ILS Lecture Notes 3

COMPARATIVE LAW AND THE CIVIL LAW TRADITION
(WEEK 5 – LECTURE 4)
TOPICS:
 Comparative law,
 The Civil Law tradition,
 Case study: France,
 Common law and Civil law: similarities and differences.
COMPARATIVE LAW: WHAT IS IT?
 Comparative law is essentially about legal perspectives and
cultures. The basic idea behind comparative law is that comparing
different perspectives and cultures can be illuminating, and might
lead us to reassess (not necessarily negatively!) aspects of our own
legal system.
 In particular, a comparative perspective can alert us to the
contingency of legal institutions, arrangements and processes which
we take for granted in our own system, and lead us to ask questions
about what makes particular arrangements develop and ‘make
sense’ within particular systems.
CASE STUDIES:
 The Nuremberg Trials 1945-6
o International tribunal to do with punishing members of the
Nazi party or any other who helped them during the
Holocaust, who had committed crimes against humanity.
o The procedure was a common law one.
o In common law systems, here say evidence is not allowed to
be used whereas civil law, here say evidence is key.
 The Royal Commission on Criminal Justice 1991
o Irish conflicts on the streets, public etc. IRA terrorism.
o Commission was made to see if we should reform the criminal
law to prevent conflict like the IRA one ever happening again.
o (cf. The Secret Barrister Ch. 8-9)
 An example:
o Solene Rowan (LSE), Remedies for Breach of Contract: A
Comparative Analysis of the Protection of Performance (2012)
o Her thesis: common law and continental legal systems
‘have the same problems’ (contract formation, breach of
contract, etc)
o But they solve them differently (specific performance not
always available in common law, whereas in civil law it is; civil
law doesn’t have a doctrine of consideration, etc)
o She’s not arguing that any one system’s solutions are ‘better’

, o But: A SYSTEM MIGHT IMPROVE BY ADOPTING SOME OF
THE APPROACHES OF ANOTHER SYSTEM


COMPARATIVE LAW: HOW DO WE COMPARE?:
 (A) ‘Same problem, different solutions’(as in Solene Rowan’s book)
o But: the problem might not be ‘the same’ among jurisdictions
(eg, the question of how to regulate free speech depends on
how each system views free speech)
o Risk of misunderstanding foreign experience? Legal
cultures differ (eg, attitudes to litigation, the role of the
state, etc)
 (B) Understanding foreign law ‘from the inside’
(Anthropology – or method acting!)
o If you’re interpreting foreign legal system, how immersed in it
must you be?
o How do you compare that system with your own system?
o How do you communicate what you’ve learned about system
A to lawyers in system B without losing something of what
system A is about?
o You have to be an anthropologist to be a good comparativist;
think of French law, for e.g., as a French lawyer does.
WHAT ARE WE COMPARING?
 Different systems’ law ‘in books’ or their law ‘in action’; a
doctrinal or a socio-legal approach? (eg, understanding tort law
litigation rates in different jurisdictions requires attention to law in
action)
 Different legal systems’ institutions (eg, court structure, law-making
bodies, legal professions), ideas, practices (eg, how do they treat
foreign precedent?)
 Question of scale:
o Do we want to compare individual legal systems, or the
traditions to which they belong, or particular areas of law?
o So, e.g., systems may by different yet also the same in that
they belong to the same tradition: the common law tradition,
or the civil law tradition.
o And hybrids….
COMMON LAW AND CIVIL LAW
 The Secret Barrister, p. 25:
o “A key feature of the so-called ‘common law tradition’ is that
where legislation has gaps or ambiguities, or calls for
clarifying interpretation by judges hearing cases, the rulings