Comparative legal studies

Part A


The central aim of the European Community is to promote economic integration via the quest for a supra-national legal order. The way in which this is to happen is through harmonisation of the different legal systems of the Member States in order to create common standards across the internal market.

Harmonization in the area of private law had been called to attention as early as 1964, by the then President of the European Commission, Walter Hallsein. However, the challenge was only taken up in the 1990s, in earnest, by private law scholarship. However, despite this keen interest in harmonizing the private law systems of …it can be said that the over-reliance on the cultural aspects of law invariably discourages legal integration, and hence, progress.

The central hypothesis of this paper is that although great care is required when harmonizing the different legal systems of the member states of the EU, a cautious approach is necessary, as the legal systems were developed in fundamentally different ways by different cultures and different ways of thinking. I will do this by discussing the attempts that have been made in trying to achieve a European-wide contract code.

First I will look at the original idea of the European Union, and a common private code. Then the second section will examine the initiative that introduced the Principles of a European Contract Code. The third section examines briefly the idea of a European Civil Code; before finally concluding that legal integration is a slow process, and although hesitant and cautious, this is the approach that is required.

Section One: The Beginnings Of The EU, And A Common Private Code.

After the Second World War, there was an idea in favour of a “United Europe”, in which European countries would unify in order to be better protected both financially and in strength. The Treaty for Establishing a European Economic Community was signed in Rome in 1957. This treaty worked on the idea that European integration should start first of all with economic integration. The Treaty of the European Union signed in 1992 created what we now refer to as the European Union; the prominent goal of this treaty is the establishment, and maintenance of, a single market. The expansion of this common market is usually seen to be the most important motive for convergence of private law within the European Union. Articles 2 and 3 of the EC Treaty make it clear that ‘the approximation of the laws of the Member States to the extent required for the functioning of the common market' may be pursued. This implies that in so far as national private law stands in the way of this common market, the EU is competent to take measures. Harmonisation of these laws is an important concept for the EU in creating common standards across the internal market.

In order for a European-wide contract code to exist, there needs to be a harmonisation of European private law. In order for this to happen, it is necessary to mar the two great legal traditions of Europe: the common law and the civil law. Legrand feels that this is impossible; he thinks that civil law and common law are immediately recognizable as discrete and independent structures, of which they are completely distinct from each other. He believes that there are two different ‘mentalities', a civil law and common law, and therefore two very different ways of thinking. Thus, from an objective point of view, without even studying fully the different systems of each of the member states, he believes these two different techniques could never be synchronized, and thus the idea of a European-wide contract code could never exist as the gulf between the to different systems is so large that it could never be bridged.

Any contribution on the unification of private law should start with acknowledging that the European Union's private law is at present immensely diverse. There is much debate on the question to what extent the European Union is in need of a uniform private law and what this law should look like. The European Parliament has consistently championed the codification of a European private law. The symbolic starting point of this debate is often seen as the Resolution of 1989 in which the parliament called for the elaboration of a European civil code.

According to Legrand, rules and concepts alone actually tell one very little about a given legal system and reveal even less about whether two legal systems are converging or not. There is an argument that there is too much emphasis on ‘culture'. However, what exactly is meant by ‘culture'? According to Legrand, culture refers to features that are not universal but that transcend the individual. Accordingly, culture thus derives from historical experience - as do the forms that culture embraces, such as legal rules.

There is a failure of legal communities within the common law and civil law traditions, to appreciate how fundamentally different these traditions are from each other. In the words of Alisdair MacIntyre: “a precondition of the adherents of two different traditions understanding those traditions as rival and competing is of course that in some significant measure they understand each other.”

Another debate is that an English lawyer, who hails from a common law jurisdiction, can never step into the shoes of a German or French or Italian lawyer: all he can do is metaphorically step into his shoes. Conversely, a civilian can never understand the English legal experience like an English lawyer. Understanding there can be, but a different understanding it will have to be. Thus, no matter how acute the insight the English lawyer brings to bear on Italian law, the English lawyer will necessarily think differently from the Italian-lawyer-understanding-Italian-law; that he will as a prerequisite not think as an Italian lawyer. The English lawyer will, therefore, never understand Italian law on its own terms, that is, in the way Italians do given the way it appears to them. The growth of the EC has provoked a regulated encounter between the common and civil law traditions, and made the boundaries between these legal traditions even more permeable. A common law lawyer, trained in England, in the context of a particular cognitive approach to systems, rules, facts, rights and the presence of the past, will simply never be able to appreaciate a system, a rule, a fact, a right or the past as her Continental counterpart understands them. The reason is that “behind the characterisitic doctrines and ideas and technique of the common-law lawyer there is a significant frame of mind”

(reword ever so slightly)

To date, the most widely used method of achieving a higher degree of uniformity between the private laws of the EU has been through European Directives. Directives are binding as to the result to be achieved, but leave form and methods of implementation to the Member States. Thus, harmonisation leads to a ‘law of uniform results', whereby the rules that achieve these results are national in character.

Directives of the European Union do not focus or contain comprehensive regulation of the entire law. They regulate some very specific issues and they regulate them only for particular situations or circumstances and only for particular types of parties. It was only when the Unfair Terms in Consumer Contracts Directive of 1993 was enacted that brought home to every lawyer the clear message that private law in Europe has acquired a new dimension. Another major step in the Europeanization of private law by means of European Community Directives was the enactment of the Consumer Sales Directive in 1999. This directive was seen as the first building block for a European codification of sales law.

Another scheme in trying to bring together and codify aspects of European private law was initiated by the former Advocate General at the European Court of Justice, Walter van Gerven. A series of “Casebooks on the Common law of Europe” contained the relevant provisions of the national codes, important decisions by the national courts, extracts from textbooks, commentaries and other forms of national legal literature, introductory texts, commentary and explanation. These casebooks have helped common law and civil law citizens understand the opposing side. Additionally, translation into an easily accessible language can advance the process of familiarising young lawyers with each other's legal systems more effectively than insistence on reading legal texts in foreign languages. However, do all European languages have the same standing and meaning?

Thus, it is has proven rather complicated to try and easily integrate the legal systems of the EC from an objective point of view. There are many factors to be taken into account, such as the common law and civil law systems, language, and culture. In the next section I will investigate a practical attempt at legal integration and will establish how effective and successful the attempt was.

Section 2: Principles Of European Contract Code

Central to the goal of the EC is the expansion of the internal market. The way in which this market will expand is of course through commercial transactions. As contracts are the main vesicle for which these transactions will be carried out, this denotes that contract laws and rules will need to be harmonised to an extent in order for these transactions to take place.

According to some, modern contract law in Europe is based on the same philosophical origins, and the hypothetical will of reasonable parties to a contract has usually been the focal point in the evolution of its doctrines.

The idea of a common European Contract Code was drawn up by a ‘Commission on European Contract Law', a private initiative of Professor Lando of Copenhagen. The Commission was without official status nor any form of political legitimation. The result, ‘The Principles of a European Contract Code', are thus the product of an international comparative and collaborative effort. The Commission met twenty-six times; each meeting lasting one week. Work started as early as 1982 with the preparation lasting more than twenty years. The Principles are inspired by the Restatements of American Law, as far as the style and structure of their publication are concerned. The Principles were eventually published in three parts: 1995, 2000, 2003

The growth of the Commission paralleled that of the EU. With more countries joining the Union, many more legal systems originating from different historical backgrounds had to be integrated, and could be one reason why the Principles took so long to draw up. The long gestation period, along with the fact that the work has been split into three stages, have left their trace on the substance of the Principles. The acquis communautaire has largely been ignored in the principles. This was due to the fact that work on the Principles dates back to a time before the EC has embarked on the regulation of an ever wider range of issues concerning consumer contracts.

The draftsmen, who were comparative in nature, attempted, as far as possible, to identify the common nucleus of the contract law of all the Member States of the EU, and thus tried to create a workable system on that basis. Therefore, in a way, they aimed at a restatement of European contract law.

In the course of the deliberations of the Lando Commission great emphasis was placed on the possibility of expressing every term and concept used in the Principles in both English and French; The Commission was thus constantly aware of the danger of using a terminology indeibly shaped by the peculiarities of individual legal systems. However, words are not always understood as they have been intended. Thus, a certain word in one language, when translated could mean something different in another language.

However, it has been argued that the Principles of European Contract Law can hardly be called ‘European' in the true sense of the word if they fail to take account of applicable EC Directives and of the relevant case law of the European Court of Justice. The inattention paid to these genuinely European sources of law is one of their most serious shortcomings. As mentioned previously, Directives are the most widely used method of achieveing a higher degree of uniformity between the private laws of the EU.

However, despite the Lando Commissions eager attempt to try and codify European contract rules, it must not be forgotten that a lawyer from England could never quite fully appreaciate and understand the italian legal system like an italian lawyer. thus, despite every effort to try and walk in the shows of an Italian lawyer, his common-law counterpart will alawyas be in his ‘significant frame of mind' that will differ entirely from his civil law counterpart. Thus, could a civil law lawyer could never fully understand the common law system. The great gulf supposedly existing between the civilian systems on the one hand and the English and Irish common law on the other is taken by many to constitute a major obstacle within the process of harmonization of European private law and has contributed to a growing awareness of existing connections between common law and civil law.

The European Commission has recently issued an action plan for a more coherent European contract law which, inter alia, aims at the development of ‘a common frame of reference', with the aim of improving the coherence of the existing and future acquis: the frame of refernce may then serve as the basis of an ‘optional instrument'. According to Zimmerman, it is likely that the Principles of the European Contract Law of the Lando Commission will play a key role in this process.

Despite the fact that the development of a common European-wide contract code has been a long and complicated process, it has occurred, and can now rest a basis for other types of codification of European laws, such as the European Civil Code.

Section Three: Idea Of A European Civil Code

Traditionally, civil codes, as found on the European continent, aim at a systematic, coherent, complete and national codification of private law.

The Principles of European Contract Code served a basis for the work of the Study Group on a European Civil Code. Like the Lando Commission, the study group is a private initiative, without official status nor any form of political legitimation.

Legrand believes that the common law and the civil law differ fundamentally in their understanding of facts, rules, rights. They foster different views of the nature of legal reasoning, of the role of systemisation and of the management of historical time. At common law, the facts are inextricably tied to the life of the case so that a decision never discards its particular features. However in Civil Law, laws are written down in code, to which judges must follow, rather than make. For most civilians, the common law tradition remains a curiosity.

Legrand uses extremely emotive language when trying to convey his point. Although extreme in his viewpoint, he does point out that a European Civil Code could represent the excommunication of the common law way of understanding the world. He feels that the promotion of a European Civil Code effectively represents an attack on pluralism, and a desire to suppress antinomy. He believes that a European Civil Code would reduce the diversity of legal discourses within Europe. A less extreme argument of his is of the language barrier, as mentioned previously. He believes that the complexity of reality will not always be fully captured by a single language.

He believes that with the promotion of a European Civil Code, Europe would be essentially colonialising itself, and would mark a retrograde step since it privileges faith in a centralised poitical authority and in formalist truth. The idea of a European civil code belongs to a different era.

Legrand does make a very valid point: difference must be understood and the temptation to reduce it resisted. On the contrary, arguments supporting a European Civil Code refer to the emergence of the EU as an increasing globalised economy, and the mergence of the code can be seen as a further step in this process of unification. A uniform civil code will help overcome differences in national laws, and will ultimately reduce barriers to increased trade within the EU, and promote the internal market.


Comparative law scholarship will continue to be crucially important. Although extreme in his view, Legrand does put across some valid points, mainly that the reason legal systems are very different is because of the way they have developed though different ways of thinking; thus, how could they be united effectively?

However, on the contrary, it must not be forgotten that the central goal of the EC is integration, and the way in which that goal is to be achieved is through harmonisation of the different legal systems of the member states. It is quite evident that the development of the Principles of a European-wide Contract Code was quite hesitant. These could be seen as a starting bloc to building principles on more legal aspects. Integration of different legal systems is a slow process, and although this could be seen as overly-cautious, I believe this is the approach that is required. It must not be forgotten that the EU has only been in existence 60 years; for a legal system to have developed as rapidly as the EC's in such a short time-span is admirable. Thus progress has been made, albeit at a slow and steady pace. When studying integration, it is impossible not to dwell on the cultural aspects of different countries, as this is how their legal system was shaped and developed. However, despite this protracted attitude, much progress has been made during the European Union's short life span, and hopefully in the coming years more will be made soon.

Part B

Knowledge can be said to be the primary aim of comparative law. It is after all the study of the differences and similarities between the law of different countries. When one is comparing different legal systems, one is striving to discover these differences. It can be said that the basic methodological principle of all comparative law is that of functionality.From this basic principle stem all the other rules which determine the choice of laws to compare. The proposition rests on what every comparatist learns, that is to say that the legal system of each society faces fundamentally the same problems, and even though they may gain very similar results, these problems could be solved by quite different means. A functionalist focuses their attention to the function of the rule, that is to say, its social purpose.

The functionliast method rest on three premises: a) legal systems face similar problems; b) faced with similar problems, legal systems take different measures; and c) despite differing methods, legal systems tend to achieve similar results.

Legrand takes an anti-functionalist approach to comparative law, in that he believes that legal transplants are impossible. Using emotive language, he refers to the idea of a European Civil Code as representing the ‘excommunication of the common law way of understanding the world'. Thus, he believes that if a European Civil Code was to be conceived, then the common law system would be rendered obsolete, and hence, disappear.

According to Zimmerman, he thinks that the Principles of European Contract Law can be regarded as the product of a long tradition, distinguished by its inherent flexibility and capacity for development, and as a contemporary manifestation of a genuinely European law of contract (even in places where an unconventional solution has been found and adopted). Thus, he takes a functional approach,

With reference to the idea of a common European Contract Code, a European Civil Code, and a Common Frame of Reference, it could be said that the legislators are being too culturally sensitive and over-cautious. However, in my opinion, they have good reason to be. Despite being part of the supra-national European Union, each European state still wishes to retain its own identity. The EC has only been in existence some 60 years; it is admirable the rapid progress that has been made in cultivating its supra-national legal order, however not every aspect of the law can be cultivated this quickly.

Another practical use of comparative law lies in the interpretation of national rules of law.

Different legal systems give the same or incredibly similar solutions, even as to detail, to the same problems of life, despite the great differences in their historical development, conceptual structure and style of operation.

It is true that there are many areas in social life which are impressed by especially strong morals and ethical feelings, entrenched in the traditions of the dominant religion, in historical tradition, in cultural development, or in the character of the people. These factors differ so much from one people to another that one cannot expect the rules which govern such areas of life to be congruent.

It goes without saying that a comparative analysis will bring out the differences between the actual solutions.

The English system focuses on the facts, the description of these facts is as thorough as possible, and the importance of said facts in the decision-making process is confirmed by the insistence on certain facts which may differ from one judge to another. Whereas the civil system focuses on the way in which a judge interprets the already codified law. Thus, it should be reiterated that an English common law lawyer will never fully be able to understand the continental civil law system, all he can do is imaginatively step into the shoes of a Dutch, or Italian, or French lawyer. .

When comparing legal systems, one must never allow one's vision to be clouded by the concepts of one's own national system; always in comparative law must one focus on the concrete problem. Thus, the question to which any comparative study is devoted to must be posed in purely functional terms; the problem must be stated without any reference to the concepts of one's own legal system. A practical example of comparative law at work after the collapse of the Soviet system, and the countries of Central and Eastern Europe were faced with the need to reconstruct their legal systems.

Even experienced comparatists sometimes look for the rule they want only in the particular place in the foreign system where their experience of their own system leads them to expect it. It is only when one has roamed through the entire foreign legal system without avail, asking a local lawyer as a last resort, that one can safely conclude that it really does not have a solution to the problem.

It must be remembered that the European Union is at its heart a trading bloc; it has done away with internal barriers to trade to promote the enlargement of its common internal market. A European contract code is crucial to the development of this internal market. In this sense, a functionalist approach should be taken in order to advance this central goal. Legrand does raise some valid points regarding the difficulties in converging different legal systems; however he seems to be overlooking the nucleus of the EU.

It is of my opinion that a functionalist approach should be taken as regards a European contract code. A European civil code is entirely different as it rests on the assumption that the civil and common law systems can be easily combined to create a single European law. in each member state, laws take different forms in the various nations that pass them due to their different cultures, legal systems and previous laws that have shaped the routes that each country may take. The inconsistency in legal solutions is due to the uniqueness of individual nations.

The Common Frame of Reference has been hoped by some to form the central part of a future unified European contract law, although this has been claimed to not be its purpose. The legislators of the Common Frame of Reference appeared to be too culturally sensitive and over-cautious, and I believe they had good reason to be.

Despite being an enormous achievement for the contributing academic bodies to have produced such an ample body of rules in such a short space of time, the test nevertheless suffers from a great number of serious deficiencies. These shortcomings include unanswered or weak policy decisionsas well as ill-adjusted and contradictory set of rules. Additionally, it is believed by some that the Draft ‘paves the way for a massive erosion of private autonomy', which goes far beyond the already existing tendency of materializing private law. Thus, it has been suggested that the composition of the CFM was too hasty a drafting. A slower approach is required when drafting an instrument of this calibre and size.

As an intellectual activity, every investigation in comparative law begins with a hypothesis. In the context of the CFM, it was to commence the idea of a European Civil Code. After doing appropriate research the comparatist will proceed to a critical evaluation of what his findings. Often he will find that his solution, fashioned out of parts of the different national solutions.

Comparative law not only shows up the emptiness of legal dogmatism and systematics but, because it is forced to abandon national doctrines and come directly to grips with the demands of life for suitable rule, it develops a new and particular system, relating to those demand in life and therefore functional and appropriate.

Thus, when studying the different legal systems of the EC, it is necessary to take both a functionalist and an anti-functionalist method to reach a solution to the proposed systematic reform of a European private law. A functionalist essential is required to take an overall view of the problems and find the solution; yet an anti-functionalist method is required to an extent as the need to be culturally sensitive as to the formation of different types of legal systems. I believe I have used this middle-ground approach when analyzing the recent attempts to codify a common European contract code.