts xvii grant recovery of money spent by a neighbor wbo
supports another’s house threatened by coliapse, or the fee of a doctor
whu treats an unconscious man. Recovery for salvage at sea has aiways
been an exception simpiy because it belungs tu ¡he general maritime law,
also recognized in England.
Alsu ¡he history uf the so called action for unjust enrichment is charac
teristic. The Romans perceived ¡he force uf ¡he idea that transactiun
“ GÜ. Tuse 1.53.
‘°
Mayor of Brete/ford y. Pick/es [1895} A. C. 587, 594.
“Lord Donen ja Fakke y. Sco//isb Imperio/Ita. Co. j1886J 34 Ch. 0. 234, 248.
288 7 3. Prirafr Lun’, of II”nlrru Cñ’ili:aflon
made in perfecdy legal forms may offend the sense of justice, and framed
condirions for allowing a plaintiff to recover where bis property is retained
by the defendant without just ground. The rules of dic classical period
much enlarged by the Corpus Juris and certainly too much in the
eighteenth [131 century where dic maxim prevailed: no one shall be
made richer to the detriment of another—a dangerous principie which
Lord Áíansfte/d used with prudence. But whereas dic German doctrine
progressed on dic rediscovered Roman hnes to genuine rules, to a
definite doctrine of unjust enrichment, the Engiish couns disapproved
rlíamfidd’s principie as “vague jurisprudence” and “well-meaning
sloppincss of thought” with the rcsult zhat English iaw now lacks a
1 an indigenous, conrinuous discipline.
firm theorv iii this 6eld, ahhough it once had dic same conceptions as dic
ciassical jurists. Anglo-American iaw has nol vet a sure foundarion, bur
it has devehped a great rnass of decisions, rich in ideas, rivalling dic
German praccice.
III. Romaiz Liza’ izad Common Lan’
1 certainly do not vish to imply that everything in dic Romanistic
systern is blameiess, or that dic long after effect of ancient and fragmentary
sources of law always worked as a blessing. Ev no means 1 onlv want
to convey to you dic fecling of its significance in human historv. In
comparing Roman law with its only true rival, the Anglo-American law,
which looks back to a proud and unbroken evolution of eighr hundred
ycars, we should hesitate to pronouncc anv general judgment. Their
formarive stages contain striking similarities, as also in the organizaLon
of both the English anil Roman empires parallels are manifesr. Why
Romans and Eritons knew ar the same time how to build durable reigns
over other nations and how to promote private law may be conjcctured20.
Nor oniy were bod peoples successful also in business, industry, com
merce and agriculture2t, bur aboye aH both respected, in the limits of
zheir siwations, the personality of individuals and the autonomy of
nations.
“ Lord .Çamncr n AJnclair a. Brougham 119141 A. C. 398. Cf. Lord liright, Legal
Essays and Addresscs 1.
19 Lord VrnaMn ja frfijj ‘. A íarkham
[19231, 1 K. ¡3. 504, 513.
29
No explanation sectas possiblc ro Kojiliakcr, supra note 1, at 82.
21 i[illiam FI.
Pase, Sratutcs as Cotamon Law Principies (1944), Wis. L. 11ev. 175.
73. PrIrcwr Lar, of II”rj’ñrn Ci: iRzatio,, 289
Nevenheless, we perceive that the influence of Canon and Roman
law upon England vas hmited to two fields: an often repeated inspiradon
to scientifie efforts, and a direct incorporation of rules into sorne special
branches of law administered by special couns: ecclesiastical, chancery,
admiraltv, and probate couns, and the law merchant. The true common
law as pronounced by dic Kings Bench irnpresses foreign jurista as
entirely peculiar because of its quaint Norman-Ladn-French terminologv,
venerable [14] formulas, remainders of feudalism, a law made by great
judgcs rather than eodes, the inductive approach and pragmatic oudook,
a verv special atmosphere. It is a most imposing, mature produa grown
However, by indirect radiation from dic science of Roman, Byzantine,
Italian, Frcnch, Dutch and German scholars, incessant work went on
through dic centuries. This source of inspiradon has been attested by
the rtgü profrsso-es in Oxford and Cambridge who have been teaching
“civil law” from Memy VÍJI to this day. Roman law, strong in Scodand,
has made itself feit also in the United States. No doubt, teaching and
studying of Rornan sources is nor usual in mana Amercian law schools
and is in eclipse also in rnosr orher countries. lis value, however, is not
exhausted, either as a unique historv of legal thought, oras an immensely
suggesdve object of comparative rcsearch.
This should be recognized in this countrv even more readily titan in
England. The U’nited States has undergone a radical development toward
a more universal legal pattern. Frorn the beginning, English feudalism
could nor roor here. Thc grcat variety of conditions in tite vast and
expanding country and dic amalgamation of French and Spanisheiements
favored tite same trend awav from oid English law. The tremendous
effccts of the machine agc continued this approach to dic outer world.
Wc may think of onc pardcuiarly attractive iliustration: The “Nolumus”
of the Earons in Merton was occasioned by the desire of the church ro
achieve rccognition of tite legidmation of children born out of wedlock
through subsequcnt marriage of the parents, an institution of imperial
Roman ia’. England denied it until 1926 A.D. But in the United States,
all but duce state statutes have successively adopted such legitimation,
since Virgina introduced it in 1785.
19 Rabel, Aufsitie Itt
290 /3. Pri,:e Laws of ¡Vesteru Ch’i/kaflon
Pan U. The French Civil Code ‘
1. Vio Codo 1Mqto/éoy,
At the eve of the French Revoludon in 1789, France had the most
centralized government of all large countries, but its law ;vas divided.
T7o/taire has said that a traveler through France had tú change law more
often than horses. There were roval ordinanccs, canon iaw, statutes of
big and smail counties and towns and de bulk of Roman law tradition.
Roman iaw tvas so imponant in tIte Southern provinces that they were
called the]itv’s e/u ¿oit ¿tel!- -regions of written, namely Roman, law. In the
North sixty “great coutumes,” like that of Paris and Oriéans, and duce
hundred local coutumes (books of usages) obtained. Ey a stormy bur
expert work, the revolutionary assemblies, inspired by the ideals of the
philosophy of rationalisrn, swept tite entire maze away. Signiflcant was
the famous night of August 4, 1789 when in the National Assembly tite
nobles, the bishops, ¡te representatives of the privileged cides and corpo
rations solemniy declarcd that tbey renounced all their rights arising out
of feudal tenure or socage rights in peasant laúd, a system seified for
centuries. Libeny and equality were not onIy proclaimed but ¡te prin
cipies were imbued into a rapid sequence of laws which t’ou may see
cited frequently today with their picturesque dates of uñóse or lentóse.
Wben ¿‘lapo/con became first Consul, on December 15, 1799, [108]he
at once interested himself in tite revision of the law, urged it and panici
pated in it; out of ¡te one hundred and two comndttee meetings from
1801 tú 1804 itt which the civil code xvas deliberated, Boniparte presided
at twenrv-sevcn mcetings. The codiñers were great jurists, and ¿‘lapo/con
gaye them dic certaintv of their hundred ycars’ task. Ile toid them: we
Ibidem ¡5. 107-119.]
Rceommended reading:
Amos ami ll/to,;, Introduction to French Lnw (Oíord, 1935)
Brissaud, A llistory of French Private Law, translarcd by E. Mooellfrom thc second
French edition, with introduction by Fin le/sane/Ii and [igmore (Boston, 1912)
1 Co/ii, ct Capitani, Cours élémentaire du droit civil, refondue par L. Jo//lot de la
Morandidre (11 cd. 1947)
3 La vie uridique des pimples (La France, Paris, 1933) (excellent introduction with
selcct bibliography)
Le Code Civil, livre du Cenrenaire (Paris, 1904)
10 Tite Continental Legal 1 Iistory Series, The Progreas of Continental Law in the
Nineteenth Century, by various authors (Boston, 1918)
/ 3, ¡‘rita/e Len; of lrestcrts chi/ka/un: 291
have finished tite romance of ¡te revolution, there is history tobe started.
Govern and do not philosophize. He used tú ask ¡ten: how was that
once, how is it todav, how is it ahead? Is it jusr, is it useful? In shon, a
realist. From 1801 ro 1811, almost ¡te catire ficAd of law ;vas covered by
legisladon, mainly in the Cinq 6’odes.
A1l ¡tese codes brought epochal progress tú half the world. Eut tite
civil code has been ¡te cerner piece and tIte mother ground of ¡te various
branches of administradve law which have since achieved indepeadent
existence.
Tú effect, the prerevoiutionary law—A ocien Droit—was radically changed
and unifled hy the Intermediate Law of ¡te storm period, and flnally
¡te Droil Interme’dIalre was replaced by ¡te codes. Tite codes brought
conciliation between the old coutumes and tite new postulates; they
returned consciously to ¡te French traditions; but they maintained
unificadon of ¡te law for aH persons and for the whole territory, and, in
this one law, established individual freedom, equaiity of the citizens, and
emancipation of tite iaw from the Church. Law is compromise. Tite gold
en mean vas most ofren obscrved—which explains that tite codes dominate
stili tite law of 1949. Often, not aiways.
A few exampies. Tite feudal elements of tite judicial organisation and
iegislative systems remained abohshed; no privilcge vas ailowed to any
individual. No propeny should be tied op with future interests, as had
been done itt the noble famihes; hence, a good pan of tite testamentary
tmsts, usual in this country, are prohibited. Peasant estates too are not
resened for tite eldest son. Great domains seemed to cause a greater
danger titan the panitioning of smali estates.
Lirriage and familv law xvas taken out of ¡te bands of tite Catholic
Qturch and made a purelv temporal matrer (September 3, 1791). Divorce
was permitted, Bonaparte being personaliy interested. (\Vhenthe Bourbons
carne bach, divorce ;vns abohshed in 1816; aher a long and biner flght,
in which novels and stage participated, divorce was re-introduced by
the /oi Naquet, 1884). Napo/eon insisted that tite wife owed obedience to
the husband, and her legal acts needed the iatter’s consent. But by tite
legal [109] community propeny system the wife sitares in the acquets and
gains resuldng during the marital life. The state took over the registra
tion of tite civil status which has become a great institution in the Latin
countries.
Bur a few rules drove tite penduiurn from ¡te extreme lcR far to dic
tight. Afier a law of 12 brumaire att II (AprU 8, 1791) had assured to
19’
292 13. Prhate L;,s rj fltfern Ci:i/icatii,,s
ilegitimare children equality with the legitime issue, panicularlv in
inheritance—few laws go so Lar even ar presenr—the Civil Code, Ardcle
340, oudawed the natural children bv its ilI-famed declaration: La
iccierche de Ja patenúté el interdite, parernirv acrions are prohibited.
Foreigners were trearcd with excessive generosirv in revolutionary
times; ver dic Code Napoléon, Anide 8, confined the “civil rights” ro
Frencb cirizens, depriving foreigners even of the righr to inherit or ro
receive gifis.
As a whole, howevcr, dic flaming spirir that liad created the Rights of
Man fihled dic codes, moderated bv a clear consciousness of the col
lective needs such as they couid be understood at dic time.
Since Empcror Jnstinian’s compilation of 534 A. D., only the Prussian
Code of 1794 could be called a comprehcnsive codificarion. Thc Codes
of iVapolcoii xvcre cnorrnously superior to borh.
Measurecl with the standards of its own period, and of at ieast half a
century afterwards, the civil code has been justly praised wirh respect to
rnoclern thought, somewhat improved systematic order and elaborate
rules. The language, crystalline and beautiful, has nor liad its equal before
Ot afrerward; diere have beco celebrated French poas who liked to
read some chapters for encouragernenr in prose. The Austrian Code of
1811 has been loved for similar reasons. Ir seems rhar at that time legis
larors knew how to wrire for the pleasure of rhe people. The law schools
vere profoundly reorganized. The courts took anorhcr aspect. The
Jiterarure, for more than half a cenrury, devoted itseff prcvailingly to
commcntarics 00 the codes, alrhough jo a dialecric inrerpretarion directly
conrinuing dic exegetic methods uy which dic Digest and dic code liad
been treared in dic long file of dic “Legisis.”
Thesc codes have acquired nor only dic respect but also dic affecrion of
dic French people. More rhan once in this almosr a cenrury and a haff
a discussion has fiared up about a rotally new codificarion. Ilowcver, it
was never seriously conremplared, undi a ¡nove ;vas rnadc and nor
pursued at dic occasion of rhe ccntenarv of the civil code and now after
dic sccond world var [110] revision carne mro fuli swing. To rhis date,
wid innumerable modificadons and amendmenrs, a giganrie patchwork
of reform, thc codcs survivc and are, todav as formcrly, an object of the
highesr narional pride.
The civil code was prornulgared in annexed Bclgian, Rhenish and
othcr counrrics, and thanks to frs limare qualities dic code remaincd in
force iii most of them, afier Napoleon’s fail. Many countries have volun
13. Prhr,Ie Lees of Jlstnn Ci,v/izafi’;:z 293
tarily adopted ir, as it stood, or with changes. During rhe nincreenth
cenrury the French codes vigorouslv influenccd dic law of rhe whole
world outside of the Anglo-American orbit. Even at prescnt, aher masis
evenrs which have paralvzed dic French predominance, the familv of
laws ccntering around dic French codes still exists, including Belgium,
Netherlands, Luxcmburg, Italv, Rumania, Spain, Portugal. and afi of rhe
Latin-Ajnerican countries. Those laner have forrncd iheir own codes
eithcr aher dic partero of dic Spanish or dic Irallan laws, and hcnce
indirecrly under French inspiradon, or by dircct loans frorn France.
Louisiana and, in Canada, Quebec tuve belonged to the ccnrer of rhis
group at present one speaks ofrhe interpcnetration of French and common
law in Louisiana, and of their co-cxisrence in Quebcc.
Only at the end of dic nineteenrh cenrury, a rnighty competiror ro the
French Civil Code has sprungfrom the massive and highly refined German
Civil Code. There, Lora time, the German legal thcory which had received
a multitude of ideas and suggesdons from its Wesrern neighbors, at its
turn, vasrly influenced and inspired the Freneh legal literature.
JI. CJaractcr of Frcnch Pih nie Lan’
If you consider that dic Codes of Napoleon, aside from certain laws
of brmnaire and vcnróse rnernory, are in force, and that courts, ,ninistdre
pnblic, aro çats, avonés and hinssicrs, seem ro work not vcry much differenrly
frorn what they did at the time of Balzac, that grcarest novelist, you guess
ihar dic outstanding trait of French legal habiis is conservatism, although
tu will be aware of dic danger of exaggeration inhcccnt in any such
generalizarion, and although, undoubtedlv, French rradidonallsm is
entirely diffcrenr from the English tcnacious persevcrancc.
lis fact, when the core of dic French codificarions, dic civil code, has
been brietly characterized, [—ar the ccntenary of rhe code in 1904, or as
ir was done in 1933 liv my late friend Henri Capitant, dic finesr of all
inrerprerers—] the main topics are personal [111] liberry, family, and
propcnv including inherirance. Family and properrv liad been the
corncrsrones of dic upper classcs in the ancicnt regime, and were care
LuHy prorected bv rhe code as dic bulwark of dic Third Order, rhe
ordinary cirizen of the middle class.
As a maner of fact, rhe small farmers still make up more rimo a rhird
of dic Frcnch population, fifleen millions out of furry-two lo 1940, and
dic average farm has not more than rwenty-four acres. The orher pan of
294 13. Prh cíe Lcns rf Ifls/en, Chi/ita/icn
the bulk of the population are profcssionals, craftsrnen and workers.
Fonnerly, it was saM a Frenchman’s draam vas ro retire in his fifries to a
small country house and cultivate roses. These hard working paopla, living
without much luxury, modest in al! raspeas, do not resemble the smart
heroas of the yellow-bound Parisian novais, ahhough thev know art and
thev gat inexpensive but very xveii prepared meals. Dv the wav, an
opulenr dinner in the province is callad a dmor d’aroçat—it is not the judge
who has it. The middie cbss man and houscwivas are tha n-pes for which
Franch lagislation has catad ah the time. Thair property is what has been
namad in the Dóclaration de ¿reus des hommes inviolable and sacred—with
ah thc beauty of superlarives. Indemni&ation—carefully’regulatad for
the axercise of eminant domain such as expropriadon for public use, for
railway construction—has been accompanied by remedies in other cases
of public encroachments on private property more conscientiously than
eisawhere.
However, that the coda shouid stand up through the age of industri
alism, the pradominanca of shares and bonds ovar land, tha overwhelming
importance of social probiems, has bean made possibia by tha continuous
minute work of the courts and writers. Also writers! Theorists in con
tinernai Europe haya traditionally liad a role superior by fas to tbe
attention given to icarned books and opinions in common Iaw countrias,
ami that they know it helps to increase thais faeling of responsibility.
The modern questions of labor, for instancc, xvere of course not
foreseen jo dic codas. But the Court of Cassation granted damage for
arbitrary termination of empioymant in 1859, thirty years befora the
rcsult was sanctioned bv a mw. Examption of vagcs and pansions from
attachmenr or garnishmant, enforcemant of spaciflc performance, work
man’s compensation, the endre doctrine of unfair compadtion were
davehoped by the courts, to thc ennr of German observers during the
ninatcenth centurr.
The contract of life insurance considerad by great jurists, [112] in
cluding Pothier, as an immoral gambie, was recognized by the Conseil
d’Etat iii 18182. The harsh treatmcnt of illegitimate chihdren has been
mitigated by a court pracdce granting the mothcr support for herseif
and the chiid by an action against tha father in the natura of a tort acdon.
The oid practica of dic magistratura, enforcament by “astraintas” xvas
2 Avs du Conseil d’Etar, Mars 23, ISIS. Se 1 I-Jémard, Théoric ct Pratiquc des
Assuranccs Terrestres (1924), 430.
13. Prh ate Liar rj IVesiern C’hllizaIion 295
reastablished. The most daring recent judicial innovation usad the
harmless ten of Articla 1384 to stara liability for inanimated things such
as automobilas, directlv contradicting tha principia of Articia 1382.
Enactad laws haya followad in many such instancas, but late and
hasitathiglv. For instance, a law to improve the status of iliagidmate
cbiidren was enactad as Late as 1912 and has considerablv limitad tha
cases adminad to litigation. Tha numarous amendmenrs to the antiquated
famiiv iaw verv larciy acceierated thair pace.
The provision of Articla 151 prescribing “actos respectnoux,” by which
parents or grandparents had to be givan notice of a marriage, if dic
bridegroom or the bride, though of fuil age, had not complated the
twenty-fifth yaar, was modified in 1896, 1907, 1919 and 1924, undl it
disappeared in 1933. Aiticle 214 regulating the marital duty of support
was amanded in 1938 and 1942; Articla 331 on the lagitimation of natural
childran was modifiad in 1907, 1915 and 1924, and later was changad by
Vichy lagislation in 1941 and (with many othcr Vichy acts) reestabllshed
in 1945.
Certain problams of marriage and divorce wara at last approachad in
1937, whan, as the most important modernization, married women were
finallv declarad capabla of contracting with third parsons without tha
consent of thair husbands. Such women’s emancipation xvas started in
the United Statas in 1844, and in 1870 an American judge sad!y statad
that thc husband’s lagal suprernacy is gona aud the sccptar has dapartad
from him.
So deep motad is tha patriarca! conception of tha family in Franca
rhat Pótain shrewdlv diosa dic siogan: Paíric,fann//e, travail. Similar has
baen the slowncss to changa tha old-fashioned character, say, of the
rulas concerning the subscription of sharas in craating a businass corpora
tion. In 1937 and 1938 a buge flood of small dacrees was rushad through
on the basis of amargency powers to modernize the law by many piace
maal raforms which haya continuad since. [113]
A foreign observar may also srate certain characteristic remaindars of
oid organization and of bureaucratic supervision amidst the present
¡ French law. For instance, the conseil ¿e fanilIc, inciuding the famous
uncias and aunts of the oldar noveis, stiill appears in tia appointment of
guardians and interdiaion of lunatics and spendthrifts, not only on papar
as in Louisiana. A pan-y ro a contraes wishing to be freed from bis own
Cass., Chaml,rcs Réunics (Fab. 13, 1930), DalI. I’ér. 1930, 1. 57.
296 /3. Pr/rafe L.a;rr of flesrn Cid/za/ha
obligation because of breach of contract bv the other partv, wherc a
contraci does not grant him rescission by an appropriate clause, has to
suc in courr, and the court has discretion in admitting the “réso/idion”
and according days of grace (Article 1184). The normal wav for a buver
to ascertain defectiveness of goods is an examination by coutt order.
Resale and cover, as remedies of a seller or buver respectively, are also
ordered by the tribunal, although commercial law makes important
exceptions. An assignment of debts as a rule must be notified by /jnissier
to the debtor (Anide 1690); the practice allows other “precise and au
thentic” communication, but ibis means judicial proceedings. Notaries,
ané )missirrs, play a much bigger role iban in this country. And generally,
1 think, -u-e may state that the civil code determines the mentalitv of
legislators and judges much more than the code of commerce and its
development have done, in contrast to the English emphasis on the
cornmercial life.
At the sarne time, original reformatory ideas have time and again
come from France. The extraordinary richness of the French mmd, its
vast culture, deep intelligence and clear reasoning, its sensitiveness, tact
and moderation, have always found expression in the legal literarure,
whether the scholars were exegeres of the oid school, “arrétüfes” of the
style of La/ibó, or rnodern systeniatic workers. The French lawyer disposes
of an abundant mass of commentaries on the codes, learned and infor
mative annotations of the court decisions, which are aimost as apparent
as iii this country, grear systemadc treatises and smaller textbooks,
dictionaries, encyclopedias, repertories and a never ceasing stream of
monographs—in the average a less technically disciplined and profound
producüon than the German was until 1933, bur higlv attractive b
clariry and brilliance. Codes, courts and writers participate in the glory
of the very oid and permanent French legal culture.
III. The Principie of Legaiitj
I-Iowever skcrchy our picture of the French private iaw may be allowed
to remain, it has to hint ata fundamental conception [114] giving mean
ing and color to a great deal of particulars, nameiy, the principle of
legality.
The ten first amendments it the American Consdrution forming the
famous Bill of Rights have been contemporary and closely related tu rhe
Dic/aralion des d,oils de i’homme el dii cilojen, and both breathe the same
¡3. Pr:rai.-- Lan s eí Hcs/rrn Ci7iIi:afkn 297
spirit. But there has developed in the repeated French constiruuons
a marked difference from the American basic institutions. If any indi
vidual in dic Tjnited Siates is requested tu obe; sorne law enacted
by Congrcss or by a state legislature, he may challenge, lo an ordinan’
court, the validity of that kw by the contention that it illicitly restricts
his personai liberty, or his freedom of opinion, or freedoni of religion,
and so forth, guaranteed by the constitutions. The court examines whether
the restriction imposed upon the individual is a reasonable exercise of
police power or violates the free sphere guaranteed to the person. Such
judicial review of the acts of legislature is absolutely alien to French
thought. The Conseil d’Etat franklv declared that France did not want
a “goia’erncmcnt des jiges,” a government by judges, as in America. The
revolutionary leaders were keen followers of iUontesqnien’s celebrated
principie of division of powers; the legislative, executive and judicial
branches of government musr be sharpiv separated from each other.
Large parts of the doctrine have sun’ived up to the preseni time in
France. Hence, a iaw enacted by the French parliament and promulgated
by the President of the Republic must be applied by any court without
ask-ing questions.
In the course of the constitutional revision of 1946, however, an impor
tant qualification vas added. Under Articles 91 through 93 of the new
constitution, the unconstitutionality of a law may be stated within the
time for jis promuigarion bv the newlv established Comité Constitutionnel
whose thirteen members, inciuding the President of the Republic, are
not members of the parliament but prevailingly elected by ir. Otherwise,
the action of dic legislature remains nor-revicwable.
The principie, however, doca include control over the execurive branch.
As in the United States, aii administradve agencies must stricdy confine
their activiries within dic powers conferred upon them by law. An
administrative act exceeding this power is exc& deponvoir, and a wrong
exercise of power is dulonrnement de ponvoir, and is annulled. Not by an
ordinary court! The judges, in view of their traditional training, are not
• [115] considered competent in matters of administration. The French
administrative courts with the Conseil d’Etat ar their head, their structure
and rheir pracrice, have been a precious model for dic world of civil iaw.
This principie of legalitv has been pardcularlv expounded in the French
doctrine and has attracted a wide following.
J udgments of courts may be anack-ed on the ground thai the coun
has exceeded ita judicial power or jurisdiction. Thc Court of Cassadon,
298 /3. Pritrir Lo,,s f TI esfrrn Ci,jIizaIior,
1 13. P,v,ztr Lv,,
as has been repeated time and again, is not a court of appeais; it has merely
to reverse a judgment when it violates fije lan’, that is, in this case, a
written iaw enacted by rhe pariiament—not cuslomary Jaw, not foreign
iaw, which is a narrow interprctation. The idea is clearly that a decision
contrary to such las;’ ought to be declared no!!. The suit then goes back
to a lowct coun.
The attorney general, at the cassation courr, has the right and duty of
bringing to this augusr tribuna’ anv case decided in am’ instance against
the law—an cxtraordinary revision “in dic interest of the law,” without
regard to the pro&t of dic pardas, just tu maintain the pura and uniform
Iaw in rhe countrv—an admirable institution. The state’s anornevs, afi
over ihe countrv, haya tu watch continuously alI penal as weli as civil
cases, and to intencne spontaneously or un instruction by their superior
in the mbns/&e publie, whenever they thinlc that a public intarest is in
question, tu saya dic law. In criminal proceadings, the magistrate, who
is called thcjuge ¿‘bis/rut!ion and who dominates the preliminary investiga
don, has to observe thc intercst of dic defendant quite as rnuch as that
of the stata.
Stlli along this lina, only learned Iawyers are sining on the bench,
axcept the oid commerciai tribunais and the prud’honimes and thc recent
mjxad tribunals for rural leases (LaW of Aprll 13, 1945). The justices of
thepeace who were only distinguished gendemen with indmate knowladge
oftheir boroughs, wcre subjected tu juristic standards in 1926. Nowhere
is a jury called in privare matters.
Finallv, France wants tu entrust justice, the application of Law in
substantial regard, mereiv, tu cullegial coufls -thc principle of plurrditv
of judges. A single judge is flor belicvcd to enjoy the perfect confidence
of the people. An amergencv law aher the last war allowcd such judgas,
bar most haya quickly disappcared.
The judges, in fact, are sometimes outstanding scholars. [116] Nevar
thalcss it is not the individuality of a presiding or rcporting judge—or
artorncy of rhe Republic—that fascinates thc popular imaginadon: scarcly
any names of tbe high-placed magistrates are so well known tu the public
as tha personalities of the nienibrcs de l’Institut.
It is rather dic spiritual and professional laval of the average judgas
and the giorious nnd unbrokcn tradition of independenca which maLa
thc Frcnch as also tha Beigian magistratura so fine and thc nation so
proud of its courts. Alrcady in the royal epoque the Garde des sceaux
(Lord of the Privy Seal) refused to mix with dic courders of Versailles
of I[rsfrn Ciri/ia/io,, 299
and heid office in Paris. The German occupation auihorities liad ful
opportunitv in 1918 in Bclgium tu grow awara of dic uncompromising
atritude of the courrs which until thcn liad been functiuning; whcn the
courts thought thc Germans were interfering, they wcnt un strike. Wc
haya read what happencd in thc coutt of Riom, a high tribunal cspeciallv
compnsed bv dic Vichy Guvernment in order tu condemn publiclv
rapublican ministcrs for having gone tu xvar against Germany, and
which turncd out to furnish a powerful accusadon against Marshal
Pé/ain.
Jl. Prepara/ion for a M, Civil Code
On the occasion of thc centenary jubilce of the Civil Code in 19U4,
rhe dispute vas rcnewcd wirh force whether the obsoleta or inadequate
ideas of the Civil Code should be remediad by substituting an entfrely
new codification, or whethcr the paliativas usad through a century
should suffice: ayer again new cunstructiuns of the oid text by writers
and courts; borrowing by comparativa methods frum specific forcign
mudais; ingenuous invantions by judicial and extrajudicial practica; and
thc unceasing modernization of individual sections by legislativa amand
mants. Almost ail Ieading scho!ars expressad thcir opinions; thev were
aqually divided. Thc result was no new coda. After tha Iast war, howaver,
the contruversy rcturned with reinforced amphasis on tha harm done to
social life by a superannuatcd iaw, dic enormuus changas that haya
occurred fromNapo/eon’s hcight toPé!ain’s faB (and now theMarsbalIPlan),
and the fact that Franch prestige in the world so long supported bv thc
Coda, vas now graduallv lcssened bv dic superiority of foraign codas.
Although adversarias still insisted that ancient pabras are rendered more
venerable by tha additions and alterations worked thruugh many garlera
dons, all signs indicare rhat this time thare [117] may rcally originare a
new, elaborare, though conscrvativc, legisiaciun.
Imrnediatelv aher dic birth uf dic Fourth Republic, a Committaa for
the Reform of dic Civil Coda xvas appuinred. Although its membars,
well-known professors, judges, and lawyers undar the admirable chair
manship of DaanJnl/iot do la A [orandi&e, haya not been relieved from their
manifoid odiar occuparions—a fact widely regratrad—they haya advanced
a goud deal and already published the Rrst two volumes of minutas and
pardal drafts’.
France Commission de Rdormc du Coda Civil Travcaux (1947 and 1948), 2 vols.
 T
300 13. Pripale La»’: qf IP’esI,r,, Cirilkalion
It is the ambition of the committee to give the French people a code
perfectly suitable to its present life and at the same time a code which
would reestablish French international leadership such as it once was
manifest. No known defect of the old text should be continued. If 1
understand well, practicality and modernity seem not to suffice; afthough
the new rules ought not to be didactic, they should respond to the postu
lates of contemporary legal science.
This is a big and difficuh program. Obviously, of course, the present
rules and formulations enjoy sorne presumption of correctness. Por
French lawyer’s respect for tradition is natural. However, the discussion
does not refrain frorn challenging the fundamental premises of any rule,
if a doubt arises. Certain radical reforms are coosidered urgent for the
reconstruction of the population—such as the facilitation of adoption5—or
of the economy.
Por comparative studies, these alen and minutious debates among
expert jurists, who are able draftsmen, have a particular interest. Not that
the debaters themselves would display rnuch cate for foreign laws. The
commission works mainly with French materials: ihe code and its
amendments, the coun decisions, the local relations between private and
public law and the distribution of judicial jurisdiction between the judi
ciary asid other authorities, and the suggestions advanced by various
state agencies. Only occasionally such texts ate mentioned as the French
Italian draft of a law of obligations, the Swiss codes, sorne Polish or
Italian provisions and a Libanian draft unknown to me. German institu
tions, such as the land register, and the equality of [118] adulterous with
other illegitirnate children, are touched in their function as Alsatian local
law, for the purpose of unication. Yet, with their domestic sources of
law and of factual information, these subtle jurists arrive at a great
number of solutions new for France but not for alI other countries. It
even so happens that in deciding the apparently interminable international
controversy of the time and place when and where a contract by corre
spondence is completed, all dic civil law propositions are defied and the
solution of the Anglo-American common law is accepted: the contract
is perfected by the dispatch of the acceptance7.
According to newspapcr reports of August 25, 1949, a committce of cabinet
rninisters has been appointed for suhmitting a bili of which it is hoped that ir ‘‘vill
increase adoptions 10,000 a year.”
Op. cit. supra note 4, at Vo]. J, 424ff., 653ff,
‘Id. at Vol. 11,146, Art. 21 (preliminary draft); 220, Art. 18 und 20 (subcommitree).
13. Prh’ale La»’: of W’euern Cñiüzaiio,, 301
The common law is not even mentioned at this occasion or anywhere
else so far as 1 could see, nor are the questions inherent in this theory
considered in the published volume. Most interesting, the oid problem
whether there should be a general pan, afrer having been negatived in
most recent codes, has this time after very long disputes found a different
answer. The Rrst book of the German Civil Code is regarded as too
heavy, but general tules on persons, property and legal acts will be insert
cd into separate books. The doctrine of legal acts, a broadec notion than
contracts, will seemiogly be elabocated without using the vast German
doctrine, but great difficulties are expected to arise.
TE the resulrs will often, perhaps rnost frequendy, resemble the parallel
provisions of other countries, minor differences will be a regular feature,
including improvements and local convenieoces as well as unnecessary
particularisni. 1 cannot suppress the observauoo that dic great task of
new codifiers should be alleviated hy really effective comparative re
search. The clarification of problems and solutions is speedier and surer,
when the foreign experiences and achievements are put to use—as materials,
though, not as models. The natural fillation, even not “legally acknowl
edged,” must be a marriage impediment, irrespective of its characteriza
tion as a family relationship, has been perceived by the commission; but
a contrary tentative draft and discussion could have been spared». And
that a possessor in good faith should be hable for all darnage suifered by
the chattel or land during his possession, unless he proves that he has
not committed any fault, is an untenable proposal by the fulI committee°.
Romanistic [119] tradition aod the Cerman code consider it jusdy
elernentary equity that who possesses a thing in “good faith” has no
duty of care which the true owner would not have, and therefore cannot
be in fault before suit is brought against him.
Iiowever, ve shall feel the richer by seeing our research materials
increased by the independent work of so privileged a group. The future
work of revising the Louisiana code, this near relative of the Code
Napoléon, is assured of a particularly advantageous source of inspira
tion.
Alt is true ihat rhis drafr (id. at 429, Art. 20, Par. 6) was intended ro decide a con
rroversy. Cf. id. at 507, 510.
Id. at 1002, Art. 29, with the jusrificarion byMazearidar 997 tlrnt the general rheory
of liability requires this solution.
UNIVERSIDAD DE NAVARRA
BIBL!C’EC’ D ‘‘i1\AN DES
302 /3. Privare Laus cf lflviern Civilkaiiou
Pan III. The German and che Swiss Civil Codes * 1
T 13. Prnuie ¡—ant of II criera Chiliza neja
Pie Gorman Codo2
The Bürgerliches Gesetzbuch of August 18, 1896—cornmonly cited as
“Eegcbe”—came into force on January 1, 1900. Before this codi5cation
created a unified privare Ltw, the snap of the country showing Wc laws
of rhe several territuries was lUce a niosaic of infinire varien’ transcending
the distincrion of states. Common law, mixed out of Roman-Byzantine,
Canon, and Germanic eiemems oftcn transformed, thc Prussian Land
recht, and ¡he French mw werc noriceabie in larger parts of thc Reich,
but all xverc paniallv superseded by a rnuldtude of local statutes and
customs having precedence over the common law. Nevertheless, unihci
tioncaused lcss dif&ulty than in othercountries. The reason vas evidcndy
Wc scientific prevalence of the Rornan-German law, which during the
nineteenth cenrury occupied the first place in the law schools and the
learned literature, tu Wc damage of what could have been learned from
the Prussian code and practice. This erudite evolution, based on the
Pandcctist doctrines, reshaped by Sdvis’JD’ and his many-sided school, and
continued in an intense, sometimes vehement, dispute between Roma
nists and [266] Germanists—thnt is, ihe scholars of oid Gcrmanic law—
‘as further influenced br che vich German phllosophv and finallv strong
¡y inspired bv che incipient economic and sociological movements which
srarted ja rhe last century.
The code liad ro say the last word on aH the problems concerning
privare law and express a stand on law in general. In twenry years of dic
most eLaborare studics of drafting and debaring, methodical atrenrion
*
ibidcm [5. 26f —275.]
tic Progrcss of Continental Law, supra p. 107, n. 1. [liier 5. 200 N. 1]
Thc German Civil Code, translatcd and annotated by Cinrng ¿‘fin [rang (London,
1007). Reccar German cdirions must be consuhed for tEse amcndments.
En:es/ J. 5ehnsier, Thc Principies of German Civil Law (Oxford, 1907). L/,Iecce,1rs,
Kipp and irolJJ, Lehrbuch des Bürgerlichcn Rechts, ja many edirions; Spanish trans
larion wich compararive annorations by Coriza/es and Algaer, 8 vols. (Barcelona, 1934
co 1946). E. A!. Borhan1, Guide to the Law and Legal Literature of Germany (The
Bague, 1912). lnfnrination un German iasv is frequcnt in ¡tallen md Spanish law
rcviews. Noiably, reports on German dccisions and theory are furnislied by rhe
imporranr pcriudcca!s of che Instituto Italiano di Swdi Legislarivi,cdiredhv 5. Ca/gana
La various languages, with Enghsh slimmarics for un inrroducrion che ‘‘Vicissirudcs
of che Germar. Civil Code, 1900 ro 1925,” wcre surveved in Annuario di dirirro
comparato, vols. 1—5, 1927—1930 [vg1. hice Band 1, Beitriige 20—22].
was given to the enormous wealth of accumulated learned tradition and
303
to the available Gorman and foreigo sources of law, although no one
thought of English, Scandinavian or American materials. Practical
experience ;vas not missing in de serious and industrious authors of the
code. Thc Rrst draft vas censurcd by Otto Gierke’, rhe Germanisr, as
leaning too much to the Romanistic ideas, and by Aa/oir iilcnçer’4, the so
cialisr, as roo favorable toche propectied classes. Bur a second cornnússion
satisfied che crines as Lar as appeared feasible at char rime. Assuredlv,
separale enacrments on such nianters as labor lax’ and juvenfle welfarc
had ro follow in subsequenr pcriods.
r\.lmost cvc’rv problem vas minurely exarnined with respect ro lts
correcr starcnieni, irs solutions in che preceding codes, irs reladonship ro
orher legal problerns, irs jasé soler-ion, acid the hest formulanion of che
rule tobe esrablished. Theambinionwas tu eoverallworthwhilcquesdons,
or expresscd ja more modern jargon, ah foresecable conflicts of interests,
without committing the mistake of the Prussian code which in 28,000
sections tackled every possible question separatcly. Abstraction, genera
lization, therefore, seemed rcquired. Tu obtain so wide a tange of
accuratcly visualized particular situations, language and systems liad tu
be treated in a new techniquc, a rchned, though nrricial, manner. Usual
cxprcssions wcre polished and convcrtcd into firmly and consistently
used rechnical rcrms. Everv rule became an inregrared pan of a closelv
knit svstem. Thc rules in their meaningful conneaions wouhd rake
of praaicaflv alI major doubts that might arise so long as the
esscnnal social, economic, asid moral concepnions of dic time rernained in
existence.
In thcir conscientious thouroghness, diese codiñers were flor afraid
of dif6cult quesdons. They rather cook dclighr in such puzzling situadons
that turn up if scvcral immovables bclonging [267] to diffcrent owners
are found to be morrgaged fue the debr of one of thom; oc if forced
inheritance shares are co be allucated among children, sume of whom
have reccived gifts frum be parent while he lived; or ifa succession is
uverburdened by legacies and debrs.
Thic legislativo decisions are intended ro achieve jusrice and fairness in
the midst of be conflicdng interests of the pardes and thc clashing con-
Orlo Cutkc-, Ver Lntwurf cines Bürgerlichen Gescrzbuchs und das deutsche
Redar (1889).
Arr/ore i!cnger Das bürgerlichc Rcclcc und dic besirzlosen Volksklassen (3 cd.
1904).
 Í
304 / 3. Priva/e Laus of iles/ern Civi/iaahon
ceptions of rigin and wrong. The oid institutions of farnily, property,
and inheritance are maintained with modjfications intended to delirnit
their social functions. Protections for rhe weaker rnernbers of famiiy and
society are considered at length; for the first time a code provided that
an ernployer has to maintain sanitary, decent rooms and safe tools
(Section 618) and has to pay six weeks’ wages to a sick employee living
itt bis borne (Section 617). Pro and contra are siudied and irnpaniafly
weighed. This code is neutral, objcctive, tolerant, and imbued with the
desire for justice. It is dic product, not of one genius, but of impersonal,
though inventive, cornrninee work. With this end and this temperament,
it is the most authoritadve and rnost cffective creation of the European
legal mmd thai had been achieved at de turn of dic cenwrv.
This learned and sober character aroused curious reproaches. Sorne
rornaniic critics complained about the prosaic impersonality pervading
the rules. Ofien has it been criticized thai individual freedorn and property
rights stifl prevailed. Sorne were disgusted by the logical structure. Wc
have evidently to conclude that dic ideal law of dic future must be sub
jective, irnpulsively capricious and totahtarian. In fact, the National
Socialists directed their hostihty againsi the very narne of the Bürgcr&hes
Geseizh:,ch, the code of citizens, ami prepared a code for “dic people,” a
“Volksgvsdzbnch.”
More consequentialiv, the rnethod of “abstract casuistry,” intended to
guarantee exactness and cornpleteness by sysrematic generalizations of
fact situations, has been anacked. One of the code’s characteristic methods
to achieve this cnd consists in the gradual descent of the tules from a
general pan, dic first book, comaining dic rules comrnon to all private
mw qucstions, to more specihc topics, such as to obligadons itt general
(Book 2, Pan 1), then to dic individual sources of obhgations, and Hnafly
when sales are treated, to speciai kinds of sales. For dic individual topic,
moreover, the codo first establishes a normal pattern of operativo facts,
for instance, thc case where a lunadc or 268] small chiid incapable of
discernrncnt causes damages to another (for example, throws stones into
a cae). Section 827, with the usual generalizadon speaking of a person
unconscious or in mental disturbance, et cetera, says: ihe damaging
person is not responsible for dic daniage. But imrnediately dic secdon
toros to dic case where this person has brought hirnseff into a temporary
disabled condinon by intoxicadng liquor or similar rneans (thinking of
drugs): he is responsible. That this forms a separate sentence hints to
the couns thai the plaintiff should prove this predicament is self-inflicted.
13. PH; a/e Laus of Ves/era Cizilizahon 305
Yet, itere is a third consideration; dic liabflity does not arise if he has
come into this condition through no fault of his own. Thus, he may
prove that someone has poured more rum into his glass. And to crown
the sequence, another section under cautious condidons, allows a
damaged pariy nevertheless an equitable indemnization for dic act of an
incornpetent pe1on, for instance if dic drunkard is rich and the injured
is poor. Other codes have one or the other of these rules; no other has
aH these distinctions, which iead lo fair decisions.
As an example of the anful terrninologv, dic auxiliary words, ¿arf darf
nichi, ,nnJíÇ knmz, kann nicht, are used wih dic specific meaning of disun—
guishing mandatorv and directorv requiremcnts.
i303: A Ii al ramw/ (ciarí ;;i1]i rnarrv bcfurc fuji age.
§ l3jó: A iii.i rrlagc cejebrarju, sLweZi (suilj he preceded i> j,:ins
2234: jlw spousc of tite t esi a tic ¿aunol (ka;,;, nich!) be a t Irneas ev en dic ugh che
ni:! i riage is dissojv cd.
§ 2237: A rni,ior sijou/ci (sol!) not be :1 \VitfleSS.
§ 2239: ‘l’hc persona assisting jo dic rn:Lhing of a ‘viii mus! (müsJeo) he preseni during
che enrire acr.
If “elastie” words are chosen, dic terms intendonally indicate diat the
court should use discredon, as when a penalty in a contract should be
examined as to whether it is “adequate”; when damage should be “equit
able,” instead of covering aH darnage; or whcn “disruption” of dic
marriage is a requisite of divorce.
The language of the code is lis strangest aspect for forcign readers and
has immeasurablv contributed tu widespread ignorance of frs merits. The
German lawvers had to work very hard for sorne vears to accustorn
thcmselves to this apparatus. And anv freshman again will still be puzzled
in reading Section 164, Paragraph 2, dic requiremeni for representation
of a principal by an agent: [269j
If che intenrion co aci itt dic nanie of another doca nor appear iii a perrcprib!c
manncr, che abacore of che ag cnt’s iotclitioo co art in his own name is not to be con
sidcred.
More sirnply : an ageot rnust rnakc it dcar ‘o dic ocher party that he acta as an
agcnt otherw,sc he himsejf it dic party.
However, it must also be borne itt mmd what intensive and extensive
elaboration is contained itt dic terse formulations of the code. Compare,
for instance, dic foilowing paragraphs of the Swiss code with frs German
predecessors and studv thc scope of the problems covered as Wc11 as do
exaaitude of dic language.
20 Rabel, Axísülze Iii
306 13. Fn, ate Lan’, of IVesten, Ch’illzation
Swiss C. C., Arucle 801, Paragraph 1: An immovablc morcgagc is excinguished
bj fue cancel/alio,, of its encry
German C. C., Secrion 875, Paragraph 1: For thc release of a righc in latid, unlcss
che law prov des ocherwisc, it is required char che person encilled declare thai he mrrenclers
¡be nghi nne’ char dic right be cancelled in dic latid register. The declaration shall he
conmiunicated co che latid regiscry office or co che person in wliose favor it is made.
Swiss C. C., Arride 827 (morcgagc) The latid owner who is not personally hable
on che debc secured uy che morígage, may redeem che mortgage under che same con
ditions as cliose required of che debtor co disch:irge che deht. Tf lic satisfies che crcdicor,
tic clac/E it tnansferrcd ¡epoti blm.
German C. C. , Sen ion ji 43, Paragraph 1 (aniong cite cases where che owner may
lic morcgagee) : If clic owner is not ihe personal debcor, che claim passes upon him
lo che exrenc t hac he sarisfies clic creditor. ‘l’he pro visions of Secdon 774, Paragraph 1
concerning a surety are applicahle by aulalogy.
Secciocs 1163, Paragraph 1, Sentence 2: lf che persnnal debc is excinguislicd, ihe
en 11cr acquircs ¡he mortgzçc.
Swiss C. C., Arride 973: A person alio has relied in good faich on an encry in che
latid register and ihcrcupon has acquired propercy oc other real riglits, is protecced iii
chis acquisicion.
German C. C., Section 892, Paragraph 1, Senrence 1: Jo favor oía person tvho
acquires a riglxc in land or a righc in such a righr hy legal cransaccioo, che encries of
che latid regisrer are deemed co be correcr, unless an opposicion co cheir correccness
has liceo regiscered or cheir incorrectness is knowo co ihe acquirer
l’aragraph 2: Ef regiscracion is necessary for clic acquisirion of che right, che decisive
time for the k nowledge of che acquirer is t hac iv lien dic applicacion for regiscracion
is filed, oc if.
Finafly, general rules were introciuced ro secure equity and moralicy.
Tlie courts have subsequendy generalized and very [270) largely employed
the fundamental maxims that contracts are to be construed and performed
according to good faich with regard to common usage (Sections 157, 242)
and that concracts violating good morais are void (Section 138).
Can a code satisfy everybody? Tbe iaw of immovabies has beco develop
cd in Austria and Germany on che ground of more and more perfect iand
regiscer books (that is, public title registers, not to be confused wfth
geodecic and tax surveys). This division in the code is a marveious syscem
of principies deflning the exact effect of registration and nonregistration
of real rights. Inscripdon in the book is neicher merely evidenciary nor,
as in Louisiana, a self-sufficient act. As a resuh, transfers of land and
mortgaging have become smooth and secure operadons, without
benefitcing bad fahh. Certificates of mortgage niay circuiate as negociable
instruments. Because, liowcver, credit was so much facilicaced, agrarian
reformers soon complained that pledging land was made too easy and
/3, Pilca/e 1_ant of IV’cs/ern OpilizatIo,: 307
owners overburdened cheir property with charges. There is something
to this reproach. In hornestead legislation, morcgaging is generafly
prohibited. Nevertheless, 1 had to asic: Must ive blame a cook for giving
us food so good as to cause us to overeat?
The ponderous code found a congenial legal profession for enfolding
its capacity. In the short space of time from 1897 to dic outbreak of the
First World War in 1914, che German writers and law schoois devoted
themselves almost exciusively to exploring and learning to operate this
buge apparatus. They experienced the biggest event incencuries, exchang
ing their fragmentary and turbid legal tradidon for one sohd, bright
manifescation of law; turning, from painful artenipcs to make ancient
soutces decide niodern problems, to separate scholariy inquines in che
actual law and in the history of law; and immediately proceeding co
wards a reborn audaciousiy progressive rheory. By its overaccurate
pedancry, dic code educated dic lawyers to maximum efforts. Ics innumer
able wheels and gadgecs invited expert handiing and produced a formerly
unknown resourcefulness.
The coutts participated. They approached their task with inteUigence
and abilicy, and, to their own surprise, with a creative spirit of which no
one had suspected the German tribunais. Somedmes, they went much
furtlie.r than dic envied French judges in free constructions and judge
made law. In chose very years dic spirit of dic time changed. Publie law
increased its [271) inroads into private relations. Freedom of contracdng
eneountered the objection that it was one-sided. Everyone now knows
dic mass of standard forms and general conditions issued by carniers,
banks, insurers, manufaccurers, landlords, which dic single other party
to the contracc has simply to sign; thc German courts reacted againsc it
at an eanly tinie.
They have filied many gaps left by dic code. To name at random a
few examples of the various progresses, judicial authonity has improved
dic protection of personality; established a sound crfterion for dic question
whether niachines are a pant of a factory (immovable fixtures); recognized
conditional sales and fiduciary assignments; invented aedons for injunc—
tion; and created a new class of quasi corporations allowing adequate
functions without undesired registration to political, religious, benevo
lent, scientifle, sport, and labor associations.
Ah this vas substantialiy acheved in those short years—a memorable
refutadon of dic fears that a new codificacion necessarily leads to half a
cencury wasted with sterile exegesis, as happened in France and in Austria.
20’
 r
308 13. Prhale Laus sí llesirru Cñilizz/iws
The German legal system, of which the private law is the centerpiece,
is not as well known in the world as it should be. Wirh its historical back—
ground rcaching into primordial wisdom, with jis refined erudition, its
cnlightencd approach and its unique teclmique, it is ihe most imponant
single picce of legal achievement in the world. Much of its particulars may
be disapprovcd afrer half a century of radical changes; it has never
inspired any great love. I-Iowever, 1 dare say, after life-long observadon,
that the methods used in the legal science of the United States wouid gain
by a thorough appraisal of German private law. Appropriate books to
introduce American lawycrs te ihe civil law are urgently needed; a
special role is due lo a comparalive epusition of the German system.
iba Swiss Code3
The Swiss Civil Code—”Zivilgesetzbuch”—of 1907, in force from
Januarv 1, 1912, and the re-enactmem of the largely rnodernizcd [2721
Code of Obligations, originaliy of 1881, present another maslerpiece.
The law of Switzcrland was enormously divided. Although it is a small
country, its segnients of three nations, all equal in law and social standing,
reared in considerably different legal conceptions. The arch-conser
vative inner the agricLEltural and Protestant regions, and the
cantons,
industrial and trade centers Zürich, Baste and Geneva represented
of
contntsts as much tebe respected as any conaicis of which
interesis
legislators huye to consider.
For a long time, aH these diversides seemed to frustrate any plans for
unifving the private law; there vas no Napoleon te enforce it. llowever,
Luc1cn 11v/mr, in an excdllent historical and critical survey of tbe tcrritorial
Iaws, prepared tbe legislative work, which then vas entrusted te blm.
This great scholar in fact included a number of the surprisingly well
preserved oid Swiss institutiens in the cede. The French and Swiss cedes
show essendally mere medieval Germanic influences than de German
Cede! Alse ferlegislative technique Zürich and BasIc had set remarkable
examples.
Robert 1’. ScJiii, Thc Swiss Civil Cede of December 10, 1907, aanurarcd hy
Charles Freflni/l (Boston, 1915);Joy flllhams, fle Swiss Civil Cede, English Version
(Oxford, 1925); Ceorg ¡Ve//siria, llie Swiss Federal Code of Obligations (English,
Spanish, ar.d Frcnch), 2 veIs. (Zürich, 1928 and 1930). (Zurcher) Komrncntar zum
Schwcizerischcn Zivilgesetzbuch ,von Eger, £schr u.u. Isce csp. Vol. 1 (2ed. Zürich,
1930) with bibliegrapbv, p. 35ff.); (Cm/fr’;) Kemmcr.rar zuifi Schwcizerisclier. Ztvil
gesutzbuch, see Vol. 1(2 cd., Bern, 1919) hibliography 27ff.
13. Prirale Laus of lItes/era Ciii/i:.,Ii’u 309
Iiuber’s ability has finally everceme the disparate elements but fer a
few excepdens. Thus, the cede declared thai brothers and sisters of a
deceased, in the absence of heirs of the first class, have legitime pertiens
in the succession and that the children of brothers and sisters have no
forced shares. But the federal legislatien had to leave the cantons the
faculty of iegislating inversely in both respecis.
The codificatien ;vas greeted with enthusiasm net eniy in its own
ceuntry but by many peeple eutside. Tn Germany these whe felt oppres
sed by dic weight of their cede were in raptures ever the twe principal
feawrcs of FJu/scr’s technique: simple language and bese structure—an
anüthesis te the nerthern neighber.
The language is, indeed, natural and attracdve, semething between
selemnity and cellequialism. Preverbs and slegans are interspersed, and
i.ou may find a saying such as: Marriage gives fulI age.
The light tone of the law was possible because the legislater strengbv
reduced his task. Huber was satisfied with bread euthnes of the legal
institutions, with principies te guide the courts rather than detailed
reguiatiens te bind them. Hence, an elegant arrangement of dic tepics
was preferred te a tightly woven system. [273]
Radicals in Germany hailed just ±15 aspect. Self-restriction of dic law,
a half-way compromise with case law, seemed te them the answer to the
lawyer’s prayer. And we aU feh relicf in stating that, aher ah, it was
pessible te codify without the most ambitieus precision and cleverness,
in simple language net requiring years of initiation. And it was net
necessary te press the judge into a machinery diaating his every move.
Indeed, considering aher four decades the resulis reached by the
highly competent legal profession under the guidance of the admirable
Swiss Federal Tribunal, xve understand fully the satisfaction and pride
with which Switzerland views her cede.
Another peint of view, of ceurse, is needed for a just estimation of
such a cede in comparisen with its more particularized brothers either
German oc American, or the recent cediflcations which we cannet discuss
here6.
Tu dic hrst place, dic Swiss conditions have determined the character
of the code, ahhough a han technical revision of the text for assuring
mere precision, much desired by the best jurists, weuld not have harmed
° Partictilnrs Were menrioned in mu arricIc, Strdítzingc im Schvcizcrischcn Zivil
gcserzbuch, Rhcinsche Zcirschriit lCr Zivil— ur.d I’rnzcssrzchr, Vol. II (1910), 308;
Vol. ÍV (1912), 135 Ihier Band 1, Beitr:çc 7 und 8.
310 13. Prñ a/e Laus o] ¡V}s/crn C’iilli../jon
T 13. Pri,te Laus of Ifls/era Girilizaüon
the work. The task veas fixed frorn dic bcginning as dic unificadon and
rcdrafting and dcveloprnent of thc traditional law by thc accustomed
mcthods. Switzcrland had man;- courts wiih a large participation of
laymen on dic bencli. Thc refcrcndurn thrcarencd a crucial rcsr. The
language liad to appcar understandable to thc common man, evcn
though it may sometimes puzzle thc lawyer by its cmptincss. Popular
votes on any new law wcre lcnown to be risky. Finally, the country was
always accustonwd to a largc discredon by the judgcs. It sc-cmcd natural
to lcave thcm a conspicuous pan in forrning the new law.
Consequcntly, in thc choice between complctcness or smoothness,
exacritude or clcgancc, advicc ro the Iawyer in difficult problcms or
¡nfonnarion to tlic intefligent common man,—wherc thc Gerrnans sciectcd
dic first, the Swiss dccidcd for dic sccond rnethod. And no hard and fasr
conclusjon is valid for dic rest of thc world.
Jn the sccond place, the code would not have succceded so well in any
country not so highly culturcd and not so grcatly favorcd by its continuous
contaas with German, French, asid Italian legal scicnccs. [274]
A charaaerisric examplc is dic qucstion whcthcr thcrc should be a
general pan of dic code. The Gcrman codc has 240 sections of gcneral
rules; among rhcm $2 sections deal with juristic nas, including contracrs
asid unilateral dcclarations not only crcating, modifying or tcrminating
obligations, bur also involving propcrty, succersion and family law
transactions such as lcgitiniation and adoption. This WaS a novel work
of abstraction, difficuft to establish, but subsequent cdticism has dcmon
strated that dic gcneralizadons shouid rather be complerncntcd rhan
abolished. The Frcnch Rcform Commission, as mcntioncd carlicr, has
decided on an analogous undenaking. The Swiss icgislator has contenrcd
himself wirh an cmergency solution. Thc Code of Obligations contained
certain rules on offer and acceptancc, error asid fraud, limitadon of action
and sorne odias. The new code ja onc articlc provides that dic general
provisions of the law of obligations involving dic conclusion, fulfilmcnt
and rescission of contracts apply also to other civil reladons. This lcaves
a grcat deal of problems to judicial dccision.
Thc substandal &fferences bctween dic two codcs havc bccn unreason
ably exaggerared. In particular, iris sirnpl not true diat dic Swiss codc is
infinitely more advanccd insocial progress, aswc hcar so oRen. Tliisasser
don with its ambiguous wording would cenainly not have picased all
thc authors of rhe code. Dcspitc imponant changcs in tlie polirical cliniate
betwcen dic dates of dic codes, problcrns and solutions are closcly relatcd.
311
Borh codcs allow a wifc ro tnke a separate domicile but undcr restrictive
condidons unlrnown ro American law, relying again on rhe judge
(Articlc 170). In dic absence of a marriage setdcmcnr, dic administra
don of dic matrimonial propcrty (exccpt that reservcd to dic wife) is
lcR to rIsc husband in both codcs; dic Swiss admirably irnprovcs this
systcm by dividing thc lioldings at dic cnd of dic marriage CAnicie 214).
Qn the other hand, aher varying proposals a wife nceds conscnt of her
husband for carrying on a profession or a tradc (Article 167); hcr position
ja rhis rcgard is slightk- worsc, at lcast ja rhcorç. But dic Swiss wanced
sound rnarriagcs rarher rhan uniimitcd womcn’s cmanciparion. Switzcr
land improvcd dic posidon of ccrtain classes of illegitimate childrcn
Article 323). Eut lE dic German code depdves a natural chuld of alirnony
from a dcfendant when diere veas anothcr concurnbent, dic Swiss code
rccognizcs a similar dcfcnce (Arride 315). Moreover, it follows the
French rathcr than dic Gcrman lead in excluding adultcrous and inces
rucus childrcn from recognition [2751 (Anide 304). Thcrc is no ground
for diffcrcnt conclusions in orhcr mancrs.
Thc Swiss codc and dic Revised Codc of Obligarions, of coursc, liavc
conrributcd a grear numbcr of valuable additions ro our supply of solu
tions. For insrancc, dic righrs of individuals, including rhc privilcgcs
conccrning one’s own picrurc, unpublishcd lcttcrs, and reputation, have
obtained a clcarcr and firmer cndorscment than in any previous cnact
mcm and rival the Frenchjnrispntdcnce. But tliat a husband may claim
damages from a dcfendant for having allenatcd the wifc’s affections, as
in thc Unitcd States, is a peculiar featurc of thc Swiss Code. Civil lave
has disapprovcd a husband ro whom his wifc becomcs prccious on thc
occasion of such a suit. Associarions wirhout econornic purpose rcccive
pcrsonaliry as soon as thcir inrcntion ro bccome a corporation is dcclarcd
la written anides of association—a full rcturn to an oid principlc and a
highly rnodern step.
Conclusion
The German Civil Codc has excrciscd considerable influencc oc evcry
one of dic more rcccnt cnactrncnts of privare lave in Europe and has
been adopicd in japan except for rhe ancicnt insrirurcs of famiiy and
succession (conneaed widi dic “housc”). Tlie Swiss codc has been
adoptcd in Turkcy -because a new gencration of lawycrs had to grow
up undl a code of thcir own veas possiblc-and has bccn a popular model

312 13. Prisa!, ¿nl nf Iflztem Ch iiia!hja
for manv legisiarors. Legal science has received a tremendous lift from
the literature occasioned bv both codes.
For legislative PUfP0SS and technique dic lesson is clear. Thar very
heavy, vcry potent locomotive of thc Germans ¡5 ugly and efficienr; it
takes us to anv place where tracks go. That orher graceful automobile is
useful so long as a driver such as the Federal Tribunal sits at the wheel;
it may easily be overloaded. Can their virtues be combined? Tbk has
not yet been demonstrated. Certainty of what written law can wnrk in
society and state and what it should not try, is by no rneans definitively
acquired. It mav be an insoluble question in our disturbed century. The
art of preparing and formulating laws can be icarned and ought to be
culdvated. The contents of rhese two codes has largely enriched rhe
substance of the privare law. Sound social progress is slow. Privare law
develops even more slowlv. It does not carry a blazing torch into darkncss.
But it follows and assures the fonvard movement of civilization.
Pan IV. Civil Law and Common Law*i
Common law and civil law are general]y believed to be differenr, like
oil and watet, which do not mix. A sweeping assertion that English and
North American law does not present thc slightest analogy with thar of
Continental Europe was expresscd as late as 1930. Nor until the 1920’s
did Continental lawvcrs have anv dear conception of American law, and
knowledge of English institutions was a monopolv of a handful of
scholars writing on legal history, local governrnent, or commercial law.
Sorne English scholars considered pans of French and German legal
history and, following Austin, extended the new “jurispmdence” to
Roman law and its aftermath. A new period xvas heralded by such leaders
as Roscar Pornid, Erizosi Lorenzen, and Edn’in Borchard in the United States,
JosefKoh/er in Germany, and Edounrd Lamben in France. Nevertheless,
in the general opinion of lawyers on both sides of the North Sea and the
* Ibidcm [S. 431—460.]
Friedman, A Re-Examination of the Rclarions Bcrwcen English, American ancl
Continental jurisprudcncc (1942) 20 Can. Bar Rey. 175; Pónnd, The Spirit of rhc
Common Law (1921); Q&crid&, Companitive Iaw (Cambridge, 1946), BBcr scq.;
Radbrnrh,DcrGeisrdes englischcn Reclus (heidelberg, 1947); Edo,, Ciertos priicipios
characterisriros del Common Law, in Academia tnteramericai:a delderecho comparado
e internacional (Cursos .\lonogr:iEcos, La 1 habana, 1948), 253; Da,’üL Trairé élémen
(aire de Droit Civil Comparé (Paris, 1950) 269 311; Caopcr, The Common and rhc
Civil Law—A Scot’s View (1950) 63 Ilarv. L. Rey. 468.
Y
1 13. Pri,ak L.tnss , Ifl#rrs, Chllka!in’s 313
Adantic, to venture a studv in the other half of dic legal world vas
believed a hazardous excursion into a dark conrinent. Manv may think
so even todav. “Civil” law is considered lay orhers to be unconimon, and
“common” law appears sorncwhat uncivil.
No doubt, a long history has impregnated rhe ¡‘atrire of both civil and
common law. The divergence reaches into dic basic conceptions and
affects innumerable pardculars; it concerns mentality, habits, niethods,
systems, sources, and resulrs. Iiowever, paraiuount questions arise: Just
what are dic main structural differences? Whar is their present scope and
significance? And to what shape will they be molded in dic unceasing
stream of evolution? 1432)
These questions indicate sorne objects of the all-comprehensive com
parative studies which are rhe mosr imponant task of present legal
science. 1 have urged such researches Lot rnanv years, and afrer they
were srartcd successfullv in Europe betwecn rhe great wars, 1 have been
asking Lot them in this countrv. At this moment, our lrnowiedge has not
matured enough to meet those questions ihroughout with assurance. In
part, mere impressions must suffice. Nevertheless, one conclusion is safe.
Cornmonlawandcivil law are quite comparableentities. Morethan ¡bat, they
are relatives not too remote, and they move steadily nearer to cach other.
Let us see first what are zhe main phases of the two groups that have
caused the belief in their unqualified contrariety. If ve want to get the
fuil impact of dic principies, the sharpest proAles of the contrasts,
ought to look to England rather than to thc L’nited States. \Vhen thc
common law traveled with the colonists to Briush possessions overseas,
ir split hito manir variedes and underwcnt inodifications. In dic Unired
Stares dic mere fact of application in dic several jurisdicrions, dic overrid
¡ng constitutional control, and the federal legislation have produced a
elimate very different Lrom dic unity of the British Kingdom, its horno
gcneous ciass of tradidonally trained lawyers and its ordinary courts
ruling over dic entirc terdtory of England or the Kingdom2.
1. TIie il’íain Differences
Jiistoric Sparaiion
The peculiar nanirc of common law has bcen dcsigned by histor.
English law has had a continuous, almost uninterrupted, dcvelopmcnt
by English lawvers, kings and parliamcnr frorn dic coronation of Richardi
Lornihari, Essays iii Jurisprudence md tiw Common Law (1931), 55 es seq.
314 13. Pr/ra/e Lenes of lrestern Cje/lizai/o,,
on September 3, 1189, that is, now for 760 years. \Vhilst the European
conrinent went from medieval society co the Renaissance, Humanism,
Reformation, Thirty Years’ War, stagnation, revolutions, and through
te criscs, wars, and social upheavals of the Iast century, Great Britain,
on its isles, had a revolution and a restoration, and several great wars,
but the law xvas never more than mildly affected. The violcnt currents of
thought stirred up on the Continent carne as gende waves slapping on
her shores. British character xvas more of a barrier tan the Channel. That
country is still a hereditary [433] kingdom, the governing law is still the
direct descendant from Richardl’s law. This is a very great fact.
Soarces qf Lan’
British common law has developed by steady tradition in the decisions
of the couns, whereas the Continental legal systems rested prevailingly
on Jnslinian’s codification and rests now on national codes. Common
law learning, said Sir Frederick Po//ock, is forcnsic in its origin, civilian
learning is scholastic. Incleed, our heroes, such as Sir Eh;’ard Coke, Lord
Chancellor Hardwicke, Lord Mansfie/d, or Chief Jusdce ¡lían/jal!, Stoiy,
and ilo/vies, were judges, and Azo, Bario/ns, Done//as, Daniordin, Samg;y,
and Jherin& were professors.
This contrast opposes the sources of law: the judge-made law and te
enactcd law, with ever-repeated emphasis on the prerogative, or even
monopoly, of the English judges in inaking law, statutes in principie
being of inferior force, declaratory of the common law, intended it
clarify and simplify the case-law. Even if the statute is reforrnatory,
derogatory to the common law, it is to be construed narrowly as an
exception to the great dominating bulk of the previous decisions persis
tently forming the common iaw. A number of rules for interpreting
statutes insist on the literal sense of the words, and have such quaint
flavor as “contemporanea expositio”, “einsdem Leneris doctrine,” or “rule
noscitar a socüs.”
The contrast, thus, extends to construction and application of the law.
It concerns the reiationship between law and legal theory. The traditional
conception hoids judicial decisions superior it bach statutes and doctrine.
The training of the lawyers has been characteristicaily influenced. Engiish
jurists have been trained by the inns of the court, practically, empiricafly,
in the autonomous continuity of the profession. Continental lawyers
have been educated at the universities and taught history and theory.
13. P,v,ute Laos qf ¡Fes/ern 0,111 za/ion 315
Accordingly, English lawyers have never been interested in legal history,
not even in their own, despite lis magnificence and te abundance of
well-preserved historical sources. (A treasure iargely not even printed
and neglected, while ve busied oursclves reverently with the remainders
of the Egyptian papyri, described by sarcastic Romanists as holes with
something illegible around.) Medí/aid has bittcrly complained about this
defect and thereby also explained the sorry clisregard for comparative
law: [434]
‘‘11 istory involves comparison and thc English lawycr who kncw norhing and
carcd norhing for any systcm bu bis own hardly carne in o ight of dic idea of legal
hiorory’”.
The admirable history of English law, wntten by Mait/and in collabora
tion with Po//ock, has stopped lii the Middle Ages and few people seem
prepared to supply te special studies for complementing Ho/dsn’orth’s
history and the handbook by P/ncknetí.
Qn the other side, time and again Continental practice and theory have
worked at cross purposes. The great humanists of the sixteenth century,
Cuiacias and Done//ns, wrote for the German Romanists of the nineteenth
century rather than for te contemporary judges who remained unimpres
sed. Savzgiy’s historical school has imrnensely influenced te march of
scientific progress, but not the courts of their time. When 1 first entered
judicial practice, my superior, an oid judge, warned me that 1 must
thoroughly forget my university learning, and as confirmation showed
me every week che entirely useless exertions of te current mw journals.
But the experiences of the nventieth century are entirely different.
Precedeiits
Established upon decisions, the formation of common mw has sought
stability by the principle of stare decisis. A judgment of an ordinary court
is binding on this court itself and aH coordinated and lower tribunais.
A judgment of the House of Lords is binding on all courts, now includ
ing the Iiouse itself. It can oniy be changed by an act of Parliament.
This unique doctrine, a consequence of the lack of written rules, has
produced, in its turn, a very subtie art of analyzing and distinguishing
the operative facts supporting the individual actions and defenses. It has
also prornoted a basic tendency toward conservatisrn, ofslow and cautious
progress from one case it the next one. Many centuries couid continuc
this unhurried advance which, vieweci in tetrospect, alrnost appears
Afaitionil, Collccted Papcrs, 188.
316 ¡3, ¡‘rita/e La”’; of lles/ero Ciri/izalion
infallibly purposefui. But the United States has not been able to stand
this measure of movement for a long time. The civil law has
known the principie of 5/are decisis nor needed it.
The common law method so acquired is naturally inductive. The cases
involving a certain situation are collected ami compared [435] as tú facts
and decisions, and by timidly progressing generalization, in the course
of time, rules are reached or something similar tú rules. Afrer seven
hundred years, a considerable stock of true rules has been accumulared,
although prudence is never forgotten. Wben thc members of an inter
national comminee repon how sorne problem is treated in rhcir respective
countries, a British jurist may state that there is no law on this quesrion,
since it has not been decided in coun. Wben, on urgent demand by
German and French professors, Jedes publishcd a svstemaric Digest of
English law, sorne of bis colleagues seemed apprehensive. It is a cornfon
now tú exciude any doubt thar the use of this book is legitimare, since
ihe last edition has been edited bv Professor lfl)ifte/d.
In theoredcal language, Mr. Jus/ice Holmes has formulated correspond
inglv the essence of judge-made American law, in bis famous deEnition
of bw as a prediction of what judges ;viil actually do.
No civilian will ever agree with this definition. Law for a Continental
hwver exists irrespective of judges, whether its source mav be construed
as divine or man-made, and be oid custom, judicial decision, orparliamen
tary enactment. The lai’ is not identicai with the corle, but it is in being
before a lawsuit is brought, and the judgrnent wiill stare whether or not
the right sued upon exisrs—not whether the courr makes tbis right. It is
the oidest and a permanent idea: the judge “finds” the iaw, and does not
make it. The laws, the rights, the duties are tbe order and guides of the
popuhtion; thev ought tú be known to evervone, and at least be ascertain
able to counsel giving advice to the pubhc.
TNs divergence wouid be formidable, indeed, if Ho/mes’ dicrum were
the expression of a dogma, as it is rahen so often—and nor only a paradox
of a skeptic, or if a civil law judge were tú read every decision in the
statute, as sorne peopie believe.
Equiy
The rigidiry of the law obtaining in the law couns necessitated the
deveioprnent of equitable remedies in the Cbancellor’s courr. A new
branch of law developed in the new jurisdiction, a duallsm comparable
ro the competition of legal principies which the Roman pretor gradua]ly
¡3 Laus of ll”es/crn Cn’i /s2a/ioi 317
estabhshed at the side of tbe oid ms dei/e, or tú the practice by which the
royal officers in the Frankish Kingdom corrected the ancient customary
iaw. But [436] English equity in dic cuurse of time became a second set
of formal rules.
Equity in civil laws, including LouisiLna’s as in dic Corpus Juris, is
nor a branch of iaw but an inherecu element of legal thoughr, present in
the great majority of legislative solutions and judicial decisions. fleqmim
e/jiislitm, iaw and equity, isa compound expressing ene thing, not two.
Only in a part of dic system,jns sicianin, rigid lat’, unmitigated formal
law prevails: The text of a negotiable instrument musr hold firm for thc
benefit of innocent holders; formaliries of marriage or wills must be
obsen’edaithough even in this maner Luropean courts have tended tu
leniency; dic rules on laúd register entries must he complied with to the
letrer.
Formalisn’., or more policely expreseed, a literal approach tú starutes
and conrracts has maintained a much broader sphere in English courts,
ar law as weli as ja equity. Rs remova] is slow. Very recentiy it has been
conceived that a legacy of “my monev” may be construed as meaning:
my money and mv securiries°. Of a case wherc dic Jligh Court and rhe
Coun of Appeal heid ro the conrrary, 1 privarelv know thar the narrow
interpretation manifestly violated dic intenrion of rhe testarrix.
O/Lcr Genera/ Conh’asts
Among dic peculiar rules of statutory construction traditionai in
English law, it has been emphasizcd that an imbiguous srarurory rext
must be stricdy construed under Engiish rules and nor elucidated with
dic help of drafts, governmentai papers, or parlimientarv debates. Con
dnental courts do just this, somedmes digging deep into yeliowed
archives.
Others have contrasred dic utilitarian or pragmatic philosophv favored
bv English lawvers with the multitude of philosophical systems ro which
French, German, or Ralian writers have adhered.
_\ group of tvpicai divergences conectas dic fundamentals of govern
ment. Latin American schoiars, for instance, seem grcady interested in
dic American “rule of law,” aurhorizing judicial control of constirutiona
21, l. Civil Code of 1870.
Pa/o;:, A ]‘cxrl,ook of Jurisprudence (Oxford, 1946), 189.
O
Perna y. Morga;; 11943] A. C. 399, 410 1-1. L.
Arr.
318 13. Pririle La,,: of Iíe:lern Chihza/iw,
lity of enactrnents and the administrative tribunais of ihe French type
mentioned earlier.
Sperific Dffircnces
A few examples nmy substitute for the mass of big and sim11 differences
of institutiuns, rules, aud conceptions. The excellent land regiswr books
of Central Europe have no parallel in England and the ;Unericas. The
Anglo—American trust is a subject of high interest for Continental lawvers
who Lee! increasingly the need for this greatest of al! individual common
kw achievemenis. lo more or less extensive scope, an increasing number
of American states have adopted this institution, with Panama as path—
finder, thanks ro Rirardo A/faro, and Louisiana as possessing the most
complete statute7.
Civil law, as is xvell known in Louisiana, does not recognize the parti
cular distincrion between reahy and personafty, nor the necessary transfer
of an inheritance toan executor or administrator, the “personal represen
tative” of a deceased.
Where the common law has not been reformed by statute, it is inclined,
more than the civil laws, ro lag behind the developments, and this is its
greatest disadvantage in our fact living time. Antiquity appears in the
law of “bastards,” Wc “local acdons,” a theory thai corporations “exist’’
onlv in the state of rheir incorporation, a proccdure relying on Wc hazard
of persona! service of process; here, the theory of consideradon and that
of u//fi vires sdll survive in shattered ruins—while behind Wc façade a!l
these doctrines are ripe for demolition in Wc jurisdicrions that have not
ya discarded them col irclv.
The sins of Wc civil Iaws are different but bx- no means less regrerrable.
Instabiity of political and legal orders have produced an overwhelming
sense of insecurity. Although European judges have been good and in
many cases excellent, the wisdom that common law seems ro have infused
mro judicial rulings is not common!y paralleled. Bur the main trouNe is
caused, in striking contrast ro the German Civil Code, by hasry, confused,
superficial, and contradictory legislarion.
II. l’he J?approchcmcnt
Must ;ve take this suggested antirhesis as endrely true? as fully effecdvc
sdfl at present? and as significant with respectto Wc United Srares? [438j
rl/faro, Adaptacióa del trust del derecho anglo-sajón al derecho civil,
Ricardo J.
in Cursos Monográficos, cired supra note 1, at 63 u seq.
13. Pr/raje Lan: of He:Icra C½iJiz,Iion 319
Umvri//en Lan’ ant,’ (odiftcation
Ja Wc United States, a countrv of “unwritten law”, diere existed la
1947 “274 bulkv volumes aggregadng 267,777 pages” of sratutes, sup
plemented by 56,701 pages of sratutes enacted in nvo years, 1946—1 947,
according to Dean, now Chicf Justice, TZanderbi/18. Of course, Wc yearly
publicaüon of 500 volumes of court reports competes with the statutes
for producuon records.
\Vhile organizational and aL’ninistrative legislation absorbs the grcatest
parz, as itt all aher modcm countries, private law has been advanced by
American state siatutes in many fields, domesnc relarions and ron
liabilities being merely examples. Even in England Wc Law Reform
Committee of the Lord Chancellor has sponsored drafts to abolish the
Statute of Frauds, ant! the fellow servanr doctrine, ni change the doctrines
of contriburory negligence and of consideration; and Wc statute book
has incorporated acts on !egidmarion and adoption, divorce, fami!y
provision in wills, the Law Reform Acrs on married women and tort
feasors, 1935; frustrated contracts, 1943, contributing negiigence, 1945;
and personal injuries, 1948. One may cay, every one of these acts is a
srep in the direction of Wc civi! kw.
In Wc contemporary ocean of statutes much confusion and deficicncy
are due ro Wc pressure of wars and crises. Ya this alone does am explain
Wc shoncomings of manv legisladve products. It ought to be perceived
that law making is a difflcult arr and that, although nor requiring a
genius, ir must be learned.
With our abundance of writren !aw, enactments, ordinances, and regu
larions, whar becomes of Wc common la’ disrincdons benveen statutcs
declaratoryofthe common law and derogatory starures and the subordina
don of enactments ro decisions?
The answer !ies in Wc indifference shown by Wc American courrs. Thc
British Sales of Goods Act is known as a tvpical “codifying” statute,
merely laying down Wc common law and giving it a firmer exprcssion,
but not touching jis great body. Reading American decisions, you may
find somerimes the statute ignored, pardcularly where it affords an idea
tical solution, bur never expressly set asidc5 and, when appropriately
pleaded, used as the main directive, though nor as Wc only one.
See 3/con, The Cook Lectures: Meo and 1’.[e-asures in tite Law — Arthur 1
1 anderhi/t (1949) 24 N. Y. U. L. 11ev. 22.
Bacilo, A Short \Vny with Statutes (1942) 56 1 larv. L. Rey. 388, 395.
320 13. Prir.ift Laai nf Iflsftni CiiiIkali,w
The attitude of the courts toward ±e Uniforrn Sales Aa is [439] not
in the least different from the methods of a Swiss oc Swedish court. The
new dmft of a Commercial Code artemprs to accumulate a great mass of
specic solutions and to ensure che primacy of written law in this area.
If monumental American codes were openl to declare their rank
superior co judicial decisions’°, sratutory drafting should nal1v free
itselffrom dic complicared, clumsilv cautious style intended to overcome
judicial hostility to statute bw.
The English rules of statutory interpretation llave been thoughcfully
criticized by leading American authors as artificial canons and limitations1’
and as a stultifying technique disguising racional aud useful judicial
activicy’2. They enjoy so little popularity in chis country that their dis—
integral u oc has been recently demonstrated
There is no difference, again, in dic applicacion of American interstate
conmierce legislauon on carriage or in dic construction of insurance
statutes, and dic corresponding European practices. It should be clear
by now that dio true intention of a law or of a contraer may be discovered
withouc any presumpcions fixed by a national law.
The case for true codificadon not of the judicial cases but of be
American law has been convincingly made’1
Aftcr resolutely abandoning the circuitous style and the massed cases
of traditiona] Anglo-American statutes, whnt type will fucure American
codification prefer? It is not exact that be present statutes leave more
discretion to be courts than European codes ‘. \Vehave noted tbe opposi
Suc Pmuil, Cosamos J.aw and Legis]:iiion (1908) 211 Iarv. L. Rey. 383, 385.
Fnnk[,rkr, Sorne Redect!ons on che Rcuding of Staruces (¡947), 47 Col. L. Rey.
527, 541.
2 Rafia, Statu:orv tí:terprerarioa (1930), 43 1 ¡are. L. Rey. 863, 885.
1:1
frhracL-, Che Disintegration of Srarurory Construction (1950), 24 md. L. 3.335
l’nicma, lite jurisprudence of Codification, ja Darid Dudity Tirid 251—264.
Tite creative uurk of che Fresch asd German courls has hee:s naeationed carlier.
Por new Su ss achievements see, Lot instance, Ca/ii in (1918) 84 Zeitschrifr des Ber
nisr]aen juristenvereins 524cr seq., note to Federal Tribunal, 730ff. Col!. II 140: che
federal tribunal coritinues its vork of extending the scupe of the action agaiast the
uilegitimate father for recognidon of legirirna:e status un che expense of the ordinara
paternitv acrion for alirnony. Identical statulory texts are construcd tu opposire
effect in France and Belgiurn, Germany and Svitzerland.
Ernst llnijj, Chief 3 tisrice ja che British Zone un Germanv, in as acocle, ,,Freiheir
ond Gebundenheir des englischeii Richters’’, in Festschrift fúr fil/rin, Knssdbacii
(Hamburg, 1947), 280, recornmends, onder che preseor ideologica[ Ijartles, char che
discrctinn of German cour(s should be rescrictcd according co che Engltsh experiences.
73. PrñaÑ Li,:,, nf Iflthn, Li,ilkalion 321
don between German [440] massive writccr, rules and Swiss looseness
of principies. The first mechod is exaggerated. The second, after almost
four decades, has left gaps stlll unfilied by an excellent judiciarv’6. Much
legal progress is likewise due to be courts of both bese countries.
Hence, be fleld is opon for reciprocal informacion and a unired effon ro
itnprove legis]ative technique.
Si :r t/S/
The inuch advertised difference in Use force of precedent has heen
greatly reduced. The English professor, C)rndí,a,i, has recognized in de
LTnited States a system so much looser and Ercer chan tIte British that lic
assunies che existence of ibree modes of cvaluating previous decisions, a
Bricish, an American, and a civilian. The Supreme Court of che United
States and be highest state courts liave cotiquered freedom in overruling
themselves. ‘l’he special situation of tHs country is comrnonly explained
by be existence of many courts, largo and rapid economic development
nnd the dedication of be federal judiciary to consdtutionai adjustment
rather fian to imrnutable standards 17
But what is be practica1 difference between the American method and
be French or Gorman? Anglo-American writers are greatly impressed
with be assertion sometimos occurring in France bat a single judicial
decision is immaterial, whlle a lino of equally construed judgments, a
jurzsptwdsw:e constan/e, “has a conclusive force of persuasion” The
Louisiana Supremo Court has borrowed bis principIe bat “more than
one decision is necessarv” for forming a jurisprudence, apparendv,
however, for the purpose of a doctrine of sk,re ¿crisis, adopted from com
‘
See, for instasce, Cutí, 53 Zeitschrifr des Bcrnischca juristenvereins (1947), 490;
the code has incroduced bur sor irpierncnred tite rigisc in che staface, and tIte courts
nave flor beco able ro 611 this psp.
17
Cren/bar?, Precedenr jo 1*nglish, American and Conrinental Law (1934) 50
L. Q. R. 40. Oía lic An:erieaa practice, see Lirrrll)w, l’,iindizienrecht und Rerht
sprecliung in Amerhsa (1933); J&//ii, Cuse Law sud Suite l)ecisis (1933) 33 Col. L.
Rey. 199. Os tEa constiturional aspee:, ihe anides hy km! S:arc Decisis and Con
stirutional Law (1938) 35 ¡‘a. Bar. Asia. Q. 131; Den1c,s, Stare Decisis (1919) 49
Col. L. It ev. 735. ( ):a Pi: cto Rin,, see ko:hvgncz J?,mas, 1 nterac: ion of Civil Law and
Anglo—:\ mene:’ n 1 .aw in che l.eaal Me? hod in Puerto Rico, III, Srare Indecisis?
(1949) 23 lu]:,ne i.. 11ev. 345.
líos formu lacios hy Lamh:ri md II assrmao, fice Case Me: liod jo Canada (1930)
39 Vale L. J. 1, 15, has haca relied upon by Cnor/hc,t md rnany oriser writers.
2? ¡5 nOei ,Aii fstitzc 111
322 13. J’rha/e Laus ef W’esiern Dviliza//oit
mon law ‘. But the whole idea reflecis a misunderstanding. French judges
irnow as weiI as those in dic catire civil law [441] sphere thai dccisions
are never a source of law, hut only may help customary iaw to crystallize,
asid that their own Lotee remains solcly in their “merite intrinsúque,”
not lii ilicir form—”rationis imperio, non ratione imperii,” as Cétu has
expressed it2’. Une decision rnav be discarded, iftentariveorill considered,
but othenvise it mav exercise exactly as much persuasive power as a
string of judgments21. Persuasion, moreover, is reinforced by the desire
to preserve judicial prestige and a stable system. The authority so cartied
is entirely comparable to the remaining force of fiare decisis in dic Laited
States. There is more to the comparison. A decision by the supreme court
of the country has the practical effecr that a lower coun in cases open to
appeai does not like to risk reversal bv deviating; sornerúnes, a wanton re
bellion ma’.’ result la a black mark ja the personal record of a censured
judge. Judges are traditioaallv unremovable but their promorion to higher
positions dcpends on various circumstances.A good craftsman tries to
make bis decision appealproof. Asid if lower courts la the United Siates
are bound to the precedents of their highest instance, it may be noted
that in Germany, the Supreme Coun has established the rule thai any
counsel, attorney or notary, disregarding a decision published in the
quasi-official reports of that court makes himseif hable to his clients for
the consequcnces22. Une has io look with a magnifying glass at the real
differences ja the American and German practice, in order to continue
this opposition of principies.
In England, it is true, for a free construction of what the law is, created
by statutes and decisions, to use thc words of one English author, the
judges would have to admir that social needs must be fulfihled by
new interpretadon. He seemed to believe that just this was in the mak
ing23. Scottish lawyers certainly feei binding precedent which “crept ja
unobserved some one hundred fifty years ago” as a “superstitious fetish
of ancestor worship” and want an end to jis “suffocating grip” 1.
“ Alar/la,]., jo Smith y. Smi/Ji,
13. La. 441 (183’)); Lagran,ge y. barre, ti Rob. 302,
310 (La. 1845). Cf, Note (1933) 7 fulanc L. Rey. 100.
20
C!uy, Méihode d’interpréiatiou ce sources ca &oit privé poslilí (1919), 407.
Goldschmil/, Ltiglish Law ítem tIte Foreigo Stardpoim 39; Cití/criclge, Cern
pararive Law (1946), 90.
Rcichsgerichr, j. W. 1937, 1633, No. 4 (March 2, 1937).
flor/lcr, La théorie des sourccs, in Erudes en l’honncur de Gény it 27.
‘
Lord Cooper, Lord Josrice General and Lord President of the Coert of Scssions,
in his irnportant addrcss, citcd supra note 1, at 472, 473.
13. Pr/ra/e Laus of Iresiern Civifization 323
Theorj
No writer ja this country would repeat the dictum 1 believe 1 read in
a paper of Sir Frede,’ick Po//ock: Thank God, we have [442j no legal
theory in England—this is berter than having wrong theories as on dic
Continent. 1 do not think that diere is no theorv in England and 1 doubt
strongly that thereis no wrong theory. English judges like all good judges
do not like so consider a problem ar the bar in terms of large implications.
It is the character of the literature during manv centuries xvhich failed to
organize critical and svstemadc spirit. ¡Uso in the receni past there viere
not enough Frede,’ick Fo//ocks. The American scene, again, is quite differcnt.
It is true that the really fundamental conrrast of mentality and meihod
persists, pardcularlv in rhe ways of the judges, and is strongly sensed bv
the couns working wirh such mixed systems as those of Louisiana,
Scodand, and Quebec. Bur dic learaed literature of the ‘.;‘cstern world, in
a process of mutual inicraction, clearlv inoves toward an eventual
assirnilation of purposes asid means of cgal rhought. Already, the con
troversial problems, similar throughout our countries, are debated nor
so much between the nations as between the views recurring within every
individual country. No one should fear, howevcr, the coming of an era
of international monotony. Fortunateiy, nationai virtues of theorerical
appercep ion and creation Wili aiways be magnificeady different.
Basic Concepís
Many rules of English coinage have been produced by scholastic
method from ihe fourtcenth it dic seveateenth century asid have been
petrified. Such a rule ‘.vas once dic naive expression of a seemingly
obvious observation, then began so unfold jis indepeadcnt hfe aad now
lasts apparendy forever as dead but cumbersome dogma. This has hap—
pened in Rome, in the Mohammedan legal theory, and this is also dic
explanation of, lcr us cite as an instance, be doctrine of concributory
negligence.
Corporal injury to a person crcates hability. Bur: Quod quisque ex
culpa damnum sendt non intellegirur damnurn sendre2i. Liability
does not exist, when be injured person contributed so the harm. Thc
ron rule is not designed for such a case. This Was also the Eaglish idea
at one period. But while probably she Romans and cenaini>- later Rom
Pornponius, 0. 50.17.203, originally speaking of legacies, Letal, l’alingcncsia,
Pomp. 260.
21
324 1 Y. Priva/e Laos of Rs/era Clviliza/ion
anistic laws progressed to the consideration that both parties may be
imprudent and it is just that they shouid divide the damage in sorne [443]
proportion, the Engiish rule froze prematureiy, resting on the alternative
of burdening either the plaintifí or the defendant. (Jo the transition to the
modem epoque, where such accidents became £requent, other considera
tions may have upheid the oid principie.) This phenomenon is typicai for
many others in the history of legal dogma; it is only more habitual in
co;nrnon law, that professionai product of long standing.
Anotbcr exarnple. The Roman doctrine in the first century A. D. con
templated the case where A promises it B an individual siave, Sdchus,
not knowing that Stichus had just died, and conciuded ¡mpossihi/ium nu/la
oh/igatio; n obligadon for an irnpossihle feat, whenever the object of
the contract clid not exist at dic time of contracting. The sanie rule appears
in the Sales Acts2° and in dic German Civil Code of 1896, Section 306.
Nox’, the coniract may righdy be deemed ro be without content (liad/lis)
and tbe promisor be Cree because of bis excusable error, or the transacdon
may be fraudulent (selhng the Brooklyn bridge), or just stupid (selling a
magic drink). But in many cases the seUer must be made hable for damages
instead of getting rid of de contractas void.
Thus, an awkward or wrong generalization devised by primitive legal
art is dragged along untii it acquires the dignity of uncontrovertibie truth.
This is the greatest disadvantage ofacontinuous iegalprofession. Progress
sweeping away such remnanis, also ehminates the most unpleasant
difíerences of legal doctrine.
Even doctrines deepiy rooted in the judicial machinery must not be
fatahstically continued. At any rate, tbe tradidonal contrasts of systems
must not be overrated. Consider the following example.
The seller of a horse, instead of delivering it, retains it in his own
stabie. The buyer wants to suc for delivery. Tic is aliowed to in civii law.
The court vi1l adjudge his claim, based on the obligation of the selier to
dehver; the judgrnent commands the seiier he must deliver. Under
Anglo-American law, in an action at law, no such ciaim is recognized.
Breach of contract leads only to an action for darnages. Classical Roman
procedure was similar. The hisrnrical reasons for both principies of
“money estimadon” have presurnably also been the same: origin
from ancient penal action, simpllcfty of enforcemeni of [444] money
claims, and otbers. Acknowledging this difference, is it corred to pro
° British Sale of Gouds Act (1893), 6; American Uniform Sales Act, (7, 1
U.L.A. 4 (1950).
13. Prhu/e Laos of IRs/ern Griliza/ion 325
claim, with eminent authors, that breach of contract at cornmon law is
identical with tort, or, less sweepingly, that at common iaw there is no
obligation for the debtoc to perform, as at civil law—that is, it give oc
do or omit something- -but only it pay clamages for nonperformance, for
not giving, et cetera?
What a historian should answer to these bizane constructions, has
been said by the late Professor Buckkmd27, but has apparently not inter
ested the routine writers. If a seher promises a horse and retains owner
ship and possession of it, and ifthe horse perishes by accident, the obliga
tion of the seller is admittediy extinguished. This means, he owed the
horse, not money. In Rome the classical forrnuia of action for a promisee
on the ground of a stipuiation or a sales contract expressly made the
existence of the obligation to perform specifically, the darefacere praestare
apodere, the condition for awarding the interest in money. This is also
the cornmon law, whose wonderland xve should not exaggente.
J-Jow the two systems work in practice is no iess instructive. Common
law courts are not permirted to grant specific performance in an action
at law. But equity does accord it, hesitandy in England, more freeiy in
the United States. A Continental buyer may suc for delivery of ten tons
of steel, but normally—that is, if there is no shortage in steel—willl be
satisfied with damages in money. A need for specific performance in
business is an excepdon, and where such oecd is proved, an American
and a German court vill recognize it practicafly to the same effect,
though in different procedures.
Observant Louisiana professors have declared that Rornanistic training
has achieved a much superior supply of technical tools and a revolution
of concepts is needed in Anglo-American 1aw25. While this is undeniabie
respecting many basic concepts of general nature and their systernatic
organization, common law has produced a weahh of commercial, man
time, and specialized notions of inspiring force. By a give and take
method, again, prejudices are elirninated, concepts remodeled and a
coherent legal system established. [445]
Contrasts hetiveca Legal Sjrtcms
It should finally be borne in mmd that all the significant contrasts are
by no means it be found in be opposidon of Anglo-American and Con
Bock/ami, The Nature of Contractual Obligation (1947) 8 Cambridge L. 1. 247.
Franklin, The ¡ listoric Function of ‘he American Law Institute (1934) 47 1 Jarv.
L. Rey. 1367, 1391 ; Aforro,;, Aa Approach so dic Revision of dic Louisiana Civil
Cnde (195D) Louisinna Law Review 59, 63, (1949) 23 Tulane Law Revicw 478.
 ‘y
326 /3. Priva/e Laus of lEes/era ci:’) lIza/id:
tinental laws. The statutes of the American states and the highly differen
tiated statutes of the European Continent and Latin America embody
rules of every kind. To recail just a few notable marters, common law has
accepted a \Vest-European doctrine thai ownership may he transferred
by conscnt, forming a group (in which Louisiana especiallytccentuates
tlw transfer of immovables by conscnt), whilc rhe Central-European
countries, Argentina, and others require delivery of movables for dic
passing of the dde. Likewise, dic Enghsh Statute of Frauds wirh its
American following stands with the French group againsi Gernian asid
Scandinavian formlessness of obligatory contracts. But common law
and dic German-Scandinavian group recognize rescission of contracts
by formless declaradon, dispensingwith those constitutive court decisions
such as dic French group prescribes with judicial power to grant dic
debtor days of wrace, or, as ja Louisiana, without such facultv,
Recognition of illegitimate children bv dic father is a requirement for
their legitimadon and for ccrtain, or iii, alimonv suits in some American
states, following the French model, while others base diese childrens’
position with the Gcrmanic systems, on dic hlood relationship.
Dowrv, once a universal insdtution, persists in mosi codes, btir in
Louisiana and ocher jurisdictions rather on the paper only, and has been
omined in the Code of Peru, although the French draft proposes an
extensive regulation.
The common law doctrine of consideranon as a general requiremeni
of contracts is reduced in progressive statutcs such as in New York and
the English Reform proposal29. The requirement of a “cause” of obliga
tion in the French law, so influential on innumerable codes, has been
maintained in the French Reform work for the exclusive reason that it
has becorne a “classical theory” of French 1aw30. The Louisiana Supreme
Court, it is true, [4461 has proclaimed bozh requishes, cause and con
sideration’. Wc can do without both of them.
Absolute liberty of testators, a dogma of the common law, forced heir
‘ Report of dic Law Revisioo Committce upon che Doctrine of Considcracion
(1037). Cf. cLeshjre asid Fifoo/, The Law of Contract (1045), 60 cc scq. New York:
see rhe New York statuces [isced by Llrfj’d, Consideration and che Seal in New York
(1946)46 Col. L. Rey. 1, at 16, n. 73; and id. st 10 on che hill of 1037 abolishing che
doctrine of consideracion but vetoed by Governor LeLman. Cf. che arrides collccrcd
in (1941) 41 Col, F,, ¡kv, 777 876,
Commission de Rúforme du Code Civil, 2 Travcaus 196, 197.
al See
£wllñssrr, Cause and Consideration (1934) 8 Tulane L. Rey. 178.
/3. Priva/e Laus of IIT’es/enl Otifization 327
ship, or other forms of restrictions on wills are no longer characteristic
of any family of legal systems.
Cwiclnsion
Thus, it may be understood that, as 1 have always maintained, common
mw and civil law are not compact masses of opposite insritutions. After
appropriate initiation, a scholar may carry on comparadve research on
ah eminent members of dic \Vestern legal family with not more strain—
though more industry—than when he compares closely related systems
and with infinite!y more reward in stimulating rcsults. Certainly, com
paradve common 1aw52, oc comparison of Louisiana, French, Italian,
and Spanish laws, is a highly desirable class lecture. Nevenhelcss, the
former advocates of such restcictions as rnethodically imperative, may
have learned their lesson by now. The literature begins to seek the true
contrast berween conmon and civil laws less in the antiquated historic
stmaurcs dan in various characterisdcs of dic judicial organization, usd1-
tional concepts, habits of legislators and lawvers, and methods of fact
finding and enforcement33. 1 think, whercver we look, ve shall easily
find innumerable large and small divergencics, yet none excluding fruitful
crirical analysis, and, 1 dare sav, none incapable of reconciliation, as
disdnguished from unification.
114 The Progress of Priva/e Lan’
The subject rnatter of law-making has become increasingly similar. The
results in deciding doubtful conflicts of interests have been strikingly
analogous in dic majority of cases. And the merhods of reaching these
resuhs begin rn resemble each other. [447]
“ Gracejan, TEse Fronriers nf
Common Law (London, 1949) Cerrenc Legal Problems
1948, 30—46.
This cread is visible in che mosc rccent writings, publislied at’ccr chese lencires
vere huid, hy Servil, Book Review (1950) 24 Tuiane L. Res’. 263, and David, op.
dic. supra note 1. Srrod approves che conclusion by Eder, supra note 1, char common
law is superior in asecrcaining facrs and mcans of cnforcing courc orders, buc ascrihuces
toche common mw “much more kw” char. facts aud states char co tcuch judicial discre
non is more favored incivil law (as also observud ahoye note 15, supra), Da:ki nores
a series of differences, and especial lv rhat French 1 awyers loo k co che law, che Fngl is Ii
to dccisions, and thac in Eng]and tradition is scconger sItio che spirir of dic legal
system.
 y
328 13. Peña/e Laus ej Il7es?en, Chiliza/ion
That dic discoveries ancl inventions of the technological era and the
social effects of industrialization have produced similar problems in the
various countries and lcd to a pardal unificadon in restricted modern
fields, such as communications, transportation, and industrial property,
has enlarged the area of universal legal thinking accustomed to the kw
merchant. The cerner of isolationism is the private law in the narrowest
sense, inclucling dic la’v of family relations, successions, and, surpris—
ingly, contracts and torts. To diese we had to call primary attention in
the resurgence of international studies. The sciendfic investigations are
still inchoate, but of Wc highest importance. I-Iowever, by a remarkable
fact to be observed in dic recent legislation, even before a comparative
research has reached its fully productive srage, dic codes of civil law and
American statutes show a very great similarity in dieir choice of subject
matters, and certain common features in dic solutions. Case law may
easily be included in this picture. On one hand, wc encounter the oH fami
liar topics in ever renewed discussion, with mere variants in the search for a
fair or logically preferable rule. There is an almost constant stock of
ancient human achievements which we cannot afford to miss, such as
monogamous marriage, common life of spouses and parents and children,
inheritance by desccndants, binding force of the usual contracts, liability
for ccrtain torts. Modern development, of course, has enriched this
inventory and shifted emphasis on various points. Qn the other hand, in
advanced society, with a growing mass of varied interests, equalization
and standardizadon as well as differendation occur without much reference
to national particularities. Since the German Civil Code vas prepared,
dic old habit of legislators, of borrowing rules and insdtutions, has been
revived at dic occasion of every new code. American courts do likewise
among themselves and the English leading authors assert that, for the
sake of a cornmon common law with the United States, “English courts
always aim as far as possible at secufing uniformity in regard to dic law
of contract benveen the two countries”34, and “that a rule of general
kw which has been laid down, or approved, to substandally the same
effect, in dic House of Lords and in the Supreme Court of the United
States is the law of dic English speaking world wherever it has not been
excluded or varied by express legislation” [448] .
Courts throughout the world rnust learn to use foreign experiences.
The civil codes of the twentieth century, such as those of Switzerland,
‘ Lord ITT WghI of Duele3, Legal Essays and Addrcsscs (Cambridgc, 1939), 88.
Polloek, First Booic Qn Jurisprudeare (6 cd. 1937), 347.
13. Peña/e Laus of tfls/ern C’hlliza/io, 329
Mexico, ltaly, Grcece, Peru, Venezuela, and the Polish Code of Obliga
tions, follow a very similar pattern of arrangement, choice of topics and
basic posidon of dic problems. They agree on an immense number of
points, and they disagree in limited arcas, which tend to shrink.
AlI of them discuss dic same social prohlems respecting dic conditions
for marriage and for divorce, dic powers of the husbands, dic measure
of protection accorcled to illegitimate children, tutorship by public
agencies, individual and collective labor contracts, and so forth. The
technical problems coming up everywhere for legislative decision, as,
for instance, the binding force of offers, contracting by agents, liabiJity
of heirs for debts, are extremely numerous.
It seems to me a rnost remarkable result of any comparadve survey
that may be made in the central pans of modern private laws that if
recurring problems are differendy solved, dic area of difference is more
and more restricted. The doctrine of misuse of a right, confined in all
history to particular situations, was modelled into a general rule by the
German Civil Code, Section 226, which declares unlawful the exercise of
a right for dic exclusive purpose of damaging another person. But who
can prove that his neighbor has dug a water well exclusively in order to
dry up the plaintiff’s well? The French literature, however, went much
farther with a theory that no right should be used beyond the scope
within which it serves the intended social purposes. Sorne authors con
sidered a right enforceable only when the plaintiffproves that he sues for
a socially dcxirabia purpose. Then, the Swiss Civil Code, Article 2, stated
diat “The manifest misuse of a right finds no protection in dic law.” This
could mean anydiing, but the Swiss courts have interpretcd the provision
with the most sensible restraint. Like the French courts they act in extreme
cases, such as when a strike or lockout are conducted with dic purpose
of ruining te other party. The Italian codifiers have cxpressly refused
the general rules as mo much extending judical powers. This is the present
alternative for legislators.
Acquisition of ownership by a purchaser in good faith was energetically
opposed in comrnon law. The prescnt laws show a great variety of views.
But the most recent codifications tend either to reduce the preference for
te legitimate owner to goods stolen frorn hirn and assimilated losses,
or to grant good dtle to [449] any innocent acquirer of posscssion for
value. TheAmerican drafr of a Commercial Code acccpts the laner solution.
Great controversies have raged around the marital property systems.
Historic merger of personalities of husband and wife during coverture
330 13. Privase La»’: of U’eisens Cir’ilizatkii
on one hand, with the effect of gradually limited prevalence of the hus
band, was opposed by the feminist propaganda for radical separation of
property, victorinus in most states of the United States. But the systems
of cornmunity property on one hand, and administration of the wife’s
not-reserved property by the husband with a half-share for the wife in
the surpius—de Swiss solution—have obtained such a respected place that
the new Venezuelan Code (Article 148 and following) contains a very
detailed regulation of community of acquets and profits, retained as a
maner of course in the Italian Code and the French draft. Louisiana will
certainly remain in the same camp, although recent privileges of the
wife seem not ro fit into a balanced system. The Swiss consideration that
their middle class handicraft and tradesmen needed the capital contribu
tion usually brought by brides illustrates at the same time the pan to
be reserved to the local social requirements.
We are able, indeed, to write a table of the usual legislative problems
and to categorize their usual solutions. Social organizations and moral
convictions have become amazingly similar. Legal technique has still ro
be freed from local ineptitudes.
Such a study of the recent legislative movements, even a swnmary
survey, would be greatly helpful for the drafring of a new Civil Code in
Louisiana. lis Iegislators cannot wait until coniparative research will
have accomplished its huge program. But they, more than any other
draftsmen, will be forced and eager to adjust the iaw of Louisiana to the
needs of our time, mirrored in the common aspects, of the Western laws.
Pan y. fle Law in the World
The iso/ation of Staie Lav’s
Law is order; Law means peace and seeks peace with justice. As human
organizations develop, human activities grow in number and kind, and
relationships become complicated—the task of law raises myriads of
exigencies. Throughhundreds andthousands of years, ancientand modern
thinkers on state and society, and many generations of professional men,
devoted to formulating, applying, and teaching the rules of law, have
accumulated an [450] enormous weafth of knowledge, speculative
theory, and technical art.
¡ 13. Privase Lan of ¡Vanen, Civiizatirni 331
Lay and iawyers, however, are integrated with the life, history, and
culture of a sociopolitical unit—of the oid Egyptians, of the Chatcha
Indians, of Bolivia. Cenain units may embrace empires where one lay
is influential on the others, such as in ihe Roman, the Roman-German,
and the British Empires. At the end of the eighteenth century, when the
codes viere formed of which the Civil Code of Louisiana is a descendant,
the great enlightenment of the natural lay united the nations in a deep
conviction. Under its strong impulse, the laws of the sovereign states
viere thought ro be imperfect efforts to approach the constant, ideal,
divine lay; and the Constitution of the United States, with the Bill of
Rights, has remained a permanent monument to a related and profound
idea: that principies and rights are stabilized by a higher order that
cannot be affected by the ordinary processes of state legislatures or
federal enactments.
But where no supreme law or constitutional restriction imposes excep
tions, every tribe, people or state has its own law, native or borrowed.
Thus, the Greeks, who were not a nation but a plurality of cines, po/cis,
had distinguishable laws in every one of thern. When a citizen from
Thebes carne to Athens, he ;vas not a participant in the Athenian law,
\vhich meant that any Athenian was entinled to seize him as a slave—unless
the stranger xvas protected by a host or proxenos. Later a treaty between
the two city-states proclaimed that he should be free of seizure, ásfios
csto—the right of asylum. The Grceks were a freepeople, they founded the
idea of democracy, but for them as weU as for the Romans, apo/is as a maner
of course consisted only of the citizens; in the people’s meetings, the
citizens voted laws for citizens only. A foreigner had no right, no lay.
Only by concessions and flnally by the great principle of the personal
law, he enjoyed treatment according Lo the iaw of his own city, the “origo”
of the Romans. Barbarians seize foreigners and kill them in honor of their
gods, or eat them without ceremony. It is a long way from there to the
Judgment (Series A, No. 7) of the World Court in 1926, stating that in
the community of nations any state is obilgated to grant any foreign
national due process of law and refrain from eonfiscation, even though
this state would not accord this minimum of rights to its own subjects.
However, a time carne afrer A/exandcr the Grca% when the Greek
dialects merged into a common Greek language and a [451] rudimentary
Hellenistic iaw couid be sensed. The Greek philosophers had not waited
so long to speak of law and judgcs, of Themis and Dike, dikastai and
kritai, in a general manner and no develop the eternal idea of justice.
332 13. Prhair Lvsz qf rnmr,, Ci,iIizuim,
Jn a comparable evolution, the present leading Luropean nations have
formed national units in states, each having its own law. This natural
and healthful developmcnt, however, suifered a distorred exaggeration just
when the industrial and technical age demanded a new regard for inter
nationa] nceds.
Ja the last hundred vears. the lawvers of ah countrics llave 5111 ¡a ainight
national compartmencs, alwavs breathing the same air ant] highlv afraid
of a draft from outside. English insularitv is the best known it has lasred
for more (han seven hundred years; it is monumental and proverbial.
When Lord ;l[ansfr/d, one of file exceprional figures in Fnglish legal
history, moR inspiration from Continental lirerarure and created modern
Anglo-American commercial iaw, Jmüns in bis famous lerters bitterlv
deplored ihe treason eomminecl by Lord iíansfte/d who had corrupted
file noble simplicity and free spirit of our Saxon laws hy importing into
the court over which he presided such elcments of pollution as the Roman
Code, file laws of nations and the opinions of foreign civilians. And an
English comparatist flnds the English lawyer still in fuIl agreement with
these feelings 1• However, the great majority of file Continental lawyers
from file eariy nineteenth century until the 1 920’s have by no rneans
excehled ¡a cosmopolitan broad-mindedness. On the contrary, lacldng
the wide horizon of the British oceangoing commerce, Frenchinen,
Germans, and the other Europeans have during a centurv achieved a
plurality of national laws, a conglomeration of secluded legal bodies,
hiving separately and increasingly estranged. Each ofthese legal organisms
tllinks of itself as “the law.” There is no “law,” but onlv laws in the
plural; consequenrh’, it has seemed natural that ihere is no lega[ science—
apan from a few international branches of law—in the sense of one
anthropologv, chemistry, or architecture.
This basic idea is intimately connected with history of modern states,
and wirh thc weighty theorv of wrritorialism, still much in vogue in
Anglo-American law, as well as with the theory of legal posirivism
which dominated the ninereenth century on the European continent. It
has remained an all pen’ading conception, formally supponed by the
prevalence of staturory legisbtion [452] by sovereign legislatures.
Louisiana statutes make law exclusively within Louisiana. Texas law is a
foreign law, and for manv purposes deemed to be a mere fact, not a law.
Even so, ignorance of foreign laws should not necessarilv follow—but it
CuiicriJy, Compararivc Law (1946), 24
13. Pri:1r Laisi of ¡flsiens O,i/kaifru, 333
(loes CJnro called foreign laws almost ,whcu/ons. \Ve lawvers are outstand—
¡ng exampies of conseiwatism. Wc are huta if we are asked to change a
• vord of our language; we are not enthusiastic about suggestions to
change a rule or a code.
Division is most stdldng on the liuropean cominear. France, Spain,
• Jrdv, Gernlany, Switzerland, and Greece llave achieved national codjfica
tions which unifv their fornier innumerable statutes and usages, but which
sea] heir coumrics offfrom cadi otlier. The effca of this, probablv inevir—
able, clisjunction has been constanllv increased bv acule nationalisric feel—
ings. And when the tweniieth cenrury accumulated the interferences by
states in dic relations of individuals, tite pcculiarity of every public policy
was so eagerly urged as to oppose an ever present obstacle to inter
national harmony of law.
In the United Srates thus far, methods and purpses of foreign ]aw
studies are just beginmng to become knnwn, although comparative
research should by no means be regarded as alien. The coexiswnce of the
several states and of file Federation, aH legislafing in sovereignty, has
resulted in a broad ancl extremely useful judicial and literary nafional
work. The Federal Constitution and the federal administration represent
a measure of unity. Technique and ideals of the common law sdll forni
fue strongest link of the iawyers. Tile law schools and the legal literature
overcome the diversitv of the state laws bv crystalhizing principIes of
American ]aw out of disparate rules, adjusting to ihe national pattern of
societv and econonuy. Restatemenis and uniform state laws purposefully,
though tardively and huesiiatinghv, approach fue siandardizarion of
American busir,ess and living habits. The trend has gone from unifica
don of nlentality ro unification of rules of law. At this monuent, a vohunli
nous and substantial draft of a conlmercial code opens a new vista.
Simultaneously, this country has reached a ¡a fue world which
disrinctly points to a funher eniargemenr of irs legal oufiook.
Among ahl states of the Union, Louisiana stands in a special situation.
Common law has made big inroads agiinst which a vigorous reacrion
has staned during the last two decades under dic leadership of the two
great law schoohs. A most excidng excilange of ideas is lfl fue maldng
which will find its dimaN when [453] dic prospective new civil code
is debated and the discussion will sdmulate interest throughout file
country.
\5ou uve in Baton Rouge, bur also in Louisiana, in the Unired Sares,
in the American Hemisphere. Wc do live in larger communities than
334 13. Pena/e Laus of ¡L’eslern C’hi/izaIion
states. For the first rime, it is imperative that we change our oudook from
provincialism ro larger horizons, ro embrace che world. Legal science,
indeed, should nor huye been so content with its depanmental successes.
Comparative research in foreign laws should not have been so slow and
so absurdlv neglectcd, especially in the common laxi’ jurisdictions of the
United States.
What are in the roughest outlines the international aspects of the
present organizacion of law?
In/ernahonal Pu/lic Lan’
The civilized staces of the earth form a communiiy of states governed
by the rules of customary internacional law—so far as they reach. These
rules for war and peace have emerged in rhe course of milleniums, produc
ing a growing body of rights and dudes of sovereign stares against one
anoder. Qn the fundamental thesis that agreements must be performed—
pacía suni servanda—treaties between two states, or multiple treaties, con
ventions, or unions have expanded to a considerable volume. Certainly,
the last two wars, pervading and devastating che globe, have shattered
in many honest minds che belief in any law of nations. Skeptics, by their
intellecrualism, and advocates of unlimired state sovereigntv, br their
nationalism, reinforce rina influence of rhe doubters; the dreamers and
utopians are even more harmfiil ro sober development.
International law is not Jess necessary when it is more frequenfly
violated. It needs only ro be better impregnated upon rhe consciousness
of the peoples. Wich al’ crises and reverses, ve are irresistiblv led ro a
supranacional order, which does nor mean a world govermment. There
vas a time when che families or claris foughc violendy for their independ
ence from king or smw. Managenwnt aral labor, in the United States,
seem united in rhe forceful refusal to submit to compulsory arbitration;
they want the right ro wage war. But since the United States has helped
create the Pan-American Union, the United Nations, rhe Atlantic Pact,
and accepted the compulsory jurisdiction of che International Court at
least in principie, thcre can be no doubt of [454] the final victory of law
over force—although wc have no illusions rhat its day can be reached easily
or quickly.
13. Priva/e Laus of res/cnt civiüaIja,, 335
Umftcation2
Pubiic international iaw is a true law in force among che staces, desen-
ing rhe qualification as international. We mar term likewise suprasialud
those legal rules char by agreement among states are identical. The
modern movement for internationallv uniform rules originated in the
latrer parc of the nineceenth cenrurr, as a reaccion against the exaggerated
segregarion and succeeded in maners of maricime law, cables, railway
carriage, coprrighc, negoriable instruments, radio, and air transpona
tion. Bm usually either the territorial scope does noc include ali states of
the earth, or ihe regulation comprehends merely segments of the macter.
For copyright two groups exisc: the convenuon of Bern and the Pan-
American Convention, which the UNESCO is anempting to merge. The
Geneva Conventiuns on bilis and notes and on checks of 1930, the C.I.F.
rules of the Internacional Law Associarion and an international draft for
sales of goods have not had, so far, a chance ro be accepced by Creat
Britain and the United Stares, although eminent “common lawyers”
participated in their elaboration.
The International Labor Office has worked with extraordinary zeal
and has offered numerous proposais for conventions, a part of which
has been carried over into important treacies on condirions of employ
ment; employmenc of women and children; industrial health, safar and
weffare; social insurance; and the protection of emigrants.
The slow sarisfaction of the undeniable need for unified law on certain
subjeccs is undersrandable. Nor onlv are judges and atcorneys very
reluctant to sacrifice deir familiar rules but also narional habics, pre
judices, and natural sentiments are hostile to alien suggestions; and
cornmon law mentality refuses ro yield quicklv ro Continental mechods.
In the United States, che Constitudon mahes it difficuft, though by no
means impossible, to adhere to international conventions on private law.
Occasionally, when a treaty such as the Brussels Convention on bilis of
Iading, sanctioning the “Flague Rules,” is stvled in American business
[455] language, resentment in France and Italy smoldets against chis
indigestible addition to Latin prose. This is a counterpart to that bitter
complaint ofJmuus.
‘‘Unificacion of Law,” by the International losriture for che Unificatinn of Privare
Law, French and Eoglish (Rome, 1948); Demogue, L’tznificatioo iotcrnaoonale du
droir privé (Paris, 1927); Schnitzer, De la diversité cc de l’unification du droir (Bale,
1946).
336 13. Priva/e Laos of Jfls/cr,, Chiü2aiio,,
The truth is thac most diplomatic conventions have been inadequateiy
prepared. \Ve cannol understand each oder, and still iess agree with
each other, if each partner insists on speaking bis particular mmd in bis
own idiom. The diplomats have not known and even few lawyers have
cleariy perceived what rhorough compacative work has ro be done
before convincing proposais can be submitced. While che laws un bilis and
notes thoroughly examined iii the iong preparation of uniHcacion, che
“1-lague Ruies” were worked ouc ¡o a narve ianguage by eminenc cxpercs
of maritime carriage, maritime insurance and finance, and vere such a
dehcate comprornise chat the state conference did not dare to discurb che
diction in a professional arrangemenl. Qn che ocher hand, che Continental
clrafts are usually inacceptable to Ainericans simply because of cheir
ccrniinologv. Tu breach che ¡solacionist wails, grear and worldwide
scientific cftort is required. The inuvement in che United Scaces dat has
engineered the unifving works of the Uniform Laws and ihe Restare
mellis, in the present epoch has ihe narurai iinpuise to enlarge unifica—
don bevond che gcographical frorniers .
Internatw;ret! Lifi
In conrrast ro international public iaw—fragmenrarv :md concested bur
nr least supranational—constitutional, private, criminal, procedural, and
administrative laws are eminendy national. Bm in our epoch we
have wicnessed a rapid1 and largelv expanding sphere of international
hfe of individuals and corporauons. Families are dispersed over the giobe.
Ernigration creates problems ofvarious kinds. Associations for religious,
educarionai, prufessional oc charitable purposes embrace many cuuntries,
xvirhout having an international status which the Jncernacionai La’
Associacion and the International Chamber of Commerce wirhour
success ciemanded ro acquire. Business corporations operare in foreign
countries. Loans are given co foreign governmencs, cides, and com
panies. Carriage bv rail, warer, aud air; selling and huving of goods;
insurance, biills of exchange, securicies and tinanciai lransaccions circle
the giobe.
IIow does our congeries of national iaws and sporadic uniforrn laws
cope with the problems of family relations and inheritance, [456j rnaking
and enforcing of contraccs, and all conflicts arising out of tbk mulcitude
)‘ilema,
Uniileaiion of Law la ihe Unitcd Siales, in ‘Unification of Law,” supra
note 2, at 301.
13. Priva/e Laos of ¡j:es/er,, üvd,za/ion 337
of acdvities and mass of business transactions? To my knowledge, this
crucial question has nor even beco raised in general form, so deepiy have
xve been entrenched in our own nadonai vailevs.
The answer is unfortunately obvious. Excepcions notwithstanding,
any misdeed, contract or reiationship crossing che srate borders is sorne
rhing extravagant, unfittecl for the scheme, atad nor ofren covered by one
easiiy ascerrainable and suitable law. Foreigners are no longer broiied on
a srake, but what the ancient principie of personal iaw guaranreed ro the
person, beyond rhe law of the forum, is now in doubc.
Aiow me ro point out fuur phases uf chis phenomenon: the legal
position of corporauons doing business in a foreign councry; che actual
system used by the merchancs in order tu tahe che iaw mro their own hands
che brandi of iaw called conflicrs law; and the probiem of international
tribunais.
Foreign roiporntions4. Ti an American-incorporated companv wants ro
seil machines in a Latin-American country, it has usually to file a petition
Lot a license ro do busbaess with the respective government, present a
number of documerns, pay certain raxes, promise ro observe cenain or
afi ]aws of that scare, and ro submir subsequendv current reports and
balance sheers. Manv of the dudes included are fair. The escablishment
of a foreigner cannot be privileged in matters of public rrustworchiness,
labor reguiations, workmen’s compensation, accounting and other mac
ters of administrative organization.
I{owever, many states grant permission to do business according tu
the pieasure of the government. Sorne try co control by rheir own laws
tite capital structure or voting method or rhe business done outside the
state and have strangeiy harsh rules against companies noc regisrered in
rhe counrrx’. (Mexico’s Suprerne Coun has denied the righr ro suc for
violadon of a trademark tu an American eompany though it had no
reason ro register rhere.) Vexatious bureaucradc procedures are added.
Of Panama, an excellent expert, Phanor Eder, has collecced a long lisr of
sins, including raxation policies deliberately intended ro ciose che country
tu capitai unless it submits to complete domination5. [437]
There have beco companies char ruchlessiv exploited their opportuni
ries in backward countries. There have aiso beco countries inviring
foreign capiral co come in and build up an induscry, and flnaily conflscac
‘2 Rabel, Coaflict of Laws (1947), 220 225.
Fr/vr, The udicial siatus of Non-Registered Foreign Corporacions in Panama
(1941) 15 Tulane L. lIcv. 521.
22 ltnbei, A, ísüt:e iii
338 13. Pr/la/e Laus of II es/cro Gvilia/io,,
ing the business. Against such unjust or unreasonable treatment of inves
tors the 1-Jabana Charter for an International Trade Organization of
March 24, 1948°, contains the general and vague promises that at present
can be reached in multilateral, international treaties.
1 had suggested that in international model statute should be drafred
to formulate more specific rules reconciling the legitimate interests of a
country admifflng foreigners to use frs resources and labor, and the well
understood interests of the companies bringing in the much needed
capital, managerial skill and technical talent. The Habana Charter has
since intervened, but it patently needs such an implementation.
Trae/e. It is a striking fact that international trade has established an
awe-inspiring network of standard forms regulating the points of charac
teristic interest7 for every considerable branch of trade, aceording to the
special kinds of merchandise and the typical habits of carriage or financing.
The facts of the transactions, the customary considerations of a seller or
buyer, the local facilities and the personal connections are much more
weighty than nationality and national law. Only when the enforcement
of the contractual rights is envisaged, there has been a tendency in the
many comrnercial transaetions influenced by the British models to submit
to the English couns, or to arhitration in London, which implied, in
the English conception, application of English law.
Recently a mighty wave of commercial arbitration has run over the
business world, in domestic as well as international commerce. Inaddition
to London arbitration, the great arbitration courts of the International
Chamber of Commerce in Paris and of the American Arbitration Associa
don in New York, as well as a number of minor commercial arbitration
centers have acquired an irnmense fleld of operation. The American
method excluding the courts from any control of the merits of the
award prevails in the world. An award cannot be chal]enged because of
any [458] legal mistake or failure to apply a law, or for the failure to
mendon any grounds for the decision. Hence, the departure from judicial
process is complete°. In international maffers, this uncheeked autonomy
°
Habana Charter for an International Trade Organization, March 24,1948 (Washing
ton, 1948) Arrs. 11, 12.
CroJfma,m-Docrtb, Das Rccht des Cberseekaufs (Mannheim, 1930); Ra/ser, Das
Rccht der aligemeinen Geschaftsbedingungen (Hamburg, 1935); fi/Pace, It negozio
del adesione riel diritto privato (1941), 39 Rivista di diritro commerciale (1941), 34.
E. cali;:, Commercjal Arbirradon and rhe Rules of Law: A Comparative Study
(1941)4 U. of Toronto L. j. 1; and the ardcles in The Arbitration Journal, published
by thc American Arbirrarion Association, in New York.
13. Priva/e Laus of ¡Frs/ero Ovilizalio,, 339
of the arbitrators, on one hand, and the standard forms, on the other
hand, have accomplished a startllng emancipation from all national laws,
including the conflicts laws. Their application practically depends on
the discretion of the arbitrators. International business, so to speak,
floats in the sky on self-made clouds, aloof from the earth—and state
bound legal systems.
Conrts°. Arbitration is secret. The decisions are presumably exceflent
and justify the claim that they provide speedy, inexpensive, and fair jus
tice. But we do not know exactly what these tribunals, not bound to law,
working in silence and free from our criticism, contribute to the develop
ment of commercial law. This by itself is a serious reason for postulating
the establishment of international courts which would decide, upon the
authority of treaties, lidgadon in private matters. Wc need a judiciary of
recognized impartiality and objectivity, as familiar with the international
business of traders, banks, carriers and insurers as only the privileged
courrs of a few great centers are. This postulate has been based on
dic cost and slowness of the national courts, and a certain mutual distrust.
But much more important for the general progress of the law than any
improvement of the enforcement of the individual rights is the activity
of judicial bodies working in contract with international analytical and
critical studies. Great learned achievement and high judicial accomplish
ment have to be joined for balancing experience and theory. They are
primary forces of any legal development, preparatory to treaties and
uniform statutes’°
C’onfiict of Lamí. Facing any ordinary case of private relations, con
nected with more than one state, we have to know which of the states
involved is competent to govern this case by its law. This quesdon of a
choice where there isa conflict of laws, [459] again, is answered by every
state as it picases. Three states may all claim to have their respective law
applied to the same mairiage, will, or sales contract; or no state may
want it, which is much rarer. Of course, a large theoretical effort in dic
leading nations and the instinct and fidrness of the judges have reduced
Ch. Garahiber, Les jurisdicrions internarionales de droir privé (Neuchatel, 1947).
‘°This idea has ¡icen expounded in my paper, International Tribunais (br Privare
Matters (1948)3 Arb. j. (N. S.) 209 Ihier Bcirrag 16]. As reported in Sanders, Arlaitra
don at Two International Law Conferences (1948) 3 Arb. j. (N. 8.) 213, the Iliter
national Bar Associarion at l’he Hague, 1948, accepted the excellcnt proposal of rhe
Leyden professor C/everinga rhar aH International Maririme and Aernnautic Law c:nurr
should be established.
22’
340 /3. Priva/e Laus of ÍVes/ern clvi/i2a/ion
the inconveniences to a moderate measure. But frictions and doubt
occur throughout the entire fleid of international intercourse”.
A man and a giri arrive from Venezuela and get hnmediately married,
ahhough their home law prohibits their copulation. Aher a ycar in New
York, the wife goes to Reno and afrer staying six wecks in an auto court
is divorccd. In Venezuela they are considercd as living in a void marriage,
in Nevada as divorced, in New York as married, at least if the man pro
tests. A child born in the meantime may search for his family and inheri
tance rights. The wife may remarry and sorne iawyers wifl have a good
time disentangling file legal mess ensuing. A couple has recently be-
come famous in American constitutional law bccausc they were declared
married in Nevada and jailed for criminal bigamy in North Carolina.
But we think nothing of a child having two legitirnate fathers in different
iurisctioc1s.
A manufacturer in Columbus selis bv correspondence products to a
purchaser in Guatemain. The buyer refuses acceptance and while an
American court would adjudgc the seller’s anion on the ground of the
Uniform Sales Aa, rhe Guatemalan coun dismisses it, appiving its own
iaw or practice.
Jute bags are loaded in New Orieans to Rio de Janeiro on an hallan
versel. fIalf of the goods are stolen. 15 thc ship compan hable? If not
prepaid. at what time is freight payable? Louisiana, Ttaly, and Brazil,
under divergent conflicts rules, appiics each its own law.
So far, we assumed that fue court knows what iaw it has to applv;
oRen it does not. And the patries, before coniraaing, do not know what
court xviii be the forum.
Wc are not accustomed in other branches of iax’ to such a degree of
uncertaintv, contradictions, and awkwardness. Hisrorical and theoretical
particuhtnsm has necessariiy been damaging to a fleld whcre the inter
dependence of the countries and the signifucance of private interesis
require harmony. If the national [460] interest, or what is understood
as such, and the national brand of legal tradition and habir, are allowed
free extension beyond the domesric affairs, harnuonv is unobtainable. The
cornmunitv of states, then—if 1 rnav quote myself—is an orchestra where
everv insmiment is wned to a different key.
“ The p:ohlcm LS summarized ja che arrides, ¡?.:/j, Aa lnrceim Accounr ca Com
pararive Conilicts Law (1948) 46 ).Iich. L. Rey, 625 [hier Burel II, Beirrag 171, arel
Rabel, Comparative Conilirts Law (1949) 24 md, L. Rey. 353 ¡hier Batid 11, Bcicrag
18].
13. Priva/e Laus of II “es/era Ch ‘iliz,/iem 341
C’omparalh e Lan’
The primordial steps leading us from isolarion to comrnunity, in the
legal fleld, are in comparative research. Ja Europe, this has been perceived
in the difficuft time aher the First World \Var. \Ve have created
institutes for comparative law, ar least one of dcm with fuli equipment
of books and a strong staff. Wc have studicd English law and for the
first time American laxv, discovered suggcstions for improving our
domestic legisiation and jurisprudence, advised business and govern
ment on foreign laws, begun tau form conclusionsabout Wc validity of
legal theories and prcpared for legal philosophy’2.
The United States, if it only chose tau attcnd to an analogous task,
conid avail hself of incomparable resources, personnel and material. A
small but far-seeing group of scholars in this country now posrulates
assumption by Wc United Srares of such fulI responsibilitv in the promo
tion of law as would match the political and economic ieadership rhat
has fallen to the United States, almosr against its will. What ¡l”igmore
postulated in 1920, that American ideas should impress sorne of their
feawres upon international legislation, while they have remained behind
on rhe highway of international unity13, oughr finally to be fulfilled by
hard work.
Quite recentiy Wc UNESCO has taken sponsorship of an international
organization for cultivating comparative law ‘.
The laxv schools of Louisiana have recognized dic value of comparative
studies for two decades and furnished Wc most imponant contributions
in this country. Aher having seen Louisiana State and Tulane at work,
1 am hopeful that thev will go funher ahead and afford a particularlv
substantial cooperation in Wc great task leading Wc science of law, after
thousands of years, to a new, a worldwide destination.
12 j&’’rq Compararive Law ariel Cor.Oict nf Laws ja Gerrnanv (1935) 2 Li. of
Chi. L. Rey. 232; mv anide, Qn tnsricurcs fo, Compararive Law (1947) 47 Ccl. L.
Rey. 227 Ihier BeLrrag 101; David, ‘ladré éléme,ttaire nc droir civi comparé (1950),
395 er scq.
13 lflamore, t’rnhlcms cH aw (1920), 131.
‘‘ llavee], UNESCO riad rhe Law (1949) 4 11w Rernrd of che Assoriancn of ilue
Bar of tluc City of New York 291.