1. Private international law
2. Making law
3. Interpretation and application of law
4. Confluence of the law and development of general common principles
5. Unification of the law
1. The first lecture identified five basic fields in which comparative legal analysis is employed. Please discuss, giving one example from each of these fields. The examples may come from any jurisdiction.
In times of globalization and internationalisation comparative legal studies play an ever more important role. Especially against the backdrop of trying to foster understanding of different cultures as well as to enhance the development of domestic legal systems and thereby improve one’s own law1, comparative law studies are becoming increasingly significant.
Comparative legal studies can be defined as the purposeful analysis of different laws or legal systems through the use of one or more approaches2. In the first lecture, it was outlined that comparative law consists of the fields ‘private international law’, ‘the making of law’, ‘the interpretation and application of the law’, ‘the confluence of the law and the development of general common principles’ and ‘the unification of the law’3.
The aim of this essay is to explain these five basic fields in which comparative legal studies are employed and to illustrate these subjects by giving examples. First, this essay will present the use of comparative legal studies in private international law, exemplified by the case Conklin v Horner, then it will outline its influence on the making of law which will be explained by the concept of the German limited liability company. In the next section, it will be referred to the interpretation and application of the law which will be shown by the case Greatorex v Greatorex. Then, the influence of comparative law with regard to the confluence of the law as well as the development of general common principles will be depicted. Finally, the use of comparative law in the field ‘unification of the law’ will be explained, referring to the International Institute for the Unification of Private Law.
1. Private international law
To begin with, comparative law is used in private international law which is also called conflict of laws4. Comparative law and private international law, as a part of national law, are generally regarded as distinct areas, but they interact5: conflict of laws provides assistance in determining which of several possible systems of law should be applied in cases with foreign connections by containing rules of competence6. According to Mathias Reimann, comparative law plays three major roles in this context: it offers an opportunity to contrast domestic with foreign laws of conflicts, it assists lawmakers in establishing new conflict rules in the light of the acquired knowledge about options in order that the private international law can be developed and finally it aids decision-makers in operating the conflict norms, thereby serving the application of private international law7. Hence, private international law is mainly about conflict rules which are established at the domestic level and applied to determine if a particular state is entitled to decide a certain case and which national law must govern its clarification8. However, owing to the absence of a global private international law, every state has its own conflict rules which differ from one country to another with the consequence that these differences tend to undermine the purposes of the rules, in particular certainty, predictability and uniformity of the results9. Thus, as this leads to the surprising result that different outcomes of cases dealing with the same issue are achieved depending on the applicable national law, it is justifiably suggested to engage comparative lawyers to change this unsatisfactory situation10.
To illustrate the scope of private international law in the comparative law context, it can be referred to the case Conklin v Horner 11. Even though it was decided by the Wisconsin Supreme Court in the United States many years ago, this case is a demonstrative example showing the influence of comparative legal studies in conflict of laws: courts often tend to choose the ‘better’ law among the potentially applicable ones in cases with foreign connections12. This case, a host-guest issue in a personal injury action, deals with a car accident during a trip; whereas the tortious conduct – the accident and the injury – occurred on a motorway in Wisconsin and the forum was located there as well, the parties and the vehicle were from Illinois13. In deciding whether to apply the Wisconsin law – which would allow recovery if the host failed to exercise ordinary care – or the law of Illinois – allowing compensation only if the host’s negligence was ‘wilful and wanton’ – the court took several aims into consideration, including the purpose to apply the better rule of law14. It decided to apply the Wisconsin law by arguing that its rules would further the state’s interest in regulating conduct on the motorway and foster safe driving thereby15. Thus, it was exemplified that comparing domestic with foreign laws and then choosing the seemingly ‘better’ law is one of the application fields of conflict of laws in comparative legal studies.
2. Making law
Furthermore, comparative legal studies have an effect upon making law, either directly by national legislators introducing new law and amending existing law or indirectly by the law commissions’ propositions to improve the law16. For instance, in Germany the role of studying foreign legal systems when drafting law falls to the ministry of justice17. Comparative law in this context can be regarded as a tool of reform and the purpose behind using comparative legal studies as a means to make law is to give legal effect to a social change shared by the foreign country and the domestic one18. With the aim of improving the domestic law, comparative legal studies are a crucial support for the legislator19 as they broaden knowledge in general, permit a better understanding of law as well as a critical analysis of the domestic legal system20.
The influence of comparative legal studies on making law can be outlined by the following example: the concept of the German limited liability company – Gesellschaft mit beschränkter Haftung – functioned as a model in the development of legislation in other countries21. After the establishment of the German limited liability company in 1892, this concept was spread all over the world, such as in Austria in 1906 and in France in 1925, and it served as a guiding principle for the establishment of similar corporate forms in foreign nations22. This example illustrates that sometimes a country is needed which takes the first step – a country which acts as a pioneer and induces foreign nations to adopt a particular norm or concept as well. Since other countries may have gathered experience with regard to the application of a particular rule, especially through having to apply it in several cases, foreign countries can ascertain if this norm has proved satisfactory, thereby being guided by and benefiting from the knowledge of other countries with the possibility to integrate a certain foreign rule in their domestic law. Hence, comparative legal studies serve as an important aid to the legislator when making law.
3. Interpretation and application of law
The next basic field in which the use of comparative legal studies is reflected is the interpretation and application of law. This does not mean that the interpretation proposed by the foreign law itself is employed on the conflicting national law as this would interfere with the national legislator’s sovereignty and the respect for lawfully enacted domestic law23. Rather, comparative law in this context can assist when the construction of a national rule is doubtful or where the law appears to be incomplete24. Therefore, judges often refer to comparative legal studies in the judicial process of filling gaps in legislation, as background knowledge regarding norms or concepts that have been adopted from foreign jurisdictions is thereby provided25. Especially when interpreting adopted concepts with the aim of applying them correctly in one’s own legal system it is crucial to understand the foreign concept in the first place, which is only possible by understanding the concept in its native context26. Hence, a thorough analysis of the foreign principle is required. However, even when domestic norms do not demand that courts make use of foreign law, they sometimes wish to consider foreign ideas to get inspiration concerning the way other countries deal with the problem in certain situations, particularly in cases which address international fields of law27. Accordingly, the number of decisions in which courts apply the method of ‘cross-citations’ is very high all over the world28.
The effect of referring to foreign case decisions when applying domestic law can be illustrated by the case Greatorex v Greatorex 29. It is about a father who suffered from post-traumatic stress disorder as a result of seeing his son involved in a severe car accident which was caused by him driving the car despite his intoxication and it raised the issue of whether a claim for psychiatric damage against the son should be allowed. In reaching the decision that primary victims do not owe a duty of care to a third party in circumstances where their self-imposed injuries caused a third party psychiatric harm, the court referred to a similar German case30 in which the German Bundesgerichtshof held that the wife’s claim for damages for psychiatric harm suffered by her as a secondary victim of an accident in which her husband had died and which was partly caused by his own negligence should not be allowed; it was argued that imposing a legal duty to look after one’s own life in order to save others from psychical effects would restrict an individual’s self-determination and liberty to a great extent inconsistent with the legal system31. This shows that the English High Court based its arguments on the reasoning of the German court and relied upon its policy considerations when it had to decide this case. Thus, comparative legal studies can serve as a useful aid in interpreting and applying domestic law.
4. Confluence of the law and development of general common principles
With regard to the use of comparative legal studies in the development of general common principles a confluence of national laws can be observed, especially at a European level, but also to some extent at the international level32. In this way it fosters the establishment of international relations and it promotes international trade, thereby advancing the general standard of living33. As the world is becoming more and more interconnected, the wish to develop common solutions and the aim to create legal certainty can be set out as incentives for the increasing convergence in recent years and it also suggests that legal phenomena are becoming more similar34. Among other subjects, confluence particularly takes place with regard to sources of law, procedural matters and judicial views35. Eventually, the effect of confluence can be seen at a national level when the national courts consider the jurisprudence of European courts in reaching domestic decisions36.
The European Union can be seen as an example of a system where common principles are developed37. This is particularly mirrored by the practice of the judges of the Court of Justice of the European Union (CJEU) – formerly the European Court of Justice (ECJ) – who are bound to resort to own experience in making decisions with the consequence that principles drawn from all of the European member states are reflected in the law that is applied in European courts38. The judges take different aspects of their respective national law into consideration and they combine these principles or agree on creating new ones. Thus, this procedure results in common guidelines and supports the process of converging the law. For instance, in the case of CILFIT Srl v Ministry of Health 39 before the ECJ, it drew on the French administrative concept of acte clair in the determination of when it is necessary for a national court to make a reference to the ECJ under Article 177 of the Treaty establishing the European Economic Community (TEEC). This article provides that where a question about the interpretation of the treaty or acts of the institutions of the community is raised before a national court of the member states, this court can ask the Court of Justice to give a ruling thereon ‘if it considers that a decision on the question is necessary to enable it to give judgement’40. The ECJ declared in its decision that ‘the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’41. This shows that if there is not any reasonable doubt at all concerning the right application of the European Union law, a domestic court need not refer its question to the ECJ or rather nowadays the CJEU, following the French doctrine of acte clair. Hence, it was illustrated that the CJEU judges’ resorting to national principles and experience in making decisions contributes to the confluence of the law.
1 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 16.
2 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 3.
3 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 7.
4 Peter Stone, EU Private International Law (3rd edn, Edward Elgar 2014) 3.
5 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 6.
6 Peter de Cruz, Comparative Law in a Changing World (3rd edn, Routledge-Cavendish 2007) 9.
7 Mathias Reimann, ‘Comparative Law and Private International Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2008) 1366, 1377, 1380.
8 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 7.
9 Mathias Siems, Comparative Law (Cambridge 2014) 227; Peter Stone, EU Private International Law (3rd edn, Edward Elgar 2014) 3.
10 David Kennedy, ‘The Methods and the Politics’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge 2003) 345.
11 Conklin v Horner, 1968 38 Wis 2d 468,1968 157 NW 2d 579.
12 Mathias Reimann, ‘Comparative Law and Private International Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2008) 1383.
13 Conklin v Horner, 1968 38 Wis 2d 468, 475, 477,1968157 NW 2d 579.
14 Conklin v Horner, 1968 38 Wis 2d 468, 476, 478,1968 157 NW 2d 579.
15 Conklin v Horner, 1968 38 Wis 2d 468, 482–485,1968 157 NW 2d 579.
16 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 8.
17 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 12.
18 Otto Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 Mod L Rev 1–2.
19 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 16; Mathias Siems, Comparative Law (Cambridge 2014) 3–4.
20 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 12.
21 René David and John E C Brierley, Major Legal Systems in the World today (3rd edn, Stevens 1985) 7.
22 Phanor J Eder, ‘Limited Liability Firms Abroad’ (1952) 13 Univ Pitt L Rev 193, 196.
23 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 8.
24 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 18.
25 Peter de Cruz, Comparative Law in a Changing World (3rd edn, Routledge-Cavendish 2007) 21.
26 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 8.
27 Jan M Smits, ‘Comparative Law and its Influence on National Legal Systems’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2008) 519–521; Mathias Siems, Comparative Law (Cambridge 2014) 4.
28 Mathias Siems, Comparative Law (Cambridge 2014) 150–151.
29 Greatorex v Greatorex 2000 1 WLR 1970.
30 BGHZ 56, 163 (1971) – VI ZR 78/70 (VI Civil Senate).
31 Greatorex v Greatorex 2000 1 WLR 1970, 1984, 1987.
32 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 8.
33 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 3–4.
34 Mathias Siems, Comparative Law (Cambridge 2014) 4–5, 227, 233.
35 Basil S Markesinis, ‘Learning from Europe and Learning in Europe’ in Basil S Markesinis (ed), The Gradual Convergence (OUP 1994) 30.
36 Thomas Lundmark, Charting the Divide between Common and Civil Law (Oxford 2012) 9.
37 Mathias Siems, Comparative Law (Cambridge 2014) 244–245.
38 Peter de Cruz, Comparative Law in a Changing World (3rd edn, Routledge-Cavendish 2007) 21.
39 Case 283/81 CILFIT Srl v Ministry of Health 1982 ECR 3415.
40 Treaty establishing the European Economic Community, art 177.
41 Case 283/81 CILFIT Srl v Ministry of Health 1982 ECR 3415 para 16.