The World's Legal Systems - notes
Table of contents
MODULE I Methodology of comparative law.................................................................................................2
Week 1. Legal Traditions / Families and Legal Pluralism.....................................................................................2
Week 2. Civil law...................................................................................................................................................5
Week 3. Common law...........................................................................................................................................9
Week 4. Identity, and Questions of Constitutionality.........................................................................................14
Week 5. Indian law.............................................................................................................................................18
Week 6. International law..................................................................................................................................22
MODULE II The law of credit and insolvency in civil and common law ..........................................................27
Week 7. Consumer and corporate debt law and theory....................................................................................27
Week 8. Law and ethics relating to credit in civil and common law..................................................................30
Week 9. Tradition v Economy I Paradigm Shifts in Insolvency (14th-18th Centuries) .......................................32
Week 10. Tradition v Economy II paradigm shifts in insolvency 19 th century....................................................35
Week 11. Reform v tradition insolvency laws today I........................................................................................37
Week 12. Reform v tradition insolvency laws today II.......................................................................................41
1
,MODULE I Methodology of comparative law
Week 1. Legal Traditions / Families and Legal Pluralism
In this lecture, the problems that come with a comparative analysis of law will be explained.
The lecture will zoom in on the difficulties of comparability and the explanation of differences
between the law of regions and states. The interactions between systemic properties of law
(legal families) and idiosyncratic developments are a key problem. It will be argued that in
order to compare well, one has to look not only into black-letter-law but also into history,
morals, religion and context.
A plurality of legal systems
What factors contribute to the world’s various different national legal systems?
o Political considerations.
E.g., In a dictatorship other interests are being represented than in a democracy.
o Economic considerations.
o Community’s religious believes.
E.g., Islamic countries base their laws on the rules from the Koran.
o Historical factors.
E.g., Liberation from colonial rule.
E.g., France revolution.
o Geographical factors.
E.g., Specific rules on specific types of land or wildlife.
Legal pluralism
‘’’… [A] situation in which two or more legal systems coexist in the same social field.’’
o S Merry, ‘Legal Pluralism’ (1988) 22 Law & Soc’y Rev 869, 870.
Legal pluralism communicates this idea that a community – such as, but not necessarily a
nation state – can have within its various different legal systems.
Law in no way need to be tied to the nation state as a concept or institution.
National legal systems are not the only type of legal systems that exist.
o E.g., Public international law is a legal system that belongs to no one state or
territory.
Comparative law
‘’…[T]o place comparable elements of two or more legal systems against each other and
determine their similarities and differences.’’
o M Bogdan, p 45.
It is not necessarily the case that one needs to compare the laws of two nation states.
One could consider comparing legal systems from two or more federations, regions in the
world, systems from the past etc.
Why compare?
Academic interest.
o One may simply want to know how a legal system – other than their own – has
taken a legal approach to a similar problem.
To gain practical knowledge.
o Take a lawyer that has to advice a company on a contract that has some cross
border considerations with another business from across the board.
To gain a better understanding of our own legal system.
o Forced to be looking into in the own rules and institutions on a deeper level (on how
those rules and institutions came to be).
Allows a lawyer to form a critical perspective.
2
, o Once one acknowledges that things can be different, they are likely to also begin
wondering how.
To engage with how the law could be.
o Lex Lata positive law currently in force, the law as it is.
o Lex Ferenda the law that could (should) be, future law.
To gain a holistic understanding of law in a globalized world.
Engaging in comparative legal analysis – how to?
How many legal systems to engage with?
o Bilateral comparison two legal systems.
o Multilateral comparison more than two legal systems.
What can we compare?
o Micro-comparison focus on the differences and/or similarities that can be found in
respect to specific aspects of legal systems.
E.g., specific rules and institutions.
o Macro-comparison Focus on legal systems in their totality.
Legal families | traditions
‘’…[A] conceptual and methodological device of the comparative lawyers…’’
o J Husa, ‘Legal Families’ in Elgar Encyclopaedia of Comparative Law (2012) 491.
Legal families are referred to in order to delineate between different collections of legal
systems.
o Hence, we may speak of civil law and common law as two different legal families.
o National legal systems can be designated to such families.
For this course we will compare the systems of France and Germany (civil law) with the
systems of the UK and the US (common law).
The idea is that by dividing the world’s legal systems into families one is able to categorize
these systems based on certain recognizable characteristics that pertain to each member.
Delineation of legal families can be based on various factors.
o Historical (e.g., Romano-Germanic legal family).
o Political (e.g., Socialist legal family).
No classification can claim to be correct and timeless.
Functionalism
Functionalism advances one core principle for the comparative lawyer and that is:
o ‘’…[O]nly law which fulfills the same function can be compared.’’
U Kirschel, Comparative Law (OUP 2019) 88-89.
Functionalist approach seeks to build upon the realization that legal systems are more
than theoretical institutions build in a vacuum. Rather, it recognizes that legal systems are
created to address very real practical problem faced in societies (both large and small).
o E.g., the laws on theft in any nation will be a direct response to the question of how
to adjust the problem of individuals taken things that belong to others.
To concentrate on the function of a rule is to concentrate on a broader approach to a
problem. That is, we must be prepared to leave behind the specialized concept and
terminology that we are used to from the legal systems that we specialize in and look to
the much more basic questions.
Function becomes the common denominator tertium comparationis.
o Allows the comparative lawyer to engage in comparative analysis.
Critique at its core lies the praesumptio similitudinis the presumption of similarity.
o Basic idea here is that different societies would nevertheless be likely to have to
solve similar problems to similar institutional means. Hence, if one cannot find a
similar legal solution to a problem in a foreign legal system once should keep
looking. Problematic, because it seems to suggest that not to be finding similarities
3
, between systems that being compared is a questionable conclusion. But a scientific
method would find this an acceptable finding.
Issues with comparing
Language
o There is no universal dictionary – legal or otherwise – thus there is no mutual source
that we can use to see that we have the true definition of a concept without having
to engage in some form of translation.
o This is important when comparing systems with different languages, however the
same word in the same language can have different meanings too, depending on
the nation.
Not knowing where to look.
o One must take a holistic approach when engaging in foreign law when one has the
opportunity, in order to not mistakenly believe that foreign law does not deal with a
certain issue simply because the comparative lawyer is looking at the wrong place.
o Secondary sources from scholars who are experts from that legal system can help
with this issue.
Interpretation.
o One cannot expect good things to come from interpreting a foreign legal system or
its rules from its own countries perspective.
A presumption of conceptual similarities.
A lack of understanding of the social context behind a legal system.
4
Table of contents
MODULE I Methodology of comparative law.................................................................................................2
Week 1. Legal Traditions / Families and Legal Pluralism.....................................................................................2
Week 2. Civil law...................................................................................................................................................5
Week 3. Common law...........................................................................................................................................9
Week 4. Identity, and Questions of Constitutionality.........................................................................................14
Week 5. Indian law.............................................................................................................................................18
Week 6. International law..................................................................................................................................22
MODULE II The law of credit and insolvency in civil and common law ..........................................................27
Week 7. Consumer and corporate debt law and theory....................................................................................27
Week 8. Law and ethics relating to credit in civil and common law..................................................................30
Week 9. Tradition v Economy I Paradigm Shifts in Insolvency (14th-18th Centuries) .......................................32
Week 10. Tradition v Economy II paradigm shifts in insolvency 19 th century....................................................35
Week 11. Reform v tradition insolvency laws today I........................................................................................37
Week 12. Reform v tradition insolvency laws today II.......................................................................................41
1
,MODULE I Methodology of comparative law
Week 1. Legal Traditions / Families and Legal Pluralism
In this lecture, the problems that come with a comparative analysis of law will be explained.
The lecture will zoom in on the difficulties of comparability and the explanation of differences
between the law of regions and states. The interactions between systemic properties of law
(legal families) and idiosyncratic developments are a key problem. It will be argued that in
order to compare well, one has to look not only into black-letter-law but also into history,
morals, religion and context.
A plurality of legal systems
What factors contribute to the world’s various different national legal systems?
o Political considerations.
E.g., In a dictatorship other interests are being represented than in a democracy.
o Economic considerations.
o Community’s religious believes.
E.g., Islamic countries base their laws on the rules from the Koran.
o Historical factors.
E.g., Liberation from colonial rule.
E.g., France revolution.
o Geographical factors.
E.g., Specific rules on specific types of land or wildlife.
Legal pluralism
‘’’… [A] situation in which two or more legal systems coexist in the same social field.’’
o S Merry, ‘Legal Pluralism’ (1988) 22 Law & Soc’y Rev 869, 870.
Legal pluralism communicates this idea that a community – such as, but not necessarily a
nation state – can have within its various different legal systems.
Law in no way need to be tied to the nation state as a concept or institution.
National legal systems are not the only type of legal systems that exist.
o E.g., Public international law is a legal system that belongs to no one state or
territory.
Comparative law
‘’…[T]o place comparable elements of two or more legal systems against each other and
determine their similarities and differences.’’
o M Bogdan, p 45.
It is not necessarily the case that one needs to compare the laws of two nation states.
One could consider comparing legal systems from two or more federations, regions in the
world, systems from the past etc.
Why compare?
Academic interest.
o One may simply want to know how a legal system – other than their own – has
taken a legal approach to a similar problem.
To gain practical knowledge.
o Take a lawyer that has to advice a company on a contract that has some cross
border considerations with another business from across the board.
To gain a better understanding of our own legal system.
o Forced to be looking into in the own rules and institutions on a deeper level (on how
those rules and institutions came to be).
Allows a lawyer to form a critical perspective.
2
, o Once one acknowledges that things can be different, they are likely to also begin
wondering how.
To engage with how the law could be.
o Lex Lata positive law currently in force, the law as it is.
o Lex Ferenda the law that could (should) be, future law.
To gain a holistic understanding of law in a globalized world.
Engaging in comparative legal analysis – how to?
How many legal systems to engage with?
o Bilateral comparison two legal systems.
o Multilateral comparison more than two legal systems.
What can we compare?
o Micro-comparison focus on the differences and/or similarities that can be found in
respect to specific aspects of legal systems.
E.g., specific rules and institutions.
o Macro-comparison Focus on legal systems in their totality.
Legal families | traditions
‘’…[A] conceptual and methodological device of the comparative lawyers…’’
o J Husa, ‘Legal Families’ in Elgar Encyclopaedia of Comparative Law (2012) 491.
Legal families are referred to in order to delineate between different collections of legal
systems.
o Hence, we may speak of civil law and common law as two different legal families.
o National legal systems can be designated to such families.
For this course we will compare the systems of France and Germany (civil law) with the
systems of the UK and the US (common law).
The idea is that by dividing the world’s legal systems into families one is able to categorize
these systems based on certain recognizable characteristics that pertain to each member.
Delineation of legal families can be based on various factors.
o Historical (e.g., Romano-Germanic legal family).
o Political (e.g., Socialist legal family).
No classification can claim to be correct and timeless.
Functionalism
Functionalism advances one core principle for the comparative lawyer and that is:
o ‘’…[O]nly law which fulfills the same function can be compared.’’
U Kirschel, Comparative Law (OUP 2019) 88-89.
Functionalist approach seeks to build upon the realization that legal systems are more
than theoretical institutions build in a vacuum. Rather, it recognizes that legal systems are
created to address very real practical problem faced in societies (both large and small).
o E.g., the laws on theft in any nation will be a direct response to the question of how
to adjust the problem of individuals taken things that belong to others.
To concentrate on the function of a rule is to concentrate on a broader approach to a
problem. That is, we must be prepared to leave behind the specialized concept and
terminology that we are used to from the legal systems that we specialize in and look to
the much more basic questions.
Function becomes the common denominator tertium comparationis.
o Allows the comparative lawyer to engage in comparative analysis.
Critique at its core lies the praesumptio similitudinis the presumption of similarity.
o Basic idea here is that different societies would nevertheless be likely to have to
solve similar problems to similar institutional means. Hence, if one cannot find a
similar legal solution to a problem in a foreign legal system once should keep
looking. Problematic, because it seems to suggest that not to be finding similarities
3
, between systems that being compared is a questionable conclusion. But a scientific
method would find this an acceptable finding.
Issues with comparing
Language
o There is no universal dictionary – legal or otherwise – thus there is no mutual source
that we can use to see that we have the true definition of a concept without having
to engage in some form of translation.
o This is important when comparing systems with different languages, however the
same word in the same language can have different meanings too, depending on
the nation.
Not knowing where to look.
o One must take a holistic approach when engaging in foreign law when one has the
opportunity, in order to not mistakenly believe that foreign law does not deal with a
certain issue simply because the comparative lawyer is looking at the wrong place.
o Secondary sources from scholars who are experts from that legal system can help
with this issue.
Interpretation.
o One cannot expect good things to come from interpreting a foreign legal system or
its rules from its own countries perspective.
A presumption of conceptual similarities.
A lack of understanding of the social context behind a legal system.
4
