Esin Orucu Comparative Law

COMPARATIVE LAW
This innovative, refreshing, and reader-friendly book is aimed at enabling stu-

dents to familiarise themselves with the challenges and controversies found in
comparative law. At present there is no book which clearly explains the contempo-
rary debates and methodological innovations found in modern comparative law.
This book fills that gap in teaching at undergraduate level, and for post-graduates
will be a starting point for further reading and discussion.
Among the topics covered are: globalisation, legal culture, comparative law
and diversity, economic approaches, competition between legal systems, legal
families and mixed systems, beyond Europe, convergence and a new ius commune,
comparative commercial law, comparative family law, the ‘common core’ and the
‘better law’ approaches, comparative administrative law, comparative studies in
constitutional contexts, comparative law for international criminal justice, judi-
cial comparativism in human rights, comparative law in law reform, comparative
law in the courts and a comparative law research project.
The individual chapters can also be read as stand-alone contributions and
are written by experts such as Masha Antokolskaia, John Bell, Roger Cotterrell,
Sjef van Erp, Nicholas Foster, Patrick Glenn, Andrew Harding, Peter Leyland,
Christopher McCrudden, Werner Menski, David Nelken, Anthony Ogus, Esin
Örücü, Paul Roberts, Jan Smits and William Twining. Each chapter begins with
a description of key concepts and includes questions for discussion and reading
lists to aid further study.
Traditional topics of private law, such as contracts, obligations and unjusti-
fied enrichment are omitted as they are amply covered in other comparative law
books, but developments in other areas of private law, such as family law, are
included as being of current interest.
Comparative Law
A Handbook
Edited by
Esin Örücü
and
David Nelken
OXFORD AND PORTLAND, OREGON

2007
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Preface
Comparative law has often been criticised for lacking in theory, Euro-centric,
and black-letter-law and private law oriented. The purpose of this Handbook is
to familiarise students with both classical and new material, and with the cur-
rent and controversial issues of comparative law and comparative legal studies.
At present, there is no textbook in the English language on contemporary issues
of comparative law or comparative legal studies. Traditional introductory books
first cover the aims, purposes, uses and methodology of comparative law, after
which students are introduced to the major legal systems and prominent ‘legal
families’. The substantive law dealt with is private law; the traditional area in
which comparatists have hitherto worked. Times have changed. Other topics are
of crucial importance today.
Our purpose is to fill this gap in comparative law teaching and study. The
Handbook is envisaged for use by undergraduates but will also be of use to post-
graduate students for whom it will provide starting points for further discussion.
At a basic level it will encourage readers to ask questions and at a later stage, when
they have covered the essential groundwork, lead them on to question what they
have learnt. Students are introduced to each topic through the work of experts in
their fields.
Commencing with a general introduction to comparative law and comparative
legal studies, and a critical overview with a detailed signalling system binding
the book together, the Handbook moves on to contemporary and burgeoning
areas of comparative law. This treatment enables the reader to discuss current
relevant debates and issues such as convergence/non-convergence, law in context
(culture and economics), cultural distinctiveness, globalism versus localism,
systems in transition, the use of comparative law by judges and the role of com-
parative law in law reform activities and harmonisation, public law comparisons
in both constitutional law and administrative law, a new common law in human
rights, the ‘common core’ and the ‘better law’ approaches, comparative criminal
law, commercial law and family law, and comparative law looking beyond the
Western world.
Other topics such as comparative environmental law, e-commerce, Alternative
Dispute Resolution, bio-ethics or food safety could have been included, but
choices had to be made. We selected some topics which have been either hitherto
neglected or which do not appear in any standard comparative law textbook.
Traditional topics of private law, such as contracts, obligations, unjustified enrich-
ment and tort (delict) are deliberately omitted as these have been amply covered
in comparative law textbooks. No direct information is given concerning different
vi Preface
jurisdictions either. Since a number of books are readily available covering such
jurisdictions, it is more appropriate to leave the choice to individual lecturers.
By using this innovative Handbook, which is reader-friendly both in the topics
covered and the way the topics are treated, readers will be placed firmly in the
contemporary picture. They will be able both to discuss critically the traditional
areas and to access current issues presented by experts.
Each chapter starts with a paragraph on key concepts (glossary) and ends
with a list of questions for discussion. There are suggestions for further reading
attached to each chapter for those who may wish to write essays on a particular
topic. There are diagrams and tables wherever necessary. Each chapter highlights
website connections. Links to university web pages, course outlines and reading
lists, Comparative Law Forums, such as that of the University of Oxford, and elec-
tronic journals, such as the Electronic Journal of Comparative Law, are included.
The Editors
Contents
Preface ....................................................................................................................v
List of Contributors .............................................................................................. ix
I. Comparative Law at a Cross-roads ............................................................1
1. Comparative Law and Comparative Legal Studies........................................3

DAVID NELKEN
2. Developing Comparative Law ......................................................................43

ESİN ÖRÜCÜ
II. New Directions for Comparative Law .....................................................67
3. Globalisation and Comparative Law ............................................................69

WILLIAM TWINING
4. Com-paring ...................................................................................................91
H PATRICK GLENN
5. Defining and Using the Concept of Legal Culture ....................................109

DAVID NELKEN
6. Is it so Bad to be Different? Comparative Law

and the Appreciation of Diversity ..............................................................133
ROGER COTTERRELL
7. The Economic Approach: Competition between Legal Systems ..............155

ANTHONY OGUS
8. A General View of ‘Legal Families’ and of ‘Mixing Systems’ ....................169

ESİN ÖRÜCÜ
9. Beyond Europe ............................................................................................189

WERNER MENSKI
III. New Territories for Comparative Law ...................................................217
10. Convergence of Private Law in Europe:

Towards a New Ius Commune? ................................................................. 219
JAN M SMITS
viii Contents
11. Comparative Family Law: Moving with the Times? ...............................241

MASHA ANTOKOLSKAIA
12. Comparative Commercial Law: Rules or Context? .................................263

NICHOLAS HD FOSTER
13. Administrative Law in a Comparative Perspective ..................................287

JOHN BELL
14. Comparative Law in Constitutional Contexts .........................................313

ANDREW HARDING AND PETER LEYLAND
15. Comparative Law for International Criminal Justice..............................339

PAUL ROBERTS
16. Judicial Comparativism and Human Rights ...........................................371

CHRISTOPHER MCCRUDDEN
17. Comparative Private Law in Practice: The Process of

Law Reform ...............................................................................................399
SJEF VAN ERP
18. Comparative Law in Practice: The Courts and the Legislator ................411
ESİN ÖRÜCÜ
19. A Project: Comparative Law in Action ....................................................435

ESİN ÖRÜCÜ
Index ..................................................................................................................451
List of Contributors
Masha Antokolskaia is Professor of Private Law of the Vrije Universiteit
Amsterdam, The Netherlands.
M.V.Antokolskaia@rechten.vu.nl
John Bell is Professor of Law at the University of Cambridge, UK.

Jsb48@cam.ac.uk
Sjep van Erp is Professor of civil law and European private law, Maastricht
University; President of the Netherlands Comparative Law Association; Editor-
in-Chief of the Electronic Journal of Comparative Law; and Deputy-Justice Court
of Appeals Hertogenbosch, The Netherlands.
S.vanErp@PR.unimaas.nl
Roger Cotterrell is Anniversary Professor of Legal Theory at Queen Mary,

University of London; and a Fellow of the British Academy, UK.
R.B.M.Cotterrell@qmul.ac.uk
Nicholas HD Foster is a lecturer at the School of Law, School of Oriental

and African Studies, University of London, UK; and Editor of the Journal of
Comparative Law.
Nf4@soas.ac.uk
Andrew Harding is Professor of Asia-Pacific Legal Relations at the University of

Victoria, BC, Canada.
harding@uvic.ca
Peter Leyland is Professor of Law at London Metropolitan University, UK.

p.Leyland@londonmet.ac.uk
H Patrick Glenn is Peter M Laing Professor of Law, Faculty of Law and Institute
of Comparative Law, McGill University, Montreal, Canada.
h.glenn@staff.mcgill.ca
Christopher McCrudden is Professor of Human Rights Law, University of

Oxford, UK.
Christopher.mccrudden@law.ox.ac.uk
Werner Menski is Professor of South Asian Laws, School of Law, School of

Oriental and African Studies, University of London, UK.
Wm4@soas.ac.uk
x List of Contributors
David Nelken is Distinguished Professor of Legal Institutions and Social Change

at the University of Macerata, Italy; Distinguished Research Professor of Law,
University of Wales, Cardiff, UK; and Visiting Professor of Law at the London
School of Economics, UK.
Sen4144@iperbole.bologna.it
Anthony Ogus is Professor of Law, University of Manchester, UK; and Research

Professor, University of Maastricht, The Netherlands.
Anthony.Ogus@man.ac.uk
Esin Örücü is Professorial Research Fellow and Professor Emerita of Comparative

Law, University of Glasgow, UK; Professor Emerita of Comparative Law, Erasmus
Universiteit, Rotterdam, The Netherlands; Visiting Professor of Comparative
Law at Yeditepe University, Istanbul, Turkey; and Member of the International
Academy of Comparative Law.
e.orucu@law.gla.ac.uk
Paul Roberts is Professor of Criminal Jurisprudence in the University of

Nottingham School of Law, UK; Editor of the International Journal of Evidence
and Proof; and Convenor of Nottingham’s LLM in International Criminal Justice
and Armed Conflict.
Paul.Roberts@nottingham.ac.uk
Jan M Smits is Professor of European Private Law, Maastricht University, The

Netherlands.
Jm.Smits@PR.unimaas.nl
William Twining is Quain Professor of Jurisprudence Emeritus, University

College London, UK; and Visiting Professor, University of Miami School of Law,
USA.
wlt@wtwining.fsnet.co.uk
I
Comparative Law at a Cross-roads

1
Comparative Law and Comparative
Legal Studies
DAVID NELKEN
KEY CONCEPTS
Aims of comparative law; First order and second order enquiries; Multi-
disciplinary and interdisciplinary study; Law in context; Context in law;
Similarities and differences; Practices.
I. INTRODUCTION
W hat is happening to comparative law? Not so long ago it could be said

that
colleagues are not interested in foreign law; students are ethnocentric boors; the bar
consists of monolingual hicks; deans won’t finance foreign travel, nobody will take
Comparative Law (Örücü 2004: 215).
But, amidst the current processes of borrowing, imitation and imposition of law
and increasing global interdependence (both desired and undesired), comparative
law is truly coming into its own. There are still scholars who see the main purpose of
the subject as ultimately a practical one, for example as a way of encouraging judges
to learn about solutions found in other jurisdictions to problems in tort, contract or
other legal areas. Similarly, with an eye on the legislator, there are important collec-
tive projects looking for a ‘common core’ of private law, or seeking to promote legal
harmonisation in the European Union. On the other hand, other scholars argue
that we need to go beyond such traditional pursuits and reach towards what has
been called comparative legal studies (Legrand and Munday, 2003). New journals
are being founded (for example, in the United Kingdom, the International Journal
of Law in Context and the Journal of Comparative Law), and path-breaking mono-
graphs, such as Patrick Glenn’s ambitious study of seven different legal traditions
(Glenn, 2000/2004), are stimulating interest and controversy.1 So the subject finds
itself at something of a cross-roads. Jaakko Husa puts it this way:
1 For pedagogic reasons we have had to limit the handbook to work published in English. However,
it is important to say in a book about comparative law that foreign legal and academic cultures and
4 David Nelken
as regards the future of the discipline, we seem to have many incompatible directions
and goals instead of one. Professional comparative law and academic comparative law
are living together in an uneasy relationship buried under the European integration
debate (Husa, 2005:1).
The main point of this Handbook is therefore to offer some signposts for students
coming to this important and fascinating but also difficult subject. To this end
the volume contains discussions of both theory and substantive areas, and the
contributors include distinguished legal and social theorists as well as leading spe-
cialists in comparative law. A wide variety of theoretical positions are represented,
and some of the standpoints which we have not managed to include, such as the
‘neo-romantic turn’ (Whitman, 2003a), or post-modern theorising (Frankenberg,
2006a), are discussed by other contributors in their chapters, and referred to in
this introduction. But we make no pretence to have covered everything,2 and there
is no substitute for reading writers in their own words. As regards substantive top-
ics, we have succeeded in providing coverage not only of traditional private law
topics3 but also of public law matters, including comparative constitutionalism,
and of the increasingly important types of transnational legal processes such as
international criminal law and human rights law. But illustrations of more social
or socio-technical types of problem-oriented law, such as labour law, immigra-
tion law, telecommunications law and environmental law, would also have been
instructive. There are also no chapters dealing with the growing role of lawyers
and other professionals in forging international standards and mediating transna-
tional disputes. On the other hand, no one book could do justice to the full range
of recent contributions to this exploding discipline. Indeed, part of the reason for
having a review such as this is to unsettle the normal contents of what would be
thought appropriate for a handbook of comparative law.
II. AN OVERVIEW OF THE HANDBOOK
The first part of this volume contains introductory chapters by each of the co-
editors of the Handbook. In the first chapter I shall try to bring out some of the
common themes that are illuminated when the various contributions to the book
are put together. After offering a summary of the other chapters, I then seek to
traditions all have distinctive contributions which have often not been translated (and are sometimes
not easy to translate). In Italy, for example, whilst many of the scholars in the major comparative law
‘school’ founded by Rudolfo Sacco publish also in English, some of the most brilliant discussions of
transnational legal processes are only be found in still untranslated works such as those by Natalino
Irti and Maria Rosaria Ferrarese.
2 The authors were recruited through the excellent networks of Esin Örücü, who conceived the
idea for this Handbook.

3 This is not to deny that studying private law in Europe still has great potential for producing intel-
lectual surprises. Apart from the regular rewriting of the overlapping history of the common and civil
law worlds, European scholars are particularly well placed to bring out differences in these contrasting
systems which they can get to know in some depth. See, eg Van Hoecke, 2002, or the prolific work of
Pierre Legrand.
Comparative Law and Comparative Legal Studies 5
show their relevance to understanding the relationship between ‘comparative law’

and ‘comparative legal studies’. In a section called ‘Going beyond’, I discuss the
different directions opening up for comparative law, and then go on to comment
on what is involved by seeking to add ‘context’. I follow this with a consideration
of the vexed problem of similarities and differences, and end with a discussion of
comparative law in practice. As will be seen, although these issues are considered
separately for clarity of exposition they are also closely intertwined with each
other. This chapter is probably best read first lightly as a preface, and again, more
carefully, as an afterword, once the later chapters have been studied. The ques-
tions at the end are intended to assist in generating discussion of the different
approaches and topics dealt with in this Handbook as a whole.
The second of our two introductory chapters, entitled ‘Developing Comparative
Law’, is contributed by Esin Örücü. It sets out to provide a brief survey of the ‘state
of the art’ of the discipline similar to that found in the introductory parts of
comparative law courses. Örücü highlights the changing nature of comparative
law and discusses issues related to ‘intra-cultural and cross-cultural comparison’,
the definition, uses and purposes of comparative law, macro and micro compari-
sons and other aspects of its methodology. She reflects on the questions ‘What
to compare?’ and ‘How to compare? the two starting points of comparative law
and reviews functional, factual and ‘law in context’ approaches. She also offers
an outline of recent debates over the role of comparative law, which she sees as
encompassing objectives as varied as aiding law reform and policy developments,
providing a tool of research to reach a universal theory of law, giving a critical
perspective to students, aiding international law practice, facilitating international
unification and harmonisation of laws, helping courts to fill gaps in the law and
even working towards the furthering of world peace and tolerance.
The second section of the handbook, entitled ‘New Directions for Comparative
Research’, is that which groups together those chapters dealing with some of the
theoretical challenges that are currently facing comparative law. The first chap-
ter, ‘Globalisation and Comparative Law’ by William Twining, provides a vivid
picture of what is probably the most significant of these challenges, namely, how
to understand the role of law in the trends, processes and interactions which are
making different parts of the world more interdependent in so many complex
ways. Twining puts forward a forthright manifesto for moving to a broader
agenda of comparative legal studies rather than continuing with ‘business as
usual’. Comparative law, he argues, lacks adequate analytic concepts and reliable
data for giving general accounts of law in the world that comprehend the transna-
tionalisation of law and legal relations which, to a greater or lesser extent, by-pass
the state. Whilst warning that the term globalisation can be misused, Twining
nonetheless recommends a global perspective capable of doing justice to the
diversity of forms of normative and legal ordering, such as the Internet, religious
diasporas, networks of NGOs, or the many internal and external relations of large
corporations that co-exist in the same time-space context. As well as criticising
the narrow focus on European private law of much comparative law, the chapter
also raises a series of questions about the relationship between comparative law
6 David Nelken
and other research traditions such as that represented by subject area experts
or scholars studying the ‘bottom-up’ activities of counter-hegemonic social
movements.
In his chapter called ‘Com-paring’, Patrick Glenn argues that Western legal
theory has been founded on an epistemology of conflict, based on the twin ideas
of separation and reification of human groups. As against this he suggests that
thinking in terms of legal traditions allows for an epistemology of conciliation
based on multivalent logic and the tolerance of diversity. Legal systems are:
best conceptualised as instantiations of a particular legal tradition. As such, they are
conceptually equal to, and on a par with, other legal traditions, which all exist as self-
conscious bodies of legal information, sustained over considerable periods of time.
As the source of normative information, traditions do not have clear boundaries

but instead overlap. Rather than presuming a radical separation between laws
we should look for a ‘logic of fuzziness’ because in the real world boundaries are
never sharp. He suggests that transnational lawyering and international com-
mercial law provide evidence that legal systems are not separate. He also argues
that his approach is one well suited to recognising the continuing importance of
religious laws and to reminding us of the lost history of the relationship between
‘common laws’ and local laws.
The chapter on ‘Defining and Using Legal Culture’ by David Nelken deals with
the ways in which the term ‘legal culture’ is defined by comparatists and employed
in their research projects. He focuses in particular on the way this key concept
allows us to bring out the interconnections between law, society and culture. After
distinguishing between legal and social scientific uses of the term, Nelken com-
ments on criticisms of the idea of legal culture and of the polysemic concept of
culture itself. He then examines some of the main difficulties of using this term
in explanatory enquiries: What ‘units’ of legal culture other than national juris-
dictions need to be borne in mind? What gives coherence to the different units?
Must such units exist for social actors themselves or is it enough for them to be
present for the observer? In using culture or legal culture as an explanation how
can the risk of circular and tautological arguments be avoided? Nelken ends by
considering the possibility of cultural bias in the ways in which we think about
legal culture.
In the subsequent chapter, ‘Is it so Bad to be Different: Comparative Law and
the Appreciation of Diversity’, Roger Cotterrell explores the general conceptual
issue of looking for similarities and differences between laws and legal systems.
He notes that the concern with harmonisation and convergence can be seen as the
continuation of a project of seeking underlying universal principles in law, whilst
the concern for difference can be linked to the valuing of diversity. He counter-
poises functional and cultural approaches to law and argues that it may be unsafe
to identify functions without asking whether local values, traditions or sentiments
‘differently colour the definition of those functions, the importance attached to
them and the tests of their successful fulfilment’. Cotterrell then introduces an
analogy between the concern for difference in comparative law and debates about
assimilation and multi-culturalism. He ends by praising recent work which takes
a broad approach to explaining cross-cultural differences in values.
The contribution from Anthony Ogus is called ‘The Economic Approach:
Competition between Legal Systems’. Ogus argues that legal frameworks have an
enormous impact on economies and the pursuit of economic growth can also
help to explain legal developments and the relationship between developments in
different legal systems. He suggests that comparative lawyers could find it useful
to think in terms of allocative efficiency and to reason in terms of costs and ben-
efits. The chapter seeks to substantiate the following propositions: Common law
systems may have features which have been particularly conducive to economic
growth; competition between legal systems occurs particularly where there is
freedom of choice as to the applicable legal regime; competition between legal
systems tends to influence a convergence of legal principles in areas of facilitative
law; practising lawyers may be expected to oppose reforms including proposals for
convergence of legal systems which will reduce the demand for their services; and,
finally, an economic interpretation of ‘legal culture’ suggests that it is a ‘network’
which may reduce the costs of communication between those using the legal sys-
tem, but, on the other hand, its characteristics may also be exploited by practising
lawyers to resist competition. Ogus also suggests that ‘hybrid’ legal systems may
benefit from the competition of legal cultures inherent within one jurisdiction.
He ends by indicating the features of English common law which may have been
particularly favourable to economic growth.
The starting point of chapter eight, ‘A General View of Legal Families and of
Mixing Systems’ by Esin Örücü, is that the current approach to classification of
legal systems is too Euro-centric and is too much shaped by thinking only about
legal rules, especially those of private law. She argues that all legal systems are
overlaps and, to a greater or lesser degree, mixed. Legal systems of places such as
Malta, Hong Kong, Malaysia, Thailand and Turkey are given as examples of certain
types of mixes. But the author also challenges the view that the classical ‘mixed
jurisdictions’ are the only mixed systems that should be given pride of place. It
is important also to study ongoing mixes that result from encounters, overlaps
and combinations. These processes account for the birth of legal systems just as
‘contamination’ accounts for legal change. These assumptions lead the author
to challenge the established classification of legal families and suggest that legal
systems should rather be seen as lying along a spectrum. A number of theories are
put forward to explain the similarities and differences between legal systems such
as the ‘tree model’, the ‘wave theory’, and ‘transposition’. For Örücü, the point of
looking for new metaphors is to deconstruct the conventionally labelled pattern
of legal systems and to reconstruct them with regard to origins, relationships,
overlaps and inter-relationships, and diverse ‘fertilisers’ such as the social and
cultural context, and the ‘grafting’ and ‘pruning’ used in their development.
Towards the end of chapter eight Örücü quotes approvingly the assertion by
Andrew Harding that the idea of
8 David Nelken
legal families tells us nothing about legal systems except as to their general style and
method, and the idea makes no sense whatsoever amid the nomic din of South East Asia.
The same point is well illustrated in Werner Menski’s contribution, ‘Beyond

Europe’ (chapter nine). Menski argues that, for historical reasons, Asian, African
and other non-Western legal systems are inherently more attuned than Western
legal systems to the intellectual and practical challenges of comparative law and
legal pluralism. Practitioners and scholars in these places are acutely conscious
of the dynamic nature of legal systems as constantly renegotiated entities that
can be manipulated in many ways to achieve desired outcomes. They are likewise
more aware of the continuing importance of religion and custom even in modern
conditions. Menski shows how Hindu law, Islamic law and other legal systems co-
exist within a national legal regime, and all contribute to a culture-specific, com-
posite national identity unique to a particular country. He ends by providing an
extended description of how the Indian Supreme court was able to bring Muslim
personal law into line with the majority law and the secular ‘lead model’ in India.
The way this was achieved, he suggests, may serve as a model for other nations in
terms of coping with diversity and difference.
The third and longest section of the Handbook provides illustrations of
more substantive discussions of comparative law.4 Though it includes relatively
uncharted topics it begins by re-examining that most mainstream of issues, the
degree of actual or ideal convergence of private law in Europe. In his chapter
‘Convergence of Private Law in Europe: Towards a new ius commune?’ Jan Smits
asks: Is there a need for unification of private law in Europe? How does it take
place? Is it possible? What methods can be used to make private law more uni-
form? Smits notes that across Europe there are four types of civil code and that
these are interpreted differently in all its many different jurisdictions. He com-
ments critically on current processes towards greater harmonisation through
international conventions and European Union Directives saying that these do not
make a coherent whole, are difficult to monitor and have unpredictable effects.
He then asks how it might be possible to do better. As positive reasons for moving
towards unification Smits points to the development of the common market and
the need for a symbol of European unity. But he also acknowledges that there are
virtues in diversity, as this may be a reflection of economic or cultural preferences
and can stimulate competition and innovation. He therefore proposes what he
calls a ‘bottom up’ approach to harmonisation, which involves the enhancement
of European legal science and education, the drafting of principles of European
law and encouraging competition amongst legal systems.
The theme of harmonisation is taken up again in the subsequent chapter
‘Comparative Family Law: Moving with the Times?’ (chapter eleven) by Masha
4 While such a division is useful for expository purposes we are not proposing that a hard and
fast line can or should be drawn between the more theoretical and more substantive parts of the
Handbook.
Antokolskaia. Unlike that of Smits, this chapter reflects the conviction that, at
least in this field, some form of top-down harmonisation is both necessary, and
is already succeeding. Antokolskaia shows us that traditional norms in Western
Europe have been undergoing similar transformations due in part to changes
in the economy, especially those leading to more women working and the later
socialisation of youth, and also due to pressures of political action in favour of
women’s rights. She details the general trends in family law in Europe in the last
decades, such as the acceptance of the right to marry as a fundament human right,
the diminishment of marriage impediments, the lowering of the age of capacity to
marry, and the granting of equal legal rights to spouses. She also describes the role
played in these developments both by the European Court of Human rights and
by groups of family law scholars. While acknowledging that differences remain,
she argues in favour of comparative lawyers seeking to produce ‘better law’-type
recommendations to legislators.
Antokolskaia’s account of common trends and principles in family law provides
evidence against the common claim that family law is particularly unsuited to
harmonisation because it is so linked to historical and cultural specificities. In his
chapter on ‘Comparative Commercial Law: Rules or Context?’ (chapter twelve)
on the other hand, Nicholas Foster seeks to make the opposite argument. He
emphasises the importance of legal culture, which allows us to move beyond what
he calls the common ‘instrumentalist’ view of commercial law that assumes it to
be a culturally neutral technical subject. In a wide-ranging chapter he first sets the
background to current developments in commercial law in a globalising world.
He goes on to stress how historically-shaped differences in attitudes to commerce
still affect legal decision-making even in countries which otherwise have a good
deal else in common such as France, the UK and Denmark. Foster also discusses
the extent to which differences in legal culture prevent the successful transplant-
ing of commercial law, and reminds us that legal agreements and conventions
may often be applied differently in practice from place to place. He does concede,
however, that
where the group of people practising and using the law is quite homogenous (as in inter-
national financial law), the broader context may not be of great importance.
The two chapters that follow both have to do with public law. In his chapter on
‘Administrative Law in a Comparative Context’ (chapter thirteen) John Bell offers
a careful comparison of English, French and German law so as to explore the
differences within and between common law and civil law approaches. He asks:
What does each system include within its conception of ‘administrative law’? Who
is governed by ‘administrative law’? In particular, how are the rules of public law
separated from those of private law? What powers does ‘the administration’ have?
What procedures does the administration need to adopt when making decisions?
Who provides remedies against the administration? What judicial control is exer-
cised over misuse of powers? When is the administration liable for its actions and
how is this liability different from that of a private individual? In responding to
10 David Nelken
these questions Bell describes the different but overlapping understandings of the
idea of the ‘rule of law’, discretionary decisions, the liability of the administration,
and the difference between explicit or assumed powers. He also offers illustrations
of the practical consequences implied by different answers to these questions with
respect, for example, to the way the welfare state mission affects the use of govern-
ment powers or explaining why either nationalised railways or a national health
service can be more or less difficult to privatise in different jurisdictions.
The next chapter by Andrew Harding and Peter Leyland, ‘Comparative Law
in Constitutional Contexts’ (chapter fourteen), focuses on comparing consti-
tutions around the world. It begins by pointing out that constitutions, which
seem similar in form, can have different functions, and that what is important
in comparing constitutions is to see how they are interpreted, lived with and
changed over time. The authors make a distinction between constitutions and
‘the culture of constitutionalism’; it is the latter, by shaping political behaviour,
that makes effective constitutions possible, rather than vice versa. They therefore
warn against thinking that good constitutional design can be a substitute for the
exercise of political power with integrity and self-imposed restraint. Harding
and Leyland set out an analysis of the functions that constitutions are usually
intended to perform as regards the definition of institutional powers, and how
they establish lines and schemes of accountability. They also offer a short histori-
cal account of four different waves of constitution-making, from the American
Declaration of Independence to the constitution-making of former communist
states. They underline the contribution that comparative lawyers can make to
the drafting of international treaties, and argue that the move towards ‘world
constitutionalism’ must embrace the increasingly important role of international
organisations.
Harding and Leyland make some reference to the role of constitutional litiga-
tion in human rights cases. But the protection of rights is absolutely central to the
two subsequent chapters by Paul Roberts and Christopher McCrudden (chapters
fifteen and sixteen). In ‘Comparative Law for International Criminal Justice’ Paul
Roberts argues that comparative law has an indispensable contribution to make
to the study of this fast-changing subject. He proposes that we think of it in terms
of seven concentric circles. These encompass topics that range from the legal rules
and procedures that define international crimes to the institutions which imple-
ment and develop such rules, and from the role of international tribunals today
as compared to the past, to the difference between permanent and ad hoc hybrid
tribunals. He suggests that transnational criminal law, broadly conceived, includes
scholars’ and researchers’ contributions to this interdisciplinary project. Roberts
then sets out six ways in which comparative law is relevant to the subject as he has
charted it. He concludes that
[w]ith mounting pressures for closer legal co-operation between Member States to com-
bat fraud, illegal immigration, people trafficking, drug smuggling, cross-border arms
running, and—above all—international terrorism, the impetus towards integration and
harmonisation of Member States’ domestic laws is bound to intensify.
McCrudden’s chapter, ‘Judicial Comparativism and Human rights’ (chapter seven-

teen), also has to do with studying the spread of types of law and legal institutions
that inherently transcend borders. If human rights law is essentially universalistic
in its purported reach, comparative law can be useful to human rights theorists
in showing how far values are in fact universally shared in practice. McCrudden
argues that courts play an impressive role in the creation of a common law of
human rights. In an effort to clarify the appropriate relationship between human
rights interpretation and comparative legal methods, he offers a discussion of how
courts analyse human rights, how they think about the role and function of the
comparative method, and the continuing debate about the legitimacy of judicial
decision-making.
McCrudden points to tensions in the relationship between comparative law
and human rights such as the competition between relativism and universalism,
functionalism and interpretavism, the need for judicial review and the counter-
majoritarian objection. As an illustration of the issues that arise in the use by
judges of comparisons in human rights, he offers a detailed account of recent dis-
cussions in the United States Supreme Court of the constitutionality of aspects of
the death penalty and the criminalisation of sodomy between consenting adults.
Describing the different arguments of the Supreme Court justices he concludes
that reference to foreign judgments may be more justified in the area of human
rights than in many other areas of law because their development can be seen as
part of an ongoing conversation that transcends national jurisprudence.
The final chapters all deal squarely with practical aspects of comparative
law. In his chapter, ‘Comparative Private Law in Practice: The Process of Law
Reform’ (chapter seventeen), Sjef van Erp offers us valuable insights from the
perspective of an academic who is also a practitioner engaged in giving advice
in foreign jurisdictions. He stresses above all the need for a pragmatic attitude.
A law reform project, he argues, demands a different approach from that of an
in-depth academic article. One has to be realistic and recognise that advice given
will not always function well in practice or even be applied at all in the receiv-
ing country. It helps if the expert really is an expert, if she has socio-cultural,
economic and political awareness as well as legal competence, if she comes from
a similar legal tradition and if reference can also be made to wider developments
such as the working out of common principles of contract law. Personal integrity
is vital, so that the advice is seen as objective information rather than reflecting
national interest (so it can be useful if one is from a smaller country such as The
Netherlands). Conversely, there can be problems if the funder of a project is
tempted to interfere, for example when an institution from a common law coun-
try funds a civil law expert. Van Erp mentions some of the situations in which
comparative lawyers may be asked to provide advice. He suggests that one has to
accept that there are times when one has to step back and leave it to the receiving
country to make its own political decisions.
The next chapter, Esin Örücü’s ‘Comparative Law in Practice: The Court and
the Legislator’ (chapter eighteen) deals with the subject of when references are
12 David Nelken
made to other legal systems, (a question that is also discussed in McCrudden’s

comments on courts and van Erp’s on legislative reform). Örücü argues that even
when judges are convinced that applying their own national laws would offend
their sense of justice they nonetheless are reluctant to give the impression that they
have used foreign law to plug gaps in their own systems. On the basis of research
projects studying the citation of foreign judgments in the UK over the last 30
years, the author shows that regular resort to foreign law occurs mainly in cases
where foreign law is itself involved in the legal dispute as well as those that involve
international conventions and transnational regulations. She explains some of the
different ways in which foreign materials may be (and should be) used, and dis-
tinguishes between ‘functional’ and ‘ornamental’ citations. She ends by explaining
some of the outstanding issues facing judges who wish to use foreign materials.
The final chapter, ‘A Project: Comparative Law in Action’ (chapter nineteen),
by the same author, is directed to those who are new to comparative law and who
would like to carry out empirical research but are worried by their lack of social
scientific qualifications. Örücü’s message is that even relatively unsophisticated
methods of gathering data represent an essential supplement to relying on court
reports and other documents. She first discusses the central role played by ques-
tionnaires about real or hypothetical cases in gathering information about foreign
law. She then goes on to describe an early interdisciplinary effort to find out about
the level of use of European law by Scottish and Dutch lawyers and their attitudes
towards using it. The hypothesis of the research project that Dutch lawyers were
more likely than Scottish ones to engage in European litigation and that this was
linked to their more favourable attitudes to European lawwere both supported.
Örücü suggests that even a basic research exercise of this kind could prove its
worth as a way of exploring what use lawyers in the new accession countries will
likely make of European Union law.
III. GETTING BEYOND
What idea of comparative law emerges from these chapters? Does it have a proper
subject-matter, or is it no more than a method? As we would expect, the aims of
the subject will shape the way it is conceived. It will vary depending on whether
the goal is that of finding out relevant legal rules in another jurisdiction, under-
standing another society (and, by contrast, one’s own society) through its law,
searching for commonalities, or showing the difficulty of translating the texts and
experience of other people’s law. But, as suggested at the outset of this chapter,
much current controversy surrounds the priority that comparative law should
give to practical tasks. In a recent overview of the subject, which she characterised
as enigmatic, Örücü suggested that its identity can best be understood as pulled
between two alternatives. One approach treats comparative law as ‘an autonomous
branch of social science or science of legal knowledge’, as ‘a high level analytical
subject’ and ‘an end in itself ’. The second is more sceptical about comparison as
an activity in its own right and more interested in comparing rules and institu-
tions for the practical purposes of adjudication and law reform. (Örücü, 2004;
and Nelken, 2006d). These competing perspectives can be loosely linked, as we
shall see, to other contrasts such as that between marginal and mainstream work,
liberal and critical stances, and modernist and post-modernist epistemologies. It
is over this terrain that a territorial war between comparative law and comparative
legal studies is being fought.
We can point to examples in this Handbook of both the approaches that Örücü
distinguishes. To these we could add a further approach, however, in which com-
parative law is seen as a ‘second-order’ type of investigation (an enquiry into the
way other people make their enquiries). The point of comparative law is taken
to be to make the best sense possible of the comparative work undertaken by
other social actors such as judges, legislators, lawyers and others. Arguably, this
approach could also help us to bring out the best in the other two approaches by
inviting us to develop theories about other people’s practices, exposing the variation
amongst different groups of actors, in different places—and at different times—as
they identify the salient features of other people’s legal systems. This approach also
extends reflexively to analysing the way comparative law evolves as a discipline, as
well as the actions and writings of single authors, as these change over time.
This last approach to comparative law should not be assumed to be in competi-
tion with the others. In this volume, for example, many of the authors, whatever
else they discuss, also engage in analyses of how judges or other comparative law
scholars carry out their exercises in comparison. There is even, though to a lesser
extent, some consideration given to the important question of how different role
requirements and social conditions help to condition such exercises. It follows
that the readers of these essays will also be doing comparative law when seeking
to interpret the approach to comparative enquiry represented by the various con-
tributions to this Handbook.
But where will all this get us? Certainly there is no lack of ambition in claims
being made for what it is that comparative law can achieve. And this contrasts
strangely with the more modest claims currently being made for their work by
the social scientists or humanist scholars, who are seen as the potential allies of
those who advocate a move from comparative law to comparative legal stud-
ies. The introduction to the Utrecht Congress of the International Academy of
Comparative Law in 2006, for example, announced:
[W]e look over the fence of our neighbour in pursuit of the common fate: to identify
and grasp the human nature; indeed, to share the human destiny and to unite the
human forces.5
Many of the authors in this volume also aim high—even if not quite so high.
According to Patrick Glenn, ‘the com-paring of laws is fundamental in the
5 Opening address at the XVIIIth Congress of the International Academy of Comparative Law,
16–22 July 2006 at Utrecht by Professor Konstantinos Kerameus, President.

14 David Nelken
process of globalisation and in the pursuit of peaceful relations between peoples’

(Glenn: 93). Likewise, Paul Roberts argues that comparative law can be used to
demonstrate
that there is something that can be done by the international community in response
to genocide, crimes against humanity and other massive, state-sponsored violations
of fundamental human rights during civil wars or by tyrannical governments abusing
their own people. Almost irrespective of the merits and generalisability of the Tribunals’
activities, the practical enforcement of international criminal law can no longer be dis-
missed peremptorily, as the fantasy of idealists (Roberts: 346).
According to Harding and Leyland,

comparative law offers the law student a whole new dimension: from it he can learn to
respect the special legal cultures of other people, he will understand his own law better,
he can develop critical standards which might lead to its improvement, and he will learn
how rules of law are conditioned by social facts and what different forms they can take
(Harding and Leyland: 332).
As far as their own chapter is specifically concerned, they argue that comparative
study of constitutions can help bring about ‘good governance and global jus-
tice, [and] go some way towards correcting the often oppressive and sometimes
incompetent behaviour of governments.’ The alternative does not bear thinking
about; ‘the price of failure is an increased chance of conflict, poverty and fragmen-
tation affecting everyone.’ But could we be asking too much of comparative law?
Even Harding and Leyland admit, regarding comparative constitutionalism, that
‘this subject has little history, less theory and relatively few pieces of outstanding
literature’. As far as seeking to bring about ‘global justice’ is concerned, recent
attempts to do so have made it even harder to tell when indifference or interfer-
ence is the greater evil.
Manifestos apart, the papers actually delivered at the recent Conference in
Utrecht reveal the familiar bias towards more modest policy-oriented type of work.
A few theoretical papers dealt with what is involved in doing comparative law;
some contributions described developments in the law itself, as seen in titles such
as ‘pure economic loss’ or ‘new developments in succession law’. There were a good
number of presentations comparing legal institutions, such as ‘the constitutional
guarantees of the judiciary’; ‘the civil, criminal and disciplinary liability of judges’;
‘plea-bargaining, negotiating confessions and consensual resolution of criminal
cases’; ‘new experiences of international arbitration with special emphasis on legal
debates between parties from Western Europe and Central and Eastern Europe’;
and ‘the constitutional referendum’. The large majority of papers, however, focused
on legal-policy issues with cross-national implications: these included ‘the digi-
tisation of literary and musical realisations’; ‘cross-border mergers in Europe’;
‘tensions between legal, biological and social conceptions of parentage’; ‘legal
limitations on genetic research and the commercialisation of its results’; ‘the fight
against organised crime’; the “polluter pays” principle’; ‘abusive advertising on the
internet’; ‘euthanasia control’; and ‘the responsibility of rating agencies’.
There is no doubt that at least some of these topics have to do with serious
(even global?) social problems. But it remains uncertain how far comparative
law will help us find the ‘solution’ to such problems any more than domestic
law does for similar domestic problems. Not a few of these ‘problems’ are closely
intertwined with otherwise valued features of national or international society
rather than being a simple matter of a conflict between the forces of good and
evil. And the answers which would find favour in richer, secular Western countries
may often not be the same as those that would be acceptable or appropriate in
poorer and more religion-centred societies. Most importantly, it cannot be taken
for granted that (more) law is always the answer to such problems. At the least we
may suspect that the lack of theoretical papers at the conference meant that these
issues were not fully addressed.
Can this volume help us do better? Is the way forward to develop a compara-
tive legal studies—so as to be in a better position to fulfil such projects of socio-
legal engineering or alternatively learn to reduce our ambitions? Or could there
be something lost as well as gained in going in such a direction—not so much
because it makes comparative law less ‘practical’ but because the subject risks
losing its sense of coherence? It is fair to say that all the chapters in this handbook
do try to go ‘beyond’ the existing literature so as to move us in new directions and
towards new territories. But our authors do not all speak with one voice about this
or other matters. Nor did we expect them too. Hence, they do not all recommend
going in the same direction. For example, for some, such as Masha Antokolskaia
and Nicholas Foster, the way forward involves looking ‘beyond’ legal rules so as to
encompass the background of social and economic trends. For others, the focus
of scholarly work must be more to overcome what Esin Örücü refers to as ‘the
myth of legal centralism’ and in general go ‘beyond’ models based on centralised
European systems.
Twining, for instance, proposes that we rethink the state so as to recognise that
‘law itself is a huge field of multiple contests, and an internally plural phenom-
enon’. And Werner Menski argues that his Indian case-study can help us rethink
our ideas about law so as to see it as
interconnected, linked from the macrocosmic spheres of natural law right through to
the personal sphere of the socio-legal domain. All along, it also contains elements of the
religious and the secular, the social and the psychological, and virtually anything else. The
boundaries between what is legal and what is not become really fuzzy (Menski: 194).
Esin Örücü, too, insists on the importance of legal and cultural pluralism and
invites us to give attention to ‘the mysteries of the interaction of social norms and
legal values’ (Örücü: 58) and Patrick Glenn writes of lex mercatoria ‘being legiti-
mated by their classification within a body of commercial normativity which has
prevailed and been recognised for centuries’(Glenn: 105).
The authors of the more substantive chapters in the Handbook do not neces-
sarily endorse these or other recommendations put forward in the theoretical
part of the Handbook. As compared to the radical proposals to change direction
16 David Nelken
announced in the chapters by Werner Menski and William Twining, for example,
both private law and the search for ‘better law’ remain important concerns for
some of our authors. Few of our authors try to de-centre law in favour of examin-
ing other sources of social order—and only Menski himself has much to say about
religion. On the other hand, the desire that some of our authors have to colonise
new territories does involve some stretching of existing disciplines. Roberts speaks
of transnational criminal law breaking the boundaries of international criminal
law and taking criminology beyond its ‘comfort zone’. Twining, too, claims that
broadening our conception of comparative law may bring about a reintegration
of ‘closely related enclaves of enquiry, such as ‘law and development’, that have
become artificially separated. For him an ‘adequate account of law today’ has
to give some attention to the significance of transnational non-governmental
organisations (Amnesty International, Greenpeace, the Catholic Church, interna-
tional women’s movements, international trade union organisations), to peoples
that are nations without states (the Maoris, the Scots, Gypsies, the native peoples
of North America and Australia), to organised crime, liberation movements,
multi-national companies, trans-national legal practices, and significant classes
such as the vast herds of ‘people on the move’ (including migrants, refugees and
the internally displaced) (Twining: 75).
If comparative law is to meet these and similar challenges it will need to develop
or borrow new concepts. In particular this applies to the idea of ‘families of law’
but also more generally to the many other metaphors on which comparative
lawyers often rely in place of developing theory. In studying the variety of forms
legal systems can take and the dynamics of their internal and external relation-
ships, it can be difficult not to think in terms of analogies and metaphors. Nor
will language allow us to make arguments without using these forms of speech.
But metaphors can sometimes mislead—and, in a sense, are bound to mislead. So
they should not be taken too seriously. Much of the effort given to discussing ‘legal
transplants’ as if they should be expected to correspond to botanical or medical
transplants thus seems wasted (Nelken, 2002). When Anthony Ogus, in chapter
seven, ends by comparing different legal cultures to differently sized railway
gauges, this comes in as an attempt to illustrate points he has made in other ways;
it does not serve as a substitute for argument itself.
To go from classification to theoretical understanding and explanation requires
greater engagement with other disciplines. Comparative law cannot do its work
alone. But it might be more exact to say that it never did. What is at stake in moving
towards comparative legal studies is the possible replacement or supplementation of
legal, historical and philosophical scholarship with concepts and methods taken, for
example, from economics, political science, sociology,6 or anthropology (the latter
being especially relevant given its central focus on comparison and the problems of
understanding ‘the other’). Increasingly, business studies, geography, literary theory
or psychology are also being brought into play, and the list could go on.
6 I come to the subject from a background in sociology of law.

A number of difficult issues need to be faced in such opening out to other dis-
ciplines. How do we know which is the appropriate discipline for our purposes?
Is studying law more like doing physics or more like interpreting art or literature?
Social scientists are themselves divided as to whether society and culture should
be taken as shorthand for a series of forces and variables or as invitations to read
events as if they were texts. Post-modernist writers in both law and the social sci-
ences are suspicious of many of the pretensions to explanation of the behavioural
social sciences. Are different academic disciplines appropriate for given legal
topics? It may seem obvious that economics has an affinity with private law, and
that political science will be most relevant to the sphere of administrative and
constitutional law, whilst psychology has more to offer for family law. But the
process of understanding the differences between family law regimes in different
countries also benefits greatly by a consideration of political factors, for example,
in explaining the role of religion or the importance of individualism (Bradley,
1996; see also Antokolskaia in chapter eleven).7 Even so, it is not possible to go in
all directions simultaneously. And as Foster notes in his chapter, we are likely to
discover that even the discipline we wish to follow is internally riven and therefore
find we need to take sides.
A number of our authors do make reference to the possible gains from looking
to other disciplines. Thus, Andrew Harding and Peter Leyland argue that ‘com-
parative constitutional law has to take account of political science to the extent
that it explains, in part at least, the context in which the constitution operates’.
Esin Örücü talks of the value of sociology of law for comparative lawyers. And
John Bell, too, at one point of his discussion concedes that ‘the answers to such
questions require some legal sociology’. Most of the authors included in the sub-
stantive part of the handbook do seem interested in at least some form of multi-
disciplinary collaboration with those working in other disciplines.
But recognising the importance of other disciplines will not necessarily lead to
comparative law becoming an interdisciplinary pursuit. What is, as Twining puts
it, ‘an adequate account of the law today’ will depend on our aims in producing
such an account.
On the basis of the sample represented here, we could say that many com-
parative law scholars still prefer a division of labour in which their role is more
to evaluate the implications of contemporary developments for law rather than
explain why they are taking place. Perhaps as a result of the stress in legal training
on prescription rather than description, they tend to have a rather instrumental
interest in the wider matters that make up comparative legal studies. Some of
the chapters which say most about social trends refer to them mainly as part
of an attempt to justify particular legal proposals or solutions. Antokolskaia’s
description of what has shaped family law allows her to argue that social change
7 Disciplines are not easily demarcated in terms of subject matter. Because they emphasise different
matters, using different conceptions, disciplines are above all, ‘ways of seeing’. And every way of seeing
is also a way of not seeing.
18 David Nelken
is flowing in a certain direction and so—by some functionalist alchemy of ‘is’ and
‘ought’—must be right. On the other hand, Menski’s claim that ‘culture-specific
legal realism prevailed in Indian law over globalising ideology’ encourages him to
argue that such general trends should be resisted.
In his chapter, exceptionally, Paul Roberts sets out a broad conception of inter-
national criminal law which involves the sort of wide-ranging study of legal and
social change proposed by William Twining. His approach here comes closest
to that of an interdisciplinary enquiry where the object is to draw on different
disciplines in order to get at the various dimensions of a given topic. Admittedly,
interdisciplinary work is difficult;8 few can master a second discipline, never mind
a range of disciplines.9 But with the help of Google Scholar and other Internet
search engines, it should at least be possible to keep an eye on leading studies in
one or other of these disciplines which are taken to be most relevant. Given the
extent of overlap between disciplines, interdisciplinary work may also be easier to
do than it is sometimes made to seem.10 Social scientists who study legal culture
may discover, to their surprise, that their work may be considered (also) a contri-
bution to comparative law. With their curiosity aroused they may then start on a
course of reading to see whether comparative lawyers have all along been doing
sociology of law!
It is understandable that many comparative lawyers will want to stick to what
they think they do best, whether this is identified as cross-cultural legal compe-
tence, historical scholarship, expertise in given geographical areas, or practical
‘savvy’. They are willing to leave other approaches to others, as in the way Basil
Markesinis seeks to delimit ‘the legal’ from matters which are not the proper sphere
of the comparative lawyer, or van Erp (in chapter seventeen) recommends leaving
‘political questions’ to the politicians. But even to achieve a division of labour it
is necessary to decide how to circumscribe the study of legal rules and legal insti-
tutions from other enquiries. We should not assume that other disciplines will
resolve our problems for us. In particular we must beware of the tendency to think
that others will provide the answers to our problems without the need to re-frame
the questions. Comparative lawyers are likely to be disappointed, for example, if
they ask sociologists of law for a ‘theory’ that can ‘predict’ the outcome of legal
transplants. In addition, other disciplines may themselves be undergoing rapid
change, as in the way international law and international relations are currently
being transformed by having to deal with the way transnational legal processes
are displacing or complicating relations between nation-states (Berman, 2005;
8 Just as not everyone has the experience or desire to be an ‘intellectual nomad’ like many of its
leading writers were (Curran, 1998: 657 at 661).

9 Some reviews of Legrand and Munday’s book on Comparative Legal Studies complained that it
would be too difficult for many students of comparative law.

10 It is important to note that interdisciplinary collaboration can take different forms. A discipline
such as economics finds itself in symbiosis with law even, or especially when, its techniques are dif-
ferent. Literary theory, on the other hand, offers close parallels to the interpretative task of the judge
or the comparatist herself.
Nelken, 2006a). And, in the absence of any overarching intellectual scheme, some
issues may just simply fall between disciplines.
Those who favour a restricted role for comparative law cannot afford to take
their information or concepts uncritically from elsewhere; they need to see what
is at stake in talking about ‘legal pluralism’ instead of ‘hybridity’, or the ‘diffusion’
rather than the ‘harmonisation’ of law. So this means that they will have to be able
to read other disciplines with at least some level of understanding. Glenn, in his
chapter, ‘Com-paring’, for example, is willing to leave it to sociology to discover
how law actually ‘works’. But at the same time he is cautious about taking its idea
of ‘culture’ arguing that ‘the social science disciplines of sociology and anthropol-
ogy have themselves become victims of the process of reification’ (Glenn: 97). As
I suggest in my own chapter (chapter five), however, this perception of how the
social sciences talk about culture is partial and somewhat outdated, and illustrates
the difficulties of practising too rigid a division of labour between legal and social
science scholarship. In general, comparative lawyers also need to understand why
other scholars do not focus on law in terms of statutes and judicial decisions as
such, but seek rather to understand its changing role and significance using terms
such as ‘regulation’, ‘discipline’, ‘governance’, ‘governmentality’, ‘legal fields’, and
‘legal autopoiesis’.
IV. CONTEXTS
Assuming that we do want to make use of social scientific or other insights, how
should we do so? The most common move to get ‘beyond legal rules’ is to argue
for placing ‘law in its context’. As Nicholas Foster writes,
a contextual approach leads to a consciousness of difference in the formulation, prac-
tice, interpretation and enforcement of the law, [and] a better understanding of law and
lawyers from other jurisdictions (Foster: 279–80).
Looking to context is also an invitation to see how law is used and experienced by
those to whom it is addressed. As William Twining argues in chapter three,
in order to understand law in the world today it is more than ever important to pen-
etrate beyond the surface of official legal doctrine to reach the realities of all forms of
law as social practices (Twining: 77).
Using this approach, it is claimed, can both help us explain law and—perhaps
also reform it.
But what is meant by law’s context? How does law relate to ‘its context’? How
is it best studied? The term context is used by our authors in many ways—and
rightly so—because there are indeed many contexts and ways of grasping them.
At a minimum, a given legal rule is itself part of a wider context of other related
legal rules, and a branch of law is affected by (and affects) other aspects of law. As
Foster argues in his chapter this means that commercial law, for example, cannot
be treated as a case apart. Even if we were to concede, for argument’s sake, that its
20 David Nelken
rules were less influenced by ‘culture’ than by other branches of law, it nonetheless
uses concepts that belong to and draw on a wider set of legal rules and practices.
But, in looking for this sort of context, the relevant rules and practices are not
limited to those usually studied in legal curricula. It is crucial, as taught by the
Legal Realists long ago, to include studies of the ‘law in action’ if we want to try to
explain or predict the actions of legal actors and others using the law. Only with
such knowledge can we develop persuasive comparisons of law in the USA and
Europe (Kagan, 2001 and 2007), or bring out the importance of ‘infra-structural’
aspects of dispute resolution which can account for telling differences even within
civil law jurisdictions (Blankenburg, 1997).
Roberts speaks of ‘the informal “working rules” of their occupational culture,
police officers or cooperation between prosecution and defence’. As he explains,
frontline professionals’ decision-making and conduct is typically motivated by ‘third-
tier’ directives, such as police force orders, prosecutorial codes or military training
manuals (which are not necessarily publicly available), rather than by primary legal
rules or secondary delegated legislation. Sometimes ‘policy’ is not even written down;
occasionally not written down on purpose. Unwritten operational policies occupy the
shadowlands of informal agreements, institutionalised routines, shared professional
understandings, and taken-for-granted cultural assumptions (Roberts: 359).
John Bell likewise tells us that empirical research is required to know what such
rights as the right to a hearing, the right to make representations, to be given rea-
sons or to provide access to documents, really amount to in different jurisdictions.
Context is the realm of effects, side-effects and lack of effects. Andrew Harding
and Peter Leyland warn of the need, when it comes to evaluating the recent trend
toward constitution-making, to examine how constitutional provisions are actu-
ally put in practice (or, as often, not put into practice). And Foster tells us that any
study of the effects of legal transplants must be alert to ‘technical incompetence,
lack of enforcement, sidelining, adaptation, isolation and refusal’.
Context is seen as relevant both in studying the way law is shaped by other fac-
tors and the way it shapes society itself. As Esin Örücü puts it,
most of the differences that cannot be explained in terms of the legal system can more eas-
ily be explained in terms of the societal, political or economic systems. Social systems may
determine the content of the corresponding legal systems and vice versa (Glenn: 57).
Regarding the first of these links, Esin Örücü tells us, with respect to what really
influences judicial decisions:
[T]his discovery of the raison d’être for the differences and similarities, also neces-
sitates moving from the domain of pure legal reasoning to that of contextual factors
(Örücü: 49).
On the other hand, with respect to the significance of statutory rules and judicial
decisions, Masha Antokolskaia emphasises that ‘we need to look behind legal cat-
egories to see how provisions of family law are actually used’. She illustrates this
with evidence of how many divorcing couples ignore the possibility of no-fault
divorce provisions if fault-based divorce provides the quicker route. And Werner
Menski, too, notes, as a worrying possible side effect of an otherwise admirable
decision by the Indian Supreme Court: ‘There is also some concern that more
women may be killed in India by their ex-husbands in such circumstances’.
But the contextual approach, or at least this way of understanding context, is
not without its detractors. Borrowing from developments in the sociology of law
and critical legal scholarship in the United States it may be helpful to contrast
two different ways of relating law and context (Nelken, 1986). The first—‘putting
law in context’—uses context to explain the form and effects of law. The sec-
ond—‘finding the context in law’—seeks to show how law helps to construct and
communicate the social context. The first of these approaches points to aspects
of the wider society that help explain or make sense of law. Those who seek to
expose the ‘context in law’, however, are usually not that interested in showing how
law responds to external conditions, or in demonstrating the differences on the
ground between legal rules and actual practices. For them law is to be examined as
a ‘cultural artefact’ (Frankenberg, 2006b) which succeeds in giving the impression
of legal certainty and rule governedness despite so much evidence to the contrary.
The Handbook, as we have already had occasion to note, is rich in illustrations
of the first approach, that of ‘putting law in context’. Clues to law are found in
wider society. Thus Nicholas Foster points out that the contrasting status of finan-
cial careers in France and the UK tells us much about the roles of commercial law
in each society. And wider social developments are taken to explain changes in the
law. Andrew Harding and Peter Leyland tell us that
‘since the end of the cold war, however, there has been an enormous increase in democ-
ratisation, and although there are still great differences in political systems and cultures,
the main objectives of constitutional law have become more broadly similar than previ-
ously, due to the dominant international agendas of ‘good governance’, ‘human rights’,
‘international trade’, and ‘sustainable development’, all of which have had significant
impacts on constitutions. In addition, the same process has tended to blur the distinc-
tion between the public and private sectors and therefore between constitutional and
private law (Harding and Leyland: 324–5).
Likewise, Masha Antokolskaia’s chapter (chapter eleven) makes extensive use of back-
ground trends so as to explain the recent evolution of family law. As she sees it,
‘[t]he society dominated by traditional values gave way to a pluralistic society, one
in which different forms and sets of family values co-exist[ed] alongside each other.
Divorce and serial monogamy began to be considered normal. Extramarital sex, non-
marital cohabitation, and birth outside wedlock lost their stigmatic character. Same-sex
relationships became first decriminalised, then legalised, and then, in some countries,
even equated with marriage. Due to the fact that more and more children were born
outside marriage, it became increasingly unacceptable for the legal status of these chil-
dren to differ from that of children born in a marriage (Antokolskaia: 241).
In addition to movements in ideas and culture, and in part as a factor shaping

them, attention is given to larger contexts of social, political and economic change
22 David Nelken
such as population movements, globalisation and so on. Hence Antokolskaia, in

seeking to explain ‘an attitudinal shift from marriage based on economic necessity
and duty to marriage based on affection and free commitment’, speaks of the role
of women’s emancipation and the women’s rights movement, as well as increas-
ing female employment and the progress of social welfare which diminished
the function of the family as provider of financial means and security. Once we
extend our gaze also to cover such disparate international influences, however, it
then becomes difficult to speak of law being ‘embedded’ in a given national or
local context (Nelken, 2007). As a good example we could take the Sabine Oxley
reforms, which were recently passed in the United States as a response to major
financial scandals there such as the collapse of Enron. Similar principles of cor-
porate governance have been quickly adopted in other countries such as Japan,
(and also applied to American companies doing business there), while, back in the
United States, the complaint that these reforms make American business uncom-
petitive means that their repeal or amendment is very much on the agenda.
Putting ‘law in context’ is often allied to a functional approach in which it is
assumed that law is there to solve ‘social problems’ and otherwise meet the social
needs of society. Zweigert and Kötz’s influential textbook is framed in terms of
seeing how different legal systems deal with similar types of challenges in the con-
text of their own societies. As illustrated by Esin Örücü in chapter two,
if an institution called divorce is under survey in system A, the comparative lawyer looks
for an institution in system B performing an equivalent function, that of freeing an
individual from an unsatisfactory marital relationship within which he or she does not
wish to remain (Örücü: 51).
For example, in the course of explaining the social trends that led to legal change,
Masha Antokolskaia argues that once 30 percent of couples in Europe were cohab-
iting ‘something’ had to be done to change family law. Werner Menski likewise
uses a functionalist type argument to explain why in India it would not be pos-
sible to have irretrievable breakdown as a ground for divorce when he remarks
that, ‘India is not America, and that country cannot afford a scenario in which
millions of women and children are suffering as a result of liberalised divorce
laws’(Menski: 201).
But while functionalist arguments of this kind often direct us to worthwhile
hypotheses for investigation, the approach can also be a source of errors (see
also the discussions in chapter two by Esin Örücü and in chapter six by Roger
Cotterrell). These weaknesses include slighting the role of historical explanation,
confusing purposes with effects, and begging questions about the ‘equivalence’
of what is being compared. ‘Problems’ do not just produce ‘solutions’; these have
to be fought for by competing interests and groups. It is also always important
to bear in mind the extent to which ‘social problems’ are culturally constructed
rather than given. To appreciate how problems are constructed requires grasping
different mentalities, not presupposing a common instrumentalist viewpoint.
We should not assume that societies being compared will necessarily face the
same ‘problems’ and use law in some way to respond to them. We need to realise
the extent to which cultures ‘socially construct’ what they treat as problems, or
the need to deal with them by using the law. While there was a time when social
science explanation was virtually co-terminous with functionalism, this is an
approach that has now been on the retreat for some time. And even comparative
lawyers are learning to rely on it less (Graziadei, 2003).
Those comparatists such as Gunter Frankenberg, who choose rather to study the
‘context in law’, now even speak of ‘the functionalist fallacy’, complaining that
the vague concept of function operates like a magic carpet with which the comparatist
shuttles from social problems to legal solutions and from one legal system to another—
way above the ‘enigma of translation’ (Frankenberg, 2006b: 445).
For these writers what often should become salient is precisely what we have called
the ‘second-order’ enquiry into how others grasp foreign law. As Frankenberg goes
on to say, once the comparatist recognises that law is a way of seeing,
she will soon discard the fact/law and law-in-the-books/law-in-action distinctions and
deal instead with how she represents in her scholarly work the legal representations of
local conflicts, contexts and visions (Frankenberg 2006b: 442).
But this does not imply that law is without social ‘effects’. In his recent discussion
of constitutions, Frankenberg explains that
‘in the world of signs and symbols the ‘sacred texts’ are decanonized and placed in
the context of the everyday world: Not only cases and norms and juridical writings
appear on the radar screen but also ideas and actions of ordinary people, program-
matic visions of social movements, group interests etc. Informed by a constitutive
theory the comparatist regards constitutions as reflecting and shaping the everyday,
in particular as reflecting and shaping the imagination of political unity and collec-
tive identity as well as offering a framework for ideology. Within this perspective it
is crucial to view constitutions as not merely and passively sitting ‘at the receiving
end’ and operating like receptacles or reflectors of culture, but to consider that they
actively intervene and, under certain circumstances, shape or transform culture
(ibid: 449).
While there are no worked-through examples of this type of approach in this

handbook, Roger Cotterrell, in his theoretical chapter (chapter six), does show
sympathy with this sort of enquiry, and both John Bell and Nicholas Foster in
their substantive chapters are in different ways attentive to variations in the way
different jurisdictions use legal categories. It is fair to say, however, that many
mainstream comparative lawyers feel uneasy with this approach and are suspi-
cious of its practical implications (or fear it does not have any). But this is to
underestimate its potential. It is interesting, for example, to see how Frankenberg’s
discussion of constitutions could contribute to the agenda set out by Andrew
Harding and Peter Leyland in chapter fourteen. For Frankenberg,
‘once comparatists move on to the constitution as culture, they transgress the borders of
an instrumental understanding and begin to grasp the symbolic dimension (ibid).
24 David Nelken
‘Most commonly’, he says,

constitutions present variations of theme of self-government and fantasies of a kind of
domination where the subjective factor is magically neutralized—within a ‘government
of laws and not of men’. Comparative constitutional law can tell fascinating stories about
how the self is first elevated as popular sovereign and then reduced and fragmented
within schemes of representation, delegation and transfer of power away from the collec-
tive self, whose consent to being governed is always implied or invoked. And stories about
how conflicts between citizens and their governors, and among citizens, are removed
from where they arise, the public arenas, and transformed into controversies under con-
stitutional law to be settled by constitutional or supreme courts (ibid: 449–50).
In some respects post-modern comparativists have more in common with their
mainstream legal colleagues than with practitioners of social science (as is true
of critical legal scholars generally)—and this competition may itself explain the
resistance they face. For example, true to the comparative lawyer’s penchant for
classification, Frankenberg, too, seeks to distinguish different types of constitu-
tion. He contrasts for instance, the constitution as ‘contract’ (as in Europe), as
‘manifesto’ (as in the American Declaration of Independence), as ‘program’ (eg in
socialist regimes), and as ‘law’ (evoking the imaginary collective). He claims that
constitutions variously provide answers to questions of justice, questions of good
life, political wisdom and political risk-management, as well as more familiar prob-
lems of constitutional validity, amendment and change. His analysis also offers
interesting interpretations of the architecture of constitutions, distinguishing lev-
els of rules, and explaining that within and through meta-rules constitutions talk
about themselves, and ‘establish the narcissism of the small (national) difference’:
They stress or even exaggerate insignificant details to others which then become
of major importance and thus establish the otherness of others. Furthermore,
meta-rules are designed to defend a constitution’s dignity as ‘supreme law’ against
ordinary law-interpreting (Frankenberg, 2006b: 439 at 457).
On the other hand, Andrew Harding and Peter Leyland are more interested in
studying the ‘law in context’ as they are in undertaking semiotic interpretations of the
‘context in law’. Even though there is probably little in Frankenberg’s approach with
which they would want to disagree, they could justifiably argue that there is no reason
why attention should not also be given to social and economic developments and
aspects of the law in action (or inaction). Making sense of constitutional texts as vehi-
cles of communication could be misleading if we do not also investigate channels of
communication. For example, it is certainly relevant if we discover that copies of the
constitution in some countries may be virtually unobtainable, while, in others, such
as the new South Africa, it is on sale in every newsagent. Drawing on both approaches
could help to explain the recent failure of the referendums on the envisaged European
constitution; something which certainly needs to be understood not only as a result
of the way those debating the constitution tried (or failed) to communicate certain
messages but also in terms of the larger socio-economic context.
Any choice to base our contextual explanations on one time or space rather
than another carries implications and is rarely ‘innocent’. For example, is the
current explosion of incarceration in the United States to be explained in terms

of the last 30, or the last 300 years of its history? (Whitman, 2003b; and Nelken,
2006b). The problem, of course, is how to justify the choice of any given context in
‘putting law in context’. This is an issue not only for those attracted by a multi- or
interdisciplinary agenda for comparative legal studies, but also for second-order
approaches to comparative law. An important branch of contemporary social the-
ory inspired by the work of Niklas Luhmann claims that there is a high degree of
social differentiation between the legal and other sub-systems that make up mod-
ern society (and that this is necessary). In the light of this and other approaches,
theorists debate whether there are intrinsic limits to how much of its context law
can get to see (or express) if it is to reproduce itself successfully (Cotterrell, 1998;
and Nelken, 1998).
If such limits exist, all students of comparative legal studies, and not only those
who seek to launch critical or ‘pessimistic’ attacks on the mainstream, may have
to take them into account when they seek to shape the working logics of legally-
oriented actors. Such approaches suggest that the task of comparative law might
consist in studying social and cultural variation in how legal actors frame their
context. For example, as we have seen, Anthony Ogus claims that law in common-
law countries is closer to the demands that come from society than it is in civil
law countries. This may also be reflected in the way law is conceived and taught
in different places. In the Anglo-American world the battle for ‘law in context’
in legal education is considered to have been won (as seen in the expression ‘we
are all Realists now’). But this is less true of Continental Europe and many other
places. Thus the question about how (and how far) legal actors are interested in
incorporating information about social context into their decision-making can
itself be made the subject of comparative investigation.
V. SIMILARITIES AND DIFFERENCES
As in any comparative exercise, with comparative law the study of similarities

and differences is the heart of the endeavour. However, in this field the descrip-
tive question of whether law is similar or different is often subordinated to the
prescriptive issue of whether or not it should be made more similar (and how this
should be achieved). In this Handbook Masha Antokolskaia describes—but also
applauds—the emergence of more similar regimes of family law across Europe.
And Jan Smits offers a new approach to how such harmonisation in private law
can be achieved. But other comparatists seek to defend the virtues of diversity.
They claim that the functionalist approach is itself part of an agenda of sameness
and a fear of ‘the other’ (see Roger Cotterrell’s contrast in chapter six between the
functional and cultural approaches).
The defenders of diversity worry that the pressures of globalisation are leading
towards the homogenisation of legal rules and the uniformisation of valuably
distinctive ways of conceiving of law. Amongst our contributors, Patrick Glenn
26 David Nelken
reminds us of his thesis that there are seven important, if overlapping, legal tradi-
tions. And Werner Menski asks:
To what extent do we accept that Hindu law, Chinese law, Islamic laws and the myriad of
African laws have a future in this globalising world? Will there be a universal concept of law?
He fears that this can succeed ‘only at the expense of enlarging the non-cultural
domain’. Others, such as Pierre Legrand (discussed in Roger Cotterrell’s chapter)
provide brilliant and repeated criticism of the harmonisation of national laws
being decreed or encouraged by the European Union. This ‘contrarian challenge’
rejects the attempt to bring together common and civil law traditions on the basis
that such different ways of thinking about law cannot be, and therefore should
not be, overcome. But both sides to this debate can overplay their hands (Nottage,
2004). The advocates of harmonisation do not deal satisfactorily with the likeli-
hood of their projects producing new differences. And those who claim that dif-
ference should be taken as a presupposition do not explain why their concern for
difference is restricted to only certain levels or types of difference (Nelken, 2003b).
Werner Menski, for example, seems to be happy with the effort to achieve greater
harmonisation within India, provided that this is brought about in ways that show
skill and tact in respecting other local legal orders.
It is immensely valuable to explore unfamiliar legal sensibilities and legal
worlds, even if this is a journey without end. However, for some purposes, instead
of taking a position a priori in favour of similarity or difference, it may be more
productive to ask why we expect to find one or the other. It can be instructive to
find differences in legally-oriented practices when comparing similar societies—as
where we find large differences in resort to litigation in societies which are oth-
erwise said to be similar socio-economically and culturally (Blankenburg, 1997).
But it can be as valuable to find similarities in law in societies which are in other
respects very different. Obviously, these expectations should be based not only
on common sense but also informed by the state of the art in relevant scholarly
research. Too many studies continue to try to persuade us that the Japanese do
after all make use of law, even though this point is by now well-established.
The same applies when it comes to the prospects for legal transfers. It is easier to
imagine borrowing and learning from places which are similar and face similar prob-
lems. But, pace the transplant metaphor, some societies make the effort to borrow
from legal systems which are different to them, hoping in this way to become more
like them. The same applies to learning from other societies. In chapter nine Werner
Menski makes much of the differences between Indian and Western conceptions of
law and society, saying, for example, that in India there is an emphasis on
economic responsibilities between members of social groups and families, and also
across gender boundaries. Such methods clash with Western-led assumptions about
state centricity, individual autonomy and rights-based approaches. Beyond Europe,
however, the notion that one’s rights depend on other people’s duties remains a strong
legal foundation (Menski: 193).
But, on the other hand, he also claims that despite (or because of) these differences
the West has much to learn from the way family law was harmonised in India.
Typically, however, comparative lawyers tend to focus on subtle differences

between places which are rather similar, showing us for example, that branches
of law such as contract, tort and crime can have different boundaries in different
places. The ever-present difficulties in such comparisons of knowing exactly when
like is like, become the very point of the exercise. In his contribution to the hand-
book, for example, John Bell asks what is meant by administrative law, and how
discretion is defined and structured in Germany, France and UK. After examining
ideas concerning the rule of law, he says:
The divergence in uses of the terminology and the absence of an exact equivalent in the
different languages provides much potential for confusion. All the same, these different
terms convey some common liberal messages—that the administration is not free to act
as it deems to be right in terms of efficiency or to achieve political goals (Bell: 301).
For him, the advantage of comparison is that it allows us to see how similar dilem-
mas play themselves out in different contexts. He explains that the values of pro-
tection of subjects, accountability and efficiency may cut in different directions
with different jurisdictions giving different weight to these principles.11 But he
also suggests that in each of these societies the protection of fundamental rights
can be trumped by considerations of national security and public order.
Comparison presupposes some similarity. Claims of irreducible difference
are seen as bordering on relativism and (therefore?) implausible. Christopher
McCrudden asks:
‘[W]hat, exactly, do we mean by ‘torture’? When, exactly, is ‘discrimination’ invidious?
. . . When the principle comes to be applied, the appearance of commonality disappears,
and human rights are exposed as culturally relative, deeply contingent on local politics
and values. (McCrudden: 372–3)
This has to be resisted because comparison would be pointless—‘a different prin-
ciple would be being applied (McCrudden: 373).
It is true that some societies are described or may describe themselves as
exceptional. Even Esin Örücü has talked of ‘extraordinary places’. But it is hard to
sustain the case that any given place is ‘ordinary’. The United States has a strong
claim to be exceptional in its degree of adversarial legalism (Kagan, 2001; Nelken,
2003a) or its level of incarceration rates. Japan has long seen itself as different;
Scandinavians see their laws as somewhat exceptional in the European context.
Some commentators on law and politics in Italy worry about the ‘normality’ of
their way of doing things, and so on.
How are we to find out in what ways places are different? Our results can only
be as good as the reliability of our methods allows. It is certainly not enough
to rely on law in the books, some effort must be made to talk to those in touch
with the ‘law in action’ (see Esin Örücü’s chapter nineteen). Andrew Harding
and Peter Leyland rightly recommend that we engage in dialogue with foreign
11 Those following a more culturalist approach might object that we cannot be sure that these
societies do share these common dilemmas, or even how far the idea of having to trade-off amongst
different values is common across different societies.
28 David Nelken
scholars, officials and politicians. But we should not take it for granted that people
in other societies always know the answers to our questions about the differences
between our ways and theirs. For some purposes outsiders may see more than
insiders. What is more, the role—the requirements of our informants, including
whether they are practitioners or experts, can vary from society to society: We
may need to make allowance for the possibility that in many societies political
engagements and commitments mean that those we rely on are more interested in
presenting a good face, or pursuing the goals of a given political project, than they
are in providing a disinterested description of their system (Nelken, 2000).
If we are to compare successfully, we are also in need of reasonably clear con-
cepts which can be used to guide research. The debate over the concept of legal
culture—a possible substitute for the tired idea of families of law12—provides a
good illustration of the difficulties in finding and working with such concepts.
Whilst few doubt that there is some connection between law and culture there
is little agreement on how to determine this. Menski for example tells us that
‘law is culture-specific and immensely diverse’, but van Erp insists that judges
from different legal cultures often have a lot in common on account of their
role-requirements and social backgrounds (an argument also deployed by Basil
Markesinis against those who think legal epistemologies are very different).
This term is discussed at some length in David Nelken’s chapter, but also makes
its appearance in many of the other chapters of this handbook, such as those
by Roger Cotterrell, Anthony Ogus, Nicholas Foster, Patrick Glenn and Masha
Antokolskaia.
A series of issues need to be faced in using the concept of legal culture. An
often-raised problem is the danger of treating culture as fixed or impervious to
outside influences (see Patrick Glenn, in chapter four). Culture and legal culture
should rather be seen as something that changes and is changeable, and is shaped
both by the past and oriented towards the future (Nelken, 1995). In his contribu-
tion, John Bell notes that German administrative law is less willing than that in
France or the United Kingdom to accept that certain powers belong inherently to
government in the absence of special authorisation. He links this to that country’s
recent experience of dictatorial government.13 Legal culture, like other aspects of
culture, may also rest on an imaginary past and invented traditions. Likewise, law
imposed by others quite recently may nonetheless be felt as authentically indig-
enous (Jettinghoff, 2001).
The units of legal culture range from supranational categories such as
‘Asian values’ or ‘European legal culture’ through more familiar national legal
12 Our contributors suggest other pretenders to this role such as, for Patrick Glenn, ‘legal traditions’
or, for Esin Örücü, the ‘tree’ metaphor.

13 Interestingly, a similar historical explanation is used by Lacey and Zedner, 1998, to explain the
distrust in Germany of relying on communal and informal justice because of memories of the misuse
of informers in the Nazi regime.
cultures, down to regional, local, organisational and professional ones. As shown

in William Twining’s discussion of the diffusion of law, it is especially important
to be open to transnational legal processes and the so-called ‘third cultures’ not
rooted in the state. The increasing need to examine legal culture beyond national
boundaries is seen most obviously in the contributions to this Handbook that
deal with international criminal law and human rights law. But the chapters on
private, public and family law make much the same point. John Bell, for instance,
notes that ideas for new ways of running the public sector frequently come from
the Organisation for Economic Cooperation and Development, and that ideas
for common standards of administrative law are developed by the Council of
Europe or the European Union. Masha Antokolskaia describes the develop-
ment of family law as a collective international project. Legal cultures are thus
overlapping and inter-related and may come together in unexpected ways. The
method of law-making by Directive of the Commission of the European Union
is closer to civil than it is to common law traditions, but much of the substance
of such laws has to with common law influenced ideas of liberalism and the free
market.
For purposes of explanation we will often also need to distinguish what we
mean by culture from other factors such as social structure or group interests.
Most authors in fact counterpoise culture—as something bound up with the cre-
ation and sharing of symbolic meaning—to more instrumental aspects of social
life. But, in chapter seven, Anthony Ogus, whilst starting from a classical defini-
tion of legal culture as ‘a shared way of thinking and acting’, then goes on to offer
an economic interpretation of the term. He suggests that ‘it is a “network” that
may reduce the costs of communication between those using the legal system’, but
adds that these same characteristics mean that it may also ‘be exploited by practis-
ing lawyers to resist competition’. Free market competition between legal cultures,
in his view, provides the opportunity for the economic interests of law consumers
to prevail over the special interests of the law providers.
The issue of legal culture is also crucial to what is one of the most interesting
(if serendipitous) contrasts that emerge from the contributions to this collection
taken as a whole. It is conventional wisdom, even for sophisticated commentators,
that family law is one of those branches of law which is most linked to culture
and therefore least easy to copy. By contrast, commercial law is seen as the least
‘cultural’ type of law and hence that which is easiest to transfer or borrow. This
is explained in terms of the relative intimacy and privacy of the relationships or
‘communities’ being regulated by each type of law (Roger Cotterrell 2006). Yet,
surprisingly, the relevant contributions to our Handbook seem to go against these
assumptions. Masha Antokolskaia does not tell us a story about the distinctive-
ness of national family law regimes throughout Europe (though such a story
could no doubt be told). On the contrary, she seeks to persuade us that reaching
a high degree of consensus in this area of legal regulation is both necessary and
possible.
30 David Nelken
By contrast, Nicholas Foster devotes much of his chapter (chapter twelve) to

showing that commercial law also reflects and helps shape local culture. He rejects
the assumption, as he summarises it, that
[c]ommerce, though, is not ‘close to peoples’ lives’, and is therefore not affected by cultural
attitudes. Business people everywhere just wants to make money. So commercial law is not
affected by culture either, it is just lawyer’s law, a mere instrument (Foster: 267).14
He argues instead that commerce is in fact ‘close to peoples’ lives’, because it relates
to such ‘rules of the game of economic struggle’ as the distribution of property
among social groups, the concentration of power in society, the ‘set of prior choices
about the role of the state and the private sector in responding to change’ and the
morality of interactions between people. Therefore it is affected by cultural attitudes.
Business people everywhere may just want to make money, but they are still people
who function in a culturally determined mentality. Since commercial law concerns
the facilitation and regulation of commerce, it too may be affected by cultural atti-
tudes (so long as the law reflects those attitudes)’. Foster claims as a result that
‘variations in commercial law which reflect those differences are not mere accidents, and
will be difficult to change effectively. In particular it may be difficult to change them so
as to make the law uniform across various types of society (Foster: 278).
These unusual claims go together with different ways of employing comparative
law in argument. Masha Antokolskaia thinks that she can best show the relevance
of comparison for family law by describing what has emerged in common as a
result of convergence of ways of living and thinking. Foster, on the other hand,
uses comparative evidence of difference to prove that commercial law is (also)
culturally shaped. But we should be careful not to be too carried away by these
emphases. It is one thing to show that certain values in family law are widely
shared or that commercial law is also cultural. It is another to sustain the view that
commercial law is more culturally rooted than family law. Much more research
would be needed to document such an unlikely proposition.
Will difference survive? It is often said that there are forces, linked to glo-
balisation, which are leading to greater convergence in law across the board. Our
contributors are cautious about this, and William Twining is almost tempted to
ban the use of the word globalisation. Andrew Harding and Peter Leyland offer a
balanced assessment:
while certain contemporary global trends do in fact encourage elements of convergence,
and there is plenty of evidence of this taking place, it does not follow that constitutions
will all eventually look the same.
For them,
strong divergences do remain in the implementation of human rights principles and
other constitutional features. Moreover, globalisation has within it tendencies which
are both conducive and non-conducive to the promotion of constitutional government
(Harding and Leyland: 333).
14 But, as Anthony Ogus argues, culture can also be used instrumentally.

We should remember that globalisation can bring about difference as well as

similarity. The development of the international economy often uses, emphasises
or exacerbates differences in the places which produce goods and services even as
it spreads homogenous appetites for such goods.
Convergence can also be pursued as part of a deliberate political project such
as harmonisation of law in the European Union. Because this is something in
which comparative lawyers play an important part it has led to heated debate
about whether harmonisation leads to the sacrifice of diversity and whether this
is something to be resisted. Is difference in culture and legal culture itself a value,
as with the maintenance of biodiversity? What about objectionable differences?
When is ‘culturalism’ progressive? These are questions to which it is difficult
to find conclusive responses. Esin Örücü argues in favour of providing similar
answers across the world in cases such as those dealing with workers and others
who have contracted diseases from exposure to asbestos (Örücü, 2005). In this
way we meet the threat that multi-national companies will otherwise forum-shop
or move where worker security is least protected. The same, she thinks, should
apply to liability for defective products. What of the granting of rights to illegiti-
mate children? Masha Antokolskaia would say yes. But these three examples give
some illustration of the need to decide where to draw the line.
In his chapter (chapter six) Roger Cotterrell sees the attempt to identify ‘better
law’ as part of the old search for universal principles. By contrast, he offers a care-
ful argument in favour of diversity. Cotterell asks us to draw an analogy between
valuing differences in legal arrangements and the celebration of difference in
critical race theory and some forms of feminism. It could be said, on the other
hand, that the analogy begs the question. Even if sometimes respecting difference
can help defend weaker groups from enforced assimilation, in other circum-
stances insisting on similarity can be useful in warding off ethnic nationalism.
Unfortunately, minorities themselves can often be intolerant of other minorities
or deviants in their midst. Paradoxically, the European Union has been trying for
some time to impose respect for difference across Europe and uses this as a key
measure to decide on the eligibility for membership of candidate nations. So here
we have a project of harmonisation designed to produce more toleration of dif-
ference. (Who said life was simple?)
The perception and evaluation of difference is highly contingent on the observ-
er’s starting point. American authors tend to assume that ‘external legal culture’
(the demands and pressure-group politics of civil society) is what moves the law.
But this may itself reflect how law is shaped in the USA rather than representing
a more general truth. John Bell’s starting questions in examining administrative
law cross-culturally presuppose that they are salient in each of the jurisdictions
considered, something that his enviable inside knowledge of more than one juris-
diction allows him to assert.15 However, when he comments that on the continent
15 But Bell’s discussion of the relationship between proportionality and reasonableness can be
usefully contrasted with Legrand’s recent argument that the terms belong within different worlds of
thought (Legrand, 2006).
32 David Nelken
some expansion of judicial review is motivated more by concerns of ‘social soli-

darity’ than holding administrations ‘responsible’, we may begin to wonder if the
British jurist is showing through just a little. Likewise, when Masha Antokolskaia
tell us that the trend towards the ‘de-ideologisation of marriage’ shows the ‘rec-
ognition that law is unable to regulate feelings and moral sentiments’ we may
wonder whether this is a mere description or at least as much the expression of a
particular ideology.
This overlap between objects of study and ways of thinking about it reminds
us once again that comparative law can be pursued as both a first or second-order
enquiry. As part of a first-order enquiry what judges do and say will be treated as
evidence of legal culture. But a central part of their role is itself that of identifying
their and other peoples’ legal culture. As Christopher McCrudden points out, dif-
ferences in how this role is understood can lead to considerable national variations
in when they consider it appropriate to refer to judicial decisions handed down in
other societies. Changes in the aims of comparative law over time also affect the
significance of searching for similarities and difference. Goldstein and Marcus, in
their classic work in the 1970s on criminal justice decision-making in the United
States and Europe (Goldstein and Marcus, 1977), thought it essential to show
that European practices were less different than was being claimed by other com-
paratists. They argued that because the Europeans also faced, but were unable to
resolve, similar dilemmas of low-visibility decision-making to those faced in the
United States, there was therefore little to be learned from them.16 Nowadays, on
the other hand, demonstrating similarity is used to provide useful justification for
harmonisation: while those who wish to resist the relevance of comparisons tend
to point to unbridgeable differences so as to support their cause.
VI. PRACTICES
We are now ready to return to Esin Örücü’s distinction between those who see
comparative law as an end in itself and those who advocate its use as a tool for var-
ious practical purposes. Many comparative lawyers express a certain impatience
with merely theoretical enquiries. The sensible comparative lawyer, we are told,
knows when and where to stop theorising (Palmer, 2004). Lawyers and other users
of the law expect no less. As Patrick Glenn tells us in his chapter (chapter four),
the transnational commercial world is one of free-flowing normative information where
the question is never what the best possible rule is (which would be an impractical
enquiry) but which solution is preferable to other solutions (Glenn: 100).
Should it be comparative law’s goal to be as useful as possible? On the one hand,

for some people comparative law can never be practical enough. Students can be
amongst its most demanding critics. Nicholas Foster mentions one ‘belligerent
enquirer’ who questioned the value of learning about other peoples’ laws and
16 For a recent study which takes their work further, see Hodgson, 2005.
never came back to learn more, probably assuming that if it ever became neces-
sary to work on a case which had to be heard in a foreign jurisdiction he could
just rely on a local lawyer.17 Law may be practical in some respects and not others.
Anthony Ogus argues that the common law is inherently more practically useful
as compared to civil law because the administration of justice is relatively decen-
tralised and thus removed from ‘the heavy hand of government’. In this way law
‘accepts, indeed reinforces, what individuals and firms want and protects expecta-
tions by rending the desired outcomes legally enforceable’ (Ogus: 161). As scholars
working in the broader area of comparative legal studies have shown, however,
when it comes to providing remedies for tort and other harms the methods of
the common law have their own severe drawbacks and there is much to be said in
favour of state-organised regulation by bureaucrats and experts (Kagan, 2003).
Many of the post-modernist critics of the mainstream, on the other hand, see
the use of comparison for instrumental purposes as what needs to be fought
against. For van Erp (in chapter seventeen) such ‘post-modern theory is trumped
by practice’ because of our everyday experience of the import and export of legal
ideas and institutions. But of course everything depends on one’s evaluation of
what is achieved by such efforts at legal transfers. In any case it is clear that even
post-modernists do not maintain a sharp separation between theory and prac-
tice. Although Pierre Legrand is scathing about the practical concerns of some
comparative lawyers (Legrand, 2006), his ‘contrarian challenge’ (as discussed in
chapter six by Roger Cotterrell), is linked to a mission to protect diversity as much
as it is to theoretical enquiry for its own sake.18
The arguments of the post-modernists should not be identified with that
of all proponents of comparative legal studies (they form only one of its
strands).19 Those who engage in multi- or interdisciplinary empirical enquiries
not only agree on the need to offer practical benefits, they often argue that only
their more ‘realistic’ approach will bring us to any destination worth reaching.
For them, it is only by employing the resources of other disciplines that we
can produce reliable findings. It can make all the difference to understanding
other people’s legal rules and institutions (never mind borrowing from them
or seeking to harmonise them) to discover that the time taken on average for
civil cases in Europe can be from 1 to 8 years. The same applies when we come
17 As I told one belligerent enquirer, even for his pragmatic purposes it would still be useful to know
something about how long court cases would take, judges’ behaviour and, not least, lawyers’ training,
in the jurisdiction concerned.
18 He also does not hesitate to enrol Teubner (see Teubner, 2001) in support of his arguments about
the difficulties of transplanting law, despite the gulf between their theoretical approaches.
19 A common mistake is to assume that an interpretative approach to social life, one that attempts
to understand the meaning of actions or texts rather than ‘explain’ them using the cause and effect
language of the hard sciences, is somehow post-modernist (Peters and Schwenke, 2000). On the con-
trary, such an approach is central to much of the best ‘modern’ empirical work in the social sciences.
Still less does an interpretative approach have to go together with the alleged relativism attributed to
the post-modernists (a relativism, if it existed, that would be difficult to reconcile with their strongly
held political positions).
34 David Nelken
to recognise that high-sounding values can work out differently in practice in

ways that contrast with the story law tells about itself. The ‘due process’ type
of procedural guarantees of the criminal processes do not necessarily stand in
opposition to ‘crime control’ priorities. Empirical research suggests that they
typically serve to facilitate ‘crime control’ (McBarnett, 1981).20
These wider aspects of legal process are invariably indices of more profound
features concerning the role and rule of law. Court delays are not just a sign
of inefficiency but (also) of well-established and well-defended forms of social
ordering outside state law (Nelken, 2004). By contrast, expeditiousness in legal
proceedings, especially on the criminal side, may be an indication that those with
power and money are hardly ever likely to be subject to the rigours of the law. The
contribution of comparative legal studies should not be limited—as it is some-
times—to advising lawyers or politicians whether a particular institution or law
will ‘work’ or has worked. It can also help uncover the different values pursued
by different legal systems. Only careful comparison using interviews and other
research methods can help to decide what values a system is actually trying to
pursue, and the likely competing internal views about this (Nelken, 2006c).
Comparative law may be used for various purposes and we should not neces-
sarily expect to find these all to be compatible. Most obviously, seeking to copy
best practices from elsewhere is certainly different from showing the ineliminabil-
ity of difference. The aims canvassed by the contributors to this volume are not
limited to mainstream exercises in harmonising private law, discovering commo-
nalities or agreeing on ‘better law’. Indeed, when they discuss existing projects in
private law they tend to be somewhat critical of them.21 Even Jan Smits devotes
his chapter on the topic of harmonisation to finding a way to avoid this being
imposed from the top-down. Nicholas Foster tells us that the conventional idea
that private law is easily harmonised because it represents no more than ‘lawyers’
law’ is much exaggerated because the relevant lawyers and wider legal culture may
well vary from place to place. The chapter by Anthony Ogus (chapter seven) could
be used to make the same point, though he looks to competition between systems
to exploit and perhaps overcome these differences.
It is important, our authors argue, not to engage in exercises of harmonisation
without finding out as much as possible about the legal systems being compared.
As Paul Roberts puts it,
Comparative inquiry might ascertain not only points of convergence in national crimi-
nal laws, suggestive of international ‘best practice’ in criminalisation, but also distinctive
domestic innovations potentially worthy of emulation at the international level.
20 It is still appropriate to mandate principles and seek to hold authorities to them even if they
will try to get round them where they think it necessary. But, as Goldstein and Marcus (1977) rightly
insisted, only an account of a system which includes information about the likelihood of such depar-
tures is useful for comparative purposes.
21 Masha Antokolskaia is an exception, but she is dealing with schemes to develop better law rather
than harmonisation as such.

Similar legal concepts can mean different things in different contexts. The
lesson for human rights lawyers is that they ignore the different institutional
contexts in which interpretation takes place and the different power relations in
these jurisdictions at their peril.
Learning from elsewhere is important for purposes of co-operation in dealing
with common problems. As Roberts explains:
If international norms are partly derived from the legislation, jurisprudence and legal
commentary produced by a diversity of national legal cultures and traditions,
then
working knowledge of these domestic origins must surely be advantageous for any
government lawyer or judge attempting to interpret international legal instruments
(Roberts: 356).
But, again, to be really useful such enquiries must be well informed about actual
practice. If this is attained then,
local variations in occupational culture virtually guarantee that comparative under-
standing will be a significant operational asset in coordinating transborder co-operation
and international policing networks. Similar considerations apply to international co-
operation between prosecutors, defence lawyers, judges, penal administrators, and mili-
tary personnel, and in every sphere of informal operational policy-making and mutual
judicial assistance (Roberts: 360).
Most of the comparative law and other literature about transferring law focuses
on exports to countries of the developing world and/or former communist
regimes. Sjef van Erp, writing as someone engaged in such transfers, tells us that
typical situations are those where a state wants to change its law to reduce ‘trans-
action costs of different legal regimes, to help organise economic change over’, or
to come into line with the legal practices of a political or economic grouping that
the state in question wishes to join.
It is less common to find examples of learning that go in the opposite direction,
where we try to learn from what is called ‘the South’ (Santos, 2002; and Santos
and Rodriguez, 2005).
In his chapter (chapter nine), however, Werner Menski sets out to show us that the
West has something to learn from India. After describing some difficult challenges
that the legislature and courts have had to deal with in family law, he tells us that,
[w]hile emphasising modern-looking individual property rights, also of women, the
post-modern Indian state also re-employs traditional concepts of interlinkedness, spe-
cifically traditional family obligations, as a social welfare mechanism. This dual strategy
also protects the state from expectations that it should be directly responsible for social
welfare (Menski: 210–11).
He concludes:
Post-modern India, therefore, seems to have found an exciting solution to the conun-
drum of legal uniformity which may be a suitable model for many countries … it
employed carefully planned minor surgeries over a long period of time, leaving the body
of personal status laws intact (Menski: 203).
36 David Nelken
On the other hand what is to be learnt from practices elsewhere, in the North or in
the South, is rarely self-evident. Menski tells us that the Supreme Court decision
that he so admires ‘was done almost secretly, in record time, and there has been
hardly any debate of this important development so far’. It could well be argued
that this detracts from the achievement. We could also ask how far this decision
(which had been delayed for many years) was only made possible by the fortuitous
post-9/11 political climate.
What is or should be our criterion of success in deciding what has been
achieved in the course of any alleged transfer of legal practices or ideas? As Esin
Örücü explains,
neither can ‘success’ be defined from a single standpoint. Pre-determined economic,
social, cultural, religious or ideological ends are all factors by which success is measured.
Efficiency, internalisation, cultural shift, and the actual use of the new legal structures
can all be criteria for measurement’ (Örücü: 178; see also Nelken, 2001).
Success is not only a matter of means but also of ends. For Sjef van Erp the means
are technical ones: problems of language; the skills of interpreters; the methods for
gaining credibility and inducing changes in mentalities. But means can also some-
times be ends in themselves. As Patrick Glenn argues in his chapter (chapter four),
comparison must itself be carried out in a way that is respectful of difference. A key
question is how to encourage cultures to draw on those aspects of their own tradi-
tions which are more in line with universalistic aspirations (Al-Naim, 1991/1996).
This applies not only between, but even within, legal cultures, especially where there
are obviously competing normative orders. As Werner Menski argues, an important
part of the strategy used by the Indian Supreme Court to defeat attempts by mem-
bers of the Muslim minority to get around women-friendly legal decisions was to
appeal to the obligation in the Koran to maintain divorced wives.
Questions about practice are ones that are well suited to an approach which
treats comparative law as a second-order enquiry into the practical task of com-
paring laws. We need to bear in mind who is doing the comparison, and we need
to ask who is their imagined audience—for example, judges, lawyers, policy-
makers or scholars. Finally, and not least, attention needs to be given to the
intended beneficiaries, whether they be businessmen, consumers, victims of crime
or war, social movements, parties to an actual or possible court case, or those
involved in lobbying legislatures or regulatory agencies. Some comparative schol-
ars hope that their work will be of interest for as many groups as possible; others
feel the need to respond to the question: ‘Who’s side are you on?’
What is considered sufficient understanding of other people’s law will therefore
depend on what that understanding is for. A legislator has one role, the judge
or the lawyer another, and the ethnographer yet another (though each can try
to use the other’s knowledge for their own purposes). With respect to lawyers,
Christopher McCrudden tells us that
Lawyers in the human rights context use comparison to legitimate their argument that
a particular interpretation of an existing human rights norm should be adopted, or as
part of the process of generating further norms (McCrudden: 376).
It is always instructive to locate the actors behind given comparative projects

and the way they draw on and create their ‘symbolic capital’ (Dezalay and Garth,
1996). The processes of competition between legal systems described by Anthony
Ogus and others do not simply measure the response of a ‘market’ of rational
individuals seeking their self-interest. Lawyers are involved in ‘selling packages’
or giving advice in the setting up of offices. American lawyers, many of them
students of distinguished comparatists in the United States, helped develop strat-
egies by which common law would become the law of choice for business in the
European Union. In Latin America, economists and lawyers trained in the United
States vie for high office.
It is a matter of some controversy how far judges’ comparisons are or should be
linked to what is needed to resolve single disputes or whether they form part of a
search for something more transcendent. For Esin Örücü,
comparativism must be at the heart of all judicial activity if law is to embody principles
that are universal rather than purely domestic or even ‘European’.
But Christopher McCrudden has quite a different view. For him, the way judges
do comparisons is extremely patchy, and insofar as they look for universal prin-
ciples this is part of the problem not the solution, As he says:
[n]ot only is the methodology weak (cherry picking, weak evidence, overly formalis-
tic assessment of what the law is), but several of these functions of comparison tend
towards the older universalistic tendencies of comparative law scholarship that are now
viewed critically by many modern comparative law scholars (McCrudden: 376).
But he also admits that, as far as judges are concerned, ‘incompletely theorised
agreements’ are all you can have, and all you should want.
Both Christopher McCrudden’s description in his chapter (chapter sixteen) of
the work of US Supreme Court judges and Esin Örücü’s statistical investigation
of English and Scottish judges (in chapter eighteen) show that even leading judges
are reluctant to use foreign decisions as authorities and that judges’ references to
other jurisdictions are often, in their words, no more than ‘ornamental’, ‘decora-
tive’ or ‘rhetorical’. Discussing the same cases as McCrudden, Pierre Legrand has
recently stigmatised the way judges use comparative materials as ‘comparison-lite’
(Legrand, 2006). But how far this is something to be criticised, and how we criti-
cise it, depends on how we (and the judges) interpret the institutional and con-
stitutional role requirements of judges. In developing their own legal traditions
they are certainly subject to more constraints than free-wheeling policy-makers or
legal scholars. In some cases it could be that judges may even need to make their
references to other systems appear to be no more than ornamental, even when
they are actually taking them as models.
What of the practices of comparative law scholars themselves? When John Bell
talks of ‘successful’ comparison he means that the scholars concerned have pro-
vided persuasive interpretations according to the professional standards of techni-
cal skill in interpreting law, and crafting policy recommendations. Comparative
law scholars may also be more or less committed to larger projects. In the Indian
38 David Nelken
context, Werner Menski talks of what he calls Anglo-Saxons and other harmonis-
ers. Masha Antokolskaia describes and praises the role of comparative lawyers in
permanent networks of national experts to advise on matters of family law. The
alleged purpose of such projects should not always be taken at face value. Those
who try to provide restatements of law may, intentionally or otherwise, be chang-
ing it, and the search for common principles may be a disguised way to move to
‘better laws’—or vice versa.
Scholarly claims can have effects in the world of legal and political practice even
when they rest on false or weak premises. Whatever harmonisers of law assert, it
is unclear how far consumers really are put off making purchases in foreign juris-
dictions because of the difficulties of bringing court cases in a foreign court.22
More to the point, even if reducing transaction costs may benefit producers and
consumers, the extension of the neo-liberal market place may add to the costs to
be paid by others such as workers. Criticising the mainstream approach, Werner
Menski argues that
the Euro-centric perspective that privileged the state (legocentrism) and territoriality
(nationalist concerns) is not only quite parochial, but an idiom based on lost memory
which does not lead towards a globally acceptable method of understanding law and its
many pluralities, mixed manifestations, and commonalities (Menski: 198).
Moreover, he adds:
This kind of monocultural myopic thinking leads, however, directly to African and other
despots, who appear to be top-ranking students of legocentric axioms, and corrupt
regimes anywhere in the world (Menski: 194).
For Menski,
comparative lawyers must learn to harmonise local influences with emerging global
patterns of thought, avoiding the current mental cul de sacs that dismiss local cultures
as obstacles to the implementation of international laws and globally uniform human
rights principles. In the age of localised globalisation, a new phase of diversity-conscious
identity construction has become necessary (Menski: 210).
Legrand, for his part, attacks what he sees as the ‘totalitarian rationality which
privileges regulation, technological standardisation of law and the kind of epi-
grammatic answers from foreign laws’ (Legrand, 2006). For better or worse,
standardised ways of thinking can be talked (or written) into existence as terms
like ‘economic loss’, or ‘discretion’, which help create a meta-language and meta-
perception of legal problems.
As an academic discipline comparative law is itself also a practice. As David
Kennedy has shown in many of his writings, the subject has been characterised
over time by a series of intellectual ‘moves’ which exemplify the way individual
22 Goode, 2003 alleges that there is no empirical evidence that shows this to be true. But, more
recently, Hondius, 2004 has claimed that there is indeed such evidence.
scholars pursue their agenda. The absence of open discussion of politics by many
of the current generation of comparative lawyers can itself be seen as a political
position (Kennedy, 2003). The issues discussed in this introduction—‘getting
beyond’, placing in context, and finding similarities and differences—may all be
seen in these terms. Masha Antokolskaia’s invocation of ‘trends’, as we have noted,
mobilises teleological certainty in the face of what might otherwise be seen as
contingent value choices being made by politically-engaged social actors. Some of
the developments towards safeguarding individual choice that she sees as crystal-
lising what should be considered as better law in Europe are highly controversial
as viewed by many in Catholic Italy. She herself recognises that social trends are
only half the picture when she describes the European Court of Human Rights
as involved in a ‘dynamic interpretation’ of the European Convention on Human
Rights regarding divorce, the rights of extra-marital children, and the right of
transsexuals to marry.
As we have seen, many critics claim that mainstream work is dominated by the
desire to produce similarity (as a poor simulacrum of universality) rather than to
appreciate differences. However, classifying a ‘move’ as more concerned to safe-
guard difference or more to encourage similarity will rarely be sufficient in itself
to resolve the politics of given choices. Interestingly, Christopher McCrudden
points out in chapter sixteen what he calls a ‘tension’ between the practice of
comparative law and the practice of human rights lawyers. While the former are
often focused on significant differences, the latter have a universalistic perspective
and mission. But this is not reported by Paul Roberts in his account of the devel-
opment of international criminal law. Renaming ‘female circumcision’ as ‘female
genital mutilation’ is part of an effort to introduce a more universal language so
as to reduce the power of local culture (Merry, 2006). On the other hand, talk-
ing up the importance of ‘culture’ can discourage efforts to change things for the
better whether it is treated as part of a general trend affecting all modern societ-
ies (Zedner, 2002), or used to explain why some countries will always lag behind
(Krygier, 1997). Either way, insofar as they have power to help shape events schol-
ars too must reflect on their responsibilities.
QUESTIONS FOR DISCUSSION
1. Contrast the theoretical and substantive chapters in this collection. Are some
theoretical ideas used more in some substantive areas than others? Why?
2. Are some chapters more contextual than others? Are there good reasons
for this?
3. Imagine that you had to rewrite one of the substantive chapters by focus-
ing on the issue of legal tradition or legal culture or hybridity. How might
the focus of the chapter change? What other data would you need to create
or draw on?
40 David Nelken
4. Do the chapters on given legal topics show full awareness of the methods
and findings of those studying other topics? Are the same issues necessarily
relevant? What links could you suggest between the substantive chapters?
5. What is the difference between putting the ‘law in context’ and seeking the
‘context in law’?
6. What are ‘first-order’ and ‘second-order’ approaches to comparative law?
Is this distinction helpful?
7. Do Anthony Ogus and Nicholas Foster agree about the way commercial
law evolves?
8. Is the search for ‘better law’, described in Masha Antokolskaia’s chapter on
family law, the fulfilment of the overlapping traditions that Patrick Glenn
is calling for—or is it its antithesis?
9. What similarities and differences can you detect in the way John Bell,
on the one hand, and Andrew Harding and Peter Leyland, on the other,
approach the comparative study of public law?
10. Do Paul Roberts and Christopher McCrudden see the spread of human
rights in the same way?
11. Are Esin Örücü and Werner Menski making the same points about mixed
and hybrid legal systems?
12. Does harmonisation of law have the same implications and the same
justifications in the areas of commercial law, family law and human
rights law?
13. What practical implications would you draw from each of the substantive
chapters in this Handbook?
14. Who are the main audiences targeted by the various contributions to the
Handbook? (How far is Anthony Ogus thinking mainly of lawyers, John
Bell, of judges, Masha Antokolskaia and Sjef van Erp, of legislators, and so
on?) Whom do you think the authors have in mind as the ultimate benefi-
ciaries of their comparisons?
15. Do you think comparative law is the same as comparative legal studies? If
not, what are the arguments for and against going more in the latter direc-
tion? What would it involve?
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2
Developing Comparative Law
ESİN ÖRÜCÜ
KEY CONCEPTS
Comparative law, Comparative legal studies, Comparability, Purposes of

comparative law, Common core, Methodology of comparative law, Normative
inquiry, Tertium comparitionis, Presumption of similarity, De lege ferenda stud-
ies, ‘Functional equivalence’, The ‘factual approach’, ‘Law in context’, Legal fam-
ilies, Legal culture, Legal tradition, Macro comparison—micro comparison
I. PRELIMINARIES
T
his chapter considers the traditional topics dealt with in the introduc-
tory part of comparative law classes such as the definition, uses and pur-
poses of comparative law, its place in harmonisation and its methodology.
It indicates the changing nature of comparative law, the process of comparison
and problems connected to intra-cultural and cross-cultural comparisons.
During the past decade we have witnessed increasing interest in all forms of
comparative law, international law and transnational law. The character, quality and
quantity of work have increased and changed, but the basic problems have remained
the same. There is no one definition of what comparative law and comparative
method are. While there is now less concern with ‘justifying the practical utility of
comparative law’, ‘making its subject matter manageable’ and ‘avoiding superficiality’
(Twining, 2000b: 51), the emphasis has shifted to regarding comparative law as
‘a big tent, encompassing lots of different types of scholarship’ (Kennedy, 2002: 345).
Comparative law, as we know it today, can be regarded as a child of the 19th
century that has reached adolescence in the 20th.1 During this period, the subject
seems to have given comparative lawyers total freedom and provided them with the
seemingly endless pastime of discussing its true meaning, historical development,
dangers, virtues, scope, functions, aims and purposes, uses and misuses, and the
method.
1 The history of comparative law is not to be discussed in this work, but see Zweigert and Kötz,
1998, and the bibliography provided there, at 48–62.

44 Esin Örücü
In the 21st century comparative law will reach maturity. Though our century
has been heralded as ‘the age of comparative law’, amazingly, it is still open to
question whether comparative law is indeed an independent discipline at all
(Samuel, 1998; Gordley, 1998). Not only have comparative lawyers been called
upon to re-think their subject (Markesinis, 1990), but it has also been suggested
that the best path for comparative law to secure its future is to penetrate other
subjects.
Objectives as varied as aiding law reform and policy development, providing a
tool of research to reach a universal theory of law, giving a critical perspective to
students and an aid to international law practice, facilitating international unifi-
cation and harmonisation of laws, helping courts to fill gaps in the law and even
working towards the furthering of world peace and tolerance have been attributed
to comparative law. These objectives can be grouped as practical, sociological,
political and pedagogical.
In addition, we see such terms as ‘traditional comparative law’, ‘mainstream
comparative law’, ‘conventional comparative law’, ‘critical comparative law’, and
‘post-modern comparative law’ being used.
One thing is certain: there is a growing interest in comparative law. There are a
number of new journals with ‘Comparative Law’ in their titles; the number of articles
with a comparative element published in these journals has quadrupled within
the past 10 years (see Monateri, 1998). It has become indispensable for all doctoral
researchers, judges and legislators to consult foreign material as a matter of routine.
For a long time it looked as though comparative law was a matter for academic
research, difficult and, surely, very interesting, beautiful to know something about, but
not immediately relevant to the daily life of the law. Over the last ten or fifteen years the
legal climate seems to be changing. This evolution may be influenced by the process of
European integration; it may also result from the fact that we are living closer together
(the ‘global village’ situation); it may finally be an autonomous process, occasioned
by the lawyer’s search for fresh perspectives, in particular when completely new legal
problems are to be solved (Koopmans, 1996: 545).
Although Harold Gutteridge once observed that, ‘the essential problem is not:
What is comparative law? The question of real importance is: What is its purpose?’
(Gutteridge, 1949/1974: 5), most works on comparative law start with the ques-
tion: ‘What is comparative law?’ and then attempt to define it. One rather circular,
vague and open-ended definition tells us for instance that ‘the words suggest an
intellectual activity with law as its object and comparison as its process’ (Zweigert
and Kötz, 1998: 2).
Comparative law, sometimes referred to as an ‘incomplete theme’, is the
juxtaposing, contrasting and comparing of legal systems or parts thereof with
the aim of finding similarities and differences. However, the definition can
be much wider than that: Comparative law is a science of knowledge with its
own separate sphere; an independent science, producing theoretical distillate.
Comparative law can be regarded as the ‘critical method of legal science’.
Developing Comparative Law 45
Indeed comparative law is a very broad field and the fruits of comparative study
can be put to many uses. Yet, it cannot be justified by its uses or objectives alone.
As Rodolfo Sacco points out,
the use to which scientific ideas are put effects neither the definition of a science nor the
validity of its conclusions (Sacco, 1991a).
We know that the everyday process of thinking involves the making of a series
of comparisons, that is, a process of contrasting and comparing, juxtaposing the
unknown and the known, and we comprehend the phenomena around us by
observing differences and similarities:
Just as the qualities of a yellow, its hue, brilliance and tone are perceived and sharpened
most truly by placing it first on or beside another yellow and secondly by placing it in
contrast to purple, so we explore the world around us (Örücü, 1986: 57).
So, we see that comparison is involved in all methods of scholarly investigation,
‘whose purpose is the discovery of sameness and difference’ (Hall, 1963: 20). It is
also in this way that we understand the legal world around us.
Looking at the world of law and the environment in which it lives, comparative
law can provide knowledge about ‘law as rules’, ‘law in context’ and ‘law as culture’,
thus enabling us to have comprehensive and in-depth knowledge of the legal phe-
nomena and their interactions in society. Comparative law draws from the pool of
models to illustrate the general points it is making. Like legal theory, legal history
and legal sociology, it brings additional perspectives, although it is said that ‘tra-
ditional comparative law’ has failed by paying insufficient attention to context and
ignoring the context of ideas (Ewald, 1995). Traditional legal doctrine engages in
comparative law through the ‘law as rules’ approach. This bears the prejudices of
positivism and of national legal cultures. It is important to regard comparative law
‘as an indispensable international component of a “culture juridique”’ (Zweigert
and Kötz, 1998: 54). Comparative law gives us a tool of communication.
It has also been said that comparative law ‘has by common consent the some-
what unusual characteristic that it does not exist’ (Kahn-Freund, 1966: 40–1), and
that comparative law is not another branch of law; it certainly is not independent
of the subject area it is investigating. As Harold Gutteridge observed:
The process of comparing rules of law taken from different systems does not result in
the formulation of any independent rules … Not only are there no ‘comparative’ rules of
law but there are no transactions or relationships which can be described as comparative
(Gutteridge, 1949: 1).
In this view one could at best talk of a comparative family law, a comparative
constitutional law or a comparative contract law. Here the comparison is not the
central element of the comparative work, the focus being on fields of law that are
inquired into comparatively for specific purposes such as law reform, harmoni-
sation or offering solutions to problems of domestic law. There must always be
specificity and purpose in comparative law research. One should, in fact, talk of
‘applied’ comparative law.
46 Esin Örücü
William Twining puts forward three reasons for questioning the idea that ‘com-
parative law is an autonomous discipline or sub-discipline’. According to him, the
first reason is that such an idea is philosophically dubious; the second that since all
legal scholarship involves comparison, ‘it is misleading, indeed dangerous’ to set
comparative law apart; and the third that comparative law has no defined subject-
matter (Twining, 2000a: 45).
It has been said that comparative law is simply a method of looking at law. As
a technique, comparative law is used to collect information on foreign law—an
entire legal system, an institution or a rule—to juxtapose and contrast the find-
ings and make comparisons, that is, to identify similarities and differences. The
purposes or objectives of this method are what give comparative law meaning. As
a facilitative method, comparative law could be applied to domestic problems or
transactions across international boundaries. In this sense it has close connections
with international private law.
But for the academic comparative lawyer the prime function of comparative
law, sometimes called ‘scholarly comparative law’, is to provide access to legal
knowledge which can be used not only for the purposes of law reform, or as a
research tool, or to promote international understanding, but to fulfil its essential
task of furthering the universal knowledge and understanding of the phenom-
enon of law. A succinct view formulated by Richard Tur summarises the ultimate
position:
The unity of general jurisprudence and comparative law consists in the unity of form
and content; they are essential moments of legal knowledge, different sides of the same
coin. General jurisprudence without comparative law is empty and formal: comparative
law without general jurisprudence is blind and non-discriminating. General jurispru-
dence with comparative law is real and actual: comparative law with general jurispru-
dence is selective and clear-sighted (Tur, 1977: 238 at 249).
CM Campbell wrote:
The term ‘comparative law’ can mean so much or so little that it is only by examining
particular methods, aims, approaches and the consequent utilisation that we can glean
from ‘comparative law’ substance and purpose (Campbell, 1966).
In addition to the question: ‘What is comparative law?’, a second concern is with

the name of the subject itself. This concern is voiced mostly in the English-
speaking world. Is the term comparative law appropriate? It has been said that
the term ‘comparative law’ is misleading in the English version of the name. In
some other languages, as translated, the subject is either called ‘Comparison
of Laws’ or ‘Legal Comparison’ (Rechtsvergleichung, Rechtsverkelijking) or ‘Law
Compared’ or ‘Compared Law’ (droit comparé). For some, ‘Legal Comparison’, as
used in Germany, may be the most appropriate term to be used here, since ‘Legal
Comparison’ indicates clearly that there is no interest in the extrinsic factors in
the comparisons to be undertaken, which should remain normative. Others today
find the terms ‘comparative analysis of law’ or ‘comparative study of law’ more
suitable. However, it has also been stated that,
[b]ecause law is not only a reference but is the very field of our study, the traditional
term of comparative law is fully justified and suitably reflects the field of our scholarly
endeavours (Karameus, 2001: 859 at 867).
Not only law, but comparison, are the central elements.

Though the more recently coined and widely used title ‘Comparative Legal
Studies’, has a confusing aspect in that it indicates studies beyond the law as conven-
tionally understood, this has a generality beyond the normative approach dominant
among black-letter-law comparatists, and implies a wider approach to law. In a
recent work, for example, carrying the title ‘Comparative Legal Studies: Traditions
and Transitions’, it is stated that the term ‘Comparative Legal Studies’ in the title was
chosen deliberately to avoid ‘this academic quagmire’ (Munday, 2002: 20).
II. METHODOLOGY OF COMPARATIVE LAW
This part considers the methodology, language and problems of comparative law.
‘Functional equivalence’ and some problems connected to it are discussed and the
issue of ‘context’ is introduced.
The first concern is what is meant by comparability. Is an element of similarity
necessary for comparability? What is the so-called ‘meaningful’ comparison? We
have seen that the term ‘comparative law’ itself is by no means free from ambigu-
ity; the factor of ‘comparability’ is even less so.
The fact that any one thing can be compared with any other thing has not pre-
vented wide and varied discussion of the concept of ‘comparability’ by comparative
lawyers. The discussion hails from the common belief that ‘things to be compared
must be comparable’, and usually revolves around the words ‘like’ and ‘similar’. It is
stressed that ‘like must be compared with like’ and ‘similia similibus’—these being
two well-established maxims of comparative law. What is ‘like’ in law? How ‘like’
do things have to be to be ‘comparable’? May we not compare diverse legal systems,
legal institutions or legal rules and come to the conclusion that they are not ‘like’?
Can we not, for example, compare a divorce case with an eviction case if our
intention is to find out how courts deal with cases in general and to develop an
understanding of how long cases take in court or how decisions are written?
Could we not compare, for instance, an English statute on taxation, town and
country planning or matrimonial causes with three pieces of German legislation
on entirely different topics if we were trying to establish how such documents are
prepared and how long or detailed they are, in order to develop an understanding
of such a source of law? The examples could be infinite (see Bogdan, 1994: 58).
It is claimed that ‘comparison is possible only if the instances are comparable
and the results interpretable’.2 It is further claimed that, ‘comparisons can be
2 Merryman, 1974: 92, and also in Merryman, 1999: 489, where he discusses Zelditch’s views on
comparability, referring to Zelditch, ‘Intelligible Comparisons’ in Vallier (ed), Comparative Methods in

Sociology (1971) at 267–307.
48 Esin Örücü
useful only if the legal institutions under investigation are naturally or function-
ally comparable’. Comparative law is said to be a comparison of ‘comparable’
legal institutions or of the solutions to ‘comparable’ legal problems in different
systems (Zweigert and Kötz, 1998: 34). Is the approach we want to take today
one that says that only ‘similar’ things could be compared? In many languages the
word ‘comparable’ ‘can also mean “approximately similar” or “not too different”’
(Bogdan, 1994). Thus to talk of ‘comparability’ may evoke an intellectual activity
of juxtaposing somewhat similar systems, institutions or rules.
Comparative law scholars use the term tertium comparationis, a common
comparative denominator which could be the third unit besides the two legal
comparanda, that is, the elements to be compared—the comparatum and the
comparandum. Here, comparability is seen to depend on the presence of common
elements that render juridical phenomena ‘meaningfully comparable’. What the
comparative lawyer looks at as tertium comparationis could the ‘common func-
tion’ between institutions and rules, the ‘common goal’ they set out to achieve,
the ‘problem’, the ‘factual situations’ they are created to solve or the solutions
offered.
Another concern is which methods can and should be used by comparative
lawyers. Is there a standard comparative law methodology? Apart from regarding
comparison itself as a method, the problems of comparative legal methodology
are very varied and have been discussed in different ways by many comparative
lawyers.3 ‘Functional equivalence’ and the ‘problem-oriented’ approach, ‘model-
building’ and ‘common core’ studies, the ‘factual’ approach and ‘method in action’
are just some approaches to the question: ‘How to compare?’ put forward in the
last century. ‘How to compare now’ is actually the title of an article by Pierre
Legrand, one of the more controversial comparatists of our times (Legrand, 1996;
Legrand, 1999: 1).
‘Comparison’ clearly is a method used in all fields of study, be they social sci-
ences or natural sciences, such as governance, economics, linguistics, architecture
and so on. ‘It is a way of looking, it is a mode of approaching material, a method
in the process of cognition’ (Örücü, 1986: 57). In this sense ‘comparative method’
is an empirical, descriptive research design using ‘comparison’ as a technique
to cognise. However, when the term ‘comparative’ is included in the name of a
sub-division of a field such as comparative architecture, comparative linguistics
or comparative law, it denotes an area of study and in that context, the word
‘comparative’ in the title no longer depicts only a method, but an independent
branch of that science. The subject, then, develops its own methods. Comparative
law is more closely related to social sciences, from where it borrowed its methods,
than to ‘pure’ normative inquiry, which seems to characterise other types of legal
research.
Although comparative law research is open ended—the methodology being
dictated by the strategy of the comparative lawyer—and there is no standard
3 See Roberts, 1972; and see also a number of chapters in Legrand and Munday (eds), 2003.
methodology, the possibility of comparison is dependent upon the existence and

availability of data. Data can best be obtained by employing social science meth-
odology. The first stage, the inquiry, is also related to concept building, where
concepts that are neither so broad as to be meaningless nor too narrow to cover
more than one instance, have to be devised. Umbrella concepts may have to be
created.
The classical technique of legal methodology of reading texts of all kinds and
hoping for insight has serious limitations for collecting data to serve comparative
inquiry adequately. Unless there is collaboration between legal and social sci-
ence researchers, comparative law falls short of its function, not only as a way of
enhancing understanding and knowledge of law in context, but also as a source of
models and of empirical information and knowledge.
Following the inquiry, a comparative lawyer is expected to describe, juxtapose,
identify similarities and differences and then venture into the field of explanation.
It is here that hypotheses are needed and it is here that real comparison starts. This
explanation, this discovery of the raison d’être for the differences and similari-
ties, also necessitates moving from the domain of pure legal reasoning to that of
contextual factors.
Black-letter-law oriented traditional comparative law research is normative,
structural, institutional and positivistic. The empirical school suggests that the
appropriate method should begin with the facts rather than hypotheses, and end
in description. This is said to be a realistic approach, since the present-day lawyer
is well equipped to use this method.
Explanation of the differences and similarities identified is an accounting for
these findings. It is at this stage that context becomes indispensable for under-
standing. John Merryman says that ‘the explanatory approach represents one
attempt to choose error over confusion’ (Merryman, 1974: 100). An explanation
of findings, of exceptional and typical cases, an accounting for differences and
similarities, is thus not just a necessary step in comparative research but is its
essence. Some of the hypotheses may also serve as explanations, but for some
findings new explanations have to be found. When the comparative law researcher
examines these explanations in order to understand why the legal systems have
produced the institutions they have, the explanations may not be legal ones, and
the texts themselves will show the differences but not offer explanations. Yet
explanation is not the final step in a piece of comparative research. Findings must
be verified and confirmed, and only then is the work deemed to be complete. This
is the theory-testing stage for the tentative hypotheses.
Creative comparative law research may also be interested in suggesting ‘core
concepts’ and point the way to ‘ideal systems’, or at least to the ‘better law’
approach. William Twining has remarked that comparative lawyers are concerned
‘with description, analysis and explanation, rather than evaluation and prescrip-
tion’ (Twining, 2000a; Twining, 2000b: 34). In relation to the search for ‘better
law’, there is scope for evaluation and prescription. However, the legitimacy of this
activity remains questionable.
50 Esin Örücü
We must remember that a comparative lawyer faces a number of additional

problems. These include the choice of systems, appreciation of cross-cultural sys-
tems, language, terminology, translations, both participant and non-participant
observer effect, access to material beyond the legal, the absurdity of explanations
offered, the reliability of secondary sources, the existence of historical accidents
and anachronism of predictions.
In order to fulfil the requirements of scholarly comparative research, both
similarities and differences must be considered, keeping in mind, however, that
the purpose is not to search particularly for similarity or difference but to observe
what is actually there. When there is similarity, this cannot be ignored just because
the researcher is keen to follow the ‘contrarian challenge’, nor can a difference be
glossed over because some other policy consideration such as European integra-
tion or globalisation dictates that only similarities should be highlighted.
When the comparison is of legal rules, provisions and institutions only, the
comparative lawyer starts with rules whose functions are equivalent and collects
relevant data that lead to a succinct description. Here, contrasting is the first step
of comparing. As suggested by the empirical school, the method begins with the
facts, ‘the problem’, and ends in description. Similarities and differences brought
to light by this contrasting and comparing are then identified.
If for instance, a comparative lawyer were asked, say, by the English Law
Commission, to look into ‘do-it-yourself divorces’ in the laws of the Member
States of the European Union with a view to facilitating divorce in England,
all she would have to do is report on the different schemes, describe them, and
identify the differences and similarities between them and also between them
and the domestic law. She would not evaluate the findings, this being the task
of the Law Commission and to be determined in keeping with the policy deci-
sions made there. In such cases, the comparative lawyer is purely a facilitator, a
lawyer looking at laws comparatively. It is for others to build with these bricks.
She would not enter the arena of prescription of a ‘better law’ consequent to an
evaluation.
Blueprints have been suggested that could be employed in comparative law
research. For example, Peter de Cruz suggests an eight-step method: an outline
plan of action identifying the problem; identifying the foreign jurisdiction and
the parent legal family; deciding on primary sources of law that will be relevant;
gathering and assembling the relevant material (and here he offers a normative
checklist); organising the material in accordance with headings; tentatively map-
ping out the possible answers to the problem (here bearing cultural differences in
mind); critically analysing the legal principles according to their intrinsic mean-
ing; and finally, setting out the conclusions within a comparative framework with
caveats if necessary (de Cruz, 1999: 235–239).
It is time now to look at ‘functional equivalence’ and its problems, and at
other approaches. At the level of micro-comparison, it has been widely argued
that the true basis of comparative law is functional equivalence. According
to Michele Graziadei, functionalism represents two distinct currents: the
‘functionalist method’ which is ‘one of the best-known working tools in com-

parative legal studies’, and ‘functionalism’ in the sense ‘that law responds to
society’s needs’ (Graziadei, 2003: 100).4 Though the ‘functionalist method’ is
not ‘the sole or even the dominant approach’ in comparative law research, and
is being challenged today, it has gained new life ‘under the flag’ of ‘common
core studies’ in Europe.
When ‘law’ is regarded as a body of rules only and comparison at the micro-
level is directed at these rules, then the functional approach is useful, since a
body of rules is created for the purpose of solving human problems, most of
which are shared. Thus, in the context of the European Union for example,
where comparative law is a driving force and has a decisive role in the har-
monisation process, the ‘functional comparative analysis method’ provides
the potential for convergence of both the legal systems and the legal methods
of the Member States, leading to gradual and eventual legal integration. In
this, to build on similarities is desirable.
In fact the one effective method in comparative law research in relation to
European ‘common core’ projects, is functionalism. This comes from the univer-
salist approach to human needs. Social problems are universal; laws respond to
these needs in various ways but the end results are comparable; hence, a ‘concrete
problem’ is the starting block. ‘It is possible to compare the incomparable pro-
vided that the focus is on the same facts’ (Graziadei, 2003: 105); hence the ‘factual
approach’. If facts are not the same there is no comparability. In the universalist
approach the similarity of solutions is paramount. If this were not so there would
be no place for comparisons. Functional inquiry also suits the utilitarian approach
to comparative law. So, comparative lawyers should seek out institutions that have
the same role, that is, those which have functional comparability or solve the same
problem, that is, similarity of solutions. Konrad Zweigert and Hein Kötz regard
this issue as finite and say:
the basic methodological principle of all comparative law is that of functionality …
Incomparables cannot be usefully compared and in law the only things which are com-
parable are those which fulfil the same function (Zweigert and Kötz, 1998: 34).
The question is: ‘Which institution in system B performs an equivalent func-

tion to the one under survey in system A?’ From the answer to this question,
the concept of ‘functional equivalence’ emerges. For example, if an institution
called divorce is under survey in system A, the comparative lawyer looks for an
institution in system B performing an equivalent function; that of freeing an
individual from an unsatisfactory marital relationship within which he or she
does not wish to remain. Again, if the institution of ‘solicitor’ is under survey in
Scotland, the comparative private lawyer looks for an institution performing an
equivalent function—that of preparing documents for litigation, dealing with
4 See also, for a useful discussion of functionalism with a capital (F) and a small (f), Twining , 2003:
213–17 and 238–43.

52 Esin Örücü
non-contentious matters, representing the client, and so on—in another system,

for example, The Netherlands.
An alternative to the functional-institutional approach, or a variation of it,
is the problem-solving, the sociological approach. This problem-solving basis
seeks an answer to the question: ‘How is a specific social or legal problem
encountered both in society A and society B resolved by their respective (legal
or other) systems?’ In other words, ‘What legal or other institutions have devel-
oped to cope with it?’ This approach, similar to the ‘functionalist’ approach,
springs from the belief that similar problems have similar solutions across legal
systems, though reached by different routes. For example, how is the problem
of supporting a wife who would otherwise be destitute after the termination of
marriage, resolved in societies A and B? Again, how is an individual represented
in court in Scotland and The Netherlands respectively? This matter may be
tackled differently and handled by different bodies in the two societies. In this
connection it is said that, ‘the fact that the problem is one and the same warrants
the comparability’.5
However, the functional-institutional approach does not solve the issue of
comparability as between a Western legal system and a religious system or a
developing legal system. In addition, if a problem arises in one legal system
but has no counterpart in another, this approach faces another dilemma. Legal
systems pertaining to societies that are socio-culturally and legal-culturally dif-
ferent from each other can also be compared even if for the purpose of estab-
lishing diversity, and in this case the functional-institutional approach cannot
be the basis. The functional-institutional approach has also been challenged as
not working between capitalist and socialist legal systems, in spite of the fact
that the very basic human needs are universal. There are other fundamental
criticisms of this approach on grounds such as the limited number of subject
areas that can be compared by using this method and the fact that many areas
of law are left out of the scope of comparison since they are regarded as ‘not
lending themselves to comparison’, determined as they are by specific histories,
ethical values, political ideologies, cultural differences or religious beliefs. Not
only that, but the question of whether each rule or each institution has only one
function—‘one institution or rule with many functions’—has not been satisfac-
torily addressed. In addition, although law can be seen as ‘a body of rules’, it is
much wider than that.
It would be odd to allow comparative law research but one methodology,
‘functional inquiry’, which has only a technical perspective. Therefore, although
employing ‘functional equivalence’ as a tool of comparability at the micro-
level for specific projects is appropriate, comparatists opt for a multiplicity of
approaches, compare differents and contexts, and extend comparison beyond
functionally equivalent rules.
5 Schmitthoff, 1939: 96, where he refers to M Salomon’s work, Grundlegung zur Rechtsphilosophie
(1925).
In fact, recently, many other bases have been presented as being more appropri-
ate. As Michele Graziadei notes:
no one could have foreseen the plurality of methods which are currently being practised
when comparative law was thought to be a method in itself (Graziadei, 2003: 101; and
Husa, 2003).
‘Comparison’ itself could be viewed as the method but this would be reductivist
since there are indeed a number of methodological options. Most of these are
contextual approaches such as analysis of existing rules and institutions in ‘his-
torical context’, ‘economic context’, ‘political context’ or in ‘social or cultural con-
text’. Some of these approaches are now dubbed as post-modernist, intermingled
with legal realism. However, the functional method was built to do away with ‘the
local dimensions’ of rules and to reduce the rules to their operative description
‘freed from the context’ of their own systems; whereas, the contextual approaches
specifically stress the ‘local dimension’.
In any case, even the so-called functionally equivalent institutions are what
they are because they reflect the structure of the legal and social system within
which they exist. Thus, legal, social, cultural, economic, religious and political
backgrounds cannot be neglected. Indeed, in the explanation of results this back-
ground is vital. Legal systems and legal institutions in countries socio-culturally
and legal-culturally different from one another must be comparable for a com-
parative lawyer who wants to leave the shores of Euro-centrisism and to investi-
gate ‘localisms’ in our ‘globalising’ world.
III. THE PURPOSES OF COMPARATIVE LAW RESEARCH
We have also seen that there is not one simple answer to the question: What is
the purpose of carrying out comparative legal research? A distinction has to be
drawn between scholarly activities and the activities of the legislatures, the practi-
tioners of the law and the judiciary. In other words, as there is no one identifiable
method, there is no one identifiable purpose, there is a multiplicity of purposes.
Comparative law research has moved in a number of distinct directions. If one
surveys the bulk of work undertaken to date the following objectives are clear: law
reform and policy development by the legislature, aid to the international practice
of law, international harmonisation and unification, common core research, and a
gap-filling device in law courts. The findings of comparative lawyers can be utilised
for any of these. There are also other purposes such as ‘giving students perspec-
tive’, ‘being a tool of research to reach a universal theory of law’ and ‘aiding world
peace’.
Let us now consider some of these purposes. First, let us start with the general
purpose.
Comparative law research is undertaken to improve and consolidate knowledge
of the law and understanding of the law in context. As mentioned in the previous
discussion on the nature of comparative law, this branch of legal science gives
54 Esin Örücü
us insight into law and legal texture as no other branch can. We understand the
legal world around us by juxtaposing the unknown to the known. The aim is to
sharpen awareness and cognition of the legal, social and cultural environments
in which we live. This is best done not just by discovering resemblances between
the ‘similar’ or even similarities between the ‘different’, but more fundamentally
by finding and explaining similarities between the ‘different’, and differences and
divergences between the ‘similar’. Comparative law thrives on differences (see, eg
Legrand, 2003: 240). Scholarly comparative law research, by increasing detailed
understanding of legal phenomena points towards diverse systems; the more
diverse the systems, the more rewarding the findings.
The aim is not to create one law for the whole world. Neither is it utopian—
to form a dictionary of legal terms in all languages. Far from it. The aim is to dis-
cover and understand differences between legal systems and legal institutions and
explain the reasons for these in order to enhance knowledge and, at the same time,
to discover similarities between different and diverse legal systems and find explana-
tions for these.
As early as 1938 it was said by Harold Gutteridge that
[t]he isolation of legal thought in national watertight compartments has always seemed
to me to be one of the factors which is most prolific in producing that frame of mind
which leads to a spirit of national egotism. We have much to learn from one another in
legal as well as other departments of human activities, and it is, in a sense, a reproach to
the lawyers of all nations that they have been unable, up to the present, to arrive at the
free interchange of knowledge and ideas which has been attained in other branches of
learning (Gutteridge, 1938: 401 at 410).
Let us look now at the second general purpose: the grouping of legal systems.
This objective can even be the starting line of all comparative law activity.
Legal systems, legal cultures and legal traditions are classified for the purpose
of comparison. In recent years, as legal systems shift even more quickly, there
have been many developments in this area.6 Where scholarly comparative law
research is also concerned in tracing relationships, legal systems historically
related by colonisation, imposition and borrowing, and systems related in other
ways must be studied. In order to understand the changes that take place dur-
ing the moving of institutions, the emphasis must be placed on the institutions
that have moved.
Thirdly, comparative law serves the purpose of broadening the mind of the
law student and helps in the development of tolerance. In this context, the most
valuable course to be offered to undergraduates is not comparative family law,
comparative contract law, comparative civil procedure or even comparative pri-
vate law or comparative public law, but an autonomous general comparative law
course providing the breadth necessary for the development of critical minds.
One very important role of comparative law studies is to put an objective distance
6 See ch 8.
between the student and her own legal system and to encourage that critical ques-
tioning mind in assessing domestic law.
Another purpose that can justify the use of comparative law research is in leg-
islative law reform, when the comparative lawyer works de lege ferenda, in which
case to aid the legislature, comparative law research can provide a pool of models
from which to choose. The purpose will dictate the choice of models: legal systems
preferably in socio-cultural and legal-cultural affinity, systems which share the
same problem and systems which deal with the same problem in different ways,
better ways or more efficient ways, from whose solutions the reformer can learn
and derive answers.
Fifthly, comparative law research can also provide a tool of interpretation for
judges by making them aware of foreign solutions to similar problems when
there are none at home. In other words, it acts as a gap-filling device, de lege lata.
Judges may have to refer to foreign law out of necessity when the case they are
dealing with involves a foreign element, such as where private international law
rules apply or cases involve the application of, for example, European Directives
or Regulations, where a knowledge of cases from Luxembourg is required or the
decisions of the courts of other Member States related to that instrument must be
looked at. Recently there has been increasing interest in comparative law among
the judiciary; an active search for a universal language.7 It may soon become pos-
sible to talk of a ‘common law or a ius commune of human rights’ for instance.8
This ‘common law’ is now being developed by domestic judges in conversation
with judges from other jurisdictions and from the European Court of Human
Rights. This search for ‘commonality’ can be seen as connected to ‘common core’
research, comparative law being geared towards discovering ‘common cores’, and
further, creating ‘better law’.
Yet another area where comparative law is of use is in the drawing up of
international conventions and agreements. The terminology to be used in
international documents must be distilled from the laws of the legal systems of
the target audience. Additionally, comparative law is indispensable in the inter-
pretation of international instruments. Comparative lawyers’ work is essential
in discovering the ‘general principles of law recognised by civilised nations’ or
by ‘member states’, and in determining the customary rules of public interna-
tional law.
A seventh purpose is the use of comparative law research in the harmonisation
of law. The activity envisaged might either be harm onisation only or unification
with prior harmonisation. Here the choice of the legal systems and subjects to be
comparatively researched is pre-determined by political considerations. Systems
to be studied will be those whose laws will be harmonised or unified. The com-
parative law researcher’s work is to provide ideas for the necessary changes to the
legal systems or institutions to be harmonised, to smooth the process or suggest
7 See chs 16 and 18 of this Handbook.

8 See contributions in Örücü (ed), 2003. See also see ch 16 of this Handbook.
56 Esin Örücü
the creation of a model law or a unified law. A thorough knowledge of all the
systems involved in the process is required before an approximation is suggested.
More problems will be encountered if the two or more systems involved are socio-
culturally and/or legal-culturally diverse.
We see today that in the context of the European Union, a number of
Commissions are working on projects to produce ‘General European Principles’
in a number of fields. Most of these are ‘common core’ based principles. General
principles could be drafted ‘with a low level modernity and innovation using the
common core methodology’, or such principles could be drafted ‘based upon the
highest standard or modernity … using the “better law” method’ (Antokolskaia,
2003: 160). Though harmonisation suggests that the new rules should be ‘derived
from existing laws rather than invented by the drafters’, in practice what is done is
to ‘make use of a rule that is common for all or most of the relevant jurisdictions’,
or a rule selected ‘that represents a minority or even one jurisdiction’ (ibid).
Obviously the ‘common core’ approach is the easiest to use, as it makes justifi-
cation more straightforward by restating what represents the majority. However,
as one tries to move closer to the majority of the jurisdictions, the value of the
exercise may diminish. Also, gathering the rules that achieve the same end may
prove to be difficult in practice. Even when a ‘common core’ is found, this may not
correspond to a ‘satisfactory’ solution. Another problem concerns similar legal
concepts that conceal fundamentally different understandings. Therefore a move
towards the ‘better law’ approach may become attractive.
However, in the selection of the ‘better law’, justification of the choice made can
be taxing as it is difficult to decide what is ‘modernity’ and what is ‘progressive’.
Also the ‘better law’ approach entails a comparative evaluation of all the legal sys-
tems or legal solutions involved. This could prove to be impossible. Inevitably by
making choices, drafters take up positions and express value judgements. Even if
a quantitative measurement were possible, the ‘data’ relied on would not answer
the question: ‘Why?’ It may have to be admitted that
no objective criteria can be found in order to justify the choice as to why the drafters
consider the rule they have selected to be the ‘better’ one (Antokolskaia, 2003: 181).
Especially in areas politically and ideologically coloured, justification would have

to be subjective ‘depending on the conviction of the drafters’ (ibid). When courts
adopt this approach in search of commonality, then the same considerations must
be faced. It is also difficult to secure total agreement on the necessity and desir-
ability of the ‘better law’ in all localisms involved.
IV. UNITS OF COMPARISON: MACRO-COMPARISON AND MICRO-

COMPARISON
‘What is to be to compared?’ is usually dealt with at two levels: the macro-

comparative and the micro-comparative. These levels are complementary, since
the second presupposes the first. Let us consider these respectively.
Comparability at the level of macro-comparison, or macro-comparability,

materialises at the level of legal systems. Therefore, the definition of a legal system
may be the first task to tackle. For one comparative lawyer, John Merryman, a legal
system means
the complex of legal institutions, actors and processes in the context of a legal culture
and the secondary legal rules (Merryman, 1974: 101).
Furthermore, a legal system

has a vocabulary used to express concepts, its rules are arranged into categories, it has
techniques for expressing rules and interpreting them, it is linked to a view of the social
order itself which determines the way in which the law is applied and shapes the very
function of law in that society (David and Brierley, 1985: 193).
Although it is difficult to assess how far any legal system is linked to a specific
social order, it can be said that laws are imbedded in political and social cultures.
It is essential, for the purpose of later attempts at explaining differences and
similarities encountered in the legal systems under comparison, that the notion
of a system as a macro-unit combines the legal system with the societal, cultural,
political and economic systems. Most of the differences that cannot be explained
in terms of the legal system can more easily be explained in terms of the societal,
political or economic systems. Social systems may determine the content of the
corresponding legal systems and vice versa. The same could be said of the eco-
nomic systems.
At the level of macro-comparison, many comparative lawyers argue that the
comparison must extend to the same evolutionary stage of different legal systems
under comparison. For example, Harold Gutteridge understands from ‘compare
like with like’, that ‘concepts, rules or institutions under comparison must relate
to the same stage of legal, political and economic development’ (Gutteridge,
1949: 73). This means that at the macro-level, the legal systems under compari-
son should be at the same stage of development, economic, social and legal.
However, it could be argued that at the macro-level, ‘comparability’ may be
relative to the interests and the purpose of the comparative lawyer and that it is
the aims of the specific comparative study that should determine the choice of
legal systems to be compared. Whether the preferred systems have reached the
same degree of development, legal or otherwise, may be a secondary consider-
ation (Kamba, 1976: 494 at 507–8). Nor need one carry out comparative research
only in groups of legal systems with broadly shared attributes. Even if one were
to think the reverse, history shows otherwise, and the overlapping and mixed
systems expand the scope of the comparative field to legal systems grouped in
different ways and at different levels of development.9
Ideally, macro-comparison and micro-comparison should merge, since the
micro-comparative topic must be placed within the entire legal system. Hence,
9 See ch 8.
58 Esin Örücü
the macro-comparative unit, that is, the totality of the legal system in context,
is the frame within which all is contained and evaluated. Within the context of
a supra-legal system, such as the European Union for example, the comparative
lawyer has an even wider frame within which to evaluate her findings. From such
analysis it is possible to venture into suggesting common denominators, be they
at the level of the lowest, the average or the highest. ‘Common core’ studies also
can be pursued after such exploration.
Traditionally, as stated, at the macro-level, comparative law has been concerned
with comparing ‘the legal systems of different nations’. This is the starting point
for writers such as René David and John Brierley, and Konrad Zweigert and
Hein Kötz. William Twining indicates that ‘mainstream’ comparative law has
two approaches. At the macro-level, the approach is what he calls the very broad
‘Grands Systèmes’ approach, and at the micro-level, the ‘Country and Western’
tradition, concentrating on some aspects of private law (Twining, 2000a: 32).
Today, logic necessitates moving the focus from legal system and legal family to
legal culture or legal tradition.10 What a legal culture is may be more difficult to
determine than determining what a legal system is, however. It has been said that
the center of gravity of legal development lies not in legislation, nor in jurisdic science,
nor in judicial decisions, but in society itself (Ehrlich, 1912/1939: xv).
This observation takes us into the mysteries of the interaction of social norms
and legal rules. For instance, Henry Ehrmann looks at legal culture as a link and
says that
the attitudes, beliefs, and emotions of the operators as well as of the users (and victims) of
the legal system have much to do with the way in which it functions (Ehrmann, 1976: 9).
Is it this link that should be studied? Are comparative lawyers then to look into
what is called by Henry Ehrmann ‘legal culture’, but by John Merryman, ‘legal
tradition’, the two definitions given being the same? Then we see Patrick Glenn,
who challenges the very notion of culture and insists on the word ‘tradition’, the
term ‘tradition’ taking on a different meaning (the presence of the past) from that
used by John Merryman (see Glenn, 2000).
So, how do comparative lawyers align themselves? In a broader approach, the
comparative lawyer must understand the relationship between legal systems, legal
cultures and legal traditions as well as find rules that are not necessarily within
the formal framework of the legal system but are held by the people to be valid.
Both the ‘bottom-up’ and the ‘top-down’ models of law must be understood and
appreciated. In addition, her approach must be broad and inclusive.
This broad approach to comparative law would certainly move us away from
‘legal systems’ and the ‘law as rules’ attitude, as law cannot be understood or re-
presented unless it is regarded within broad historical, political, socio-economic
and psychological contexts. For John Merryman for instance, a legal system is
10 See chs 5 and 6.

‘an operating set of legal institutions, procedures and rules’, legal systems being
frequently classified into groups or families (Merryman, 1985: 1). He hastens to
add, however, that being grouped together does not suggest that the legal systems
within a group ‘have identical legal institutions, processes and rules’. In fact ‘there
is great diversity among them’(ibid). That they are grouped together signifies that
they have something else in common. This ‘something else’ is what distinguishes
them from legal systems differently classified; this is legal tradition which relates
the legal system to the ‘culture of which it is a partial expression ... and puts the
legal system into cultural perspective’ (Merryman, 1985: 2). A legal tradition is:
a set of deeply rooted, historically conditioned attitudes about the nature of law, about
the role of law in the society and the polity, about the proper organisation and opera-
tion of a legal system, and about the way law is or should be made, applied, studied,
perfected, and taught (ibid).
Indeed, many contemporary comparative lawyers abide by his definition. For

instance, John Bell gives his definition of legal culture as
a specific way in which values, practices, and concepts are integrated into the operation
of legal institutions and the interpretation of legal texts (Bell, 1995: 70).
He thus presents ‘legal culture’ as a configuration of values, concepts, practices

and institutions through which individuals interpret and apply legal norms; legal
culture being rooted in general culture. Mark van Hoecke and Mark Warrington
go on to say that ‘understanding law implies a knowledge and an understanding of
the social practice of its legal community’ (van Hoecke and Warrington, 1998: 495
at 498), which presupposes an understanding of the general culture of that society,
since the legal community is embedded in that society. Therefore, to distinguish
legal systems one must locate them and their cultures ‘within the broader context
of the societal culture to which they belong’ (ibid). These cannot be understood
by merely comparing rules, legal institutions or even processes. It must be remem-
bered though that culture is never a homogenous whole—neither is the law.
Where should we go to look for legal culture and, how should we investigate it?11
Comparative lawyers see the need for such understanding and yet require the help
of others such as economists, political scientists, sociologists and psychologists in
order to grasp true meanings, even when looking at their own legal system. They
find it difficult to answer whether differences between legal systems can be explained
by ‘national character’. Further, can legal cultures faithfully mirror national charac-
ter and overall culture? Can two legal cultures be more alike but the overall cultures
more divergent? Is national character the effect or the cause of differences?
The above shows us two things. The first is that we cannot talk of legal systems
as the sole units of macro-comparative inquiry. The second is that there is no
clear-cut definition of legal culture and legal tradition or any obvious reasons for
preferring one concept to the other.
11 See ch 5 in this Handbook.

60 Esin Örücü
A narrower approach regards comparative law as being involved only in the

‘top-down’ model, that is, the legal system as laid down by the formal law-maker,
and elaborated upon by the appropriate high courts. Accordingly, comparative
lawyers rely on normative inquiry. Thus, legal systems, together with the legal
families in which they sit, are treated as the starting points of macro comparison.
A legal system is made up of a set of inter-related parts, each with a specific func-
tion. The comparative lawyer analyses the working of these parts. However, Konrad
Zweigert and Hein Kötz state that in studying legal systems, we should ‘grasp their
legal styles’ (Zweigert and Kötz, 1998: 67). Yet, the concept of ‘legal style’ does not
go beyond history, mode of thought, institutions and legal sources. The ‘last factor’
ideology is often discarded today as all five factors need not be used cumulatively.
The comparative lawyer finds, describes, juxtaposes and identifies the differences
and similarities between statutes, judicial decisions and related material, but often
ignores context when it is not of a legal nature. What we have here is a technical
perspective, shared with traditional legal doctrine applicable to domestic law.
In Europe, most comparisons are limited to civil law/common law. Interest in
other regions of the world, unless seen as extensions of the two families by com-
parative lawyers, is satisfied by regionalists or anthropologists but not compara-
tive lawyers. As Rodolfo Sacco puts it:
If one asks what students of comparative law compare, the most obvious answer would
be, ‘the rules of different legal systems’ (Sacco, 1991a: 21).
What, then, is meant by a ‘rule’? This question must be addressed at the micro-
comparative level. The traditional approach is of a positivist: statutory rules,
that is, law as created by the state, case law and pertinent legal documents. Yet,
in the context of ‘legal pluralism’, law goes far beyond the so-called ‘official
law’, and extends to multi-layers of systems. Thus, today, ‘law’ spans the range
of positive law and then moves to non-state law, rules, custom and tradition.
What is a comparative lawyer to look at? As seen above, a broad approach to
comparative law moves us away from legal systems as macro-units of inquiry
and the ‘law as rules’ approach. The question ‘What is law?’ must be approached
in the same manner.
At the micro-comparative level therefore, comparative law presupposes the
existence of rules and legal institutions, and their plurality, but statutory rules
alone cannot be the object of comparative inquiry. The first step is to regard judi-
cial decisions as law. Even a monolithic legal system built on a Kelsenian hierarchy
may regard both statutory law and judicial law as part of the legal system. Thus,
judicial precedents must be considered by the comparative lawyer. In addition, the
decisions of lower courts and not only those of the highest courts must be referred
to. It is also commonplace today to talk of ‘state legal pluralism’, a weak version of
normative legal pluralism.12
12 See, for a discussion of ‘weak’ and ‘strong’ versions of legal pluralism, Griffith, 1986.
That said, it must be added that this is not the whole picture. Rodolfo Sacco, for
instance, is on a quest to discover the ‘formants’ of the law and therefore refutes
the existence of a ‘single rule’ and, looking at the ‘living law’, sees many elements
in the search for ‘one rule’. Having stated that one needs to recognise the diversity
of the ‘legal formants’, he says that
within a given legal system with multiple ‘legal formants’ there is no guarantee that they
will be in harmony rather than in conflict (Sacco, 1991b: 343 at 384–5).
The legal formants cited by him are constitutional and legislative rules, case law,
operational rules and scholarly writings, although no list is compiled to include
all possible ‘legal formants’. Rodolfo Sacco goes so far as to say that some ‘legal
formants’ are ‘explicitly formulated’ and others are not. He calls these ‘crypto-
types’, representing ‘non-verbalized’ rules and ‘implied patterns’ (ibid). We may
ask ourselves: ‘What about “formants” other than the legal’? These are also to be
taken into account. The comparative lawyer must look at all the elements at work
in a given legal system in context. She must remember that rules, institutions and
processes must be studied in context and that ‘legal formants’ themselves develop
under the influence of ‘contextual formants’, such as ideology and religion.
‘Official rules’ are only one type of rules. Law however, is made at a number of
‘layers’. For instance, according to Boaventura de Sousa Santos’s broad conception
of law,
modern societies are regulated by a plurality of legal orders, interrelated and socially
distributed in the social field in different ways’, rather than ‘being ordered by a single
legal system (Santos, 2002: 89).
This is the idea of legal pluralism, indicating that ‘more than one legal system
operates in a single political unit’, that is, ‘non-state law’ has equal place with
‘official law’. However, he also observes that ‘the better choice is to regard this
phenomena as given and speak of ‘a plurality of legal orders’ rather than ‘legal
pluralism’ (ibid). He also introduces the concept of ‘interlegality’ to capture the
complex relationships of superimposition, interpenetration and mixing between
legal orders and semi-autonomous legal fields. Whenever possible, comparative
law studies should extend to norms of non-state law, folk law and customary law,
remembering that the law is global, national and local.
In the narrower approach, law is seen as a creation of the nation state. As we
have seen at the macro-level, the units of inquiry are the legal systems, and law is
what is laid down by formal law-makers and elaborated upon by the appropriate
high courts. Normative inquiry is not involved in empirical field studies to find
out how things actually are, but confines itself to the study of law in the books.
However, if the primary sources of law include court decisions, these are also
included in the inquiry. Thus, a degree of ‘law in action’ is present here too.
Moreover, there is no special way of dealing with foreign law. Whether one
is investigating the rules of foreign law or of domestic law makes no difference.
Since the comparative process starts with the juxtaposition of the unknown to the
62 Esin Örücü
known, the rules of the domestic system must be studied first and then ‘functional
equivalents’ sought. In this view, the core of research in micro-comparisons is
the ‘law as rules’ approach. This narrow approach regards comparative law as a
practical pursuit not a theoretical one. Most of the comparatists involved here also
happen to be private law comparatists.
V. CONCLUDING REMARKS
There are comparative lawyers who see comparative law as a science with its own
separate sphere. Others call comparative law merely a method of study and research
or even a technique. Some regard it both as a comparative method and a compara-
tive science of law, or see in comparative law more than one of these aspects. It is
immediately obvious that those who see comparative law as a method only do not
tell us what that method is, leaving this issue unanswered or very vaguely covered,
and those who think or feel that comparative law must be more than a mere method
do not seem to agree on what this subject-matter is. We have seen that the answers
to the questions: ‘What to compare?’ and ‘How to compare?’, for example, can be
extremely varied. Are we then to conclude that comparative law will depend entirely
on what is to be compared and that the purpose of the comparison, and the purpose
for which comparative law is studied or taught, will determine the form which the
study or instruction should take? Is this a satisfactory position to assume?
It is not fanciful to predict that the 21st century will be ‘the age of comparative
law’ (see Örücü, 2002). There is decidedly a renewed and growing interest in the
subject. Academic study, law reform, policy development, research and teaching,
international practice of law and law courts all avail themselves of it, in various
ways. There are practical, sociological, political and pedagogical objectives in the
above activities.
Though the prime objective is the provision of wider access to legal knowledge,
comparative law research has a number of practical purposes. There is a place for
the generalist comparative lawyer with a curious mind who is fascinated by legal
phenomena shaped by extra-legal factors, by movements of the law and the tuning
that has to take place to make these movements successful in the new surroundings,
and with an interest in theoretical aspects of the subject. However, the comparative
lawyer working for a specific purpose may be satisfied by simply seeking answers
to problems either at the legislative or judicial level in foreign jurisdictions. It may
even be that these two positions may be held by the very same comparative lawyer
who at times works for the furtherance of knowledge satisfying the social science
objective of comparative law as well as for her own interest, and at times, for exam-
ple, as a General Rapporteur for one of the topics in the four-yearly Comparative
Law Congresses, setting out lengthy specific questionnaires for the National
Rapporteurs to answer and then drawing the threads together in the preparation of
her General Rapport in that specific topic, or using the ‘functional equivalence’ or
the ‘factual approach’ in one of the European ‘common core’ projects.
1. What is comparative law? What are its purposes?

2. What are the subject’s particular aims, approaches, methods and how is it
used?
3. What trends do we observe today in comparative law studies?
4. What do we mean by ‘the identity of the function of the norm’?
5. Why does one engage in comparative law studies? What is the role of
comparative law related to academic studies, legal research, legislation and
law reform? What is its role in the judicial process, in the filling of gaps,
in law-making and interpretation? What is the value of comparison as a
source of law? How can comparative law be utilised in harmonisation and
unification?
6. Is there one correct method to apply?
7. What is meant by a macro-unit and micro-unit of inquiry?
8. Differentiate between a legal system, a legal culture and a legal tradition.
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Zeitsschrift für auslandisches und internationales Privatrrecht 446.
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Tulane Law Review 859.
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Press).
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—— (1999) Fragments of Law-as-Culture (Deventer, WEJ Tjeenk Willink).
—— (2003) ‘The same and the different’ in P Legrand and R Munday (eds), Comparative
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Legrand, P and Munday, R (eds) (2003) Comparative Legal Studies: Traditions and
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WJ Wagner (eds), Law in the U.S.A. in Social and Technical Revolution (Brussels,
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—— (1985) The Civil Law Tradition: An Introduction to the legal Systems of Western Europe
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—— (1999) The Loneliness of the Comparative Lawyer (The Hague–London–Boston,
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Law 2.
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International and Comparative Law Quarterly 800.
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I of II)’ 39 American Journal of Comparative Law 1.
—— (1991b) ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment II
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Useful Websites
Comparative Law Methodology and Sources, Lee Peoples@2005
Electronic Journal of Comparative Law (for example for volume 9:2)
http://www/ejcl.org/92/issue92/art92-1.html
http://kub.nl/ejc192/art92-1.html
Oxford University Comparative Law Forum

http://ouclf.iuscomp.org/articles
II
New Directions for Comparative Law

3
Globalisation and Comparative Law*
WILLIAM TWINING
KEY CONCEPTS
Globalisation; Interdependence; G-words; A global perspective; Levels of rela-

tions; Levels of ordering; The Westphalian Duo; Non-state law; Normative
and legal pluralism; Total pictures; Spatial metaphors; Boundaries; Changing
significance of boundaries; Ideal types; The Grands Systèmes approach; The
Country and Western Tradition; Legal families; Ethnocentrism; Comparative
common law; Diffusion of law; Law as institutionalised social practice.
I. GLOBALISATION
T
he idea of ‘globalisation’ has been in fashion since the late 1980s. It
has stimulated a massive, excited, and somewhat repetitive literature.1
Ironically, that literature is quite narrow in that it focuses on a limited
range of issues. This is especially the case where ‘globalisation’ is restricted to eco-
nomic matters and is associated with extreme laissez faire ideology and increasing
American and western hegemony. In this narrow sense of economic globalisation,
the term has highly controversial, largely negative associations, as is illustrated
by the ‘Anti-Globalisation Movement’. In this chapter, I shall use the term more
broadly to refer to those trends, processes and interactions which are making the
world more interdependent in many complex ways, in respect of ecology, com-
munications, cultures, language, politics, disease, and so on, not just the alleged
development of a single world economy.
* This chapter is a condensation and synthesis of themes developed at length in several papers
(for which see full details in the bibliography at the end of this chapter), especially Twining, 2000a
Globalisation and Legal Theory: chs 2, 6 and 7; Twining, 2000b ‘Comparative Law and Legal Theory:
The Country and Western Tradition’ : 21–76; Twining, 1999 Globalization and Comparative Law;
Twining, 2005a ‘General Jurisprudence’ (World Congress on Philosophy of Law and Social Philosophy,
Granada); Twining, 2005b ‘Diffusion of Law: A Global Perspective’; and Twining, 2006a ‘Diffusion of
Law and Globalization Discourse’.
1 Two of the best introductions are still Featherstone, 1990 and Featherstone, Lash and Robertson,
1995. On law, see Likosky, 2002.

70 William Twining
Anthony Giddens characterises the processes as

the intensification of world-wide social relations which link distant localities in such
a way that local happenings are shaped by events occurring many miles away and vice
versa (Giddens, 1990a: 64; cf Giddens 1990b: chapter 16).
Even in this broader usage, ‘globalisation’ is surrounded by controversy and relates

to a quite narrow band of issues that are genuinely world-wide.
I teach a course called ‘Globalisation and Law’. I encourage students to adopt a
global perspective; to think in terms of humankind and our planet as a whole; and
to try to construct total pictures of law in the world and to ponder the difficulties
involved. However, at the start of the course I ban the unjustified use of ‘g-words’
from the classroom—‘global’, ‘globalisation’, ‘globalising’ and other forms of
globa-babble and globa-hype.
I do this for several reasons. The first is obvious: not only is the term ambigu-
ous, but the currency of ‘g-talk’ is debased. It too often involves exaggerated,
misleading, meaningless, superficial, ethno-centric, or just plain false statements
about processes and phenomena that are better discussed in less hyperbolic terms
(see Twining, 2001). This is clearly illustrated in loose talk about global law, global
governance, global law firms, and global lawyers. There is a standard joke that
makes the main point: it might be pedantic to cavil at talk of a World Cup at soc-
cer; it is stretching things to talk of a World Cup at cricket involving 16 countries;
but talk of a World Series at baseball is just hype.2
The second reason is especially important for lawyers: there is a tendency in the
literature on globalisation to move from the very local or the national straight to
the global, leaving out all intermediate levels. It is also tempting to assume that
different levels of relations and of ordering are neatly nested in a hierarchy of con-
centric circles ranging from the very local, through sub-state, regional, continen-
tal, North/South, global, and beyond to outer space. However, the picture is much
more complicated than that: it includes empires, spheres of influence, alliances,
coalitions, religious diasporas, networks, trade routes, migration flows, and social
movements. It also includes ‘sub-worlds’ such as the common law world, the Arab
world, the Islamic world and Christendom, as well as special groupings of power
such as the G7, the G8, NATO, OPEC, the European Union, the Commonwealth,
the Catholic Church, multi-national corporations, crime syndicates, cartels, social
movements, and non-governmental organisations and networks. All of these cut
across any simple vertical hierarchy and overlap and interact with each other in
complex ways.
These complexities are reflected in the diversity of forms of normative and legal
ordering. Nearly all mainstream Western legal theory and legal scholarship in the
20th century focused on the domestic law of municipal legal systems, sometimes
2 In fact, the American ‘World Series’ at baseball took its name from a newspaper, The New York
World, but few people recall that fact. Recently, a baseball competition involving 16 countries was
inaugurated in the United States. It was called the ‘World Classic’, thereby doubling the hype.
Globalisation and Comparative Law 71
extending to public international law in the narrow sense of law governing rela-
tions between states (‘The Westphalian Duo’) (Buchanan, 2000).3 But if one views
law from a global perspective, both geographically and historically, focusing solely
on the municipal law of nation states (and classical public international law) this
leaves out too much that should be the proper concern of legal scholarship. A
reasonably inclusive cosmopolitan discipline of law needs to encompass all levels
of relations and of ordering, relations between these levels, and all important
forms of law including supra-state (eg international, regional) and non-state law
(eg religious law, transnational law, chthonic law, ie tradition/custom) and various
forms of ‘soft law’ (see Appendix I).4 A picture of law in the world that focuses
only on the municipal law of nation states and public international law would be
much too narrow for many purposes. For example, it is difficult to justify omitting
Islamic law or other major traditions of religious law from such a picture. Yet, to
include only those examples of religious law or custom officially recognised by
sovereign states (state legal pluralism) would be seriously misleading.5 To try to
subsume European Union law, lex mercatoria, international commercial arbitra-
tion or all examples of ‘human rights law’ under public international law similarly
stretches that concept to breaking point.6
It is especially important for lawyers to be sensitive to the significance of
boundaries, borders, jurisdictions, treaty relations, and legal traditions. These
messy overlapping patterns make mapping law in the world difficult. They place
ideas of normative and legal pluralism at the centre of understanding law from
a global perspective. That is to say, we have to acknowledge that normative and
legal orders can co-exist in the same time-space context. That, in turn, greatly
complicates the tasks of comparative law.
A third reason for lawyers to be sceptical of ‘g-talk’ in relation to law is our
collective ignorance of other traditions and cultures. The Anglo-American, and
more broadly the Western, intellectual traditions in law have tended to be quite
parochial and inward-looking. Most legal scholarship is particular and most legal
concepts are culture-bound. So on the whole we lack adequate analytic concepts
3 Hart, Rawls, Kelsen, Dworkin, and Raz are all examples of this perspective. The main exceptions
have been legal anthropologists and other scholars who have emphasised the importance of legal
pluralism and non-state law.
4 On the conceptual difficulties of constructing a conception of law that is broad enough to include
important forms of ‘non-state law’, but not so broad as to include all social institutions and rules, see
Tamanaha, 2001, discussed in Twining, 2003.
5 It is hardly controversial to say that to recognise Islamic or other religious law only insofar as it
is recognised by sovereign states involves crude distortion. It would also be odd to accept the idea of a
Jewish, Islamic or Gypsy legal tradition, but to refuse to talk about Jewish and Islamic or Gypsy law as
‘law’—but that is a corollary of thinking in terms of law as a system of rules.
6 A theory of state law such as Hart’s provides an inadequate theoretical framework for ground-
ing our discipline as it becomes more cosmopolitan and more concerned with multiple levels of
legal relations and legal ordering. Hart’s concept of state law cannot easily fit European Union law,
contemporary public international law, religious law, canon law, medieval and modern lex mercatoria,
let alone other forms of traditional and customary law that are candidates for our attention as legal
scholars and jurists.
72 William Twining
and reliable data for giving general accounts of law in the world that include and
transcend different legal traditions and cultures. One of the main tasks of com-
parative law is to make us aware of legal systems other than our own; in future
comparative law must extend this de-parochialising role to reducing our igno-
rance of non-Western legal cultures and traditions.
Even with these crude geographical categorisations, and even without reference
to history, a ban on ‘g-words’ sends a simple message of complexity. It also empha-
sises the point that in regard to the complex processes that are making people,
groups and peoples more interdependent, much of the transnationalisation of law
and legal relations is taking place at sub-global levels. Furthermore, there are also
local and transnational relations and processes that to a greater or lesser extent by-
pass the state, such as the Internet, religious diasporas, networks of NGOs, many
of the internal and external relations of large corporations, and so on.
Terms like ‘global’ have their uses. However, in a given context, when con-
fronted with a word such as ‘global’, ‘globalism’, ‘globalisation’, or ‘globalising’, it
is sensible to ask: Is it precise (genuinely referring to all humankind or the world
as a whole)? Is it exaggerated (eg a substitute for ‘transnational’ or ‘widespread’)?
Is it misleading (obscuring levels of law in between the genuinely global and the
quite local)? Is it superficially global (like Holiday Inns or the Internet)? Or is it
ethnocentric (projecting one’s own culture onto the whole world)?
The purpose of this ban on ‘g-words’ is not to suggest that the processes that
are loosely subsumed under ‘globalisation’ are unimportant. To be sure a single
world economy, the global eco-system, and a world atlas can be useful constructs
in some contexts. There are genuinely world-wide issues such as climate control,
nuclear proliferation, global justice and world poverty. Despite the pitfalls, there
are good reasons for thinking globally. But too often ‘g-words’ are loosely extended
to cover topics that belong to one or more less extensive spheres of ordering. It
is inappropriate to treat as ‘global’ issues concerning competition and monopoly
within the European Union, or debates within Islam on banking or the status of
women, or anti-corruption measures in Eastern Europe, yet they should be of as
much concern to us today as genuinely global issues.
There are two exceptions to my ban on ‘g-words’. First, a student may employ a
‘g-word’ provided she can justify its use in that particular context and show that it is
being used with clarity and precision. Secondly, I encourage students to adopt a global
perspective as a starting-point for considering particular topics. This is quite differ-
ent from talking about ‘global law’ or ‘global lawyers’. It does not involve making any
strong assumptions about uniformities. Nor does it need to be reductionist. Indeed, it
can reinforce the message of complexity. A global perspective involves looking at the
world and humankind as a whole and setting accounts of particular phenomena in the
context of broad geographical pictures and long historical time-frames. Constructing
‘total pictures’ is an important aspect of contextual thinking. The world is becoming
more interdependent and one needs to adopt a global perspective to understand these
processes in relation to law. Our world still has relatively finite boundaries in a way
that societies and nation states, increasingly, do not.
Thinking in terms of total pictures is mainly useful for setting a context for
more particular studies. Grand synthesising theories, such as Patrick Glenn’s
account of legal traditions, or organising theories, such as Brian Tamanaha’s
attempt to construct a broad and inclusive general concept of law, also have
their uses (Glenn, 2004; Tamanaha, 2001). They are examples of the synthesis-
ing function of legal theory. There may even be value in trying to construct a
historical atlas of law in the world as a whole—although my own efforts in this
direction have done little more than illustrate some of the obstacles in the way
of such an enterprise. Among these are the multiplicity of levels of human rela-
tions and ordering, the problems of individuating normative and legal orders, the
complexity and the variety of the phenomena that are the subject-matters of our
discipline, and the relatively undeveloped state of the stock of concepts and data
that would be needed to produce such an overview.7 Adopting a global perspective
also helps to map the extent of our collective ignorance of other legal traditions.
However, even if our discipline becomes genuinely cosmopolitan, the great bulk
of its attention will inevitably be focused on particular inquiries.
There is a danger of thinking too much in geographical terms (Westbrook,
2006). It is important to recognise that talk of maps and levels of law is a spatial
metaphor that is not always appropriate. Gordon Woodman has argued that state
law is typically defined in terms of relatively determinate territory, but many laws
and legal orders are not.8 In the standard situation of legal pluralism, ‘in which a
population observes more than one body of law’, there may not be settled ‘choice
of law’ rules, the population may be dispersed, membership of the population
may be ambiguous, there may be variations and inconsistencies within a single
‘system’ or body of law, and an individual may observe different laws for dif-
ferent purposes, even in relation to a single transaction or relationship.9 This
is especially the case with personal and religious laws. The point is well taken.
However, if we conceive of law as a form of institutionalised social practice and if
we are concerned with the law in action, then we are dealing with actual behav-
iour, which does take place at particular times in particular places. For example,
if we agree that shari’a travels with every devout Muslim, a good map of Islamic
diasporas can at least give a general indication of where Islamic law is likely to
exist at a given time as an institutionalised social practice (Freeman-Grenville and
Munro-Hay, 2002).10 We need to guard against overusing spatial metaphors, but
there is still scope for legal geography (see eg Blomley, 1994; Economides, 1996;
and Holder and Harrison, 2003).
7 See Twining, 2000a: ch 6—‘Mapping Law’.

8 Woodman, 2003 ‘Why There Can be no Map of Law’. The practice of relating laws to countries,
societies, fields, or localities is, he suggests, a hangover from ‘legal centralism’, which treats state law
as the paradigm.
9 Woodman (ibid) illustrates these points by reference to the Luo on the Kenya/Tanzania border.
10 On Islamic law in England as a form of custom that has both slowly influenced English munici-
pal law and developed as a form of anglicised custom (angerezi shar’iat), see Pearl and Menski, 1998,
especially ch 3.
74 William Twining
The literature on ‘globalisation’ is extensive and often controversial. In addition

to ideological disagreements, there are debates about such matters as the continu-
ing significance of sovereignty, about the relative importance of the nation-state
as an actor on the world stage, whether we are heading for a clash of civilisations,
and whether human rights are ‘counter hegemonic’.11 There are, however, some
relatively clear themes that are directly relevant to this chapter.
First, it is widely agreed that the processes of globalisation are not new; in many
respects they antedate the rise of the modern nation state and can be traced back
at least to the 16th century.12 What has changed recently is the pace and complex-
ity of the processes, especially in such areas as communications.
Secondly, there has been a good deal of self-criticism within disciplines about
the extent to which they have over-emphasised the importance of boundaries
and have treated societies, states and tribes as self-contained, de-contextualised
units. For example, in the mid-1980s several distinguished anthropologists
admitted to having erred in treating small-scale societies in which they had
done their fieldwork as if they were timeless, self-contained units, isolated from
the outside world. Their fault had been that they had ignored the wider contexts
of time and space. They reaffirmed the idea that the core focus of anthropology
must still be small societies and communities, but in future the study of the
local must be seen in the context of history and of ever-widening geographical
spheres—relations with neighbours, colonial boundaries, Western colonisa-
tion generally, and the world economy (see Collier and Starr, 1989). Similarly,
Anthony Giddens and others have criticised orthodox sociology for giving far
too much weight to the idea of ‘society’ as a bounded system (Giddens, 1990).13
Again, moral philosophers have been criticised for failing to face up to the ethi-
cal implications of interdependence. Nowhere is this more apparent than in the
criticisms of the treatment of international relations in John Rawls’s theory of
justice and its assumption that any theory of justice today can treat a society
as a ‘hypothetically closed and self-sufficient’ unit.14 The general theme is clear
across disciplines: the processes of globalisation are fundamentally changing the
11 See eg, Baxi, 2006 (arguing, inter alia, that human rights discourse is in danger of being hijacked
by a market-friendly, trade-related paradigm of human rights favouring big business interests);

and Santos, 2002 (viewing the world as an arena for a long-term struggle between ‘hegemonic’ and
‘counter-hegemonic’ forces).
12 Halliday states: ‘One can indeed argue that far from the “international” arising from the national,
and from a gradual expansion of links between discrete entities, the real process has been the other
way around: the history of the modern system is both of the internationalisation and the breakdown
of pre-existing flows of peoples, religion, trade into separate entities: the precondition for the forma-
tion of the modern nation-state was the development of an international economy and culture within
which these distinct states then coalesced.’ (Halliday, 1994: 2; cf. 20).
13 Tamanaha, goes so far as to say that ‘society’ is no longer a useful concept for the sociology of law
and substitutes the more flexible ‘social arena’ (Tamanaha, 2001: 206–8).
14 Rawls, 1993:41 at 44, criticised by Pogge, 1989, cf Twining, 2000a: 69–75. Rawls did not signifi-
cantly change his position on this in his book, The Law of Peoples (Rawls, 1999), criticised (inter alios)
by A Buchanan (Buchanan, 2000).
significance of national and societal boundaries and generally, but not inevita-
bly, making them less important.
A third theme from the interdisciplinary literature on globalisation is the
variety of significant actors who are relevant to analysis of patterns of legal rela-
tions in the modern world (see eg Alston, 2005). Despite disagreements about
the relative importance of particular kinds of actor and their long-term pros-
pects—for example, about the long-term political significance of multi-national
corporations, the United Nations and small states—it seems reasonable to pro-
ceed on a number of assumptions. First, nation states will continue to be among
the most powerful kind of actors for a long time to come, and that some major
powers will be more equal than others; conversely, anything approaching world
government is not likely to be on the agenda for the foreseeable future. Secondly,
in analysing law in the contemporary world, it is not enough to focus on the
traditional small cast of actors: sovereign states, official international organisa-
tions, and individuals. Can one, for example, give an adequate account of law
today which does not give some attention to the significance of transnational,
non-governmental organisations (Amnesty International, Greenpeace, the
Catholic Church, international women’s movements, international trade union
organisations), to peoples that are nations without states (the Maoris, Gypsies,
the native peoples of North America and Australia), to organised crime, lib-
eration movements, multi-national companies, transnational law firms, and
to significant classes such as the vast herds of ‘people on the move’ (including
migrants, refugees and the internally displaced)?15
II. IMPLICATIONS FOR THE STUDY OF LAW AND COMPARATIVE LAW
Western Traditions of Academic Law
What are the implications of globalisation for the discipline of law in general and
for the sub-discipline of comparative law? If one adopts a global perspective and
a long time scale, at the risk of over-simplification, one can discern some general
tendencies and biases in Western academic legal culture that are in the process of
coming under sustained challenge in the context of ‘globalisation’. In crude form,
these can be expressed as a series of assumptions that are constituent propositions
of an ideal type:
(a) That law consists of two principal kinds of ordering: municipal state law
and public international law (classically conceived as ordering the rela-
tions between states) (‘the Westphalian duo’);
(b) That nation-states, societies, and legal systems are very largely closed, self-
contained entities that can be studied in isolation;
15 The sharp distinction between international refugees and internally displaced persons (an even
more numerous category) is rapidly breaking down (Deng, 1993).

76 William Twining
(c) That modern law and modern jurisprudence are secular, and now largely
independent of their historical-cultural roots in the Judaeo-Christian
traditions;
(d) That modern state law is primarily rational-bureaucratic and instrumental—
performing certain functions and serving as a means for achieving particular
social ends (Tamanaha, 2006);
(e) That law is best understood through ‘top-down’ perspectives (rulers,
officials, legislators, elites) with the points of view of users, consumers,
victims and other subjects being at best marginal;
(f) That the main subject-matters of the discipline of law are ideas and norms
rather than the empirical study of social facts;
(g) That modern state law is almost exclusively a Northern (European/Anglo-
American) creation, diffused through most of the world via colonialism,
imperialism, trade, and latter-day post-colonial influences;
(h) That the study of non-Western legal traditions is a marginal and unim-
portant part of Western academic law;
(i) That the fundamental values underlying modern law are universal,
although the philosophical foundations are diverse.
Of course, all of these general propositions are crude indications of tendencies,

subject to many exceptions; none has gone unchallenged within the Western legal
tradition; and issues surrounding nearly all of them constitute a high proportion of
the contested agenda of modern Western jurisprudence. However, at a general level
this bald ‘ideal type’ highlights some crucial points at which such ideas and assump-
tions are being increasingly challenged. For example it has been contended that:
(a) from a global perspective a reasonably inclusive picture of law in the world
would encompass various forms of non-state law, especially different kinds
of religious and customary law that fall outside the ‘Westphalian duo’;
(b) sharp territorial boundaries and ideas of exclusive state sovereignty are
under regular challenge;
(c) we may be living in ‘a secular age’ in the West, but much of the rest of the
world is experiencing a religious revival;16
(d) while nearly all members of the United Nations and many international
and transnational organisations are institutionalised in accordance with
some model of bureaucracy, large parts of the world’s population live in
societies and communities that are differently organised;
(e) ‘top-down’ perspectives are being more persistently challenged by bottom-
up perspectives that range from Holmes’ Bad Man, to user theory, to vari-
ous forms of post-colonial subaltern perspectives (Nader, 1984; Tamanaha,
2001: 239–40; Twining, 2000a: chapter 5; and Baxi, 2006: xxii);
16 Misztal and Shup, 1992. On Islam, see Moosa, 2000; On Christianity, see Jenkins, 2002; on the
Yoruba religion, see Abimbola and Abimbola, to be published 2007.

(f) in order to understand law in the world today it is more than ever
important to penetrate beyond the surface of official legal doctrine to
reach the realities of all forms of law as social practices (Twining (2007)
forthcoming);
(g) until the mid-20th century imperialism and colonialism were probably the
main, but not the only, engines of diffusion of law, but in the post-colonial
era the processes of diffusion are more varied and there is a growing reali-
sation that diffusion of law does not necessarily lead to harmonisation or
unification of laws (eg Twining, 2005b; Legrand, 1997);
(h) the study of non-Western religious and other legal traditions is increas-
ingly important (eg Glenn, 2004) and our juristic canon needs to be
extended to include ‘southern’ jurists (Twining, 2006c);
(i) the world today is characterised by a diversity of deep-rooted, perhaps
incommensurable, belief systems; and one of the main challenges facing
the human race in a situation of increasing interdependence is how to
construct institutions and processes that promote co-existence and co-
operation between peoples with very different cosmologies and values.
Insofar as belief pluralism is a fact, it is foolish to hope for achieving
a consensus on values by imposition, persuasion or rational dialogue
(Hampshire, 1989).
Viewed from a global perspective, during the 20th century and before, Western
academic legal culture has tended to be state-oriented, secular, positivist, ‘top-
down’, North-centric, unempirical, and universalist in respect of morals. In
short, it has been rather parochial in respect of focus, audience, sources, and
perspectives.17 Of course, it is hardly surprising that the main focus of the Anglo-
American tradition of academic law has been on detailed particular study of the
concepts and doctrine of local municipal law of particular jurisdictions, such as
England and Wales, or of countries, such as the United States or Australia. More
broadly, the main Western traditions of legal scholarship have concentrated very
largely on domestic law of modern nation states.
Again, viewed from a global perspective, Western comparative law has shared
many of the tendencies of the institutionalised discipline of law. To be sure,
within our tradition, the subject has had a de-parochialising role. In some
respects it has served as a Ministry of Foreign Affairs, establishing contacts and
developing relations with legal scholarship from other countries and cultures.
But it has not fostered sustained relations between many countries. With two
major exceptions, the study of Roman law and the Grands Systèmes approach,
nearly all comparative law has been concerned with the study and comparison
of modern foreign state legal systems within the Western legal tradition. By and
large it has not succeeded in reducing our collective ignorance of most of the
major legal traditions.
17 On different forms of parochialism see Twining, 2000a: 128–9.

78 William Twining
Two Traditions of Western Comparative Law

Comparative legal studies have a long and complex history. But modern com-
parative law did not become institutionalised or attain critical mass until after
the Second World War in the common law world, somewhat earlier in conti-
nental Europe. Standard secondary writings about comparative law distinguish
between two main approaches: macro-comparative studies exemplified by the
Grands Systèmes approach of René David and others, and micro-comparative
studies, which are usually depicted as approximating to an ideal type that I have
mischievously called ‘the Country and Western Tradition’ (Twining, 2000b). The
distinction is recognised not to be sharp, for macro- and micro-studies are inter-
dependent, but this is a convenient way of labelling two rather different kinds of
enterprise strongly influenced by a particular conception of academic law at a
formative period in their history.
After the Second World War there developed the practice in some European
countries of presenting overviews of ‘Les Grands Systèmes de droit contemporain’.
This led to some modest textbooks (David and Brierley, 1968/1985; Arminjon, Nolde
and Wolff, 1950–51; Zweigert and Kötz, 1971) and to the revival of a long-running
and unsatisfactory debate about how major systems, traditions, or families of law
should be classified. It is not necessary here to repeat the details of this debate, but it
may be useful to consider the least unsatisfactory of these attempts. Konrad Zweigert
and Hein Kötz’s An Introduction to Comparative Law was, for a generation, the lead-
ing student textbook on the subject. Rejecting single criteria such as race, ideology,
geographical location, stages of economic development, or relations of economic
production, they focused on the ‘styles of legal thought’ of contemporary living legal
systems and suggested multiple criteria for classifying them into families:
(1) its historical background and development; (2) its predominant and characteristic
mode of thought in legal matters; (3) especially distinctive legal institutions; (4) the kind
of legal sources it acknowledges and the way it handles them; (5) its ideology. (Zweigert
and Kötz, 1998: 69–75).
These multiple criteria led them to adopt a seven-fold classification of ‘legal fami-
lies’ (ie groups of legal systems) as follows:
(1) Romanistic family; (2) Germanic family; (3) Nordic family; (4) Common law family;
(5) Socialist family; (6) Far Eastern systems; (7) Islamic systems; (8) Hindu law (ibid).
Although this scheme has attracted a lot of criticism, it was probably adequate for
an introductory student text and it had the merit of identifying some of the main
difficulties underlying this problem of classification. For present purposes, it is
enough to identify two main weaknesses: First, the eight categories do not refer
to species of a single genus: the first five ‘families’ refer to state legal systems (but
some have historic roots preceding the rise of the nation state); the sixth is more
a rag-bag than a family, joined together only by geographical location; the seventh
and eighth open the way for recognition of non-state law, for Zweigert and Kötz
recognised that it would be a distortion to limit their account of Islamic law to

Islamic states or even to those aspects recognised as a source of law in plural state
legal systems. But this meant a shift of meaning of ‘system’ from existing state legal
system to a system of thought. However, the label ‘system’ is dropped in respect
of Hindu law, perhaps because there is no modern Hindu state. Analytically, this
scheme is more like a muddle than a systemic classification, but, of course, that
may not matter if not much depends on the classification anyway.
A second criticism of Zweigert and Kötz’s approach is that by focussing on
contemporary ‘living’ systems, they downplay the importance of history. The
best hope for developing a coherent overview of law in the world, it has been
suggested, is to adopt an historical perspective. This is the approach adopted
by Patrick Glenn in his path-breaking book, Legal Traditions of the World
(Glenn, 2004).
Anglo-American commentators have generally been dismissive of the Grands
Systèmes tradition: the more outspoken ones, such as Alan Watson, have criti-
cised it as too broad and superficial to deserve the name of scholarship (Watson,
1974: chapter 1). The majority have voted with their feet by concentrating on
micro-comparative work. I believe that such dismissiveness was mistaken. It is
admirable to give novice law students a broad overview of their field, not least
because it can help them to set more particular studies in a broad geographical
and historical context. It can also provide them with an initial framework for
organising their understandings of law. An elementary Cook’s Tour need not
be intellectually ambitious or even particularly rigorous, but laying a sound
theoretical foundation for the study of law needs to aim higher. If the main
objective of the discipline of law is to advance knowledge and understanding of
its subject-matter, then surely one aspect of this must be the aspiration to build
up an accurate and sophisticated total picture (or series of pictures) of law in
the world.
During the 1990s, partly in response to the challenges of globalisation, a num-
ber of jurists have attempted to construct broad overviews of law in the world
that are quite different from the Grands Systèmes approach. Three in particular
deserve mention. First, Boaventura de Sousa Santos (Santos, 1995; 2002) advanced
a bold interpretation of law in a globalising era in terms of an emerging struggle
between ‘hegemonic’ forces (mainly associated with capitalism) and ‘counter-
hegemonic’ forces (exemplified by human rights, some social movements and
the World Social Forum). From the perspective of world history, Patrick Glenn
interprets the heritage of law in terms of continuously interacting traditions that
are sufficiently different and sufficiently stable to underpin a vision of ‘sustain-
able diversity’ (Glenn, 2004). Glenn’s concept of tradition, though controversial,
is more sophisticated and more coherent than attempts to paint a picture in
terms of families of legal systems or legal cultures and it avoids the narrowing
assumptions of the ‘Country and Western Tradition’. Brian Tamanaha has sought
to construct a broad conception of law as the basis for a positivist, socio-legal
general jurisprudence (Tamanaha, 2001). Although Tamanaha’s specific criterion
80 William Twining
of identification of law18 has been criticised, his systematic deconstruction and

filleting of Hart’s concept of state law opens the way for a broadened and more
coherent conception of law as an organising concept within the tradition of legal
positivism. I have commented at length on each of these three important works en
route to developing a rather different conception of general jurisprudence as an
activity that might provide some useful theoretical underpinnings for a genuinely
cosmopolitan discipline of law.19
Micro-comparative Studies: The ‘Country and Western Tradition’

Let us now turn to micro-comparative studies. In taking stock of modern com-
parative law scholarship it is important to distinguish between the vast heritage of
particular studies of foreign and comparative law that have been published since
the Second World War and the way the field has been conceptualised in general
terms by its more influential figures. The former is rich and very diverse; the latter
is remarkably monolithic. It is my contention that the praxis of comparative law is
much richer and more diverse than the predominant theory allows.
From the accounts of leading comparatists, especially in the formative
period after the Second World War until about 1990, we can construct an
ideal type of a conception of mainstream comparative law with the following
characteristics:
(i) The primary subject-matter is the positive laws and ‘official’ legal systems
of nation states (municipal legal systems);
(ii) It focuses almost exclusively on Western capitalist societies in Europe and
the United States, with little or no detailed consideration of ‘the East’
(former and surviving socialist countries, including China), the ‘South’
(poorer countries), Latin America, and richer countries of the Pacific
Basin.20
(iii) It is concerned mainly with the similarities and differences between
common law and civil law, as exemplified by ‘parent’ traditions or sys-
tems, notably France and Germany for civil law, and England and the
United States for common law;
(iv) It focuses almost entirely on legal doctrine;
18 ‘Law is whatever people identify and treat through their social practices as “law” (or “droit” or “recht”
etc.)’ (Tamanaha, 2001: 166–71, 194).

19 Twining, 2005a. On Santos, see Twining, 2000a: ch 8; on Glenn, see Twining 2005c; and on
Tamanaha, see Twining, 2003. Unlike Tamanaha, I am not convinced of the value of constructing
a general definition of law outside any particular context, but in the context of constructing total
pictures of law in the world, I use variations on the following formulation: law as a form of institu-
tionalised social practice is oriented towards ordering relations between subjects at different levels of
relations and of ordering. This is quite close to MacCormick, 2007.
20 During the period of the Cold War, a major exception was Soviet or Socialist law, which was
treated as belonging to ‘Comparative Law’ in a way in which African, Indian, Islamic and Hindu law
were not.
(v) It focuses in practice largely on private law, especially the law of obliga-
tions, which is often treated as representing ‘the core’ of a legal system or
tradition;
(vi) The concern is with description and analysis rather than evaluation and
prescription, except that one of the main uses of ‘legislative comparative
law’ is typically claimed to be the lessons to be learned from foreign solu-
tions to ‘shared problems’—a claim that is theoretically problematic.
This set of propositions is not a ‘paradigm’, nor is it intended as a caricature

of actual practice. Rather it is an ideal type to which most explicit second-
ary accounts of the nature and scope of comparative law and many implicit
assumptions in the discourse approximate more or less closely. I suggest that
this is a fair reconstruction of a recognisable set of ideas that have influenced the
development of Western comparative law since the Second World War. Insofar
as this is correct, it is relevant to make a number of points in relation to it.
First, between about 1945 and 1990 this set of assumptions was very influen-
tial in respect of the conceptualisation of the sub-discipline and its institutionali-
sation in journals, textbooks, courses, projects, and above all, ways of thought. It
is still influential today. Just to take two examples. Most historical surveys of the
field, including that of Konrad Zweigert and Hein Kötz, do not include Western
scholars of the stature of Duncan Derrett on Hindu Law, Joseph Schacht and
Norman Anderson on Islamic law and Antony Allott and James Read on African
law, even when they deal with these fields as part of macro-comparative law.
Hardly any non-Western scholars feature in these histories. Perhaps even more
remarkable is the fact that internal critics of the tradition, such as William Ewald,
Pierre Legrand, Basil Markesenis, and—perhaps less clearly—Alan Watson by
and large do not challenge the main assumptions. Ewald, for example, in his
fascinating philosophical critique of the tradition (‘What was it like to try a
rat?’), assumes throughout that comparative law is concerned with analysis of
doctrine (especially private law) of ‘parent’ common law and civil law systems
(Ewald, 1995).
Thus insofar as it has been influential, the model has served to exclude from
the concept of ‘comparative law’ vast tracts of work, including the specialised
study by Western scholars of non-Western law, studies of foreign law that were
not explicitly comparative,21 and cross-jurisdictional studies within the com-
mon law world—what may be termed comparative common law (Twining,
2000a: 145–8). This exclusive concept did not prevent scholarly work from
being undertaken; in recent years comparative legal studies have diversified
21 Comparatists sometimes insist on a quite sharp distinction between foreign and comparative
law. This distinction is not sustainable for several reasons. Comparison covers a variety of activities
and foreignness is a relative matter. At a theoretical level nearly all description involves comparison,
which can be more or less implicit or explicit. We make loose comparisons in everyday life, explicitly
or implicitly, using analogies, models, metaphors, ideal types and a variety of other devices. So, too,
do comparatists.
82 William Twining
in many directions—look, for example, at the contents of the leading jour-

nals—but its conceptualisation may have marginalised some areas of work and
held back theoretical development.
The ‘Country and Western’ model is restricted in respect of each of its ele-
ments: municipal law of Western nation states; doctrine, especially private law;
and contrasts between so-called ‘parent’ civil and common law systems as the
central focus. Each of these elements can be challenged as narrow. In some con-
texts such narrowing had pragmatic justifications: ie manageability, relevance
to other subjects in the curriculum, academic respectability, and sharpness
of focus. The comparative study of the French, German, and English law of
obligations, for example, has attained a very high degree of sophistication and
specificity. But the price has been a heavy one. Apart from the exclusions already
mentioned, the label ‘comparative law’ has been appropriated by practitioners
and critics of one particular tradition in ways that artificially isolate it from
very similar work, especially in respect of shared problems of methodology. The
result is that much of the secondary literature about comparative law as a field
is narrowly focused, overlooks some examples of best practice, and underesti-
mates the richness, diversity and unevenness of transnational and cosmopolitan
legal studies. It neither draws on nor illuminates these neglected areas.
The ‘Country and Western’ model is now out of date, but it has not been
replaced by any coherent theory or theories. This is not to suggest that one should
replace one reductionist theory by another, but rather that central issues relating
to scope, method, comparability, explicit and implicit comparison and the rela-
tionship to other enquiries need to be addressed rigorously.
This critique of the ‘Country and Western’ model should not be taken as an
all-out attack. Indeed, I think that it is a heritage to be valued and built on. First,
there were good reasons for narrowing the focus, especially at the pioneering
stage. This pragmatically motivated ideal type usefully guided development of
a fragile new subject in a potentially hostile environment at a particular stage
of its development. In England the pioneers such as H Gutteridge, FH Lawson
and CJ Hamson had to emphasise the relevance, the respectability and the
practical value of their field as part of their struggle for acceptance in the acad-
emy. Basil Markesenis, building on them, plays on similar themes in arguing
for a more central place for comparative law in our legal culture (Markesinis,
1997). Secondly, as I have already noted, there were benefits as well as costs, not
least in the quality of some of the work done within the ‘Country and Western’
framework. We should not just dismiss this part of our heritage. In my view,
work done within the ‘Country and Western Tradition’ stands to comparative
law as classical music stands to music: It is the best we have.
However, the model no longer fits what is being done in the name of com-
parative law, let alone work that has been excluded from the label. From a global
perspective, the ‘Country and Western’ model has four main weaknesses: it is nar-
rowly conceived; it has been artificially isolated from cognate fields; it is out of date;
and it is under-theorised. What is lacking is a coherent view of the enterprise and
above all sustained discussion of shared issues of comparability, method, levels and
objectives across a broader range of enquiries. One result of this is that those who
do comparative work—that is, most of us—do not get sufficient help and guidance
from theory by way of synthesis, conceptual clarification, middle-order theorising,
critical evaluation of assumptions and presuppositions and so on. In short, the jobs
of jurisprudence are not being adequately performed for comparative or cosmo-
politan legal studies. So the time is ripe for a quite radical rethink, not least in the
light of globalisation and the need for a revived general jurisprudence.
A Naive Model of Diffusion
Some implications of adopting a global perspective and a broadened conception

of law are illustrated by the topic of diffusion of law—sometimes referred to as
reception, transplants, or transposition. Diffusion (under different labels) has
been the subject of much attention, notably in long-running debates between
Alan Watson and a number of leading scholars, including Otto Kahn-Freund,
Lawrence Friedman, Pierre Legrand, and Esin Örücü. However, nearly all of these
debates have focused on the diffusion of state law. Adopting a genuinely global
perspective radically alters the landscape of diffusion, not only, or even mainly, by
extending the ambit to include non-state law.
From some of my own early attempts to give an account of ‘reception’, I
have constructed ‘a naive model of reception’ that has 12 elements, none of
which are necessary and some of which are not even characteristic of most
processes of diffusion.22 The assumptions of the model can be briefly restated
as follows:
[A] bipolar relationship between two countries involving a direct one-way transfer of
legal rules or institutions through the agency of governments involving formal enactment
or adoption at a particular moment of time (a reception date) without major change …
[I]t is commonly assumed that the standard case involves transfer from an advanced
(parent) civil or common law system to a less developed one, in order to bring about tech-
nological change (‘to modernise’) by filling in gaps or replacing prior local law (Twining,
2005b: 2–3).
Each of these assumptions can be shown not to be a necessary element of the

processes of diffusion of law and several are almost certainly not typical. For
example, governments are not the only, or even the main agents of diffusion; the
pathways of diffusion are often indirect and influences are reciprocal; imported
law rarely fills a vacuum or wholly replaces prior local law; and cross-level
diffusion can be as significant as the more familiar horizontal (eg country-to-
country) diffusion.23
22 The model is introduced and discussed in Twining, 2005b.

23 For further examples, see Twining, 2005b.
84 William Twining
If we view this model as an ideal type of accounts of reception/transplantation

in the legal literature, we find that some of the deviations are recognised by some
commentators, but overall some such model is widely assumed to represent a
paradigm case.24 Appendix II illustrates just some of the possible variants/devia-
tions from each element in the model. This is just one example of how adopting
a global perspective can radically alter perceptions of a topic.
III. CONCLUSION
As the discipline of law is becoming more cosmopolitan in response to the pro-

cesses loosely labelled ‘globalisation’, so comparative law as a sub-discipline has
been moving from a relatively marginal role, dealing with foreign relations, to
a much more central role at the hub of the subject. Serious comparative work
is extremely difficult and, in the view of scholars like Max Rheinstein, requires
a long apprenticeship—perhaps a minimum of 10 years (Rheinstein, 1968).25
However, today nearly all legal studies are cosmopolitan in that legal scholars, and
indeed law students, regularly have to use sources, materials and ideas developed
in more than one jurisdiction and increasingly in more than one legal culture. In
that sense, we are all comparatists now and we need help from more experienced
scholars, especially in respect of methodology. We need to be equipped with at
least the rudiments of coping with such material. So comparative method needs
to be treated as a central element of ‘legal method’.
Broadening our conception of comparative law may bring about a reintegra-
tion of closely related enclaves of enquiry that have become artificially separated.
I find it bizarre that most standard accounts of the history of ‘comparative law’
make virtually no mention of ‘law and development’, or ‘comparative human
rights’ or of the fields for which the School of Oriental and African Studies has
been almost solely responsible in Britain, such as Islamic, Hindu, African, Indian,
Chinese and, more recently, Buddhist law (Huxley, 1997). Apart from the intel-
lectual gains, such a reintegration would further the practical cause of persuading
colleagues that these fields should be treated as part of the mainstream rather than
as exotic out-posts in our discipline.
Adopting a global perspective shows up some of the limitations of what is in
many respects a rich tradition of Western comparative law. It should also alert
us to the extent of our collective ignorance and warn against unfounded, often
ethnocentric, generalisation about matters legal. Such a perspective reminds us of
the diversity and complexity of legal phenomena, but it is mainly useful in setting
24 A striking exception is Patrick Glenn, who seems to treat none of these features as necessary
or even characteristic of the processes of interaction between legal traditions. (Glenn, 2004, passim,
discussed in Twining, 2005c).
25 Because it is so difficult, few comparatists indulge in explicit comparison in the sense of careful
sustained analysis of similarities and differences between discrete, comparable phenomena. But, as
Charles Taylor reminds us, nearly all description and interpretation involves at least implicit compari-
son, ‘Comparison, History, Truth’ (Taylor, 1995).
a broad context for more particular studies. Most of the processes of ‘globalisa-
tion’ occur at sub-global levels. Even in an interdependent world, the comparative
study of law needs to focus mainly on detailed particulars that are local, practical,
and embedded in specific cultural contexts.
APPENDIX I
Levels of Law26
If law is conceived of as a form of social practice concerned with ordering rela-

tions between subjects or persons (human, legal, unincorporated and otherwise)
at a variety of levels of relations and of ordering, not just relations within a
single nation state or society, one way of characterising such levels is essentially
geographical:
• global (as with some environmental issues, a possible ius humanitatis)

(eg mineral rights on the moon) and, by extension, space law;
• international (in the classic sense of relations between sovereign states and
more broadly relations governed, eg by human rights or refugee law or
international criminal law);
• regional (eg the European Union, European Convention on Human Rights,
and the Organisation of African Unity);
• transnational (eg Islamic, Hindu, Jewish law, Gypsy law, transnational arbi-
tration, a putative lex mercatoria, Internet law and, more controversially, the
internal governance of multi-national corporations, the Catholic Church,
or institutions of organised crime);
• inter-communal (as in relations between religious communities, Christian
Churches, or different ethnic groups);
• territorial state (including the legal systems of nation states, and sub-
national jurisdictions, such as Florida, Greenland, Quebec, Northern
Ireland, and Zanzibar);
• sub-state (eg subordinate legislation, such as bye-laws of the Borough of
Camden) or religious law officially recognised for limited purposes in a plural
legal system; and
• non-state (including laws of subordinated peoples, such as native North
Americans, Maoris, Gypsies, or illegal legal orders such as Santos’s Pasagarda
law, the Southern People’s Liberation Army’s legal regime in Southern
Sudan, and the ‘Common Law Movement’ of militias in the United States)
Which of these should be classified as ‘law’ or ‘legal’ is essentially contested
within legal theory and also depends on the context and purposes of the
discourse.
26 Adapted from Twining, 2000a:139. Recent studies of Gypsy law have been pioneered by Walter
Weyrauch. See especially, Weyrauch and Bell, 1993 and Symposium on Gypsy Law (Romaniya) 45(2)
AJCL (Spring, 1997). The Southern Peoples’ Liberation Army operated a system of courts dealing
with both civil and criminal cases in areas which they occupied in the civil war in the Southern Sudan
(Kuol, 1997). On the Common Law Movement, see Koniak, 1996 and 1997.
86 William Twining
APPENDIX II
Diffusion of Law: A Standard Case and Some Variants27

Standard Case Some Variants
a. Source-destination Bipolar: single exporter Single exporter to multiple
to single importer destinations. Single importer
from multiple sources.
Multiple sources to multiple
destinations etc.
b. Levels Municipal legal Cross-level transfers.
system-municipal Horizontal transfers at other
legal system levels (eg regional, sub-state,
non-state transnational)
c. Pathways Direct one-way transfer Complex paths.
Reciprocal influence.
Re-export
d. Formal / informal Formal enactment or Informal, semi-formal or
adoption mixed
e. Objects Legal rules and Any legal phenomena or ideas,
concepts; including ideology, theories,
Institutions personnel, ‘mentality’, methods,
structures, practices (official,
private practitioners’, edu-
cational etc), literary genres,
documentary forms, symbols,
rituals etc etc.
f. Agency Government- Commercial and other non-
government governmental organisations.
Armies. Individuals and
groups: eg colonists, mer-
chants, missionaries, slaves, ref-
ugees, believers etc who ‘bring
their law with them’. Writers,
teachers, activists, lobbyists etc.
g. Timing One or more specific Continuing, typically lengthy
reception dates process
h. Power and prestige Parent civil or common Reciprocal interaction
law >> less developed
i. Change in object Unchanged ‘No transportation without
Minor adjustments transformation’
j. Relation to Blank slate. Struggle, resistance.
pre-existing law Fill vacuum or gaps. Layering. Assimilation.
Replace entirely. Surface law
(continued on next page)
27 From Twining, 2005b: 16.
continued
Standard Case Some Variants
k. Technical/ideological/ Technical Ideology, culture, technology
cultural
l. Impact ‘It works’ Performance measures.
Empirical research.
Monitoring. Enforcement
1. Why should we be suspicious of such phrases as ‘global law’, ‘global law-

yers’, ‘a global law school’? Can you think of any genuine examples of any
of these categories?
2. In what ways are the processes of globalisation changing the significance
of national boundaries?
3. ‘Most processes of “globalisation” take place at sub-global levels.’ Do you
agree? Give examples.
4. What kinds of legal orders would you include in a reasonably comprehen-
sive map (or series of maps) of law in the world? What kinds of institu-
tionalised normative orders could you reasonably exclude?
5. ‘Western academic legal culture has tended to be state-oriented, secular,
positivist, “top down”, North-centric, unempirical, and universalist in
respect of morals.’ To what extent has your legal education to date fitted
this description?
6. This chapter includes three ‘ideal types’ of approaches to academic law—
in respect of Western academic legal culture generally: the ‘Country and
Western Tradition’ of comparative law, and a naïve model of diffusion of
law. Are these unfair caricatures of scholarly legal practices?
7. ‘We are all comparatists now’. Discuss.
8. Is it true that we are approaching a time when we will live in ‘a border-
less world’, experience ‘the end of sovereignty’, and live under a World
Government? Or are these ideas just ‘hype’?
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Pogge, T (1989) Realizing Rawls (Ithaca, NY, Cornell University Press).
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(Oxford Amnesty Lectures, New York, Basic Books).
—— (1999) The Law of Peoples (Cambridge, MA, Harvard University Press).
Santos, B de Sousa (1995/2002) Toward a New Legal Common Sense, 2nd edn (London,
Butterworths).
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Law Review 415.
Schlesinger, RB (1950/1988/1998) Comparative Law: cases, text, materials, 1st edn and 5th
edn (Mineola, NY, Foundation Press); 6th edn by H Baade, P Herzog, and EM Wise).
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—— (2006) Law as a Means to an End (New York, Cambridge University Press).
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Twining, W (1999) Globalization and Comparative Law 6 Maastricht Journal of Comparative
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4
Com-paring
H PATRICK GLENN
KEY CONCEPTS
Comparison; Epistemology of conflict; Epistemology of conciliation; Binary

logic; Multivalent logic; Separation; Reification; Legal system; Culture;
Common law; Legal tradition.
I. INTRODUCTION
W
hy was comparative law a distinct, marginal and boring discipline for
the 19th and 20th centuries? It was distinct because it was constructed
as separate from law itself, and as something which followed it (like
the cigarette after sex, in the old movies). It was marginal because people are
more interested in the real action than in that which follows it. It was boring for
all of the above. Yet there appear to be symptoms (this book is one of them) of a
major change in attitude towards the comparing of laws and towards the people
who should be doing the comparing. This is linked to what is said to be a decline
in the normative authority of states, so large forces appear to be at work, and
we appear obliged to think more extensively about what comparison is, what
concepts are used in comparing (or in refusing to compare) laws, and why it
matters. The first problem is the idea of comparing.
Most of us think we know what comparing is. It involves determining whether
two things or concepts or laws are similar or different. That’s it. There the two are,
similar or different. What can we do now to fill up the rest of the hour, or day, or
year? Comparison here is empirical in character, inert, the way foreign law is often
taught in many courses entitled ‘comparative law’, in which the effort appears to be
one of understanding what the foreign law somehow is, with very little or no place
for discussion of why it might be the way it appears to be, and what consequences
that might have for the law we have already learned in other courses (but which is
not on the exam for this one). Comparison here has all of the characteristics which
it has been given by the intellectual constructions of the last two centuries (includ-
ing those of legal education) and since that is all that comparison appears to be, then
comparative law had to be (even more) distinct, marginal and boring.
92 H Patrick Glenn
This is not necessarily the way comparison has to be, however, and many of
the lawyers of the world have understood this. Where does the word come from?
It is not a construction of recent, ‘modern’ thought. It comes (you have already
guessed) from Latin, and is a composite of two words: ‘com’, a version of ‘cum’
or ‘with’; and ‘pare’ or peer. So com-paring is bringing together with a peer, with
that which is prima facie equal for purposes of consideration. There is nothing
in the word, moreover, that suggests that the result of the process is somehow
terminal, in ensuing uniformity, or ensuing disastrous conflict. Com-paring
thus would involve bringing together, and keeping together, of equals, which
are presumed to endure, throughout and beyond the process of com-paring.
Some have spoken of convivencia1 or living together in harmony and in a way
respectful of difference, which is usually far from boring, as you know if you have
ever lived with someone different (and almost everyone is). Com-paring thus
involves an enduring process of peaceful co-existence (in spite of difference, in
spite of potential conflict), in a way which ensures not uniformity but ongoing
diversity.
Living with different people in a spirit of mutual respect is not a distinct,
marginal and boring process. Many would say it is the greatest challenge there
is, particularly in times of so-called ‘globalisation’. So what happened to the
underlying idea of com-paring, to turn it from an essential and vital idea into
a non-essential one? This is a very large question, involving some very large
intellectual constructions, some having their origins in law itself, others lying
outside of law but having enormous influence within it. But if large forces are at
work in today’s world, then large questions have to be asked. We are interested
in how the idea of non-com-paring, or of rejecting equals, or of separation,
came to prevail over ideas of com-paring. Where does the idea come from that
people, or concepts, or things, can be kept apart, and that the idea of com-paring
is simply a banal one of noting their separate characteristics? What are the legal
and intellectual equivalents of the Berlin wall (now down, so it can happen) and
the Israel-Palestine wall (now going up)? These walls are meant to eliminate
contact, but in themselves do nothing to eliminate underlying ideas of conflict,
and may even be seen as the final and most visible elements in a long process of
separation or refusal of convivencia. So separation seems related to conflict and
we are perhaps therefore looking for intellectual constructions, or an epistemol-
ogy, of conflict or separation, as opposed to an epistemology of conciliation or
com-paring. How do we think about human relations and the relations between
laws, and what are the basic ideas we use in this process?
1 Note the lack of italics, a typographical device of separation meant to signal formally that which
is considered foreign. Yet languages have always been entirely open to one another, as English received
a layer of French following the Norman Conquest, as a means of enrichment and not replacement
(will/testament, ask/demand, wish/desire, room/chamber, start/commence, bit/morsel, etc), as to
which see Bragg, 2004: 58–9.
Com-paring 93
II. AN EPISTEMOLOGY OF CONFLICT
It might be thought that if two groups are separated from one another, the
separation itself will prevent conflict. There is an old English adage ‘Love your
neighbour, yet pull not down your hedge’ and a poet, Robert Frost, had his
neighbour famously saying ‘good fences make good neighbours’ while himself
wondering:
Why do they make good neighbours? …...
Before I built a wall I’d ask to know
what I was walling in or walling out.
Some say rather that ‘bad neighbours make good fences’. There could, though, be
a good—or at least arguable—case for both fences and private property. Yet this
does not seem conclusive for larger questions of the relations between peoples and
their laws. Their separation means there is necessarily no convivencia, no peaceful
intermingling of equals and no need for each to understand the other. They would
rather exist as separate blocks, whose relations in case of contact could only be
conflictual, each attempting to displace the other. Non-com-paring thus would
result from a logic of separation, as well as a construction of opposing collective
identities, or reification of human groups into distinct and irreconcilable entities,
in a way that would be hostile to the process of com-paring.
The Logic of Separation
Much time is spent in law schools in teaching people to ‘think like a lawyer’,
though there is usually little explanation of what this means. If one looks at the
way law is usually taught, however, thinking like a lawyer would involve rigorous
intellectual constructions, where conclusions follow irresistibly from prior prem-
ises or givens. Being a lawyer would involve being logical and consistent, as well
as being unflappable, cool and elegant in execution. The cool part would involve
personal characteristics, the logical part would be simply … logic; here applied to
human affairs as opposed to maths or the physical sciences. This is at least how
things are often made to appear.
Logic, however, does not admit of a single or simple definition. The most
famous definition was that of Aristotle, who early on formulated what has ever
since been known as the rule of the excluded middle, sometimes (slightly) re-for-
mulated as the law of non-contradiction (which thus requires consistency). What
does the law of the excluded middle tell us? It involves what otherwise would
appear to be an extraordinarily depressing proposition for lawyers and others
involved in dispute resolution, that there is no middle ground between opposing
concepts. If you take A and its negation, not-A, they each exclude one another and
together exclude all the ground which might exist between them. The opposition
is total, and so you must choose between them, A or not-A. Asserting at the same
94 H Patrick Glenn
time A and not-A would be asserting a contradiction, not being logical (in the
Aristotelian sense). It would be asserting that opposites can co-exist and that
their co-existence implies a middle ground between them. Early on we are taught,
however, of the excluded middle as an irrefutable fact of life. You cannot have your
cake and eat it too, though you might as a child have wondered, rightly, why not.
Ideas of radical separation are here made to appear inherent in the nature of
(correct) human thought. Consistency would be found in following a logic of
separation, though it is never explained why A and not-A are taken as radically
separate from one another, as opposed to being the simple ends of a continuum
running between them, where there is more middle ground than anything else.
This latter view would represent another type of logic, which of course has its
own logic, not of separation but of gradation, and which consists of challeng-
ing the underlying (but never justified) assumption of Aristotelian logic, that of
separation. It is now known in English, perhaps unfortunately, as ‘fuzzy logic’,
but it should be understood not as a logic which is imprecise (it is very precise
indeed), but as a logic of fuzziness.2 The fuzziness is that of the real world, where
boundaries are never sharp (in spite of what our limited means of physical
perception tell us) and where the physical sciences now recognise the possibil-
ity of infinite gradations of measurement. Fuzzy logic (or multivalent logic as
it is sometimes called—admitting many values) admits the complexity and
imprecision (lack of separation) of the real world and attempts to expand our
base of information so we can comprehend it. Com-paring would be necessarily
multivalent, in bringing together and keeping together very different people and
very different laws, with no necessity of choosing definitively between them. It
implies an ever-present, included middle.
The logic of separation is profoundly implanted, however, in intellectual
and popular life (remember the cake) and in ways of thinking about laws,
peoples and underlying values. One manifestation is found in the idea of ‘incom-
mensurability’, by which is meant not (simply) that two ideas or concepts are
incompatible with one another (A or not-A again, which is bad enough), but that
it is simply not possible to comprehend A and not-A and their relations with one
another. They would be incapable of common measure (hence incommensu-
rable) and thus incapable of mutual understanding. The popular version is that of
not being able to compare apples and oranges, an outrageously false proposition
but repeated endlessly by people who consider themselves rational. The original
idea of incommensurability would have come from mathematics, where the
Greeks found that some geometrical lengths could not be measured with whole
numbers or integers (which is all they then worked with), but has now been
extended to moral philosophy (eg, friends are incommensurable with money) and
law (Soviet law would have been incommensurable with bourgeois, western law;
2 For references, see Glenn, 2004a: 350–52, and for how the legal traditions of the world are all built
on notions of multivalent, as opposed to Aristotelian, or bivalent, logic, see below.

Com-paring 95
even the common law, though bourgeois, would be incommensurable with the
civil law). The notion of incommensurability is derived from Aristotelian ideas of
separation and logic, and is incompatible with multivalent forms of logic, where A
and not-A would be simple elements (though at the extremities) of a continuum
of meaning. It may be said that Chicago is incommensurable with the number
nine, but how do we even make such an assertion if we have not made some
(preliminary) evaluation of them both? The com-paring need be done not with
a numerical or other measure common and external to both of them (a so-called
tertium comparationis), but in terms of the characteristics which each possesses,
or does not possess. Chicago is thus spatially-defined, whereas the number nine
is not; Chicago has freight-yards, but the number nine does not. This may not
be very helpful information, but if com-paring is possible here can it really be
excluded elsewhere, notably in law?
One major field of law, however, where there might just as well be profound
incommensurability, is the field of legal education. Since the 11th or 12th
centuries, when law schools were begun in Europe, in both England and on the
continent, only one law has been taught. There is here a ‘primordial’ idea of there
being only one true legal model, the ius unum. In Oxford and Cambridge, and
in the great Universities of the continent, that law, known as the ius commune,
was a then-current adaptation of still older Roman law, which in its (Aristotelian)
rationality was seen as an effective means of combating the unwritten or local laws
which were such an obstacle to centralised church and state authority. Why was a
single, intellectualised law taught, which in almost all cases had little or nothing to
do with the lives of people (which were governed by feudal and customary law)?
The Holy Roman Empire had much to do with it on the continent, since emperors
prefer uniformity—their uniformity—and the Church was not opposed since the
Empire was, after all, Holy. It has been written lately that there was a great fear of
‘contamination’ from the teaching of other forms of normativity (Thunis, 2004:
6). When the reaction against this enforced uniformity of high-level instruction
came about, as it inevitably did, another law, the law of the state, came to be
taught, not in addition to the ius commune, but in its place. So the idea of a ius
unum, uncontaminated, continued to prevail into the present century; a constant
theme of over a millennium’s duration, of separating laws and teaching only one
of them—that considered fit to be taught—in pure form. This allowed, moreover,
demonstration of the (Aristotelian) logic of the only law allowed to be taught.
Comparative law could exist in this intellectual environment, strongly influenced
even today by imperial and canonical ideas, only as a distinct, marginal and
boring topic, if it was allowed at all.
Mention of the church of course brings to mind another famous separation
of the western world, that between church and state. There are relatively few
jurisdictions which actually have a constitutional principle of separation of
church and state, but the idea of a separation between an earthly city and the
city of God is built into christian thinking (‘Give unto Caesar …’, etc), so most
people in western jurisdictions actually think there is a constitutional principle
96 H Patrick Glenn
of separation even when their own country (say, England or Canada) has no
such principle. Still, the principle of separation would be the main reason for
thinking of some jurisdictions as ‘secular’, even though such jurisdictions appear
as very christian to much of the rest of the world, because of their ‘secularity’.
Where there is a clear constitutional principle of separation of church and state,
as in the United States of America, the separation has clearly not given rise to an
absence of conflict, though much of the litigation now turns on what a separa-
tion of church and state could possibly mean, where many people live religious
lives. Separation has not been possible, and litigation over it has itself become a
means of conciliation.
These underlying ideas of separation, profoundly rooted in ways of thought
and institutional structures, have had a profound effect on the possibility of
com-paring. Where comparative law has existed it may be seen as almost miracu-
lous, so the fact that it has been distinct, marginal and boring becomes much less
severe a judgement than it may have initially appeared. Yet there have been other
major obstacles to com-paring, mostly in the form of an amazing tendency to
objectify or reify human groupings, such that they appear almost certain to be
constantly colliding with one another. War is the obvious example, but we are now
finding ways of colliding, and killing, short of actually declaring war.
The Process of Reification
In the (beautiful) Indian dance of Kuchi-pudi, from the village of that name, all
is done with mime, largely through movements of hands and eyes. The mime
for conflict is two hands clenched into fists, not striking one another but simply
pushing one another for the same space. There is no convivencia of large, dense
objects. The mime for conciliation is again two hands, this time with the fingers
outstretched towards those of the other hand, and the fingers of both hands
becoming interlaced as the two hands are brought together. The hands here are
not reified into fists, but allowed to exist as many points of contact and even
cohesion, though the two hands remain readily identifiable. This form of dance
was not meant as just another form of rap, but as a means of teaching important
things in a non-literate society, such that conflict could be largely avoided through
notions of mutual support and understanding. This type of teaching, however, is
abandoned with the contemporary process of social reification.
The most obvious form of social reification is found in the contemporary state
or national legal system. Contemporary states have claimed to be the exclusive
source of law on their territories, though this has been compared with Baron
Münchhausen pulling himself out of the swamp by his own hair. For much of the
19th and 20th centuries, however, legal theory accepted and developed the idea of
a national legal system. A national legal system, according to leading explanations,
could be seen as a simple, positive fact, based on the reality of obedience to it (at
least where this existed, which is less and less frequent in the world, with notions
Com-paring 97
of failed or failing states). The system need not, therefore, be normatively justified,
but could be simply explained, notably by Herbert Hart in terms of primary rules
of conduct and secondary rules which would allow for change and articulation of
the primary rules (Hart, 1994). Why was the national legal system an obstacle to
com-paring? Because each legal system was incompatible with every other legal
system, and each legal system could tolerate only laws valid according to its own
secondary rules. This is quite consistent with general systems theory, which directs
our attention to the interaction of the elements of the system within the cadre of
the boundaries fixed by the system. There is therefore no need for com-paring of
different laws, since there could be none, on the same territory. Moreover, since a
legal system existed as simple fact, it could have nothing normative to say about
whether it should leave room, say, for the law of a religious minority or for the
law of an international tribunal of some kind (unless it formally enacted such a
rule). So the separation of legal systems from one another was largely complete,
at least in legal theory. The result was a notion of conflict of laws (the heart of the
major discipline of private international law) according to which any transborder
activity could be conceived only in terms of conflict, triggering a choice-of-law
rule based largely on geographic contacts. The worst manifestation of this highly
conflictual and non-com-parative view of the relations of laws is found in the
present law of some continental jurisdictions, which says that rules of private
international law are of obligatory application by the court. Accordingly, every
transborder case requires an initial decision on what law is applicable to it, with-
out even any enquiry as to whether there is a real difference or conflict between
the laws. Here, reification of the system creates enormous trouble and expense,
the justification of which appears more and more impossible in current circum-
stances of communication and trade. Should there really be a presumption of
conflict amongst the laws of the European Union?
The formal nature of state law and the state legal system is now being
challenged by many developments of a transnational character, but there have
been challenges also by the valuable work of many sociologists, who have been
able to determine whether state law, in particular circumstances, works or does
not work. This is highly salutary and involves a type of comparison between
formal texts and the situation on the ground. Sociology and anthropology of
law are open to much more information than are legal systems, and so much can
be expected of them in terms of meaningful comparison of laws. Much has also
been delivered. Yet a major caveat is in order, to the extent that the social science
disciplines of sociology and anthropology have themselves become victims of
the process of reification, notably in the development of the idea of culture.
Everyone talks about culture these days, though no-one knows what it really is.
There have been hundreds of definitions offered, none in any way successful. This
is not, however, the problem for com-paring. The problem is that the notion of
culture has itself been reified, in spite of its ambiguity, and attached to particular
groups of people as a defining element of them. In the 19th and 20th centuries
there were many definitions of culture which sounded very close to definitions of
98 H Patrick Glenn
legal systems, in terms of their being a ‘complex whole’, a ‘total system’, or even a
‘totality’ (see Glenn, 2007: 7). Since a culture had to be internally consistent to be
recognisable as a culture, diversity within one’s own culture became inherently
problematical, and diversity within other cultures (of which less was necessarily
known) became essentially inconceivable. This is now known as essentialism, and
is criticised, yet it was inevitable, given the large and homogenising concept of
culture which was deployed. The same method of reification has been used by the
US political scientist Samuel Huntington in speaking of a ‘clash of civilizations’, in
which civilisations are defined as ‘entities’, such that com-paring is impossible and
the only relations that can possibly exist are conflictual in character (Huntington,
1996: 28, 41 and 43).3
The 19th and 20th century concepts of culture are now recognised as major
liabilities by many sociologists and anthropologists and major efforts of
re-conceptualisation are taking place. The notion of the ‘multi-cultural’ (many
conflicting entities) is now being sought to be replaced by a notion of the
‘inter-cultural’ which would be more compatible with com-paring. This involves,
however, re-educating the general public, which now thinks in terms of culture
wars, so it is impossible to predict the effect of present efforts of refinement.4
There is, moreover, an underlying conceptual problem of whether it is even
possible to retain a notion of culture which would not be seen as a ‘complex
whole’ or as a ‘totality’. This is what culture has been, and if it is not that, then it
may well dissolve into its component parts, whatever they may be.5 Stay tuned.
The reification process has thus manifested itself in terms of systems, cultures,
civilisations, and further even in terms of ‘mentalités’. These have all been
boundary-tracing endeavours which both homogenise (within) and differentiate
(without), in a way incompatible with com-paring or convivencia. The situation
is not as bleak, however, as this discussion indicates. Theory, which has been the
object of the discussion, often does not control the world, and theory tends to
become dated as the world moves on, as it is rapidly doing. There is room for
discussion of another type of epistemology.
III. AN EPISTEMOLOGY OF CONCILIATION
To find an epistemology of conciliation it appears, from all of the efforts of

separation we have seen, that we must look elsewhere, and notably away from
legal and social theory of the major western jurisdictions. If you are already
3 See also (ibid: 21): ‘We know who we are only when we know who we are not and often only when
we know whom we are against’ and (ibid: 42): ‘A civilization is a “totality”’. Huntington’s book was
translated into German with the title Kampf der Kulturen.
4 For the notion of a ‘culturally unitary group … tied to “its” territory’ as ‘difficult to shake
because … so deeply ingrained in the modern consciousness’, see Berman, 2005:485 at 513, with refs;
but for concept of culture being ‘misused’ as weapon in cultural wars, see Nelken, 2001: 26.
5 For this process of dissolution, see Cotterell, 2004: 1 at 9 ‘the concept of culture should be broken
down into distinct components and its vagueness and indeterminacy thereby reduced’.
Com-paring 99
well-versed in such theory, and inclined to defend it, please withhold judge-
ment for a bit, as an immediate exercise of com-paring. There may be things
worth knowing about out there, and you may even run into them in your future,
fantastic, galactic legal practice. Where has an epistemology of conciliation
developed amongst lawyers, allowing for widespread and active processes of
com-paring?
A Multivalent Logic of Legal Practice
Can practice be possible without high theory, notably of the legal system? Well, a
major and important book has just been written about Jewish law, which would
have existed for a least a couple of millenia without any western-style theory
(though it would have something called faith to help it along) (Rynhold, 2005).
Here there would be a ‘Priority of Practice’ which would take precedence over a
‘Priority of Theory’, and the practice would be highly specific, alive to individual
particularities and nuances (think of the common law, perhaps even today), such
that ideas of boundaries or general systems somehow fade away in the challenge
of the immediate case. Cases would be decided in comparing them with other
cases, with no closureof information or general boundaries impeding the process.
There would be here something similar to the way in which the unwritten law of
chthonic or native peoples would have been recognised by Crown negotiators in
North America, not through their imposition of categories of theory but through
having ‘simply listened’ to what they were being told. Wittgenstein would have
approved of the process, having criticised the ‘craving for generality’ and argued
for understanding a general term only through the practical activity of using it in
various circumstances.6
So practice may actually be more conducive to com-paring than either legal
or social theory of the last centuries. Are there any other indications of this?
There may well be in the emerging process of practising law in a transnational
manner. Something is going on here, though it does not appear to be reflected
in any theoretical work, anywhere. What is happening is that legal practitioners
are beginning to enjoy a vantage point above and beyond that of state law. Since
legal practice was highly local for much of legal history, knowledge of foreign law
was very hard to come by. Experts had to be called upon, and there was (is) that
continental rule that if a case has any foreign element it is immediately whisked
away from the practitioners while a court decides what law is applicable to it
and foreign content of the law can then be officially obtained (usually through
a university or government research institute). Not much com-paring could go
on, and not much place was left for a ‘priority of practice’ or principle of mutual
recognition.
6 For the combination of Wittgenstein and aboriginal negotiations, themselves based on a principle
of ‘mutual recognition’ and therefore of com-paring, see Tully, 1995: 105–19.

100 H Patrick Glenn
Today, however, law firms exist in transnational form (true or linked partner-
ships) and are able to sit in judgement upon, choosing, state law, both for choice
of jurisdiction and for choice of substantive law.7 Lawyers also sit on arbitration
panels, largely prohibited by state law in the 19th century, and may call upon many
models of state law in reaching their decision. They also sit on arbitration panels
in free-trade dispute-resolution processes, even engaging in comparative debates
on whether national, public (administrative) law rules have been violated and
according to what criteria. They seek ‘best practices’, and the transnational com-
mercial world is one of free-flowing normative information where the question is
never what the best possible rule is (which would be an impractical enquiry), but
which solution is preferable to other solutions.
Comparative legal practice is not limited, however, to the corner offices of the
large transnational firms. Given the level of population mobility in the world,
family law practice has become transnational and comparative in character, and
courts in all jurisdictions are occupying themselves with the reconciliation of
state norms and those of non-western legal traditions.8 The same phenomenon
is evident in what was previously seen as internal commercial practice (eg, the
‘islamic mortgage’, or bond).9 Even in criminal law that which is, unfortunately,
known as the ‘cultural’ defence has emerged, in the form of reliance on specific
principles or rules of non-western traditions as a means of defence against
criminal charges; defences which are usually rejected except to the extent they
may bear on the mental element of the crime—and hence they must be consid-
ered at least for this purpose (Renteln, 2004). Nor is the practice of comparison
limited to the private, practising, professions. Judges are now actively engaged in
consideration of extra-national (even ‘foreign’) law and even in matters of public
law. In the 1970s Otto Kahn-Freund spoke of the latter in particular as a misuse
of comparative law (since it related to local structures of power) (Kahn-Freund,
1974), but now judges engage in round-table discussions of how and why to
engage in the process.10 Difficult human rights cases in particular appear to call
for consideration of (comparable) other cases. The United States Supreme Court
is now actively debating the extent to which it should engage in citation of foreign
cases in interpretation of the United States Constitution. To the extent it does
so it would be returning to an open position which prevailed in the 18th and
19th centuries, before notions of national systems and closure began to take
effect.
7 For the process, see Glenn, 2001 (and also on new mobility of lawyers, and the need for com-
parison of different ethical rules).

8 For recent United States practice, see Estin, 2004: notably 540 at 541–2 (US judges developing
multi-cultural family law, making ‘space for traditions to flourish’).

9 In the United States, see Shepherd, 2000.
10 Roundtable, 2005. For the House of Lords in England relying extensively on civilian and
Anglo-American common law authority, see Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC
32 (HL).
Com-paring 101
These transnational forms of practice and com-paring may appear disparate

and even incoherent, particularly in the face of an epistemology of conflict and
the logic of separation and reification, discussed above. They represent, however,
an epistemology of conciliation which is as coherent and justifiable as its opposite.
It may even be articulated in long-standing legal concepts which predate the idea
of the national legal system and which have continued to be operative even during
the period of legal nationalism. The most important of these long-standing legal
concepts is that of common law. Most lawyers today think of common law as the
legal tradition developed by the courts of England, subsequently transported to
many parts of the world. Coincidentally, there would have been another common
law in the form of the ius commune, discussed above in relation to legal education,
which would have differed fundamentally from the common law in being based
on Roman law and being essentially doctrinal in character as opposed to judge-
made. This view of common law does not fully reflect, however, the widespread
character of the notion of common law in European and world legal history.
There was also a French common law (‘droit commun’), a Spanish common law
(‘derecho commún’), a German common law (‘gemeine Recht’) and so on (Glenn,
2005). What was common to all of these common laws, including ‘the’ common
law and ‘the’ ius commune, was that they co-existed alongside non-common , par-
ticular laws (as with the local customs of England), and law which was common
had to be designated as such to distinguish it from the law which was not. The
English common law was thus known as common law not because it was case law,
which had nothing to do with its name, but because it was capable of application
(though not necessarily applied) throughout an entire territory, in contrast to the
local laws that were limited to particular territories. Whether the English, French,
German or Spanish common law actually did apply, in a given case, was the result
of a process of reconciliation of the claims of the common and particular laws.
It resulted from com-paring the two, and it was generally accepted that common
laws would yield to local particularity where the local law claimed its own applica-
tion with sufficient vigour. Still today, local custom prevails over the common law
(of England) when it is proven according to satisfactory standards.
Did these common laws survive the period of legal nationalism, the process of
codification on the continent and the development in the 19th century of stare
decisis in the common law? The usual response to this question is negative, since
national legal systems in Europe were seen as abolishing sources of law other than
those of state authority. This is the logic of separation and reification at work
and it has been very influential. Consider the nature, however, of these common
laws and their territorial application. They were not limited to the territory of
a particular nation state in Europe. Indeed, these states were not even recogni-
sable (well, England perhaps, because of the shoreline) in the 15th century when
their law began to be exported abroad in the process of colonialism. The com-
mon laws of England, France and Spain, notably, became the common laws of
empires, potentially applicable far beyond the mère patrie. They were not always
applied, and the legal history of colonialism is very similar to the expansion of the
102 H Patrick Glenn
common laws within their original territories. The common laws yielded to local
particularity when local particularity so required (though criminal law had its
own requirements). In this they remained true to their character as common laws,
and the process of their application was the same process of reconciliation and
comparison. In the Commonwealth, the test for the application of English (com-
mon) law was its ‘suitability’, and this involved an extensive, com-parative exercise
with English and local law being brought together as equals and interrogated on
their claims and suitability for application. The English law did not always win;
indeed it often lost. Quebec law is what it is today because the common law, then
still in the form of writs, could not displace the written, substantive law of French
origin that was already in place.
Lawyers in the colonised world (almost all of the world), thus engaged in an
active process of reconciliation of law from the 15th century. Did this change
with the advent of the idea of the national legal system? Did the European states
which gave rise to common laws succeed in abolishing them wherever they had
taken root in the world? This was impossible, since nation states are sovereign (so
it is taught) only on their own territory. The result has been an ongoing process
all over the world, of consultation of both local law and the relevant common
law (English, French, Spanish, German, Dutch, etc) in the decision-making
process in individual cases and certainly also in any legislative processes. This
massive phenomenon of the ongoing influence of common laws in the world,
and the comparative process which it implies, has been completely by-passed
(necessarily so) by theories of national legal systems and exclusivity of national
laws. State laws, however—including those of the states having originated com-
mon laws—exist today within a broad cadre of ongoing common law which can
always be called upon as a means of remedying the deficiencies of local law, in the
historical manner of common laws. Commonwealth lawyers know this well, and
the Oxford University Commonwealth Law Journal is the latest manifestation of
the phenomenon, but the process is replicated in much of the rest of the world as
well. The notion of common law thus provides, and has provided for centuries,
an ongoing justification for the process of com-paring and reconciliation of laws.
There is a further conceptual instrument available for this purposes, however, in
the concept of legal tradition.
Legal Traditions
The notion of tradition has been the object of great vilification in the western
world. Edward Shils concluded that it was not only the tradition of the ancien
régime which the ‘enlightenment’ sought to eliminate, but the concept of tradi-
tion itself (Shils, 1981: 6). This would leave the field free to contemporary ratio-
nality, to modernity, and then to post-modernity. This is still how the popular,
western world largely conceives of itself, but there are now indications of growing,
theoretical recognition that the western tradition is one of many, and that there is
Com-paring 103
need for reconciliation of them all. The western tradition is one which calls itself
modernity. It is a tradition which denies its historical past and valorises pres-
ent rationality, but there is no escaping the historical past of that which has led
to notions of modernity and the valorisation of present rationality. Most other
people of the world do not think this way, and it took many millennia for western
people to come to think this way, so we are essentially dealing with highly devel-
oped bodies of normative information, of long standing, which tell us how to live
and how to solve our disputes.
Tradition, including legal tradition, is thus best thought of as a body of ‘highly
self-conscious’ information (Philips and Schochet, 2004: ix), necessarily norma-
tive in character because of its long duration, which would constitute the essential
subject-matter of today’s ‘information society’. The ‘new orality’ of the electronic
world, for example, would thus be providing new vitality to oral traditions of
previously limited geographical reach. It is true that much of the information
that the world generates is simply noise, but the operation of the techniques of
tradition, in effecting the necessary capture and transmission of the information
of the tradition, eventually eliminates the noise and makes the past readable, and
understandable, for those of the present.
As a long-standing body of normative information, tradition has also been
castigated in western thought as inherently conservative in character. It is that
which must be struggled against, in the name of many desirable reforms. This is a
very particularised and inaccurate view of the real force of tradition. It is particu-
larised because it derives from the European struggle against the ancien régime,
a tradition well-worthy of being overthrown in many of its characteristics (social
classes, privilege, corruption, etc). It is inaccurate because the tradition was over-
thrown not on the basis simply of present rationality, whatever that might be, but
because the reformers of the enlightenment justified their conduct by appealing
to sources of rationality recognised to have originated with the Greeks. Hence we
have the word ‘revolution’, which involves a return, or re-volving to an original,
earlier position. In astronomy, this meant for Copernicus11 the return of a planet
or moon to the point of origin of its orbit. In revolutionary politics it meant resort
to an alternative tradition of rationality as a means of reform. The word ‘revolu-
tion’ thus acknowledges the ancienneté of the rationalist tradition, as well as the
disruptive and legitimising force of alternate traditions.
How can the concept of tradition, however, faced with the silent fact of large
and dense legal systems, contribute to a process of reconciliation and convivencia?
From within a legal system the view is limited, since the system is exclusive, irrec-
oncilable with other laws, and conflictual in character. Tradition, however, would
allow you to step outside of the system, still remaining within (traditional) law,
and require it to justify itself, to provide the means of com-paring and grounds
for reconciliation. How is this so? There are three avenues to explore. They all have
the effect of surrounding legal systems and requiring them to justify themselves.
11 Copernicus, De Revolutionibus, 1543.

104 H Patrick Glenn
The first avenue is through the history, and even pre-history, of legal sys-
tems themselves. Positive legal thought grounds legal systems on contemporary
social facts of obedience (Herbert Hart) or efficiency in operation (the view of
the Austrian jurist Hans Kelsen). But, one may well ask, where did these ideas
come from? In philosophy, the idea of a ‘fact’ is now questioned, as it is in legal
traditions other than western ones, so it can be demonstrated that the standard
definitions of a legal system are historically grounded.12 Legal systems would not
be grounded on what positivists say they are grounded on, since that is a defini-
tion internal to the systemic manner of thought. Legal systems would rather be
grounded on the thought, or tradition, which enabled positivist legal theorists to
reach these conclusions. Legal systems are thus best conceptualised themselves as
instantiations of a particular legal tradition. As such, they are conceptually equal
to, and on a par with, other legal traditions, which all exist as self-conscious bod-
ies of legal information, sustained over considerable periods of time. So one can
stand outside western legal systems, as a western lawyer, but still stand within law,
by placing oneself within a western legal tradition, and even a western tradition
of positive law and legal systems (now cognisant of its traditional character).
There would thus be underlying common law (and we are back to it here), or
ius publicum universale, as it used to be ambitiously called, justifying the range
of distinct states which emerged in Europe and the world. This tradition is not
dumb; it speaks to the need and justification for legal systems, and is capable
both of recognising their weaknesses, their need for reinforcement, and degrees
of effectiveness in their implementation. Western legal tradition is normative; it
speaks to questions which legal systems, as purported facts, are unable to speak
to. This is why Article 6 of the Treaty of the European Union speaks of Europe’s
‘common constitutional traditions’, since it is necessary to resort to such underly-
ing common tradition as a means of critiquing, com-paring, and going beyond,
the national systems of Europe.
The second avenue of exploration is through the juxtaposition of the national
legal system with other legal traditions within the national territory. This cannot
be done by legal theorists posing abstract questions, and probably cannot be done
at all by theorists of national legal systems. There is a large and important empiri-
cal requirement, which is that of a population which adheres to non-state norma-
tivity, and an equally important procedural requirement of accessibility to formal
institutions of adjudication on the part of this population. These requirements
are now met in many of the jurisdictions where the idea of a legal system has been
12 Putnam, 2002: 3 and 63: ‘the terms one uses even in description in history and sociology and the
other social sciences are invariably ethically coloured’; and for the history, or tradition of the concept
of ‘fact’see Shapiro, 1994: 245; and Shapiro, 2000: 3, 9, 11, 60, 107 and 110 (the notion of fact in medi-
eval common law procedure was drawn from romano-canonical tradition and then adopted by other
disciplines, though ‘fact’ in law was only an issue placed before a jury, either fictional or real, and came
to be an ‘established truth’ only under the influence, notably, of Bacon, Hobbes, and contemporary
scientific thought).
Com-paring 105
well received, such that the concept of an exclusive system is now challenged from
within. Once this happens, once it is recognised that there is challenge by lawyers,
raising justiciable issues, to the exclusivity of the system, the system can be made
to respond, to argue back, and even to yield to other forms of normativity which
thus come to be recognised as law. In Canada, until the 1970s, the Canadian gov-
ernment rejected negotiation of claims of aboriginal or chthonic peoples as being
too ‘vague’ for legal recognition (a very systemic view). This position changed
once the Supreme Court recognised the justiciability of these claims.13 A tradition
of unwritten law was thus recognised as a legal tradition; and as a legal tradition it
required a response from the state legal system, now more clearly recognisable as
an alternative tradition and no longer as a large, silent, and immovable object. In
Australia as well, the lex non scripta of the Australian aborigines is now explicitly
designated as ‘traditional law’. The concept of tradition is thus a roomy one. It
encompasses many different types of law, including that of the state. And since
tradition is defined in terms of information, the information of each tradition
is accessible to the others, so the possibilities of dialogue and conciliation are
enhanced.
The concept of tradition thus allows a better understanding of state law, and
a better understanding of other laws which may be raised within its territory.
Tradition is also the best explanation of much transnational law (a third avenue of
exploration), which exists in diverse and variable form, but in all instances as nor-
mative information, the force of which increases to the extent that it is recognised
as a traditional source of law. This is why very sophisticated and contemporary
forms of international commercial legal practice are designated as lex mercatoria.
They would be legitimated by their classification within a body of commercial
normativity that has prevailed and been recognised for centuries. Tradition is
also the only conceptual means of recognition of religious laws (without doing
violence to revelation) which consider themselves incompatible with western
notions of system or culture.
As normative information, tradition simply goes with the flow. There are no
inherent boundaries to tradition, as is the case with systems, though particular
traditions such as that of the nation state may construct boundaries for them-
selves. Traditions function according to multivalent forms of logic and tolerate
diversity (see Glenn, 2007).They have large and roomy middle grounds. The tra-
dition of the Anglo-American and Commonwealth common law is a good exam-
ple of this, existing as it does in various, often contradictory forms throughout
the world while maintaining a recognisable identity as a common law. Traditions
thus do not conflict and compete for space (though nothing prevents people from
doing so), but rather influence, through a process of com-paring. It has been said
recently that the concept of tradition has become, in the last quarter of a century,
the ‘dominant paradigm’ in understanding the world’s laws, and that this is so
13 Calder v British Columbia [1973] SCR 313, 34 DLR (3d) 145.

106 H Patrick Glenn
because the concept of tradition would look ‘beyond … legal systems and fami-
lies as static and isolated entities’ (Reimann, 2002.:677; and see Merryman, 1985;
Glendon, Gordon and Osakwe, 1994; Zimmermann, 1996; and Glenn, 2004a).
Traditions thus allow for convivencia, and the study of legal traditions and their
ongoing relations with one another should therefore not be a distinct, marginal
and boring process, but an integrated, vital and challenging part of what is known
as globalisation.
1. Why would the notion of exclusive state law have developed in the par-
ticular circumstances of Europe and nowhere else in the world? Why
does this question challenge positivist explanations of legal systems?
2. Would tradition be too vague in its definition of law to allow legal practice
to continue? Would it be the case that a particular tradition, such as that of
a legal system, would allow for formal identification of law where this was
thought necessary? To what extent do you think legal practice, as practice,
is systemic in character?
3. Is the reason why different legal traditions are not taught because most law
professors don’t know anything about them? Why would this be so? Is it a
justification?
4. To what extent is the study of different legal traditions encumbered by
problems of language? Is it necessary to learn about a law in its original
language? Can a law exist and be effectively applied only in unilingual
form? What is the linguistic history of ‘the’ common law?
5. If account must increasingly be taken in the world of different legal tradi-
tions, will this be an obstacle to development and commercial efficiency?
If so, is this a good thing or a bad thing?
6. Why is the discipline of private international law not compatible with a
process of com-paring of laws?
7. Why is a comparative law process of classifying the different laws of the
world into different legal families (civil law, common law, islamic law, etc)
not compatible with a process of com-paring of laws?
8. Why is a course in comparative law not compatible with a generalised pro-
cess of com-paring of laws? Is public international law part of the solution
or part of the problem?
9. How can an argument be made (it is now being made) that, say, the com-
mon law is more efficient than the civil law? What criteria of comparison
could be used? Is there such an entity as the common law or the civil law
(as opposed to particular manifestations of them) the efficiency of which
can be judged in the abstract?
10. Why do legal exchange programmes not involve any com-paring of laws?
Com-paring 107
Berman, PS (2005) ‘From International Law to Law and Globalization’ 43 Columbia Journal
of Transnational Law 485.
Bragg, M (2004) The Adventure of English (London, Hodder & Stoughton).
Cotterell, R (2004) ‘Law in Culture’ 17 Ratio Juris 1.
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(London, British Institute of International and Comparative Law).
Drobnig, U and van Erp, S (eds) (1999) The Use of Comparative Law by Courts (The
Hague–London–Boston, Kluwer Law International).
Estin, A (2004) ‘Embracing Tradition: Pluralism in American Family Law’ 63 Maryland
Law Review 540.
Glendon, MA, Gordon M and Osakwe, C (1994) Comparative Legal Traditions (St Paul,
West Publishing).
Glenn, HP (2001) ‘On Removing the Boundaries: Comparative Law and Legal Practice’ 75
—— (2004) ‘Legal Cultures and Legal Traditions’ in M Van Hoeck (ed), Epistemology and
Methodology of Comparative Law (Oxford, Hart Publishing).
—— (2005) On Common Laws (Oxford, Oxford University Press).
—— (2007) Legal Traditions of the World, 3rd edn (Oxford, Oxford University Press).
Hart, HLA (1994) The Concept of Law, 2nd edn (Oxford, Clarendon Press).
Huntington, S (1996) The Clash of Civilizations and the Remaking of World Order (New
York, Simon & Schuster).
Husa, J (2004) ‘Classification of Legal Families Today: Is it Time for a Memorial Hymn?’
Revue internationale de droit comparé 13.
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Review 1.
Kosko, B (1993) Fuzzy Thinking: the New Science of Fuzzy Logic (New York, Hyperion).
Transitions (Cambridge, Cambridge University Press).
Mattei, U (1997) Comparative Law and Economics (Ann Arbor, IL, University of Michigan
Press).
Merryman, JH (1985) The Civil Law Tradition, 2nd edn (Stanford, Stanford University
Press).
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Adapting Legal Cultures (Oxford, Hart Publishing).
Nelken, D and Feest, J (eds) (2001) Adapting Legal Cultures (Oxford, Hart Publishing).
Örücü, E (2004) The Enigma of Comparative Law, (Leiden and Boston, Martinus
Nijhoff).
Philips, MS and Schochet, G (2004) ‘Preface’ in MS Philips and G Schochet (eds), Questions
of Tradition (Toronto/Buffalo/London, University of Toronto Press).
Putnam, H (2002) The Collapse of the Fact/Value Dichotomy (Cambridge, MA, Harvard
University Press).
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European and Civil Law Forum 49.
—— (2002) ‘The Progress and Failure of Comparative Law in the Second Half of the 20th
Century’ 50 American Journal of Comparative Law 671.
108 H Patrick Glenn
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Constitutional Law 543.
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Shapiro, B (1994) ‘The Concept ‘Fact’: Legal Origins and Cultural Diffusion’ 26 Albion 1,
reprinted in D Sugarman (ed), (1996) Law in History: Histories of Law and Society, vol II
(New York, New York University Press).
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5
Defining and Using the Concept of Legal

Culture
DAVID NELKEN
KEY CONCEPTS
Internal legal culture; External legal culture; Coherence; Units; Explanation

and interpretation; Circular argument; Relational legal culture; Reflexivity.
I. INTRODUCTION
T
he term legal culture is both widely used and as regularly criticised in
academic works which try to bring together socio-legal studies and com-
parative law. One author who had previously named his book Dutch Legal
Culture has preferred to replace it with the less question-begging ‘Dutch law in
action’ (Blankenberg and Bruinsma, 1995; and Bruinsma, 2000). Even Lawrence
Friedman, responsible for introducing the concept into the sociology of law, has
recently described it as ‘an abstraction and a slippery one’, and now says that he
is not sure he would want to reinvent it (Friedman, 2006). Yet the term, like the
word culture itself, seems to be one that we cannot do without. As a recent World
Bank study reported: 1
Legal culture is often considered as a given feature of the local environment to which
proposed legal reform projects must adapt; many argue that legal and judicial reform
programs must be tailored to fit local legal culture or they will fail. Other times, the pre-
vailing legal culture itself may be the object of reform, rather than merely a constraint.
Thus, understanding the arguments related to the concept of legal culture will become
increasingly important for aspiring legal reformers. Does the legal system not work well
because people distrust the courts, or do people distrust the courts because the legal
1World Bank:
Http://72.14.221.104/search? q=cache:YebgTjDewqAJ:www1.
worldbank.org/publicsector/legal/ruleoflawandevelopment
110 David Nelken
system doesn’t work well? Is the introduction of a new contract law unlikely to have
an effect because the business culture prefers informal deals with family and friends,
or does the preference for informal dealing exist only because no one has yet passed an
efficient contract law? These sorts of problems are not easy to resolve, especially because
the causality clearly runs in both directions, and the interactions between beliefs and
actions are extraordinarily complex.
As this use of the term suggests, the promise of the concept of the legal culture
for many comparative lawyers is the part it can play in specific efforts at socio-
legal engineering stimulated by the current round of legal transplantation. But it
is relevant more generally to any enquiry in comparative law that seeks to explore
similarities and differences in legal practices and legal worlds. How far are legal
systems trying to do the same thing (and how could we tell)? What are the deeper
sources of rules and procedures? What, if anything, sets the limits of variation
within and between given systems? Unlike the tired categories of ‘families of law’,
a focus on legal culture directs us to examine the interconnections between law,
society and culture as they are manifested also in the ‘law in action’ and the ‘living
law’.
The best work using the idea of legal culture typically starts from some puzzle
about the relationship between the role and the rule of law within given societies.2
Why do the United Kingdom and Denmark complain most about the imposi-
tion of European Union law but then turn out to be the countries which have
the best records of obedience? Why does The Netherlands, otherwise so similar,
have such a low litigation rate compared to neighbouring Germany? Why in the
United States and the United Kingdom does it often take a sex scandal to create
official interest in doing something about corruption, whereas in Latin countries
it takes a major corruption scandal to excite interest in marital unfaithfulness!?
Why have constitutional courts managed to consolidate themselves in some post-
communist societies but not in others—and why are they emerging now in East
Asia? Why are the higher courts in Latin American countries such as Chile or
Columbia currently seeking to guarantee minimum social security rights despite
the ‘formalistic legal culture’ that is alleged to characterise their role? How does
this connect, if at all, with the neo-liberal policies being pursued on the advice of
the Chicago-educated technocrats in government?
On the other hand, the concept of legal culture will be of little assistance to
us in investigating these and other similar questions if we cannot achieve some
degree of agreement on what it means and how it should be used. Hence the
task of this chapter. I shall first discuss debates about legal culture and consider
some of the alternative terms on offer. I shall then go on to examine some of the
difficulties in using the concept. I shall consider in particular how to demarcate
2 There is insufficent space to provide references to the many case studies relevant to the theme of
legal culture. For examples, see Blankenburg, 1997 and Ginsburg, 2003.
Defining and Using the Concept of Legal Culture 111
units of legal culture, how to imagine what gives them their coherence, and how
to avoid the problem of circular argument when using the term in explanations
of legally-related behaviour.
II. DEFINING LEGAL CULTURE
What is the point in calling a particular pattern of behaviour, opinions or

ideas an instance of legal culture, and what follows from this? As with
descriptions such as ‘legal system’ or ‘legal process’, many of those who adopt
the term do so at a minimum so as to alert prospective readers (or librarians)
to expect their work to include some discussion of the behaviour or ideas of
legal professions or courts in a given place or time. The term also suggests,
explicitly or implicitly, the existence of some larger historically or geographically
defined entity that gives law some commonalities (see, eg Gessner, Hoeland and
Varga, 1996; and Varga, 1992). If we are to develop legal culture as a ‘term of art’
we will need to think more carefully about what exactly we are talking about.
Taken generally, the terms ‘law’ and ‘culture’ when brought together cover a large
range of possible permutations of law in culture or culture in law (Fizpatrick,
2005). These meanings can include law seen as a cultural artefact, rather
than merely as a form of social engineering (Kahn, 1999); law as it becomes
present in every-day life experience, or as filtered through the media (Sarat
and Kearns, 1993; Sarat and Kearns, 1998), or even the significance of law in
accommodating cultural defences or protecting cultural treasures (Cotterrell,
2004). In one common use (outside of English language jurisdictions) the
term signifies the aspiration towards the ‘culture of legality’, the nearest, though
not perfect equivalent, to which in English is ‘the rule of law’. This meaning is
particularly common in those jurisdictions, or parts of jurisdictions (for example
in the former Soviet Union, Latin America or the south of Italy) where state
rules are systematically avoided or evaded. In such cases talk of ‘legal culture’
is intended to underline the normative goal of getting ‘legality’ into the culture
of everyday social and political life, so as to re-orient the behaviour of such
populations towards (state) law.
As this shows, legal culture is a term that can be used prescriptively as well as
descriptively. What is meant by the ‘legal’ in the term legal culture? Legal and
social scientific answers may not be the same. Both law and culture are words
whose interpretation and definition have illocutionary effects (‘this is the law’,
‘that behaviour is inconsistent with our culture’). Likewise the term legal culture
can be used by judges or others within the legal system or the culture so as to
make claims about what is, or is not, consonant with a given body of law, prac-
tices or ideals. This use, prescriptive even as it purports to be descriptive, helps
‘make’ the facts it purports to describe or explain. So, one interesting way, espe-
cially for jurists (Rebuffa and Blankenburg, 1992) to study legal culture would
be as an attempt to understand such actors’ attempts to describe, ascribe, or
112 David Nelken
produce coherence in the course of their decision-making.3 As argued by Jeremy

Webber,
[t]he concept of culture is not so much a way of identifying highly specified and tightly
bounded units of analysis, than, as a heuristic device for suggesting how individual
decision-making is conditioned by the language of normative discussion, the set of
historical reference points, the range of solutions proposed in the past, the institutional
norms taken for granted, given a particular context of repeated social interaction. The
integrity of cultural explanations does not depend upon the “units” being exclusive, fully
autonomous, or strictly bounded. Rather, it depends upon there being sufficient density
of interaction to generate distinctive terms of evaluation and debate. When there is that
density, any examination of decision-making in that context will want to take account
of those terms (Webber, 2004: 32).
On the other hand, the classical starting point for those aiming to use the term
for explanatory purposes is the work of Lawrence Friedman. Friedman first intro-
duced his version of the concept in the late 1960s, modelling it on the idea of
political culture seen as the key to understanding voting patterns and other factors
which shape political systems. He still chooses to define it as
what people think about law, lawyers and the legal order, it means ideas, attitudes,
opinions and expectations with regard to the legal system (Friedman 2006: 189).
In more elaborated discussions, however, he helpfully distinguishes ‘internal’ legal

culture—which acknowledges the special role in the law of judges and other legal
professionals and scholars—from what he calls ‘external’ legal culture which refers
especially to those individuals or groups who bring pressure to bear on the law to
produce social change. Friedman has argued that internal legal culture as a factor
in explaining socio-legal change has tended to be exaggerated, usually by those
who have an investment in doing so. He prefers to concentrate on the impor-
tance of external legal culture, for example giving attention to increasing public
demand for legal remedies—what he calls the drive to ‘Total Justice’ (Friedman,
1985; Friedman, 1990)—as the predominant force for producing legal and social
change.
Friedman has no monopoly over the definition of legal culture. For example,
Erhard Blankenburg (a leading European sociologist of law) defines legal culture
to include four components: law in the books; law in action as channelled by
the institutional infrastructure; patterns of legally relevant behaviour; and legal
consciousness, particularly, a distinctive attitude toward the law among legal pro-
fessionals (Blankenburg and Bruinsma, 1995). In the United States, on the other
hand, most socio-legal scholars following on from Friedman have placed their
main focus on exploring the legal consciousness of those subject to the law. In
3 Philosophers of law have sought to understand the activities of the various legal professionals and
jurists who bear the responsibility of (re)producing such purported coherence, by making reference to
the ‘rule of recognition’ or to the ideal of ‘law as integrity’, but the sort of coherence at issue for them
is, above all, normative consistency.
adapting Friedman’s approach for comparative enquiries, a broad definition that

best alerts us to the range of possibly different features of foreign systems may be
helpful. As I have proposed,
[l]egal culture, in its most general sense, should be seen as one way of describing rela-
tively stable patterns of legally-oriented social behaviour and attitudes. The identifying
elements of legal culture range from facts about institutions such as the number and role
of lawyers or the ways judges are appointed and controlled, to various forms of behav-
iour such as litigation or prison rates, and, at the other extreme, more nebulous aspects
of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who
we are, not just what we do (Nelken, 2004: 1).
Debates around legal culture may be confusing because authors can disagree
not only over the question of what is true of a given legal culture (which should
presuppose agreement about what they mean by the term itself), but also about
how best to think about and study legal culture as such. An important example of
the first kind of disagreement (involving both inside observers and outside com-
mentators) is the variety of answers offered to the question of why the Japanese,
despite living in the world’s second most successful economy, make relatively little
use of the courts. In the 1950s it was conventional to adopt ‘harmony culture’
explanations, which treated Japan’s legal culture as an expression of the influ-
ence of Confucian shaped-culture that emphasised harmonious and hierarchical
relationships. But by the 1970s and 1980s this approach had fallen out of favour
relative to more structural explanations that argued that the limited numbers of
legal professionals and courts represented institutional barriers maintained by
government bureaucracies and business elites, to protect their corporatist agree-
ments from the unpredictability of court interventions. Discussion continues,
with some authors suggesting that Japan sometimes makes more use of courts
than other places (Feldman, 1997; Feldman, 2001; Feldman, 2006), and others
arguing that Japan offers an example of non-legally obsessed communitarianism
that has special merits (Nottage, 2006 ).
Are litigation rates the key to understanding legal culture? Some contributors
to the Japanese debate questioned this (Hamilton and Sanders, 1992). But they
are central to the work of Blankenburg (Blankenburg, 2003). In one of his
best known studies he set out to explain the much lower use of courts in The
Netherlands as compared to adjoining parts of West Germany, two places which
otherwise had so much in common (Blankenburg, 1997). The answer provided
by Blankenburg was that these rates depended less on what people want from
law than on the availability of other institutional possibilities for dealing with
their disputes and claims. The Netherlands, he argued, possessed a much wider
range of ‘infrastructural’ avenues for disposing of cases in ways that did not
require court litigation as compared to Germany. In opposition to Friedman,
Blankenburg stresses the importance of the ‘supply’ rather than the ‘demand’ for
law. He claims that his ‘natural experiment’ showed the overriding explanatory
role that should be attributed to institutional ‘infrastructures’. He concluded,
114 David Nelken
perhaps over-confidently ‘there is no legal culture outside existing legal institu-

tions’: the influence of ‘folk’ or general cultural mentalities may therefore be safely
ignored.
III. THE QUESTION OF CULTURE
For some writers however, the issue is not just what is true of a given legal culture,
or even whether it is more shaped by demand or supply, but whether the term is
one worth holding on to at all. The objections have to do with the use of the term
‘culture’ in legal culture. What is involved in describing a given set of ideas and
behaviour as ‘culture’? For many critics culture has too wide a variety of meanings
for it to be a serviceable concept. Is culture a determining source of behaviour or
only a ‘tool kit’ that can be drawn on selectively? Which option is intended can
make all the difference to what is being claimed in using the term. Though the
term has become increasingly important in many disciplines, strangely, anthro-
pologists, who originally developed the term, have found its common meanings
less and less illuminating for the purpose of explanation (Kuper, 1999).
‘Over the last two decades’, writes Sally Merry,
anthropology has elaborated a conception of culture as unbounded, contested, and

connected to relations of power. It does not consist only of beliefs and values but also
practices, habits, and common-sensical ways of doing things. The contemporary anthro-
pological understanding of culture envisions a far more fluid, contested, and changing
set of values and practices than that provided by the idea of culture as tradition. Culture
is the product of historical influences rather than evolutionary change. Its boundaries
are fluid, meanings are contested, and meaning is produced by institutional arrange-
ments and political economy. Culture is marked by hybridity and creolization rather
than uniformity or consistency. Local systems are analysed in the context of national
and transnational processes and are understood as the result of particular historical
trajectories. This is a more dynamic, agentic, and historicised way of understanding
culture (Merry, 2003: 55 at 69).
Certainly, great care must be taken in employing any concept which makes ref-
erence to culture. We shall need to avoid reifying national or other stereotypes,
and recognise that much that goes under the name of culture is no more than
‘imagined communities’ or ‘invented traditions’. It is easy to fall into the opposed
vices of ‘Occidentalism’ or ‘Orientalism’, making other cultures seem either neces-
sarily similar or intrinsically ‘other’ (Cain, 2000). If culture is, to a large extent,
a matter of struggle and disagreement, the purported uniformity, coherence or
stability of given national or other cultures will often be no more than a rhetori-
cal claim projected by outside observers or manipulated by elements within the
culture concerned. Any assumption that long-standing historical patterns cannot
be altered can be ‘dystopic’ and may block possible reforms (Krygier, 1997). Legal
culture, like all culture, is a product of the contingencies of history and is always
undergoing change (Nelken, 1995). For our purposes it can be salutary to recall
the rapid transformations in attitudes towards ‘law and order’ in the short period
that elapsed from Weimar to Hitlerian Germany. But, on the other hand, we
should note that Merry herself still uses the term. Even invented traditions may of
course be real in their effects. Whilst talk of ‘culture wars’ is often exaggerated, it
would be equally mistaken to assume that cultural differences do not exist—of all
kinds and at many levels—or deny that some of these may indeed clash.
Critics of legal culture see it as inevitably carrying the inconsistent or misleading
referents that come with the term culture. Patrick Glenn reminds us that cultures
should not be treated as ‘super organic’, or ‘substantive, bounded entities’, but rather
seen as ‘shreds and patches remaking themselves’ (Glenn, 2004). But, whilst legal
actors do (perhaps must?) work with some such ideas of culture as normative pre-
suppositions, few sociologists of law actually make such assumptions. At this time of
export and import of legal institutions and ideas it would be implausible indeed to
see cultures as closed and self-referential. Friedman, on the contrary, argues that law
is necessarily converging, and has written about the development of global culture
(Friedman, 1994), again, if anything, underestimating the continuing importance
of national boundaries, or the persistence of alternative ways of dealing with poten-
tially law related troubles (see, eg Engel, 2005). But it is a fair criticism of Friedman’s
approach to legal culture to say that it does not seem to have been influenced by
the ‘interpretive turn’ in the social sciences. He seems unconcerned as Glenn puts it,
that ‘culture may be an effect of our descriptions, not its precondition’. The need to
treat attempts to interpret culture as part of the object itself is certainly one key way
in which notions of culture have changed since Friedman borrowed his term from
discussions of political culture.
Those who think that there is no way of avoiding the pit-falls if we talk of cul-
ture, suggest that it would be better to use other terms than legal culture to do the
same job. There is no shortage of such alternatives: these include living law, the
law in action; epistemes, mentalities, and formants; legal traditions, legal ideology,
legal fields, legal or regulatory styles, and even path dependency. Insofar as the
underlying issue is what (if anything) holds a legal and social system together, a
challenge to the whole ‘law and society’ paradigm comes from Niklas Luhmann’s
autopoiesis theory (see, eg Teubner, 1998; and Nelken, 2001). Those who prefer
other terms will point to their virtues as compared to legal culture (and say less
about their own drawbacks). Patrick Glenn, himself an advocate of the term legal
tradition, argues that it is more natural to speak of non-traditional behaviour and
innovation than to make the same point when using the term culture. Talking
about traditions, he adds, suggests overlap rather than closure because within a
given tradition there is always a range of creative possibilities. The very existence
of a tradition is necessarily a result of persuasive argument and interpretation. For
Glenn, because tradition is a matter of ‘information’ it is hard to reify it as some-
thing ‘beyond us’. He also suggests that all societies have a notion of tradition,
but not all use the term culture. As against this, however, others might argue that
tradition can also be a confusing term, and it has often been said to be one that
tends too easily to distract attention from questions of power and interest.
116 David Nelken
The choice between terms will also be influenced by wider theoretical assump-
tions about the role of law in society. Roger Cotterrell, who favours legal ideology,
claims that such a term offers us a focus on the ideas of legal professionals and
jurists and their influence over popular consciousness. One of the main questions
that interests him is how law succeeds in being at the same time both fragmented
and abstract; how it pretends to be a gapless system while filling in the gaps. For
Cotterrell this provides us with a well-defined topic suitable for empirical investi-
gation. But of course it is only one such topic. As opposed to Friedman’s interest
in the permeability of law to social demands, the concept of ideology draws our
attention to the way rules and values of law resist modification and thrive on their
inconsistencies. As this suggests, there is no easy way to choose a priori which
concept to employ. What is important is to be clear what we mean by whatever
term we adopt, and why we think that it, rather than an alternative concept, could
best serve the purpose of our particular enquiry (rather than fall into the error of
thinking that ‘when you have a hammer, everything is a nail’). Those preferring
the terms ‘legal tradition’ and ‘legal ideology’ might find, for example, that these
were not necessarily well suited to explaining why countries differ in their levels
of court delay (Nelken, 2004; and Nelken, 2006a). Or, more exactly, they would
need to think about what aspects of the problem their terms might be less likely
to illuminate as compared to a more open-ended focus on legal culture.
IV. USING THE CONCEPT OF LEGAL CULTURE
As this suggests, the value of this or any other concept for comparative enquiry
can also be clarified by seeking to use it in empirical enquiries. As social scientists
say, this requires that the concept be ‘operationalised’. The difficulties here are well
posed in Roger Cotterrell’s influential, highly critical, observations on Friedman’s
use of the term.4 As he notes, Friedman used legal culture in a variety of ways
raging from the culture of the individual to that of whole societies. In his work
legal culture becomes, ‘an immense, multi-textured overlay of levels and regions
of culture, varying in content, scope, and influence and in their relation to the
institutions, practices and knowledge of state legal systems’ (Cotterrell, 1997). For
Cotterrell this makes it implausible to use legal culture in explanatory enquiries.
In theory, he says, such a variety of level of super- and sub-national units could
provide a rich terrain for inquiry. But he nonetheless rejects the idea that legal
culture can be reflected in ‘diversity and levels’ whilst also having a ‘unity’. For
him,
if legal culture refers to so many levels and regions of culture (with the scope of each
of these ultimately indeterminate because of the indeterminacy of the scope of the idea
of legal culture itself) the problem of specifying how to use the concept as a theoretical
component in comparative sociology for law remains (Cotterrell, 1997).
4 Cotterrell, 1997. Friedman’s reply to Cotterrell is Friedman, 1997. Cotterrell, 2006 is less damning.
Other commentators have also questioned its role in explanation (Kenny, 1996).
These objections are well taken. What needs more consideration, however, is how
far, as I would argue, these problems point more to the complexities of what needs
to be explained than to the inapproriateness of this conceptual tool.
Demarcating the Unit
Take first the theoretical problem of trying to delineate ‘the unit’ of legal culture.5
Most books and articles on legal culture identify this with the boundaries of
national jurisdictions. They write of French criminal justice (Hodgson, 2006),
the Japanese way of justice (Johnson, 2002), and (for two editions) Dutch legal
culture etc.6 Likewise, leading scholars currently debate the specificity or even the
‘exceptionalism’ of the United States’ type of legal procedure (see, eg Garapon and
Papadopoulos, 2003) by showing its high level of ‘adversarial legalism’ (Kagan,
2001) or severity of its punishments (Whitman 2003). But books about legal
culture do not have to take the same starting point as those which describe a
system’s ‘law in the books’. In comparative law, studies using the notion of families
of law make uneasy compromises between taking for granted the importance of
differences between systems of common and civil law, or other such contrasts, and
also seeking to acknowledge national variations. Thus The Netherlands and Italy
are both members of the civil law world. But any similarities this may give rise to
in legal culture are dwarfed by the greater similarities between England and Wales
and The Netherlands in their pragmatic approach to law or openness to public
opinion. Legal culture is also not necessarily uniform (organisationally and mean-
ingfully) across different branches of law (see Bell, 2002). Lawyers specialising in
some subjects may have less in common with other lawyers outside their field
than they have with those abroad.
Patterns of legal culture can and must also be sought both at a more micro- as
well as at a more macro-level than the nation state. At the sub-national level there
can be as much variation as between different areas of a nation state (and groups
within it) as there is between one state and another, and this is all the more likely
when we study less industrialised and/or less consolidated states. More than this,
at this level it will often be of interest to study differences in the ‘local legal culture’
of the local court, the prosecutor’s office, or the lawyer’s consulting room. As
important, there is also increasing need to consider those processes that transcend
the nation state. The past regular transfers of legal institutions and ideas make it
often misleading to argue that legal culture is embedded in its current national
context (Nelken, 2006b; Nelken, 2006c). Much domestic law in Europe in the 19th
5 The term ‘unit’ is not intended to carry any specific theoretical implications. It should not be
limited to legally-defined jurisdictions or branches of law. It would be interesting, for example, to

theorise such units as ‘structures of relation’ or ‘fields of action’. This also has implications for the issue
of coherence discussed in the next part.
6 This is also true of most of the chapters in this Handbook.
118 David Nelken
century, such as the law of copyright, was mainly invented as a response to its
existence elsewhere (Sherman, 1997). Some of the laws and legal institutions that
people think of as most typically their own are the result of imitation, imposition
or borrowing. Thus there are ‘Dutch’ disputing mechanisms which are in fact a
result of German imposition during the occupation, and which have been aban-
doned in Germany itself (Jettinghof, 2001).
The adoption of dissimilar legal models is common where the legal transfer
is imposed by third parties as part of a colonial project and/or is insisted on as a
condition of trade, aid, alliance or diplomatic recognition. It has also often been
sponsored by elites concerned to ‘modernise’ their society or otherwise bring
it into the wider family of ‘advanced’ nations. Japan and Turkey are the most
obvious examples. In these cases imported or imposed law is designed to change
existing contexts rather than reflect them.7 Likewise, the hope in many cases of
current transplants is that law may be a means of resolving current problems by
transforming the existing society into one more like the source of such borrowed
law. In what is almost a species of sympathetic magic, borrowed law is sometimes
deemed capable of bringing about the same conditions of a flourishing economy
or a healthy civil society that are found in the social context from which the bor-
rowed law has been taken. In Eastern Europe legal transfer becomes part of the
effort to become (or to be seen to be) more democratic, or more economically
successful. Turkey, with its eye on accession to the European Union, tries to make
its laws appear (even) more secular. Those who study these transfers, on the
other hand, question their potential for producing change in the absence of the
surrounding context from which they were taken, and emphasise how far such
innovations are likely to be (re)shaped by the prevailing norms and ideas in the
places will be applied and interpreted.8
Current developments leading to the increasing globalisation of markets and
communications mean that the role of super-national entities, organisations and
networks goes well beyond cases of simple legal transfers (Heyderbrand, 2001).
The boundaries of the nation state as a unit are regularly traversed as transna-
tional public and semi-public networks substitute, to an increasing extent, for
national governments in building a ‘real new world order’ (Slaughter, 1997). The
language of transplants is not well suited to studying new forms of norm-making,
dispute-channelling and regulation such as the growth of the lex mercatoria, the
use of ‘soft law’ or other non-binding agreements and persuasive practices by
international regulators, nor the use of their power to enforce private orders by
7 Thus, South Africa modeled its new constitution on the best that Western regimes had to offer
rather than on constitutional arrangements found in its nearer neighbours in Africa.

8 Nelken, 2003. Commenting on the introduction of United States-style business governance in
Japan, John Ohnesorge argues that,

the proper functioning of that institutional framework depends upon what are, in essence,
cultural norms, expectations and practices. Truly adopting US-style corporate governance thus
becomes a matter of importing US business and professional culture more generally (Ohnesorge,
2006).
multinational companies. The use of lex mercatoria, for example, is said to ‘break
the frame’ of national jurisdiction. The multiple orders that grow up produce what
Santos calls ‘interlegality’, a term that describes ‘a highly dynamic process’ where
different legal spaces are ‘nonsychronic’ and result in ‘uneven and unstable com-
binations of legal codes (codes in a semiotic sense)’ (Santos, 1995: 473).
Lawyers and accountants also play an increasing role as entrepreneurs of new
forms of dispute prevention and settlement (Dezalay and Garth, 1996), mainly,
if not entirely, so as to service the increasingly important international busi-
ness community. In turn, the opportunities for such activity transform the legal
profession(s). The importance of private actors has also altered as a result of the
growth of multinational and international production networks, new technol-
ogy, and changes in work patterns. Rule-formulation and settlement increasingly
takes place within new agencies of transnational governance, such as North
Atlantic Trade Association (NAFTA), the Organization of Economic Cooperation
and Development (OECD), and the World Trade Organisation. Legal fields are
increasingly internationalised, even if this process does not affect all fields to the
same extent and varies by different areas of legal and social regulation. All this
means that it makes less and less sense to think of ‘domestic’ norms as forming
part of distinct national jurisdictions that then interact with transnational norms.
As important, for those seeking to mark the limits of culture, it becomes ever
more difficult to set boundaries to our imaginations and expectations: ‘we inhabit’
it is argued, a ‘de-territorialised world’. We can participate via the media in com-
munities of others with whom we have no geographical proximity or common
history. Hence,
all totalising accounts of society, tradition and culture are exclusionary and enact
a social violence by suppressing contingent and continually emergent differences
(Coombe, 2000: 21–40).
Instead, we must face the ‘challenges of transnationalism and the politics of global
capitalism or multiple overlapping and conflicting “juridiscapes”’ (ibid). At the
same time, however, even networks are themselves shaped by different contexts.
As Merry suggests, to keep track of these transnational flows we need to find ways
to study ‘placeless phenomena in a place’ (Merry, 2005: 44).
In advance of empirical investigation it would therefore be rash to assume
any necessary ‘fit’ between law and its environing national society or culture. But
claims about the decline of the nation state can no doubt be taken too far. Given
the way it often sets boundaries of jurisdiction, politics, and language, the nation
state will often serve as a relevant starting point for comparing legal culture. Where
law is deliberately used as a unifying state-building device, practices focusing on
law may have even more in common than general culture does. The state will also
often be the main or only source of relevant statistics of such matters as litigation
or incarceration rates. Beyond law, there is some empirical basis for claimed dif-
ferences in national traits in the way people relate to each other (Hofstedte, 1980).
Such different, historically conditioned (but therefore also changing) sensibilities
120 David Nelken
may persist over quite long periods.9 And even apparently unconnected branches
of law may in fact manifest remarkable levels of cultural similarity within a given
society. As James Whitman has claimed recently, in replying to criticisms of his
culturalist approach to penal law,
the pattern that we see in comparative punishment is also the pattern we see in many
other areas of the law. Indeed, I would claim it as a virtue of my book that it shows that
punishment law cannot be understood in isolation from the rest of the legal culture.
For example, American workplace harassment law differs from German and French
workplace harassment law in very much the same way. The same is true of comparative
privacy law … just as it is true of the law of hate speech and everyday civility … I think
these studies carry cumulative weight (Whitman, 2006: 389 at 392).
THE NATURE OF COHERENCE
On the other hand, it would certainly be wrong to limit our enquiry to the nation
state. As we have seen, we also need to apply the term ‘legal culture’ to a variety
of different units, each of which is changing and in a relationship of mutual
interaction with the others. These units shape social life in a variety of ways, for
example through organisational routines and professional socialisation (at both
sub-national, national, international and transnational levels). Culture is sedi-
mented both in historical memories and traditions as well as in more general,
relatively taken-for-granted, types of practices, attitudes, expectations and ways
of thinking. Cotterrell is right to remind us that these units may not add up to
a ‘unity’—except from the point of view of those whose job it is to try to show
them to be coherent. But, rather than serving to show the concept to be otiose,
this may be taken to testify to the intricacies of lived legal culture with its mix of
overlapping and potentially competing elements (a complexity also encountered
by those comparative lawyers who focus on societies with plural legal orders).
How do we show that these units serve as the source of cultural patterns of
ideas and behaviour? What is involved may be captured in any one or more of the
following claims:
(1) that there is some intrinsic link between the elements that make up the
unit;
(2) that the connection exists insofar as participants talk about it ‘as if ’ it
exists; or
(3) that the supposed coherence is one imposed on units by the observer
and commentator, for example through processes of classifications or the
construction of ‘ideal types’.
For many purposes these three forms of coherence may need to be carefully
distinguished. Certainly, all students of culture know how important it is to take
9 But careful historical research is needed to avoid confusing short-term and long-term trends.
seriously what participants think they are trying to do—since this is what gives
meaning and purpose to their actions. But this has to be balanced against the need
for analytic distance. Often, claims about legal culture will need to rely on data
or findings about comparative patterns that may be unknown to the participants
themselves. The insider does not know, and cannot know everything that the
observer would consider relevant to her comparative enquiry.
For example, even well-informed people living in India think that the courts
are slow because the country has such a relatively high rate of litigation. But they
are wrong (Galanter and Krishnan, 2003). Americans, as well as many others,
are convinced that US tort system regularly produces excessive and undeserved
awards, but it turns out that, in large part, this impression is manufactured by
the media (Haltom and McCaan, 2004). More generally, those societies where
legal professionals express least concern for what Anglo-American writers since
Roscoe Pound have called the ‘gap’ or gulf between the ‘law in books’ and ‘law in
action’, may not be those where the gap is least problematic but those where the
gap is overwhelming.
On the other hand, there are also difficulties in drawing boundaries when dis-
cussing processes which seek to draw boundaries. How far are we finding, how
far only imposing, cultural coherence? Certainly, these three types of coherence
may also have effects on each other, when participants, including legal actors or
observers, make claims about the existence of cultural patterns which then help
bring them into existence. The coherence of any given pattern of legal culture may
be something ascribed to the unit itself or else be something that relates more to
the relationship of one unit to other units. Table 1 offers some illustrations of such
variations of coherence patterns that could be relevant for comparative enquiry.
The first type of coherence (set out in cell 1) concerns the elements that are
hypothesised to hold together units of internal or external legal culture. The
most common kind of claim here has to do with the alleged coherence of a given
internal legal culture or part of it. An example would be Damaska’s well-known
attempt to show the contrasting ‘affinities’ between the rules of criminal procedure
in common law as compared to civil law countries (Damaska, 1986). With respect
to external legal culture, on the other hand, we could note Friedman’s invitation
to think about the shape of expectations towards law held by different groups,
Table 1. Varieties of coherence in units of legal culture

Internal Coherence External Coherence
(1) That which holds together given units (3) The relationship between legal culture
of internal or external legal culture and general culture
(2) Legal culture in relation to political (4) Given units of legal cultures as
culture/economic culture, etc in the compared to others
same unit
122 David Nelken
in different times and places. But we could also include Cotterrell’s proposal
that we presuppose ‘ideal types’ of community which have different propensities
to structure their relationships in terms of law (Cotterrell, 2001). The second
kind of internal coherence (cell 2), on the other hand, invites attention to vari-
ability in the connections between legal culture and other aspects of culture such
as political culture or economic culture (Brants and Field, 2000). As we have
already seen in Damaska’s argument, many commentators have suggested that
in civil law, ‘strong state’ systems, law tends to be more linked to politics, whilst
in common law systems it is more linked to the market. For this reason the
privatisation encouraged by neo-liberalism and the de-coupling of law from
politics associated with globalisation has been more of a ‘shock’ for the
civilian world.
The third type of coherence (cell (3)) concerns the relationship between, on the
one hand, legal ideas and, on the other, practices and ideas in the wider society.
For example, it can be instructive to examine what there is in common between
what are considered appropriate methods of truth-finding within and ‘outside’
of legal institutions (Chase, 2005). Are the same methods of persuasion found in
law and other forms of enquiry? ‘Legal’ and ‘scientific’ forms of truth telling may
be symbiotic because they use somewhat different approaches to truth finding.
It is often assumed that the direction of influence is mainly from culture in gen-
eral to legal culture in particular. But those who argue for so-called constitutive
theories of ‘law in society’ would see things also working the other way round.
It is law, or at least different forms of ordering practices, which help shape com-
mon behaviours and ideas (Calavita, 2001). Societies may also differ in the extent
to which they encourage similarities in legal and wider cultural practices. An
insistence on ‘formalism’ in legal matters may often go together with the presup-
position that there is or should be less formalism in the ‘life world’ of ordinary
social interaction.
The last type of coherence (cell (4)) refers to the traditional type of legal or
socio-legal attempt to compare larger legal cultures as relatively independent
units (often national ones). Scholars adopt a variety of ways to carry out such
comparisons. Emphasis may be placed more on behaviour or on values. Freek
Bruinsma, for example, as we have seen, is no longer happy to assume the
existence of Dutch legal culture as an objective matter that reflects differences
in practices shaped by institutional ‘infrastructures’. He now argues that the
specificities of legal culture lie in social valuations; Dutch legal culture, as com-
pared to other legal cultures, is best understood if we consider the typically prag-
matic way the Dutch handle issues such as drugs, prostitution and euthanasia
(Bruinsma, 1998). As we have noted, we do not necessarily have to assume that
the links we are describing are somehow intrinsic to the object being described.
If the focus is on ‘perceived’ or even ‘invented’ and ‘imagined’ unities, research
may then seek to show how such perceived or imagined differences themselves
help to reproduce the boundaries of culture.
The Problem of Circular Argument
Even if we try to be clear about the unit that we wish to explore, and take care to
specify the coherence that gives it its unity, we still have to face a further major
hurdle in using the term legal culture for the purposes of explanation. As Roger
Cotterrell and many others have objected, we need to avoid falling into the trap
of ‘essentialism’ or ‘culturalism’, whereby circular arguments are simply assumed
to show that cultural values cause a given response to events. Question: Why do
they use law that way in Japan? Answer: Because that is their (legal) culture. Or, to
put the point another way, when we talk about American or Japanese legal culture
are we already offering some sort of explanation of behaviour or only indicating
that which needs to be explained? Is legal culture the name of the question or the
answer?
While this issue is a serious one, it should not be exaggerated. It is above all
mainly relevant for those with an interest in prediction who hope to develop
(positivist) social science explanations showing how variables produce outcomes.
What legal factors correlate with economic growth? Which conditions are likely
to determine whether this transplant takes or not? But not all scholars want to
use the term for this purpose. Many comparative lawyers will be at least as inter-
ested in classification, mapping and description. How should we make sense of
legal pluralism (Harding, 2001)? How should the phenomenon of ‘soft law’ be
categorised (Heyderbrand, 2007)? What is there in common between current
transnational legal processes (Nelken, 2006d)? More importantly, a central part
of their work has to do with the type of understanding that can only be reached
through interpretation (see eg Legrand, 1997). What does this legal institution,
procedure or idea mean? What, if anything, is it trying to achieve? It could even
be argued that by formulating their questions in this way scholars are more likely
to be in tune with the many post-positivist schools of social science and cultural
theorising that have endorsed the so-called ‘interpretative turn’ away from earlier
mainstream ways of pursuing behavioural science.
Whereas the positivist approach would seek to throw light on legal culture by
seeking to assign causal priority between competing hypothetical variables, so as
to explain variation in levels and types of legally related behaviour, the interpreta-
tive approach, on the other hand, would be more interested in providing ‘thick
descriptions’ (Geertz, 1973) of law as ‘local knowledge’ (Geertz, 1983). It would
see its task as doing its best faithfully to translate another system’s ideas of justice
and fairness so as to make proper sense of its web of significance. It asks about the
different nuances as between the terms ‘rule of law’, ‘Rechtsstaat’, or ‘Stato di diritto’
or the meanings of ‘community’ in different societies (Zedner, 1995). It seeks to
understand why litigation is seen as essentially democratic in the United States,
but as anti-democratic in France (Cohen-Tanugi, 1996/1985). In this search for
holistic meaning, any insistence, for example, on distinguishing the ‘demand’ for
law from the ‘supply’ of law, is likely to obscure more than it reveals and could lead
to mistaken practical conclusions (Nelken, 1997). Arguably, if there are differences
124 David Nelken
in the significance attached to official law and legal institutions in Germany and in
The Netherlands, then even if Germany had the same alternative routes to litiga-
tion that are present in The Netherlands they could well end up producing even
more work for lawyers and courts.
For the interpretative approach, concepts both reflect and constitute culture;
as in the changes undergone by the meaning of ‘contract’ in a society where the
individual is seen as necessarily embodied in wider relationships (Winn, 1994), or
the way that the Japanese ideogram for the new concept of ‘rights’ came to settle
on a sign associated with ‘self interest’ rather than morality (Feldman, 1997). In
order to test its hypotheses the positivist approach is obliged to develop a socio-
legal ‘Esperanto’ which abstracts from the language used by members of different
cultures, preferring, for example, to talk of ‘decision-making’ rather than ‘discre-
tion’. The rival strategy, concerned precisely with grasping linguistic subtleties and
‘cultural packaging’, would ask whether and when the term ‘discretion’ is used in
different legal cultures and what implications the word carries (Nelken, 2002).
Not least, the interpretative approach is quick to recognise the reflexivity of (legal)
culture as ‘an enormous interplay of interpretations in and about a culture’ (J
Friedman, 1994), and thus appreciate that the scholar may also be a (bit) player
in the processes of legal culture that she seeks to understand.
This said, rather than treating these approaches as necessarily in competition,
explanation and interpretation will often be pursued as two complementary
parts of the search for understanding culture (Nelken, 1994). Many, probably
most, social scientists do still use terms like legal culture with explanatory intent.
Friedman himself recommends the term as helpful in enquiries into why people
use or do not use law, for instance why women do or do not turn for help to the
police in Italy or France, or why Italian drivers are less likely than the English
to wear seat belts. So, any effort to encourage a dialogue between comparative
lawyers and social scientists must face the issue of circular argument head on.
As Roger Cotterrell rightly noted, special difficulties here arise from the fact that
Friedman applied the term not only to such variables but also to the units pro-
duced by such variables. While he treats legal culture as a cause of what he calls
‘legal dynamics’, he also uses it to describe the results of such causes—writing,
for example, about the traits of a variety of large aggregates such as ‘American
culture’, ‘Latin American legal culture’ (Friedman and Perdomo, 2003), ‘modern
legal culture’, and even ‘global legal culture’. Although what he means by legal
culture when speaking of these aggregates does have a lot to do with people’s
expectations of the law, the ‘traits’ he indicates as characterising modern legal
culture are not only about such expectations; they also describe the results of
such expectations.
To avoid confusion it would be best to distinguish between talking about
legal culture as a variable having to do with attitudes, opinions and behav-
iour towards the law, and speaking about it as an aggregate (what Glenn calls
‘a holistic signifier’). For added clarity, legal culture as a variable describing
attitudes etc towards law could perhaps be re-labelled ‘legal consciousness’, as
in Table 2 below. Nonetheless, it would be a fallacy to assume that variables

always explain, or that aggregates never do. The difference between legal cul-
ture as a variable and as an aggregate can often be slippery. We tend to think of
aggregates as large, often national, units of legal culture, but all variables
could also be seen for some purposes as aggregates. For example, attitudes to
law, which Friedman treats mainly as a variable, could, where appropriate, be
dis-aggregated into the different elements that make them up. This is even true
at the level of the individual, where a person’s ‘attitude’ could be taken to repre-
sent the sum of opinions tested in a survey instrument. Conversely, aggregates
can also ‘explain’. Even large aggregates, such as American legal culture, become
variables when they act on or influence something else. Thus, as Table 2 below
indicates, legal culture as variable and as aggregate serves both in making
explanations, and a means of representing matters which themselves need to be
explained. The key here is to recognise that the term legal culture may be used
in a variety of different kinds of explanations.
As indicated by Table 2, Friedman’s interest in legal culture as the term for why
people turn to law can be examined as a topic that can serve both as an explana-
tion and as something that needs to be explained (cells (1) and (2)). Friedman’s
approach tended to merge the question of understanding people’s demands on
and expectations of the law with a range of somewhat different questions such
as how law changed to meet the new needs created by technological change, or
how powerful groups were able to bring pressure on law to shape it to suit their
ends. But micro-social qualitative studies in sociology of law in the United States
over the past 20 years have been especially concerned to probe the role of legal-
ity for different social actors as it emerges from their narratives about their lived
experiences. They have tried not to assume that law is or should be a priority in
everyday life and have sought to tease out its often contradictory role in people’s
lives. Quantitative survey research has also shown that people distinguish between
confidence in the technical efficiency of legal remedies and their views about its
social legitimacy (Toharia, 2003). More recently there have been calls to recon-
sider the way macro-social factors shape the way law is presented to consciousness
(Silbey, 2005; Garcia-Villegas, 2006).
Table 2. Explanations using the concept of legal culture

Legal Consciousness Legal Culture
As Explanation (1) Feelings about the law (3) The influence exerted
and the choice to use law by given patterns of atti-
as one factor which shapes tudes etc.
the legal system
As Needing Explanation (2) Why people choose to (4) Why given units of
use or not to use the law legal culture have different
patterns
126 David Nelken
The other two cells (3) and (4) have to do with legal culture seen holistically as
both a tool of explanation and as something to be explained. Difficult theoreti-
cal issues that arise in using legal culture for these types of explanatory enquiry
revolve around the question of how to mark off ‘the cultural’ from other types
of motivation or aspects of collective life. Is culture something to be related to
and contrasted with other aspects of society, for example, legal rules, institu-
tional resources or social structure? Or does its influence work through these?
Should the term culture be reserved for irrational, or at least value-based action,
rather than purely instrumental social action? If not, how else can we draw a line
between culturally shaped behaviour and all other behaviour? In general, how far
should (legal) culture be treated as a residual explanation of individual or collec-
tive action, to be resorted to only after other social, economic or political factors
or reasons have been exhausted?
It is important to notice that cell (3), where the effort is to show how legal
culture influences individual or group behaviour within a given society or unit,
is the one in which the dangers of circular or tautological arguments are greatest.
But there are plausible arguments for asserting such influence. These can range
along a continuum in which, at one extreme, the term describes the consequences
of giving allegiance to highly dramatised common values, and, at the other, cul-
ture refers to the implications of taking certain things for granted. Of especial
interest in the current historical period is the phenomenon of what we might
call ‘relational legal culture’, ie the extent to which attitudes and behaviour in
one legal culture are influenced by information (or alleged information) about
what is happening in legal cultures elsewhere. For example, there is evidence that
when ‘league tables’ of legally-relevant behaviour such as incarceration rates are
published, countries try to come into line so as not to be too distant from the
norm or average of other countries. In a multitude of transnational economic,
health, criminal justice, human rights and other initiatives, governmental and
non-governmental agencies, networks of regulators and others exert pressure
to change through processes of signalling and monitoring conformity (Nelken,
2006d). One of the most pressing tasks of the comparative sociologist of law is
to try and capture how far in actual practice what is described as globalisation
represents the attempted imposition of one particular legal culture, in particular
the Anglo-American model (Ferrarese, 2001). For Friedman, we are rather seeing
a convergence towards the individualistic type of legal culture suited to the socio-
economic challenges of ‘modernity’ (Friedman, 1994).
Where legal culture is that which needs to be explained rather than that which
does the explaining (cell (4)) the risk of circular argument is less (but we still
may find ourselves tempted to use one feature of legal culture to ‘explain’ another
feature). On the other hand, this sort of enquiry risks becoming unwieldy and
inconclusive. Almost everything about a society (or other unit) can turn out to
be relevant to explaining why its legal culture, or even just one aspect of it, differs
from another’s. Why does Italy, for example, have such long court delays? The
answer involves looking at a long list of factors. In the first place there are the
relevant laws, especially those to do with civil and criminal procedure. In addition,
the role of the European Court of Human Rights is crucial in creating pressure
for the Italian legal system to come into line. There is also the management and
organisation (or lack of organisation) of the courts and legal profession, claims
about the supply of law not keeping pace with the demand, economic interests,
political priorities etc (Nelken, 2004). It can prove surprisingly difficult to decide
which of these factors is crucial (especially as the relevant facts can be elusive). For
example, comparative statistics suggest that Italy, too, has a comparatively low rate
of litigation despite the continual complaint about court overload (Blankenburg,
2003). Interpretations of these facts can be even more controversial. Do economic
interests such as those represented by small businessmen gain from the current
situation, or are they its chief victims? If the latter, why don’t they put more pres-
sure on the politicians to do something?
V. CONCLUSION: THE NEED FOR REFLEXIVITY
In this chapter we have discussed some the meanings of legal culture as well as
some of the benefits and problems of using this term in enquiries in comparative
law. It should now be easier to appreciate why simply reframing questions about
legal transfers or legal engineering in terms of the compatibility or potential
resistance of local legal culture will rarely, if ever, provide conclusive answers
about what should be done. (But arguably this is also true of any other attempt
to apply ideas in the world of practice.) We could add that legal culture as a term
of art has not been developed mainly by comparative lawyers. Insofar as its roots
lie in the social sciences, the comparative lawyer will have to ask herself how far,
in using this term, she ‘buys into’ any larger set of theoretical ideas about law
and society and related methodological protocols. Friedman uses the concept in
the context of an input-output model of social systems and a pluralist view of
power. But the sense of legal culture would certainly change if marshalled within
competing approaches such as those of Marx, Foucault, Bourdieu—or Luhmann.
In addition, our understanding of the meaning of legal culture will need to change
as scholarly ideas of culture change.
The main advantage of thinking about law in the same breath as culture is that
it alerts us to cultural variation in how law is thought about and its ascribed and
actual role in social life. For example, amidst all the effort to reform the efficiency
of legal institutions in developing countries, few have stopped to consider that in
many societies (and in all societies in at least some contexts) official law is mainly
experienced as a source of unpredictability that threatens to disrupt everyday nor-
mative patterns and agreements. But we also need to learn about our own cultural
common-sense. If Friedman thinks that external legal culture is what really gives
law its shape, whereas civil law scholars tend to assume that its dynamics must be
located more in internal legal culture, this may be in part at least a reflection of
differences in expectations about legal culture in the common law and civil law
128 David Nelken
world. Likewise, for those coming from the Anglo-American world it is too easy
to take for granted a ‘pragmatic-instrumentalist approach’ to law; the idea that
law is designed to achieve something (which means we struggle to make sense of
the many ritual and expressive aspects of legal institutions and procedures even
in our own society). When we find that foreign institutions do not perform as we
expect them to we may be too quick to describe their claims as myths (Goldstein
and Marcus, 1977)—rather than recognising that in some respects nothing can
be as important as a myth (Langbein and Weinreb, 1978; and Nelken, 2002). The
possibility that we are working with an ethno-centric idea of legal culture is all the
more likely as we range more widely in the world’s cultures (Chiba, 1989).
1. How would you define the term ‘legal culture’? How does your definition
relate to competing terms such as ‘legal tradition’ and ‘legal ideology?’
How would you decide which was the appropriate term to use?
2. Can legal culture be used as an explanatory concept? How?
3. Does it still make sense to talk of national legal cultures at a time of
increasing transnational legal processes?
4. Imagine that you have been asked to act as a consultant for a World Bank
project designed to make courts in a third world country more accessible
and efficient for local and international users. What type of local and
international social, economic and political factors would be relevant to
your consultancy? How, if at all, could the effort to understand the local
legal culture be useful?
5. Consider the following two claims:
(1) The concept of legal culture is an essential tool for the comparative
lawyer in making sense of current transnational legal processes.
(2) The concept of legal culture has too many meanings to be useful to
comparative lawyers.
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6
Is it so Bad to be Different? Comparative
Law and the Appreciation of Diversity
ROGER COTTERRELL*
KEY CONCEPTS
Similarity and difference between laws and legal systems as foci of com-
parative law; Harmonisation and unification of law as dominant concerns
of comparative lawyers; Analogies in comparative law with debates about
assimilation and multiculturalism; The importance of respect for the dis-
tinctiveness of legal cultures; European legal convergence, its cultural sup-
ports and its critics; Legrand’s ‘contrarian challenge’ to the mainstream of
comparative law; Cultural diversity and the new jurisprudence of difference;
Methods and problems of cultural comparison in comparative law; The
comparative study of fundamental legal values; Whitman on American ‘lib-
erty’ and European ‘dignity’; The challenge of cross-cultural observation and
understanding.
I. UNITY FROM LEGAL DIVERSITY
I
s it so bad to be different? Is it undesirable that laws apparently regulating
the same matters differ from one legal system to another, perhaps permit-
ting things in one system, while prohibiting them in another? Does it matter
that styles of legal thought, or traditions of legal practice, may vary greatly, so
that lawyers in one legal system have great difficulty understanding how lawyers
in another think and how legal decisions are made and justified? Legal sociolo-
gists have shown that there are also strikingly different popular ideas in different
countries about the purposes of law and what is to be expected from it (see eg
Nelken, 2003). At least since the time of the ancient Greeks, realistic commenta-
tors have seen legal diversity as inevitable. ‘The things which are just by virtue of
convention and expediency are like measures’, wrote Aristotle, ‘for wine and corn
measures are not everywhere equal, but larger in wholesale and smaller in retail
* I am grateful to David Nelken for comments on this chapter.

134 Roger Cotterrell
markets. Similarly, the things which are just not by nature but by human enact-
ment are not everywhere the same’ (Aristotle: 7).
Yet there have always been scholars who have sought more from law than is
represented by this diversity. Aristotle sensed that, alongside the differing laws of
different jurisdictions, there might be a natural justice that ‘everywhere has the
same force and does not exist by people thinking this or that’ (ibid). Later, over
the centuries, philosophers postulated the existence of a ‘natural law’, more funda-
mental than enacted law; a law given by ‘nature’—the natural order of the world,
or perhaps human nature—and thus superior to (and underpinning the authority
of) the contingent, man-made laws of different nations. They asked how far law
could really be worthy of respect if it had nothing universal about it.
What kind of knowledge is law if that knowledge is true (valid) in one town
but invalid in another, a few miles away across the border? Similarly, what kind
of moral force can law have if here it says one thing about right and wrong, and
there it says something else (perhaps the opposite)? Thus, epistemological argu-
ments favour a search for unifying foundations of law (ie arguments focused on
worries about law’s status as a philosophically secure form of knowledge), and
moral arguments operate too (suggesting that if law is to have moral worth it must
depend on more than the contingencies of where political borders lie). Equally,
political arguments have long encouraged some kind of universalist ambition for
law: maybe political misunderstandings between states could be reduced if agree-
ment on legal principles (perhaps governing the actions of states themselves)
could be achieved.
The search for unifying foundations of national laws in natural law was always
controversial insofar as it depended purely on philosophical speculation. As
modern comparative law emerged in the 19th century, when empirical scientific
methods were increasingly favoured as a foundation of knowledge, debates about
law’s universality took new forms, grounded in the study of specific legal sys-
tems. The philosophers’ aim of finding a natural law to inspire the improvement
of man-made law, justify its existence or provide its moral censor, was largely
superseded. Its place was taken by the comparatists’ aim of studying foreign
legal systems and improving law by harmonisation (creating rules to harmonise
relationships between legal systems) or unification (producing uniform rules
applicable across national boundaries in place of divergent national rules). Yet
comparative law, seeking ‘grand similarities’ behind national ‘differences in detail’
still held to the ambition to ‘deepen our belief in the existence of a unitary sense
of justice’ (Zweigert and Kötz, 1998: 3). One might say that the torch of legal
universality passed from philosophers to lawyers, and from theory to practice.
Instead of speculating on human nature as a basis for a universal, morally impera-
tive law, comparatists aimed at practical legal reform in fields where reconciling
differences between legal systems seemed a real possibility.
This agenda of harmonising or unifying law has dominated much of
comparative law since the beginning of the 20th century and given it a solid,
if multi-faceted legitimacy. Some comparatists seeking to reconcile differences
Is it so Bad to be Different? 135
between legal systems might see themselves as connected to generations of phi-

losophers pursuing the ideals of natural law.1 They might also think of themselves
as linked with the pioneers (often themselves influenced by natural law thinking)
of an international law to promote peace between nations.2 But, above all, they
could see themselves as facilitating everyday legal communication—especially
on economic matters3—between advanced nations of the modern world. An
important means of doing so could be by harmonising private (especially con-
tract and commercial) law between continental European civil law systems,4 and
perhaps later (as today in the European Union) between civil law and common
law approaches. This harmonisation work would simplify legal transactions and
reduce cost, delay and legal uncertainty in commerce.
But it might be asked whether old aspirations (for example, of the natural law-
yers) to understand the deepest roots of law in the human condition have been
lost as modern comparatists have become diligent selectors or drafters of uniform
laws. Comparative lawyers realised that it was important to study the diversity of
laws and not just assume some ultimate unifying authority for them in ‘nature’.
But did comparatists fail to take the roots of that diversity sufficiently seriously?
Powerful attacks on natural law thinking in the 18th and 19th centuries came
from scholars who argued that law must be studied in relation to the cultures
in which it develops (Stein, 1980). Natural law thinking failed to appreciate that
law is rooted less in a universal human condition than in the specific conditions
of different cultures. Hence differences between laws and legal systems may not
be just matters of contingency; they may express profound characteristics of the
cultures that produce them. This cultural awareness failed, however, to become a
dominant influence in comparative law.
Some writers see a main reason for this failure in the pervasive influence of
legal positivism (Legrand, 2005: 631 at 643; Legrand, 2003: 242, 277; and Ewald,
1995: 1889 at 1982–3). Treating law as ‘posited’—enacted or declared by human
law-makers in official processes—legal positivism marginalises law’s links to other
things not officially posited in this way. So, ultimate values (such as liberty, human
dignity or equality) are not in the foreground of positivist legal analysis. Nor
are matters of tradition (accumulated historical experience, custom, collective
memories) or emotional bases of law (such as elements of national sentiment or
patriotism). Analysis is of rules, rather than of the values they may imply, tradi-
tions they may embody, or sentiments that may surround them.
Legal positivism tends rather to view law as instrumental; a tool of government
(ie policy-driven law), or private interests (ie in the form of contracts, property
1 See Del Vecchio, 1969: 31–7, exploring philosophical bases of comparative law.
2 Compare Lepaulle, 1922: 838 at 857: ‘divergences in laws cause other divergences that generate …
misunderstandings and conflicts among nations which end with blood and desolation’.
3 Cf Édouard Lambert’s view that, ‘the essential mission of comparative law is one of economic
peacemaking, the realisation of an international economic entente’ (Jamin, 2002: 701 at 715).
4 Ibid: 701 at 716.
entitlements, etc). Law appears as a means of pursuing projects and regulating

deals—changing the world in big or small ways. And much contemporary com-
parative legal scholarship also sees law mainly in these terms. Legal positivism
may be a necessary part of Western lawyers’ professionalism, but it sees law as
little more than clusters of rules, to be juristically organised and refined to fit them
for their purpose. In comparative law, this refining is often a search for the most
appropriate precept from the rule-books of various legal systems.
Given the importance of a predominantly instrumental view of rules, it seems
unsurprising that positivist comparative law should define its own rationale in
instrumental terms, guided by the practical tasks that law is required to serve. In
fact, the idea of purpose or function has provided the primary modern basis for
legal comparison. The search for the most efficient rule to serve a given social or
economic function has been the primary technique for unifying law in compara-
tive legal studies. But is functional efficiency everything? And can functions be
identified without asking whether in different legal systems, local values, tradi-
tions or sentiments may differently colour the definition of those functions, the
importance attached to them and the tests of their successful fulfilment? In short,
can we talk about similarity and difference in laws and their functions without
talking about culture?
II. AN ANALOGY: ASSIMILATION AND MULTICULTURALISM
It might be helpful to put comparative law to one side for a moment and think
about everyday life. Is it so bad to be different, or to be thought to be different?
Sometimes, clearly yes: one might be misunderstood, patronised, discriminated
against or bullied. Practical definitions of similarity and difference are adopted
by majority populations or powerful groups. They are used to label others
(minorities, the less powerful) and to make assumptions about them that fit the
labellers’ preconceptions, rather than the experience of the labelled. If people are
singled out as different, life may be easier for them if they try to be less different
by assimilating to the dominant norm, trying to hide the things that make them
seem different. But this may be impossible. Even limited efforts may be counter-
productive in the assimilators’ lives, denying a part of who they are. In any case,
these deliberate changes may be inadequate—criteria of difference can always be
revised, the goal posts can be moved.
Anyway, why should anyone be required to attempt such a self-denying trans-
formation? Will communication be made easier by an attempt to become ‘the
same’? Those people who want to communicate will seek to do so across differ-
ence (and may see difference as enriching the experience). For effective communi-
cation there will need to be sincere efforts on both sides to translate the experience
of each in terms that the other can understand. There will also need to be a serious
wish on both sides to appreciate the other’s experience and viewpoints and there
will need to be mutual respect for the autonomy and dignity of others (both
those considered different and those seen as similar) as human beings. Where
these conditions are sustained over time, communication may become rich, with
perceptions of difference being part of the richness. But those not wishing to
communicate may use the impossible demand for assimilation (that the different
become the same) to control or silence minorities or to victimise the powerless.
An entirely reasonable stance (for those who feel strong enough, individually or
collectively) is to refuse demands or temptations to assimilate, even to the extent
that assimilation is possible. Instead, one might legitimately demand to be treated
with respect in one’s difference, as long as one is prepared to give equal respect
to the difference of others. Indeed, it might be suggested that the idea of differ-
ence could be replaced with that of individuality or distinctiveness. Why should
difference not be accepted and welcomed—re-interpreted in terms of facets of
individual experience or distinctive character? The claim might be that produc-
tive integration requires not assimilation, but mutual acceptance and mutual
learning about the other, in a framework of universal respect for human dignity
and autonomy.
How does this relate to comparative law? Is the process of unifying law between
different legal systems anything like a process of assimilation between different
people? Certainly, parallels can be drawn and they help to clarify what is at stake
in recent demands that comparative law should shift focus from seeking legal
similarity (via harmonisation or unification) towards appreciating the virtues
of legal diversity. Indeed, some comparatists have invoked ideas reminiscent of
those that feature in debates about multiculturalism and assimilation. They have
demanded respect in comparative legal studies for distinctive cultures, including
legal cultures, in a way that parallels demands for respect for individual or group
identity in the face of calls to assimilate to majority norms.
Some comparatists today, reflecting ideas of earlier jurists and historians
(Whitman, 2003a: 315–26), emphasise that law’s identity is inseparable from its
culture. They insist that a legal culture’s integrity and identity should be respected
against calls for legal harmonisation. Correspondingly, an ethnic minority group
might demand that its cultural integrity and collective identity, its special subjec-
tive experience, be respected against calls for ‘difference’ to be erased or reduced
(for example, calls for its distinctive traditions, norms or beliefs to be abandoned
where they differ significantly from those of the majority). The demand for
respect for difference—whether applied to legal cultures or minority popula-
tions—often appeals to arguments that cultural richness is lost by reducing diver-
sity, that imposing uniformity is morally illegitimate, and that homogenisation
(removal of difference) is impossible and attempting it will produce confusion,
disruption and disorder.
Perhaps most fundamental, in relation to all these debates, is the question of
relative power. The main problem for those who suffer from the way the labels
‘similar’ or ‘different’ are used is their lack of control over the use of these labels.
For example, how far two people, X and Y, resemble or differ from each other is a
matter of the perceptions of both X and Y, negotiated between them. But if X has
greater power than Y to define what counts as similarity or difference, to deter-

mine its significance and control its consequences, X may effectively decree how
and with what effects Y is treated as the same or different. This is what produces
the main resentments surrounding invocations, denials or criticisms of difference.
Y wishes to have equal control of the defining process—to be a subject asserting
difference or similarity, not merely a differentiated or assimilated object. The lan-
guage of similarity and difference should belong to both X and Y.
Is this a no less fundamental complaint with regard to the relations of legal
systems, or legal cultures? Some are far more powerful or influential than others;
they may define what is normal, optimal or most appropriate in law. When other,
less powerful legal systems or legal cultures are defined in their degrees of differ-
ence or similarity by the more powerful ones, the more powerful may ultimately
determine the fate (the independence and integrity) of the less powerful. To
defend one’s own right to assert difference, to demand that one’s own subjective
experience in one’s own (legal) culture be respected and valued, not removed or
subjected to assimilation (harmonisation or unification), becomes, in such cir-
cumstances, obviously a form of resistance to power. It is an effort to gain access
to the vocabulary of difference for one’s own purposes, rather than accepting the
definitions and purposes of the stronger party. In a legal context, what is meant
here is resistance to the imposition of legal ideas, styles or purposes by economi-
cally, militarily or politically stronger nations or groups of nations.
When matters are expressed in this way one can see a direct analogy between—
and sometimes a similar level of emotional investment in—the politics of
multiculturalism and the politics of difference (between legal cultures) in
comparative law.
III. LEGRAND AND EUROPEAN PRIVATE LAW
Emotional investment is clearly present in the writings of Pierre Legrand, the

most outspoken and passionate current advocate of the need to appreciate differ-
ence in comparative law. Legrand uses words like ‘repression’, ‘oppression’, ‘totali-
tarianism’ and ‘violence’ in talking about the orthodox practices and attitudes of
comparatists, as he sees them. Comparative lawyers, he says,
must purposely privilege the identification of differences across the laws they compare
lest they fail to address singularity with authenticity (Legrand, 2001: 1033 at 1049).
Insofar as they fail to do this (which is often),

comparative legal studies, because of the totalitarianism and the oppression inherent
to a strategy of sameness and assimilation, is a practice of violence (Legrand, 2005: 631
at 706).
Legrand’s attacks have focused mainly on the most sustained international har-
monisation enterprise in contemporary comparative law—the effort to develop
a common European private law. He sees this project as a reckless denial of
legitimate difference between the legal systems of Europe. Its most ambitious
aspect is the (tentative and controversial) idea of creating a European code of pri-
vate law (Legrand, 1997). Legrand has criticised, in the harshest terms, the kinds
of thinking that inspire work preparing the way for such a code. More broadly,
he claims that despite the long-term harmonisation efforts of comparatists in
international committees and permanent study groups, as well as the impetus
from European Union Directives in many legal fields, European legal systems are
not converging in either regulatory practice or juristic outlook (Legrand, 1996).
They remain separated by differences of legal culture—above all, in his view, by
profound cultural incompatibilities between English common law and continen-
tal European civil law.
For Legrand, the ‘ambition of a European concordantia is (and must be) a chi-
mera.’ (ibid: 52 at 81). Harmonisation of European private law is ‘impossible’ and
‘wishful thinking’ (Legrand, 2001: 1033 at 1037, 1039 and 1043) because civil law
and common law approaches in Europe are ‘irrevocably irreconcilable’, represent-
ing different mentalités—ie cultural outlooks or worldviews (Legrand, 2006: 13
at 30, 31). Their ways of reasoning with, practising and developing law, and their
attitudes to legal sources and professional traditions are fundamentally different.
A civil lawyer and a common lawyer cannot think like each other when it comes to
understanding the most profound assumptions of their respective legal traditions.
Of course (one assumes), they can learn much from each other but (Legrand
insists) they cannot substitute their most basic professional formations.
We might want to stop at this point and ask: If cultures can present this irrec-
oncilable difference when set against each other, what are their boundaries (how
are cultural similarity and difference determined)? and what are the specific
components of cultures that set up these formidable barriers to assimilation or
harmonisation? We might turn to the multiculturalism analogy again and note
that individuals can certainly cross cultures and can see themselves as inhabiting
several cultures. They can, in some circumstances, leave cultures and join new
ones, or move in and out of cultural environments. Indeed, they might find their
cultural identity a very complex, shifting, negotiable, even sometimes indetermi-
nate matter.
Thus, immediately, the issue of what culture is presents itself. Actually it is a
cluster of issues. What are the components of culture and how are they to be sepa-
rated and structured? What is the nature of cultural experience? How are cultures
to be identified by those who inhabit them as well as by those who observe them
as outsiders? These are hardly new questions and have been much discussed in,
for example, the literature of anthropology, where culture has long been a central
concept. In relation to law, one might ask: What cultural boundaries exist and
which really matter? For Legrand, a civil law/common law cultural boundary
is fundamental, legal cultural variations in the civil law world being apparently
much less problematic. While he offers few reasons for his view that this cultural
divide is crucial, rather than others, there is no doubt that in the formative period
of modern comparative law, many comparatists on the European continent saw
English common law as profoundly alien to the Romanist traditions that shaped
a significantly shared European civil law outlook.
Whether this legal cultural divide remains as significant as Legrand claims is,
however, much disputed. Ole Lando, drawing directly on his extensive experience
as a leading figure in the Commission on European Contract Law over more
than two decades, and in other harmonisation projects, sees shared values and a
‘common attitude’ among lawyers from different European countries (including
Britain) as the key to success in reaching agreement on uniform law.
Several factors have caused this common attitude. The similar economic and political
structure of the [EU] Member States is one. Another is their common cultural heritage.
All Europeans share the Christian ethic, and have been influenced by Roman law and
the great moralists. The milieu in which both judges and law professors are raised and
live is also a factor. Most of the guardians and preachers of our law and justice grew up
in well-to-do bourgeois homes with moral traditions. In Europe, the middle class has
been the guardian of ethics, and so have the parents of the judges and professors …
Thus, the legal values of the European brotherhood of lawyers are very similar (Lando,
1999: 20, at 21–22).
These views are hardly uncontroversial, but the idea of a European legal elite with
a common culture of its own that facilitates negotiation to achieve harmonisation
is a familiar one; very much a self-image of comparative lawyers seeking legal sim-
ilarity. ‘To a considerable degree,’ the influential comparatist Alan Watson claims,
‘the lawmakers of one society share the same legal culture with the lawmakers of
other societies’ (Watson, 1983: 1121 at 1157). Again, then, the question as regards
culture is: Which cultures count most? Is a common culture of transnational
juristic elites (if such a culture exists) the dominant one, even if it may differ from
cultural environments of everyday legal practice and popular legal experience in
different national systems?
Lando’s approach, like that of many comparatists, presupposes functionalism.
Recalling harmonisation discussions in which he participated, he notes that
the participants would consider how the courts of their own country had or would
have reacted to a case, and they often found that although the rules were different, the
courts had or would have reached the same results. The consensus was greater than one
would have expected when one compared the legal rules and techniques of the various
countries (Lando, 1999: 20).
Functional analysis emphasising common problems to be solved is seen as a route

to consensus, by-passing conceptual differences and differences of legal style.
Legrand, like other cultural comparatists, has attacked what he sees as the
poverty of functional analysis (Legrand, 2005), but European legal harmonisa-
tion is mainly driven by a desire to ensure that law serves agreed (largely eco-
nomic) functions in Europe as efficiently as possible. Something like Lando’s
assumptions about a shared legal professional culture (reinforced by a common
European culture: see, eg Wieacker, 1990) operate to fuel general optimism about
harmonisation. Thus, the divide between common law and civil law approaches
is often presented as no more than a minor bump in the road for the harmonisa-
tion steamroller to roll over. Nevertheless, Legrand is right to note that striking
misunderstandings still exist about the nature of common law among some
civil lawyers engaged in harmonisation. Even as sophisticated a German jurist as
Reinhard Zimmermann writes of ‘the casuistic nature of the English law, with its
bizarre traditionality, or with its peculiar interlocking of common law and equity’
(Zimmermann, 1996: 576 at 587), and others mistake common law’s careful
empiricism and pragmatism—with its deliberate distrust of theory and of large-
scale conceptualisation—for evidence of its primitive condition.
But why insist on the ‘impossibility’ of harmonising European law when this
harmonisation seems to be well under way? Legrand’s answer is that harmonis-
ing rules is very far from achieving a unification of legal understandings and
practices. The same rule interpreted in two different national legal cultures will
actually mean something different in each of them. So, legal harmonisation is
illusory. There might be standardisation of the letter of the rules but there will not
be harmonisation of their meaning as law.
Since the legal is also cultural, ‘uniformity’, in the sense of a commonality across laws,
is a promise that law is simply ontologically incapable of fulfilling (Legrand, 2001: 1033
at 1047).
In support, Legrand often cites Gunther Teubner’s well-known argument
(Teubner, 1998) that unpredictable consequences will follow from the introduc-
tion, as a consequence of a European Directive, of the concept of good faith in
English contract law (eg Legrand, 2006: 13 at 26; Legrand, 2003: 293 and 303).
Teubner sees no reason to suppose that good faith will mean the same thing in
English law as in, say, German law, once the economic conditions of commerce
and contracting in the two countries are taken into account:
[T]he question is not so much if British contract doctrine will reject or integrate good
faith. Rather, it is what kind of transformations of meaning will the term undergo, how
will its role differ, once it is reconstructed anew under British law? (Teubner, 1998: 11
at 12).
In fact,
it is inconceivable that British good faith will be the same as Treu und Glauben German
style which has developed in a rather special historical and cultural constellation (ibid:
at 20).
The meaning of law depends on how a legal discourse reacts to its specific
environment.
Teubner’s arguments certainly help Legrand by showing that a general appeal
by comparatists to common functions served by different laws in different systems
may gloss over complex historical conditions, colouring the way law’s functions
are understood. Law’s relations to economy, polity and ‘diverse fragments of
society’ may vary (‘from loose coupling to tight interwovenness’) in different
countries (ibid: at 18). But it is very important to note that Teubner rejects any
unified notion of culture as an analytical tool, or even as a rhetorical device for

criticising legal harmonisation. Instead, he draws on a sophisticated social theory
(developed by the sociologist Niklas Luhmann) that breaks down everything that
Legrand would understand as culture into an interplay of more of less distinct
social systems of communication.
In the present context, two conclusions should be drawn from Teubner’s
complex arguments. First (supporting Legrand), there are strong grounds for
saying that functional analysis alone is inadequate as a method for comparat-
ist harmonisers—too many unanalysed assumptions stand behind the idea that
common functions of law can be found to unite legal systems. But, secondly
(against Legrand), it remains doubtful whether a concept of culture as such can be
operationalised to explain why meanings of law may differ between legal systems
even when legal rules seem the same. Perhaps the portmanteau concept of culture
needs breaking down into defined, analysable elements, so that it might become
possible to understand, more precisely, how different aspects of culture colour
law’s meanings, or indeed supply them.
IV. HARMONISATION’S MORAL DEFICIT?
Whether or not harmonisation is ‘impossible’, Legrand sees much wrong with

even attempting it. It is ‘politically complicitous, inherently oppressive, and
fundamentally antihumanistic’; it ‘sings oh-so-sweetly to Power’, to the narrow
demands of commerce, capital and the forces of globalisation:
I find it unlikely that the European civil code will prove socially progressive and not
pander to market-oriented ‘law-and-economics’ dogmas (Legrand, 2006: 13 at 27).
European harmonisation serves ‘instrumentalism, and managerialism’ (ibid: at

28) and ‘operates in a deracinating world of faceless markets’ (Legrand, 2001: 1033
at 1048). Through it, the cult of efficiency will rule everything and drive forward
economic liberalisation in Europe—an anti-humanistic development because it
ignores other values, other important aspects of culture and human flourishing.
In opposition to it, Legrand sets an ideal of fostering ‘the respect due the variety
of lived experiences’ (ibid).
Clearly, the focus of attack has shifted here—but without any major change
of tone—from claims about the technical problems of harmonisation to much
broader moral and political arguments. Behind everything are claims about
the nature of communication through law. Legrand seems to see, on one side,
instrumental technically-oriented communication, narrow in aims and cultural
reference, and thus impoverished to an extent that may make it hardly meaning-
ful communication at all: ‘a promise [of understanding] that law is simply onto-
logically incapable of fulfilling’ (Legrand 2001:1033 at 1047). On the other side
is the elusive but essential ideal of cultural communication—an opening up to
an awareness of the ‘other’ (especially the other’s law) which involves a difficult,
sustained effort of sensitivity. In preferring this latter kind of communication,
Legrand shifts to moralistic language. It is ‘bad faith’ (ibid: at 1043) to fail to

recognise difference and to try to sweep it aside by assuming (or engineering)
similarity; and there is a duty of ‘justice’, owed to culture itself, to leave it as rich
as before, not to impoverish it (Legrand, 2006: 13 at 36).
At the same time, Legrand asserts, the mundane claim that transaction costs
will be lowered through harmonisation is a ‘cheap fiction’ (ibid: at 27). Even
instrumentalism requires moral honesty and should not be pursued through
sleight of hand. If economic efficiency were (misguidedly) to be accepted as an
adequate reason for trying to remove legal differences in Europe, no one has yet
proved that harmonisation will promote this efficiency. Legrand is surely right to
make this last point. It is striking that although efficiency claims are frequently
made in favour of harmonisation, little or no empirical research is cited to sup-
port them. Leading harmonisers feel the need only to say that
we consider it to be a safe assumption, supported by anecdotal evidence, that significant
cost factors are involved and that these costs factors are operative in practically all sec-
tors of the market economy (Von Bar, Lando and Swann, 2002: 183 at 198–9).
These matters, it seems, do not need empirical demonstration.

Harmonisation, for Legrand, is intellectually authoritarian: a ‘cultural totali-
tarianism’ (Legrand, 2006: 13 at 27). What seems to be meant is that experience,
in all its complexity and richness, is reduced by this process to fit a grid of legal
rules. A European code of private law, ‘as a form of law, will contain what would
otherwise overflow: experience’ (ibid: at 21). Law should express what people
think, feel and encounter in everyday social relations, but uniform positive rules
abstracted from context (which are what harmonisation promotes) will deny
this connection of law to life. For Legrand, English common law in Europe risks
becoming a sacrifice offered to the gods of positivist-functionalist harmonisation,
so that it will be ‘encrypted into the language of the grid’ (ibid: at 19), its life (as
accumulated historical experience and a style of juristic working that reflects that
experience) drained away in the process.
A final problem links these claims as to why harmonisation should not be
attempted with the earlier claim that it cannot actually be achieved. Because, as
Teubner suggests, harmonised law will mean different things in different legal
systems, its precise effects are, for Legrand, dangerously unpredictable, risking
legal ‘chaos’ for the common law system as it becomes ‘de-embedded’(ibid: at 33).
There will be
disintegrative consequences either in terms of broken linkages across various fields of
local law or fractured connections between law and other disciplines (Legrand, 2001:
1033 at 1042).
Legrand envisages lawyers in Britain being put in a kind of limbo between

Europeanised positive law and a local common law culture at odds with it.
Because, for him, the link between law and culture is so fundamental, a severing
(or major disruption) of it will not only impoverish positive law and make its
meaning uncertain, but will put lawyers in a very undesirable situation—serving

a law that has lost its roots, and therefore becoming, themselves, functionaries
without roots in their own culture; morally unanchored technicians.
How should we take stock of these moral-political criticisms of harmonisation,
and the claim that European legal difference is to be celebrated and protected?
We can note, firstly, that the cultural critique is far from being the only kind of
criticism levelled at European legal harmonisation. Arguments around the value
implications of harmonisation, the efficiency claims made for it, its relevance
to European integration, its disruptive effects on national laws, the legal powers
available to pursue it and the best methods for achieving it have been developed
in a huge literature.5 Alongside such an array of issues, the sometimes monoto-
nous insistence on cultural difference in Legrand’s ‘contrarian challenge’ can seem
a rather limited standpoint from which to approach the complex problems of
legal unity or diversity in Europe. Indeed, comparatists’ debates, however framed,
about legal similarity and difference might seem a narrow perspective from which
to view what are ultimately profound conflicts over different economic and social
visions of Europe. Brief mentions of ‘economic liberalism’ and ‘faceless markets’
are not enough to link discussion of the rights and wrongs of legal harmonisation
to larger, far more fundamental themes about the effects of globalisation and the
power-play of international relations in European transformation (see, eg Van der
Pijl, 2006).
It might even be said that, although European legal harmonisation has been
(largely because of Legrand’s work) a main focus for recent demands for com-
paratists to appreciate legal difference, it is actually one of the weakest fronts on
which to fight for a re-orientation of comparative law. So much activity is now
aimed at creating new European law that the demand for comparatists to privilege
European cultural (in this context especially national) differences may seem a
Canute-like stance in the face of a tide of legal change. And, very significantly, the
invocation of culture works here for harmonisation as well as against it. Claims,
noted earlier, about a common European culture and about the cultural unity of
legal elites can easily be set against claims of cultural diversity in Europe. Again,
it can be argued that, perhaps by contrast with some other legal and social fields,
the private law relationships where harmonisation is sought do not reflect major
European cultural differences. So, familiar issues reappear. What bits of culture
matter most, and how? Whose culture counts most? Can cultural similarities be
assumed for some problems or tasks of legal regulation but not for others? How
are distinctions within culture to be drawn and understood?
In general, the task of making the appreciation of legal difference as prominent
in comparative law as the search for legal similarity is very difficult. In a climate
where lawyers and legal scholars are expected to be (and generally wish to see
5 For summaries of the issues see, eg Wilhelmsson, 2002; Weatherill, 2004; and Hesselink, 2004.
themselves as) ‘useful’, the practical benefits of reducing legal differences may
seem self-evident (even if evidence to prove the efficiency payoff is not necessar-
ily sought). The appreciation of difference, however, is usually justified in much
broader humanistic terms—the arguments are, as has been seen, mainly moral
ones. They must, in many instances, be set against deep-rooted juristic convic-
tions; in particular, the positivist approach to law that is second-nature to most
modern lawyers, and the functionalist outlook often assumed in legal policy
debates.
V. THE LEGAL VISIBILITY OF CULTURAL DIFFERENCE
Yet the moral imperative to appreciate difference will not go away. For all its
difficulties there is something of immense importance in it. Positivism and func-
tionalism—the default positions for legal inquiry, the easy-ways-out for avoiding
entanglement with culture—have allowed modern comparative law to marginalise
the broadest humanistic aspirations of comparatists and to discard, as impracti-
cal or lacking in analytical rigour, the inheritance of philosophical, historical and
sociological ideas present at the birth of modern comparative law in the decades
leading up to the start of the 20th century (Cotterrell, 2006a: chapter 8).
Must practicality and efficiency trump humanistic appreciation of individu-
ality and difference? We need to return again to the multiculturalism analogy.
Assimilation (a single cultural outlook) rather than multiculturalism (an ongo-
ing, sometimes difficult conversation between cultures) might seem to be a way to
avoid friction—to achieve efficiency, in a sense—in social arrangements. But the
social ‘efficiency’ might be superficial. Where it is the result of coercion by more
powerful groups to change the cultural practices of weaker ones, it may produce
resentment. If the weaker groups eventually gain strength they may react against it
with unforeseeable consequences. And often, as noted earlier, to become culturally
the same is impossible. These problems affect the search for unity in law, insofar
as law expresses or reflects culture. What has prevented arguments about culture
from getting a fair hearing in modern legal inquiry has been the dominance of the
positivist view that law can be understood without specific reference to culture.
For various reasons this analytical separation of law from culture is breaking
down in important respects in many Western societies. Cultural differentiation
has been brought sharply to the attention of legal elites even in the United States,
where the viability of cultural assimilation was long assumed.6 American critical
race theory (CRT), created by lawyers belonging to—and seeing themselves, in
some respects, as speaking for—ethnic minority groups, has demanded a hearing
in debates on the nature and effects of law. As a ‘minority critique’ of dominant
legal ideas, CRT has forced itself on the attention of American legal elites. It
6 On debates around this policy, see Wacker, 1979; and on the survival or revival of assimilationism,
see Jacoby, 1994, and Alba and Nee, 2003.
has contributed to the growth of a ‘jurisprudence of difference’ (see Cotterrell:

2003: chapter 8), which no longer views law’s regulated population as culturally
uniform and sees new agendas for law as it confronts difference. Some American
comparatists have sensed both a challenge and an opportunity for comparative
legal studies in this situation (Demleitner, 1999; and Curran, 1998). Lawyers have
long understood the virtues of assuming similarity—treating all as equal before
the law and recognising no special statuses derived from cultural particularities.
But the new jurisprudence of difference emphasises the fact that law applies dif-
ferently to different groups in the same population. These groups may also seek
different things from law, asking that it recognise cultural conditions specific
to them.
This situation ultimately poses great dilemmas. The demand to appreciate
difference through law comes not just from minority populations pressing claims
on law, but from jurists re-examining the normative unity of law: that is, its integ-
rity as a coherent set of rules underpinned by common values, shared traditions,
convergent projects and uniform sentiments. Does law really have this unity?
What is in issue here is cultural unity. Rules may cohere in juristic analysis but not
in the meanings they have for the various cultural populations subject to them.
Here, raised in a new, different context, is Legrand’s basic question of law’s mean-
ing, with its answer dependent on cultural context.
In contemporary Britain, which has been characterised explicitly in recent
decades as a multicultural society (not one seeking assimilation of minorities to a
consciously fostered uniform culture), the issues go further. It is not just a matter
of law being seen from different cultural standpoints, but of demands, in some
contexts, for a recognition of differential law—law that can express cultural dif-
ference (for example, the distinctive practices associated with particular religious
beliefs or ethnic traditions). The idea of a kind of legal pluralism (a situation in
which different laws might apply to different cultural groups, at least to a limited
extent) has been mooted, and even seen as reflected in practice (Shah, 2005).
What has this to do with comparative law? As long as comparative law is
assumed to be concerned only with relations of laws between different nation
states the answer may be: very little. But comparatists have long addressed the
question of how far legal uniformity is possible between population groups hav-
ing different legal traditions, values and expectations. That these groups have
been largely identified as national populations might even be a relatively ines-
sential detail of the comparatists’ general project. The European private law focus,
discussed earlier, may not be wholly satisfactory for debating general approaches
to legal similarity and difference, but it at least illustrates that comparative law
has a role in analysing the development of law within a legal system (in this case,
that of the European Union) as well as between national systems. Equally, since
comparatists have long been familiar with different degrees of power, influence
or prestige operating between the legal systems they compare, there should be no
particular difficulty in recognising an interaction of more or less powerful, influ-
ential or prestigious bodies of law derived from different cultural sources in the
same political society. For example, among British Muslims, an unofficial ‘living
law’ reflecting Islamic traditions (angrezi shari’at) now exists alongside official
state law as a significant form of normative regulation in certain contexts (Pearl
and Menski, 1998: chapter 3; and Menski, 2001).
Thus, what started out in this chapter as an analogy between debates on multi-
culturalism and debates in comparative law becomes, in these circumstances, no
longer just an analogy but rather a range of contexts for considering the same set
of problems focused on negotiating legal similarity and legal difference.
The idea that comparative law’s main concerns are with seeking similarity
(unification, harmonisation) seems narrow and increasingly out of touch with
changing legal experience, when law is required to recognise changing popula-
tions, diverse cultures in nation states, and new issues about the relations between
law, religion and tradition. Law is faced with representing or managing difference
in legal aspirations no less than with promoting similarity in legal experience.
Questions about national sentiment and diversity of cultural allegiances are
also becoming legally significant (as matters bearing on law’s practical claims to
authority) in a far more obvious way than in past decades. In a culturally complex
world, allegiances (to law as to most other embodiments of authority) become
complex and multiple. Yet, as we noted earlier in discussing conditions of multi-
culturalism, something is needed to hold the diverse elements together. To address
these newly pressing issues about law and culture, comparative law must adjust
its gaze. Like other legal studies it needs to abandon its attachment to an exclusive
focus on the nation state. The great virtue of an emphasis on cultural difference
is that it points towards a far richer comparative law, aware of the way the world
is changing beyond (and more profoundly than) the transnational extension of
economic networks and the ever quickening pace of world commerce.
How is this richer comparative law to be realised? Legrand’s own insistence
that comparatists should privilege difference is certainly not limited to his attacks
on the harmonisation of European law. But where he goes beyond this focus
(Legrand, 2005) his statements about what comparative law should be doing, and
why, become vague. The ‘contrarian challenge’ sometimes seems to come down to
a general exhortation to respect the other and to study law with the aid of history,
philosophy and sociology. This is important but does not take us far. The reason,
I think, for the lack of specificity is a reluctance to explore exactly where a focus
on cultural difference in law leads.
Ultimately it must lead to the study of culture itself, with all the problems that
entails. Indeed, where culture has become a focus for critical legal theory (espe-
cially in American critical race theory) it is significant that lines between legal and
social analysis tend to blur. The need to assert cultural difference in all its complex
manifestations is so pressing for critical race theorists that legal aspects are some-
times reduced to just one aspect—a specific, limited expression—of diffuse but
pervasive social experience (see, eg Delgado and Stefancic, 2000). For comparatists,
however, the reason for invoking culture is likely to be to understand differences
specifically in juristic practice and experience. For Legrand, the essential cultural
difference is even narrower, namely, a difference between common law and civil
law juristic practice. The appeal to culture seems to be reduced to a restatement of
comparatists’ familiar distinctions between legal styles or ‘families’ of law. It is left
to legal sociologists to point out the sheer complexity of exploring how modern
legal and cultural experience inter-relate in practice, and how culture in its many
aspects shapes legal understandings (Nelken, 2005; and Nelken, 2003).
VI. HOW CAN WE STUDY CULTURAL DIFFERENCE IN LAW?
This is not to suggest that when lawyers recognise cultural difference they invari-
ably stop short of considering the broadest horizons that this recognition opens
up. Sometimes, attempts to study foreign law raise such profound challenges of
cultural ‘otherness’, that scholars of this law become ‘area’ specialists, immers-
ing themselves fully in the cultural matrix of a particular area of the world (for
example, China, India or South East Asia) and trying to explore this matrix ‘from
inside’ so as to assign meaning to its legal aspects as these are understood within
it. But this entails that these scholars often do not see themselves as comparatists,
since their exploration of law within culture has largely taken the place of inter-
preting law across cultures (Huxley, 2002: 5). Comparative legal study, however,
involves not giving up on the possibility of translating experience across cultural
difference. There has to be a way of appreciating (interpreting and understanding)
difference; not merely observing strangeness.
Here the task seems much harder than that of seeking similarity by harmonising
law. Harmonisers assume that a common framework of understanding is avail-
able and that their task is to find and use this. The task of the difference-focused
comparatists, however, is somehow to understand without such a common frame-
work, without assimilating the unfamiliar to the familiar. Cultural comparatists
write of the ‘impossibility of perfect comparison’ since each ‘cultural context is
unique to some extent’ (Curran, 1998: 43 at 45, 49). However, the aim is com-
munication and empathy; a matter of understanding the experience, sentiments
and beliefs of the other (Ewald, 1995: 1889 at 1941–2). For Legrand, appreciating
difference involves ‘thick or deep understanding’ (Legrand, 2003: 280, 289, 297).
For the American comparatist Vivian Curran it entails imaginative ‘immersion’ in
the foreign cultural context (Curran, 1998). But these formulations do not clarify
the preconditions and limits of these strategies, or how to distinguish good com-
parisons from poor ones.
We have seen that reliance on the concept of culture itself adds further difficul-
ties. Culture tends to be treated as a unity rather than analysed into distinct com-
ponents, which might have some structured relation to each other (see Archer,
1985) and be more manageable entities for comparison. Nevertheless, cultur-
ally-focused comparative law opens up exciting possibilities if ways can be found
to break down culture into components that can be compared in their relations
to law and if the methodological difficulties are always kept in mind, so that
comparatists are modest in their claims to be able to understand ‘the other’

and the other’s law. The findings of cultural comparative law will always be
provisional, partial and contested—yet they may still be enlightening and
thought-provoking, perhaps not just for the researcher’s ‘home’ audience, but
even for the foreigners whose law is being studied.
Some ambitious recent work by an American comparatist illustrates the kind of
enlightenment that might be hoped for, as well as the difficulties discussed above.
James Whitman, in a series of major articles, has studied profound differences
between United States law and continental European law in terms of what he sees
as contrasting cultural values underlying significant parts of this law. Because
he focuses on fundamental values—primarily ‘liberty’ in the American case and
(human) ‘dignity’ in the European context—he implicitly breaks down the idea
of culture, taking one set of elements from it for consideration. I have argued
elsewhere that culture (for the purposes of legal inquiry) is made up of distinct
elements that can be roughly summarised as shared ultimate values or beliefs,
common traditions and experiences, collective sentiments, and common or con-
vergent (primarily economic) projects (Cotterrell, 2006a). What is important is to
distinguish the components of culture analytically and to explore their ramifica-
tions when they are expressed in or addressed by law. Whitman’s approach might,
then, be promising in avoiding generalised appeals to culture and concentrating
on the element of values; asking what meaning is given to these values in different
contexts and how they are expressed in positive law.
Whitman’s starting point is a regret expressed by some American legal
scholars about the difficulties of introducing European-style ‘hate speech’
legislation in the United States to criminalise the use of calculatedly insulting
or inflammatory words. In America, he explains, the legal value of freedom
of speech trumps most efforts to control hate speech. A main reason, for
Whitman, is that the United States lacks a ‘culture of dignity’, found notably
in Germany and France, which has underpinned controls on hate speech in
these and other European countries.
In a 120-page essay (Whitman, 2000) he explores the sources and effects of
this culture of dignity, finding its origins in old conceptions of social hierarchy
and of the protection of aristocratic honour, for example through duelling. These
conceptions gave rise to penal laws (still existing in Germany) to protect individu-
als from insult and affront to their dignity. Legal provisions that once protected
aristocratic honour and ensured due deference were gradually transformed by
a process of social ‘levelling-up’ into laws protecting the honour and dignity of
every citizen from insult. In France, dignitary law, as Whitman calls it, has atro-
phied as a distinct form but the culture of dignity remains strong, expressed in
forms of civility notably different from those typical in the United States. Thus
Whitman’s argument—developed through an elaborate presentation of relevant
law and social norms—is that European ideas of human dignity, fundamental
to continental legal culture, are traceable to old European conceptions of social
hierarchy. The United States lacks any such legal emphasis on individual dignity
because its social and legal history is different. Lacking a tradition of aristocracy,
it also lacks a legal concept of human dignity.
In other writings Whitman has continued to emphasise a sharp contrast
between American and continental European legal cultures. He notes, for
example, that attitudes to privacy differ greatly between the United States and
continental Europe. Americans and Europeans care deeply about privacy, as their
law shows, but in different ways. Compared to French and German law, American
law provides relatively little commercial privacy (for example, as regards credit
ratings) but treats the privacy of the home as sacrosanct (in Europe wire-
tapping has been much less of a legal issue than in the United States). The
American focus is overwhelmingly on privacy against the state and on the pro-
tection of commercial interests. American law recognises a ‘right of publicity’,
essentially to control the commercial exploitation of one’s image and related
matters. In continental European systems, law gives rights to control the use of
one’s image on the grounds of protection of human dignity. It is an aspect of
personal dignity and autonomy to have a legal right to choose whether and how
one’s image is used. In the United States the right to free speech (often, in practice,
exercised by the mass media and other commercial interests) invariably triumphs
over claims of human dignity but, in continental Europe, the former is always
balanced against the latter through the assertion of rights to ‘dignity’, ‘honour’ or
‘personality’ (Whitman, 2004: 1151 at 1197). In summary:
Europeans are consistently more drawn to problems touching on public dignity, while
Americans are consistently more drawn to problems touching on the depredations of
the state (ibid: at 1163).7
In a brief discussion it is impossible to represent the detailed legal analysis that

accompanies Whitman’s arguments about American and continental European
legal cultures.8 What is important here is to note how ambitious these arguments
are. They range over large areas of positive law and do not confine themselves
within orthodox juristic fields. Positivist comparatists might scorn such wide
generalisations about legal cultural difference (despite the considerable legal doc-
trinal detail offered) as well as about categories such as ‘dignitary law’ that are not
juristically recognised in the legal systems studied. Again, it might be asked what
the scope of Whitman’s arguments is intended to be: for example, how much of
the legal idea of human dignity he considers to be traceable specifically to old
norms of social honour (Neuman, 2003). The cultural and legal canvasses on
which he paints are obviously vast.
7 On contrasts between legal values of ‘liberty’ in the United States and of ‘dignity’ in Germany,
see also Eberle, 2002.
8 See also Friedman and Whitman, 2003, arguing that the legal concept of sexual harassment,
imported from American law, is being transformed in some continental European countries into
a more general concept of ‘moral harassment’ centred on protection of employees’ dignity in the
workplace.
There is a more fundamental problem, however. How far can Whitman, as a

cultural ‘outsider’, understand the European legal culture(s) he studies? Europeans
may well recognise the sources of important elements of their legal culture in old
ideas of social hierarchy, yet see a fundamental distinction between the old law of
insult and more pervasive modern ideas of human dignity. They may trace the
latter much more directly, for example, to reactions to the experience of war and
destruction in 20th century Europe. Again, there may be debate about Whitman’s
understanding of civility. When he talks of European ideas of civility as based
on a ‘levelling up’ of requirements of respect and honour he sees ‘some vision of
hierarchical superiority’ surviving in them (Whitman, 2000: 1279 at 1331).
Respect has, at its heart, something to do with superiority and inferiority’ (ibid: at 1332)
and the promise of dignity is for ‘most people, most of the time … a promise that they
will be regarded as better than somebody else (Whitman, 2003b: 265).
Thus, he sees something false in European civility. An

outward show of respect … a realm of form and not of inner conviction, a realm of
purely ritual self-abasement’ rather than ‘the sincere acknowledgement of the equality
of others. (Whitman, 2000: 1279 at 1291).
By contrast, American manners focus on the latter. They represent, for Whitman,
a ‘levelling down’ to a basic social equality reflected in informality and directness
in social contacts.
As cultural observation this is surely interesting but matters could be seen differ-
ently. A European view might be that, in essence, civility is not about social equality or
inequality at all. It is about treating the other as a fellow human being with whom it is
necessary to co-exist and who must therefore be shown respect simply to avoid fric-
tion and ease the processes of social interaction. European civility does not need to be
characterised (as in Whitman’s account) as somehow false. In fact, ostensibly respect-
ful treatment is unlikely to be viewed as civility if perceived to be false. But neither is it
an affirmation of social position. It is possible to have civility between social unequals
(and this is culturally valued) no less than between equals. It may be important for
civility to be neutral as regards social status.
Perhaps, indeed, Whitman’s interpretation reflects his own American cultural
heritage of (presumed) social equality and what he himself characterises as
American incomprehension of European ideas of civility. More fundamentally,
following his own arguments about a contrast between American and European
cultural values, European understandings of civility may be coloured by a sense
of human dignity as a value, while American understandings of civility may be
coloured by a corresponding sense of liberty and of the social equality (of oppor-
tunity) needed to enjoy it.
I raise these very speculative matters only to illustrate that comparative studies
of fundamental legal values (as, probably, of other aspects of culture in relation
to law) can never be conclusive, but only suggestive. Clearly there can be no
standpoint outside culture from which to pursue comparative legal studies. But
this insurmountable problem does not destroy the interest or significance of

studies of legal culture. They may contribute to the intercultural conversation
that leading cultural comparatists advocate. Unless done with immense sensitiv-
ity and a real desire for empathy, these studies may provoke irritation, or worse,
from those who see the foreign culture under scrutiny as their own. And there
can be no way of escaping the imprecision of the concept of culture itself. For all
these reasons cultural comparative law is likely to be enduringly risky. It will not
measure up to the protocols of rigour that positivist legal analysis demands. It
may seem impractical and unfocused in its objectives when set alongside some of
the business-like efforts of comparatist harmonisers, but the potential of cultural
studies of legal difference for allowing a bolder spirit of curiosity to flourish in
comparative law might be some considerable consolation. These studies might
be seen as vehicles through which comparatists can take on again the mantle of
humanist scholars analysing law as a rich cultural creation. If we can no longer
believe in the promises of a universal natural law rooted in human nature and
experience, it might be possible to believe in the possibility and validity of a study,
through comparative law, of the infinitely rich varieties of human experience and
their specifically legal expressions.
1. Has comparative law been more interested in ‘seeking similarity’ between

laws and legal systems, or in ‘appreciating difference’ between them? What
factors have inclined it towards one or other of these emphases?
2. Why does Legrand think that harmonisation of laws in Europe cannot
be achieved? Is it, as he claims, wrong even to try to work towards this
harmonisation?
3. How should comparative lawyers understand the concept of culture? What
aspects of culture are most significant in affecting legal development?
4. How useful is the analogy between debates about multiculturalism and
debates in comparative law about the merits of harmonisation of laws?
5. How far is it possible for people—including comparative lawyers—to
understand a culture different from their own? What methods should they
use in trying to do so?
6. Is it a worthwhile general aim today to try to reduce differences between
legal systems, legal styles or legal cultures?
7. Is the study of fundamental legal values a potentially fruitful approach in
comparative law?
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7
The Economic Approach: Competition
between Legal Systems
ANTHONY OGUS
KEY CONCEPTS
Efficient and efficiency; Competition between legal systems; Heterogeneous

demand for law; Homogeneous demand for law; Artificial product differen-
tiation; Network.
I. INTRODUCTION: ECONOMICS AND LAW
T
he starting point for this chapter is the obvious fact that the legal
framework has an enormous impact on the economy, national and global.
Economic historians have demonstrated how some of the key character-
istics of a legal system have helped to facilitate and sustain economic growth.
From this, the intriguing possibility arises that the causal link between the law
and the economy can be traced in the opposite direction: if certain types of law
facilitate economic growth, then perhaps the pursuit of economic growth can
help to explain legal developments. If this causal connection can plausibly be
established, then understanding the economic functions of law can make a major
contribution to comparative law, for example, by explaining why, in some areas,
convergences between legal systems occur.
Economists use the word ‘efficient’ to indicate arrangements and processes
which maximise economic welfare.1 In tracing the possibility that the law in dif-
ferent jurisdictions is driven, or at least influenced, by a concern to reach efficient
outcomes, we should distinguish between the two principal instruments for legal
development: legislation and case-law. And we ought also to recognise that in both
forms of law-making, the economic goal will have to compete with other goals, for
example a desire to redress or control outcomes which are regarded as unfair or
1 More particularly ‘allocatively efficient’, which applies to maximising welfare in a given society, to
be distinguished from ‘productively efficient’, which means maximising output for a given individual
or firm. See Ogus, 2006: 26–7.
156 Anthony Ogus
unjust—these goals are sometimes referred to collectively as ‘distributional justice’.

Now, of course, the importance to be attributed to efficiency, relative to distri-
butional justice, may well vary not only between legislature and judges but also
between different jurisdictions. That would mean that, politically or ideologically,
it is considered desirable in certain jurisdictions to sacrifice some economic growth
to achieve greater fairness in society. For example, it might be the case that the his-
tory of civil law systems reveals a greater readiness to protect consumers against
traders than that of common law systems.
Nevertheless, it is not always easy to identify the extent to which the law-
making process adopts or reflects particular goals. First, law-makers (politicians
and judges) are not always explicit about their aims and objectives. Secondly, even
if they are explicit, the statement of goals may disguise the true intent. Indeed, an
important economic theory (known as ‘public choice’) suggests that much legisla-
tion has little to do with general goals such as efficiency or distributional justice;
rather it serves to advance the interests of those groups who are most successful
in lobbying politicians. In such cases, there may be insufficient transparency to
detect the private interest motivation.
We should note also the possibility that the law might evolve spontaneously
towards efficiency, without this being the conscious aim of law-makers. The
political-economist Hayek famously argued that customary law, as developed
particularly in common law jurisdictions, has this spontaneous effect because
judges seek in general to match the law to the expectations of citizens (von Hayek,
1973–79). Other evolutionary theorists have, in a similar vein, argued that the
processes of litigation lead to the same outcome because litigants will tend, in
general, to appeal against inefficient rules, rather than efficient rules, and thus,
over time, efficient rules will survive better than inefficient rules: the ‘efficiency of
the common law theory’ (Priest, 1977).
II. THE LAW AND ECONOMIC GROWTH
Some early writers on political economy perceived the importance of law for
economic welfare. Hobbes, for example, recognised that if entrepreneurs lacked
confidence in the coercive power of the state to enforce contracts, they would not
enter into trade; and Adam Smith recognised that ‘a tolerable administration of
justice’ was an important condition to carry a state to ‘the highest degree of opu-
lence’ (Smith, 1980: 322). More from an historical and sociological perspective,
Max Weber found that economic development was a consequence of formal and
‘rational’ legal systems.
In modern times, there has been much focus on how adherence to the ‘rule
of law’ facilitates economic development. Although the ‘rule of law’ has been
given a variety of meanings, it must clearly be distinguished from ‘rule by law’,
which implies mainly that law is used as an instrument of governmental power
and perhaps also for resolving disputes. As linked to the familiar concept of ‘law
and order’, a system so characterised may be one subservient to tyrannical and
Competition between Legal Systems 157
arbitrary government and may not be conducive to trade and commerce. The
‘rule of law’ which has been shown to facilitate economic growth (Keefer and
Knack, 1997) tends to have the following features:
• rules published and thus knowable in advance
• mechanisms ensuring the application of rules without discrimination
• binding decisions by an independent judiciary
• (a minimum) recognition of basic human rights
• compliance by the government and its officials with relevant rules
What then of private law? What features have had a particularly strong impact on
the economy? In comparing economic development in different European coun-
tries, economic historians have found an explanation in the ability of the private
law framework to generate effective incentives for creative and productive activity.
This meant in particular the extent to which contract law could generate mutual
trust in commercial transactions and to which property rights could ensure an
adequate return on investment.
Now since all legal systems, however primitive, have some set of contractual
and property rights, the crucial question is how well they are able to adapt to
changing conditions. This is a matter not only of the capacity of the system to
broaden its parameters to embrace, for example, intellectual property; it is also a
question of doing so at relatively low cost. Put succinctly, the benefits arising from
legal instruments must exceed the costs of using them.
Take, first, the benefits of legal developments responding to technological or
other changes. When agricultural land was used mainly to support the local com-
munity, a system of common ownership was unproblematic. But with the growth
of markets and the need to specialise, advantages were to be secured from the
enclosure of the land and the amalgamation of smaller units. Property law, which
inhibited enclosure or insisted on the physical division of land for inheritance
purposes, would thus hinder economic growth. Then, in response to technological
development, industry became more dependent on large-scale capital investment
and organisations. No doubt, existing systems of property and contract rights
could be applied, but the key to success lay in devices for reducing the costs of
applying appropriate legal instruments. The legal system required mechanisms
which could, at low cost, finance transactions (eg negotiable instruments), spread
risk (insurance) and, most importantly, underpin legal organisations by arrange-
ments which, while generating a sufficient return for entrepreneurs, would ensure
the effective monitoring of inputs to the profit-making enterprise (limited liability
corporations).
The extent to which, in a particular jurisdiction, these developments may have
occurred faster or slower depended on a variety of factors related to legal culture
and the law-making process. For comparative lawyers the intriguing questions
arise whether the common law or the Romano-Germanic systems have been, in
this regard, more or less successful, and what characteristics of the legal culture
have had an important impact on economic growth.
158 Anthony Ogus
It has, for a long time, been recognised that the English common law, through
its development of banking and insurance, the joint-stock company and patent
law, was conducive to the economic developments that became known as the
‘industrial revolution’. Studies also suggest that countries adopting legal institu-
tions from within the common law tradition have experienced, in more recent
times, faster growth than those countries drawing on the civil law tradition.
If these generalisations are accepted, what characteristics of the common law
culture might provide the explanation? At a very general level, it should be noted
that civil law countries have been more identified with government interven-
tion in the market than common law countries. Of course, to a large extent, this
reflects political ideology, but the determinants of political ideology and legal
culture might not be that far apart. Take the following hallmarks of traditional
common law culture:
• non-career judges
• greater use of juries and non-professional judges
• greater reliance on customary law and precedent
• less reliance on legislation and codification
• oral rather than written processes
Most of them are consistent with the idea that the administration of justice should
be decentralised and thus further removed from the heavy hand of government,
which can so often constrain economic development.
III. COMPETITION BETWEEN NATIONAL LEGAL SYSTEMS
The economic perspective has, in recent times, generated important insights into
the relationship between legal developments in different jurisdictions through the
idea of there being some degree of competition between legal systems. The idea
is relatively simple and is drawn from the way that markets for ordinary products
and services operate. If suppliers of (say) teddy bears have to compete with one
another, consumers can choose by reference to how each supplier’s combination
of price and quality meets their preferences. Provided that information about the
available options is readily available, this should lead to the production of what
consumers want at lowest cost. In a sense, and to a certain degree, a democratic
system of government functions in this way: political parties compete by offering
different programmes to match what the voting population may desire.
It might seem strange to think in terms of legal subjects (individuals and firms)
having a choice between different legal orders: the legislature in any one jurisdic-
tion normally has the monopoly of law-making powers. Nevertheless, there may
be some limited competition between that legislature and the courts and also
between different court systems with overlapping jurisdictions, such as famously
occurred between the common law and chancery courts before the 19th century.
Once we introduce transactions involving more than one jurisdiction, the issue of
competition between legal sources becomes less artificial and, with the increased
mobility of enterprises and the globalisation of markets of modern times, it has

become quite significant.
Take, first, the decisions of large firms where to site their business. Subject to their
freedom to do so, they will want to establish in the jurisdiction which best meets
their preferences, regarding the security of their employees and assets, and those
aspects of local conditions which best enhance their profit-making capacity. A num-
ber of different considerations are involved, amongst which may feature the legal
system, and the costs which the local law imposes on their business. For their part,
governments are also interested in attracting large firms to their jurisdiction because
that is likely to generate more employment as well as increased tax revenue.
Secondly, to some extent, the principles of private international law enable
firms and individuals to select a legal system to govern their transaction or busi-
ness, even though the connection with the jurisdiction may not be very strong.
The freedom, subject to public policy constraints, of parties to an international
contract to choose the law to apply to the contract constitutes the classic example.
There is, indeed, a long tradition of foreigners selecting English law to govern
their contract and submitting to the jurisdiction of the English courts even where
the transaction has no particular connection with the UK. So too, if only to a
lesser extent, corporations may be ‘registered’ in a jurisdiction, and therefore be
subject to its law, even if the firm has no major physical presence there: in the
United States the State of Delaware famously attracts a large number of firms to
its corporate law regime.
Clearly there are also advantages to the local legal profession in having its legal
system adopted in this way. It will normally lead to more work for them and
therefore an increased income. Moreover, because of their technical legal exper-
tise, relevant members of those professions are likely to be able to influence local
law-makers to adapt law to meet the preferences of those who will create more
business for them.
To observe this process of competition in practice, take the case of Trendex
Trading Corporation v Central Bank of Nigeria.2 A Nigerian bank was sued for
defaulting on a commercial letter of credit. It invoked the principle of sovereign
immunity because of its close connection to the Nigerian government. A majority
of the Court of Appeal held that even if the bank were to be regarded as a depart-
ment of government it could not claim immunity in respect of a purely commer-
cial transaction. This ruling followed judicial developments in Belgium, Germany,
The Netherlands and the United States, rather than a long line of English authori-
ties. Recognising the importance of the decision for those adopting English law in
contracts, Lord Denning, MR observed [1977] QB at 556:
Whenever a change is made, someone some time has to make the first move. One coun-
try alone may start the process. Others may follow. At first a trickle, then a stream, last a
flood. England should not be left behind on the bank ... ‘We must take the current when
it serves, or lose our ventures’: Julius Caesar, Act IV, sc. III.
2 Trendex Trading Corporation v Central Bank of Nigeria [1977] QB 529 (CA).
160 Anthony Ogus
Note, too, that even without the possibility of physical mobility or the operation
of choice of law clauses, a comparison of domestic law with its foreign counterpart
may show that local industry is legally disadvantaged relative to its international
competitors. For example, if the industry has to comply with stringent regulation
governing the safety of its products or services, its costs will be higher and there-
fore so also will be its prices. Representatives from that industry then might apply
pressure to politicians within the jurisdiction to alleviate the burden.
In summary, some degree of competition between national legal systems can
be envisaged when those who are the subject of law—firms and individuals—
have an effective choice as to the legal regimes which should govern their affairs.
To this may be added a further proposition: the more the legal subjects are
engaged in transboundary activities, the more likely that they will have an effec-
tive choice of legal regime. In the case of a sale of goods between parties within
a single jurisdiction, it may be theoretically possible for them to select the law of
another jurisdiction to govern their transaction, but it is very unlikely they will do
so, given that they will both normally incur higher costs in nominating a foreign
jurisdiction. In an international sale of goods, by hypothesis, there is no single
jurisdiction which unites the two parties in this way. It follows, too, that there are
areas of law that are less likely to deal with transboundary activity—such as land
law—and in relation to which, therefore, there will be less competition between
jurisdictions.
IV. CONSEQUENCES OF COMPETITION: DIVERGENCE AND CONVERGENCE
What consequences are likely to flow from competition between legal systems?
Will there be (as Lord Denning’s observation suggests) a convergence of legal
principles by means of imitation and transplants? Or will differences remain and
perhaps even increase? To answer these questions, we need to have regard to two
key factors: the area of law concerned; and possible barriers to transplants and
convergence.
Provided that there is a democratic basis to, or inspiration for, law-making,
legal developments occurring in a particular jurisdiction are likely to reflect pref-
erences, values and generally-held opinions in that jurisdiction. In some areas
of law, the preferences, values and opinions are going to differ sharply between
jurisdictions even though they may be close both geographically and in economic
development. For example, a jurisdiction (say) in Southern Europe, which is
influenced by the Roman Catholic church is unlikely to share the same set of
values regarding family relationships and therefore family law as (say) a jurisdic-
tion in northern Europe where the influence of religion on legal policy-making
is much smaller. Nor, from the United Kingdom, do we have to travel very far to
find a jurisdiction, namely France, which offers a far more generous set of laws
governing the compensation of road accident victims; and that difference must
reflect a divergence in social values.
Now, competition may exert some pressure on national law-makers even in

areas such as these. Single sex couples may be attracted to living and working in
countries where there relationship is to some degree formalised; and there is even
an argument that tourism may be boosted by laws more favourable to less com-
mon lifestyles (Brown, 1996: 271–4). More generous road accident compensation
provision leads to higher transport costs for industry in France, compared to
England, and may result in competitive pressure from that source. Nevertheless,
these competitive forces, if they exist at all, are unlikely to be significant relative to
the strength of opinion that underpins the legal differences. Putting this another
way, and using the language of economics, the demand for the law governing these
areas is ‘heterogeneous’. Note, too, that the law governing such areas tends to be
interventionist law, that is, law which imposes outcomes, according to the public
policy adopted. In summary, competition among suppliers of interventionist law,
reflecting heterogeneous demand, is unlikely to result in a convergence of legal
principles.
In contrast, law can also be facilitative, that is, rather than imposing policy deter-
mined outcomes, it accepts—indeed reinforces—what individuals and firms want
and protects expectations by rending the desired outcomes legally enforceable. The
classic example of facilitative law is contract, but parts of company law and prop-
erty law also fit into this category. The demand for facilitative law is predominantly
homogenous, rather than heterogeneous: that is, the preference of those wishing
to invoke the law is unlikely to vary significantly across jurisdictional boundaries.
Those making contracts in Greece or Portugal basically have the same desire as
their equivalents in Britain or Sweden, that the consensually approved outcome
should be reached at minimum cost. The qualification ‘at minimum cost’ is impor-
tant, because if one legal system provides the legal means of achieving the desired
outcome at a significantly higher cost than another legal system and the parties are
free to choose the latter to govern their contract, then they will be motivated to do
so. If other contracting parties have the same perception and act in the same way,
the jurisdiction with the higher set of costs will lose legal business and the law-
makers there will be under pressure from legal practitioners to reform the law.
To give an example, suppose that a seller in Jurisdiction A enters into a contract
with a buyer from Jurisdiction B. In the event of a serious breach, both parties
would prefer that the party not in breach would be able to terminate the contract
without a formal judicial decision to that effect. Suppose that Jurisdiction A
permits such unilateral termination, but in Jurisdiction B termination normally
requires a judicial decision. Subject to other considerations, it is in the interests of
the parties to select Jurisdiction A in their choice of law clause. If there is a reduced
demand for the more costly rule in Jurisdiction B, competition between the two
legal systems will generate pressure for the formalistic approach in Jurisdiction
B to be abandoned, and in consequence there will be some convergence between
the two legal systems.
The Trendex Trading case, described above, is an example of English courts
being under competitive pressure to change the law in favour of an approach
162 Anthony Ogus
adopted abroad. Another interesting area of convergence is that of the trust. In

comparison with civil law equivalents, the Anglo-American trust concept has
proved to be a very cost-efficient device for certain types of financial transactions,
and civilian systems have been under pressure, at the very least, to recognise the
existence of the concept under the rules of private international law and, in some
cases, to assimilate the device. As an Italian jurist has observed: the ‘trust has
obtained an easy and well-deserved victory in the competition in the market of
legal doctrines’ (Mattei, 1994: 10).
To summarise: competition between legal systems may be expected to influ-
ence legal developments, but not necessarily towards convergence. In areas of law
which are predominantly ‘interventionist’, with rules inspired by public-policy
imposing outcomes, there are likely to be differences in public policy values in
different jurisdictions and legal rules may thus continue to diverge. Where, on the
other hand, the law is predominantly ‘facilitative’, allowing firms and individuals
to determine their own preferred outcomes, some degree of convergence may be
anticipated, on the assumption that pressure will be exerted for legal rules which
enable those preferred outcomes to be reached at lowest legal cost.
V. TRANSPLANTS AND OBSTACLES TO CONVERGENCE
Convergence, whether or not resulting from competition, normally takes place

by one jurisdiction imitating rules or concepts of another jurisdiction, what are
sometimes referred to as ‘legal transplants’. There has been much discussion in
the mainstream comparative law literature on the difficulties of transplanting
from one legal culture to another (notably, Kahn-Freund, 1974; and Legrand,
1996). In this part, I wish to explore why there may be economic reasons for such
difficulties, and that entails returning to the question whether legal practitioners
within a particular jurisdiction will be motivated to support, or rather to oppose
legal transplants. The question is important because the legal profession plays a
very important role in influencing law-makers on what law reform is, or is not,
desirable.
We may start by recognising that practising lawyers can benefit from an
increased demand for their services when their legal system is adopted by legal
subjects either migrating to the jurisdiction or adopting it under choice of law
principles. That might suggest a strategy of facilitating competition between
legal systems and supporting reform measures which, as in the Trendex Trading
example, reduce legal costs in order to attract more legal business. On the other
hand, practising lawyers will wish to retain the business emanating from legal
subjects already located in the jurisdiction. If competition between legal systems
means that the loss of such business exceeds potential gains from ‘immigrant’
legal business, then legal practitioners will oppose measures which facilitate the
competition. For an example, take the continental European approach to choice
of law governing a company’s existence and internal affairs. Traditionally, this
has been dominated by the ‘real seat’ doctrine, whereby the applicable law is that
of the jurisdiction in which the firm’s administration is physically situated. This
doctrine inhibits freedom in the choice of law, which, as we have seen, has had
such an impact in the United States, enabling many corporations to establish
legally in Delaware. There is some evidence (Carney, 1997) that a change to the
European approach was resisted by the French authorities on the ground that, if
greater freedom were to be conferred in where firms could incorporate, chartering
business in France would be lost to competing jurisdictions.
Resistance to the international harmonisation of law by practising lawyers
from a particular jurisdiction may, indeed, indicate that in the ‘market for law’ a
significant number of those (mainly firms) requiring a legal framework for their
activities have a preference for the distinctive set of rules emanating from that
jurisdiction. In 1981 the Law Society of England and Wales opposed the Vienna
Convention on Contracts for the International Sale of Goods on the ground, inter
alia, that it would result in a diminished role for English law within the interna-
tional trade arena (Lee, 1993: 132).
There is, nevertheless, a possibility that the profit motivation of lawyers who
benefit from the demand for legal work in a particular jurisdiction can lead
them to exaggerate the peculiarities of the law in that jurisdiction, in order to
resist competition from those practising in other jurisdictions. Economists use
the expression ‘artificial product differentiation’ to describe a situation in which
a supplier draws attention to unreal or irrelevant differences between a prod-
uct supplied and those otherwise available in the market, in order to secure a
monopolistic position and make enhanced profits. Lawyers everywhere tend to
use jargon and procedures which distance them from other professional activities
(such as accounting), thereby rendering the content of the law more abstruse than
it needs to be and, in consequence, inflating the demand for their services. By par-
ity of reasoning, it is possible to argue that lawyers will be tempted to emphasise
the characteristics of their own legal system that are not easily grasped by lawyers
from other jurisdictions, in order to create a barrier to competition from those
lawyers (Ogus, 2002). And that will, of course, lead them to oppose proposals
for harmonising the law that would deprive them of these advantages. When,
therefore, comparative lawyers refer to the incompatibility of certain legal cul-
tures that constitute major obstacles to harmonisation, these may be phenomena
which exist, which are enhanced by human design, and which have an economic
explanation.
VI. LEGAL CULTURE: A NETWORK LIKE THE RAILWAYS?
When the railways were developed in Europe in the 19th century, there was
not originally a single system, but a number of different systems scattered geo-
graphically, each of them with its own set of technical specifications, notably
as regards the distance between the rails. And this diversity led to some degree
164 Anthony Ogus
of competition, in particular between ‘narrow-gauge’ and ‘broad-gauge’ rail-

ways. As the amount of travel increased and intercommunication between the
systems reduced costs, so a struggle for which would be the dominant system
emerged, initially within national boundaries and subsequently internationally.
Eventually, a single set of specifications was adopted for most of Europe so that,
for example, the same rolling stock could be used for a journey between Paris
and Istanbul.
Railways constitute what economists call a ‘network’. This is a technical system
providing links for users of services, such that the greater the number that use it,
the greater the value for all of them. (Another example is the fax system. I would
be stupid to purchase a fax machine unless many of the people I wish to commu-
nicate with also have one; and the more they use it, the more all of us will benefit).
As the system becomes more and more popular, so demand tips in its favour,
rendering competition by alternative systems less and less effective. Eventually,
the system may become so dominant that it acquires monopolistic power, at least
for some time, until technological advance generates other possibilities (think of
DVDs eventually challenging video systems).
We can think of legal cultures in a similar way. Consider how a legal ‘sys-
tem’ emerges. Within any society there will be some individuals or institutions
responsible for resolving disputes and perhaps some others responsible for the
formulating of rules to deal with such disputes. A particular set of linguistic,
conceptual and procedural devices will become conventional for these purposes,
and their regular use will reduce the costs of reaching decisions in individual
cases. Although within a given society there may be a number of different
networks of language, concepts and procedures, as with railways, the attractive-
ness of one set will enable it to achieve dominance. The greater the number of
transactions and disputes adopting a particular set, the higher the expectation
that in future other transactions and other disputes will also adopt it. Some
competition may continue to exist for some time (think of the rivalry histori-
cally in England between the common law and equity), but at least rules will
develop for co-ordinating them.
Within a jurisdiction, the monopolistic power of the dominant legal culture
is likely to be enhanced by the efforts of legal practitioners, for the profit motive
described above (Part V), to reinforce differences with other systems. But what
about transactions and other legal relationships that transcend jurisdictional
boundaries? We have already seen (Part III above) how parties involved in these
are likely, if they have freedom of choice of law to govern the issue, to select the
legal system which minimises their costs. That phenomenon might well have
the effect of destabilising the (for domestic practising lawyers) profit-generating
peculiarities of the legal cultures relevant to the issues involved, because those
peculiarities are likely to render adoption of the law from that jurisdiction more
costly.
The conclusion to be drawn from this is that those areas of law (for example,
sale of goods) which frequently govern interjurisdictional transactions and
relationships are likely to be far less marked by distinctive legal cultures than
those areas of law (for example, land law) only rarely involved in such trans-
actions and relationships. And the analogy with railways is again pertinent.
Ordinary railway systems in continental Europe frequently cross national
boundaries, and an international set of technical standards superseded
national standards. However, urban underground railway systems have, by and
large, preserved their own sets of specifications.
VII. HYBRID LEGAL SYSTEMS
In the last part we considered jurisdictions in which there is a single dominant

legal culture. We come, finally, to jurisdictions where this is not the case and
which comparative lawyers refer to as ‘hybrid’, ‘mixed’ or ‘pluralistic’, because
the legal system has absorbed two or more legal cultures. These include juris-
dictions (for example in Africa) where one legal culture has been imposed by
a colonial power, but where it must ‘compete’ with a native legal culture. Also,
jurisdictions whose legal systems reflect the different legal cultures of succes-
sive occupations, for example, Quebec (French and English) and South Africa
(Roman-Dutch and English). A third category covers jurisdictions, for example
Japan and Turkey, which experienced industrialisation relatively late and which
needed to import legal cultures to provide a more sophisticated legal frame-
work than native law could supply: indeed, there was some degree of competi-
tion between, for example, French and German law, to provide this framework
(Örücü, 1999: 80–117).
In considering how hybrid legal systems evolve in the face of competition
among legal orders, it is possible to make generalisations which apply to all three
categories. So, for example, importing transplants from other legal systems may
be assumed to be easier than for jurisdictions of a single dominant legal culture
because the existing system is already sufficiently flexible to accommodate differ-
ent cultures. We might also expect that in hybrid jurisdictions, legal practitioners
will be less able to exploit legal-cultural characteristics in the manner envisaged
above in Part V, because some degree of internal competition between the legal
cultures will reduce the monopolistic power of the profession to engage in exces-
sive jargon and complexities. However, for this to be the case, the competition
between the cultures must be real, and not merely hypothetical. Take the cases of
Japan and Turkey. The fact that the domestic law-makers could choose between
the foreign models did not necessarily mean that the selection would be made by
reference to the lowest cost criteria. The selection process could, for example, be
heavily influenced by professional groups who had a financial interest in one of
the foreign legal cultures, perhaps because they had received training within that
tradition. Nevertheless, commercial interests, keen to invest in the jurisdiction,
might also apply pressure and that might override the profit-seeking efforts of
practising lawyers.
166 Anthony Ogus
VIII. CONCLUSIONS
The analysis in this chapter can lead to the following conclusions:

• Law is important for economic growth and the goal of economic growth
can help to explain legal developments, so also the relationship between
developments in different legal systems;
• Common law systems may have features which have been particularly con-
ducive to economic growth;
• Competition between legal systems occurs particularly where there is free-
dom of choice as to the applicable legal regime;
• Competition between legal systems tends to influence a convergence of legal
principles in areas of facilitative law;
• Practising lawyers may be expected to oppose reforms, including propos-
als for convergence of legal systems, that will reduce the demand for their
services;
• An economic interpretation of ‘legal culture’ suggests that it is a ‘network’
which may reduce the costs of communication between those using the legal
system, but its characteristics may be exploited by practising lawyers to resist
competition;
• ‘Hybrid’ legal systems can benefit from the competition of legal cultures
inherent within the jurisdiction.
1. In what ways can law stimulate economic growth?

2. What distinguishing features of the common law and civil law legal tradi-
tions might either stimulate, or rather inhibit, economic growth?
3. To what extent, and in what circumstances, is there competition between
national legal orders?
4. When is competition between national legal orders likely to lead to a con-
vergence of principles and when to a divergence?
5. How and when might practising lawyers benefit from a convergence of
legal principles or from a divergence?
6. In what ways can a legal culture inhibit competition for legal services?
7. Are ‘hybrid’ legal systems likely to be more or less conducive to compe-
tition for legal services than legal systems with a single dominant legal
culture?
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8
A General View of ‘Legal Families’ and of
‘Mixing Systems’*
ESİN ÖRÜCÜ
KEY CONCEPTS
Legal family; Family tree; Tree model; Wave theory; Diffusion; Transposition;
Mix; Mixed system; Mixedness; Encounter; Overlap; Combination; Underlay;
Overlay; Cross-fertilisation.
I. INTRODUCTION
O
ne of the conventional tasks of comparative law has been the placing
of legal systems in legal families for taxonomic purposes and ease of
organisation, although
the idea of a ‘legal family’ does not correspond to a biological reality; it is no more than
a didactic device (David and Brierley, 1985: 21).
However, biological and linguistic taxonomies have been used in classification as

organising devices. The practice has been to study legal systems that best represent
large groups and then make generalisations based on concepts such as original-
ity, derivation and common elements.1 Similarities and relationships serve as the
bases for classification. The interest in classifications is confined to general char-
acteristics, substance, sources and structure. The essence does not lie in diversity
of rules in a given topic, nor in external criteria and context, only in the affinities
being considered.
Today, what is needed is an entirely fresh approach within which legal systems
can be classified according to parentage, constituent elements and the resulting
* This chapter hails from Örücü, 2004b (‘Family Trees for Legal Systems: Towards a Contemporary
Approach’): 359–75 as well as Örücü, 2004a: ch 10:3.

1 For a summary of some past efforts at classification see Zweigert and Kötz, 1998: 63–7. See
also Bogdan, 1994: 82–91.

170 Esin Örücü
blend, and then be re-grouped on the principle of predominance.2 Although parts

of the new landscape may resemble the old, the whole will look very different.
Existing classifications rely on private law, are Euro-centric and therefore heavily
weighted towards the civil law and the common law families. Moreover, fixed clas-
sifications can have only a limited life-span as legal systems may shift from one
cluster towards another, so that the placing of a legal system in the legal families
framework may have to be re-thought from time to time (Zweigert and Kötz, 1998:
66). New families may appear. For example, it has been suggested that an ‘African
legal family’ is emerging (ibid); and interest in ‘mixed jurisdictions’ is now increas-
ing, such jurisdictions being seen as members of a so-called ‘third family’.3
René David talked of ‘constant elements’ (David and Brierley, 1985: 17–20) and
Konrad Zweigert and Hein Kötz proposed using ‘legal styles’ to discover shared
distinctive elements between legal systems (Zweigert and Kötz, 1998: 67–8).
However, they also pointed out that
as the example of ‘hybrid’ systems shows, any division of the legal world into families, or
groups is a rough and ready device (ibid: 72).
We are also warned:

The suitability of any classification will depend upon whether the perspective is world-
wide or regional, or whether attention is given to public, private or criminal law (David
and Brierley, 1985: 21 and Bogdan, 1994: 85).
Yet in Europe today in search of a ‘new ius commune’, it is commonplace not only
to talk of civil law and common law families, but to treat them as if they are the
only two monolithic entities. Such an approach is inadequate.
In short: traditional classifications, mostly based on the ‘law as rules’ approach
differ as to whether they simplify or multiply the number of legal families, in how
they place various legal families in their schemes, and consider official law and the
‘top-down’ models exclusively. It might be said that the groupings are all ‘legally
structured’, and ‘structure-specific’. An entirely culture-specific approach may not
be conclusive, but the relationship between legal and social systems must be given
due weight. This indicates the importance of sociology of law to comparative
lawyers together with a multi-disciplinary approach.
It is apparent that the ‘legal families’ division based on the ‘law as rules’ approach is
collapsing. Other approaches are being put forward. One such suggestion, presented
as being less biased, is the ‘cultural families’ division based on the ‘law as culture’
approach. On this basis four broad cultures have been distinguished: the African,
the Asian, the Islamic and Western (that is, cultures with European roots—Europe,
America and Oceania) (van Hoecke and Warrington, 1998: 495 at 502).
2 This chapter hails from my ‘Family Trees for Legal Systems: Towards a Contemporary Approach’
Chapter 18 in van Hoecke (ed) 2004b, 359–375 as well as Örücü, 2004a, Chapter 10:3.
3 Note the launching of the World Society of Mixed Jurisdiction Jurists in New Orleans (November
2002), and see Palmer, 2001.

‘Legal Families’ and ‘Mixing Systems’ 171
Adam Podgorecki places legal systems in ten groups: based on official and
intuitive law; based on different types of legitimacy; adequate, guiding and
restrictive; monolithic and pluralist; oppressive (including punitive) and tolerant
(including liberal); based on state and less formal types of conflict resolutions;
self-generated and imposed; accessible and inaccessible; based on religious atti-
tudes of the population; and those rooted in capitalist and communist social
reality (Podgorecki, 1985: 3).
Another approach, giving prominence to yet another context, is the ‘law and
economics’ approach. Here we see how Ugo Mattei tries to draw the taxonomy
away from the so-called Euro-centric axis to present a new map for the world’s
legal systems. This classification is based on the rule of professional law, the rule
of political law and the rule of traditional law, these three forming a triangle on
the apices of which all legal systems can be placed (Mattei, 1997).
Andrew Harding, whose main interest is in South East Asia, categorically tells us
that all Eurocentric comparatists fall into the ‘legal families trap’. According to him,
[l]egal families tell us nothing about legal systems except as to their general style and
method, and the idea makes no sense whatsoever amid the nomic din of South East Asia
(Harding, 2002: 36 at 51).
All the above indicates that scholars fail to agree on whether the notion of families
is basic and scientific, or theoretically and descriptively useless. Those who use the
concept do not even agree on the criteria for classification and groupings.
The discussion might also consider whether there is an emerging ‘European
legal family’, but this would be yet another monolithic approach, a new creation
ignoring developments both within and outside Europe.
Recently there has been increasing interest in mixed, or hybrid systems.
Vernon Palmer calls ‘mixed jurisdictions’ the ‘third family’ (Palmer, 2001)—
the first and the second being for him, civil law and common law; and Jan Smits has
published a monograph entitled ‘The Making of European Private Law: Towards a Ius
Commune Europaeum as a Mixed Legal System’ (Smits, 2002). To talk of a new fam-
ily with the name ‘mixed jurisdictions’, however, would not be satisfactory, as clearly,
not all ‘mixes’ can be pooled together and not all the existing members of such a
family would have the same or similar ingredients. It would be extremely difficult to
place, for example, Quebec and Algeria—both mixed systems—into one family. The
simple mixes, the complex mixes, as well as the dual systems and systems adhering
to legal pluralism cannot be lumped together (see Örücü, 1996).
II. ENCOUNTER, OVERLAP AND COMBINATION
Pier Guiseppe Monateri has suggested ‘contamination’ as the basis for

understanding the world of legal systems:
[T]he actual legal world is more to be seen as a world of ‘contaminations’ than a world
split up into different families (Monateri, 1998: 83 at 107).
172 Esin Örücü
He claims that this idea is neither new nor linked to globalisation since ‘practi-
cally every system, even in antiquity has grown through “contaminations”’(ibid),
the practice of borrowing having always been the normal path of development.
In his view, the
widespread cross-diffusion of French and German patterns within Civil law, and the
overcoming of American models at the present, shape a similar legal landscape all across
the world, with a wilderness of local variants (ibid).
It is true that a comparative lawyer can detect cross-pollination and ‘horizontal

transfers’ between systems at all times.
Surely what is necessary today is a re-assessment of individual legal systems
according to the old and new overlaps, combinations and blends, and of how the
existing constituent elements have mingled and are mingling with new elements
entering them. I propose a scheme that regards all legal systems as mixed and
overlapping, overtly or covertly, and groups them according to the proportionate
mixture of the ingredients. To do this, it is essential to look at the constituent ele-
ments in each legal system and to re-group legal systems on a much larger scale
according to the predominance of the ingredient sources from whence each sys-
tem is formed. The starting point is appreciation of the fact that all legal systems
are overlaps, combinations and mixes to varying degrees.
Thus, some continental systems, such as the Dutch, are combinations of
Roman, French, German and indigenous laws, and some are combinations of
Canon, Roman, French, Austrian and German Laws and ius commune, such as the
Italian. Indeed, all European systems can be better approached as overlaps. Then
there are other combinations such as common law, religious law and indigenous
customary laws, as in countries such as India and Pakistan; and French, Socialist,
Islamic and indigenous customary tribal laws, as in Algeria. In fact, French law,
German law and common law are themselves all outcomes of overlaps of various
ingredients. English law is becoming more and more an overlap of common law,
various civilian systems and European law. Indeed, classical English common law
itself was an overlap of Roman law, civilian ideas, canon law, equity and domestic
common law.4 In this approach the underlays and the overlays must be care-
fully distinguished, because layers may also shift their positions. For example,
in Hong Kong, until 1990, English common law was the overlay, with Chinese
customary law the underlay, but now, common law is becoming an underlay
alongside Chinese customary law, both under a growing overlay of modern
Chinese law.
This approach would particularly help the classification of systems such as
those of Malaysia, Singapore, Burma and Thailand. In fact, the whole of South
East Asia would be better served by this approach. In this way, off-shoots and
sub-groups can be more clearly seen and catered for. For example, since the end of
4 For contributions from Islamic and Talmudic laws into common law, see the literature men-
tioned by Glenn, 2001 133 at 141–2. See also Glenn, 2005.

the 19th century, Thailand, which was never a colony, has had in its modern tex-
ture a real mixture of sources such as English law, German law, French law, Swiss
law, Japanese law and American law. These sit alongside historic sources which
have been in existence since 1283: rules from indigenous culture and tradition,
customary laws and Hindu jurisprudence are still to be found in some modern
enactments. In addition, Thai codes were originally drafted in English and French
and subsequently translated into Thai. So, where could this legal system be placed
in the traditional classification of legal families?
The same question can be posed for Malaysia, where first there was the ‘native’
law of the aboriginal inhabitants which is still today regarded as positive law by
courts. Then came layers of transplanted law: adat law (a number of Malay cus-
toms); Hindu and Buddhist laws; Islamic law; Chinese law; Thai law; the English
common law tradition coloured by Anglo-Indian codes and the United States
model. There are further influences in South East Asia: French, Dutch, German,
Swiss, Portuguese and Spanish Civilian traditions; American, Japanese and Soviet
laws (Harding, 2002: 36 at 42–3). The region
has an abundance of legal traditions, practically all of them having been ‘received’
or ‘transplanted’ in one sense or another, and encompassing all of the world’s major
legal world views and systems … except perhaps for African law and Eskimo law (ibid:
36 at 47).
Which of the commonly used classifications deal with these?

Of special interest are four kinds of encounters between legal systems, legal cultures
and socio-cultures: (see Örücü, 1995) those between systems of socio- and legal-
cultural similarity; those between systems of socio-cultural similarity but legal-
cultural differene; those between systems of socio-cultural difference but legal-cultural
similarity; and those between systems of both socio- and legal-cultural difference.
These encounters lead to overlaps, interrelationships, mixed and mixing systems and
systems in transition. Law can be approached as the product of a process of transposi-
tion. The concept ‘transposition’, as in music, helps to highlight the crucial importance
of the internal tuners who adjust the mix, adapting it to the new instrument (see
Örücü, 2002).
Considering legal systems as overlaps, combinations, marriages and off-spring
leads to terminology such as fertilisation, pollination, grafting, intertwining,
osmosis and pruning, which paves the way to an understanding of developments
in our day.
In linguistics, the ‘tree model’ of language development reflects an evolutionary
approach and is the one generally used to explain ramification and divergence.
The ‘wave theory’, on the other hand, showing that changes can spread like waves
over a wide area, can also handle the equally important forces of convergence,5
as can ‘diffusion’ (Twining, 2004). However, similarities do not always arise from
5 See, for an analysis of these theories, Renfrew, 1987, especially 105 at 244–8.
174 Esin Örücü
genetic relationships, neither does resemblance necessarily indicate common

origin. There can be ‘horizontal transfers’ between adjacent systems. ‘Horizontal
transfer’ can also explain why a borrowed concept or institution does not always
exactly retain its original meaning. Areas nearest or adjacent to the initial change
will change first and may even give up their own peculiarities. Subsequent re-
groupings may come about on the ‘wave model’ mentioned above. Thus, conver-
gence can occur between concepts or systems that were originally very different.
It flows from the foregoing that a wave need not start from a fixed centre either.
Developments can take place in steps with no one locale as the prime innovating
centre. It is not necessary to depict one as the donor and the other the recipient.
In this perspective, there is no one localised homeland but ‘cumulative mutual-
ity’. Interaction is the essence. The ‘tree model’ and the ‘wave model’ can be used
together to explain developments; so can the ‘knock-on-effect’. This combined
approach indicates a way forward for an understanding of how legal systems func-
tion, change and develop.
Civil law and common law would appear near to, but not necessarily at the
prime innovating center. It is of course, possible to go right back to the laws of
Hammurabi and to Greek laws before even considering Roman law—the ingre-
dients of which possibly included elements of Hindu law through Egyptian and
Greek channels—as the starting point of civil law.
When one looks at legal cultures and traditions, one sees that civil law and
common law are but two of the ancestors, others being, according to one divide
for instance, Chthonic, Talmudic, Islamic, Hindu, and Asian (Glenn, 2000). Even
then, Patrick Glenn says:
In looking at (only) seven legal traditions of the world, it has been impossible to avoid
the existence of other recognisable legal traditions. Some might say the other legal tra-
ditions are minor ones, which complement or oppose the traditions which have been
examined. This may or may not be accurate, since there are no well established criteria
for distinguishing major from minor traditions … If the traditions in law which have
been examined here … appear presently as the major ones of the world, it may be that
this is only a conclusion of first impression, and that there are other legal traditions …
which are still more profound and which await investigation, and recognition, as being
of primary importance (Glenn, 2000: 318–19).
So we see that combinations have taken place between systems and sub-systems
of different origins. It may be difficult to determine with exactitude the degrees
of hybridity when there is much overlap, cross-fertilisation, reciprocal influence,
fusion, infusion, grafting and the like. The simple conclusion is that there are no
pure systems in the legal world and that there are various degrees of hybridity
arising from different levels and layers of crossing and intertwining between the
roots and branches of adjacent ‘family trees’.
Some of the off-spring showing overt signs of their different legal-cultural,
racial, ethnic and religious origins, have already been grouped as ‘mixed jurisdic-
tions’, and treated as numerus clausus. However, there are many overt and covert
mixtures that are the off-spring of the same or of other combinations.
Even within the continent of Europe, one can see complicated crosses such as
those in Malta (Ganado, 1996), where legal history began with the Phoenician
settlement and continued with the Roman conquest bringing the Corpus Iuris.
Then the Normans invaded and brought feudal law as applied in Spain, Naples
and Sicily. The invasion of the Moors had direct influence on the Maltese
language. The sovereignty of the Knights of St. John recognised local usage
and issued declarations of private law drawing on laws of other countries,
mostly Italian. Then came the French with their Napoleonic laws. Finally, the
British brought the common law. So here in Malta we see a good example of
an eclectic criminal code drafted under a strong Italian influence but with
pervasive English and Scottish impact, and a commercial code largely based on
the French, with maritime law following English law. The 1873 Civil Code is
predominantly based on the French and Italian codes and also on the Municipal
Code de Rohan, the Civil Code of Louisiana and the Austrian Civil Code.
Canon law applies in the realm of family law where there is also the influence
of English law, German law, Italian law and French law. Constitutional law is
mainly British. The official languages are Maltese and English. The ingredients
work cumulatively and interactively.
There are, of course, even more extreme and unexpected crosses. Sometimes,
seeds are scattered even more widely. For example, Turkey is a cross between
Swiss, German, Italian, French and Roman laws, a covert Islamic law and local
customary law, as well as more recently, European law and American law. This was
brought about as a result of grafting, pruning, tuning and intertwining by an elite
concerned with changing not only the law and legal culture but the people them-
selves and the way of life from the traditional to the modern, by the introduction
of radical social reform laws to accompany the forging of a new legal system by
receptions from abroad (see Örücü, 2006).
It is possible to say that European law today reflects combinations between
common law—such as Irish, English and American laws—and civil law in its
many varieties—such as German, French, Dutch and Danish laws—as well as the
laws of mixed jurisdictions, such as Scottish law, all with their own diverse his-
toric ingredients. An enlarged Europe will have even more to accommodate, as it
will have to engage with socialist law and legal culture and other varieties of the
civilian tradition. The status of Islamic law and its impact in Europe is now an impor-
tant subject of study. As people are on the move in Europe, so are legal systems.
One can no longer concentrate solely on what are regarded classically as the
great ‘parent’ systems (Zweigert and Kötz, 1998: 41).
The ‘family trees’ approach I proposed (Örücü, 2004a; and Örücü, 2004b) is
initially deconstructive and critical. After deconstruction, the aim is to reconstruct
a more reliable map of the legal systems of the world.6 Distinctiveness cannot be
6 The question still remains, however, whether this approach could go far enough to embrace
legal pluralism and all layers of law such as the global, international, regional, transnational, inter-
communal, territorial, state, sub-state and non-state, in the mapping. See Twining, 2000: 136–41.
176 Esin Örücü
ignored, and even when comparative law is used as an instrument of integration

in Europe, one must be aware of the virtues in ‘distinction’ and ‘diversity’. Whereas
in classical classifications only ‘similarity’ mattered, in the ‘family trees’ approach
‘distinctiveness’ matters as well as similarity. The relevant degrees of distinction
and similarity decide on the place of a legal system. The ‘family trees’ project rests
on the assumption of fluidity.
In this attempt at re-aligning legal systems and placing them on their
genealogical trees, we must consider transpositions, reciprocal influences and
cross-fertilisation, both horizontally and vertically. Transpositions tell us much
about the development of the law and allow us to understand cultural and legal
navigation as well as the role of tuning in legal development.
Legal systems have always looked to each other for law reform. The legal systems
of today, most of which are in transition, need models that are socio-culturally
and/or legal-culturally different from their own. History tells us that when legal
systems of diverse socio- and/or legal-cultures meet, the diverse elements co-exist
side by side in the resultant legal system (Örücü, 1995; and Örücü, 2002).
Some of the terms employed for analysis of movements today are ‘seep-
age’, ‘contaminant’, ‘irritant’, ‘underlay’, ‘overlay’, ‘cross-fertilisation’, ‘incremental
reception’, ‘competing systems’, ‘hyphenated’ legal systems, ‘layered law’, ‘chance’,
‘choice’, ‘prestige’, ‘efficiency’, ‘elite’ and ‘historical accident’. Any one of these terms
may be appropriate for the analysis of a specific move and for the explanation of
a specific growth.
In the past many shoots sprouted on the family trees through impositions
and colonial contact. Indeed, the English common law has been likened by Lord
Denning to an ‘oak tree’ which grows only in English soil and if this tree were to
be planted elsewhere, it would need to be severely pruned.7
Today we do not live in a period of imposition or solely in a period of volun-
tary reception. It is a time of imposed reception—a seemingly voluntary activity
of import under circumstances in which the exporters hold all the cards. In this
market, the exporter packages and labels his model as the one to be preferred
over others. Such imposed receptions are frequently seen in the Central and East
European states, and within the context of European integration. While the con-
tinental civilian systems are trying to impose civilian type codes on the English
common law, the English common law is introducing the system of judge-made
law to them. Whatever the means, the end result will be more transposition, more
intertwining and more new shoots.
Past receptions from civil law and Roman law into English law for
instance, have been called ‘sporadic receptions’ or ‘injections’, with ‘civil law based
reasoning filtering into common law’ (Ibbetson, 1998: 224 at 228) ensuring that
7 Denning LJ (as he then was) in Nyali Ltd. v Attorney General [1955] 1 All ER, 646 (CA) at 653.
This case and opinion is also quoted by Mubirumusoke, 1978:131 at 154.

English law was constantly enriched. However, any rules based on Roman law or
the later ius commune ‘were immediately cut off from their roots’, and ‘assimi-
lated into the specifically English framework, and given life outside their original
context’. The resultant new law ‘did not remain in dialogue with the old law from
which it derived’, and ‘once the borrowings are cut off from their roots they cease
to be part of the same culture’ as they grow in the new soil. Therefore, the influ-
ences were not systematic and the solutions did not remain the same. Nevertheless,
these affected the growth of the tree. Today, European law is regarded by many as
an ‘irritant’ or a ‘contaminant’ of the common law. Again, the results will become
apparent in the manner of the tree’s growth.
To sum up: as comparative lawyers, our main work now is to deconstruct the
conventionally labelled pattern of legal systems and to reconstruct them with
regard to origins, relationships, overlaps and interrelationships, and diverse ‘fer-
tilisers’ such as the social and cultural context, and the ‘grafting’ and ‘pruning’
used in their development. In this way the comparative lawyer can draw up family
trees, leaving ample space for newly forming growths.
III. MIXING SYSTEMS
The conclusion, then, is that all legal systems are mixed. There are no exceptions.
Only the ways of mixing and the character of the ensuing mixtures are different.
The level of combination and therefore the extent of the mix varies (see Reid,
2003). The word ‘mixed’ is now much more frequently used and has acquired
many different meanings: a ‘combination of various legal sources’; a ‘combination
of more than one body of law within one nation, restricted to an area or to a cul-
ture’; ‘the existence of different bodies of law applicable within the whole territory
of a country’; and ‘legal systems that have never had a single dominant culture’.
It has been pointed out that ‘mixed’, as in ‘mixed jurisdictions’, implies a
historic fact, a reality and a ‘local jurisdiction’, whereas the emphasis should be on
‘experiences in encounters’ and therefore, the ‘encounter’ and the ensuing dynamic
exchange should be highlighted (Kasirer, 2003: 481 at 488). Patrick Glenn, who
analyses the encounters between the various common laws of the world—which
he calls ‘relational laws’—sees ‘mixed systems’ for instance, as places of conflu-
ence of these common laws which he regards as in ‘ongoing interdependence’;
places where we see an unsuccessful ‘process of exclusive appropriation of one of
the common laws’. However, he also foresees a decline in the significance of the
notion of the historically designated ‘mixed jurisdictions’ ‘with the increase in
importance in the world of overlapping laws’ today (Glenn, 2005: 119).
Instances of mixing are complicated. They may be overt or covert, structured
or unstructured, complex or simple, blended or unblended, and are often difficult
to define. When talking of ‘mixed legal systems’, the importance of the ‘ongoing
mixing’ of legal systems must also be considered. In ongoing states of ‘mix’, a wide
178 Esin Örücü
knowledge is required to fully analyse this phenomenon, since many systems are
shifting and in transition, and new types of mixes are constantly coming into
being.
The new ‘mixes’ are like cake mixes, where the outcome is not precisely known
until the cake is fully cooked. There is always the chance of the cake being spoilt
by under or over-cooking. Moreover, whether the final taste of the cake retains
the taste of the individual ingredients, whether the cake tastes ‘right’ in the mouth
and whether the recipe is a good one cannot be determined until the cake is
eaten. However, in legal mixes the degree of success cannot be measured as eas-
ily. Neither can ‘success’ be defined from a single standpoint. Pre-determined
economic, social, cultural, religious or ideological ends are all factors by which
success is measured. Efficiency, internalisation, cultural shift, and the actual use
of the new legal structures can all be criteria for measurement.
It has already been said that all systems are in fact separate and distinct. All
differ in the way they have been formed, as their histories show. All have elements
from different sources. Systems also differ in the way the legal elite react to their
mix, handle it and tune the incoming legal elements to mould them into a legal
system. In addition, systems differ as to how the mix is sustained, nurtured or
killed (see du Plessis, 1998). In all these senses each system is unique. However, as
well as having features that are unique, each has features shared with others and
features common to all. This enables us to study mixed systems both separately
and together.
In addition, a study of a legal system 50 years ago and again today may reveal
considerable changes in its structure, context and conceptual infill, and also in the
attitude of lawyers, academics and people to it and its ‘mix’.
Sometimes ‘mixedness’ can be the manifestation of a transition, sometimes it
can be a final outcome of the process. When ‘mixedness’ is the end result and is
there to stay, this state of ‘mixedness’ justifies applying the term ‘mixed jurisdic-
tion’ to the legal system. It must be recognised that mixed systems share their
‘mixedness’ to a higher or lower degree with these other mixed systems called
‘mixed jurisdictions’. ‘Mixedness’ is usually a result of historical accident and
accidents can lead to unexpected outcomes along unexpected paths. Thus, mixed
systems can be viewed along a spectrum. As a general observation, one can start
with simple mixes8 where the blend is mainly between two Western traditions—
the civilian and the common law. This blend is as to content and substance, and
not necessarily as to structure, although some of these systems have codified their
civil laws, such as that of Louisiana, and some have not, such as that of Scotland.
Today, at the substantive level, all legal systems are mixed, whether we regard them
as mixed legal systems or not.
Scotland for instance, designated as a classical ‘mixed jurisdiction’, has one
of these simple mixed systems, a system ‘mixed’ only at the substantive level. Its
8 See, for an analysis of mixed systems, Örücü, 1995 and Örücü, 1996.
history is unusual. The path of the migration of law from different sources into
Scots Law was seepage, imitation, inspiration, voluntary reception and imposed
reception. The starting point was Scots customary law, which was then overlaid
by Anglo-Norman law, canon law, Roman law and European civil law, and later
in modern times by English law. Further, the system now has to absorb European
Community law and European human rights law.
The Scottish mix did not ‘result from the imposition of the Common Law upon
a Civilian system by a colonial power, as in Louisiana or South Africa’, but rather
from the close cultural and political ties with the jurisdictions of both traditions
‘at different stages of its history’ (Reid, 2001). Thus the Scottish legal system can
be regarded as being a system ‘mixed from the very beginning’ (Sellar, 2000), while
Scottish jurists created the ‘mix’ by selecting ‘the best’ of the ingredients from
various sources. However, the exact balance between the elements of this ‘mix’ in
modern Scots law has long been, and still is, the subject of constant controversy
at home and abroad.
Since, through cross-fertilisation and horizontal transfers, all legal systems
within the European Union will eventually mix to some degree, a study of legal
systems already mixed can provide valuable lessons for these mixing systems,
and therefore the study of how they work is fruitful. In fact, mixed legal systems
have always been the ‘laboratories’ of comparative lawyers, their ‘vantage point’
(Kasirer, 2003). Now they have gained a special place in the process of European
integration. Jan Smits, for example, says that mixed legal systems will provide
‘inspiration’ and that the experiences of South Africa, Scotland, Quebec and
Louisiana are consequently of great importance for the future developments of
European private law (Smits, 2001: 9; and Smits, 1999: 25 at 35).
The existence of ‘mixed legal systems’, the creation of new mixes, and the pres-
ent process of mixing may prove to be problematic for those who adhere to the
definitive role of the cultural context. Unless one starts from the premise that
‘mixedness is itself the culture’, there is no easy way forward. Even if one does start
from that premise, one has to probe into the generation of the ‘mixedness’. This is
related to ‘horizontal transfer’, the possibility of which in turn is refuted by those
who state that ‘legal transplants are impossible’ (Legrand, 1997; and Legrand,
2001). So we can end in an impasse.
Obviously the mixed legal systems that attract attention in the European inte-
gration process are the simple ones, the ‘mixing bowl’ type,9 with only a limited
number of ingredients. For seekers of a new ius commune, one of the obstacles is
that the ingredients to be blended or interlocked come from two different legal
cultures—the common law and the civil law—and this, notwithstanding the variety
that exists among the systems that belong to the so-called civil law tradition.
We must not limit our view of the world of ‘mixing’ to the confines of the
European Union or the Western world, however. When looked through the lens
9 See, for the coining and explanation of such terminology, Örücü, 1995; and Örücü, 1996.
180 Esin Örücü
of history, we see that many of the mixes of the past were formed by strong move-
ments of transmigration of legal institutions and ideas, mostly in the form of
impositions, and of divergent linguistic, communal or religious traditions. Legal
systems are constantly mixing, blending, melting, and then solidifying into new
shapes as they cool down, while transposition and tuning take their effect. There
will always be new movements, new transposition and further tuning. As noted
earlier, law is the outcome of a series of transpositions and legal systems are born
out of overlaps.
Yet, as a consequence of transmigration of law, problems do arise. Systems that
are mixing are evolving, are in transition, are inter-related or are in the process of
becoming mixed systems. Special attention must be paid to legal-cultural conver-
gence and non-convergence that may come about as a result of legal import, and
to any ensuing socio-cultural non-convergence. In this context, cultural plural-
ism, the clash of diverse cultures, and the consequences for the importing legal
system are of particular contemporary interest, and legal pluralism is another
significant concern.
As has already been observed, mixed systems can be visualised as lying along
a spectrum. At the far end of the spectrum is the position where transposition
has not worked and the official legal system has ‘curdled’ and is dysfunctional, as
is the case in Burkina Faso and Micronesia (see Tamanaha, 2001: xi–xii). At the
other extreme is the position where the transmigration works smoothly, because
of extensive similarities in structure, substance and culture and fine ‘tuning’ such
as in The Netherlands. Between these extremes lies a range of places. The com-
position of each depends on conditions such as the size of the transmigration,
the characteristics of the legal movement, the degree of success of transpositions
and ‘tuning’, the element of ‘force’ or ‘choice’ inherent in the move and the social
culture of the new environment.
At times, elements from socio-culturally similar and legal-culturally differ-
ent legal systems come together forming ‘mixed jurisdictions’ of the already
mentioned ‘simple’ kind, which I call ‘mixing bowls’, the ingredients being still
in the process of blending but in need of further processing if a ‘purée’ is to be
produced. An example of this type is Scotland as seen above. Next come the
‘complex’ mixed systems, where the elements are both socio-culturally and legal-
culturally different. I have called this type the ‘Italian salad bowl’, where, although
the salad dressing covers the salad, it is easy to detect the individual ingredients
clearly through the side of the glass bowl. A good example of this is Algeria. Then
there is what I call the ‘English salad plate’, the ingredients sitting separately, far
apart on a flat plate with a blob of mayonnaise at the side into which the different
ingredients can be dipped before consumption. Examples of this are the Sudan
and Zimbabwe, which lie towards the far end of the spectrum. The examples
become more extreme along the path, ending in ‘curdling’, with a dysfunctional
legal system, as already mentioned.10
10 For a picture of this spectrum see Örücü, 1995; and Örücü, 1996.
The more complex mixes might appear in places where the legal system or the
law is based on, or heavily determined by, religion or belief, but they could also
be in places where unexpected events are happening. Examples of this are: Hong
Kong, where in its relationship with China there is talk of ‘one country two sys-
tems’; Hungary, where there was a civilian tradition with no civil code, a socialist
era with some freedom for the civilian tradition to live on and where there is now
a new era of transformation; and Turkey, where the dominant elite had a ‘vision’
which entailed changing not only the legal culture but also the socio-culture by
employing foreign legal models leading to the erasure of the indigenous ones,
followed by a ‘limping marriage’ with the European Union. Transmigration of
laws might take place between legal systems of both legal and socio-cultural
diversity, creating either legal pluralism, a mixed jurisdiction or hybrid system, or
unexpected results under pressure from an ‘élite dominante’. Sometimes there are
overlaps between these meanings, and a place could have a ‘complex’ system in
any or in all these senses. These systems obviously defy the traditional theory of
‘legal families’, classical paradigms being totally inadequate.
However, as ever, an evolutionary dynamism emerges and systems go their own
way. There can never be sameness. Concepts or institutions coming into different
environments begin to change and internal ‘contamination’ occurs. Here the ‘wave
theory’ of linguistics already referred to, which shows how change spreads like
waves over a whole area and which can handle both resemblance and difference,
may aid our understanding.
When the Euro-centric spectacles are removed, the comparative lawyer imme-
diately sees that indigenous laws rarely consist of single homogenous systems.
Many indigenous legal orders and social orders can live side by side. To find,
understand and re-present this law can be extremely difficult, especially when
some of it is unwritten and some written but imperfectly translated. For example,
in many Asian systems Western law was added to the religious laws of Hinduism,
Buddhism, Confucianism and Islam, which themselves co-existed prior to
colonisation. The mixture was also complicated by the fact that not all laws
were applicable to all peoples, different parts of the population being classified
as ‘foreign Orientals’, ‘assimilated Asians’, ‘Europeans’, ‘non-natives’ or ‘natives’.
The resultant mixture continues to give rise to problems in countries such as
Indonesia, Taiwan and Malaysia even today. The comparative lawyer must under-
stand the relationship between these layers of systems in order to depict such
systems in transition today.
In summary, transmigration of law has followed the paths of colonisation,
re-settlement, occupation, expansion, and inter-relationship. The methods of
these migrations were imposition, reception, imposed reception, co-ordinated
parallel development, infiltration, imitation, and variations and combinations of
these. The consequences have been the birth of systems in transition and mixing,
mixed jurisdictions, inter-related systems, evolving systems, layered-law, hyphen-
ated legal systems, harmonisation, unification and standardisation. There are
conceptual implications in all this.
182 Esin Örücü
Reciprocal influences must be examined in new ways, since the emphasis, the
consequences and the means are different to those of the past. Most obvious
‘reciprocal influence’ today is in Europe within the European Union, but transpo-
sitions from the Western legal traditions to the Central and East European legal
systems are of greater importance. Beyond Europe, other cross-fertilisations are
taking place. One such is that between China and Hong Kong. The consequences
are the birth of a ‘new genre of mixité’, more ‘complex’ mixes, the blurring of the
demarcation lines between the generally accepted classifications of legal families,
and the emergence of new clashes between legal cultures themselves, or legal
cultures and socio-cultures. The means are apparently voluntary reception rather
than colonisation and imposition as in the past, though imposed receptions are
more prominent in some instances.
Many legal systems are experiencing fundamental upheaval, some re-shaping
themselves in social, economic and legal terms, with the help of outside models
chosen from competing systems. They are systems in transition. Some, living
within certain regions or groupings, are fundamentally affected by reciprocal
influences. Some others are swayed by globalisation. Comparative lawyers must
approach this new world with improved tools.
As seen above, it has been suggested by Vernon Palmer that we should be
talking of a new ‘third legal family’ alongside the common law and the civil law
families with the name ‘mixed jurisdictions’, to include a number of historically
determined mixes which he regards as sharing certain characteristics. These sys-
tems, Palmer says, ‘are built upon dual foundations of common-law and civil-law
materials’—that is, there is a ‘specificity of the mixture’; the mix is obvious to both
insiders and outsiders—that is, ‘obvious to an ordinary observer’; and the private-
law sphere has ‘the outward appearance of a “pure” civil-law system’, whereas the
public law sphere ‘will appear to be typically Anglo-American’—that is, there is
a ‘structural allocation of content’. According to him, these ‘are the lowest com-
mon denominators of a mixed jurisdiction’ (Palmer, 2001: 7–9; and Palmer 2006:
467–8).
The concept of ‘mixed jurisdictions’ is used by Vernon Palmer in a narrow and
conventional sense, which considers only co-existing and commingling between
the civil law and the common law—that is ‘simple’ mixes—and talks of a ‘closed
family’ of 15 members, with seven of them studied in his work.11 His entry ‘Mixed
Jurisdictions’ in the Elgar Encyclopedia of Comparative Law, starts with a summary
of his views.
‘Mixed jurisdictions’ as they are classically called, make up roughly 15 political entities,
of which 11 are independent countries. Most (excluding Scotland and Israel) of these
11 These are Israel, Louisiana, the Philippines, Puerto Rico, Québec, the Republic of South Africa
and Scotland. One could take issue even with some of these systems which have also other ingredi-
ents, such as Israel. Zimmermann says that Palmer uses the term ‘mixed legal systems’ in a restricted,
technical sense (Zimmermann, 2004: 3).
are the former colonial possessions of France, the Netherlands or Spain which were
subsequently transferred to Great Britain or the United States (Palmer, 2006: 467).
This is only a partial answer, as clearly not all ‘mixes’ can be pooled together and
not all the existing members of such a family would have the same or similar
ingredients. It would be difficult for example, to place Scotland, Quebec, Hong
Kong, Thailand and Algeria—all mixed systems—into one family. Simple mixes,
complex mixes, and dual systems and systems adhering to legal pluralism cannot
be all grouped together.12 Even if we were to accept that Palmer’s 15 individual
legal systems share certain characteristics to justify placing them together and to
give this conglomeration the status of a ‘third family of mixed jurisdictions’, what
of contemporary mixing systems and systems in transition? How would these be
grouped and analysed? Palmer’s attempt does not solve the problems of under-
standing and analysing the world we live in today.
One other approach is that offered by Anthony Ogus, who looks at mixed or
‘hybrid’ systems through the lenses of a ‘law and economics’ scholar and places
them into three categories (Ogus, 2001). In his first group are those systems
‘where a culture was imposed by a colonialist power, but where a native culture
persisted to some degree’. In this category the native culture ‘competes’ with the
imposed culture. He gives many African countries as examples. ‘Countries which
have experienced successive colonialist or other occupation’ fall into his second
category. Here, each successive foreign culture has had a major impact on the legal
culture and competes with the others. The examples he chooses for this category
are Quebec, Louisiana and South Africa. Countries
which experienced industrial and commercial development relatively late and where
rulers recognised the need to look elsewhere for more sophisticated legal input than the
domestic legal system could provide (Ogus, 2001: 36).
form his third category, his examples being Japan, Turkey and Greece. Ogus says
that in this category ‘there were effectively “tenders” from several major legal
cultures to supply the necessary set of specifications’. East European States using
Western models for law reform are also regarded as falling into this category,
though ‘in somewhat different circumstances’ (ibid).
Anthony Ogus offers some predictions for the future. He is of the opinion that
the three categories share characteristics that separate them from legal systems
12 A number of examples follow:

• mixed systems with civil law and common law: Botswana, Cyprus, Malta, Mauritius,
Seychelles;
• mixed systems with civil law and customary law: Burundi, Burkina Faso, Ethiopia, Mali, South
Korea, Japan;
• mixed systems with civil law and Muslim law: Algeria, Egypt, Syria, Tunisia, Brunei;
• mixed systems with civil law, common law and customary law: Cameroun, Sri Lanka, Vanuata,
Zimbabwe;
• mixed systems with civil law, common law and Muslim law: Iran, Jordan, Somalia, Yemen;
• mixed systems with civil law, Muslim law and customary law: Djibouti, Eritrea, Indonesia.
184 Esin Örücü
with one dominant culture. The expected outcome is that mixed systems will be
‘more efficient, and adapt more readily to changing external variables, than those
with a single dominant culture’, though much depends on how the competition
works. Of course, there is always the possibility that optimal selections may not be
made from between the different ‘tenders’. The ‘rents’ to be enjoyed by a particular
foreign legal system may be too attractive for domestic lawyers trained in that
system to resist. Despite such problems however, from the ‘law and economics’
point of view, the future is quite bright for mixed systems. They should, ‘unless
obstructed by private interest groups allied to a particular culture, adapt more
readily to efficient legal reform’ (ibid: at 36–7). Comparative lawyers need to con-
sider what contribution does a ‘law and economics’ approach have in assessing
‘mixed systems’ over and above other approaches.
We should ask ourselves whether the examples referred to in this chapter could
be better understood using the approaches suggested by Anthony Ogus or Vernon
Palmer.
One of our examples was Malta, which has now joined the European Union.
What kind of new mixing can we expect? How is it possible to fit this mixture into
any of the suggested categories?
Another example was Thailand, which was never a colony. Its modern texture
has been formed from many sources and the legal system of today still grapples
with problems of translation and connotation. How, then, are we to categorise
Thailand?
Turkey, yet another example, was placed by Anthony Ogus in his third cat-
egory. It might fit there. But does that aid our understanding of the system as it
works? Further still, can his predictions for future success apply here? Turkey is
now trying to assimilate many European Community Directives and the ‘acquis
communautaire’ in the hope of joining the European Union. One of the condi-
tions is the ‘improvement of the legal system’ and further ‘modernisation’ of the
law, ‘modernisation’ being understood to mean further elimination of ‘traditional
values’. What does the future hold for this mixture?
Although not ‘mixed jurisdictions’ in Vernon Palmer’s sense, the three examples
above are certainly ‘mixed’ and ‘mixing’ systems, the various elements from differ-
ent sources being woven into the tapestry of their laws.
IV. CONCLUDING REMARKS
All legal systems are born of different parentage, from marriages between systems
and sub-systems of such. Some parents cohabited, some had life-long and some
passing relationships. It is difficult to determine the exact level of hybridity in
each legal system. What is clear, however, is that combinations of disparate legal
and social cultures give birth to mixed systems. Later formations of such systems
are by horizontal transfer. Overlap, cross-fertilisation, reciprocal influence, fusion,
infusion, grafting and the like are all responsible for the coming into being of
mixed and mixing systems, all forever in flux, as are all legal systems. As is now
widely acknowledged, there are indeed no pure systems in the legal world and
various degrees of hybridity arise from various degrees, levels and layers of cross-
ing and intertwining.
It is obviously easier to handle such legal systems when there are clear signs
of their different legal cultural, racial, ethnic and religious origins. Some of these
systems have already been grouped as ‘mixed jurisdictions’ and are treated as
numerus clausus as noted. However, as has also been pointed out, there are many
other overt mixes with different origins. More important still, there are also covert
mixtures, the results of the same or of other combinations. It is the covert and the
ongoing mixes that really tease the comparative lawyer.
It follows from the foregoing that awareness that law is not static, that it
moves and changes and that legal systems today are at a crossroads, is essential.
Irrespective of whether the future holds confluence or divergence for legal sys-
tems, one thing is certain: more and more systems will be mixed and mixing, be
they in Europe, in South East Asia or the Middle East. In line with these develop-
ments, comparative law research itself is at a cross-roads, and the new turning
point is to study this process of ‘mixedness’ in order to facilitate an understanding
of current and future patterns of legal development. It is the study of this ‘mixed-
ness’ that can illuminate the path towards the comprehension of the interaction
of law and culture.
1. Are the suggested terms ‘transposition’ and ‘tuning’ the most appropriate
terms for movements of law? Explain with examples.
2. Should the ‘transplant theory’ be re-considered? If yes, how?
3. Can ‘mixed systems’ be analysed in general terms? Can there be a satisfac-
tory definition of a ‘mixed system’? Discuss.
4. How is the existence of mixed systems to be reconciled with the classical
classifications of legal families?
5. Discuss various outcomes of movements between systems.
6. Palmer regards mixed jurisdictions as a new ‘third family’. Assess this
view.
7. Are there shared characteristics of mixed jurisdictions? If yes, what are
these characteristics?
8. Should mixed legal systems be studied more as experiences in encounters,
‘meeting points’ or ‘points of contact’ rather than as jurisdictions?
9. Do mixed systems represent cross-cultural dialogue?
10. Analyse ‘mixed’ as a historical reality and ‘mixing’ as an ongoing flux.
11. What questions arise when the system of laws of one country is taken over
by another? What chances are there that the new law will be adjusted to
the home environment and what are the risks that it will be rejected?
13. Which of the classifications and criteria used to group legal systems into
legal families do you find most helpful?
186 Esin Örücü
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9
Beyond Europe
WERNER MENSKI
KEY CONCEPTS
Globalisation; Harmonisation; Indian law; Legal families; Legal uniformity,

Muslim law in India, Post-divorce maintenance; Transplants; Uniform Civil
Code.
I. INTRODUCTION
I
n this chapter, I explore the stony yet immensely fertile field of compara-
tive law beyond Europe and argue that, largely for historical reasons, Asian,
African and other non-Western legal systems seem inherently more attuned
than Western legal systems and scholars to the intellectual and practical challenges
of comparative law and legal pluralism. Non-Western legal systems appear
deeply aware of the mixed nature of all laws, and have been acutely conscious
of the dynamic nature of legal systems as constantly negotiated entities that can
be manipulated in many ways to achieve desired outcomes (Menski, 2006a).
While non-Western legal systems and concepts have been systematically belittled
over the past centuries, a side effect of globalisation and of post-modernity is a
notable current resurgence of acknowledgment that legal systems beyond Europe
need to be studied in their own right and have a legitimate place on the global
tree of law (see Örücü, 2004). At the same time, this complex process of post-
modern and largely post-colonial re-thinking remains shackled by ‘white’ colonial
presuppositions.
Practical pressures and enhanced historical awareness have propelled some
modern legal systems beyond Europe (about which we generally know far too
little) to construct plurality-conscious models of handling legal diversity and
conflicting concepts. This happens in hotly contested environments, sidetracked
by politically motivated assaults of ‘modernists’ as well as ‘traditionalists’,
in a spirit of implied commitment to what universalist scholarship tends to
call ‘human rights’, but which manifests itself as situation-specific ‘justice’ or
‘equity’. Since such legal developments beyond Europe retain deep respect for
the internal plurality of traditional rule systems and processes, they are easily
190 Werner Menski
misconstrued as commitments to traditionalism. This has led to anguished

inconclusive debates about whether there are legitimate value systems under-
lying different human rights conceptualisations across various legal cultures
(Renteln, 2004). The critical question, then, becomes, at a global level, whose
values we accept as conducive to justice.
At the same time, the necessarily hybrid legal constructs in Asia, Africa and
other regions of the South have been achieved without giving up the vision of
harmonisation as practically advantageous in a global world and in modern
nation states. Of much interest to comparative lawyers, pluralism and legal
uniformity appear everywhere beyond Europe in multiple contests. After some
contextualisation, this chapter provides two Indian case studies of plurality-
conscious legal constructs, demonstrating how Hindu law, Islamic law and other
legal systems can co-exist within a national legal regime and can all contribute
to a culture-specific, composite national identity unique to a particular country.
This may serve as a model for other nations in terms of coping with diversity and
difference, not only outside Europe. It is also a lesson in how to ‘do’ comparative
law beyond Europe.
II. THE CONTEXT OF THE FIELD
Having accepted an impossible brief, I start with the comment that law
beyond the Bosporus and Gibraltar, and similarly beyond the Mexican border,
is still little known among most Western scholars, who tend to have outdated
perceptions of what laws the people of these Southern regions actually follow.
These are the vast majority of today’s world population, mainly brown and
black people, with their own laws, partly transplanted from the North, but
by no means just inferior copies of Western legal systems.1 Legal scholarship
world-wide has not yet overcome centuries of Euro-centric legal study assum-
ing that Enlightenment and legal theory were produced—and are owned—by
the West. As a result, one finds the odd admission that legal scholarship on a
global level may learn something from Asia and Africa, but it is not clear what
such knowledge can contribute to existing legal theory. Where does that leave
the voices of Asian, African, Oceanic and South American laws and lawyers?
How are we going to make sense of such laws, and can we, indeed, learn from
them? Where do we start, and how far can we get? Anyone working in this field
seems to be classified as a ‘comparative lawyer’, but perhaps all law should be
perceived as comparative law (Twining, 2000: 255).
1 As a specialist on South Asian laws, emphasising the critical role of Hindu law and Muslim legal
concepts in the sub-continent, rather than just common law influences, I often encounter surprise and
opposition. On Hindu law, see Menski, 2003. On South Asian Muslim law, see Pearl and Menski, 1998.
On common law influences, see Galanter, 1989. Exaggerated claims that colonial influences virtually
wiped out indigenous knowledge are found in Cohn, 1997. More balanced is Benton, 2002.
Beyond Europe 191
Looking around, we find the term ‘comparative law’ contested, with

scholars quibbling over minute details, rather than working on the ‘big
picture’.2 Comparative law is not yet a mature entity and is only just beginning to
shake off colonial hubris and the ‘white’ supremacist presuppositions that went
with it (see David and Brierley, 1985; and Zweigert and Kötz, 1998). Prized new
studies of the many different legal traditions of the world have pushed the bound-
aries of the field in interesting, much discussed directions (Glenn, 2000/2004).3
Assessments of comparative law have been critical (eg Legrand, 1996), but there
is widespread agreement that we are at a new cross-roads, enjoying rejuvenation
and exciting times for comparative lawyers (see Harding and Örücü, 2002). In the
advertising blurb for the Elgar Encyclopedia of Comparative Law (Smits, 2006),
Alan Watson, doyen of the ‘transplant theorists’ and long-standing critic of com-
parative law, writes:
Comparative law is moving swiftly from a long infancy to teenage maturity, and Jan
Smits provides the essential tonic … I agree with many of the arguments and disagree
with others. This is the nature of healthy adolescence (Watson, 1974/1993).
These new wise words of an old man are subtle confirmation that jurisprudence,
or legal theory (if you prefer that term) and comparative law are intensely politi-
cal, and remain quite personal.4 Legal scholarship often links closely to the instru-
mentalist uses of law as a tool to implement reforms and to make dreams come
true. Legal philosophers are like a small army of armchair revolutionaries, often
using the stones from the fertile field of comparative law as weapons. Legal theory
accounts for much brain-washing in legal education and also underpins much
illegality in legal practice, as Hans Kelsen found when the Pakistanis applied his
brilliant legal theory to justify military dictatorships.5
Legal theorists have largely tended to ignore the social dimensions of law, but
there are (and have always been since Montesquieu and other early great minds)
notable exceptions (see Cotterrell, 1989; and Cotterrell, 2006). Law as experienced
by ‘little people’, akin to Ehrlich’s ‘living law’ (Ehrlich, 1936), has not received suf-
ficient attention. The socio-legal dimension remains undervalued all around the
world.6 Attempts to critique Euro-centric positivism through showing the limits
of law remain insufficiently received (Hinz, 2006). Polite critical voices from the
East receive equally subtle acknowledgment, but little more, it seems (Chiba, 1986;
Chiba, 1989). Law as a globally known concept is actually built on un-agreed
2 Annelise Riles notes ‘ubiquitous angst about the disciplinary identity of comparative law today’
(Riles (ed), 2001: 3). Andrew Harding and Esin Örücü note the growing popularity of comparative law,
but highlight that ‘it is also fraught with internal contradiction, uncertainty, and a sense of mid-life
crisis’ (Harding and Örücü, 2002: xii).
3 For a set of critical reviews, see (2006) 1.1 The Journal of Comparative Law 100. Glenn, 2005,
introduces ‘common laws’ as a globally present form of interactional law.

4 Riles, 2001 contains excellent case studies.
5 Kelsen, 1970 was famously interpreted by Pakistani judges to legitimise military rule in State v
Dosso, PLD 1958 SC 533.

6 For a vigorous critique of Indian legal scholarship in this respect, see Baxi, 1982; and Baxi, 1986.
192 Werner Menski
and thus constantly shifting and negotiated foundations, marked by an endless

internal plurality that many legal scholars find irritating and deeply frustrating.7
Legal pluralism, another unruly adolescent in the extended joint family of
legal studies, struggles to find acceptance in mainstream legal scholarship,8 but
miniscule progress may be recorded over time. There is much justification for
a sustained critique of comparative law as a willing handmaiden for various
imperialistic agenda (Menski, 2006a: 46–50).
Students of comparative law need to be aware of such troublesome issues on
a global level and will have to make up their own minds about which arguments
they accept and which they would tend to oppose. Can we really have one law
for the whole world? (Menski, 2006a: 3–24) Do we assume that secular legal
approaches can eventually get rid of the influence of religion on law? Can state law
fully abolish and override ‘religion’ and ‘tradition’ by declaring that they are not
law? (See Carroll, 1997: 97 at 105) Can customary laws, one of the basic founda-
tions of legal traditions, really become entirely irrelevant in legal modernity? Do
state-made laws actually create new forms of custom, and what sense do we make
of the argument that customs are at the same time old and new? (Bennett, 2004)
Can state law, at the stroke of a pen, introduce a new legal system?9 More specifi-
cally for the present discussion, is there room in the world’s joint family of law for
the many legal systems of Asia and Africa that are undoubtedly ‘mixed’, beyond
recognising that they are hybrids and often contain elements of Western laws?
What about frequently unacknowledged non-Western elements? To what extent
do we accept that Hindu law, Chinese law, Islamic laws and the myriad of African
laws have a future in this globalising world? Will there be a universal concept of
law? And what, then, would this look like?
Such big questions indicate that there will never be universal agreement on
what we mean by law. Presently, much existing scholarship is still not willing to
acknowledge this and to accept that people in Asia and Africa, and elsewhere in
the erstwhile ‘Third World’ have their own laws and claim ownership of their
own ways of dealing with legal matters. We are often still just looking for traces of
European transplants, and proudly clutch evidence of perceived success without
examining how such positive results are achieved in socio-legal reality. Not only
in Asia and Africa do reported cases and official documents not give a faithful
picture of the totality of law in a particular nation.10
7 For details see Menski, 2006a, introduction and ch 1.
8 From pioneers like Hooker, 1975, and Moore, 1978, it has been a long way to current applied
studies like Shah, 2005, focusing on the contested position of non-European legal traditions in today’s
Western legal systems. See also Shah and Menski (eds), 2006.
9 Communist China tried this in Art 1 of the Marriage Law of the People’s Republic of China
1950 by abolishing the feudal marriage system and putting into effect the new democratic marriage
system.
10 An example of treating restitution of conjugal rights as a barbaric remedy, is found in Sareetha
v Venkata Subbaiah AIR 1983 AP 356, while Harvinder Kaur v Harmandil Singh AIR 1984 Del 66
took the opposite view. The Indian Supreme Court in Saroj Rani v Sudarshan Kumar AIR 1984 SC
1562 found in favour of maintaining the family, and against the ‘bull-in-the-china-shop’ effect of
individualism.
Beyond Europe 193
Asian and African debates about the direction of legal reform today often
take place prominently within the wider context of globalisation and the many
assumptions that this term carries with it (see Held, McGrew, Goldblatt and
Perraton, 1999; and Robertson, 2003), as well as now in the context of inter-
national debates about human rights and good governance with a focus on
constructing a world legal order. The tainted heritage of comparative law in
this respect is well known (Harding and Örücü, 2002: vii–viii; Menski, 2006a:
38–45), and only partly overcome. Post-colonial legal, political and military
realities do not reassure new nations that they have the right to develop as they
see fit. However, we should not waste precious space here by simply criticising
various inadequate approaches. Rather, the present chapter provides constructive
examples—case studies that readers may pursue in more depth—of how today’s
laws beyond Europe actually work in practice. It is a fact that non-European laws
are more self-consciously plural than European laws and tend to recognise value
pluralism. They prefer community-based processes of dispute resolution, tend to
privilege tort over crime, with resultant compensation regimes,11 and tend (not
only because they are resource-starved ‘developing countries’) to emphasise eco-
nomic responsibilities between members of social groups and families, and also
across gender boundaries. Such methods clash with Western-led assumptions
about state centricity, individual autonomy and rights-based approaches. Beyond
Europe, however, the notion that one’s rights depend on other people’s duties
remains a strong legal foundation.
When we approach comparative legal studies in a culture-sensitive way, as prac-
tical comparative lawyers, we need (or are developing in the process) expertise
in particular national legal systems or in specific legal traditions of the world.12
Few law students in the world are required to venture into this field of legal stud-
ies.13 It remains extremely difficult to approach legal traditions or non-Western
national laws, since this requires much cultural knowledge, insight into chthonic
traditions and value systems that are not our own, and use of technical terms from
languages that may not even have words for ‘law’.14 Going down that route, we are
bound to realise that ‘law’ is culture-specific and immensely diverse. Recent
scholarship on legal theory suggests that ultimately we are maybe just fussing
over different values, bringing us back to basic debates about natural law,
expressed earlier in Rudolph Stammler’s concept of ‘good law’,15 or Masaji Chiba’s
11 Eg, in relation to the Islamic ‘blood money’ (diyat).

12 A good example of the latter approach is Glenn, 2000/2004.
13 On a model of good practice, see Menski, 2006a: 66–81.
14 Thus in Sanskrit, the classical language of Indic traditions, rita (‘macrocosmic order’) and
dharma (‘microcosmic order’), the duty of every individual to do the right thing at all times, cannot
simply be translated as ‘law’.
15 The German jurist Rudolf Stammler (1856–1938) proposed a theory of ‘natural law with a
changing content’, which holds that ‘while the ideal of justice is absolute, its application must vary
with time, place and circumstance’ and depends heavily on moral attitudes. For further details see
Stone, 1965: 167–81.
194 Werner Menski
‘legal postulates’,16 while Emmanuel Melissaris now speaks of ‘value pluralism’

(Melissaris, 2004). Law is, of course, also intimately linked to ‘power’ in all kinds
of forms, and to economics, giving rise to perennial complaints about corruption
and lack of accountability and transparency.
The recognition that law itself is a huge field of multiple contests, and an inter-
nally plural phenomenon, was long suppressed in dominant and largely idealistic
Western legal thought that simplistically privileged the state as a maker of rules
and came out, ultimately, as ‘legal centralism’, the claim that the state alone was
the maker of laws. That this myopic modernist vision is difficult to maintain in
real life is becoming more evident in world-wide legal practice,17 and is acknowl-
edged in recent theoretical writing (Örücü, 2004: 42). Lego-centric domination
was earlier savagely criticised by John Griffiths (Griffiths, 1986), supported since
by many others, but our thought patterns continue to associate law primarily with
the state. It seems difficult to unlearn such mental maps, since they creep into
the subconscious and influence our daily language—we may not even notice (see
Menski, 2006a : 79–80). It remains, of course, tempting, anywhere in the world, to
simply assume or claim (especially on the part of those in power) that positivism
is the foundation of law. This kind of mono-cultural myopic thinking leads, how-
ever, directly to African and other despots, who appear to be top-ranking students
of lego-centric axioms, and corrupt regimes anywhere in the world.
III. INTERLINKEDNESS AS A FOUNDATION FOR ‘MIXING’ LAWS
Beyond Europe, there is a long-standing, immensely rich awareness that ‘law’ is

first of all a culturally embedded phenomenon and is specific to particular people
who are interlinked at many levels. This does not mean that one gives up on law
reform, but a typical non-Western state would probably be a ‘soft state’, allowing
much room for non-state law. Beyond Europe, ‘law’ is not normally perceived as
a separate entity that can be manipulated without repercussions in lots of other
areas. It is interconnected, linked from the macrocosmic spheres of natural law
right through to the personal sphere of the socio-legal domain. All along, it also
contains elements of the religious and the secular, the social and the psycho-
logical, and virtually anything else. The boundaries between what is legal and
what is not become really fuzzy, leading to irritated comments by legal scholars
(see Tamanaha, 1993; and Tamanaha, 2001). Since this fuzzy interlinkedness is
explicitly recognised in Asian and African perceptions of ‘law’ and their current
diasporic manifestations all over the world, there seems no need for insiders to
16 Chiba writes: ‘A legal postulate is a … value system specifically connected with a particular official
or unofficial law … It may consist of established legal ideas such as natural law, justice, equity …
sacred truths and precepts … social and cultural postulates’ (Chiba, 1986: 6).
17 An interesting example from the United Kingdom is Chief Adjudication Officer v Bath [2000] 1
FLR 8 (CA), where English law had to recognise, ultimately, that an unregistered Sikh marriage could
still be treated as legally valid.
Beyond Europe 195
discuss this in so many words, with the result that outsiders often do not notice
that the European approach, to the effect that ‘law’ is just ‘law’, does not really
make sense in such cultural contexts. Many meaningful silences need to be studied
when we analyse law beyond Europe.
Law is therefore not just about rulers and their codified rule systems, but about
a plurality of voices and values, and thus negotiations of difference and diversity
at many different levels, and at all times. The book of law is never closed. Any form
of law, even God-given Islamic law, is philosophically and practically perceived
and applied as inherently dynamic and interactive.18 It is not just a given static
entity that cannot be negotiated in particular social contexts. Beyond Europe,
states and their people are almost always deeply attuned to the constant need for
skilled legal navigation at all times.19
As a result, most legal systems outside Europe continue to cultivate personal law
systems, or personal status law, where at least family law and matters of succession and
property (but often much else) are governed by different rules and processes for differ-
ent groups of people. Often, but not always, the determinative criterion is ‘religion’, as
in the Ottoman millet system (see Yılmaz, 2005). In the personal laws of India today,
the internally plural systems of Hindu law, Muslim law, Christian law, Parsi law, Jewish
law and, importantly, a secular option co-exist side by side. Apart from ‘religion’, the
criterion for distinction is often social and ultimately ‘ethnic’, leaving room for social
groups with different identities to develop their own ways of doing things. That this
leads to limitless plurality ‘on the ground’ troubles only fundamentalists, among
whom one must count those who still dream of global legal uniformity.
Others, concerned to bring some sort of legal order into this limitless mess, often
in the context of nation building, focus more on harmonisation and uniformisa-
tion. But such top-down strategies often face fierce accusations of neo-imperialist
designs and post-colonial civilising missions, especially if the modernising forces
are driven or supported by a dominant majority or by foreign donor agencies. For,
whose value systems should prevail in such a harmonised legal entity? How does
one construct national legal uniformity in a state composed of many different
people without overlooking or victimising certain interest groups and disregard-
ing certain types of law? In this context, there are huge concerns, often in relation
to Islamic countries, about minority protection and freedom of religion. As in
comparative law, if in comparative religion one does not respect that ‘the other’
should have a voice and a claim to legitimacy, there are bound to be what we now
call human rights abuses, and there will be terrorism and war.20
18 See Menski, 2006a: ch 5. Current soul searching and violence among Muslims is centrally con-
cerned with this particular dilemma. For a good discussion see Ramadan, 2005.
19 For example in Iranian law, the traditional Shi’a ‘temporary marriage’ (mut’a) has today taken the
shape of an engagement-like arrangement, allowing young couples to move in public without being
harassed by the morality police.
20 In Sri Lanka, much of the vicious conflict between dominant Buddhists and the Tamil Hindu
minority concerns the right of minorities to recognition as an integral different element of the nation
state. No proper balance has been found so far.
196 Werner Menski
Beyond Europe, there is much heartburn over the boundaries of ‘general law’
and ‘personal law’, with encroachments from either side jealously watched and
harshly critiqued.21 Protagonists of national legal uniformity (who are often also
ardent visionaries of globally uniform law) are quick to condemn aberrations
from the path of uniformisation, but one finds also exciting examples of official
laws explicitly taking account of local customary norms, building them into new
national legal systems.22 In some countries, for example Thailand, earlier expo-
sure to European laws that did not necessarily produce appropriate results leads
now to a re-indigenisation.23 Next door Malaysia maintains the bipolar vision
of co-existence of local Muslims with their internally plural Shari’at law and
‘others’ (Chinese, Hindus, Christians and others) covered by a secular legal system
without sufficient recognition of specific cultural roots, though it does not work
satisfactorily (Aun, 1999; and Teik, 2003). Other countries in the region struggle
to find an appropriate balance between national visions and local plural realities.
Where interaction between and within different legal systems is not recognised,
there are bound to be problems over minority rights and justice for certain groups
of people (see eg Kooistra, 2001; and Dillon, 2001).24
Beyond Europe, the legal families concept makes even less sense than it does
from a Euro-centric perspective. The realisation that law is not simply a matter
of state-centric positivism strikes students of Asian and African legal history the
moment they start looking at ancient systems of law in which the state seems
peripheral. The entirely Euro-centric, rough taxonomic models privileging com-
mon law and civil law have led to a carving up of the earlier colonial realms
into common law and civil law spheres of influence as two monolithic entities
(see David and Brierley, 1985; Zweigert and Kötz, 1998; and de Cruz, 1999). In
Africa, the application of this rationale allows for Anglophone, Francophone
and Lusophone classifications, which are still not enough to cover the immense
pluralities of the ‘dark continent’.25
In traditional non-European legal systems, we find many different factors influ-
encing how a legal tradition develops over time. In ancient Hindu law (Menski,
2006a: chapter four), but not only there,26 the state seems for a long time virtually
absent as law-maker. Later ruler figures (the ra-ja- as king, but equally as head of
21 For a strong critique of the encroachment of local custom on criminal law in India, see
Dhagamwar, 2003: 1483–92.

22 Good case studies would be the Republic of South Africa and Namibia, on which see Hinz (ed),
2006). In Namibia, the Traditional Authorities Act, 2000 and the Community Courts Act, 2003 give
explicit recognition to local customary courts. In India, the deliberate retention of customary forms of
Hindu divorce under s 29(2) of the Hindu Marriage Act, 1955 allows customary patterns of divorce to
co-exist with statutory forms under s 13 of the same Act, leading to remarkable confusions in private
international law.
23 I have heard this referred to as ‘Thaiification’. On Thai law, see Harding, 2001.
24 One could also look in more detail at Tibetans in China.
25 See the various entries under ‘Law’ in Middleton (ed), 1997, vol 2, 526–59. For a sharp critique of
the treatment of African customary laws, see Ramose, 2006: 351–74.

26 On ancient Chinese law, see Bodde and Morris, 1967; and van der Sprenkel, 1977.
Beyond Europe 197
household) appear as servants of a higher cosmic order rather than powerful legal
entities in their own right. No holder of legal power is really perceived as totally
autonomous.27 There is always the dimension of interlinkedness with other and
higher entities, the latter not just religious, but also in a secular sense, precisely
because the underlying methodology of interlinking everything permits no clearly
definable boundaries between what is religious and what is not.
So the ancient Chinese Emperor held the Mandate of Heaven, as long as he
could keep control of his realm, but also risked being legitimately removed if
things went wrong in his Empire. The basic structure of traditional Chinese law
and its institutions shows an intricate linkage of state, society and values, manifest
ultimately as ‘confucianisation of the law’ (see Menski, 2006a: ch 7). Confucianist
idealistic principles of self-controlled order and adherence to a sense of duty and
performance of proper conduct (li) were combined with more realistic statist
legalism that privileged formal state law (fa) and deterrent and deliberately cruel
punishments (hsing). This pattern of underlying cultural presuppositions about
whether individuals are good or bad, equal or different, and whether they can be
educated through punishments or not, is roughly matched in other traditional
legal systems, reflecting vigorous early debates about such universal questions
virtually everywhere in Asia and Africa.
Such alertness to difference, and sensitivity to the interlinkedness of law with
other concepts, led to forms of traditional governance in which traditional rulers
were (and are) limited in their range of activities, responsibilities and authority,28
often heading a ‘soft state’. A Hindu ruler, for example, was always in theory (and
thus largely in practice, because he could be legitimately killed if he ignored such
concepts) subject to a higher order, embedded in a pattern of natural law, as were
Islamic, African and ancient Chinese rulers in their own culture-specific ways.
Experienced field scholars have perceptively written of the ideal of an equilibrium
and, even for Africa, highlighted the ‘relative emphasis on imperium, tradition
and divine revelation’ (Kuper and Kuper, 1965: 17).29 Such interlinkages were not
appreciated by early Western scholars and were actually denied by Max Weber and
others (Rheinstein, 1954; and Weber, 1968).
Significantly, such ancient culture-specific understandings of good governance
are reflected in modern methods of governance in some countries, shown below
in detail for India. Culture-specific forms of natural law and plural normative
order are omnipresent and impact on methods of dispute settlement, which never
rely just on one source of law, but strongly recognise the need to negotiate con-
flicting perspectives. The result is a conscious search for agreeable compromises,
not a winner-take-all approach of the adversarial model.
27 But for early Islamic law, and particularly the much-criticised Umayyads as God’s representatives
on earth, see Hallaq, 1997; and Hallaq, 2001.

28 T Bennett refers to popular maxims to the effect that ‘a chief is a chief by the people’, (Bennett,
2004: 4). On African kings, see also Ramose, 2006: 351–74.

29 This matches my triangular model of state, society and values: see Menski, 2006a: 185–9.
198 Werner Menski
Seen from this comparative perspective, recent comparative law scholarship

subtly indicates that maybe the Euro-centric perspective that privileged the state
(lego-centrism) and territoriality (nationalist concerns) is not only quite paro-
chial (Twining, 2000: 3), but an idiom based on lost memory which does not lead
towards a globally acceptable method of understanding law and its many plurali-
ties, mixed manifestations, and commonalities (Glenn, 2005). Below I now pres-
ent two case studies from Indian law to illustrate the cultivated complexity of laws
beyond Europe and our current difficulties in making sense of new developments
in such plurality-conscious legal systems.
IV. THE INDIAN UNIFORM CIVIL CODE: HARMONISED PERSONAL LAWS

RATHER THAN UNIFORMITY
India became independent from Britain at midnight on 14/15 August 1947, while
Pakistan was carved out of that same colonial Empire at the same midnight hour
as a state explicitly for Muslims.30 The Republic of India then laboured with its
composite past and the new challenges of the globalising 20th century to develop,
eventually, new models of plurality-conscious reconstruction which are today
highly instructive for comparative lawyers.
India started from a basic position of secularism, which in its specific Indian
meaning implies a non-discrimination guarantee to all non-Hindu minorities that
they would also have a legitimate place and a voice in this new state, despite there
being a Hindu majority of more than 80%.31 Built on such deliberately ‘mixed’
foundations, and a conscious renunciation of power by the ‘religious’ majority,
India has over the past 50+ years managed to remain a stable democracy,32 to
the surprise of many observers (Menski, 1995: 561–5). Meanwhile, it has quietly
restructured its entire legal system to remain in harmony with this plurality-
conscious national vision, which has been in need of adjustment over time. The
subtlety of this process only partially explains why there is so little debate.
The key challenge is whether a young nation state, with now well over a billion
people, can aim to have a legal system that is nationally the same for all citizens.33
India swiftly created a Constitution by 1950, much amended by now, and has a
huge array of colonially-grounded general laws that apply to all citizens, and often
30 Initially split between West and East Pakistan, by 1971 the Bengalis of East Pakistan had had
enough of West Pakistani colonialism and created the new state of Bangladesh. Since the late 1970s,
Pakistan has gradually re-inforced its vision of an Islamic Republic, which fails to give due recogni-
tion to minority laws, the concerns of women, and different faiths (even sects among Muslims) in the
country.
31 Specifically on secularism, see Madan, 1987, and Madan (ed), 1994. More broadly, see Larson
(ed), 2001.
32 On the Indian Emergency of 1975–77 as a shock therapy and cathartic experience, see Menski,
2006a: 259–73.
33 A challenge also faced by other large countries, eg China, Brazil, Indonesia and the rainbow
nation of South Africa.

Beyond Europe 199
to all persons in India. The best example of such laws remains the Indian Penal
Code of 1860, still applied today all over the sub-continent. Another important
law, discussed below, is the restructured Criminal Procedure Code of 1973, origi-
nally of 1898. Such laws apply to all citizens alike, at least in theory (see Menski,
1996: xxv-liv).34
The challenge of legal uniformity arises particularly in family laws, where the
personal law system has been retained, while the vision of a uniform civil code
appeared on the horizon immediately after independence and made its first
official appearance as a programme for development in Article 44, a Directive
Principle of State Policy in the Indian Constitution of 1950:
44. Uniform civil code for the citizens
The state shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India.
Article 44 must be read within the wider agenda of secular post-colonial nation
building, seeking equality for all citizens, as guaranteed in the Fundamental Rights,
especially Article 14.35 This aim was built on the assumption that law reform hap-
pens through secular codification, despite Nehru’s realisation that ultimately people
themselves would have to change their ways of doing things (Sagade, 1981: 27–35).
India’s ambition to promulgate a uniform civil code is not just an Indian
problem, therefore, but concerns a universal predicament for lawyers and legal
systems. Torn between legal uniformity and normative plurality, with innumer-
able local and regional diversities of cultures, customs, religions and therefore of
laws, the new nation’s desire for nationally uniform legal regulation was strong
in the 1950s, and uniformity continues to be an important vision. But achiev-
ing justice through total equality seems rather difficult when one is faced with
many continuing diversities which are simply not going to disappear because of
legal intervention. This raises the question whether difference and plurality are
actually as problematic as is often made out by Euro-centric legal scholarship.
Beyond Europe, readier recognition of difference reflects cautious acceptance of
the multiple realities of human life. If a good law is perceived to be about a ‘good
life’, it is an ancient truth (to which India can lay much claim because of its ancient
Sanskrit literature) that this can manifest itself in quite different ways. India, it
seems, has re-learnt important lessons about such issues since the 1950s. To see
this simply as re-traditionalisation or even evidence of fundamentalist national-
ism would not do justice to the complexity of the issues encountered by India in
its post-colonial efforts to find its national identity as a composite entity.
34 A country with 300+ million people living below the poverty line can hardly claim that its basic
fundamental rights are a fact for all citizens.

35 While Art 14 guarantees equality before the law and equal protection of the laws to all persons
in India, Arts 15 and 16 permit the state to make special provisions particularly for women, children
and historically disadvantaged classes, thus reflecting awareness that equality is not a socio-legal reality
and remains a long-term goal.
200 Werner Menski
The idea that a developed law should appear in codified form had been
implanted in the minds of Indian scholars at least since Sir Henry Maine’s Ancient
Law in 1861. Such evolutionist thinking has remained strong but is much criti-
cised today (see Sack and Aleck, 1992: xviii–xix). In independent India, from the
start, it was not an option that the Hindu majority of the new state should impose
its law on all other citizens. Indian law could not be just Hindu law, it had to be
‘secular’. Hence arose the deeply flawed modernist vision that a new, culturally
neutral law should be constructed through a uniform civil code. But which law is
culturally neutral?
Notably, Indian legal reform efforts focused initially on an older secular colo-
nial legal model, which needed updating. The resulting Special Marriage Act, 1954
allowed any Indian to marry and divorce according to a state-controlled legal
regime of secular rules, irrespective of religious affiliation, with rules following
European statist models. Thus, marriages were only legally valid if registered
before a state official. Grounds for divorce, which involved a court hearing,
copied English-style legal rules into Indian law and were warmly welcomed at
the time. This law was thought to be particularly attractive for people entering
mixed marriages, and was the proper law under which a foreigner would marry
an Indian spouse. However, the 1954 Act never became popular in India and leads
a peripheral existence. It is today beginning to be criticised as outdated, inter alia
because (reflecting the spirit of the 1950s) its rules, even today, insist on parental
consent to marriage (Champappilly, 2006: 149).36
Wide-ranging reform efforts focused around the same time on the modernisa-
tion of Hindu personal law, sparking off huge debates. Most controversial were the
formal abolition of polygamy for Hindus and the introduction of divorce on fault
grounds, with significant consequences for female property rights, maintenance
and access to children. There is no room for details here (see Derrett, 1970; Derrett,
1978; Menski 2001; and Menski 1998), but the next part focuses specifically on
divorced Indian women’s right to maintenance from the ex-husband.
Since the secular approach was pervasive after independence, Hindu chauvinism
appears to have been kept in check from the start by the secularity-focused leader-
ship under Nehru, which also ensured that the Sikhs, Buddhists and Jainas were
in unifying efforts subsumed under Hindu law.37 Subsequent family law reforms
continued the 1950s trend of copying Western legal developments, and especially
the important Marriage Laws (Amendment) Act, 1976 further harmonised the
Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.
But since the early 1980s, statutory reforms to Hindu law have basically ended
and the focus has shifted to the courts, while particularly feminist efforts to
36 He notes that the 1954 Act ‘is now obsolete. It has not travelled with the time’.
37 This caused some vigorous protest, reflected in numerous court cases. Particularly, the Sikhs felt
the reforms gave women excessive property rights. On the more docile reaction of Jainas, see Menski,
2006b: 417–35.
Beyond Europe 201
engineer further statutory changes have created much debate and some recent
results.38 Meanwhile, there has been increasing judicial recognition that the
Western-inspired Hindu divorce reforms might not, after all, be an ideal model
(see Derrett, 1978; and Menski, 2001: chapter two). India rejected ‘irretrievable
breakdown’ as a formal ground for divorce among Hindus,39 and since the late
1980s courts have been refusing more divorce decrees to men and women, saying
in effect that India is not America, and that the country cannot afford a scenario
in which millions of women and children are suffering as a result of liberalised
divorce laws (see Menski, 2001: 130–3). This growing social welfare concern gave
rise to determined judicial and legislative activism since the late 1970s in relation
to post-divorce maintenance, an issue debated in the next part.
Regarding the vision of a uniform civil code on marriage and divorce, India
appeared to make no progress. However, after the liberalising 1976 reforms of
Hindu divorce law, the tiny Parsi community of India agreed in 1988 to reform its
colonial family law;40 clearly an attempt to preserve their ethnic identity within
Indian legal structures. This now left only the Muslims, Jews and Christians of
India outside the nascent uniform statutory framework. The Jews of India were
by now too depleted in numbers to take action (see Katz, 2000), and still seem to
wait for the uniform civil code to materialise. The Muslims of India, as always,
resented any pressure to have their personal laws codified by the state and, despite
admission of crisis (see Mahmood, 1986), opposed suggestions that their shari’at
law could be statutorily regulated. However, Indian Muslim shari’at law permits
fairly easy divorce, favouring the husband’s extra-judicial talaq.
The Christians of India, comprising many different sects and churches, were
held back through opposition by their conservative religious leadership to a more
liberal divorce regime. Christian divorce law therefore eventually stuck out as
imprisoning spouses in unhappy marriages. Until recently, particularly a Christian
wife was virtually chained into a marriage for ever, while her co-citizens of other
religions could seek divorce. Under the Constitution of India and its equality
provisions, here was clearly a case for relief through a uniform civil code.
But this was not an easy process. Amazing things happened during the 1990s
when the High Court of Kerala, a southern state with more than 20% Christian
population, dared to rewrite section 10 of the colonial Indian Divorce Act, 1869 to
permit divorce among Christians in Kerala on the basis of simple cruelty.41 Such
deliberately provocative judicial activism, a significant development in Indian law
with wide repercussions worth studying (see Ahuja, 1997; Menski, Alam and Raza,
2000; and Sathe, 2002) gave strong signals to Parliament that it ought to bring
38 See the Hindu Succession (Amendment) Act, 2005, following a series of earlier local Acts, mainly
in Southern states.
39 See particularly V Bhagat v (Mrs) D Bhagat AIR 1994 SC 710.
40 The Parsi Marriage and Divorce (Amendment) Act, 1988 amended the 1936 Act, thus bringing it
in line with Hindu law and the secular rules of the Special Marriage Act, 1954.
41 Mary Sonia Zachariah v Union of India, 1995(1) Kerala Law Times 644.
202 Werner Menski
the hopelessly outdated Christian divorce law into line with the majority law and
secular concepts under the 1954 Act. The 1869 Act had been promulgated at a
time when divorce was granted only in the most exceptional circumstances, facing
‘religious’ opposition from the Churches.
But nothing further happened for a long time after 1995, and several Supreme
Court judges found it necessary, even beyond 2001, to issue strongly worded calls,
in certain strategically important cases, about the desirability of a uniform civil
code.42 Such cases caused catchy headlines in the press, but they were becoming
rarer, while some older academics still propagated legal uniformity as a desirable
aim for India today (Kumar, 2003).
Meanwhile, India’s Parliament was evidently waiting for the right time to
reclaim the initiative in law making. It is probably no coincidence that on 24
September 2001, just two weeks after 9/11,43 the purportedly slumbering colos-
sus of the Indian legislative machinery suddenly sprang into action, passing the
Indian Divorce (Amendment) Act, 2001. This finally brought Indian Christian
divorce law broadly into line with India’s other divorce laws, providing 10 grounds
for dissolution of Christian marriages, plus an additional ground for the wife if
she could prove that ‘the husband has, also since the solemnisation of the mar-
riage, been guilty of rape, sodomy or bestiality’. After enormously tortuous lob-
bying and many setbacks, this Act finally almost completes the jigsaw puzzle of
Indian legal uniformity: Another personal law system of India was now brought
into line with the majority law and the secular ‘lead model’. This was done almost
secretly, in record time, and there has been hardly any debate of this important
development so far.
Why this remarkable silence? Apart from the Jews, Indian Muslims are now the
only community not formally covered by the gradually emerging uniformised
personal law system of India in relation to marriage and divorce. But it makes
perhaps little difference whether a personal law is formally codified or not. What
matters are the substantive provisions, and these are in fact similar for Indian
Muslim law, despite the absence of codification. So, India now basically has a
uniform civil code without admitting it!
But the original vision of a uniform civil code, as a new common code shared
by all citizens, has simply not been realised and, I believe, will never materialise.44
42 Concern about abuse of conversions to Islam and polygamy appears in Sarla Mudgal v Union
of India, AIR 1995 SC 1531. Several later cases did not fully support the uniform civil code: see
Ahmedabad Women Action Group (AWAG) v Union of India, AIR 1997 SC 3614; and Pannalal Bansilal
Pitti v. State of AP, AIR 1996 SC 1023. The judges in Lily Thomas v Union of India, AIR 2000 SC 1650
almost apologised for Sarla Mudgal and, while finding a uniform law highly desirable, cautioned
against premature action, warning that it might be ‘counter-productive to unity and integrity of
the nation’ (at 1669). The most recent judicial endorsement of a uniform civil code is found in John
Vallamattom v Union of India, 2003(3) Kerala Law Times 66 (SC), where VN Khare, CJ stated (at 80):
‘A common civil code will help the cause of national integration by removing the contradictions based
on ideologies’. Oddly, this was about two years after the reforms of 2001, discussed below.
43 And, most notably, only two days after Danial Latifi v Union of India, 2001(7) SCC 740 had been
decided, in the same sitting as the Criminal Procedure Code (Amendment) Act, 2001 (see below).
44 AN Allott anticipated earlier that this was ‘no more than a distant mirage’ (Allott, 1980: 216).
Beyond Europe 203
Instead we see, more than 50 years later, how Indian family law has made skil-
ful use of a different model of legal uniformity, which the original law-makers
perhaps did not perceive as a viable option, but which represents legal realism
in India today.45 What has happened under our very noses, then, but even most
Indians have not noticed (let alone the outside world), is that virtually all the vari-
ous Indian personal laws have been uniformised along similar lines without losing
their status as separate personal laws. This is the revised culture-specific Indian
model of a uniform civil code, equity rather than equality, harmonised personal
status laws without going as far as introducing a newly codified uniform civil code
as originally envisaged.
Post-modern India, therefore, seems to have found an exciting solution to
the conundrum of legal uniformity which may be a suitable model for many
countries in the world and may require a revision of legal theory (Menski, 2006c:
13–28). The Indian experience shows that achieving greater legal uniformity
does not necessarily require dangerous radical surgery through introduction
of a strictly uniform code of family law for all citizens. Rather, India employed
carefully planned minor surgeries over a long period of time, leaving the body
of personal status laws intact. The result is more than cosmetic surgery, however.
The various Indian personal laws now look more like each other than ever, but
they are still identifiable as Hindu, Muslim, Parsi, and Christian law, by title and
substance. They respect ethnic and religious identities without giving up on major
national reform agenda, in this case seeking to achieve a more gender-equitable
divorce regime.
Despite the impression of a refusal to submit to law reforms, this also goes for
Muslim law in India, which retains its uncodified form and respects the apparent
reluctance of Muslim leaders and spokespersons to contemplate legal reform. In
substance, but not in form, Indian Muslim law now differs little from the other,
codified personal laws. This leads to the politically tricky question whether some
reforms in this field have actually been made in Hindu-dominated secular India
by adjusting the laws in this field to traditional Muslim legal norms.
Whatever the answer to this somewhat provocative suggestion, Indian law has
certainly not been static over the last 50 years, but the subtle movements—often
highly politicised and perceived as dangerous for communal harmony in a plu-
ralistic state dominated by Hindus and Hindu concepts—have had a deeper silent
agenda which has not been abandoned despite communal riots, multiple accusa-
tions of fundamentalism, and much politicised commentary by academics, who
often place their own agenda above the national interest. India has now virtually
reached its aim of having a uniform personal law for all Indians in the fields of
marriage and divorce. Since 2001, the result has not been a formally uniform
legal provision, but much greater substantive equality than before. The fact that
45 The possibility of this particular model (which was then not favoured) was clearly indicated in
Dhagamwar, 1989: 67.

204 Werner Menski
this remarkable achievement, by 2001, had hardly been commented on is largely

due to the nature of scholarly politics. As the next part demonstrates, some signal
events in Indian law (specifically the Shah Bano case) have almost entered global
consciousness. This raises another uncomfortable question: Why is there such
selective reception of non-European laws in the West?
The answer, I suggest, lies not only in global scholarly agenda, but in the fact
that India’s determined restructuring into a harmonised concurrent system of
personal laws by 2001 does not fit with modernist perceptions of what law reform
beyond Europe should look like. India has refused to adopt the uniformising,
Western-inspired 1950s modernist agenda and has constructed its own culture-
specific model—actually a typically Asian model—taking account of the fact that
its people adhere to different legal systems while sharing a territorial framework.46
Significantly, though, the recent developments are not only a defeat for dreamy
universalism or Euro-centric modernism, but also an equally serious defeat for
Hindu fundamentalism, which appears to be another major reason why in India
itself there has been such widespread embarrassed silence over the 2001 reforms.
Some further explanations are required on the last point. Conscious of being
a vast majority, many Hindus had all along wanted all Indians to follow basic
principles of Hindu law under the guise of a uniform civil code. More radical ele-
ments among Hindu nationalists (the so-called hindutva brigades) expected the
end of Muslim law in India as a result of the uniform civil code, and thus advo-
cated uniformisation through creeping hinduisation of the entire Indian legal
system. During the recent period of governance by a central Indian government
composed mainly of Hindu nationalists, the enormity of this Hindu nationalist
project struck many more observers, but certainly not enough legal scholars. The
uniform civil code project as a tool of hindutva would have been deeply unaccept-
able to the plurality-conscious secularists of India, who clearly prevailed. It would
have been disastrous for India as a nation, too.
Since the overriding policy and vision of secularism has always restrained
Indian hinduisation and has asserted itself successfully in the context of the
uniform civil code, India now has to continue negotiating different concurrent
personal laws, and will, in my view, indefinitely retain that system. I see no other
acceptable route for a huge nation composed of so many different kinds of people.
Plurality consciousness in the garb of Indian secularism (with its special mean-
ing, clearly too little understood) has rescued the nation from the blood-stained
dark alleys of communalist excess. Here, then, comparative lawyers find strong
evidence that national laws beyond Europe may take a quite different form even
in their most developed manifestations, not following the state-centric uniformis-
ing territorial paradigms of Western jurisdictions. Beyond Europe, mixed legal
systems clearly create different shoots on the global tree of law.
46 This also illustrates, as U Baxi emphasises, that ‘[t]he local, not the global … remains the crucial
site of struggle for the enunciation, implementation, enjoyment, and exercise of human rights’ (Baxi,
2002: 89).
Beyond Europe 205
V. THE SHAH BANO BANDWAGON: THE MYTH OF INDIAN

POST-DIVORCE MAINTENANCE LAW
Culture-specific legal realism prevailed in Indian law over globalising ideology

also in another, closely related field. It demonstrates even more than the previous
example how Western scholars and their non-Western followers can easily misun-
derstand and misrepresent non-European legal developments that do not fit their
own political and intellectual agenda. The result may be a totally distorted image
of socio-legal reality and even of legal facts, as the present scenario shows.
The Shah Bano bandwagon started rolling slowly, even prior to the case
itself, when explicit concerns about the predicament of divorced wives in India
were imported—significantly by Indira Gandhi47—into the revised Criminal
Procedure Code, 1973, which in section 125(1) now defined a ‘wife’ as including
a divorced wife. This itself is a remarkable pro-women achievement, with tricky
consequences for Indian men, as we shall see. Thus, important social welfare
considerations were introduced, by a combination of legislative alertness and
eventual judicial activism, to help protect Indian divorced wives from vagrancy
and utter destitution. Because the 1973 Code applies to all Indians, it now became
possible for Muslim wives to petition for maintenance beyond the traditional
iddat period of roughly three months,48 and to ask for life-long maintenance.49
Well before the famous Shah Bano case of 1985,50 the Indian Supreme Court had
already established by 1979 that a Muslim ex-husband would only be exempt
from further responsibility for his ex-wife if the provisions he had made were
sufficient for her ‘to keep body and soul together’.51
By the time Shah Bano’s husband engineered his case to get around such
women-friendly social welfare arguments of Indian law, the battlefield was set,
and the key facts are almost stereotypical: After almost 40 years of marriage and
several children, an elderly Muslim woman was divorced by her lawyer husband
who wanted to enjoy life with a younger woman. He claimed that giving his old
former wife the stipulated iddat money and the haq mahr52—together just a few
hundred rupees—fulfilled his legal obligations towards her, relying on traditional
Muslim law to exempt himself from any further liability towards his ex-wife.
The Shah Bano bandwagon really started rolling when she eventually obtained a
verdict from the Supreme Court,53 holding that her ex-husband had a legal
47 On Indira Gandhi as ‘Mother India’ and a modern ‘traditional’ ruler, see Menski, 2006a: 264–6
and Menski, 2003: 258–9.

48 The iddat comprises three menstrual periods and is primarily designed to ascertain paternity of a
child in the womb. During this period, the Muslim husband must maintain the wife.
49 Earlier, a Muslim husband faced with a claim for maintenance from his wife could simply have
divorced her by talaq, ending her status as a ‘wife’.

50 Mohd. Ahmed Khan v Shah Bano, AIR 1985 SC 945.
51 Bai Tahira v Ali Hussain Chothia, AIR 1979 SC 362.
52 The mahr or mehr is the dower promised by the Muslim husband to the wife at the time of the
marriage. For details, see Pearl and Menski, 1998: 190–201.

53 Mohd Ahmed Khan v Shah Bano, AIR 1985 SC 945.
206 Werner Menski
obligation to maintain her until death (remarriage not being a realistic option)
under section 125 of the 1973 Code as well as under traditional shari’at law.54
Even under the Qur’anic provisions, so the Supreme Court said, there was an obli-
gation on divorcing Muslim husbands to be good and generous to a former wife.
Instantly a storm broke loose among Indian Muslims, with riots and vigorous
protests which highlighted the difficult relationship between Indian Muslims and
the state. The young Prime Minister at the time, Rajeev Gandhi, took remedial
action by resorting to rapid codification. Acceding to the demands for a separate
Act for Muslims on post-divorce maintenance, Gandhi upset the proponents of a
uniform civil code and was universally perceived to cave in to Muslim pressures
by swiftly promulgating a special Act called the Muslim Women (Protection of
Rights on Divorce) Act, 1986. Despite murmurs of disapproval, there were no
riots on the street: the legislative ploy had worked, since everyone was happy to
believe that divorcing Indian Muslim men now had no further legal responsibility
for their ex-wives after the iddat period.55 Secular activists were disgusted and the
Shah Bano bandwagon rolled faster.
Despite its pro-women name, this Act was thus believed to be designed to exon-
erate Muslim ex-husbands from the obligations imposed by the Shah Bano case
and section 125 of the 1973 Act. The 1986 Act, portrayed as ‘a terrible blunder all
around’,56 was immediately challenged in numerous constitutional petitions by
secularists and modernists,57 but the Indian Supreme Court sat on these impor-
tant cases for almost 15 years. We know today that this was deliberate judicial
passivism, while outside observers simply saw further evidence that Indian law
was inefficient and suffered from extraordinary delays in litigation. There was,
however, a higher purpose behind this long judicial silence, which only recent
findings have uncovered.58
Meanwhile, all around the world, after the 1986 Act, modernist scholars of
various hues had climbed onto the Shah Bano bandwagon and loudly deplored
the backwardness of Indian law, which had allegedly let down Indian Muslim
women (see Rajan, 1999; and Jaising: 2005: 7–8, 17–18). Shah Bano became a
global symbol for the unacceptability of non-Western laws in the modern world
and signified India’s stubborn patriarchal backwardness. The world was appalled:
Journalists joined the chorus, claiming that India had not only abandoned moder-
nity and legal uniformity, but had let down its Indian Muslim women so badly
that they would be driven onto the streets and into destitution. India had given in
to Muslim fundamentalism. Hardly anybody cared to ask whether it was in line
54 Part of the problem was that five Hindu judges were interpreting the Qur’an.
55 This is reflected in virtually all serious publications: see, eg Weiss, 1995: 341 at -343, which sug-
gests that the 1986 Act ‘revoked Muslim women’s rights to maintenance granted under the state’s civil
laws’.
56 Mehta, 1994: 98.
57 The recollections of Baxi, 2002: 82 sharply bring out the conflict of laws scenario.
58 The evidence is found in Agnes, 2001: 91–2, where she reports that arguments in the Danial Latifi
case ‘were concluded in August/September 2000 and the judgment is reserved till date’.
Beyond Europe 207
with Islamic principles to simply abandon Muslim ex-wives to destitution and

prostitution. The dominant tenor was that Muslim men had been given excep-
tional privileges by the modern Indian state and had got away, once again, on the
basis of religious exemption. The contested image of the Indian state was further
sullied by such scholarly and publicity-seeking outbursts, which continue today.
Even the most respected legal scholars of India, ‘modern traditional’ positivists at
heart, seemed to rely on such political gossip, which created serious misinforma-
tion (see Sathe, 2002: 19).
Fortunately for India and for Indian Muslim women, this is not the whole
truth. While the cacophony of devastating criticism of Indian law-making
drowned the voices of reason for a long time, calm straightforward statu-
tory interpretation in a spirit of legal realism found it hard to gain eventual
acceptance in this highly politicised cauldron of anger, contempt and suspi-
cion. The full story is not told in a few words, but ended as a damp squib on
22 September 2001, when the Supreme Court of India finally delivered its
verdict in the constitutional petitions of 1986.59 Remarkably, just two weeks
after 9/11, having waited for 15 years, the Indian Supreme Court merely reiter-
ated the familiar legal position that making reasonable distinctions between
citizens on the basis of certain criteria—in this case religion—would not be
unconstitutional in itself. Muslims in India (this was the message) had a right
to be different and to be heard as part of the nation. However, they also had
the same basic constitutional obligations as other citizens, so that the terms
of their existence were determined ultimately by state law, not by higher com-
munal or religious authority. Indian state law, then, clearly did not give in to
Muslim demands, but met them half way: ‘You may have a separate law as a
matter of Muslim personal status, but you are bound, as everyone else, by
shared national criteria and, in this case, specific concerns over social welfare
for ex-wives’. At the end of the day, so the Supreme Court’s message went,
Indian Muslim husbands who wished to divorce retained a legal responsibil-
ity under Indian state law (as well as a moral obligation under shari’at) for
the future welfare of their former wives. In India, these obligations would
have to be met within a tight time frame, namely within the iddat period, to
protect the ex-wife from destitution. Similar legal obligations are shared by all
other Indian ex-husbands under section 125 of the Criminal Procedure
Code of 1973, which had sparked off the controversy in the first place.
Demanding a separate Muslim Act was thus not a viable escape route for
Muslim ex-husbands.
No riots followed this skilfully crafted judgment, which avoided explicit refer-
ence to the desirability of a uniform civil code. Rather, there was stunned silence,
not surprising since the decision in Danial Latifi represented another defeat for
legal modernism, and was therefore not welcome for positivism-focused legal
59 Danial Latifi v Union of India, 2001(7) SCC 740.

208 Werner Menski
scholars. Once again, post-colonial post-modern Indian law was able to respect
the traditional plurality of personal status laws while maintaining an equitable
uniform system of rule, and protecting women’s rights as well.
To analyse this scenario in more depth, one needs to be aware that earlier the
stipulated upper financial limit for the ex-husband’s support under section 125 of
the Criminal Procedure Code, 1973 extended only to 500 rupees, reflecting con-
cerns about vagrancy of near-destitute ex-wives. The Muslim Women (Protection
of Rights on Divorce) Act, 1986 contained no such stipulated upper limit, skil-
fully following the shari’at principle that the particular circumstances of husband
and wife need to be considered from case to case. That the 1986 Act had not in
fact taken away the rights of divorced Muslim wives was gradually confirmed by
an increasing number of High Court cases, since well before 1988.60 It emerged
that section 3(1)(a) of the 1986 Act, interpreted progressively, not only required
a Muslim ex-husband to maintain his ex-wife during the iddat period (which any
decent Muslim should do anyway), but he also had to make provisions for the
time after the iddat period, and should do so during the iddat period.61 In other
words, if a Muslim divorced wife reaches the end of her iddat period and the
husband has not maintained her and has not made reasonable provisions for her
future welfare (which might include arranging a remarriage for her) the ex-wife
can go to court once the iddat finishes and can claim both entitlements.
There is a 1990 case in which a rich Muslim woman claimed more money from
her millionaire husband and succeeded.62 Muslims were thus potentially worse
off than all other Indian ex-husbands. The growing body of High Court cases
re-assured the faraway Delhi law-makers (who appear to have been watching
this carefully) and the Indian Supreme Court (which cautiously maintained a
studied silence), that the climate was eventually beginning to be right for further
steps in securing better and more equitable financial protection to all Indian ex-
wives. That appropriate moment, it appears, came just two days after the Danial
Latifi decision, on 24 September 2001, when the Indian Parliament removed the
500 rupees limit for all Indian ex-husbands by passing the Code of Criminal
Procedure (Amendment) Act, 2001. Notably, this small but highly significant Act
restored legal uniformity across the board in financial terms, while maintaining
the separate Muslim law enactment.
There seems to be no explanation of legislative intent. Whether this is purpose-
ful silence, legislation by stealth, or a new strategy to reinstate a higher level of
60 Important decisions are Arab Ahemadhia Abdullah v Arab Bail Mohmuna Saiyadbhai, AIR 1988
Guj. 141; Ali v Sufaira, 1988(2) Kerala Law Times 94; and a large number of cases in the Kerala High
Court and in other courts. There are only a few High Court decisions that absolved Muslim husbands
from further responsibility.
61 The relevant portion in s 3(1)(a) reads that a divorced Muslim woman shall be entitled to ‘a
reasonable and fair provision and maintenance to be made and paid to her within the iddat period by
her former husband’.
62 Significantly, again from Kerala, see Ahammed v Aysha, 1990(1) Kerala Law Times 172.
Beyond Europe 209
legal uniformity is not clarified, but this Act achieves three important things at
once. First, it simply removes the earlier ceiling of 500 rupees in section 125(1)
for all Indians, which now seems to encourage litigation by wives and other needy
relatives also in middle class scenarios, opening up attractive new avenues for
legal business. Secondly, the Act introduced a new proviso to strengthen rights
to interim maintenance, pendente lite; crucial in Indian conditions of widespread
poverty. Thirdly, and closely linked, the amendment promised speedy disposal of
cases, as far as possible within 60 days from the filing of the petition. The Indian
state evidently means business here, yet people will need time learning to use (and
rebalance) this new law, and there will be much resistance. This partly symbolic
legislation is likely to have a deep impact on future negotiation of gender relations
in Indian law and society. In India’s official maintenance law for women after
divorce, legal harmonisation was successfully reinstated after the 1986 Muslim
personal law detour—a textbook example of an activist and progressive personal
law enactment, ultimately designed to strengthen legal uniformity, national
cohesion and women’s rights.
While this new social welfare law awaits implementation, there are early indi-
cations of severe difficulties for most Indian ex-wives in claiming their legal
entitlements, including Muslim ex-wives claiming under the 1986 Act.63 But com-
parative lawyers, aware that law anywhere in the world has crucial symbolic func-
tions and that these are highly significant in legal systems beyond Europe, should
not become too pessimistic: laws everywhere are there to be negotiated in a spirit
of plurality-consciousness (Menski, 2006a: 612). That the Indian state so clearly
supports the claims of divorced wives from all communities speaks volumes about
the awareness of inside players behind such law reforms, the seriousness of the
problems faced by many Indian ex-wives, and the role of judicial alertness.
Evidently, the Indian legal developments on post-divorce maintenance closely
match the uniform civil code strategies discussed above. Both confirm that sub-
stance is more important to the Indian state than form and that legal plurality is
not a problem in itself. Developing such plurality-conscious legal arrangements,
India has gone well beyond simply protecting the most vulnerable sections of
society from vagrancy.
VI. CONCLUSIONS: TOWARDS LEGAL HARMONISATION

WITHIN PERSONAL LAW SYSTEMS
What lessons about laws beyond Europe does this contain for comparative law-
yers? The Asian and African experience, exemplified here by India, indicates that
all countries, in light of their own culture-specific legal histories and resultant
diversities, have to construct legal systems that suit their specific people. There is
63 See the excellent work by Vatuk, 2001: 226–48.

210 Werner Menski
no ‘law of the world’; no one model that every state could follow. Beyond Europe,
there will always be a vast array of mixed legal systems, from which the ‘iden-
tity postulate’ of any given country needs to be constructed as a kind of ethnic
entity,64 indeed akin to Stammler’s ‘right law’ (Stone, 1965: 167–81).
In these mixed legal systems, local cultural elements are evidently going to
remain critical ingredients. In a state like India, these are bound to be Indic, even
Hindu, but they will never be exclusively in control. Academic writing, afraid of
nationalist fundamentalism, may deny and oppose the influence of Hindu and
other personal laws, privileging state-made ‘secular’ laws over the culturally-
anchored laws of the people, but in global comparative law this reflects wishful
thinking rather than rational analysis.65 Not only beyond Europe, comparative
lawyers must learn to harmonise local influences with emerging global patterns
of thought, avoiding the current mental cul de sacs that dismiss local cultures
as obstacles to the implementation of international laws and globally uniform
human rights principles. In the age of localised globalisation, a new phase of
diversity-conscious identity construction has become necessary, but many
scholars from outside Europe, too, find it hard to overcome the Euro-centric
domination of legal thinking.
The Indian case studies demonstrate how the tensions between legal
uniformity and respect for difference can be (and need to be) carefully nego-
tiated over time to achieve gradually a more justice-sensitive approach that
takes account of all stakeholders, especially structurally disadvantaged people
like women and children. While blind modernisation was always treated
with some caution in India, from about 1988 onwards Indian judges (and
probably also Parliament) re-thought the andro-centric strategies of deal-
ing with family conflicts in a wider social welfare context, recognising that
most women, living within a patriarchal system, remain disadvantaged in
access to resources. Having made repeated symbolic moves to improve the
property rights of Indian Hindu and Christian women,66 the Indian state sees
no contradiction in pursuing individualising strategies while also reminding
those with privileged access to family resources (mostly men) of their duties
towards other family members. Looking specifically at the facts and circum-
stances of each case—an ancient prominent strategy of legal systems beyond
Europe—Indian courts are now more attuned to alleviating the negative
effects of patriarchy. While emphasising modern-looking individual property
rights, also of women, the post-modern Indian state also re-employs tradi-
tional concepts of interlinkedness, specifically traditional family obligations,
64 On the concept of ‘identity postulate of a legal culture’, see Chiba. He explains that
‘[i]t guides a people in choosing how to reformulate the whole structure of their law, including,
among others, the combination of indigenous law and transplanted law, in order to maintain their
accommodation to changing circumstances’ (Chiba, 1989: 180).
65 An instructive recent example of such supposedly rational Indian legal writing, inspired from
Canada, is Sagade, 2005.

66 Most recently in the Hindu Succession (Amendment) Act, 2005.
Beyond Europe 211
as a social welfare mechanism. This dual strategy also protects the state from
expectations that it should be directly responsible for social welfare.
This gendered dialectic of rights and duties is more clearly visible now, and
shows that India pursues both individual autonomy and reinforcement of col-
lective responsibility to bring better justice within reach for all citizens. The sig-
nals are indeed confusing and contradictory. While men can often afford better
lawyers and continue to hold unfair advantages as controllers of most resources,
in post-modern India they are now again held primarily liable for the welfare of
needy family members. This kind of moral responsibility has increasingly been
turned into a legal obligation by the quiet activism and occasional deliberate pas-
sivism of the Indian judiciary. Indian men, irrespective of religion and personal
laws, might now feel that they are all in the same perilous boat: Getting married
under Indian law now means taking on serious responsibilities for women and
children—potentially for life—whether the marriage lasts or not. As demon-
strated, the agenda of uniformising nation building and support for traditional
family life have been conflated in unexpected ways, leading to latent perceptions
of the oppression of men (see Mahmood, 1986; and Kusum, 1993).
Thus, accepting patriarchy as a fact, which is hardly a difficult task for
Indian lawmakers—(though it hurts the feelings of many activists), has
become a newly invigorated Grundnorm for Indian law today. Post-modern
constitutional dharma in India, hardly new, feeds again on traditional joint
family models (see Menski, 2001). Individualised European welfare models are
known, but widely perceived as unsustainable. It is not readily acknowledged
that Western laws have not overcome patriarchy and gender discrimination
either, and have only managed to remove some glaring discriminations. The
realistic post-modern Indian strategies of gendered re-negotiation are far too
slow for many impatient activists (Sagade, 2005), and are widely perceived as
oppressive (Jaising, 2005).
In this wider context, we see a gradual shift away from the initial vision
of a nationally uniform civil code towards a system in which supposedly
indigenous values—here the ancient Indic notion of relative justice or equity
(nya-ya)—reassert themselves, now as gender-sensitive re-alignment of respon-
sibilities of Indian family members to each other. As indicated, comparable
processes of re-invention of tradition are observable in many legal systems
beyond Europe. India’s new social welfare orientation has clearly relegated
the political football of the uniform civil code to a minor position on the
league table of agenda. Through Danial Latifi, the Indian state de-prioritised
the ‘modern’ principle of formal legal uniformity in favour of securing ‘tradi-
tional’ equitable legal entitlements. India’s judges, secular gate-keepers of the
welfare system, firmly cajoled Muslim sharks back into the Indian net of social
welfare arrangements. This net of national law does not have escape holes, but
different sections. Thus, it becomes clear that Indian Muslims can keep their
personal laws, but cannot wriggle out of social welfare obligations that apply
uniformly to all Indians.
212 Werner Menski
The Indian state thereby acknowledges the need to avoid, as far as possible,
that millions of women, children and now, increasingly, old people become desti-
tute, without being able to offer direct help. In most nations beyond Europe, this
is a huge issue. The number of welfare claimants under any category would be
enormous. Fiscal prudence, as much as a desire to protect women, children and
senior citizens, demands a different approach to social welfare from that stipu-
lated by Western-style state-driven modernity; a lesson that prosperous European
nations are painfully learning at present when they have to scale back. Developing
countries like India seek to avoid such problems by not even promising their
citizens state welfare as part of the social contract.
Despite the prominence of Western-dominated positivist legal indoctrina-
tion, many Indian judges have become post-modern Indic realists, probably the
hard way. There are accounts of judges choking over their breakfast while read-
ing reports of atrocities committed by the state and its agents.67 One prominent
retired Indian judge recounts how his sensitivities for justice were sharpened by
suffering abuses himself (Iyer, 2004: 29).
The almost stunned reception of Danial Latifi, two weeks after 9/11, swiftly
cleared the road for an alert government to further smooth the path towards
greater harmonisation of India’s personal status law and a deepening of social
welfare commitments. This demonstrates how global events may influence
local laws. While critical matters of social welfare have moved centre-stage, the
case for the introduction of a uniform civil code in India has now become less
and less convincing,68 especially since the personal law system demonstrates
that it can take care of the pressures of potential inequality through a process
of gradual harmonisation of all Indian personal laws. Thus, as we saw, India
has actually achieved the equivalent of a uniform civil code, but in a different
shape than envisaged earlier. Meanwhile legal debates lag seriously behind the
actual law, with its situation-specific justice of dharma, nya-ya and shari’at in
their idealistic secularised reconfiguration, which is always going to remain
culture-specific.
The challenge now is to make these existing personal laws work better within the
protective framework of a general Constitution and wider international norms.
This is a central legal task everywhere beyond Europe, by no means unique to
Indian law: it is in fact a global legal challenge. The lessons that India has begun
to draw from its new scenario of sophisticated plurality will be of much relevance
to comparative legal scholarship worldwide.69
67 This may lead to suo motu petitions, as in the case of a widow aged 80 deprived of pension rights:
Ram Pyari v Union of India, AIR 1988 Raj. 124.

68 Significantly, Rajeev Dhavan points out that the uniform civil code agenda ‘grows out of a
nineteenth-century dream to codify all laws in the manner of the later Justinian of Roman law or of the
Napoleonic Code’ and ‘has now been trivialized into becoming a tragic farce’ (Dhavan, 2001: 317).
69 Recognition that the world is more like India than the United States is reflected in Larson,
2001: 345.
Beyond Europe 213
1. To what extent could it be argued that non-Western legal systems are more
attuned to pluralism than Western legal systems?
2. What, if anything, can the study of comparative law from an Asian/African
angle contribute to global legal theory?
3. Why does the ‘legal families’ concept not make much sense beyond
Europe?
4. Discuss, with examples, the concept of ‘interlinkedness’ as a central feature
of laws beyond Europe.
5. ‘Non-European informal methods of dispute settlement might resemble
healing rituals rather than legal processes, but they are just as powerful as
formal legal mechanisms’.
Discuss with examples.
6. ‘Laws beyond Europe demonstrate that, while recognition of difference
and plurality is hardly unproblematic, it does not need to be perceived as
a problem that prevents thinking about creative solutions’.
Discuss with examples.
7. Is law ever culturally neutral?
8. To what extent is legal uniformity a value in itself?
9. Looking at the example of Indian laws, how realistic is it to assume that
an ex-husband should maintain his ex-wife until she dies or remarries?
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III
New Territories for Comparative Law

10
Convergence of Private Law in Europe:
Towards a New Ius Commune?
JAN M SMITS
KEY CONCEPTS
European private law: Ius commune; Unification and harmonisation.
I. INTRODUCTION
T
he emergence of a common private law for Europe is a topical issue.
Over the last two decades we have seen 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 symbolic starting point of this debate is often
seen as the 1989 resolution of the European Parliament in which it called for
the elaboration of a European civil code.1 Since then, many books and journal
articles have been devoted to the future of private law in Europe and it is certainly
no exaggeration to say that out of this debate a whole new scholarly discipline of
‘European private law’ has emerged with its own journals,2 annual conferences
and university chairs. This discipline looks at questions related to the convergence
of the laws of contract, tort and property as well as of family law. Often, these
questions are referred to as the ius commune-debate, referring to that period of
time (mainly the 17th and 18th century) in which a true common law did exist in
continental Europe, even though the present time can hardly be compared with
the cultural and legal climate to that time, in which all lawyers—at least in large
parts of the European continent—used the same legal language (that of Roman
law) and were all part of one unified culture.
1 Resolution A2–157/89. This call was repeated in 1994 (A3–00329/94) and 2001 (C5–0571/2001).
Cf. resolution A6–0055/2006.

2 Among these are the Zeitschrift für Europäisches Privatrecht (ZEuP, established 1993); European
Review of Private Law (ERPL, 1993); Maastricht Journal of European and Comparative Law (MJ, 1994);
and Europa e Diritto Privato (1998).
220 Jan M Smits
The aim of this contribution is to discuss several of the questions which the
emergence of a European private law raises; not to give definitive answers but to
provide the reader with the tools necessary to answer them for him or herself.
First (Part II below), attention is paid to the need for convergence of private law:
What are the reasons usually given for harmonising or unifying private law and
are these reasons in any way convincing? Secondly, the question is raised how
convergence of private law takes place at present. Thus, unification by treaties and
harmonisation through Directives are discussed below in Part III, together with
the far-ranging idea of creating a European civil code. A third question (Part IV
below) is whether convergence of private law is at all possible. Some have argued
that the differences among the 28 private law systems we have in Europe (27
national systems and Scots law) are too large to come to any real convergence.
This is an important argument which deserves to be mentioned here. Finally, vari-
ous other methods to reach (further) convergence of private law in Europe will be
considered. Should the European Union continue with the present harmonisation
process by issuing European directives or should other methods (also) be used to
reach more convergence of law? For instance, such wide-ranging pleas have been
made for promoting a European legal science and education and for convergence
of law through competition of legal systems. These and other methods are dis-
cussed in Part V below.
Before embarking upon our venture, one remark on terminology seems apt.
Often, the terms convergence, unification, harmonisation and legal integration
are used interchangeably to describe the process of the coming together of the
national private laws of the Member States of the European Union. In this sense,
these are ‘utterly flexible and indeterminate’ terms (Boodman, 1991). However, it
seems useful to reserve the term harmonisation for the specific method of legal
convergence through European Directives. This leaves diversity as to the form
and means used in place, only harmonising the end result to be achieved by the
Member States (cf Article 249 of the EC Treaty3 ). On the other hand, I will use
the term unification for the process that may lead to uniform law (such as in the
case of treaty law). This uniform law presupposes that national legal systems com-
pletely disappear and that a new, uniform, law is applied in a uniform way across
all of Europe—a result that, as we will see, is hardly ever reachable.
II. THE NEED FOR CONVERGENCE
Diversity of Private Law in Europe
Any contribution on the unification of private law should start with acknowledg-
ing that the European Union’s private law is at present immensely diverse. One
can identify four groups of private law regimes within the European Union on
3 Treaty Establishing the European Community (Consolidated version), [2006] OJ C 321.

Convergence of Private Law in Europe 221
the basis of common history, the sources of law recognised and the predominant
mode of legal thought. The first group consists of the common law systems of
England and Ireland, with their emphasis on judge-made law and the central
authority of the English House of Lords and the Irish Supreme Court respectively.
Cyprus (a British colony until 1960) also belongs to this group. The second group
consists of the traditional civil law countries, characterised by a central role for
a national civil code, but also by a highest court whose decisions are in practice
often just as important as the code provisions. Among these countries, one can
distinguish between those that have a code that is to a greater or lesser extent still
based on the Code Napoleon (France, Belgium, Luxemburg, Spain, Portugal, Italy
and Malta) and those that have a code that is based more on the German model
(Austria, Germany, Greece and The Netherlands).
A third group is formed by the Scandinavian Member States (Denmark,
Sweden and Finland). They not only share a common history, but also have
several common statutes, such as a common statute on sale of moveable goods
and a common contract law Act. Finally, there is the large group of countries
that entered the European Union in 2004, almost all of which have a new or at
least recently revised civil code (Poland, the Czech Republic, Slovakia, Hungary,
Estonia, Lithuania, Latvia and Slovenia). The way in which these new or revised
codes are applied and interpreted by the national courts cannot be compared to
the way in which this is done in traditional civil law countries. Generally speaking,
the mode of interpretation is much more literal.
It should also be noted that within these four groups there can be considerable
differences in substance. Even such basic topics as formation of contract, damages
in tort and transfer of property are often treated differently depending on the
jurisdiction involved. And where the substance is the same, the judicial style and
way of reasoning may still differ.
The First Motive for Convergence: the Internal Market
What should one think of these differences? Sometimes, it is seen as a goal in

itself to get rid of legal diversity: differences between European countries are to
be avoided because differences are bad. Why should it be that title to a moveable
object be transferred with the contract of sale in Belgium, but upon delivery in
The Netherlands? And why should the victim of a traffic accident be protected less
in Portugal than in France? This line of reasoning, which does not even address
the adverse effects of diversity, does not seem very convincing. There have to be
other, real, motives for unification.
The development of the common market is usually seen to be the most impor-
tant 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 mar-
ket’ may be pursued. This implies that in so far as national private law stands
222 Jan M Smits
in the way of this common market, the European Union is competent to take
measures.
It is worthwhile to look in somewhat more detail at this relationship between
the common market and private law. How is it, exactly, that divergence of private
law may distort the functioning of the European economy? The reasoning of the
European legislator becomes clear from the following passage from the preamble
to Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts:4
[T]he laws of the Member States relating to the terms of contract between the seller of
goods or supplier of services, on the one hand, and the consumer of them, on the other
hand, show many disparities, with the result that the national markets for the sale of
goods and services to consumers differ from each other and that distortions of competi-
tion may arise amongst the sellers and suppliers, notably when they sell and supply in
other Member States.
It is thus the creation of similar European conditions for the seller (or otherwise
professionally acting party) that is decisive for the European Union: if legal
regimes differ too much, competition among sellers from various European
countries will be distorted. It is this basis of Article 3 (elaborated in Article 95 of
the EC Treaty) on which most European Directives with relevance for private law
are based. This so-called acquis communautaire consists of almost 20 Directives
on the core of private law.5 Most of them deal with specific contracts such as
consumer sale, time-share, package travel, consumer credit, financial transactions
and distance marketing, others regulate, for example, products liability, electronic
commerce and unfair contract practices. There are no Directives on family law
and the law of immoveable property for the simple reason that these topics are
probably not covered by Article 95.
An interesting question is whether the argument of the European Commission
is completely convincing: Does harmonisation of private law really promote the
internal market? This is an important issue because, in its ‘Tobacco judgment’ of
2000,6 the European Court of Justice (ECJ) held that a measure based on Article
95 of the EC Treaty must genuinely have as its object the improvement of the con-
ditions for the functioning of the internal market. The mere finding of disparities
between national rules and ‘the abstract risk’ of distortions of competition is not
enough: these must be real or at least probable. If this condition is not met, the
ECJ can strike down the measure taken.
To the European Commission, the question has a clear answer. For consumers
and small and medium-sized enterprises in particular, not knowing other private
law regimes may be a disincentive to undertaking cross-border transactions. This
may lead some suppliers of goods and services to refrain from offering to consum-
ers in other countries, while others will enter into business but then suffer from
4 [1993] OJ L 095/29.
5 There are various text editions of these Directives available. See, eg Radley-Gardner, Beale,
Zimmerman and Schulze, 2003; and Smits, Hardy, Hesen and Kornet, 2006.
6 Case C–376/98 Germany v European Parliament and Council [2000] ECR I–8419 (ECJ).
high transaction costs.7 This way of reasoning is, however, not entirely satisfac-
tory. In itself it is true that concluding a transfrontier contract is more costly than
concluding a contract in one’s own country, but it is an open question whether
harmonisation of private law will reduce these costs substantially. It is likely that
in this respect not only other parts of the law (such as tax law and procedural law)
are more important, but it is also to be recognised that the costs of transfrontier
contracting are primarily caused by de facto barriers such as different languages,
cultural differences and distances (Smits, 2006b; and Vogenauer and Weatherill,
2006). Also for consumers, such barriers seem to be more important than differ-
ences in private law.
The Second Motive for Convergence: a European Civil Code as a Symbol of

one European Identity
Another motive for unification of private law is in the desire to create a European
identity: one Europe requires one private law (Alpa, 2000). In the same way that the
19th century national codifications were a means to create a national identity distinct
from the identity of other peoples, a European civil code would be the symbol of one
Europe and of solidarity among the Member States (mentioned in Article 2 of the
EC Treaty). This motive is closely connected to the very reason for the founding of
the European Communities. In the aftermath of World War II, the desire to bury the
hatchet once and for all among European countries and get rid of national differ-
ences that might serve as a new reason for conflict, was an essential part of this.
The identity argument does not seem very strong. It is often remarked that
the core of the European identity does not lie in uniformity but in cherishing the
European plurality of languages, cultures and law. What is more, even the official
motto of the European Union is ‘united in diversity’. One only needs to point at
the example of the United States to realise that one national identity does not
necessarily imply a uniform law: every American state has its own private law. It
also seems likely that for example, a common foreign policy is much more a token
of European unity than a common law (cf Wilhelmsson, 2002).
III. A EUROPEAN PRIVATE LAW THROUGH IMPOSITION: INTERNATIONAL

CONVENTIONS, EUROPEAN DIRECTIVES AND THE IDEA OF A
EUROPEAN CIVIL CODE
Unification through International Conventions
The traditional method of achieving uniformity, ie through binding treaties

between different countries, has not been very successful in the field of private
law. The reason is obvious: A treaty can only come into being with the agreement
of the contracting states and will only enter into force after approval by the states
7 See, eg Communication from the European Commission to the European Parliament and the
Council: A More Coherent Contract Law: An Action Plan, COM (2003) 68 final, OJ EC 2003, C 63/01.
224 Jan M Smits
in which the treaty is to apply. Experience shows that reaching such uniformity
is particularly difficult in the area of private law. And if agreement is reached,
the treaty is often either based too strongly on one legal system or has, by way of
compromise, escaped into vague formulations, leaving the treaty with little unify-
ing effect in practice.
Private law conventions include treaties on bills of exchange and cheque law,
leasing, factoring, letters of credit, liability for nuclear damages and oil pollu-
tion and transportation law. The best-known example is the United Nations
Convention on Contracts for the International Sale of Goods 1980 (CISG)8 that
provides substantive rules for transfrontier and commercial sale of moveable
goods. This convention is now ratified by almost 70 countries. One of the main
problems with the CISG, however, is that its provisions are rather abstract and
consequently leave much discretion to national courts in interpreting the conven-
tion. This also illustrates a more general problem with unification through con-
ventions. They usually do not provide for a highest court that can take the lead in
interpreting the treaty, thus leaving real unification ineffective.
There is still a third problem with conventions, at least from the viewpoint of
legal convergence in Europe. This is that it is open for states to decide whether to
become a party to the treaty or not. Thus, the CISG was not ratified by the United
Kingdom and Portugal. Of course, this can also be seen as an advantage because
where the convention is ratified, it is passed through national parliaments and is
thus democratically more legitimate than, for example, European Directives or
Regulations. It is precisely for this reason that some argue that instruments unify-
ing private law should first pass through national parliaments also in order to gain
sufficient democratic legitimacy.
Harmonisation through European Directives
Until now the most widely used method of achieving a higher degree of unifor-
mity between the private laws of the European Union 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 (Article 249 EC Treaty). Thus,
harmonisation leads to a ‘law of uniform results’, whereby the rules that achieve
these results are national in character. This has the obvious advantage that a Member
State can decide for itself how to fit a new Directive into the national legal system’s
structure and terminology. The reverse side of this is that it is sometimes difficult
for the European Union institutions to monitor to what extent a Member State has
implemented the Directive in a proper way. Another problem with Directives is
that the duty to implement European law can lead to Fremdkörper (foreign bodies)
inside the national legal system. A well-known example of this is the introduction
of a requirement of good faith in consumer contracts in English law. This has been
8 Final Act, U.N. Doc. A/CONF.97/18 (1980).

criticised by Teubner as forming a ‘legal irritant’ (Teubner, 1998), not leading to

harmonised law and endangering the unity of the private law system.
The present acquis, as outlined above, has not generally been met with enthu-
siasm. It has been characterised as being fragmentary, arbitrary, inconsistent
and ineffective. It is fragmentary because it only covers certain topics, a ‘Brussels
brick here and there’ (Remien, 1996: 8 at 11). For example, in the field of con-
tract law only some specific contracts are covered and of these contracts only
specific aspects are dealt with (such as the duty to inform the consumer about
the qualities of the object sold). This is worrying for continental lawyers, as their
ideal of a comprehensive and consistent civil code is being disrupted by law of
European origin. It was precisely this fragmentation that prompted the European
Parliament’s call for a European civil code. The acquis is also quite arbitrary in the
sense that it is unclear why some types of contracts are being covered and others
are not. Why is it that package travel and consumer sale are addressed, but not the
regular insurance contract? If the European legislator believes in harmonisation
to remedy defects in the functioning of the common market, there is much more
to be addressed than previously. Thirdly, the acquis is inconsistent. Often time
periods for revocation differ without good reason (from seven calendar days in
case of door-to-door sales, seven working days for distance contracts and 10 cal-
endar days for timeshare, to 14 calendar days for distance marketing of financial
services). Finally, the acquis is not very effective. Almost all directives in the field
of private law aim at minimum harmonisation, meaning that Member States can
establish more stringent provisions to protect consumers. The effect of this is that
companies are still being confronted with divergent legislation and may still be
deterred from doing business elsewhere. Minimum harmonisation may thus not
be suited to create the desired level playing field for European business.
These problems were decisive in leading the European Commission to start a
debate about the future of European contract law.9 It is likely that this will lead to a
so-called ‘common frame of reference’ (CFR) in the field of contract law, which is,
after all, the most important part of the present acquis. This CFR will provide three
types of provisions. First, it will consist of definitions of legal terms like ‘contract’
and ‘damages’ so that we know how these should be interpreted in a ‘European’
way. Secondly, the CFR is to contain fundamental principles (such as freedom of
contract, binding force and good faith). The most important part of the CFR, how-
ever, will consist of model rules of contract law, drawing on the present acquis and
the ‘best solutions’ found in the Member States’ legal orders. This CFR will serve as
a ‘tool box’ for the European legislator:10 where it finds this appropriate it can make
9 Communications from the European Commission to the European Parliament and the Council
on European Contract Law, COM (2001) 398 final, OJ EC 2001, C 255/1; A More Coherent Contract
Law: An Action Plan, COM (2003) 68 final, OJ EC 2003, C 63/01; European Contract Law and the
Revision of the Acquis: the Way Forward, COM (2004) 651 final.
10 Communication from the European Commission to the European Parliament and the Council:
‘European Contract Law and the Revision of the acquis: The Way Forward’ COM (2004) 651 final,
Annex 1.
226 Jan M Smits
use of the CFR to draft directives or review the existing acquis. In addition to this,
the ECJ and national courts could also use the CFR as a source of inspiration.
One can express doubts about the usefulness of the CFR as long as it is only a
non-binding instrument. We have to wait and see whether it will really be used to
re-draft the present Directives that are often a compromise of the various views
in the Council of Ministers. It is also hard to see how the CFR can deal with the
above problems of the acquis being fragmentary, arbitrary and only offering mini-
mum harmonisation. It probably takes a more active European legislator to deal
with these problems. This raises a fundamental question: Could the disadvantages
of the current centralist methods of unification not be avoided if the European
Union were to take more decisive action and introduced a European civil code?
The Idea of a European Civil Code
Traditionally, civil codes, as we find these on the European continent, aim at a sys-
tematic, coherent, complete and national codification of private law. Most of the
continental codes were introduced as part of a desire to create a national identity
for the countries involved. They cannot, in any way, be compared to the ‘codes’
that we know in the common law world, such as the Uniform Commercial Code
(UCC) and the American compilations of separate statutes. Civil law codes are the
alpha and omega of civil law reasoning, even though there are many statutes on
private law outside of the codes and even though the courts have an essential role
in interpreting the codes and in creating new law.
It is quite obvious that a European civil code cannot be like a national code in
this civil law way. Two differences immediately spring to mind. First, a European
code as a systematised and complete whole presupposes a European system of
private law (Jansen, 2006: 253). Such a system does not exist yet. What is more,
the view that law should be put into a comprehensive code is not adhered to by
common lawyers. It seems rather arrogant to think that the civil law approach of
codifying law would also appeal both to the English and the Irish. Below (Part
IV below), we will see that this is an important argument against the view that
convergence of law is possible by imposing rules on the European Member States.
Secondly, if a European civil code were to be created, it could only be successful
if also a European court were also put into place to control its interpretation. It is
unlikely that the most effective way of doing this—that is, by giving this European
court the competence to decide concrete cases that have passed through the
national judiciary—would be accepted by countries such as France or the United
Kingdom.
There is yet another reason why introducing a civil code for the European
Union11 would be problematic. Article 95 of the EC Treaty may provide a suf-
ficient basis for the regulation of contract law (see above), but certainly not for
11 See, in more detail, Smits, 2002: 28 ff.

other parts of the law one usually finds in national codes (think of family law,
property law and tort law). In addition to this argument, one wonders if it is wise
to base the far going step of introducing a European civil code into the EC Treaty.
A separate treaty would probably be a better option because this would allow
national parliaments to decide on the introduction of the code. It has already been
argued by some authors12 that, in drafting the CFR, it is wrong to follow a merely
technical approach. Instead of fully discussing the political decisions that are to
be made—like to what extent a European code should enhance ‘social justice’ and
protect weaker parties—the focus is now on the drafting of rules.
All this leaves little doubt about the chances of introducing for Europe a civil
code as known in the civil law tradition. However, types of codes other than the
traditional ones are more feasible. Two possibilities spring into mind. One is to
create a model code that can be chosen by the Member States if they so desire.
This is the model of the American UCC. It has the clear advantage that no com-
petence in the EC Treaty is needed. The decision is taken at the national level.
Moreover, not every state would have to opt for (‘opt in’) the code and if it did,
it could amend the code as it wished. The other possibility is to have the relevant
actors (such as contracting parties) elect a European set of rules to exist next to
the national ones. Such an ‘optional instrument’ was proposed by the European
Commission in its 2004 Communication. However, in both scenarios private law
will continue to suffer from an inevitable fragmentation.
Unification by Imposing Law
Looking over these attempts to create a more convergent private law in a centralist
way (through the classic methods of unification and harmonisation), the result is
not encouraging for those who have set their hopes on European and State insti-
tutions. But there is still another important argument that needs to be taken into
account in this debate: Is it at all possible to have convergence of private law? We
have already seen that this was denied by Gunther Teubner for the principle of
good faith. In the next part, we will see that Pierre Legrand makes a more extreme
claim about the possibility of unifying law.
IV. IS CONVERGENCE OF LAW AT ALL POSSIBLE?
Once one has established that there is sufficient reason for the unification of
private law, another question calls for attention: If a European private law is put
into place, will it lead to real convergence? This is denied by some, including
the Canadian scholar Pierre Legrand, who eloquently argued that a European
civil code, or any other attempt at unifying European private law, is not feasible
12 Study Group on Social Justice in European Private Law, ‘Social Justice in European Contract Law:
a Manifesto’ (2004) 10 European Law Journal 653 ff.

228 Jan M Smits
because of cultural differences among the various European countries and in

particular between the civil law and common law tradition.
Legrand takes as a starting point that merely drafting uniform rules does not
result in uniform law. To him, law is much more than just rules. The mean-
ing of a particular rule in a particular cultural and national context can only
be established after studying that context. And this context, the legal mentalité,
differs between the various countries. Legrand claims that these differences are
even unbridgeable in the case of continental civil law and English common law.
Epistemologically, the common law reasons inductively with an emphasis on facts
and related case law, while in the civil law systematisation is of crucial importance.
Whilst the civilian lawyer tries to rationalise judgments and statutes into a logical
system, the Anglo-American lawyer has an aversion to formal rules and makes a
conscious choice for driving out and even fighting continental civil law influence.
This choice stems from cultural differences: an English child is already a common-
law lawyer in being, claims Legrand, long before it ever knows that it wants to be
a lawyer.
This view has far-reaching consequences for the convergence debate. It implies
that any attempt at harmonisation of civil law and common law is doomed to
failure. The Englishman will continue to look at European measures as a common
lawyer, and the Frenchman as a civilian lawyer. To the former, law is an ars judi-
candi, for the latter a scientia iuris. Moreover, in Legrand’s view the whole idea of a
European codification is arrogant because it imposes on common lawyers the sup-
posedly superior world view of civilian legal doctrine. The truth is, claims Legrand,
that they each offer fundamentally different accounts of reality. This leads Legrand
to conclude that ‘legal systems ... have not been converging, are not converging and
will not be converging’(Legrand, 1996: 52 at 61–2; and Legrand, 1997).
Legrand’s argument is to be taken seriously. Even though it has radical implica-
tions and was severely attacked as being, inter alia ‘pessimistic’, ‘destructive’, ‘anti-
European’ and ‘esoteric’,13 no one will deny that superficial similarities among
legal systems do not reveal anything about underlying differences in legal culture.
This point is well formulated by Esin Örücü:
We can predict ... that if, for example, codes were moved into the common law, they
would soon become glossed by judicial decisions, exceptions would creep in and the
general principles therein would lose their significance altogether. Again, if the style of
decisions in the common law were inserted into the civilian legal culture, within a short
period of time they would start getting shorter and less comprehensible; facts would
become blurred; reference to past decisions would be replaced by reference to statutory
provisions and so on (Örücü, 1987).
This is both a very practical and a highly convincing view on the European con-
vergence process. It makes clear that law and society are closely interrelated and
13 Legrand himself sums these up, and other, qualifications of his own work by others (Legrand,
2006).
texts will always be interpreted in the legal culture in which they are applied.
There may come a time when this legal culture is entirely European, but this time
has not yet come. In this sense, Legrand is right to say that European legal systems
‘have not been converging’ and ‘are not converging.’ To hold that they also ‘will
not be converging’ is a more problematic statement because this we cannot pre-
dict: legal culture can change.
This critical view of the European convergence process points to other than
centralist methods towards a common private law for Europe. If we agree that
imposition of a uniform text will not lead to uniform law, we should look for
methods that allow the element of national legal culture to play a role in decid-
ing whether uniformity is needed or not. Only such soft methods of convergence
allow us to find out when legal culture stands in the way of unification. After all,
the premise is that if unification is not left to the Member States or to European
institutions but to the actors that are directly touched by legal unification, they
will decide to what extent they are in need of uniform law. Bottom-up methods
of unification make this possible.
V. HOW TO ACHIEVE FURTHER CONVERGENCE? THE BOTTOM-UP

APPROACH
Introduction
In this part, the various non-centralist methods that can be used to reach further
convergence of private law are discussed. Such ‘voluntary creation’ can take dif-
ferent forms. First, the role of legal education and legal scholarship is discussed.
Then, attention is paid to the method of drafting principles of European private
law. Finally, we will look at competition of legal systems.
European Legal Science and Education
The first method to be discussed here is the creation of a European private law by
legal science and legal education. Its adherents draw inspiration from the times
before the national codifications of private law in the 19th century. They point out
that the ius commune tradition, as based on the Justinian codification of Roman
law, provided a common European background to the local variations of law in
Europe for a long time. Just as the ius commune of the 17th and 18th centuries was
a legal system primarily made at the Universities, a new ius commune should find
its origin there as well. Paul Koschaker (1879–1951) therefore started his famous
book on the history of Roman law in Europe with the sentence: ‘there is no legal
discipline that is more European than private law’(Koschaker, 1947). It implies
that students can be raised in a European legal fashion and practitioners could
benefit from the comparative legal material made available to them by scholars.
Thus, it is by ‘reception’ that in the end a ius commune europaeum will emerge.
230 Jan M Smits
Of course, it takes European handbooks to be written and national courts and leg-
islators being able to look for solutions abroad, but if such revival of the European
legal tradition (and therefore a denationalisation of law) takes place, it opens the
door towards a new ius commune. Reinhard Zimmermann, one of the best known
proponents of this view, puts it like this:
[T]he essential prerequisite for a truly European private law would appear to be the
emergence of an ‘organically progressive’ legal science, which would have to transcend the
national boundaries and to revitalise a common tradition (Zimmermann, 1997: 293).
This is an appealing view that will probably continue to inspire legal scholarship
in the following decades. But there are two things we should be aware of in evalu-
ating the importance of legal scholarship and education for the Europeanisation
process.
First, it should not be forgotten that for this new European legal scholarship to
be effective it should differ in one important aspect from the old ius commune.
The old ius commune was to a very large extent a European continental tradition
only. English law was but part of it to a limited extent. Zimmermann is right in
stating that in England also Roman law was taught at the universities of Oxford
and Cambridge and was sometimes applied by courts, but this should not lead us
away from the fact that the ius commune tradition was far more influential on the
European continent (Zimmermann, 2004: 21 ff). A new European legal science
should be just as much formed by English scholars as by civilians—and there is
no doubt that this is what will happen.
Secondly, we should once more emphasise that the old ius commune was pri-
marily a scholarly tradition. It did not mean that there was uniformity in legal
practice. Just as Roman law could only incrementally influence legal practice, a new
European legal science will only be received very slowly in national legal practice.
In this respect, one must not forget that in most continental countries there have
been two centuries of separate development of national law. In all European uni-
versities, the study of national law is still far more important than the study of a
European common core. This cannot be changed in one or two decades—if ever.
But apart from these two remarks, the importance of a Europeanisation of legal
science and education cannot be over emphasised. It is the necessary ‘flanking
measure’ (van Gerven, 2002: 405 ff) for any harmonisation or unification: the de-
nationalisation of private law must necessarily go hand in hand with an interna-
tionalisation of legal education and research. Legal scholars are always glad to add
that it is the only way to forego Rudolph Von Jhering’s famous statement of 1852
that legal science had been degraded to ‘Landesjurisprudenz’ and that this was a
situation unworthy for a true science (von Jhering, 1924: 15).
In the context of this chapter, it is only possible to point at some initiatives to
develop European curricula and research projects. The number of law faculties
offering fully developed bachelors degrees in European or comparative law can
still be counted on the fingers of one hand, but there are not many European uni-
versities left where no attention is paid to the comparative aspect at all. Besides,
it will never be the case that all European law students will attend a ‘European’
law school. This is also the experience in the United States. Only the ‘national
law schools’ train their students in American law and their graduates form only a
small percentage of the total number of American law graduates (Reimann, 1996).
It is the law of the state that is taught in most law schools. If one adds to this the
often major differences in the educational system of the European Member States,
as well as linguistic differences, one cannot be too optimistic.
On the other hand legal scholarship has Europeanised enormously since the 1990s.
Apart from many new law journals and books devoted to the study of European pri-
vate law, several big research projects have been initiated. They illustrate the various
approaches one can adopt in doing this type of research. Thus, within the so-called
Trento common core project, inspired by the work of Rudolf Schlesinger on forma-
tion of contract in the 1960s (Schlesinger, 1968), a large group of scholars, mostly
from European countries, have united to seek the common core of European private
law. Their approach is to draft fictitious cases and see how these cases are solved in
the various European jurisdictions. They thus do not ‘wish to push in the direction
of uniformity’ but only want to describe how the law differs. This is also the case with
the Casebooks for the Common Law of Europe, a project inspired by the example of
American casebooks. Here too, the aim is ‘to help uncover the common roots of the
different legal systems ... not to strangle ... diversity’.14 Unlike the Trento project, these
casebooks contain cases actually decided in Europe’s main jurisdictions. Casebooks
on tort law, contract law and unjust enrichment have already been published. Another
large project directed at educating PhD students in a European way is the Maastricht
based Ius Commune Research School. Finally, mention must be made of the so-called
European Civil Code project, led by the Osnabrück professor Christian Von Bar. Its
aim is to draft provisions that could become part of a European civil code.
Again, the example of the United States shows that we should be aware of the
fact that the influence of these writings on national legal practice may be very
little. In the United States, the most popular academic products are casebooks, but
they hardly play a role in legal practice (Reimann, 1996). But perhaps, the climate
in Europe is different: the ‘Ius Commune Casebook on Tort Law’, for example, has
already been cited at least twice by the House of Lords.15
Drafting Principles of European Private Law
Another well-known method consists in drafting ‘principles’ of European private

law. The best-known set of European principles is that formed by the Principles
of European Contract Law (PECL), first published in 1995.16 They were followed
14 Foreword to van Gerven, Larouche, Lever, Von Bar and Viney (eds), 1998 Casebook—Tort Law:
Scope of Protection (Oxford, Hart Publishing – out of print): v.

15 McFarlane v Tayside Health Board [2000] 2 AC 59 (HL); Fairchild v Glenhaven Funeral Services
Ltd [2002] 3 WLR 89 (HL).

16 All the principles mentioned can be found in Smits, Hardy, Hesen and Kornet, 2006. Another set
of contract law principles, based on the Italian Codice Civile, is provided by Gandolfi, 2001.
232 Jan M Smits
by Principles of European Trust Law (1999), European Insolvency Law (2003) and
European Tort Law (2005). Within the European Civil Code-project, principles on
tort law, special contracts and restitution are being drafted, and work on Principles
of European Family Law is well under way. Unlike what the word ‘principles’ would
suggest, these sets often contain very detailed rules after the model of civil code
provisions. The drafters usually try to codify either the common core of European
legal systems or a ‘progressive’ solution which they find to be the best rule for the
European Union. It is important to emphasise that these principles are not drafted
by the EU itself, but are private initiatives mainly by legal academics. This does not
preclude the European Commission from closely following and sometimes even
co-financing the drafting process.
There is little doubt that the idea of drafting principles of private law is based
on the American experience with the so-called ‘restatements’ of law. Since 1923,
the American Law Institute has tried to make the law of the 50 American private
law jurisdictions more intelligible by issuing such restatements. Still, there is a
difference: American law is presumed to form one common law—despite diver-
sity among the States—that only needs to be described, while the drafters of the
European principles have to make what are sometimes difficult choices between
different solutions. But both the restatements and the sets of principles should
have persuasive authority: they can inform parties, courts and legislators because
of their inherent quality.
It may be useful to illustrate the functions of European principles by reference
to the PECL. The drafters themselves describe three functions (Lando and Beale,
2000: xxiii and Article 1:101). First, contracting parties can expressly adopt the
PECL as the law applicable to their contract. A choice for such a ‘neutral’ set of
rules can be useful where parties cannot reach agreement about an applicable
national law. However, at present this choice is problematic because it is not cer-
tain that Article 3 of the EC Convention on the Law Applicable to Contractual
Obligations 198017 (the Rome Convention) allows a choice for other than a
national legal system. This implies that national mandatory law will remain appli-
cable. It is also doubtful whether parties will find the PECL precise enough, with
its rather abstract provisions, and in the absence of extensive case law on how to
interpret these.
A second function of the PECL is that they can serve as a model for legisla-
tors and as a tool for courts. Thus, the Unidroit Principles of International and
Commercial Contracts of 1994, in content very similar to the PECL, were used as
a model for parts of the new Civil Code of the Russian Federation and the new
Chinese Contract Code. Likewise, courts can interpret their own law or the CISG
in the light of the PECL.
Finally, the PECL can be a tool for the institutions of the European Union
itself when making contracts with third parties or when drafting new legislation.
17 Convention on the Law Applicable to Contractual Obligations (Rome 1980) (80/934/EEC)

It is, for example, likely that the CFR (Part III above) will closely resemble the
PECL. In the same vein, the ECJ could profit from the principles of European
tort law. Article 288 of the EC Treaty states that the liability of the Community
institutions and its civil servants exists ‘in accordance with the general principles
common to the laws of the Member States’. Without scholarly work on what
these principles are, the ECJ will have a tough job in deciding a case on this
provision.
How should these projects to draft principles be assessed? We should keep two
things in mind. The first is that representing the law through general principles
is typically a civil law way of looking at the law. The phrase by Oliver Wendell
Holmes (1841–1935) that ‘general propositions do not decide concrete cases’18
has more than a grain of truth in it, even for civil law jurisdictions. In a national
legal system, drafting principles is fruitful because there is an underlying morality
that all national legal actors know of. To make use of principles at the European
level is more problematic, at least as long as a European morality is missing. Again,
an example is provided by the principle of good faith. Article 1:201 of the PECL
unconditionally states that ‘each party must act in accordance with good faith
and fair dealing’. What this principle means when deciding an individual case
very much depends on the national system in which it is applied. In France, it
may mean something else than in Germany, let alone in England.19 In this sense,
European principles can only offer a skeleton, leaving out the ‘flesh and blood’
that national systems offer.
Second, it is likely that there are diverse views on what are the right and ‘fair’
principles for the European Union.20 Thus, one uniform principle can probably
not take into account the diversity of different socio-economic constellations
within Europe, unless it is a very abstract one. This is also what the Privy Council
accepted for the British Commonwealth when it stressed that the strength of the
common law tradition is that it is able to adapt itself to the differing circum-
stances of the different countries.21
It is for this reason that I believe the main aim of drafting European prin-
ciples should not be found in their practical functions, or in being a precursor
to imposed law, but elsewhere. It is first and foremost the role they can fulfill in
legal education and research that makes them worth drafting. They can be a lan-
guage of communication among students and scholars from different countries, a
tertium comparationis. And in this function in particular, the PECL and Unidroit
Principles have already been very successful: they are used at many universities
as teaching material, not primarily to study a future European law but to better
understand one’s own legal system.
18 Lochner v New York 198 US 45 (1905).

19 Cf Walford v Miles [1992] 2 AC 128 (HL) at 138.
20 Walzer, 1983: 8 ‘There is no single set of primary or basic goods conceivable across all moral and
material worlds—or, any such set would have to be conceived in terms so abstract that they would be
of little use in thinking about particular distributions’.
21 Invercargill City Council v. Hamlin [1996] 2 WLR 367.
234 Jan M Smits
Competition of Legal Systems
Above we have seen several reasons why attempts to unify private law may not be
successful: there may not be sufficient basis for it in the EC Treaty, it may lead to
a fragmented and incoherent law, and national legal culture may prevent conver-
gence from taking place. But there are also positive arguments in favour of legal
diversity. One of these arguments was originally put forward by the American
scholar Charles Tiebout (1924-1968). Tiebout describes the needs of firms and
consumers in terms of differing preferences (Tiebout, 1956). If there is diversity
of law, it means that legal systems can compete with each other to satisfy these
preferences: consumers and firms can choose the legal system which, in their view,
best protects their interests, provided they can leave a jurisdiction which they do
not like (‘vote with their feet’). Introducing uniform law would reduce this exit-
opportunity and lead to less preferences being satisfied.
Apart from this advantage of satisfying as many preferences as possible, there
is still another benefit of diversity of law. It makes it easier to make innovation
in the law. Looking at other countries’ solutions to legal problems shows whether
these solutions function or not. In this way, states can be regarded as ‘experiment-
ing laboratories’. The well-known American judge Louis Brandeis (1856–1941)
once wrote:22
It is one of the happy incidents of the federal system that a single courageous State may,
if its citizens choose, serve as a laboratory and try novel social and economic experi-
ments without risk to the rest of the country.
Experience elsewhere can be an enlightening or a frightening example. Thus,

recognition of gay marriage by The Netherlands in 2002 has been an example to
other countries. Recognition of this type of marriage would most probably not
have been possible in case European family law would have been harmonised by
the European Union.
It is important to see that, in this view, diversity of law is not seen as a coinci-
dence but as a reflection of diverging preferences: the role of eg good faith is dif-
ferent in England than in Italy because of, perhaps unconscious, diverging views
on what is just. Often this argument is related to Friedrich Carl Von Savigny, who
emphasised the ‘organic link’ between the law and the people (Von Savigny, 1814:
78). But one need not endorse this ‘Historical School’ perspective to admit that it
is wrong to impose one uniform preference on all: those for whom the law exists
should decide which rules serve their interests best.
An important question is whether this competition among legal systems could
also contribute to unification of law. In fact it could do so in two different ways.
First, if everyone would be able to move to the jurisdiction they prefer, practically,
it would mean that there would be only one law applied. But it is likely that long
before this exit-process would be finished, something else would happen. This is
22 Brandeis, J in New State Ice Co. v Liebmann 285 US 262 at 268.

the second way in which competition contributes to uniform law: if too many
people were likely to leave, national governments would be stimulated to make
their jurisdiction more attractive by offering the same or a more attractive law
as the other country. This is also one of the main objections23 to allowing full
competition of legal systems: it may lead to the famous ‘race to the bottom’—a
level of law that is the lowest of all the jurisdictions among the competitors. Yet,
as often as this fear for ‘social dumping’ is expressed, there is as yet little empiri-
cal evidence to support it (Barnard, 2000). More importantly, full competition
among legal systems does not seem to be desirable. It is precisely the purpose
of minimum harmonisation to allow the ‘race’ only to take place within certain
restrictions. Sometimes, the law has to be mandatory if it is to offer protection to
weaker parties.
As long as this minimum level is guaranteed, regulatory competition provides
an important method of convergence because the need for unification is primarily
determined by legal practice itself and is not imposed from above. This still leaves
open the question what such competition should look like. Two remarks have to
be made.
First, it should be clear that competition does not necessarily imply that citizens
or firms really move physically from one jurisdiction to another. It is also possible
that they choose another legal system while physically staying in their country
of origin. In the field of company law, the European Court of Justice has already
paved the way for a free movement of companies.24 They can establish the firm
in their country of choice while still doing business in their place of residence.
If they prefer the English limited company as a more suitable means for their
company than the Dutch ‘BV’ or the German ‘GmbH’, they are free to choose it.
Within the limits of Article 3 of the Rome Convention, this is also possible in the
field of contract law.
Theoretically, one could even think of a variant in which not so much an entire
legal system is chosen as the applicable law but specific rules are. This ‘free move-
ment of legal rules’ allows the transfer of rules from one country to another on
a ‘market of legal culture’. (Mattei, 1997; and Smits, 1998). There is abundant
evidence for such ‘legal transplants’ leading the legal historian Alan Watson to
conclude that most legal change is the result of borrowing law from elsewhere
(Watson, 1974: 94). Thus, in the 19th century, contract law rules, such as those
on offer and aceptance, were exported from Germany to the common law world,
while at the present time many Anglo-American institutions like trust, franchising
and lease are being borrowed by countries on the European continent. Of course,
it would be wrong to think that law can travel through time and place without any
fundamental change in meaning, but it is certainly true that these transplants do
contribute to a more uniform law.
23 There are other objections as well: see Smits, 2006a.

24 Case C–212/97 Centros Ltd v Ehrvervs—og Selskabsstryelsen [1999] ECR I–1459 (ECJ).
236 Jan M Smits
Secondly, competition only works if there is sufficient information available

about other legal systems. Often, this is not the case: a Dutch party may not know
the intricacies of German law or English law, let alone Polish or Czech law. This
is different in the United States, where there is plenty of information available
on more than 50 jurisdictions and where all this information is in one language.
Within the European Union, comparative lawyers thus have an important role to
fulfill in unveiling information about foreign law. Moreover, the legislator can try
to promote competition by creating an ‘optional legal system’. Such a ‘28th system’
(in view of the presence of Scots law besides the 27 state legal systems, not a com-
pletely justified term) was in fact proposed by the European Commission in its
Communication of 2004.25 It could, for example, be chosen by contracting parties
if they felt it served their interests better than a national jurisdiction. The advan-
tage of such a 26th system is that it could be made available in all languages of the
European Union and be made as transparent as possible. Once such an attractive
system were put into place, one could see whether parties would choose it or not.
In this way, creating an optional system is an experimental way of establishing
the need for uniform law: if legal culture prohibited the choice of other laws than
one’s own, it would become apparent automatically.
VI CONCLUSION: AN ORGANIC DEVELOPMENT OF LAW, OR NOT?
The above can be summarised in six points:

(1) With 26 different jurisdictions, the present private law of the countries of
the European Union is very diverse. This diversity provokes four different
questions. First, is there a need for unification of private law in Europe?
Secondly, how does convergence take place at present? Thirdly, is conver-
gence of law at all possible? Fourthly, what are the best methods for mov-
ing towards a more uniform private law?
(2) There are usually two motives given for unification of private law: the
development of the European common market (Articles 2 and 3 of the
EC Treaty) and the need for a symbol of a European identity. However,
it is questionable whether these arguments—if they are accepted—justify
replacement of national private law by a uniform law of European origin:
they need to be weighed against the arguments in favour of diversity.
These arguments are that legal diversity allows different (national) prefer-
ences to be satisfied and allows innovations in the law.
(3) Traditionally, convergence of private law takes place through unification
(by international conventions) and harmonisation (through European
Directives). Each of these methods has its problems. Harmonisation
through Directives is the most advanced in the field of contract law, but
25 See n 10 above. See also the First Annual Progress Report on European Contract Law and the
Acquis Review, COM (2005) 456 final.

this acquis suffers from being fragmentary, arbitrary, inconsistent and

ineffective. It is an open question whether the newly proposed Common
Frame of Reference (CFR) will remedy these deficiencies.
(4) There is a recurrent call for a European civil code. Although such a code
could deal with most of the problems associated with the present methods
of convergence, there are also a number of objections to it. One is that the
idea of a code as a systematic and complete codification (and a European
court to interpret it) is alien to common lawyers. Another objection is that
there is no basis for a comprehensive civil code in the EC Treaty.
(5) The possibility of unifying European private law is denied by Pierre Legrand.
He argues that there are unbridgeable epistemological differences between
the civil law and the common law tradition, rendering convergence of law
impossible. This argument prompts the need for a ‘bottom-up’ approach
towards convergence: If unification is not left to the European institutions
but to the national actors that are directly touched by it, they will decide to
what extent they are in need of uniform law.
(6) Three bottom-up approaches towards convergence are: the enhancement of
European legal science and education; the drafting of principles of European
private law; and allowing competition of legal systems. Each of these soft
methods has its merits and problems. The problems can partly be overcome
by an active approach by the European legislator setting minimum stan-
dards to protect weaker parties and creating optional legal regimes.
The gist of the above is that, as long as we are uncertain about the need for uni-
form law and do not know whether national legal culture stands in the way of its
imposition, a ‘bottom-up’ approach towards unification is to be preferred. In my
view, only this approach can reveal to what extent national private law is resistant
to unification. It does not mean the European legislator should sit still: it can very
well promote competition of legal systems by creating an optional regime and by
setting minimum standards. Likewise, the drafting of principles and enhancing of
European legal education and scholarship are vital as flanking measures. But in the
context of this book, the fact that the author adopts this ‘organic’ view of the con-
vergence process is not important, as the reader will also find the arguments for the
opposite view in the above. This is what makes the discipline of European private
law such a fascinating topic for debate: many views on the future of private law in
Europe can be argued for.
1. List three problems with unification by way of international conventions.

To what extent do these problems also persist with respect to harmonisa-
tion through European Directives?
2. How do you weigh the arguments in favour of and against a uniform
European private law? Is it in this respect useful to differentiate between
various areas of the law (contracts, torts, property and family law)?
238 Jan M Smits
3. In the 1997 volume of the Modern Law Review, there is an article by Pierre
Legrand entitled ‘Against a European Civil Code’ (Legrand, 1997). In this
contribution, he applies his line of thinking discussed above to the idea of
introducing a civil code for Europe. Do you agree with this line of thought?
4. Competition of legal systems seems to be a promising method for allowing
convergence without at the same time endangering national legal culture.
Can you also identify objections to this method? Can these be overcome?
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Boodman, M (1991) ‘The Myth of Harmonization of Laws’ 39 American Journal of
Collins, H (1995) ‘European Private Law and the Cultural Identity of States’ 3 European
Review of Private Law 353.
Gandolfi, G (ed) (2001) Code européen des contrats (Milano, Giuffre Editore).
Grundmann, S and Stuyck, J (eds) (2002) An Academic Green Paper on European Contract
Law (The Hague, Kluwer Law International).
Hartkamp, AS, M. Hesselink, E. Hondius, C. Joustra, E. du Perron and M. Veldman, (eds) (2004)
Towards a European Civil Code, 3rd edn (Nijmegen and The Hague: Ars Aequi Libri).
Hesselink, MW (2001) The New European Legal Culture (Deventer, Kluwer).
—— (2002) The New European Private Law (The Hague: Kluwer Law International).
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Law (Cheltenham, Edward Elgar).
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Legrand, P (1996) ‘European Legal Systems Are Not Converging’ 45 International and
—— (1997) ‘Against a European Civil Code’ 60 Modern Law Review 44.
—— (2006) ‘Antivonbar’ 1 Journal of Comparative Law 37.
Örücü, E (1987) ‘An Exercise on the Internal Logic of Legal Systems’ 7 Legal Studies 318.
—— (2004) The Enigma of Comparative Law: Variations on a Theme for the Twenty-First
Century (Leiden, Martinus Nijhoff).
Mattei, U (1997) Comparative Law and Economics (Ann Arbor, MI, University of Michigan
Press).
—— (2003) The European Codification Process: Cut and Paste (The Hague, Kluwer Law
International).
Radley-Gardner, O, Beale, H, Zimmermann, R and Schulze, R (2003) Fundamental texts on
European Private Law (Oxford, Hart Publishing).
Reimann, M (1996) ‘American Private Law and European Legal Unification—Can the
United States be a Model?’ 3 Maastricht Journal of European and Comparative Law 217.
Remien, O (1996) ‘Über den Stil des Europaischen Privatrechts’ 60 RabelsZeitschrift 8.
Schmid, CU (2001) ‘Legitimacy Conditions for a European Civil Code’ 7 Maastricht

Journal of European and Comparative Law 25.
Schlesinger, RB (ed) (1968) Formation of Contracts: a study on the common core of legal
systems (Dobbs Ferry, Oceana).
Smits, JM (1998) ‘A European Private Law as a Mixed Legal System’ 5 Maastricht Journal of
—— (2002) The Making of European Private Law (Antwerp-Oxford: Intersentia).
—— (2006a) ‘European Private Law: a Plea for a Spontaneous Legal Order’ in DM Curtin,
JM Smits, A Klip and JA McCahery (eds), European Integration and Law (Antwerp-
Oxford, Intersentia)
—— (2006b) The Need for a European Contract Law (Groningen, Europa Law Publishing)
Smits, JM, Hardy, R, Hesen, G and Kornet, N (eds) (2006) European Private Law (Nijmegen,
Ars Aequi Libri).
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Up in New Divergences’ 61 Modern Law Review 11.
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Van Caenegem, RC (2002) European Law in the Past and the Future (Cambridge, Cambridge
University Press).
Van Gerven, W (2002) ‘Codifying European Private Law: Top Down and Bottom Up’ in S
Grundmann and J Stuyck (eds), An Academic Green Paper on European Contract Law
(The Hague, Kluwer Law International).
Vogenauer, S and Weatherill, S (eds) (2006) The Harmonisation of European Contract Law
(Oxford, Oxford University Press).
Von Jhering, R (1924) Geist des römischen Rechts, vol 1, 8th edn (Leipzig).
Von Savigny, FC (1814) Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft
(Heidelberg).
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Books).
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Different Perspectives on Harmonisation of European Contract Law’ European Business
Law Review 546.
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Zimmermann (eds), The Civilian Tradition and Scots Law (Berlin).
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Hartkamp, M Hesselink, E Hondius, C Joustra, E du Perron and M Veldman (eds),
Towards a European Civil Code, 3rd edn (Nijmegen, Ars Aequi Libri).
Principles of European Contract Law (PECL):

http://frontpage.cbs.dk/law/commission_on_european_contract_law
Unidroit Principles of International Commercial Contracts:
http://www.unidroit.org/english/principles/contracts/main.htm
Principles of European Tort Law:

http://www.egtl.org/Principles/index.htm
The Common Core of European Private Law (‘Trento-project’):

http://www.jus.unitn.it/dsg/common-core
240 Jan M Smits
European Commission’s website on European Contract Law:

http://ec.europa.eu/comm/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/
index_en.htm
Study Group on a European Civil Code:

http://www.sgecc.net
Ius Commune Casebooks for the Common Law of Europe:

http://www.law.kuleuven.be/casebook/index.php
11
Comparative Family Law:
Moving with the Times?
MASHA ANTOKOLSKAIA
KEY CONCEPTS
Marriage; Capacity to marry; Equality of spouses; Same-sex marriage;

Grounds of divorce; Irretrievable breakdown of marriage; Cohabitation out-
side marriage; Registered partnership; Harmonisation of family law.
I. INTRODUCTION
T
he present family law in Europe is to a large extent the product of the
radical transformations that commenced in the 1960s and 1970s. As result
of these changes, by the end of the millennium the monopoly of the tradi-
tional family based on marriage as a life-long union, which seemed to have been
so universal and everlasting, had gone—a situation that is considered almost as
self-evident today as it has been unthinkable for centuries. The society dominated
by traditional values gave way to a pluralistic society, one in which different forms
and sets of family values co-exist alongside each other. Divorce and serial monog-
amy began to be considered normal. In this general atmosphere of tolerance, men
and women became more and more free to choose between marriage or some
other form of personal relationship. Extra-marital sex, non-marital cohabitation,
and birth outside wedlock lost their stigmatic character. Same-sex relationships
became first decriminalised, then legalised, and then, in some countries, even
equated with marriage. Due to the fact that more and more children were born
outside marriage, it became increasingly unacceptable for the legal status of these
children to differ from that of children born within a marriage. Thus, eventually
illegitimate children were granted a truly equal place alongside their legitimate
brothers and sisters. The women’s rights movement managed to overcome the
centuries-long dominance of the man within the family.
Another important aspect of the contemporary picture of family law in Europe
is the influence of the human rights instruments. By far the most important
among these instruments is the 1950 European Convention of Human Rights
242 Masha Antokolskaia
and Fundamental Freedoms. The European Court of Human Rights (ECtHR) has
both been accused and praised for deriving ‘a whole code of family law’1 from its
Article 8, which initially contained no more than the negative obligation on the
part of the state to refrain from arbitrary interference in the family. In develop-
ing the concept of family rights, the ECtHR had to use the so-called ‘dynamic
interpretation’ of the Convention. Because the text of all three Articles relating to
family rights—Articles 8 (the protection of family life), 12 (the right to marry and
to found a family) and 14 (the prohibition of discrimination)—did not always
provide relief, the Court, in deciding cases, had to involve factors which were
external to the Convention, and considered that ‘the Convention must be inter-
preted in the light of present-day conditions’.2 Since the political mandate of the
Court was indubitable only within the margins of the Convention, it needed an
additional source of authority every time it employed an extensive or even contra-
legal interpretation of the original provisions. In seeking such authorisation, the
ECtHR generally referred to the consensus or the ‘common European standard’
among the Contracting States. One of the vehicles that balanced the need for a
gradual extension of the protection of family rights and the self-restraint of the
Court’s power was the doctrine of ‘margin of appreciation’. Because the scope
of protection of family rights under the Convention has been developed by the
Court on an unsystematic case-by-case basis, the level of protection that is actu-
ally attained in various fields of family law is also quite uneven. As the following
examples will show, it varies from the lowest common denominator in respect
of the right of divorce, to a high degree of protection with regard to the equal-
ity of marital and extramarital children and the right to marry on the part of
post-operative transsexuals.
II. THE LAW OF MARRIAGE
A New Concept of Marriage
Since the 1960s, marriage has undergone important transformations. The impor-
tance of the procreative function of marriage diminished as marriage ceased
to be the only union through which children were bestowed full legal rights in
respect of the parents and their families (Willekens, 1997: 69). The relationship
between the spouses evolved from the inferior position of the wife to spouses’
equality. Due to women’s emancipation, increasing female employment and
the progress of social welfare, the function of the family as provider of financial
means and security also diminished. This development contributed to an atti-
tudinal shift from marriage based on economic necessity and duty, to marriage
based on affection and free commitment. The modus of marriage generally
1 Marckx v Belgium Series A no 13 (1979) 2 EHRR 330 (Sir Gerald Fitzmaurice, dissenting).
2 Ibid., para 41.
Comparative Family Law 243
evolved from life-long monogamy to serial monogamy. This evolution of the

concept of marriage is reflected, after some delay, in the European human rights
law. The initial variant of the Convention for the Protection of Human Rights
and Fundamental Freedoms of 1950 was based upon the traditional concept of
marriage as a heterosexual, male-dominated union. Article 12 of the European
Union Charter of Fundamental Rights, and the identical provision of Article II–69
of the rejected European Union Constitution slightly modernised this concept by
making the right to create a family independent of the right to marry. The main
tendencies in regard of marriage during the last half of the 20th century in every
European country were the secularisation and de-ideologisation of marriage law,
the acceptance of the right to marry as a fundament human right, the diminishing
of marriage impediments, the lowering of the age of capacity to marry, and the
granting of equal legal rights to spouses.
General Tendencies in the Law of Marriage

De-ideologisation of the Law of Marriage
The present state of affairs is that the actual level of de-ideologisation of marriage
is still quite different throughout Europe. Two opposing tendencies with regard
to the de-ideologisation of marriage law are apparent in Europe throughout the
period under discussion. On the one hand, the avoidance of ideological declara-
tions both in the definition of marriage and during the civil marriage ceremony
can be considered as one of the general trends of marriage law. On the other hand,
many European countries (eg England and Wales) are quite reluctant to strip
marriage law completely of its traditional ideological décor.
In Western European countries the tendency towards the de-ideologisation of
marriage comes down to stressing the contractual nature of marriage and the
release of marriage law from religious influence. In the Eastern European coun-
tries the same tendency is apparent, but here it is rather a reaction to communist
marriage ideology. In both cases the de-ideologisation tendency reflects the grow-
ing awareness that the law is unable to regulate feelings and moral convictions. It
is for these reasons that many countries have chosen to avoid declarative rules that
cannot be enforced and at best can only provide some educational effect. Another
incentive to avoid ethical declarations has to do with the difficulty of finding
shared ethical values with regard to marriage in a modern pluralistic society. The
best example of such an attitude is the Swedish ‘neutrality policy’ formulated dur-
ing the preparation of legislative reform of 1973 (Agell, 1998: 127–9). This policy
was based on two fundamental choices—respect of ideological pluralism and the
non-privileged legal treatment of marriage as compared to unmarried cohabita-
tion. According to the neutrality policy,
the legislation on marriage should not contain laws of specified, ethical nature,
since ethical viewpoints could vary and couples should be allowed to develop their
relationship within their own individual assumptions and values (ibid: 127).
The tendency towards de-ideologisation is also overtly manifest in Dutch

marriage law, which deliberately avoids dealing with ethical and religious aspects
of marriage and limits itself to regulation of its practical civil aspects. The same
applies to Russian law. In similar fashion, Swedish law deliberately allows spouses
to avoid vows for life.
At the same time, many European countries continue to preserve the tradi-
tional ideological message of the law of marriage. In spite of the secularisation
and liberalisation of marriage law during the 1960s and ’70s, in conservative
circles marriage retains a symbolic ethical and ideological meaning, inherited
from the past. This appreciation is still an appealing argument for retaining the
vows for life and the duty of fidelity as part of the marriage ceremony. Of course
in a time of widespread divorce, a promise of commitment for life is more an
expression of intent than the reflection of a future reality.3
Secularisation of the Law of Marriage

The secularisation of marriage law has gone so far that presently there is no
European state that does not provide for the civil registration of marriage. It is
here, however, that the ‘common core’ ends. Europe continues to be divided into
countries with obligatory civil marriage and those with a two-tier system of civil
and religious marriage.
A majority of European jurisdictions, eg the Czech Republic, Denmark, England
and Wales, Finland, Greece, Croatia, Iceland, Ireland, Italy, Latvia, Lithuania,
Malta, Norway, Northern Ireland, Poland, Portugal, Scotland and Sweden, provide
for a dual system of civil and religious marriage. Such a solution could be char-
acterised as half-hearted secularisation, but it could also be attributed to respect
for pluralism and religious tolerance. The latter interpretation is reinforced by
the presence of countries with the most liberal family law, e.g. the Scandinavian
countries, among the countries with a dual system of marriage celebration. Two
tendencies, perhaps at first glance contradictory, can be traced with respect to the
development of the dual system of marriage registration in Europe. On the one
hand, predominantly Catholic countries, like Malta and Spain, have democratised
the choice between civil and religious marriages. On the other hand, in Latvia,
Lithuania, Poland, the Czech Republic and Croatia, where the compulsory civil
registration of marriage was associated with the militant atheism of the Soviet
domination, alternative religious celebration of marriage was introduced in
the framework of the post-communist restoration of democracy (Kaserauskas,
2004: 322). The two aforementioned tendencies complement each other in the
way that they provide individuals with free choice with regard to the form of the
celebration of their marriage.
3 For instance, in the English literature it is suggested that the life-long character of marriage can
now only be interpreted to mean that ‘the marriage must last for life unless it is previously terminated
by a decree or some other act of dissolution’ (Lowe and Douglas, 2007: 41).
A minority of European jurisdictions, ie Austria, Belgium, Bulgaria,

Estonia, France, Germany, Luxemburg, Moldova, The Netherlands, Russia and
Turkey, recognise only civil marriage as a legal marriage. Some, while refusing
religious marriage’s civil consequences, do not prohibit its celebration prior
to civil registration. Others, eg France, Belgium, Luxemburg, Switzerland, The
Netherlands, Germany, Austria and Turkey, are more strict and do prohibit
the celebration of religious marriage prior to civil celebration. All of these
countries adhere to a strict separation of church and state and consider that,
as the religious celebration of marriage is allowed prior or subsequent to civil
marriage, religious freedom is sufficiently safeguarded without the attribution
of legal consequences to such celebration.
Capacity to Marry
After the 1960s, national laws on capacity to marry became increasingly devoid
of remnants of religious concepts of marriage and related legal restrictions. The
right to marry assumed the status of a fundamental human right in 1950, when it
was incorporated into Article 12 of the European Convention of Human Rights.
However, neither Article 12 nor the case law of the European Court of Human
Rights or later international human rights instruments, like Article 9 of the non-
binding European Union Charter and the corresponding Article II–69 of the
rejected European Union Constitution, present the right to marry as an absolute
and unconditional right. The determination of restrictions to the right to marry
is left to the national laws of the Member States (van Grunderbeeck, 2003: 201 ff ).
This capacity on the part of the national states is rather broad, albeit not unre-
stricted. Thus, the national states are not allowed to implement restrictions affect-
ing the fundamental essence of the right to marry. Such violation of a right to
marry is, however, not easily acknowledged. As a result, the international human
rights instruments did not initiate any developments in this area, but rather
codified the common core that had already been achieved through the progressive
development of the substantive laws of the national states.
The laws governing the age of marriage display a similar tendency towards
coupling the age of marriage to the age of majority. This development is clearly
supported by the lowering of the age of majority as part of the overall emancipa-
tion of youth after the 1960s. At present the great majority of European countries
have coupled the age of marriage to the age of majority which is set at 18 years.
In only a few countries (eg the United Kingdom) the general age of marriage is
still below the age of majority. A second tendency that can be observed is a trend
towards equating the age of marriage for both sexes and lifting the minimum
age of marriage. This transformation has to do with the later socialisation of the
youth in industrialised countries and the equalisation of the social roles of men
and women. It has also been held that differing ages of marriage for males and
females falls within the scope of unjustified discrimination on the ground of sex,
prohibited by the international human rights instruments.
There is also a clear tendency to diminish the number of marriage impediments

that are based on consanguinity and affinity. A marriage between descendents and
ascendants is prohibited all over Europe. The same applies to a marriage between
brothers and sisters.4 Some countries have limited the number of impediments to
these closest blood-relatives.5 However, the majority of European countries pro-
vide for a more extensive list of impediments based on consanguinity and affinity.
These prohibitions are often mitigated by the possibility to seek dispensation.
Transsexual Marriage
As was already mentioned, the traditional requirement that the marriage part-
ners must be of opposite sexes has become a matter of a sharp discord. Many
European countries on their own initiative have hesitantly granted transsexuals
the right to marry. The issue of transsexual marriage remained nonetheless con-
troversial. The process of piecemeal recognition of the rights of transsexuals to
marriage was brought to an end through the intervention of the European Court
of Human Rights. The matter has more than once been a subject of scrutiny by
the ECtHR,6 but only in 2002, in the case of Goodwin v United Kingdom7 did the
ECtHR finally acknowledge that the refusal to provide legal recognition to the
new gender of post-operative transsexuals violates both Article 8 and Article 12 of
the Convention. In this landmark decision the ECtHR, in spite of the continuing
absence of consensus among the European countries, withdrew the issue of the
legal recognition of post-operative transsexuals from the scope of the Contracting
States’ margin of appreciation and imposed on them the obligation to grant trans-
sexuals the right to marry. The significance of this decision can hardly be overes-
timated. It has already had,8 and will continue to have, an indefectible impact on
the marriage laws of all European countries.
Of course, the marriage of persons of the same sex remains a highly controversial
issue of capacity to marriage. With the ECtHR’s abandonment of the traditional
notion that procreation is an indispensable characteristic of marriage,9 one of
4 Only Sweden has made marriage of half-brothers and sisters possible upon dispensation; see
Bradley, 1996: 67.

5 Eg Austria, Germany, The Netherlands, Norway, Russia and Sweden.
6 In Rees v United Kingdom Series A no 106 (1986); Cossey v United Kingdom Series A no 184 (1990);
X, Y and Z v United Kingdom (1997) 24 EHRR 143; and Sheffield and Horsham v United Kingdom
(1998) 27 EHRR 163.
7 Goodwin v United Kingdom (App no 28957/95) (2002) 35 EHRR 18.
8 For instance, the law of England and Wales has been changed according to this decision. The
Gender Recognition Act 2004 (which came into force on 4 April 2005) allows post-operative trans-
sexuals to marry in their acquired gender.
9 The court observed that ‘Article 12 secures the fundamental right of a man and woman to marry
and to found a family. The second aspect is not however a condition of the first and the inability of any
couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first
limb of this provision’ Goodwin v United Kingdom (App no 28957/95) (2002) 35 EHRR para 98.
the most important arguments against same-sex marriage seems to have been
removed. Also, the definition of the right to marry in Article 9 of the European
Union Charter and Article II–69 of the rejected European Union Constitution
contains some alterations, compared to the corresponding Article 12 of the
Convention. In contrast to Article 12, the Charter does not use the words ‘men
and women’ in respect to this right. However, the Explanatory note reveals that
this Article neither prohibits nor imposes the granting of the status of marriage to
unions between people of the same sex. This right is thus similar to that afforded by the
Convention, but its scope may be wider when national legislation so provides.
At the moment the majority of European jurisdictions, with the exception of The
Netherlands, Belgium and Spain, are reluctant to open up marriage for same-sex
couples. However, there are indications that Sweden and Denmark are likely to
join these three countries in the near future. At the same time, the proliferation
of same-sex marriage has also provoked a counter-reaction. Thus, in December
2005, Latvia introduced no less than a constitutional ban on same-sex marriage.
Equalisation of the Rights of Spouses

In the 1970s–1980s, all Western European countries embraced formal legal
equality between the spouses, which had already been introduced in Russia and
Scandinavia in the 1920s and in West Germany and the Eastern European coun-
tries after the Second World War. By the end of the 20th century, spousal equality,
save for some remnants in the field of the law of names, had been achieved in
every European country.
III. LAW ON DIVORCE
Advance of No-Fault Divorce
The law on divorce was deeply affected by the transformations of the 1960s–
1970s. The most important change was that divorce lost its social stigma and is
no longer seen as deviant behaviour. The period after the 1960s is characterised by
important liberalisation of divorce—and in Ireland, Portugal, Spain and Italy—by
its (re)-introduction. The transformation of divorce law underwent in this period
a major qualitative change. Before this time, the steady liberalisation of divorce
law amounted, for the most part, to a ‘steady accumulation of specific grounds’,
largely accomplished by adding ‘new specific matrimonial offences and condi-
tions’ to already existing ones (Phillips, 1988: 563). In the 1960s the main event of
liberalisation became the introduction and the advance of no-fault divorce.
England and Wales

In England the 1969 divorce reform reflected a compromise between the propo-
nents and opponents of liberalisation of divorce. The new Law formally introduced
a single ground for divorce: the irretrievable breakdown of marriage. However,

this breakdown could be proven only upon the existence of certain circumstances
(Lee, 1974: 73). As a result ‘the practical proposals to implement this new prin-
ciple [irretrievable breakdown] were as conservative as the idea itself was radical’
(Stone, 1990: 307). Three of the ‘circumstances’ were the same old fault grounds
that were accepted before: adultery, cruelty (which was now called ‘unreasonable
behaviour’) and desertion. In addition there were no-fault ‘circumstances’: two
years of separation followed by an application for divorce by mutual consent; and
five years of separation followed by an unilateral application, contested by the
other spouse (ibid). The state control of divorce was reinforced by the introduc-
tion of a hardship clause. In 1996 a long-debated attempt to introduce no-fault
divorce based on a period of separation for reflection failed. The Family Law Act
1996, which provided for no-fault divorce, did not come fully into effect.10
Germany
In Germany the fault grounds were abolished during the 1976 divorce reform and
irretrievable breakdown became the sole ground for divorce. In the case of divorce
by agreement, the breakdown was presumed if the spouses had been separated
for at least one year. It has been suggested in German literature that the real pur-
pose for this one-year delay was ‘to serve the scruples of those who disapprove of
divorce by mutual consent’, which remained highly controversial, as undermining
the stability of marriage (Giesen, 1973). If the spouses had lived apart for three
years, this constituted an irrefutable presumption of marital breakdown. However,
a hardship clause allowed the court to postpone the dissolution of a marriage in
exceptional circumstances (Gottwald, Schwab and Büttner, 2001: 59).
France
When divorce reform was first contemplated in France in the 1970s, French
society appeared to be highly politically divided upon the issue. The spirit of the
French Revolution
was flourishing in some of the learned writings, and the divorce proposals of the social-
ist and communist parties were seeking to eliminate fault divorce completely and replace
it with divorce for objective grounds (Glendon, 1976).
The opponents of liberalisation of divorce opposed these ideas and the general
public was hopelessly split (ibid). As a result, the French divorce law provided for
a mixed system: divorce à la carte (ibid), retaining the fault-based divorce, along-
side divorce by mutual consent and divorce on the ground of the irretrievable
10 In 2001 the Government announced its decision to repeal it (Lord Chancellor’s Department,
Divorce Law Reform—Government Proposes to Repeal Part II of the Family Law Act 1996 (LCD, 2001)).
For the history and context of the Act see: Cretney, Masson and Bailey-Harris, 2002: 304–8.
breakdown of a marriage (to be proven by a six year separation). An attempt

to introduce no-fault divorce in France failed in 2004. After almost five years
of debate about the future of French divorce law, fault was retained. The new
French divorce law of 200411 maintained the plurality of grounds of divorce. The
main changes brought about by the new law were in the modifications of the
particular grounds. Divorce upon mutual consent has been greatly simplified and
de-formalised. Divorce upon unilateral request on the basis of the irretrievable
breakdown of marriage after six years of separation was changed into unilateral
divorce on the basis of the irretrievable breakdown of marriage after a two-year
separation (Fulchiron, 2005: 245–7). Divorce based upon fault has been retained
because of the conviction that it still ‘meets the needs of the majority of French
people’ (Fulchiron, Ferré-André and Gouttenoire, 2004: 184).
Sweden
Rather out of pace with the rest of Europe, Sweden took a radical step in the lib-
eralisation of divorce law by introducing divorce on demand. In the mid-1960s
a ‘new radicalism’ had come to dominate Swedish politics. The Swedish minister
of justice laid down in a directive for the experts appointed to prepare the new
legislation that ‘legislation should not under any circumstances force a person to
continue to live under a marriage from which he wishes to free himself ’.12 The
concept of fault was also to disappear entirely from Swedish divorce law. The
resulting Law of 197313 provides that in the case of unilateral divorce or when
the spouses have minor children, a divorce is to be automatically granted after
a six-month period of reflection without any inquiry into the reasons for the
divorce. If both spouses agree to divorce and no minor children are involved, a
divorce has to be granted immediately. The Swedish system openly left behind the
concept of irretrievable breakdown and started to speak of divorce in terms of an
entitlement and a right (Bradley, 1996: 71–2).
Re-introduction of Divorce in Italy, Portugal, Spain and Ireland

Alongside the introduction of no-fault divorce in the countries with a more or less
long-standing divorce tradition, no-fault divorce was adopted by some countries
that previously had no divorce at all. In Italy, Portugal (for the Catholics) and
Spain, divorce, based upon both fault and non-fault divorce, was re-introduced
respectively in 1970, 1977 and 1981. In contrast, Ireland instantly embraced the
principle of irretrievable breakdown of marriage in its Law of 1996.
11 Law 2004–439 of 16 May 2004 came into force on 1 January 2005.

12 Abstract of protocol in justice department matters (1971), 233–234.
13 Entered into force on 1 January 1974 and is still applicable. In 1987 the rules on divorce were
incorporated in the new Marriage Code. See Jänterä-Jareborg, 2003: 3.

Beyond the Fault/no-Fault Dichotomy
The advance of no-fault divorce throughout Western Europe evoked the idea that
Europe is moving towards a spontaneous harmonisation of family law.14 However,
as the turn of millennium approached, the no-fault movement gradually lost
most of its vigour. Attempts to get rid of the fault grounds failed in England and
Wales in 1996, in France in 2005, and in Belgium in 2007.15 Two Eastern European
countries, Latvia and Lithuania, have recently re-introduced fault grounds in their
divorce law. This retroactive movement is consonant with the situation in regard
to covenant marriages in the United States.16
The introduction of no-fault divorce on the ground of irretrievable breakdown
of marriage was such a change compared to the fault-based divorce sanction, that
there was a strong temptation to see the map of European divorce law mainly in the
light of the fault/no-fault dichotomy. However, with the passage of time it appeared
that the reality is much more complicated. As long as many countries allowed
divorce exclusively on the ground of fault, this analysis had its merits; in such a situ-
ation the ‘innocent’ spouse had no other option but to opt for an accusatorial pro-
cedure, while the ‘guilty’ spouse had no option at all except to purchase or coerce
the co-operation of the ‘innocent’ party. Since nowadays not a single European
country retains fault-based divorce as the sole ground (Martiny, 2003), the situ-
ation has utterly changed. The invocation of fault is now only one option among
many, often providing the fastest route to divorce. Thus, although the retention of
fault grounds still has its (often symbolic) meaning, it no longer says a great deal
about the character of the divorce law of a particular country, and the abolition of
such grounds does not automatically mean that divorce becomes any easier. The
unsuccessful attempt to remove fault grounds in England and Wales provides
a good example. The current law offers the spouses the possibility to obtain a
fault-based divorce within four to six months,17 whereas the repealed provisions
of the Family Law Act 1996 made it impossible to obtain a divorce decree before
a one-year period of ‘reflection’ had elapsed, which was to be extended by six
months, even for consenting spouses if they had children. In addition, although
the Act removed the need to prove a reason for the breakdown of the marriage,
14 K Neumayer even spoke of ‘entering into the period which is marked by a kind of ius com-
mune’ (Neumayer, 1978: 1). In a similar vein see also Pintens and Vanwinckelen, 2001: 16; and Phillips,
1988: 570.
15 The Belgian divorce is changed by Law of 12 April 2007. This law is proclaimed that irretriev-
able breakdown of marriage and the mutual consent to be the only two grounds for divorce. However
the breakdown can be established upon the proof of specific ‘circumstances’. Culpable behaviour is
maintained among such circumstances.
16 Three American States: Louisiana (in 1991); Arizona (in 1999); and Arkansas (in 2001), have
retreated from no-fault divorce by adopting legislation allowing a couple at the time of marriage to
sign a ‘covenant marriage’ agreement, stating that they voluntarily restrict the grounds for possible
future divorce to fault grounds: see Maxwell, 2003: 263–4.
17 Fourth Annual Report of Advisory Board in Family Law (2000–01), para 3.5 (cited in Maxwell
(2003): 299, n 95).

the new system insisted that the couple should settle ancillary matters beforehand,
which may be much more difficult than proving any fault (Hale, 1997: 9).
What is Hidden Behind the Concept of the Irretrievable Breakdown

of Marriage?
The recent survey of current divorce law in Europe provided by the Commission
on European Family Law (CEFL) National Reports,18 reveals a phenomenon,
which, paraphrasing Zweigert and Kötz, could be called ‘functional disequivalence’
(Zweigert and Kötz, 1998: 36 ff ). It is easy to see that, confusingly enough, under
one and the same designation of ‘irretrievable breakdown’ virtually every type of
divorce can be hidden19; from fault-based (England and Wales, Scotland, Greece
and partly also Poland and Bulgaria) to divorce by consent (The Netherlands,
Russia). If we look beyond these labels, we can roughly distinguish five more or
less pure functional types of divorce grounds: fault-based grounds, irretrievable
breakdown in the narrow sense of this term, divorce on the ground of separation
for a stated period of time, divorce by consent and divorce on demand.
In theory, fault-based divorce presupposes a court enquiry into a matrimonial
offence, but the strictness of this inquiry has been watered down over the course
of time. For instance, in England and Wales, the so-called ‘special procedure’
under which undefended divorces are granted without any court hearing resem-
bles more an administrative divorce than the old-fashioned divorce trials. That,
combined with the possibility of obtaining a divorce immediately, sometimes
makes fault-based divorce attractive even for consenting spouses.
Divorce based upon irretrievable breakdown in the narrow sense is granted
upon a subjective criterion alone—if the court is convinced that the marriage
cannot be saved (as in Bulgaria, the Czech Republic, The Netherlands, Poland,
Hungary etc.)—or upon a subjective as well as an objective criterion, such as a
certain period of separation (four years in Ireland, three years in Austria etc). In
the jurisdictions that prescribe the subjective criterion alone, the court inquiry is
nearly a dead letter in non-contested cases; however, in contested cases it may be
quite intrusive, especially in countries like Bulgaria and Poland where allocation
of the fault is required. In the jurisdictions that combine subjective (convincing
the court or other competent authority) and objective (period of separation)
criteria, proving the breakdown is twice as difficult, because even after the stated
period of separation has expired the court can refuse a divorce if it is not con-
vinced that the marriage has irretrievably broken down.
18 See Jänterä-Jareborg, 2003; and Boele-Woelki, Braat and Sumner, 2003. The National Reports
are further referred to by the name of the reporter and the reported country.
19 This is apparent from the CEFL National Reports. See Martiny, 2003: 537–40.
Many jurisdictions where divorce is to be granted after the simple expiry of

the stated period of separation call this an irrefutable presumption of the irre-
trievable breakdown of a marriage, but others consider it a separate ground
(Norway). In both cases, however, a divorce is granted automatically and without
further inquiry. The accessibility of divorce basically depends on the length of
the separation period. These periods vary quite significantly: six years in Austria;
two years with consent and five years without consent in England and Wales; four
years in Switzerland and Greece; three years in Italy and Portugal; two years in
Germany and France; and one year in Denmark, Norway and Iceland. As in most
of the jurisdictions these periods are rather lengthy, this form of divorce is less
attractive if a shorter route is available to the spouses.
Divorce by consent is covered in some jurisdictions under the designation of
irretrievable breakdown, and constitutes an irrefutable presumption thereof (eg
Austria, Czech Republic, Denmark, Germany, The Netherlands, England and
Wales, Russia, Scotland). In other countries consent is presented as a separate
ground (Belgium, Bulgaria, France, Greece and Portugal). In both cases the court
with competent authority grants divorce automatically and without inquiry into
the reasons for divorce if the spouses are agreed. However, most of the states still
consider divorce by consent to be a dangerous diminishment of state control of
divorce. The multiple restrictions of the right to divorce by consent often make it
a less attractive and speedy form of divorce. Only Dutch and Russian law de facto
allow for divorce on the ground of simple consent without any further restric-
tions. In some countries the marriage must be of a certain duration: three years
in Bulgaria, two years in Belgium, one year in the Czech Republic and Greece.
Other countries allow consensual divorce only after a certain period of separa-
tion: two years in England and Wales; one year in Scotland and in Germany;
and six months in Denmark, the Czech Republic and Iceland. In most countries
(Austria, Belgium, Bulgaria, Greece, Germany, Hungary, Denmark and Portugal)
an agreement to divorce alone is not sufficient and the spouses are required to
reach an agreement on ancillary matters as well. This list of restrictions reveals
that most of these countries are still reluctant to recognise the autonomous
decisions of the spouses alone as a sufficient ground for divorce. The state,
in one way or another, has to protect spouses from their own ill-considered
decisions.
Divorce on demand, when each of the spouses is simply considered to be
entitled to divorce irrespective of the objections of the other spouse, is explicitly
recognised in Sweden, Finland and Spain, and indirectly in Russia. This is, beyond
doubt, the easiest form of divorce; fully respecting the autonomous decisions of
the spouses (or at least of one of them) and accepting that the state is not capable
of keeping a marriage intact against the will of even one of the spouses. The only
state intervention in this kind of divorce is a short waiting period of six months
for contested divorces or divorces with minor children in Sweden, the same period
for all divorces in Finland, and a possibility of a three-month reconciliation
period for contested divorces under Russian law.
Many countries have not just one, but multiple grounds for divorce. In this case
especially, consenting spouses have the possibility of a kind of ‘ground shopping’.
Empirical data seems to suggest that spouses, assisted by their lawyers, are always
able to choose the shortest way to divorce just as water will always find its way to
the lowest point. 20
This rough survey illustrates that , in spite of all the optimistic expectations
that were derived from the no-fault reforms, no substantial common core has
so far emerged. Even if the fault grounds were to completely disappear from
the European scene in the foreseeable future, this alone would not significantly
increase the scope of the common core.
IV. NON-MARITAL COHABITATION
From the 1960s onwards, Europe witnessed a rapid and unprecedented rise of
non-marital cohabitation. At the turn of the millennium, around 30 per cent
of all couples under 30 years old in Europe were cohabiting.21 The legislative
response to this major social change was somewhat delayed. In the beginning
only few countries chose to acknowledge it with favourable legal policy. A notable
exception was Sweden, which in the late 1960s proclaimed a positive attitude
towards cohabitees. This became known as the ‘neutrality’ policy (Sörgjerd,
2005: 343–5), which holds that the law should be ‘neutral in relation to the dif-
ferent forms of living together and different moral views’ and warns ‘not [to]
create unnecessary difficulties’ for those who decide to create a family without
marrying.22
However, even after the attitude towards cohabitation became more benevo-
lent, the majority of European countries were reluctant to pass specific regulation
with respect to non-marital cohabitation. This reluctance was not the reflection
of a conservative attitude alone, but was grounded in objections originating from
different sides of the political spectrum. Together these arguments led to the idea
that there should be a ‘law-free space’, an area of deliberate non-regulation. Part
of this idea was inspired by the fear that legal regulation of cohabitation would
weaken the institution of marriage.23 Another reason had to do with the concern
for personal autonomy (Deech, 1980: 300).24 It was argued that if cohabitees
20 For instance, in England and Wales 68.6 % are granted upon fault grounds, as this proves to be
the shortest route to a divorce: see Lowe, 2003: 103.

21 The European Union average for all age groups is 8% (Editorial Note, ‘The European Picture of
Cohabitation’ (2001), 168).

22 Committee Report (SOU 1972: 41), 58.
23 For a short account, see Forder, 1999: 7. On the undesirability of creating ‘two competing sys-
tems’, see Agell, 2003: 131.

24 Ruth Deech, for instance, argued that each of the basic ideas of individualism—the dignity of the
individual, the autonomy, the privacy and the self-development—had its influence on the legislative
non-intervention in the field of cohabitation.
voluntary choose to avoid the legal regulation attributed to marriage, the state
should respect this choice and not try to impose another form of legal regula-
tion on them (ibid: 300–301). Another ground for the non-regulation policy
was the fear that cohabitation regulation modelled on marriage would reinforce
traditional gender-role divisions, resulting in women’s dependency (O’Donovan,
1984). In addition to this, the multiplicity of different patterns of cohabitation
gave rise to the view that it is impossible to design any general rules that are able
to cover all those forms (Forder, 1999: 7).
Eventually, the discussion surrounding the regulation of different-sex
cohabitation came to be intertwined with same-sex couples’ struggle for legal
and social recognition (Schrama, 2004: 117). The problems of same-sex couples
were, from the outset, rather different from those of heterosexual cohabitees. The
main problems of same-sex cohabitees were two-fold: they had no legal protec-
tion; and society did not recognise their relationship. Differing from opposite-sex
cohabitees, the lack of legal protection for same-sex couples did not result from
their own implicit or explicit choice not to marry, but from the legal impossibility
of doing so.
First Legislation on Unmarried Cohabitation
Thus, albeit for different reasons, the legal regulation of both opposite- and
same-sex cohabitation remained controversial for a long time. The accommoda-
tion of heterosexual cohabitation, partly by way of piecemeal adjustments of the
existing laws and partly by virtue of judicial activity, started in the 1970s. In 1973
Sweden was the first European country to pass specific legislation on non-marital
cohabitation.25 In 1987 legal protection was extended to same-sex couples. Thus,
Sweden also became the first country where same- and opposite-sex cohabitation
acquired equal legal protection. The law was applicable to unmarried cohabitees
by virtue of de facto cohabitation, without a requirement of registration, contract
or any other expression of an intent to institutionalise their relationship. The
main purpose of the law was to grant a weaker party some minimal protection if
the relationship ceased (see Saldeen, 2005: 504)26. Therefore, the legal protection
was of a rather limited scope and mainly covered only patrimonial relationships
and some public law issues.
In 1991 the Joint Household Act (see Sarcevic, 1980: 294),27 with a significantly
more limited scope of protection, was enacted in Norway.
25 The Unmarried Cohabitees Act was enacted in 1973. In 1987, it was replaced by the more com-
prehensive Cohabitees (Joint Homes) Act.

26 Before the 1987 Act entered into force, the Law on Homosexual Cohabitees made its provisions
equally applicable to same-sex couples.

27 Act relating to the Joint Residence and Household when a Household Community Ceases to
Exist, of 4 July 1991.

It is often forgotten that Yugoslavia and Hungary were also among the
countries that pioneered the regulation of non-marital cohabitation. After 197428
the codes of Bosnia-Herzegovina, Croatia, and Serbia and Kosovo extended some
rules of matrimonial property and maintenance law to durable marriage-like
relationships (Mladenovic, Janjic-Komar and Jessel-Holst, 1998: 26). In 1992,
the same was done in Macedonia. Slovenia was a case apart among the Yugoslavian
autonomies states. In 1976, the Slovenian Marriage and Family Regulation Act
completely assimilated durable cohabitation into marriage in almost all personal
and property aspects. This example was followed by Serbia in 2005. In Hungary,
the statutory regulation of non-marital cohabitation dates from 1977. Initially,
both former Yugoslavian autonomies and Hungary regulated only opposite-sex
cohabitation. In 1995, the Hungarian Constitutional Court proclaimed the legal
definition of cohabitation as an exclusively opposite-sex union to be discrimina-
tory and therefore unconstitutional.29 The court gave the legislature one year to
adjust the law. In 1996, the definition of non-marital cohabitation was amended
and made gender-neutral. Thus, same-sex couples came to enjoy the same pro-
tection as opposite-sex couples. In 2003, Croatia also extended legal regulation
regarding cohabitation to same-sex couples.
Advance of Registered Partnership Legislation
However, up to the mid 1990s the countries referred to above were a mere excep-
tion. Only in the last decades of the 20th century was there a clear sea-change. The
legal policy surrounding cohabitation generally evolved from tolerance to positive
recognition. This shift in attitude was, however, largely confined to the regulation
of same-sex cohabitation only. In order to accommodate the needs of same-sex
couples many countries introduced the institution of registered partnership. The
model of registered partnership that spread across Europe was first introduced in
Denmark in 1989. In the following decade, the same model was adopted by the
whole of the Nordic region: in Norway in 1993; in Sweden in 1995; in Iceland
in 1996; and in Finland in 2001. In 1998, The Netherlands introduced the same
model with one significant difference; registered partnership was opened for both
same- and different-sex couples. In 2001, Germany followed the Scandinavian
example as well, but initially, due to political and constitutional constraints, went
significantly less far in the equalisation of registered partnership with marriage.
In 2004, a form of registered partnership similar to the Scandinavian model was
introduced, among others, in the United Kingdom, and in 2005 in Switzerland.
28 In 1974 the newly adopted Federal Constitution of Yugoslavia placed the jurisdiction of family
matters into the hands of the autonomies, which then enacted comprehensive family codes in the
next decade.
29 Decision No 14 of 8 March 1995.
Several countries, such as France, Belgium and the Spanish autonomies chose
a model rather different from the registered partnership Scandinavian style. The
Pacte civil de solidarité (PACS) that was adopted in France in 1999, the Belgian
regime of statutory cohabitation, and the various laws that were enacted in the
Spanish autonomous communities from 1998 onwards, granted only very limited
protection, and only for those same- and opposite-sex couples who elected for the
prescribed registration.30
Apart from same-sex marriage as such, the institution of registered partner-
ship is the most forthright and uncompromising response to same-sex partners’
demands for equality and recognition. The introduction of registered partner-
ship actually paved the way for the opening-up of marriage to same-sex couples
in some countries. The idea of registered partnership is based on the ‘equal but
separate’ doctrine, which involves granting same-sex couples nearly all the rights
of married couples, without giving their union the name of marriage. Such a
marriage-like institution is capable of giving same-sex partners adequate legal
protection while almost eliminating institutional discrimination and contributing
to the further social acceptance of same-sex couples.
V. DELIBERATE HARMONISATION OF FAMILY LAW IN EUROPE
The picture of present day family law in Europe is not complete without mention-
ing the recent activities aimed at the promotion of the harmonisation of family
law in Europe. In the 1990s, the harmonisation of private law in Europe began to
receive a good deal of attention. Private initiatives dealing with this subject one
way or another had already been evolving at the beginning of the 1980s. Family
law was a relative latecomer and played more or less the role of Cinderella within
the harmonisation setting. This probably had to do with the alleged unsuitability
of family law for harmonisation due to strong cultural and historical constraints.
The so-called ‘cultural constraints’ argument suggests that the family laws of the
different European countries are embedded in their unique national cultures
and history. This cultural and historical diversity is unbridgeable and therefore
family laws do not converge spontaneously and cannot be harmonised deliber-
ately. The cultural constraints argument is verbalised in a nutshell by Wolfram
Müller-Freienfels, who wrote a long time ago:
Family law concepts are especially open to influence by moral, religious, political and
psychological factors; family law tends to become introverted because historical, racial,
social and religious considerations differ according to country and produce differ-
ent family law systems (Müller-Freinfels, 1968–69); see also de Oliveira, 2000; and
Hohnerlein, 2000–01).
30 With the exception of Catalonian law and the laws of some other Spanish autonomies, which
made their cohabitation laws applicable to unmarried opposite-sex couples’ de facto cohabitation.
Marie-Thérèse Meulders-Klein has even claimed that family law constitutes the
hard core of any legal culture (Meulders-Klein, 2003: 109). For this reason the
issue of harmonisation of family law long remained on the fringes of the discus-
sion surrounding the harmonisation of private law in general. However, in the
late 1990s the attitude towards the harmonisation of family law gradually evolved
towards a more positive one (Boele-Woelki, 2002b: 175–7).
As result of this change of attitude, in 2001 the international Commission
on European Family Law (CEFL) was established by an international group of
prominent scholars.31 Like all other groups and commissions active in the field of
harmonisation of private law, CEFL is a self-appointed group, composed of academ-
ics who do not represent their national governments, nor are commissioned by any
supranational organisation. CEFL consists of two bodies: the Organising Committee
and the Expert Group. The Organising Committee acts as a co-ordinating and orga-
nising body.32 The Expert Group comprises 22 members, including the six members
of the Organising Committee. They cover almost all European countries, among
which are all the EU Member States and most of the candidate countries, as well as
non-associated countries like Norway, Switzerland and Russia. 33
The objective of the CEFL is to elaborate non-binding Principles of European
Family Law, which can serve not only as reference works for scholars and stu-
dents, but also as sources of inspiration and perhaps even as models for national
and supra-national legislatures (Boele-Woelki, 2005d; and Örücü, 2005). The
first subjects chosen by the Organising Committee for CEFL’s activities were
the grounds for divorce and the maintenance obligations of former spouses. The
reasons for this choice have been extensively elucidated by the chairperson of
the CEFL Katharina Boele-Woelki (Boele-Woelki, 2002a: 22–5). Divorce law was
selected because of the pan-European convergence tendency that is manifest in
the gradual shift from fault-based divorce to divorce based on the irretrievable
breakdown of marriage (Pintens and Vanwinckelen, 2001). The Principles on
divorce were published in 2004 (Boele-Woelki, 2003b). The same year the CEFL
started to work on the second field: parental responsibilities. The choice for
this subject was, to a large extent, determined by the wealth of the international
instruments in this field.34 The Principles on parental responsibility are published
in 2007 (Boele-Woelki, 2007). After this the CEFL will start working on the third
subject: informal long-term relationships.
The Drafting Methods
The method of comparative research-based drafting adopted by CEFL is

the same as that practiced by most other groups engaged in the promotion
31 See http://www.law.uu.nl/priv/cefl > Establishment.

32 See http://www.law.uu.nl/priv/cefl > Organising Committee.
33 See http://www.law.uu.nl/priv/cefl > Expert Group.
34 For more on the reasons for this choice see Boele-Woelki, 2005: 142–4.
of harmonisation of European private law. The first step is to draw up a

comprehensive questionnaire. Such questionnaires, drafted from a comparative
perspective, aim to cover all the variations within European jurisdictions. On the
basis of the questionnaire, the members of the Expert Group deliver National
Reports. On the basis of these reports the draft Principles, along with comments
and a comparative overview are elaborated by the Organising Committee. After
thorough discussion of the draft Principles by the whole of the CEFL, the final
draft is drawn up by the Organising Committee (Boele-Woelki, 2005b: 14–41).
While drafting the Principles on the basis of the comparative material delivered
in the National Reports, two methods are generally used: the so-called ‘better law’
and ‘common core’ methods. The ‘common core’ method involves the elaboration
of rules that are common for all or most of the relevant jurisdictions. The ‘better
law’ method involves the selection of a rule that represents a minority or just
one jurisdiction, or even the elaboration of a completely new rule by the drafters
themselves (Antokolskaia, 2003: 159–83).
In spite of the wealth of literature on the harmonisation of family law35 and the
blooming drafting activities on the part of the CEFL, the harmonisation of family
law remains highly controversial and the discussion on its feasibility and desir-
ability is far from being at an end (Martiny, 2004: 307–33). This lack of consensus
has led to the situation that while the popularity of the idea of harmonisation of
family law has been notably increasing throughout the last decade, resistance to it
has not diminished. The opponents of harmonisation keep relying on the cultural
and historical constraints as their main contention. The progress of the harmoni-
sation activities only made the debate sharper. The perseverance of the opposition
as such is no indication of weakness of the idea of the deliberate harmonisation.
Nor does it mean that the CEFL, or indeed the various other groups and commis-
sions in the field of private law in general, have started their work prematurely
without awaiting genuine consensus. A general consensus on such a controversial
issue will probably never be reached. This means that if harmonisation activities
were ever to be started, they could only have started in spite of serious opposition.
Whatever the practical impact of the CEFL Principles will be, their contribution to
the development of comparative family law is undisputable. The National Reports
made by the CEFL experts36 and the comparative overviews not only represent
a new methodology of comparative research; working in a permanent network
of national experts, they also form a wonderful source of reliable, up-to-date
comprehensive information on the national family laws in Europe.
35 For a recent overview see Martiny, 2004: 328–33 and the CEFL website: http://www2.law.uu.nl/
priv/cefl/ under the rubric ‘publications’.

36 The integral reports are published on the CEFL website: http://www.law.uu.nl/priv/cefl > work-
ing fields 1(Divorce/Maintenance) and 2(Parental Responsibility). The integrated version of the
reports are published in Boele-Woelki, Braat and Sumner, 2003 and Boele-Woelki, Braat and Curry-
Sumner, 2005.
1. Which general trends can be monitored in the development of family law

in Europe during the last 50 years?
2. What are the main tendencies in the development of marriage law in
Europe during the last decades?
3. Does the advance of no-fault divorce make divorce laws in Europe more
similar?
4. What is the main difference between the problems surrounding the legal
regulation of same-sex and different-sex cohabitation?
5. What are the main reasons for the differences in pace and profundity of
the modernisation of family law in the various European countries?
6. What is your opinion in regard to the feasibility and desirability of delib-
erate harmonisation of family law in Europe?
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and T Nhlapo (eds), The Changing Family: International Perspectives on the Family and
Family Law (Oxford, Hart Publishing).
—— (2003) ‘The Legal Status of Same-Sex Couples in Europe—A Critical Analysis’ in
K Boele-Woelki, A Furchs (eds), Legal Recognition of Same-Sex Couples in Europe
(Antwerp, Intersentia).
Antokolskaia, M (2003) ‘The “Better Law” Approach and the Harmonisation of Family
Law’ in K Boele-Woelki (ed), Perspectives for the Unification and Harmonisation of Family
Law in Europe, European Family Law Series No 4, (Antwerp, Intersentia).
—— (2006) Harmonisation of Family Law in Europe: A Historical Perspective. A Tale of Two
Millennia (Antwerp, Intersentia).
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Harmonisation of Substantial Law’ in H Lemaire and P Vlas (eds), Met recht verkregen.
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Law’ in M Faure, J Smits and H Scheider (eds), Towards a European Ius Commune in
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Between Former Spouses (Antwerp, Intersentia).
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—— (2005b) ‘The Working Method of the Commission on European Family Law’ in
Boele-Woelki, K (ed), Common Core and Better Law in European Family Law European
Family Law Series No 10 (Antwerp, Intersentia).
—— (2005c) ‘Parental Responsibilities—CEFL’s Initial Results’ in K Boele-Woelki (ed),
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12
Comparative Commercial Law: Rules or
Context?
NICHOLAS HD FOSTER*
KEY CONCEPTS
Commerce; Commercial law; Instrumentalist view; Contextual approach.
T
his chapter examines the reasons for the importance of comparative
commercial law, and considers what approach should be taken to its study.
Is commercial law purely technical? If so, one need only compare rules.
If it is not, then the broader context must be considered, and the topic becomes
considerably more complex.
After considering various examples, the chapter concludes that the broader
context does affect commercial law and that a contextual approach is necessary.
An outline is given of the ways in which the context is relevant, together with an
indication of the main characteristics of a contextual approach. It also concludes
that comparative commercial law is fundamentally no different from other com-
parative law topics, and is of general significance for comparative legal studies.
I. GLOBALISATION AND COMPARATIVE COMMERCIAL LAW
The essence of commerce can be found in the Latin words which make it up: cum
(with) and merx/merci- (goods). It is the exchange of assets and services with a
view to profit. Commercial law can therefore be defined as the law relating to the
facilitation and regulation of commerce.
However, the use of the term varies both across and within legal traditions.
Across traditions, the common law tendency is to restrict its use to transactions,
whereas civilians extend it to institutions, such as companies and partnerships.
Civilian1 usage is followed in this chapter, but the emphasis is on transactions.
* Many thanks to Peter Muchlinski and Camilla Baasch Andersen for their comments on this chap-
ter and to Camilla for suggesting some additional wording, as well as stimulating discussions resulting
from co-teaching.
1 ‘Civilian law’ refers to continental European legal systems and their offshoots. It is used in prefer-
ence to ‘civil’, because this word can also mean the sort of law regarded as basic in such systems, such
as the law of persons and the law of obligations. ‘Civil law’ is used only in the latter sense.
264 Nicholas HD Foster
Within traditions, the term can cover the law governing all types of transactions,
ranging from those taking place between private individuals and consumer trans-
actions to multi-billion dollar contracts. This chapter deals only with the law
relevant to business-to-business transactions.
Why study commercial law in a comparative light? Firstly, because comparative
commercial law constitutes a useful laboratory for the formulation and testing
of general comparative law theories, furnishing numerous intriguing case stud-
ies. But most people study it because globalisation has made it important from a
practical point of view.
In the period immediately preceding ‘globalisation’,2 roughly 1947–1989, the
world was very different. It was divided into two ideologically hostile camps, the
capitalist and the socialist/communist. Almost everywhere, the state took an active
part in the economy, notably through nationalised industries. In socialist/commu-
nist regimes, the state owned the means of production and attempted to control all
economic activity by means of commands (the command system). Protectionism
(the protection of domestic markets and jobs from foreign competition), although
substantially less than before the Second World War, was still at a relatively high level
in many economies, some of which were effectively closed to the outside world.
From the late 1970s to the early 1990s various decisive events took place. In
the People’s Republic of China (the PRC), the death of Chairman Mao Zedong
in 1976 was followed by the ‘Open Door Policy’, the progressive opening of the
Chinese economy to the outside world. In 1979, Margaret Thatcher was elected
Prime Minister of the United Kingdom. Departing from the previous right-wing
policy of leaving in place reforms made by socialist predecessors, she initiated a
series of unprecedented changes, including the privatisation of large sectors of the
economy. In the United States President Ronald Reagan also pursued ‘neo-liberal’
policies which favoured free markets and private enterprise. The Soviet Union’s
empire in Eastern Europe collapsed in 1989. In 1991 the Soviet Union was dis-
solved. The Uruguay Round of the GATT3 concluded in 1995 with a significant
reduction in protectionism and the creation of the World Trade Organisation,
which has far more members than the GATT (nearly all the countries in the world,
in fact), and a much stronger enforcement system, including effectively compul-
sory dispute settlement procedures.
Throughout this period great technological advances were made. In particular,
information storage, manipulation and diffusion were revolutionised. Examples
include the Internet, e-mail, mobile telephones and computerised databases.
Calculations can be effected far more quickly than before at a fraction of their
former cost as a result of a vast increase in computer calculation power.
2 Or, more accurately, the present period of internationalisation.

3 The General Agreement on Tariffs and Trade (GATT) is an international agreement the aim of
which is to reduce protectionism. It is now administered by the World Trade Organisation. A ‘round’ is
a series of international negotiations aimed at the further reduction of barriers to trade. ‘The Uruguay
Round’ was so named because its first session took place in Punta del Este, Uruguay.
Comparative Commercial Law 265
The consequences were profound. The ideological conflict between capital-

ism and socialism/communism has practically disappeared, a situation famously
(and controversially) described by Francis Fukuyama as ‘the end of history’
(Fukuyama, 1989). Neo-liberal, market-based ideology predominates, albeit
with local modifications. The ideal role of governments has become economic
encouragement, co-ordination and regulation rather than participation or con-
trol (see Salacuse, 1999). Formerly socialist/communist regimes abandoned the
command system. They and the mixed capitalist/socialist countries followed
Margaret Thatcher’s example and largely marketised and privatised their econo-
mies. Most states have drastically reduced barriers to trade, foreign investment
and foreign participation in their economies, financial markets are much more
open, financial flows are far less restricted and, thanks to technological advances,
financial transfers are easy and cheap. People are much freer to move from one
country to another. International trade and international investment have greatly
increased. Business activities have been transferred to developing countries. States
compete for foreign business and investment. Multinational corporations have
become even more powerful. International business transactions have increased
in number and complexity. To put it more generally, we live in a world in which
‘the intensification of worldwide social relations ... link distant localities in such
a way that local happenings are shaped by events occurring many miles away or
vice versa’ (Giddens, 1990: 64).
Commerce is an essential part of this new order, and there has been a con-
sequent enormous increase in commercial and associated law-making activity,
founded on two generally, if not universally held, assumptions: (1) an efficient
legal system which protects property rights and facilitates transactions is essential
for commerce; (2) differences in commercial law are inefficient, and they can and
should be removed by harmonisation. Like the global marketplace itself, both
types of activity tend to be dominated by neo-liberal, market-driven, Anglo-
Saxon ideology and Anglo-Saxon concepts of commercial law, a dominance aug-
mented by large multinational law firms, all of which are American or English in
origin.
At the same time, we also see ‘localisation’, ‘a re-tribalisation of large swaths of
humankind by war and bloodshed.’ According to Benjamin Barber, ‘The planet
is falling precipitantly apart AND coming reluctantly together at the very same
moment’ (Barber, 1992: 53). Examples include the resurgence of Islam (1979
was also the year the Shah left Iran after the Iranian Revolution), the tragic
events of 11 September 2001 and their aftermath and the break-up of the former
Yugoslavia.
On the domestic legal level the result is ‘the most massive effort that the world
has ever known to use state power instrumentally through law’ (Seidman and
Seidman, 1995: 44). Sometimes voluntarily, sometimes as a result of external
pressure, governments rushed to create commercial law systems which facilitate
trade and foreign direct investment, always by some form of imitation of, or
inspiration from, Western law. On the international level there has been a huge
increase in harmonisation activity. Take security law. In 1977 Ulrich Drobnig pre-
sented a report to UNCITRAL on possible harmonisation (UNCITRAL, 1977).4
In 1980 further action in this area was indefinitely postponed because success
was considered to be ‘in all likelihood unattainable’ (UNCITRAL, 1980: para
28). In stark contrast, the list of harmonisation projects since 1994 is too long
to set out here, but includes the UNCITRAL draft Legislative Guide on Secured
Transactions 2002, the EBRD Model Law on Secured Transactions 1994 and the
OAS Model Inter-American Law on Secured Transactions 2002, as well as numer-
ous individual country projects (see Goode, 1998: 47-8).5 On the other hand,
the consequences of localisation include a growth in interest in non-dominant
regimes such as Islamic finance, the ‘return to the Shari’a’6 in some Muslim-
majority jurisdictions, and a resistance to harmonisation in certain quarters.
The number of people wishing to acquire knowledge in these areas has there-
fore greatly increased. They come principally from two types of jurisdictions:
(1) the legal systems of economically developed countries (the ‘Westerners’, sub-
divided into the Anglo-Saxons and the Rest); and (2) legal systems in the course of
‘modernisation’, some of which experience considerable tension between the vari-
ous internal and external sources of their law (the ‘Modernisers’). Those working
on harmonisation of law can be considered as a third group, made up of lawyers
from all types of jurisdictions.
In the Western group, the Anglo-Saxons wish to acquire a general understand-
ing of the sort of local law they might encounter in a transaction governed by
their law, eg a project finance transaction in which the main contract is governed
by English law, but the security contracts are governed by German, Kuwaiti
and Indonesian law. The Rest need to understand the Anglo-Saxon law of the
main agreements and the way it differs from, and interlocks with, their law. The
Modernisers have the same goals as the Rest, but also wish to understand Western
law in order to use it better to reform their own law, or to perform the difficult
task of defending their legal culture while at the same time accommodating the
needs of globalisation. The Harmonisers need to understand each other’s law and
view their own law from an outsider’s perspective in order to produce regimes
acceptable to all parties.
How should this expertise be acquired? Most people assume that we should
base our approach on what we might call ‘the instrumentalist view’, which runs
something like this. Some human activities are ‘close to people’s lives’ (Kahn-
Freund, 1974: 10). Therefore they are affected by the way in which the members
of a given society think and feel about things which are important to them, their
4 UNCITRAL: United Nations Commission on International Trade Law.

5 EBRD: European Bank for Reconstruction and Development; OAS: Organization of American
States.
6 ‘Shari’a’ is usually, if somewhat misleadingly, translated as ‘Islamic law’.
cultural attitudes.7 It seems logical that these attitudes should affect the law gov-
erning such activities.8 So if we wish to study the law, we need to study the broader
context within which the law was formed and operates. This is particularly true
if we wish to conduct a comparative study, because we go beyond our own law,
the cultural background to which we instinctively understand, to someone else’s
law, the cultural background to which we cannot attempt to understand without
an explicit explanation. Commerce, though, is not ‘close to people’s lives’, and is
therefore not affected by cultural attitudes. Business people everywhere just want
to make money. So commercial law is not affected by culture either. It is just
lawyer’s law, a mere instrument (hence ‘instrumentalist view’) formulated to per-
form technical functions in a technical field. If we wish to study it, all we need do
is study the different rules and compare them. The broader context is irrelevant.
It follows that, if an activity is affected by cultural attitudes, those attitudes
will differ from one society to another, and the law governing those activities will
differ from one society to another. It will be difficult to change the law so long as
the culture remains the same, and in particular it will be difficult to change it so
as to make it uniform across various types of society. The converse is also true. If
an activity is not affected by cultural attitudes, attitudes towards it will not differ
from one society to another. Any variations in the law are mere accidents, and it
will not be difficult to change the law in order to make it uniform. If commerce is
not affected by cultural attitudes, the latter set of consequences apply to it.9
A good example of the instrumentalist view occurred a few years ago during
the introduction to an LLM course at the School of Oriental and African Studies,
University of London. The author and his colleague explained the contextual
methods used, involving a grounding in such matters as comparative law meth-
odology, the relevant legal systems and their history, and the relationship of
such matters to commercial law. One student belligerently asked why we did not
simply deal with subjects like comparative contract formation, implying that our
approach was an impractical waste of valuable time, which could be much better
spent on the comparative study of the rules.
7 Culture is a difficult concept. One definition is that it

consists of patterns, explicit and implicit, of and for behavior acquired and transmitted by
symbols, constituting the distinctive achievements of a human group, including their embodi-
ments in artifacts; the essential core of culture consists of traditional (ie historically derived and
selected) ideas and especially their attached values; culture systems may, on the one hand, be con-
sidered as products of action, on the other as conditioning elements of further action (Kroeber,
Kluckhohn and Untereiner, 1983: 1152–3).
‘Tradition’, preferred by some scholars, is not used herein. This decision was taken solely in order
to simplify the arguments, and nothing further should be read into it. On the debates, see chs 3, 4
and 5 above.
8 This assumption, the ‘mirror thesis’, is itself controversial. See Tamanaha, 2001 (the idea of reflec-
tion is outlined at 1–2; it is challenged in chs 3, 4 and 5). See also Kennedy, 1991.
9 There are numerous difficulties associated with the words ‘uniform’ and ‘harmonisation’.
‘Uniform’ is used here in a general, non-technical sense.

Systems and Cultures
In order to find out whether he was right or not, consider the ideas of system and
culture as they relate to commercial law.10
Working outwards from the bare rules, it is clear that each topic forms a system,
a set of interconnected norms, mechanisms and principles which makes a unified
whole. The parts of the system are given meaning and effect not just by their con-
tent, but also by their relative place within the system. Since each such system is
legal, it would be logical to call them ‘legal systems’, but that term is normally used
to denote the entirety of such systems in a given jurisdiction, eg ‘the English legal
system’. Therefore, for each system below the level of ‘legal system’ in this sense, we
will use the word ‘regime’ instead. Each regime nests within, overlaps, intersects
and intertwines with other regimes. They are all interdependent:
there are only a few rules that can be understood and applied without reference to other
legal rules or concepts (Pistor, 2002: 98).
English security law is a specialist topic within the law of contract. It is also part
of financial law, and has strong links to insolvency law. It relies on the general law
of contract, property law, etc. Security and contract law both rely on the general
principles and approaches of the English legal system as a whole, such as the
doctrine of precedent and freedom of contract. But they also have a degree of
autonomy, with specialist rules and mechanisms.
All these regimes and legal systems are associated with groups of people, each
of which has its legal culture, its
deeply rooted, historically conditioned attitudes about the nature of [their regime/sys-
tem], about [its] role ... in the society and the polity, about [its] proper organization and
operation ... and about the way [it] is or should be made, applied, studied, perfected, and
taught (Merryman, 1985: 2).11
There are English and French legal cultures, associated with the English and
French legal systems as wholes. English lawyers think, act and emotionally and
subconsciously react in a certain way. French lawyers think, act and emotionally
and subconsciously react differently. There are also legal cultures associated with
regimes such as English commercial law and international financial law. English
commercial lawyers think, act and react differently from their colleagues who
practise family law. All these cultures overlap and intertwine with others. For
example, although recognisably English, English commercial legal culture has
features in common with French commercial legal culture.
Since these groups practise, enforce, maintain and develop the law, their legal cul-
tures constitute major influences on it. So much can be regarded as fairly clear.12
10 The following discussion deals simplistically with complex issues used as foundational argu-
ments. For fuller treatments, see in particular chs 2, 3, 4 and 5 above.

11 The original quotation refers to the culture of an entire legal system, the words in square brackets
replace the word ‘law’ in the original.

12 It should go without saying that other significant influences exist, which may trump legal culture.
Moving outwards once more, to what degree do the regimes and legal systems
reflect society generally and its culture?13 One might expect an interaction between
law and society, law reflecting society’s culture and needs, society determining the
content of the law. Sometimes this is clearly the case. When divorce was socially
unacceptable in Western societies, it was legally very difficult to obtain. When
cultural attitudes changed, the law changed too. However, the metaphor of ‘reflec-
tion’ must be used carefully, for the degree of reflection may vary considerably
according to the circumstances. The law may be out of step with society, reflecting
the culture of the past, not the present. One of the functions of legal culture is to
maintain the legal system, so it is a necessarily conservative force which tends to
keep the regimes and legal systems as they were at the time of their formation,
while general culture moves on. In addition, regimes are often not connected to
all society, but only to a part of it.
The Development of English and French Commercial Law: A Comparative

Historical Sketch
Let us look at how systems and cultures interact in the commercial law context by
examining the formation of the English and French regimes.
The two jurisdictions share some common history. When the Western Roman
Empire collapsed, trade practically disappeared (Volckart and Mangels, 1999:
435–46). The feudal system which grew out of the ruins of the Empire was based
on land. The result was a contempt for commerce among the aristocracy, an
attitude bolstered by the Catholic Church, which also held trade in generally low
regard. According to St Paul, ‘The love of money is the root of all evil’ (I Tim 6:10),
therefore: ‘No profession was more suspect than that of the merchant’ (Le Bras,
1963: 574; see also Mallat, 2000: 92). When trade revived, the aristocracy con-
tinued to view it in a poor light, even when it had grown greatly in importance,
although by the 15th century the theologians had been obliged to concede that
trade was acceptable, even if speculation was not.
Attitudes towards finance were even more negative than those towards trade.
Not only was money-lending viewed with contempt by the aristocracy, ‘usury’
was forbidden by the Bible: ‘the profession of merchant can scarcely ever be
agreeable to God [but the usurer] is the most damnable’ (de Roover, 1963: 76).14
The Church banned first the clergy and then the laity from lending at interest.
Some secular laws followed, and in 1311 Pope Clement V declared that secular
laws allowing usury were void. When trade grew, so did the need for finance, and
the ban on usury was at first evaded, then slowly lifted. By the early 17th century
usury had become ‘a matter of private conscience’ (Visser and Macintosh, 1998:
179, citing Ruston, 1993: 173–4), and the very meaning of the word changed from
13 On ‘reflection’, see n 8 above.

14 Citing the canon (Church decree) Ejiciens Dominus.
‘everything received by a lender over and above the capital lent’ (Le Bras, 1963:
564) to ‘excessive interest’.
The two jurisdictions then went down different paths. England’s success in
exploiting the opportunities arising from the New World and the Far East, acces-
sible as a result of advances in maritime technology and navigational knowledge,
eventually led to the creation of a trade-based empire. At a later period, techno-
logical advances, the Napoleonic wars and the Industrial Revolution combined
in a long period of relative political stability to make commerce even more
important. It flourished in a general atmosphere of policies favouring private
property free from state interference, free markets, private projects and their pri-
vate financing. A significant mitigation (although not the complete elimination)
of the old aristocratic distaste for trade was in evidence, as was a high degree of
trust for those involved in business and finance. Much was made, chauvinistically
but with a degree of justification in the context of the time, of ‘English liberty’, the
fundamental principle being: ‘If it is not forbidden, it is allowed’. Despite being
significantly eroded, the basics of these attitudes persist. For example, the City of
London owes its continuing status as a major international financial centre to the
authorities’ liberal attitude towards overseas banks in the 1960s and 70s.
In France, by contrast, although significant, commerce was less important.
The contempt for trade had always been stronger and more formalised, reflected
in a ban on the participation in trade by nobles and the clergy (Masson, 1786:
121, cited in Kessler, 2003: 518). France lost out in her colonial and commercial
ventures in North America and the Far East, lost the Napoleonic wars, and went
through a period of political instability, suffering further defeat in the Franco-
Prussian war. The collapse of John Law’s banking and trading schemes in 1720
made many French people mistrustful of modern financial systems for genera-
tions. The economy remained predominantly agricultural for longer than in the
United Kingdom, industrialisation took place later. The revolutionaries continued
their predecessors’ policy of centralising government, and the post-revolutionary
economic system was more government-controlled than in England, giving less
prominence to market forces (see Dickerson, 2005: 31–2), in an environment in
which the starting point was: ‘If it is not permitted, it is forbidden’.
Without a reason to be modified, the old attitudes tended to persist, and indi-
cations of them can still be seen today. For example, a financial career in the City
of London is a symbol, even a caricature, of English middle-class respectability,
whereas corresponding caricatures in France are the civil service, engineering,
medicine and (private) law.
The two jurisdictions also differed in their commercial legal history. There is a
degree of commonality between them, the result of some common ancestry in the
lex mercatoria (literally ‘merchant law’, also called ‘law merchant’). This is alleged
by some to have been an international body of rules, created and applied by the
merchants themselves in all Western Europe (often in their own courts) but is
thought by others not to have existed in this form, or at all (see, eg, Sachs, 2006).
Whatever the truth of the matter, normative phenomena of some sort did exist in
various fields, together with doctrinal writing on the subject, and they influenced
the law of both jurisdictions.
However, there were also some important differences. In England, the com-
mercial courts of the Middle Ages gradually disappeared. The insertion of com-
mercial law into the common law and its further development were effected by
the common law judges. They partially used common law techniques, dealing
with problems as they arose in cases, making no formal distinction between it
and other parts of the law. This pragmatic approach was of great value in ground-
ing the evolving law in the practice of merchants. Lord Mansfield (Chief Justice
1756–88), the master architect of English commercial law, even went as far as
appointing businessmen to his juries and inviting them to dinner to learn about
their practices. It seems that the new system was also significantly influenced by
Continental ideas on the lex mercatoria.15 The law so developed was a product of
the time described above. It had a favourable attitude towards private property
rights and free markets, and gave great freedom to business people, pragmatically
taking account of and sanctioning their practices whenever possible. The system
received statutory support at crucial junctures, notably at the end of the 19th
century by the enactment of the Sale of Goods Act 1893, the Partnership Act 1890,
the Bills of Exchange Act 1882 and the Marine Insurance Act 1906.
The most striking characteristics of the resulting regime include: (i) its relative
autonomy from other areas of law, allowing a marked difference of approach to
business-to-business as opposed to business-to-consumer and consumer-to-
consumer transactions; (ii) the principle of the encouragement of commerce (it
leads, the law follows); (iii) pragmatism, including the encapsulation of experi-
ence and the result of creativity in standard documentation (see McKendrick,
2003: chapter 12); (iv) a high degree of party autonomy in contracting, resulting
in flexibility and adaptability;16 (v) considerable scope for creativity by the lawyers
(see Cranston, 1997: 218–19); (vi) certainty (once parties are contractually bound,
the courts tend to hold them to their bargain, favouring certainty over fairness in
the individual case, with minimal protection for the weak or the ignorant—
The attitude of the old common law judges was that life in the business world is rough
and tough and you should not get into it if you do not know what you are doing (Goode,
1992);
(vii) the existence of specialised fields, created by a combination of party auton-

omy, certainty of contractual obligation and standard form documents; (viii) the
fairly efficient and relatively quick resolution of problems, notably through self-
help; and (ix) the specialised knowledge and skill of commercial lawyers.
On the negative side, the law is apparently incoherent, ‘a collocation of ill-
assorted statutes bedded down on an amorphous mass of constantly shifting case
15 The degree to which rules were imported (or existed in a form which could be imported) is dis-
puted. See, eg Volckart and Mangels, 1999 and Cordes, 2005.

16 See Kum v Wah Tat Bank Ltd [1971] 1 Lloyd’s Rep 439 at 444 (PC), per Lord Devlin.
law’ (Goode, 2004: 1203), and it is therefore inaccessible to anyone other than a
specialist. It is relatively inflexible from the statutory point of view, for Parliament
deals with commercial law only rarely and reluctantly, a situation which has led
our most eminent academic authority to write that: ‘our parliamentary machin-
ery is wholly inadequate for modern commerce’ (Goode, 2001: 760). The same
author has argued that contemporary English commercial law is failing to adapt
to modern conditions (ibid).
In France, the development of commercial law was, for the most part, separate
from the civil law. Growing up initially through trade with England, Flanders,
Germany and Italy at the fairs in Brie, Champagne and later Lyons, it drew on
various sources, such as the statutory law of the Italian cities, parts of Roman
law (adapted for commercial use), collections of customs and case-law, local
regulations and Italian doctrinal literature.17 In contrast to the judge-led develop-
ments across the Channel, the system was centralised by government action (one
cannot at this stage talk of it being incorporated into French law, as only local
laws existed), notably by the creation of commercial courts and two important
codifications, the Ordonnance sur le commerce de terre of 1673 (‘Land Commerce
Ordinance’) and the Ordonnance sur la marine of 1681 (‘Marine Ordinance’).
However, it must also be said that the Ordinances were based on the experience
and input of practitioners.
When the new French legal system was created, the Ordinances formed the
basis of commercial law, to which was assigned the role of a set of adjuncts to, and
derogations from, the civil law. One consequence of this arrangement is that civil
law thinking influences commercial law to some degree. Take the indivisible and
land-based principle of property, the principles requiring a high level of contractual
certainty, or the restrictive attitude towards transfers of rights. To the common law-
yer, the first principle seems too inflexible, the last two over-protective. Indeed, some
French colleagues share the common lawyer’s feeling. According to a noted com-
pany law scholar, the French ‘legal system all too often surrounds [business people]
with a climate of systematic suspicion’ (Guyon, 1990: 948—my translation).
Another result of the subordinate status of commercial law was that less atten-
tion was paid to it than to civil law and a less satisfactory product emerged. The
Commercial Code was less well drafted, rapidly went out of date and, as further
legislation was passed in specialist areas, became more and more irrelevant until
its replacement in 2000. Even now, levels of logic, structure and coherence are sig-
nificantly lower than in civil law. The legal profession was prevented from doing
as much to improve the situation as it might have done in England by another
consequence of centralisation, the dominance of legislation, resulting in less flex-
ibility and less adaptability.
On the other hand, the extent of the differences should not be exaggerated.
Both jurisdictions provide reasonably efficient commercial law regimes, and there
17 This list comes from Hilaire, 1986: 27.

has recently been a degree of convergence.18 English law modified its laissez-faire
law of contract, and has recently adopted a more ‘social’ attitude, evidenced, inter
alia, by the legislation providing for automatic interest on late payment of debts
(the Late Payment of Commercial Debts (Interest) Act 1998—a measure designed
to protect small businesses) and the new administration procedure contained
in the Enterprise Act 2002, the main aim of which is to save viable businesses
experiencing temporary problems. A new creativity is evident in the French legal
profession (Paillusseau, 1997). And the French system is superior in some ways.
It is more apparently accessible than English law, especially since the coming into
force of the 2000 Commercial Code, which has remedied many of its predecessor’s
defects, and the legislator plays a more active role than in England, a considerable
advantage in the modern age, which often requires detailed statutory regimes.
We can see from this account that the English and French commercial law
regimes result from historical processes in which differing attitudes to commerce
have produced different results. Those attitudes, which one can, with some justi-
fication, call ‘cultural’, were determined by the broader (economic, social, military,
political, philosophical etc) context, as well as by the history and culture of the
English and French legal systems.
Specific Examples
Some specific examples may shed some more light on the matter.
Consider the Centros case.19 English law does not require the payment of a min-
imum amount of capital on formation of a company; Danish law requires pay-
ment of a substantial sum. Two Danish resident nationals incorporated Centros
Limited in England solely in order to avoid the Danish requirement. The company
applied to set up a branch in Denmark, but the application was refused. Centros
claimed that the refusal was a denial of its EC law right to freedom of establish-
ment. The Danish government claimed that their law protected ‘the interests of [a
company’s] employees and creditors’, so the refusal was justified.20 The European
Court of Justice found in favour of Centros.
The case seems to show the influence of general cultural attitudes on law. In
Denmark, the protection of the individual, including creditors, and particularly
employees, is considered vital, and companies are seen as having a social, as well
as a profit-making, function. This view can be contrasted with that prevalent in
18 But see the World Bank assessment of how easy it is to do business in France, which has caused
a considerable stir there. In the 2006 survey, for example, France was ranked overall 35th in the world,
the United Kingdom 6th (http://www.doingbusiness.org/).
19 C–212/97 Centros Ltd v Erhvervs-og Selskabsstyrelsen [2000] Ch 446 (ECJ); see, eg, Looijestijn-
Clearie, 2000; see also C–167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire
Art Ltd [2003] ECR I–10155 (ECJ) and C–208/00 Überseering BV v Nordic Construction Company
Baumanagement GmbH [2002] ECR I9919 (ECJ).
20 Ibid [2000] Ch 446 at 454, per Advocate General La Pergola.
the United Kingdom, where it is considered more important to encourage busi-

ness in order to stimulate economic activity, thereby creating jobs in a more fluid
employment market, and where companies are seen as no more than mechanisms
to make money for shareholders. The Danish general cultural attitude has affected
Danish legal culture, so that it has become an article of faith that a company must
have a substantial minimum capital in order to provide a reasonable assurance
that it will be able to pay its creditors. The attachment to this attitude was so
strong that the Danish government expended a considerable amount of resources
defending the rule, despite the fact that minimum capital requirements do not in
fact provide adequate protection in most cases.
Another example from company law can be found in the People’s Republic of
China, which had no general company law from the Communist takeover until
1994. As well as being mechanisms for the private concentration and exploitation
of capital, joint stock companies are also concentrations of power outside the
state. In communist ideology, neither has a place in the polity. Once the enforce-
ment of communist ideology was relaxed, company law was introduced: a clear
example of a direct link between general culture and the law.
Moving to transactions, we see sharp cultural contrasts when considering
Islamic law. In finance, the foundation of the Western system is interest. Islamic
law forbids riba, roughly ‘illegitimate gain’. The consensus among scholars is
that riba includes interest. The entire field of Islamic finance law is based on this
cultural/religious difference: another clear example of the influence of general
culture on law.
Security law provides some striking examples.
— Numerus clausus. Commercial law must be able to adapt to changing com-
mercial needs and practices. This can be done by the legislator, but courts may
play just as important a role, and they should be allowed to do so. However,
French legal culture is obstructive rather than helpful in this regard, because that
pillar of civilian mentality, the dominance of legislation, is fixed in security law by
means of the numerus clausus principle, ie the rule that the list of security mecha-
nisms is closed (exceptions do exist) (Foster, 1997–98: 14).21
— Universal security. In modern economies, it is considered important to
encourage lending. One way of doing this is to allow lenders to take security over
all the assets, present and future, of commercial borrowers (‘universal security’).
In England this is so normal that it is hardly ever discussed. In France, such a
grant was for many years viewed as dangerous, because it would allow financiers
to abuse the power it gives them (Foster, 2002: 61–2).22 This attitude was no doubt
comprehensible in the Middle Ages when the economy was overwhelmingly rural
and borrowers were vulnerable, but to the common lawyer it does not seem to
be justified in the 21st century, when many businesses are just as sophisticated
21 But note the 2006 reforms.

22 See also below on the ‘modernisation’ of the law in this regard.
as their banks and the non-commercial borrower is protected by consumer and

financial services law.
— Fragmentation. Efficient security regimes provide general mechanisms
which can apply to broad categories of assets, reducing complexity and transac-
tion costs. Civilian regimes, however, are typically fragmented, with one type of
statutory regime per type of asset. Attempts have been made in Italy to encourage
borrowing by widening the categories of asset which may be given in security.
The first attempt, however, shows the degree to which the drafters remain con-
ditioned by their legal culture. The reform consisted of a law on pledging hams
(prosciutti)... To the common lawyer, this is needlessly specific, therefore expen-
sive and inefficient. The introduction of a new, and general, regime (Article 9 of
the United States Uniform Commercial Code (UCC) is a model which has been
followed elsewhere) was literally unthinkable. More recently, a ‘rotating pledge’
(pegno rotativo) has been recognised by the courts, but it still falls far short of
the flexibility of the English floating charge. The Civil Code, however, contains
detailed provisions concerning such rural matters as swarms of bees, trained ani-
mals, rabbits and fish.23
In the first two instances above, legal culture has frozen the law. In the third, it
has, in the view of the common lawyer and some Italian commercial practitioners,
stultified its development.
In a related field, the transfer of rights and obligations, very early in its history
English law allowed the transfer of rights to payment of money without notice to
the debtor. Civilian lawyers still regard such transfers as wrong, even distasteful, to
the extent that when the English law position is explained to them some find it so
outlandish that they are convinced the lecturer has made a mistake. Once again,
the rationale for the attitude, mainly the possibility of ‘Nasty Creditor’ taking
the place of ‘Nice Creditor’ and enslaving the debtor or sending her to prison for
non-payment, disappeared many years ago. Once again, legal culture has frozen
the law.
Various useful examples come from an area of particular importance for com-
parative legal studies, that of ‘legal transplants’.24
— Unsuitability. The ‘classic’ issue in this area is the potential unsuitability of
the transplant for the host jurisdiction. The argument runs that if law is developed
in, by and for the context of jurisdiction A, then introducing it into the different
context of jurisdiction B will not lead to the same results in B as are produced in A.
This may not be problematic if the transplanted law still produces useful results, but
it is possible that the results will be less good or even non-existent. So if context
23 Pledging hams: Law of 24 July 1985, no 401. The rotating pledge was first recognised by first
instance courts in the late 1980s. It was sanctioned by the Court of Cassation judgment of 28 May
1998, no 5264. The references to animals are contained in Arts 924–926 of the Italian Civil Code. Many
thanks to Emanuele Bosia for the information.
24 The transfer of an item of law from one legal system to another: the very term is controversial,
hence the inverted commas.

influences commercial law, we should see problems. Take Albania. The law of
insolvency was introduced despite the almost total lack of commercial lending
and is therefore, for the time being at any rate, irrelevant (Channell, 2005: 5–6).
An intriguing instance in which an (ineffective?) attempt was made to deal
with the issue was the introduction of Western company law into Russia. It
was realised that ‘effective corporate law is context-specific’; that in developed
countries it ‘evolved in tandem with supporting legal institutions’, including,
for example, judges skilled in corporate law; that it developed against a certain
cultural background; and that introducing United States law into a jurisdiction
of ‘insider-controlled companies, malfunctioning courts, weak and sometimes
corrupt regulators, and poorly developed capital markets’ was pointless (Black
and Kraakman, 1996: 1914).
Phenomena other than unsuitability also merit consideration in the commer-
cial context. They include technical incompetence, lack of enforcement, sidelining
and adaptation, isolation.
— Technical incompetence. Since a legal regime is part of the regimes and the legal
system in which it is embedded, on a purely technical level it must be properly
inserted into the host jurisdiction. For example, when the Ottoman government
attempted to import French company law, they failed to enact some essential parts
of the French legislation because, according to Chibli Mallat:
the Ottoman legislator forgot that it was in the French civil code, and not in the com-
mercial code, that the main regulations of commercial companies are to be found
(Mallat, 2000: 102).
— Lack of enforcement is a common problem. Examples abound. We can cite the

example of Albania again:
Albanian lawyers today often speak proudly of the new system, noting, however, that
the new laws are European, not Albanian, and that they are not actually being applied
(Channell, 2005: 5).
— Sidelining occurs when some item of commercial law is imported, used and
enforced but, since it was not developed within the host legal system, never really
‘takes’, never really puts down roots. So it is not reformed or adapted to current
needs, or is reformed without proper care (Pistor, Keinan, Kleinheisterkamp and
West, 2002: 840–41).25
— We see adaptation in the French acceptance of a type of universal security
(previously frowned upon as seen above), but ‘civilised’ before being absorbed
into its new environment.26
25 Where they identify problems of ‘lethargy’ and ‘erratic change’.

26 See the new ‘gage des stocks’ (pledge of stocks), Art L527 of the French Commercial Code.[TS
please line space]
— Isolation can be regarded as a typical solution of cultural difference in the

commercial field, a compromise adaptation to accommodate dominant Anglo-
Saxon ideas. An otherwise objectionable commercial legal regime is corralled
into a confined space, for use only by the commercial community, protecting the
rest of the legal system from contamination. Take the United Arab Emirates. It
has a Western-inspired commercial code, largely insulated from the Islamically-
grounded civil code, and has recently transplanted English law into the Dubai
International Financial Centre, a geographical area set aside as a separate jurisdic-
tion (see Blair and Orchard, 2005). Or take the passing of specific laws in civilian
jurisdictions allowing the transfer of rights without notice to the debtor in certain
defined, commercial, circumstances (see Foster, 2003–04: 79–80).
Finally, the influence of legal culture on commercial law can also be seen in
an area which is quite closely linked to legal transplants, the harmonisation of
‘lawyers’ law’. Such harmonisation is generally thought to be easily achieved,
because it is not cultural. In fact, though, the opposite can be true, because it is
very much part of the culture of the lawyers concerned. So if lawyers play a sig-
nificant role in the process, and they usually do, the influence of legal culture can
be considerable. One example is the United Nations Conventions on Contracts for
the International Sale of Goods, 1980 (CISG), which is interpreted differently in
different legal cultures, despite the very considerable efforts expended in trying to
make it uniform (see Baasch Andersen, 2005).
II. COMPARATIVE CULTURE IN COMMERCIAL LAW?27
What conclusions can we draw? First, a caveat. The examples were chosen on the
basis of the author’s knowledge and experience rather than by rigorous scientific
method, so it cannot be claimed that they are comprehensive. It is submitted,
though, that they are sufficiently numerous and varied to provide reasonably reli-
able, if admittedly somewhat anecdotal, evidence.
Subject to this, it seems clear that commercial law regimes must be considered
as part of a network of regimes.28 We can therefore say that a local element, the
interaction with other local regimes, is relevant. This conclusion alone, however,
does not necessarily affect the core of the instrumentalist view. One might argue
that such an interaction is a technical legal matter, and that it proves nothing
about the significance of the extra-legal context.
It does seem clear, though, that the law can be influenced by historically and
culturally conditioned attitudes to commerce, and that these vary from one soci-
ety to another. We have seen, for instance, that the historical and cultural back-
grounds which influenced the development of commercial law in England and
France, two neighbouring Western European jurisdictions, were quite different,
27 A phrase coined by Anthony Dicks as the title for the MA course taught by the author.
28 See the Ottoman and Russian company law examples above.
leading to legal differences. We have seen that Islam regards as sinful something
on which the Western world has built its economy, resulting in the development
of Islamic finance. And we have seen that divergent views about the role of com-
panies in society prevail in Denmark and the United Kingdom, informing aspects
of their company law.
This is not to say that the link between cultural attitudes to commerce and the
law is necessarily direct. In certain situations it can be: recall such examples as the
lack of company law in the People’s Republic of China until 1994, Islamic finance,
and some instances of unsuitability and lack of enforcement of legal transplants.
But it can also be indirect. We have observed above instances of cultural attitudes
to commerce influencing legal culture and the law (the Centros case, French secu-
rity law, the problems of sidelining, adaptation and isolation in legal transplants,
and the problems associated with the harmonisation of ‘lawyers’ law’).
In addition, another cultural element, legal culture, must be taken into account.
What seems like a purely technical regime to the lay person may have the force of
culture for a lawyer working in that field.
So the instrumentalist view is wrong, as was our belligerent enquirer—who, by
the way, did not return. Commercial law is historically and culturally conditioned.
Let us return to, and adapt, the formulation of the instrumentalist view.
Commerce is in fact ‘close to people’s lives’, because it relates to such ‘rules of the
game of economic struggle’ (Kennedy, 1991: 327) as the distribution of property
among social groups, the concentration of power in society, the ‘set of prior
choices about the role of the state and the private sector in responding to change’
(Mahoney, 2001: 504), and the morality of interactions between people. Therefore
it is affected by cultural attitudes. Business people everywhere may just want to
make money, but they are still people, who function in a culturally determined
mentality. Since commercial law concerns the facilitation and regulation of com-
merce, it, too, may be affected by cultural attitudes (so long as the law reflects
those attitudes). So a given commercial law regime may well not be a mere instru-
ment formulated to perform technical functions in a technical field.
It follows that, since cultural attitudes to commerce will differ from one society
to another, local variations in commercial law which reflect those differences are not
mere accidents, and may be difficult to change effectively. In particular it may be dif-
ficult to change them so as to make the law uniform across various types of society,
and legal culture may prove to be a strong conservative force in this regard.
It also follows that comparative commercial law can be of considerable value
for the advancement of comparative law knowledge and should be treated, by and
large, in the same way as other comparative law topics. The subject has its idiosyn-
crasies, of course, but this is true of all areas. It is not inherently different.
One must be careful, though, not to generalise too broadly or exagger-
ate and, in addition to the cautious wording of the text above, several caveats
should be made. The relationship between cultural attitudes to commerce and
commercial law may be remote, complex, unexpected, and difficult to disentangle.
For example, law and legal culture may reflect attitudes to commerce prevalent when
the law was developed, rather than those prevalent now, with the result that the main
obstacle to change is not a general, but a legal, cultural attitude which may be over-
ridden (if there is sufficient political will, for example). One can see this in the case
of the apparent aversion to universal security in French law, which did not prevent
recent reforms allowing security over present and future assets (so long as the latter are
adequately specified) and a security over stock. In other words, legal cultural attitudes
relating to this regime were not as strong as they appeared, and were not effective as
barriers to reform of the law.29 Furthermore, if the law is a transplant, cultural atti-
tudes underlying it may be of little or no relevance to the host society. And in some
instances, for example where the group of people practising and using the law is quite
homogenous (as in international financial law), the broader context may not be of
great importance, and the law can be treated for most purposes as technical.
More generally, nothing herein should be taken as denying that significant
commonalities of attitude towards commerce exist among societies, nor that simi-
larities in legal results exist among apparently different legal systems. Of course
they do. Nor should anything herein be taken as denying that globalising forces
have extended and deepened a significant number of such commonalities. Of
course they have. But similar is not the same, and appearances can be deceptive.
To recap, using the words of William Allen, a former Chancellor of the
Delaware Court of Chancery (writing of corporation law—the principle is the
same for commercial law):
Every general field of law embraces materials from which analysis can unearth the deepest
questions that our social life recurringly presents to us. In some fields of law such questions
lie near the surface ... Other fields of law ... appear or are more technical, more narrowly
‘legal’. In such fields, legal problems may seem less pregnant with potentialities and answers
may seem ... less controversial. It is easy in such fields to lose sight of—indeed it may some-
times be difficult to ever catch a first glimpse of—the contestable philosophical or political pre-
suppositions that lie at their foundations, buried beneath the legal superstructure. Corporation
law is such a field (Allen, 1993: 1395, emphasis added).
It also follows that the instrumentalist view can only give satisfactory results
where there is a close commonality between cultural attitudes to commerce and
legal cultures in the relevant societies. Witness the examples above, none of which
can be adequately analysed using a solely rule-based approach. If such a close
commonality does not exist, the instrumentalist view leads to poor service to
clients, ineffective legislation and little used harmonised regimes. On the other
hand, a contextual approach leads to numerous benefits: a consciousness of
difference in the formulation, practice, interpretation and enforcement of the law;
29 For the new pledge see Art 2333 of the Civil Code; for the new pledge of stock see Art L527 of
the Commercial Code. A summary of the new law is set out at http://www.justice.gouv.fr/presse/
conf220306.htm. See generally, Le Nabasque and Adelle, 2005. On the other hand, attitudes found in
legal culture may also persist, perhaps in a modified form, in general culture, which itself can be influ-
enced by legal culture. It is also noteworthy that the 2006 French security law reforms were effected by
means of the adaptation of French law, not the wholesale import of, say, Art 9 of the UCC.
a better understanding of law and lawyers from other jurisdictions; an outsider’s

perspective on your own law; and an appreciation that the difficulties associated
with legal transplants, harmonisation and the relationship between law and soci-
ety have the potential to apply just as much to commercial matters as to any other
field. It also leads, one hopes, to better service to clients, more effective legislation
and more successful harmonisation, for: ‘In order to be efficient, you must avoid
being blocked in your own universe’ (Garnot, 1995: 351).
How should a contextual study be conducted? Only the briefest of discussions
is possible here. Contextual does not mean ‘woolly’. Mastery of the legal techni-
calities is essential, as is a sound understanding of the history, general culture and
legal cultures of the jurisdictions concerned and the relationship between them.
One must also have a reasonable grasp of the essentials of comparative law meth-
odology, harmonisation theory and legal transplant theory, and do one’s best to
acquire at least the fundamental notions of other relevant disciplines. The most
essential tool, though, is an open and inquiring mind.
The contextual approach has its drawbacks. The acquisition of the necessary
knowledge requires much time and effort. Materials may only be available in
unfamiliar languages, difficult to find, or both. The factors which one should ide-
ally take into account are so numerous that one cannot be truly systematic, and
one may well be superficial. It is easy to make mistakes, including, notably, those
induced by subjectivity. Venturing into other, complex, disciplines runs the risk of
amateurism, and those disciplines are full of controversies and debates, so clear-
cut answers are rarely, if ever, provided.30
In other words, the contextual approach is a counsel of perfection, an unattain-
able goal. On the other hand, although the outcomes will necessarily be imperfect,
they will be much superior to those derived from the study of rules alone. And the
journey towards them will be more interesting—dare one say more fun?
1. Does the literature on legal transplants give commercial lawyers the

answers they need to solve the problems they encounter in today’s world?
2. You are taking part in the revision of the OECD Principles of Corporate
Governance, 2004 (http://www.oecd.org/dataoecd/32/18/31557724.pdf).
What comparative law considerations will you need to bear in mind when
undertaking this work?
3. ‘English commercial law was invented by the judges as a tool for the devel-
opment and continuation of the British Empire. French commercial law
was the poor relation of the Civil Code.’ Discuss.
4. Does it really matter that the civilian law relating to the transfer of receiv-
ables requires notice to the debtor, given that the legislator has intervened
in the most important areas?
30 Much of this paragraph comes from a lecture by Camilla Baasch Andersen.
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Mallat, C (2000) ‘Commercial Law in the Middle East: Between Classical Transactions and
Modern Business’ 48 American Journal of Comparative Law 81.
Masson, P-J (1786) Instruction sur les affaires contentieuses des négociants, la manière de les
prévenir, ou de les suivre dans les tribunaux (Paris, LeClerc).
McKendrick, E (2003) Contract Law: Text, Cases and Materials (Oxford, Oxford University
Press).
Merryman, JH (1985) The Civil Law Tradition: An Introduction to the Legal Systems of
Western Europe and Latin America, 2nd edn (Stanford CA, Stanford University Press).
Paillusseau, J (1997) ‘L’enrichissement du droit et de la théorie juridique par la pratique
professionnelle (un témoignage)’ in Le droit de l’entreprise dans ses relations externes à la
fin du XX° siècle: Mélanges en l’honneur de Claude Champaud (Paris, Dalloz).
Pistor, K (2002) ‘The Standardization of Law and its Effect on Developing Economies’ 50
American Journal of Comparative Law 97.
Pistor, K, Keinan, Y, Kleinheisterkamp, J and West, MD (2002) ‘The Evolution of
Corporate Law: A Cross-Country Comparison’ 23 University of Pennsylvania Journal of
International Economic Law 791.
Salacuse, JW (1999) ‘From Developing Countries to Emerging Markets: A Changing Role
for Law in the Third World’ 33 International Lawyer 875.
Seidman, A and Seidman, RB (1995) ‘Drafting Legislation for Development: Lessons from
a Chinese Project’ 44 American Journal of Comparative Law 1.
UNCITRAL (1977) Report of the Secretary-General: Study on Security Interests (A/CN9/131
1977) VIII UNCITRAL Yearbook 171.
—— (1980) Report of the United Nations Commission on International Trade Law on the Work
of its Thirteenth Session (1980) (A/35/17) XI UNCITRAL Yearbook, Part One 11.
Visser, WA and Macintosh, A (1998) ‘A Short Review of the Historical Critique of Usury’ 8
Accounting, Business & Financial History 175.
Volckart, O and Mangels, A (1999) ‘Are the Roots of the Modern Lex Mercatoria Really
Medieval?’ 65 Southern Economic Journal 427.
Guided Further Reading
In addition to the works cited in the text and listed above, the following may be of interest
for the reader wishing to study the subject further.
For an extensive coverage of many of the issues discussed in this chapter, see: Dalhuisen,
JH (2004) Dalhuisen on International Commercial, Finance and Trade Law, 2nd edn
Globalisation
The Historical Background Pre-globalisation:

Gaddis, JL (2005) The Cold War: A New History (Harmondsworth, Penguin).
Kopacsi, S (1989) In the Name of the Working Class (London, Fontana).
Mazower, M (1998) Dark Continent: Europe’s Twentieth Century (London, Penguin).

http://en.wikipedia.org/wiki/Communism.
http://en.wikipedia.org/wiki/Communist_state.
The Transformation:
Barber, BR (1992) ‘Jihad vs McWorld’ March The Atlantic Monthly 53.
Fukuyama, F (1989) ‘The End of History?’ Summer The National Interest 3.
Huntington, SP (1993) ‘The Clash of Civilizations’ 72 Foreign Affairs 22.
Stephan, PB (1995) ‘The Fall—Understanding the Collapse of the Soviet System’ 29 Suffolk
University Law Review 17.
Globalisation Generally:
Giddens, A (1999) Runaway World: How Globalisation is Reshaping our Lives (London,
Profile).
Stiglitz, JE (2002) Globalization and its Discontents (New York, WW Norton).
Globalisation and Law:
Muchlinski, PT (2003) ‘Globalisation and Legal Research’ 37 International Lawyer 221.
Salacuse, JW (1999) ‘From Developing Countries to Emerging Markets: A Changing Role
for Law in the Third World’ 33 International Lawyer 875.
Commercial Law and Economic Development:
de Soto, H (2000) The Mystery of Capital: Why Capitalism Triumphs in the West and Fails
Everywhere Else (New York, Basic Books).
Hayek, FA (1960) The Constitution of Liberty (London, Routledge and Kegan Paul).
Mahoney, PG (2001) ‘The Common Law and Economic Growth: Hayek Might Be Right’
30 Journal of Legal Studies 503.
Pistor, K (2001) ‘The Evolution of Legal Institutions and Economic Regime Change’ in
J Stiglitz and P Muet (eds), Governance, Equity and Global Markets (Oxford, Oxford
University Press) (a balanced and comprehensive introduction).
Systems and Cultures

Systems:
Allan, DE (1984) ‘Credit and Security: Economic Orders and Legal Regimes’ 33 International
Comparative Law Quarterly 22 (out of date as regards the instances given, but excellent
on the importance of context).
Luhmann, N (2004) Law as a Social System (Oxford, Oxford University Press).
Pistor, K (2002) ‘The Standardization of Law and its Effect on Developing Economies’ 50
American Journal of Comparative Law 97.
Teubner, G (ed) (1997) Global Law without a State (Aldershot, Dartmouth).
von Bertalanffy, L (1968) General System Theory: Foundations, Development, Applications
(Rev edn, New York, George Braziller).
Business Culture:
Hofstede, G (1997) Cultures and Organizations: Software of the Mind, Revised edn (New
York, McGraw-Hill).
Legal Culture:
Abel, RL (1994) ‘Transnational Law Practice’ 44 Case Western Reserve Law Review 737
(transnational law firms).
Dezalay, Y (1990) ‘The Big Bang and the Law: The Internationalization and Restructuration
of the Legal Field Theory’ 7 Culture and Society 279 (transnational law firms).
Gessner, V (1994) ‘Global Legal Interaction and Legal Cultures’ 7 Ratio Juris 132 (com-
mercial law).
Watson, A (1983) ‘Legal Change: Sources of Law and Legal Culture’ 131 University of
Path Dependence:
David, PA (1985) ‘Clio and the Economics of QWERTY’ 75 American Economic Review 332.
Liebowitz, SJ and Margolis, SE (1990) ‘The Fable of the Keys’ 33 Journal of Law and
Economics 1.
Specific Examples Used in the Text

PRC Company Law:
Art, R and Gu, M (1995) ‘China Incorporated: The First Corporation Law of the People’s
Republic of China’ 20 Yale Journal of International Law 273.
Islamic Finance:
Vogel, FE and Hayes, SL (1998) Islamic Law and Finance: Religion, Risk and Return (The
Hague, Kluwer Law International).
Security Law:
Wood, PR (2005) Maps of World Financial Law, 5th edn (London, Allen & Overy).
Transfer of Rights and Obligations:
Foster, NHD (2003-04) ‘Owing and Owning in Islamic and Western Law’ in E Cotran and
M Lau (eds), vol 10 Yearbook of Islamic and Middle Eastern Law (Leiden, Brill).
Legal Transplants:
Twining, W (2004) ‘Diffusion of Law: A Global Perspective’ 49 Journal of Legal Pluralism
and Unofficial Law 1.
Unsuitability: Black, B and Kraakman, R (1996) ‘A Self-Enforcing Model of Corporate Law’
109 Harvard Law Review 1911.
Berkowitz, D, Pistor, K and Richard, JF (2003) ‘Economic Development, Legality, and the
Transplant Effect’ 47 European Economic Review 165.
Channell, W (2005) ‘Lessons Not Learned: Problems with Western Aid for Law Reform in
Postcommunist Countries’ 57 Democracy and Rule of Law Project 2005; also in 1 Journal
of Comparative Law 321.
Sidelining: Pistor, K, Keinan, Y, Kleinheisterkamp, J and West, MD (2002) ‘The Evolution
of Corporate Law: A Cross-Country Comparison’ 23 University of Pennsylvania Journal
of International Economic Law 791.
Adaptation: Seidman, A and Seidman, RB (1995) ‘Drafting Legislation for Development:
Lessons from a Chinese Project’ 44 American Journal of Comparative Law 1.
Harmonisation:
Goode, RM (1991) ‘Reflections on the Harmonisation of Commercial Law’ 1 Uniform Law
Review 54.
Hobhouse, JS (1990) ‘International Conventions and Commercial Law’ 106 Law Quarterly
Review 530.
Stephan, PB (1999) ‘The Futility of Unification and Harmonization in International

Commercial Law’ 39 Virginia Journal of International Law 743.
English and French Attitudes to Commerce and Commercial Law
There is no general history of commercial law in English. See the relevant sections of
Holdsworth, WS (1924) A History of English Law, 3rd edn (London, Methuen). Treatises
in continental European languages include Hilaire, J (1986) Introduction historique au
droit commercial (Paris, Presses universitaires de France), in particular chapters 1 and 2.
General Legal Cultural and Legal History:
Zweigert, K and Kötz, H (1998) An Introduction to Comparative Law, 3rd edn (Oxford,
Clarendon Press), in particular chapter 6 (The History of French Law) and chapter 14
(The Development of the English Common Law).
Medieval Attitudes:
de Roover, R (1963) ‘The Scholastic Attitude toward Trade and Entrepreneurship’ 1
Explorations in Entrepreneurial History (2nd series) 76.
Le Bras, G (1963) ‘Conceptions of Economy and Society’ in MM Postan, and E Rich (eds),
Cambridge Economic History of Europe, vol III: Economic Organization & Policies in the
Middle Ages (Cambridge, Cambridge University Press).
Visser, WA and Macintosh, A (1998) ‘A Short Review of the Historical Critique of Usury’ 8
Accounting, Business & Financial History 175.
The Weber Thesis:
Weber, M (1930) The Protestant Ethic and the Spirit of Capitalism (London, G Allen &
Unwin).
Lex Mercatoria:
The Chicago Journal of International Law, Summer 2004 issue, contains a useful collection
of articles.
Cordes, A (2005) ‘The Search for a Medieval Lex Mercatoria’ in V Piergiovanni (ed), From
Lex Mercatoria to Commercial Law (Berlin, Duncker & Humblot).
Sachs, SE (2006) ‘From St Ives to Cyberspace: The Modern Distortion of the Medieval “Law
Merchant”’ 21 American University International Law Review 5.
Sutherland, Stuart L (1934) ‘The Law Merchant in England in the Seventeenth and
Eighteenth Centuries’ in 17 Transactions of the Royal Historical Society (4th series) 149.
Volckart, O and Mangels, A (1999) ‘Are the Roots of the Modern Lex Mercatoria Really
Medieval?’ 65 Southern Economic Journal 427.
French and English Commercial Law:
Dalhuisen, JH (2004) Dalhuisen on International Commercial, Finance and Trade Law, 2nd
edn (Oxford, Hart Publishing), chapter 1, especially 1–26.
Goode, RM (2004) Commercial Law, 3rd edn (Harmondsworth, Penguin), chapters 1
and 40.
Nouel, P (1996) ‘ ‘‘Cartesian Pragmatism”: Looking for Common Principles in French and
English Law’ 24 International Business Lawyer 22.
Rouvillois, F (ed) (2005) Le modèle juridique français: un obstacle au développement
économique? (Paris, Dalloz).
13
Administrative Law in a Comparative
Perspective
JOHN BELL
KEY CONCEPTS
Administration; Administrative procedure; Discretionary powers; Duty to

give a hearing; Duty to give reasons; Fundamental rights; Incompetence;
Judicial Review; Legitimate expectations; Liability of the administra-
tion; Misuse of powers; Public body; Public Law and Private Law;
Proportionality; Rule of law; Standards of good administration; State;
Ultra vires.
I. INTRODUCTION
A
dministrative law is about the institutions and powers of the executive
branch of government and the controls exercised by law over them. The
term ‘the administration’ has no specific meaning in many legal systems,
but it is a convenient label to cover central and local government, as well as the
variety of public bodies that may exist.
The main questions for any comparison of legal systems are:
1. What does each system include within its conception of ‘administrative
law’?
2. Who is governed by ‘administrative law’? In particular, how are the rules
of public law separated from those of private law?
3. What powers does ‘the administration’ have?
4. What procedures does the administration have to adopt when making
decisions?
5. Who provides remedies against the administration?
6. What judicial control is exercised over misuse of powers?
7. When is the administration liable for its actions and how is this liability
different from that of a private individual?
288 John Bell
II. WHAT IS ADMINISTRATIVE LAW?
Rules on Powers or Rules on Remedies?
The label ‘administrative law’ is used in different ways in different legal sys-
tems. In continental European traditions, administrative law (droit adminis-
tratif, Verwaltungsrecht)1 is concerned with the powers and organisation of the
executive organs of the state. The common law use of the term ‘administrative
law’ is more synonymous with ‘administrative litigation’ (contentieux admin-
istrative, Verwaltungsgerichtsbarkeit), and even in the common law world the
topic is often called ‘judicial review (of administrative action)’. ‘Administrative
law’ is best used to identify a general body of principles that govern the organ-
isation, powers and procedures of the administration and the rules governing
the remedies (judicial or otherwise) available for breaches of those principles.
These remedies cover both the judicial review of the exercise of powers and
administrative liability.
What is Specific About Administrative Law Rules?
A second area of difficulty in comparison lies in the scope of administrative law.

In one important sense, administrative law includes all the rules and principles
that apply to the administration. But this usage would be unnecessarily broad.
If the distinctive feature of administrative law is the organisation and exercise
of public power, then our attention is focused more on aspects that involve the
exercise of state authority or the organisation of public services, rather than on
everything that a state body might do. There is no particular reason why the
ordering of newspapers for the common room of city councillors or liability
for an accident caused by the mayor’s official car should be governed by rules
that are different from those governing similar activities in the lives of ordinary
individuals. These situations are typically governed by the general law of the
land. ‘Administrative law’ is therefore best confined to those rules and principles
that apply in a distinctive manner to the organisation and actions of the state, its
organs and other public bodies. Within the scope of this distinctive law, it is usual
to distinguish between rules and principles of general application, and the special
rules that apply either to a particular type of public body (eg local authorities)
or to a particular sphere of activity (eg housing law or environmental law). This
chapter is limited to the general principles of administrative law, and it does not
cover special administrative law.
1 This chapter uses mainly English, French and German terminology. Although these are the major
European traditions of administrative law, there are important differences between these particular
legal systems and those that are closely related to them. When studying the relationship between any
two particular legal systems, the reader will have to be aware of possible differences.
Administrative Law in a Comparative Perspective 289
III. WHO IS GOVERNED BY ‘ADMINISTRATIVE LAW’?:

PUBLIC LAW AND PRIVATE LAW
The general principles of administrative law apply to ‘the administration’ or the

executive branch of government. But the difficulty is that there is usually no
single institution which is called ‘the administration’. There are a variety of bodies
through which governments act or through which public services are delivered.
There are government departments, local government, public corporations or
agencies. But, in addition, foundations and even private corporations or associa-
tions can be closely involved in delivering public services and may be given special
powers. So are these also included as bodies regulated by administrative law?
In order to express the difference between the distinctive rules of administrative
law and the general rules of law, legal systems typically distinguish between ‘public
law’ and ‘private law’ to draw the boundary.2 The distinction between public law
and private law is drawn either in terms of activity, focusing on the distinctive
mission and values of public law, or in terms of the legal form of institutions,
focusing either on certain organisations through which public power is exercised
or services are delivered, or on the courts and tribunals through which redress for
administrative wrongdoing is provided.
The French tradition (and that of the countries such as Spain and Italy that are
connected to it) adopts an activity-based distinction between public and private
law. It attributes a distinctive mission to public law. Public law is concerned with
the common good, not private advantage, a view articulated by Ulpian (Digest
1.1.1.2) in the 3rd century. The state is given special powers and is authorised
to act only if it serves the public good. A good example would be the power of
the state to expropriate private property for public utility upon the payment
of compensation (Erasmus, 1990). A private person has to buy the property of
another, and can only do so when that other person is willing to sell. The state
can expropriate, even where the property owner objects. The public good justifies
its special position. Another area would be emergency powers, where the state
can detain or expel people or requisition their property against their consent in
ways that are not permissible to a private individual.3 In both cases, the state is
authorised to restrict the rights of individuals without their consent in order to
promote the common good. The ‘common good’ is traditionally seen as the prod-
uct of national political decision-making processes. But in more recent times, the
emphasis has been on the need for at least some minimum set of requirements
that must be satisfied by a state claiming the ‘common good’ in order to satisfy
international standards of human rights protection.
Even this idea of a mission to promote the common good remains difficult to
apply. One of the indicators for such a mission can be whether a body has been
2 For an example, see CERAP, Le contrôle juridictionnel de l’Administration (Paris, Economica,
1991).
3 See International Commission of Jurists, States of Emergency: their Impact on Human Rights
(Geneva 1983).
290 John Bell
given powers that exceed those of a private individual (as is clear in the case of
expropriation). Where special powers are being exercised, then this needs special
regulation. The public interest many not only authorise the state to interfere
with the rights of private individuals, but may confer on the state special privi-
leges. This occurs, for example in the provision of public services, where a public
provider is exempt from many of the restrictions of competition law in order to
enable it to provide a service in the general interest. For example, European Union
law has increasingly identified special rules relating to ‘services in the general
interest’. These two criteria of public law find their expression in the European
Union doctrine of ‘organ of the state’ for the purpose of direct effect. In Foster
v British Gas plc4 the European Court of Justice held that a body is treated as an
organ of the state, whatever its legal form, if it is providing a public service under
the control of the state and has special powers for that purpose that go beyond
those which exist in relations between individuals.
Although the distinction between actions undertaken for the common good and
those undertaken for private advantage is easy to state, it is hard to apply. In some
situations, the administration is only one provider, among many, of social activities,
for example sports facilities. If these happen to be run by the community through a
local council, rather than by a private company, is there really any special social policy
that makes this administrative activity different in character from that of the private
sector? (see Flogaitis, 1986: chapter two) If the sports facility is run as part of a ‘fitness
for all’ programme at subsidised prices, it is possible to argue that the activity is differ-
ent in character from a profit-making private leisure club. Different countries operate
here in different ways. The English or Dutch traditions would now treat some public
services, such as electricity, gas or transport, as essentially private activities with some
limited public obligations for which the public pays. By contrast the French tradition
would confer on these activities a special mission in the service of the public good,
and would treat the operators as participating in this mission (Brown and Bell, 1998:
131–4). The practical consequence of the difference in approach is that in France the
relationship between the operator of the service and the government is essentially a
matter of public law, and public law principles on contracts and liability apply. When
exercising the powers conferred on a public service provider, the private operator is
exercising public power. In the English tradition, the relationship is essentially of a
commercial service provider operating within constraints of the government’s super-
visory power.
In the German tradition, the distinction between public law and private law is
essentially a matter of whether the institution has the legal form of a public law
organisation or a private law organisation. Different rules govern each category of
organisation. The result is that, once an activity is transferred to the private sector,
it ceases to be treated as a public law activity. As a result, it makes sense to present
the system in terms of the powers of local authorities, schools, the police and so
4 Case C–188/89 Foster v British Gas plc [1990] ECR I–3313 (ECJ).
on, and to differentiate the way these can behave from the behaviour of private
individuals and companies.
A different institutional approach relates to the courts which have jurisdiction over
issues. The common law approach focuses on a distinction between public law rem-
edies and private law remedies, each of which is provided in a different way. Such a
distinction does not clearly focus on the powers which certain bodies must have in the
first place, but more on the remedies available when they misbehave. In part, the need
for such remedies lies in the issue of standing. Only parties who have rights affected
by a private contract or wrong can sue. In public law, a wider group of people are fre-
quently held to have a legitimate interest in a decision, even if no rights of theirs have
been affected. [Even then this distinction is not as sharp as between systems that have
distinct courts for dealing with the administration and those that deal with private
and criminal law matters.] This is discussed in more detail below.
Questions for Discussion

1. What does each system mean by the notion of ‘public law’ as opposed to
private law? How far do the systems apply different rules because of the
nature of the activity or simply because of the kind of organisation that is
engaged in a particular activity?
2. What is the consequence of declaring an issue to be a matter of public law?
Do special rules apply? Does the body undertaking the activity have spe-
cial powers and responsibilities? Will special remedies apply if something
goes wrong?
IV. THE ALLOCATION OF POWERS
Sources
The powers of the administration are derived either because of the character of
its activity (inherent powers) or because specific powers have been attributed to
it by the legislature. French and English laws recognise that certain powers ought
to belong inherently to government, even in the absence of specific authorisation.
In England, these are typically the prerogative powers of the Crown, eg to make
war and sign treaties, to maintain public order, to grant honours and the like. A
controversial example in recent times came when the Home Secretary provided
weapons to a local police force without the approval of its immediate superior,
the local police authority.5 Although there was no specific power, it was held that
this was inherently a power of the Crown to regulate public order. The French
Constitutional Council has likewise recognised the power of the government to
regulate public order, eg in controlling hunting, even in the absence of specific
legislative powers to this effect.6 In France, certain actions in the field of foreign
5 Eg R v Home Secretary, ex p Northumbria Police Authority [1989] QB 26 (CA).

6 CC decision 87–149L, 20 February 1987, Rec 22. See also Bell, 1992: 288.
292 John Bell
affairs, the deployment of armed forces and the grant of honours are recognised
powers of the government, often now mentioned in the Constitution (Articles 15,
16 and 30).
A second group of inherent powers are recognised in relation to the organisa-
tion of the civil service. In addition, and unlike in England, the French recognise
an inherent power to create and operate public services. There is debate whether
the organisation of the civil service is a ‘prerogative’ in the strict sense, because the
government appears to be acting no differently from a private business in orga-
nising its employees and internal activities. But the special protection typically
offered by the law to public employees, and their responsibility to the public ser-
vice and not just to their political masters, marks civil servants out as distinct.7
A third activity that may be seen as inherent is the power to make contracts
or to dispose of property. Again, these seem at first sight to be activities that any
legal person might undertake. The public interest, however, imposes a distinctive
approach to making such transactions—they are undertaken not in the self-interest
of the organisation but to serve the public, and there are distinctive requirements of
procedure to ensure the even-handed treatment of potential contractors.
Predominantly, the powers in question relate to the functions of the ‘night-
watchman state’—defence, internal public order, the internal organisation of the
government service and contracts. In both England and France, such inherent
powers have been largely, but not completely, overtaken by specific legislation.
Nonetheless, Article 21 of the French Constitution of 1958 confers inherent pow-
ers on the Prime Minister to take measures to implement legislation passed by the
Parliament and also grants inherent powers to legislate in areas not specifically
identified by Article 34 of the Constitution as falling within the competence of
Parliament.
The advantage of inherent powers is that the government can act on new policy
in a speedy way. For example, in England, the creation of agencies within the
civil service (the so-called ‘Next Steps Agencies’) to manage the delivery of public
services in areas such as social security benefits was achieved without the need
for legislation. But the privatisation of nationalised industries and the creation
of new public sector organisations, such as NHS trusts, have required legislation.
Similarly, French governments can act by decree to re-organise the structures of a
public service such as education.
By contrast, German law is more modern in insisting that the administra-
tion only has those powers that have been attributed to it. This is a more com-
mon principle accepted in Europe that the administration needs to receive
specific authorisation from the legislature for its activities. Its concept of the
Gesetzesvorbehalt (authorisation by law) is contrasted with the idea of inherent
powers of the administration found in French law and in the English Crown
7 See CE 28 June 1918, Heyriès, Leb 651. See also Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374 (HL).

prerogative. Given the history of dictatorships in so many parts of Europe, the

reluctance to allow the administration inherent powers is understandable. Article
20 III of the Basic Law provides that officials are subordinated to the law. In addi-
tion, as Helmut Maurer states:
The principle of the rule of law requires that the legal relationships between the state
and the citizen should be governed by general legislation, which not only determine
administrative actions, but also make them foreseeable and calculable for the citizens
(Maurer, 1994: 98).
Naturally, the law cannot prescribe everything, so the German courts have under-
stood the principle as requiring that the essential rules are laid down by statute.
For example, in the operation of schools, the legislator cannot leave major mat-
ters to be decided by school administrations, such as the structure of secondary
schools, requirements that pupils re-sit a year that they have not passed, or on sex
education.8

1. Where are the powers of the administration to be found in the systems you
are studying?
2. Does the system adopt the fundamental principle that legislative powers
must be authorised by legislation, or does it accept that there are some
powers which require no specific authorisation?
3. Do the powers you are considering come from general legislation (eg laws
on public procurement) or from specific legislation (eg laws on contracts
in local government).
The Conception of ‘the State’
The function of the state determines the powers that a particular administration is
given. Powers have to be interpreted in the light of the role the state is playing in
society. Where there is what is termed the ‘nightwatchman state’, the administra-
tion has a limited role in society, confined to protecting internal and external order
and basic rights of individuals. Through the 19th and 20th centuries, the state
took on a much larger role in securing individual well-being. It created collective
systems of health care, education, housing and social security. The task of ensur-
ing the basic infrastructure of a modern society has been the role of either local
or central government through investment in the network utilities of electricity,
gas, post and telecommunications. The welfare or transforming state had a major
role in delivering necessary services and also in achieving economic change by the
activities the state undertook. In this latter role, it often sought to control and own
8 See BVerfGE 41, 251; BVerfGE 56, 155; BVerfGE 47, 46 and 194.
294 John Bell
the commanding heights of essential industries, such as coal and steel. Since the
1980s, this model of the state has fallen into decline in Western Europe. It has not
been thought that the state is good at running industrial activities or even many
services in an efficient and cost-effective manner. Utilities have been privatised.
The function of the state is increasingly focused on regulating the private market
to ensure competition and to secure the availability of certain public services, by
subsidy if necessary. The deficiencies in the free market are cured not by replacing
it, as under nationalisation, but by establishing a framework of regulatory rules
to ensure that the market benefits everyone. The place of governmental activity
on the spectrum between the models of the welfare state and the regulatory state
is determined differently in different countries within Europe, depending both
on the political party in power and on the tradition of government activity. In
Britain, the National Health Service has been a strongly centralised governmental
activity funded by a national insurance scheme. In France and in Germany, the
service is funded largely through private insurance, leading to a more fragmented
and local pattern of healthcare. The government has less of a role in managing
the system than in England. By contrast, the British railway system is much more
privatised than that of France or Germany.
In interpreting powers in the nightwatchman state, there is an assumption that
the state should interfere as little as possible with individual freedom of action. By
contrast, in the welfare or transforming state, there is a need for a more benevo-
lent interpretation of the scope of administrative powers in order to ensure that
there is sufficient scope to undertake the necessary action. Thus, in Germany, an
explicit power to secure housing was held to include an implied power to provide
subsidy to tenants.9
The Devolved State

The constitutional attribution of powers between different levels of govern-
ment is critical. This is most commonly seen in federal countries where there
is an explicit division of competence between national and regional govern-
ments. In some countries, the principle of subsidiarity governs the relation-
ship between the different levels. This is the case in Germany where the
Federation only has competence in a number of specified areas and the Länder
have residual competence. Subsidiarity ensures that decisions are left to the
local level where possible. Such a principle does not apply to countries that
have devolved power from the national level, such as the United Kingdom,
Italy and Spain, where residual power lies with the national parliament and
government. Even where subsidiarity is a principle relevant to the relationship
between national and regional governments, it does not normally apply to the
relationship between national and local governments.
9 BVerfGE 6, 282.
The State within Supranational Organisations

The competence of the administration is not only controlled by national legis-
lation, but also by supranational rules, whether in the form of treaties such as
the European Convention on Human Rights, or from the European Union. The
sources of administrative law will thus not only be national, but supranational.
On the whole, the inspiration for adapting national administrative law will come
from the rulings of these supranational bodies, either courts or organisations.
Thus, ideas for new ways of running the public sector frequently come from
the Organisation for Economic Cooperation and Development (www.oecd.org)
based in Paris. Ideas for common standards of administrative law are developed
by the Council of Europe or the European Union.
V. ADMINISTRATIVE PROCEDURE
Even if institutions of government are often specific to a particular country, stan-

dards for administrative procedure often have much in common. The comparative
study of administrative procedures is interesting not just for their content, but also
for what this topic shows about the sources of administrative law in different juris-
dictions. In a number of countries, there are legal codes governing the procedure
by which the administration makes decisions, starting in Austria with the General
Law on Administrative Procedure of 21 July 1925 and in the United States with
the Administrative Law Procedure Act 1946. Other examples include the German
Verwaltungsverfahrensgesetz of 25 May 1976, the Italian law of administrative proce-
dure of 7 August 1990, and the Dutch general law on administration of 1992. Prior
to these statutes, much of the general law was judge-made, though there were specific
procedures laid down by statute in relation to specific activities, such as expropriation.
In other systems, such as the English common law, that mix of judge-made principles
and sector-specific rules still remains the case. In addition to these different national
sources, there are broadly conceived transnational standards. Some of these transna-
tional standards are not legally binding, but exercise a general influence over the devel-
opment of the law in particular countries.10 Other standards are set by international
treaties, such as the European Convention on Human Rights, and are legally binding.
Comparative law is interested not only in comparing the different national standards,
but also in how national standards meet international standards.
Such procedural obligations are founded not only on ensuring the protection
of the subject who is subordinated to the unilateral power of the administration,
10 See Resolution R (77) 31 of the Council of Ministers of the Council of Europe of 28 September
1977, on the protection of the individual in relations with the state. Rights identified in this Resolution
included the right of access to administrative documents, the right to legal advice and assistance in
preparing a case before the administration, and the right to the reasons for the decision and to infor-
mation on rights of appeal. All these involve, in some way, the right to defend individual interests
against the general interest.
296 John Bell
but also on ensuring accountability for its actions to the citizens of the state. Thus
the duty to provide reasons not only provides transparency that can enable supe-
riors to exercise control, but also contributes to a better dialogue with citizens.
A third reason would be the economy and efficiency of administrative decisions.
Simplicity and comprehensibility in procedures may avoid excessive cost and
improve the comprehensibility of decisions.
Comparison is undertaken at three levels. The first is a discussion of the general
principles of administrative procedure. Some experienced commentators suggest
that the diversity of the activities and purposes of administrative action is such
that any attempt to develop uniform principles to govern its procedure is bound
to fail, either because the duties would be too numerous and burdensome for
many situations, or the rules would be so partial and incomplete as to provide
inadequate supervision (see Torchia, 1993: 43). For example, the procedures
appropriate for making decisions in schools may be inappropriate in dealing with
immigration or planning. A single set of procedures for all these cases would be
inappropriate. But others consider that there are common standards, grounded
in ideas of fairness and in the need to simplify procedures for the citizen in her
dealings with different facets of the administration.11 Most of the ‘principles of
good administration’ developed in the European Union or the Council of Europe
are focused on these general standards.
A second level of comparison would focus on the procedures of particular
administrations or processes. An example would be planning inquiries. Clearly
the difficulty here is establishing that the institutional context is sufficiently simi-
lar that the procedures followed can be compared in a useful manner.12 The use of
public hearings as part of planning inquiries is different institutionally from the
process by which objections to the grant of planning permission are handled in
France, where public inquiries are restricted to the development of general plans.
As a result, more planning objection cases end up in court in France.
A third level would focus on particular procedural duties. Among the issues
debated in recent years is the duty of decision-makers to provide reasons for their
decisions and the access of the public to information (Birkinshaw, 2003: chapter six).
In this context, it is also useful to understand the effect of the breach of a mandatory
procedural requirement. In most systems, this gives rise to the nullity of a decision.
Duty to Give a Hearing
The duty to give a hearing is a basic principle of all administrative law systems, but it
is expressed in different ways in different systems. The common law has a principle of
natural justice that a person has to be heard before a disciplinary or similar decision
11 See Konijnenbelt, 1993: 64.

12 See the warning of Loughlin, 1993: 44 at 57 about the importance of institutional context in
deciding whether comparison is useful.
is taken against him or her. French-related systems have within the droits de la défense,
le principe du contradictoire, the right for the person to rebut arguments made against
him or her, whether orally or in writing. The broad similarity of the basic principle
nevertheless hides some basic assumptions. First, the form of hearing may differ. The
common law model of natural justice starts from a judicial archetype of decision-
making, based on an oral hearing (hence audi alterem partem: ‘hear’ both sides). The
French and German models start from a bureaucratic paradigm where even judicial
decisions need not be taken after an oral hearing, so the right is really one to make
representations. Secondly, continental European systems are clearer about the kinds of
decision that require a hearing to be given to those affected. They distinguish between
individual acts—measures affecting specified individuals—such as expropriation,
and regulatory acts—measures of general application—such as legislation. Where the
measure is individual, then those whose rights are specifically affected can expect to
have a hearing. On the other hand, where the measure is of general application, such
as a tax on all houses, the persons affected do not have a right to be heard specifically
by the decision-maker. This difference is not as well articulated in the common law.
The Duty to Give Reasons/Transparency
At least before the Human Rights Act 1998, the duty to give reasons for decisions
was not an established principle of the common law. Judges did not always have to
give reasons, so administrators could not be required to do so. It was good practice,
but not a legal requirement.13 By contrast, the principle formed part of French and
German administrative law from an early date. The difference between these two
approaches is less than might first appear. The English common law did impose the
obligation on courts and administrators to given reasons to the Court of Queen’s
Bench where a decision was challenged by way of case stated or by certiorari. In
those cases, the High Court was inspecting the decision, and could expect the
inferior court or administration to justify its decision. The problem was to show
sufficient doubt about the legality of the decision so as to obtain leave to bring pro-
ceedings in the High Court in the first place. By contrast, the continental systems
only required limited statements of reasons, often amounting to no more than giving
the legal basis of the decision, rather than a justification of the formal reasons.
As a result, all systems have needed the right to reasons to be supplemented by
the right of access to administrative documents that may cast light on the context
and reasons for the decision. Access to public documents has been a much more
recent development in most administrative law systems and it has come through
legislation, rather than judicially developed principles. The British Freedom
of Information Act 2000 was much later than similar legislation in France or
Germany. In Germany this is contained in the Administrative Procedure Law of
13 R v Home Secretary, ex p Doody [1994] 1 AC 531 (HL).

298 John Bell
1976 and in France, in legislation of 1978. The English legislation has a number
of specific categories of documents that are exempt from disclosure. The French
and the Germans have general principles. Thus, in Germany the exclusions from
disclosure cover the protection of confidential information or business secrecy or
where there would be harm to the federal or Länder governments.
Standards of Good Administration
Operationally, the administration must conform to standards of good adminis-

tration, including efficiency. Standards of good administration are typically laid
down as ideals of administrative practice, rather than legal standards. For example,
the moves in the 1990s to treat the user of public services as a form of consumer
spawned a series of administrative charters, which had no legally binding effect,
but which sought to guarantee compensation for failures to meet certain basic
standards of public service defined by the administration. In more recent times,
the citizen’s right to good administration has been enshrined in the Charter of
Fundamental Rights Article 41 and in Article II-101 of the European Constitutional
Treaty. A more detailed statement, the Code of Good Administrative Behaviour
was voted on by the European Parliament on 6 September 2001. Many such
norms, such as the Code, do not have legal value, but act as guiding standards,
that may often form a background to the way in which lawyers and ombudsmen
identify how the administration ought to behave, and how legal norms ought to
be interpreted. A major area of comparison is administrative procedure, discussed
below.

1. Do the concepts used in different systems have the same basic meaning
in terms of the way in which the administration must conduct itself?
Test this out by asking how the rules would apply in certain specific
situations.
2. Does it matter whether the rules on procedure are set out in the general
principles typically articulated by judicial decisions or are set out in
legislation?
3. Does the detailed style of common law statutes actually lead to significant
differences in practice compared with the general principles set out in
continental European statutes. Freedom of information legislation might
be a good example.
VI. INSTITUTIONS PROVIDING LEGAL REDRESS
There are significant differences between countries in the structure of judicial

institutions. Most legal systems have specialist administrative courts to hear
matters concerning decisions of the administration. Thus the German,

French, Italian and Swedish systems all have an administrative court structure
that is separate from that of the private law courts. In other systems, such as
the English, Scots, Irish, Spanish and Dutch, any special administrative court
is a division within the general courts. Judges may specialise in administrative
matters, but there is no separate administrative jurisdiction. The advantage
of the former approach is that there are courts that are specialist in dealing
with administrative law issues, and they can develop a set of principles that
recognise the distinctiveness of the control of the administration. In particu-
lar, procedures can be simpler than those used in private litigation and judges
can adopt a more pro-active role in requiring evidence to be produced by the
administration. As a result, the citizen is assisted in assembling the evidence
required to sustain a complaint. The disadvantage is that litigants may find it
difficult to work out whether a particular matter belongs in the administra-
tive courts or in the private law courts. Even a system that has been in opera-
tion for over 200 years, such as that in France, still finds some 30 cases a year
of conflicts of jurisdiction between the public and private law courts, that
require resolution by a special court, the Tribunal des Conflits.
Legal redress may not only be provided by the courts, but also by tribunals.
Tribunals are typically staffed by a combination of lawyers and lay experts. Their
procedure can be less formal than a court and there may be no need for legal
representation. In dealing with small claims to social welfare benefits this may
be easier for the litigant and offer greater expertise in the special social problems
arising. In France, there are a number of commissions, such as that in dealing with
refugees. It is often difficult to decide whether such bodies should be designated as
courts or not. In European law, professional disciplinary bodies whose decisions
are recognised by the state are treated as ‘courts’. The balance of cases between
courts and tribunals varies a lot between legal systems.
The Swedish system of independent administrative redress through the
Ombudsman has been followed by many European states. The ombudsman
offers an independent investigation of complaints which requires little evi-
dence gathering by the complainant. The ombudsman takes steps to find out
from the administration what happened. This process resolves a large number
of disputes. All the same, it typically suffers from the disadvantage that the
recommendations resulting from an investigation are not binding on the
administration.
The German system requires that an individual seek redress through the
administration before bringing a case in the courts. This Widerspruch request
enables the administration to deal with mistakes before a court case has started.
It is normal in the French system also to require that a complainant request that
the administration withdraws its decision and can only bring an action where the
administration refuses or (commonly) when it fails to respond within a legally
specified time. English law achieves something similar through the Pre-Action
Protocols in civil procedure.
300 John Bell

1. (Where do citizens normally find redress against administrative decisions)—
in the courts, through tribunals, or through the Ombudsman? You might look
at statistics in annual reports of the courts or the Ombudsman to find out.
2. What are the differences between bringing an action in the administrative
courts and bringing an action in the ordinary civil courts? Examine the
differences in procedure. Are the differences to the advantage of the citizen
making a complaint?
VII. THE JUDICIAL CONTROL OF POWERS
The Basis
In many legal systems, there is no code or statute that authorises the courts to
control the legality of administrative action or defines the grounds on which
this is done. Accordingly, there is much debate in various countries about the
constitutional foundation of judicial review of the administration. For some, it
is simply a matter of enforcing the wishes of the legislature. For others, there are
more fundamental values that justify a restrictive interpretation of the powers of
the administration.
Rule of Law
Although the term ‘rule of law’ is frequently used to express a fundamental value
of any liberal political system, there are different understandings of this idea
among different legal systems. Within the common law tradition, the English-
language expression ‘rule of law’ embraces a number of understandings. In some
contexts, it merely refers to conformity to law—an administrative act is autho-
rised by a higher norm. In the view of AV Dicey, the rule of law emphasised the
absence of privileges for the administration, and, in his view, the subordination of
the administration to the ordinary law of the land (Dicey, 1959: chapter twelve).14
For him, that entailed the subordination of the administration ultimately to the
ordinary courts. In modern times, the idea of compliance with human rights
has gained strength and was part of the Delhi declaration of the International
Commission of Jurists in 1959. The French conception of l’état de droit expresses
the idea that all public power is limited by the legal rules which it is bound to
respect. It offers the control of power through law. The law is administered,
especially by the Conseil d’Etat as adviser and judge. But such an expression does
not contain substantive content, and it certainly does not entail that the ordinary
judges have powers over the administration. In French, the English conception is
14 This view he held despite the fact that the Crown at that time enjoyed immunity from actions
in the court.
often translated as ‘le règne du droit’ in that the law (conceived in the broad sense
of legal values) prevails over the administration. The German-language concept
of the Rechtsstaat has the idea that the administration is given power by the law
and is constrained by it.15 The principle applies to all the administration without
immunities. The concept is usually understood to include rights of defence against
the administration. The German expansion of this into the ‘sozialer Rechtsstaat’
involves a number of substantive rights and social justice. To a great extent, the
scope of notions such as ‘the rule of law’ depends on how far the term is allowed
to spread to embrace other constitutional values. The divergence in uses of the
terminology and the absence of an exact equivalent in the different languages
provides much potential for confusion. All the same, these different terms convey
some common liberal messages—that the administration is not free to act as it
deems to be right in terms of efficiency or to achieve political goals. The admin-
istration has to remain within the constraints laid down by law.
Fundamental Rights
Many constitutions, particularly those drafted since 1945, contain enumerations
of fundamental rights. These set out further values that the administration must
respect and, in some cases, actively promote. A number of types of comparative
study have been undertaken to assess the impact of this process. Some simply set
in parallel the impact of a specific human rights instrument on national laws. For
example, this has been done in relation to the European Convention on Human
Rights and Fundamental Freedoms of 1950. Some studies have simply shown how
the Convention has operated at national level. Others, however, have tried to com-
pare the extent of the impact and discuss the reasons for the way it has worked in
the different legal systems (eg Gearty, 1997). The concern of such studies is often
the outcomes of compliance and an assessment of how far individual legal systems
fall short of what the Convention requires. There is less attention to the reasons
why national systems absorb such international standards in different ways. The
work of Philip Alston (Alston, 1999), however, has been innovative in examining
the processes of introducing fundamental values. The use of bills of rights as legal
instruments raises issues of how far the enactment of a legal text has an impact
on the way in which the legal system works and what is required to ensure that
a culture of respect for fundamental values is embedded. Although the answers
to such questions require some legal sociology, some clues can be found in the
extent to which the legal system has adapted to the new culture of rights. Bills of
rights are often copied from other constitutions, so there is scope to study legal
transplants in this area and to assess how far the embedding of new ideas depends
on the legal professions and traditions of the receiving country.
15 The concept was coined by von Mohl in 1832. See Stolleis, 1992: 173.
302 John Bell
Comparison can be undertaken as to how far administrative law reflects certain

fundamental values. Many of these values are included in notions of a fair proce-
dure. The influence of fundamental rights is a theme in many general studies of
administrative law in Europe (see Schwarze, 1996). Much of the comparison of
fundamental rights occurs in the discussion of influences of international treaties
on national law and this applies well outside Europe, though many of the issues
are similar.
Reviewable and Non-reviewable Decisions

In the past, there were two types of decision that were typically excluded from the
purview of judicial review. On the one hand, acts of state were matters of high policy
with which judges should not interfere.16 On the other hand, internal acts within the
administration were seen as being on too low a level for judges to be occupied con-
sidering them. In line with the requirement of access to legal redress under Article 6
of the European Convention on Human Rights, these limitations have been reduced.
While very high-level policies such as a declaration of war or the signature of a treaty
do remain excluded, other decisions that would be treated as acts of state, such as
the issue of passports, are now subjected to review. More significantly, the exclusion
of internal acts of the administration has been almost eradicated. A good example
is prison discipline, which used to be treated as merely a matter of the internal
regulation of the public service, but is now seen very much as a reviewable matter.17
Grounds of Review
The broad grounds of review accepted by most legal systems would cover lack
of competence (ultra vires in the strict sense) and procedural irregularity, both
of which are external to the decision in that the body making it had no power to
make it or should have only done so after following certain mandatory procedural
steps. On examining the content and justifications given for the decision, it may
be apparent that the decision was taken on the basis of an error of law or following
a misuse of discretion.
Lack of Competence
As has been noted in the section on powers, the administration has powers either
inherently as the executive branch of government or attributed to it by Parliament.
Every decision requires a legal basis from one of these sources. Sometimes the
administration may try to overstep its powers because it seeks to achieve a policy
objective in the short term,18 in which case, there is no power to take any decision
on that subject.
16 See, eg BVerwGE 62, 11 (imprisonment of war criminal Hess).

17 See CE Ass 17 February 1995, Marie, Leb 85. See also R v Deputy Governor of Parkurst Prison, ex
parte Leech [1992] 1 AC 58 (HL).
18 See abuse of discretion below.
Procedural Irregularity
Legislation may prescribe a particular procedure for a decision to be taken. For
example, the decision on a planning application may require prior notice to
neighbours in a prescribed form. Failure to conform may lead to the invalidity
of the decision. Where there is no specific prescribed procedure, then the admin-
istration will be required to respect general principles of administrative proce-
dure. As has been said, in some countries these are contained in statute, whereas
in other countries, such as England or the European Union, the principles are
unwritten—the so-called principles of natural justice.
Control over Discretion

Courts do not hear an appeal on the merits of decisions, but they do scrutinise
the justifications to see that the legally relevant considerations have been taken
into account. A decision that is taken for a different reason would be unlawful
as it involves an error of law19 Countries differ in the intensity with which they
scrutinise administrative decisions. In Germany and France, it is normal to dis-
tinguish between decisions where there is strict scrutiny of decisions and those
where there is a strong deference to the judgement of the executive. The English
common law is not usually as explicit in this regard and tends to be less willing to
review discretionary decisions.
Strict scrutiny is applied to decisions that affect fundamental rights. Even where the
administration enjoys a wide discretion, a decision that infringes a fundamental right
will need a particularly strong justification. For example, German courts struck down
a decision to dismiss a policeman which was made on the ground that he breached an
order not to marry his pregnant fiancée.20 The right to marry should not be restrained
except for a very serious reason, which did not exist in this case. Equally, a decision to
prevent the exercise of freedom of speech can only be restricted where the administra-
tion is able to demonstrate an immediate and serious threat to public order.21 Such
considerations have not been as strong in the British tradition, where considerations
of national security or public order have often prevailed over the protection of funda-
mental rights.22 It might be argued that the British courts have become less reluctant
to intervene in administrative decisions, even where national security is at stake, since
the enactment of the Human Rights Act 1998.23
19 See eg CE 4 July 1924, Beaugé, Leb 641 (public order powers cannot be used for financial gain).
See also R v Foreign Secretary, ex parte World Development Movement [1995] 1 All ER 611(CA) (devel-
opment aid powers cannot be used to provide counterpart funding for arms sales).
20 See BVerf GE 14, 21; BVerfGE 30, 29. Similarly unlawful was a decision to expel a foreigner with-
out taking into account that he had married a German national and had a child at school in Germany:
BVerfGE 35, 382.
21 CE 19 May 1933, Benjamin, Leb 541.
22 See R v Home Secretary, ex parte Brind [1991] 1 AC 696 (HL); and R v Home Secretary, ex parte
Cheblak [1991] 2 All ER 319 (CA)

23 See A v Home Secretary [2005] UKHL 71.
304 John Bell
By contrast, decisions that involve complex, practical judgements involving

competing public interests are only subjected to limited scrutiny. For example,
judges in most countries would not consider it appropriate to question decisions
on the siting of a nuclear power station, or professional judgements about exami-
nation or appraisal or promotions.24
The issue for a comparative lawyer is the extent to which particular decisions
are subjected to strict or weak scrutiny in the different jurisdictions studied. The
traditional English law approach has been to apply a test of Wednesbury unrea-
sonableness to decisions where there has been no error of law. This permits the
court to quash a decision where it is so unreasonable that no reasonable authority
could have come to it.25 This formulation is more restrictive than the French or
European Union test of a ‘manifest error in evaluation’ which denotes simply a
serious error of judgement by the administration. The administration enjoys a
margin of appreciation in the application of a legal concept or category, but it
must not exceed that margin.
Many of the most successful works in comparative law have limited their
focus to these specific grounds of review in different jurisdictions. The pur-
pose of such studies has been to understand the differences between national
conceptions of administrative justice. A good example is the notion of ‘propor-
tionality’. The term has migrated from German administrative law to become
a principle recognised in most jurisdictions. (It began as a principle to control
the exercise of police powers that interfered with basic rights, but has come to
be applied to a wider range of decisions.) It has three components: a require-
ment that administrative action be necessary; that it be properly directed to
the objective being pursued; and that the burdens imposed on individuals do
not seriously outweigh the benefits to the community as a whole (ie they are
not ‘disproportionate’ in a narrow sense). Much comparison has been under-
taken with the object of clarifying how far there is a real difference between
this (often foreign) concept and longer established concepts used in domestic
law, such as erreur manifeste d’appréciation or unreasonableness. The most
successful studies of this kind is by Aldo Sandulli, who examines the way in
which the term is used in the different jurisdictions and the extent to which
it represents a difference in the scope of review from traditional terms. In his
survey of legal developments in the European Union, France, Germany, Italy
and the United Kingdom, he notes that all countries accept the principle of
preventing the administration making excessive use of its descretionary pow-
ers, but they take diverging views on the extent to which judges should impose
constraints on the exercise of such powers. National approaches to the control
24 See CE 4 May 1978, Département de la Savoie, AJDA 1979, 38; R v Environment Secretary ex parte
Greenpeace [1994] 4 All ER 352 (QBD); and BVerfGE, 53, 30 on nuclear installations. See CE 9 June
1978, Lebon, Leb 245 on career judgements.
25 Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (HL).
over the administration reflected different views about the scope for judges to
limit the freedom of the administration, especially in the field of discretionary
power (Sandulli, 1998: 37–134; also see Ellis, 1999). The German approach
is more stringent than the English, reflecting a greater role for the courts in
controlling the administration. Familiarity with the use of this standard in the
exercise of European Union law competences and in applying the European
Convention on Human Rights made many countries more receptive to the
concept of proportionality. It was difficult to have one standard applied to
purely domestic cases and another applied in European cases. All the same,
he notes that the concept of ‘proportionality’ is used with differing degrees of
deference depending on whether a court is controlling a legislative action or
the action of the administration. Such work requires considerable attention to
the detail of the different systems and how particular issues are handled.
Legitimate Expectations
An area of divergence in the terminology used by legal systems occurs with the
extent to which they will control the exercise of discretion not to protect fun-
damental rights, but to protect the legitimate expectations that have grown up
as a result of assurances by or actions of the administration in the past. If the
administration has been given a discretion, it is in order that it might review the
needs of the public interest from time to time and have the flexibility to revise its
decisions. At the same time, statements made or past actions through which the
administration has already exercised its discretion may give rise to expectations
that these will guide its decisions in the future. German law and European Union
law use the term ‘legitimate expectation’ to describe the interest that the citizen
has in discretion continuing to be exercised in the way previously announced. But
the administration’s duty to keep exercising its discretion requires it to reflect on
contemporary needs of the public interest. Accordingly, the idea of a legitimate
expectation does not prevent the administration reconsidering a decision, but
merely requires it to take account of the interest in question before changing the-
policy and the impact of the new policy on established practices. French law does
not use the concept of ‘legitimate expectation’ in this context, preferring the duty
to respect legal certainty (see Schønberg, 2001).
Indeterminate Concepts
The intensity of review to which administrative decisions are subject can be
illustrated best by cases involving what the Germans call ‘indeterminate concepts’,
legal terms that are not defined in the empowering legislation. Does the admin-
istration have unfettered power to determine the meaning of these concepts?
For example, German legislation empowered the administration to prohibit the
sale of books and magazines that were ‘dangerous to young people’. The authori-
ties considered that the magazine, Stern, was dangerous, and it was banned. The
306 John Bell
decision was annulled on the ground that it interfered disproportionately with the
freedom of information of adult readers.26 The interference with an individual
right encouraged the court to apply a test of strict scrutiny and the concept of
proportionality in order to protect it.
Works examining the development of common European standards of admin-
istrative law typically focus on the grounds of review as illustrating the values by
which the administration is meant to abide. These values are then used by the
European courts as benchmarks to judge the conduct of a transnational adminis-
tration such as the European Union (Hartley, 1998: chapter four). In turn, these
standards, developed as general principles recognised by the Member States, are
then used to judge the actions of particular Member States. There is thus a two-
way circulation of ideas.
Abuse of Discretion
However wide a discretionary power, it must be used for the purpose granted by
the legislator or for which it exists. If the power is used for an extraneous purpose
then that administrative decision is unlawful. An extraneous purpose may well
be personal animosity to the citizen affected or it may be some personal gain by
the decision-maker.27 An abuse of discretion may occur where a power is used to
achieve an objective in the public interest distinct from that which was envisaged
when it was granted.28

1. What concepts are used in the systems you are studying to identify the
different grounds of review mentioned in this section?
2. How far are the courts in your systems willing to scrutinise the exercise
of discretion by the administration? Does this willingness depend on
whether fundamental rights are at issue or not?
3. If a term such as ‘proportionality’ or protection of ‘legitimate expectation’
is used in your systems, are they used in the same way? If the term is not
used, are equivalent terms used or does the difference in terminology
reflect a difference in policy?
VIII. LIABILITY OF THE ADMINISTRATION
The liability of the administration provides an example of an area in which the

distinctiveness of administrative law will vary from system to system. One focus of
26 BVerwGE 39, 197. See also BVerfGE 83, 30, where the ban on a work of literature was held to be
disproportionate; CE 17 April 1985, Les Editions des Archers, Leb 100.

27 See CE 23 July 1909, Fabrègue Leb 727; CE 14 March 1934, Rault, Leb 337; and R v Port Talbot BC,
ex parte Jones [1988] 2 All ER 207 (QBD).

28 Compare R v Home Secretary, ex parte Fire Brigades Union [1995] 2 AC 513 (HL).
analysis would be the values and the basis of liability. Some systems have adopted the
view that the liability of the administration should be the same as that for private
individuals. Typically, a French writer would argue, however, that the specificity of
governmental liability is to be found in the balance that has to be struck between
protecting the interests of the citizen and preserving the ability of the administration
to act in the public interest (eg Guettier, 1993: 97). Some take the view that specific
individuals who suffer disproportionately from actions taken in the public interest
should be compensated on a very different basis to those harmed by the actions
of private individuals. At the same time, the risks taken in the public interest may
justify a greater caution in terms of the compensation of harms suffered. A public
body undertaking a risky activity should not be deterred by the danger that it will
have to compensate those who suffer harm as a result. An example would be police
actions taken to deal with a sudden threat to public order. While it is useful to look
at the general principles and structures of the liability of the administration, there
are advantages in taking particular themes in order to gain focus. Other comparisons
have focused on the outcomes in this area, but it is necessary to go beyond examining
merely on the results of particular actual or hypothetical cases. Basil Markesinis and
his colleagues make this clear through a comparative study of five fact situations in
different countries. They set the decision in a legal and socio-economic context to
assess its meaning and importance (Markesinis, Auby, Coester-Waltjen and Deakin,
1999: 107). In addition, attention to individual cases needs to go beyond the rea-
sons given by judges in order to analyse them in terms of the underpinning ideas.
In particular, there is the question of whether the principles setting out the basis of
compensation are the same.
Although concepts may vary somewhat from one system to another, it is use-
ful to talk in terms of five general foundations of a right to compensation from a
public authority. The first concept is fault. We have a moral responsibility to make
good the harm that has been caused by our neglect or wrongdoing. A key issue
is how fault is established. In common law systems, fault involves the breach of a
duty of care. In other systems, fault simply means a failure by a public authority to
conduct itself in a way that can be reasonably expected.29 Such a standard would
be close to the failure of the administration to perform its mission. It is commonly
found that the mere breach of a legal norm does not automatically give rise to lia-
bility; that the fault of the administration is judged by objective criteria looking at
the knowledge of the administration, rather than of the individual administrator;
and that liability will arise where there has been a breach of an individual right
or a materially protected legal position relative to the administration (a kind of
‘legitimate interest’). In the past, many systems have insisted on proof of serious
29 See Principle 1 of the Council of Europe Recommendation R (84) 15 on Public Liability, adopted
by the Council on 18 September 1984:

Reparation should be ensured for damage caused by an act due to a failure of a public authority
to conduct itself in a way which can reasonably be expected from it in relation to the injured
person.
308 John Bell
fault (faute lourde) where the administration has a particularly difficult task, such
as in policing. But this is declining in most countries.
The second concept is that of risk. Even without fault, if a body has created a
situation of risk of harm for its own purposes (or for the community which we
serve), then there are grounds for holding it responsible. The idea of sharing bene-
fits and burdens is well acknowledged. In economic terms, a body must internalise
the costs of the operation, rather than externalising them to other people.
Both of these justifications apply equally to public and private persons. But
there is a further set of justifications which apply more specifically to public
authorities, and which are acknowledged with greater or lesser clarity in the dif-
ferent systems. Roger Errera explains that equality before public burdens justifies
French public law liability, both in areas of fault and risk (Errera, 1986). This is
based on Article 13 of the Declaration of the Rights of Man 1789 under which all
have to contribute to public expenses, and from which is deduced the principle
that no one can be expected to contribute an excessive amount for the public
good. German lawyers talk about the idea of special sacrifice (Sonderopfer) in such
circumstances. Now, this principle is easy to understand where there is a planned
risk created for the public benefit, but where there is an unplanned consequence,
such as a prisoner on parole committing a bank robbery,30 then this idea of
internalising consequences is less clearly a matter of responsibility. Where there
is an expropriation, we are already moving from a notion of liability to social
justice. The classic Couitéas decision31 shows a kind of expropriation, where the
authorities refused to remove squatters from private land, because this would
upset local public order. One person was suffering for the benefit of the commu-
nity and received compensation on the basis of the liability of public authorities
for an inequality before public burdens. But is this really justified by a notion of
liability, ie taking responsibility for one’s actions and the harm they cause, or is it
a matter of social solidarity—that social burdens, however created, should not be
unequally borne?
Social solidarity offers an alternative basis for requiring the state to pay com-
pensation to those who suffer injury. The French Constitution proclaims the
solidarity of all in the face of national calamities. The moral idea is based on the
view that, if we find ourselves as part of a community, that situation of mutual
dependence generates duties of solidarity. It could be argued that social solidar-
ity is not an appropriate basis for liability, but rather a principle of social justice
that could justify a redistribution of resources based on compassion, rather than
entitlement.32 We are not lone actors, as the private law model of liberty would
suggest. Our obligations do not arise simply from our voluntary choice, but
also from the social position we occupy. The argument is founded on an idea of
30 CE Sect, 29 April 1987, Banque populaire de Strasbourg, AJDA 1987, 488.

31 CE 30 November 1923, Leb 789.
32 See Fairgrieve, Andenas and Bell, 2002: xix–xxii and references therein.
social justice. Solidarity with those who suffer provides a special justification for
compensating for injuries resulting from industrial and social diseases, but also
from major risks in the field of medicine. For example, many countries provide
compensation to children who suffer adverse reactions from vaccinations. The
mechanisms are often some form of an insurance fund. But the justifications
differ between countries. For example, in France compensation was originally
justified on the basis that the vaccination was an activity undertaken in the public
interest. The risk incurred was a disproportionate burden on a few individu-
als, and so the community ought to pay. The argument is one of fairness in the
apportionment of burdens. The English Vaccine Damage Act 1979 is based more
on compassion, rather than an argument of social justice. The ability of society to
shoulder the burden—its deeper pocket—is more in evidence, rather than a sense
that society is benefiting from an activity and so should, in fairness, share the
burdens. Compassion is a commendable virtue, but not a matter of moral duty. It
is a work of superrogation.
A fifth and connected justification is that the state is simply best placed as the
organiser of compensation. Given its information and resources, it can manage
the provision of compensation in the most efficient manner. The issue is well
illustrated by the case of technological risks and disasters. After a particular
disaster at a chemical plant in Toulouse, a French law was passed in 2003 under
which the compensation of victims is secured by a guarantee fund which will pay
out if a person does not have appropriate insurance cover. This is an instance of
society arranging some form of collective protection against risks which are not
obvious to most people, but where the state can be expected to undertake a risk
assessment. The privileged position of the state to make provision for a major pol-
lution incident justifies giving the state a responsibility. This is a way of socialising
risk not so much out of solidarity as through a process of identifying the best-
informed organiser of compensation.
The different justifications in this area relate to different conceptions of the
role of liability law, as opposed to the law on compensation. We can legitimately
conceive of an argument that justifies the compensation of the victim without
imputing liability to any individual. The court process is appropriate for
identifying blame either individual or institutional, and this function is often
cathartic for the victims and their families, but this role of the law is often
parallel to administrative liability. In France, in the 1980s and 1990s findings of
criminal liability against public officials provided a strongly expressive mechanism
to achieve this end. It has subsequently been much reduced by reforms of
criminal liability which impose this on public officials only in cases of clear
fault (see Article 121-3 of the Code pénal). English public administration tends
to use other mechanisms for dealing with blame. Political accountability and
administrative responsibility are sufficient. Whereas fault and risk are
clear instances of liability, I would argue that the situations of solidarity,
compassion and organisation are best seen as instances of publicly-established
compensation.
310 John Bell

1. On what basis is the administration liable in the systems that you are
studying? Is it just liability for fault or for serious fault (recklessness)? Is
there liability for risk?
2. Is the administration liable on the same basis as a private individual? In
what way does the liability of the administration differ in procedural or
substantive terms?
3. How far is compensation sought through the courts and how far are there
special compensation schemes for particular kinds of injury or activity?
Do these have the same justification as liability through the courts?
To go further on this subject, the reader is advised to look both at explanations of the
administrative laws of relevant jurisdictions and also at comparative discussions.
Bell, J (1992) French Constitutional Law (Oxford, Oxford University Press).
Brown, LN and Bell, J (1998) French Administrative Law, 5th edn (Oxford, Oxford
University Press).
Birkinshaw, P (2003) European Public Law (London, Butterworths).
Schwarze, J (ed) (1996) Administrative Law under European Influence (London, Nomos).
Ellis, E (ed) (1999) The Principle of Proportionality in the Laws of Europe (Oxford, Hart
Publishing).
Flogaitis, S (1986) Administrative law et droit administrative (Paris, LGDJ).
Fairgrieve, D, Andenas, M and Bell, J (2002) Tort Liability of Public Authorities in Comparative
Perspective (London, British Institute of International and Comparative Law).
Konijbelt, W (1993) ‘The New Dutch Code of General Administrative Law’ in L Torchia
(ed), Il procedimento amministrativi: profili comparati (Padua, CEDAM).
Markesinis, BS, Auby, J-B, Coester-Waltjen, D and Deakin, SF (1999) Tortious Liability of
Statutory Bodies: A Comparative and Economic Analysis of Five English Cases (Oxford,
Hart Publishing).
Sandulli, A (1998) La proporzionalità dell’azione amministrativà (Padua, CEDAM).
Schønberg, S (2001) Legitimate Expectations in Administrative Law (Oxford, Oxford
University Press).
Singh, MP (2001) German Administrative Law, 2nd edn (Berlin, Springer).
Thomas, R (2000) Legitimate Expectations and Proportionality in Administrative Law
FURTHER READING
Alston, P (1999) (ed) Promoting Human Rights through Bills of Rights (Oxford, Oxford
University Press).
Dicey, AV (1959) An Introduction to the Law of the Constitution, 10th edn (London,
Macmillan).
Erasmus, GM (ed) (1990) Compensation for Expropriation (London, British Institute of
International and Comparative Law).
Errera, R (1986) ‘The Scope and Meaning of No-Fault Liability in French Administrative
Law’ Current Legal Problems 157.
Gearty, CA (1997) European Civil Liberties and the European Convention on Human Rights.
A Comparative Study (The Hague, Martinus Nijhoff).
Guettier, C (1993) La responsabilité administrative (Paris, LGDJ).
Hartley, TC (1998) The Foundations of European Community Law, 4th edn (Oxford, Oxford
University Press).
Loughlin, M (1993) ‘The Importance of Elsewhere’ Public Law 44.
Maurer, H (1994) Allgemeines Verwaltungsrecht, 9th edn (Munich, Beck).
Stolleis, M (1992) Geschichte des öffentlichen Rechts in Deutschland vol II (Munich, Beck).
Torchia, L (1993) Il procedimento amministrativi: profili comparati (Padua, CEDAM).
14
Comparative Law in Constitutional
Contexts
ANDREW HARDING AND PETER LEYLAND*
KEY CONCEPTS
Administrative law; Autochthonous; Checks and balances; Civil liberties;

Comparative politics; Constitution (flexible/rigid); Constitution (codified/
uncodified); Constitution (controlled/uncontrolled); Constitutional
accountability; Constitutional amendment; Constitutional conventions;
Constitutional court; Constitutional monarchy; Constitutionalism;
Contracting state; Devolution; Federal; Good governance; Judicial [or
constitutional] supremacy (Marbury v Madison principle); Liberal democratic;
Local government; Ombudsman; Parliamentary sovereignty; Referendum;
Rule of law; Separation of powers; State; Totalitarian; Watchdog bodies.
I. INTRODUCTION
J ust as there are many challenges for constitution-makers, there are many
challenges for students of comparative constitutional law in the 21st century.
Not only does this subject have little history, less theory and relatively few
pieces of outstanding literature, but the problems it now faces—and which are
of very great importance to the world at large—are immense and very pressing.
At the same time this very situation offers the hope that critique and imagina-
tion can, in the age we conceive of as being that of good governance and global
justice, go some way towards correcting the often oppressive and sometimes
incompetent behaviour of governments. The prize to be won is a major contribu-
tion to a happy, fair and stable future for the broad majority of humanity under
enlightened government nationally and internationally. The price of failure is an
increased chance of conflict, poverty and fragmentation affecting everyone. What
this chapter therefore aims to do is to explore the nature and tasks of comparative
constitutional law in the contemporary world.
* The authors would like to thank Joana Thackeray, Tom Ginsburg, Mark Sidel, Lucio Pegoraro,
Justin Frosini and Ben Berger for their encouragement and helpful comments.
314 Andrew Harding and Peter Leyland
The reformation of comparative law in the last 10 years or so has been remark-
able in many ways, not least in its re-awakening of comparative constitutional law
(Harding, 2000; Harding, 2002; and Leyland, 2002). It scarcely needs to be argued
now, as opposed to a few years ago, that comparing constitutions is a useful and
respectable activity. Nonetheless, in this discussion we will rehearse the arguments
and circumstances that led to this conclusion. Next, in Part II of the chapter, we
ask what constitutions are, and consider what they are for. In Part III attention
is directed to reviewing the discipline of comparative constitutional law, with a
view to understanding how it relates to comparative law in general, and how it
differs from comparative politics. Part IV examines the practice of comparative
constitutional law, attempting to answer the question of what practical purposes
comparative constitutional law serves, for example in the contexts of constitution-
making processes and human rights adjudication. In Part V we inquire further into
the question, how we might begin to classify and analyse constitutions. Allowing
for the fact that constitutions may appear similar in form but may, in practice,
function very differently, is there a framework of analysis that can be applied to
organise constitutions according to their principal characteristics? Additionally,
to what extent might constitutions be analysed by constructing a series of ideal
types against which more detailed comparison can be attempted? While not
recommending a particular methodology of comparative constitutionalism, at a
practical level, we proceed to identify a set of issues that nearly always have to be
addressed by researchers and commentators in this field. In Part VI we discuss
some strategies that might be adopted for teaching comparative constitutional
law. Finally, in Part VII we set out our conclusions and pose one very important
question for the future.
II. WHAT ARE CONSTITUTIONS AND WHAT DO THEY DO?
Before addressing the nature, purposes and methods of comparative

constitutional law, we need first to ask: What actually are constitutions and what
do they do?
What are Constitutions?
The answer to this question may not be as simple as it appears. According to most
formal definitions the constitution of any state embodies a higher form of law
antecedent to government.1 The text of a constitution sets out the institutional
framework, particularly how the organs of the state are intended to interrelate
with each other and the ways in which power is to be divided between them. In
1 The antecedence of the constitution to government, developed by writers such as Tom Paine in
the 18th century and Henry David Thoreau in the 19th century, is now taken for granted in most
societies.
Comparative Law in Constitutional Contexts 315
addition, the constitution includes a statement of individual and collective rights

and sometimes also duties of citizens and/or duties of the state in relation to eco-
nomic and social questions.2 In practical terms, there is no difficulty accessing the
text of most ‘constitutions of the world’ on the internet.3 However, the problem
with a definition which prioritises the text is that it provides only a formalistic
answer. Such a response underplays the importance of conventions or other
informal rules associated with the constitution. More seriously, this approach
would appear to deny that any society without a constitutional text has a constitu-
tion at all: it would, for example, preclude modern ‘constitutional’ states such as
Israel, New Zealand and the United Kingdom (where the constitution is said to be
‘unwritten’) from having a constitution at all.
Having said this, for those nations with a formal, codified constitution, in one
sense the constitution itself is always what is stated in the text. Unless it has been
amended, the text attempts to freeze or anchor the particular aspirations which
were influential at the moment of its inception and crystallised in it. Obviously,
then, the text has special significance because it was drafted with the purpose of
entrenching particular principles. It will therefore always be highly relevant to
start by examining the text and the implications of the text (Pegoraro, 2001: 115
ff). Indeed, it may be useful to be able to identify and compare the surface struc-
ture and characteristics revealed by examining the text, and it may be possible to
infer that elements of constitutional design are often related to, or even borrowed
from, other constitutions (Henkin and Rosenthal, 1990; Beer, 1992; and Harding,
2004).
As an example of this process, we can compare the constitutions of the United
States and Nigeria (Fallon, 2004: Ewelukwa, 1993). Despite having very different
histories and traditions there are clear parallels between the two. As well as being
relatively large nations in population and size they share obvious constitutional
characteristics. For example, they have in common a strict separation of powers
with executive power at national level vested in a President elected separately
from the legislature. The Supreme Court in each jurisdiction has the last word on
constitutional questions, and both constitutions describe systems of symmetrical
federalism with the upper house of the national legislature containing an equal
number of elected representatives of each of the states. More crucially, however,
any comparative analysis exposes significant differences. For instance, the powers
of the US Supreme Court were implied under the Marbury v Madison principle,4
and not, as in Nigeria, explicitly stated in the constitution itself.5 Nigeria has a
full statement of individual human rights, based on the European Convention on
Human Rights, which are very different in extent and conception from the first
2 Some constitutions, eg the Irish Republic and India, contain extensive ‘directive principles of
state policy’.
3 See websites cited below in the Bibliography and Further Reading section.
4 Marbury v Madison 1 Cranch 137 (1803). See Vile, 1976. This case asserted that the courts have
the power of judicial review of legislation.

5 Constitution of the Federal Republic of Nigeria 1999, Art 1.
10 amendments to the United States Constitution.6 Also, the USA has a secular
state, while the Nigerian constitution recognises the special role of Islamic law in
its northern states.7
There are of course fundamental problems associated with formal definition
and comparison at the level of description. If constitutions were mere texts, we
would be simply concerned with listing written rules, paying no attention to the
various norms that take the form of practices, customs, interpretations, case law,
conventions and the ways in which these change over time. interpretive contexts,
notably literary, doctrinal, political, economic, social, historical and cultural.
If it is correct that both constitutional law and constitutional systems depend
importantly on popular understandings and the political-social environment, then the
work of constitutional law and comparative constitutional law cannot carry forward
in intellectual isolation from the work of other disciplines of political science, cultural
anthropology, the cognitive sciences, or economics (Jackson and Tushnet, 1999: xviii).
In short, a given constitutional text, although essential to the study of constitu-

tional law, will only describe ‘the constitution’ in a very limited sense. For example,
even where provisions seek to safeguard individual, social or economic rights, the
document itself will not prescribe the method for attaining such goals, nor will
it address in any detail the crucial normative dimension which was intended to
underpin the constitution, and which itself may take on an evolving significance
over time.8 Rather, the text refers the analyst back to the prevailing ideas at the
time of drafting or amendment.
It has been asserted that ‘the facts are stronger than constitutions’ (Duguit,
1970), in the sense that the analyst must address questions associated with practi-
cal implementation, peering forwards and looking at the progressive application
of the constitution and its associated rules. A crucial distinction may be drawn
between the constitution (namely what is stated in the text), and the manner of its
implementation, which is explained here in terms of ‘constitutionalism’.9
Any given constitution may appear to display close textual similarities with
another selected example. However, each constitution will invariably acquire and
display strong ‘autochthonous’ characteristics as the constitutional form stretches
with its application in response to local conditions, much in the way unyielding
leather shoes adapt their shape to accommodate the feet of the wearer. By ‘autoch-
thonous’ we mean ‘home-grown’ or ‘intimately related to the local context’. It is in
fact relatively easy to identify such features of a given constitution, to the extent
that one can read a constitution sometimes as an autobiography of the nation.10
6 Ibid, ch IV.
7 Ibid, Arts 275–2799.
8 See below for the discussion of the relevance in this context of ‘constitutionalism’.
9 This is further elaborated upon below.
10 Many provisions of the Constitution of South Africa 1996 and the Constitution of East Timor
2002 (for example, the fundamental rights provisions) may be explained in terms of the need to
prevent the recurrence of human rights abuses.
Autochthonous elements may also relate intimately to traditional institutions or

religion.11
Constitutions then, to conclude, are texts, but are also more than texts.
They can include potentially all of the aforementioned issues and their study
might involve an understanding of any combination of the above interpretive
contexts.
What then do Constitutions actually do?
There are some tasks that all constitutions seek to perform. A constitution will
set out the way in which the principal institutions come into being and are to
operate, and how their powers are limited. For example, constitutions generally
establish the cycle of elections, parliamentary representation, and government
formation. And they will normally, although by no means always, lay down the
fundamental rights of individuals and groups. In addition, constitutions may
have many other facets, including declaring the national ideology and govern-
mental objectives; defining the conditions under which organisations, both state
and non-state, as well as the political system itself, are to operate.
It is important to recognise that the power-allocation function, which is central
to every constitution, is achieved in different ways. The constitution will provide
some kind of separation or balancing of powers between state institutions and
bodies. By this we mean that a constitution, to be worth the name, principally has
to define the executive, legislative and judicial powers and how they relate to each
other. Again we find that a traditional term—the ‘separation of powers’—is inade-
quate. Some constitutions clearly embody ‘separate’ powers, but others ‘fuse’ pow-
ers, or at least do not completely separate them. The United States Constitution
is often cited as a classic example of the former, because it was formulated on the
basis of a relatively strict separation of powers, with the President, representing
the executive branch, kept distinct from, but accountable to, the legislative branch
in the form of Congress, and both branches being accountable to the judiciary.
Here, powers were separated in order to provide checks and balances. In France,
by contrast, the idea of separation of powers—in its original form at least—was
to give analytically different functions to the executive, legislature and the judi-
ciary, so that each function was performed without trespassing on the preserve of
the others. In the British, Italian and German Constitutions, however, ministers
representing the executive branch are members of their respective Parliaments
and—in theory at least—accountable to Parliament. Most constitutions in some
important ways provide for the definition of the content of, and the counter-
balancing of, the three powers, which is now often linked to the concept of checks
and balances rather than simply a strict separation of functions. Furthermore, in
11 Some constitutions make provision for ancient institutions predating the constitution itself, eg
the Great Council of Chiefs in Fiji, in the Constitution of Fiji, ch 8.

order to achieve any meaningful separation of powers, independent methods of

appointment and funding will need to be linked to any such constitutional provi-
sions. For example, this will be crucial in relation to judicial appointments and
appointments to a constitutional court.12
Moreover, power-allocation may also be multi-dimensional in that, in systems
with strong forms of federal, devolved or regional government,13 the constitution
determines14 the relationship between the central government structures and
those operating at the periphery. It is especially true of many federal constitu-
tions that they deal with very detailed questions of federal-state powers and rela-
tions and are therefore complex. More generally we find that some constitutions
provide a bare minimum of prescription, while others go into quite laborious
detail. It is obviously an advantage of a brief constitution, such as that of the
United States, that it hardly ever needs to be amended, and a disadvantage of a
longer one, such as that of Malaysia, that it requires frequent amendment.15 On
the other hand a brief constitution is often vaguer and more open to abusive
interpretation.16
Another conventional answer to the question of what constitutions do is that
they provide for the definition of state institutions, and the relationship between
the state and the individual. However, this answer is both unexceptional to the
point of being unhelpful, and inaccurate to the point of being misleading. In fact
constitutions tend to define only some institutions of state, and define only some
aspects of the relationship between the state and the individual. These tasks are
completed, usually very imperfectly, by the ordinary law or the practice of govern-
ment. It has been pointed out that the state as a distinct apparatus of government
was only formally recognised as institutionally significant during the period fol-
lowing the French revolution, as a more sophisticated notion of the separation of
powers began to develop (Allison, 2000: 48).
The state came to be conceptualised as a distinct apparatus of government per-
forming functions at a step removed from the King or the executive authority, thus
giving rise to modern conceptions of the separation of powers. Although setting
out institutional arrangements is pivotal to the organisation of the state, constitu-
tions, or the body of laws relating to the state, rarely define the state itself: in fact
terms such as ‘the people’, ‘the government’, ‘the Crown’, and ‘the executive power’
are commonly employed in preference to ‘the state’. However, in many nations
12 For the role of constitutional courts, see below.

13 The United States, Canada, Australia, Germany, Nigeria, Pakistan, Mexico and India are notable
examples of symmetrical federalism. Malaysia has an asymmetrical, two-tiered, federal system. The
United Kingdom, like Spain and Italy, has (asymmetrical) devolution of powers (to Scotland, Wales
and Northern Ireland).
14 In the United Kingdom, which lacks a codified constitution, devolution was introduced in 1998,
following referenda, by means of special Acts of Parliament.

15 As at January 2006 the Federal Constitution of Malaysia had, since its inception in 1957, been the
subject of 48 amending Acts embodying 650 individual amendments.

16 Eg the Constitution of the Republic Indonesia 1945, especially before amendments were enacted
in 1999–2004.
the task of designing effective mechanisms for constitutional accountability has

been rendered more complex because the contemporary state has been radically
reconfigured as part of a trend towards some type of ‘contracting state’ (Harlow
and Rawlings, 1997: 129). Such an agenda attempts to reduce the size of the state
apparatus, including the civil service, federal, regional and local government, by
delivering public services through contracting out to the private sector, and also
by the privatisation of formerly state-run industries. This model of the state sees
the state as ‘steering’ rather than ‘rowing’. The objective is to improve the efficiency
of delivery of such services to the citizen by its exposure to market forces (Harden,
1992). The result of these initiatives is that the business sector is increasingly
drawn into the practice of government. The process of contract-making, through
which private companies assume the task of service delivery, greatly expands the
interface between the state and the private sector, blurring any public/private law
distinction. Such developments also increase the potential for conflicts of interest
to arise. In consequence, with increasingly complex overlapping of powers and
functions, understanding the relationship between the state and the private sector
becomes one of the great contemporary challenges of comparative constitutional
law. Any such discussion may not only need to address evolving ideas of the state
in developed nations, but also consider parallel issues of exposure to market forces
in regard to processes of democratisation in developing and transitional states
(see, eg Morison and Livingstone, 1995: 51, 54 ff; and Held, 1995).
In this part we have observed that a principal task of constitutions is to define
and organise the various institutions of what is called ‘the state’.
The Special Status of Constitutions
A constitution will normally also contain some statement as to the status of the
constitution itself and the method or methods for amending it. In the major-
ity of cases the constitution proclaims itself to be the supreme law and any law
which is inconsistent with the constitution is invalid. The question of uncon-
stitutionality of laws is almost universally given to the courts to determine,
with the result that judicial review of legislation becomes a highly significant
feature of the constitution. There are, however, cases where the provisions of
the constitution are not intended to be legally enforceable in the courts. One
might have expected that in this situation some other body such as the legisla-
ture would be given the right to determine the constitutional validity of laws.
While this is, in effect, the position in constitutions that embody parliamen-
tary, as opposed to constitutional, supremacy, in most cases of the ‘unenforce-
able constitution’ the provisions of the constitution remain merely statements
of principle which are implemented, if at all, through the political process. It
is common to regard constitutional provisions of this kind as ‘nugatory’ or
even ‘irrelevant’. In fact in many instances such statements of principle provide
ground rules for organising the state in much the same way as ‘enforceable’
provisions, and are regarded as important political principles which may be

countermanded only by overwhelming considerations.17
With regard to constitutional supremacy there is some variation amongst
constitutions. Some operate this principle prospectively, prohibiting inconsistent
legislation being passed after the constitution comes into force, while others also
operate retrospectively, prohibiting all inconsistent legislation, even that passed
prior to the constitution. Much may depend here on the circumstances in which the
constitution was drafted and came into effect. If the constitution was designed to
guarantee the maintenance of the status quo, or to provide for orderly development
over a period of time, it will usually operate prospectively; but if it was designed to
be revolutionary it will usually operate retrospectively as well as prospectively.
In addition some constitutions vest the power of judicial review of constitu-
tionality in a special court—such as a ‘constitutional court’ (Ginsburg, 2003)—
designed for the purpose, while others vest this power in the ordinary courts. Some
consequences will follow from this: If there is a special court, it is to be expected
that the ordinary courts will have power to refer to that court any constitutional
issues which arise in the course of litigation. From this it will usually follow that the
special court has power to determine the issues and return the matter to the court
that referred it, which alone will have power to exercise jurisdiction over the case
itself and award a remedy in accordance with the determination of the special
court. Typically, there will be several other avenues whereby constitutional issues
can be put before the special court, perhaps by members of the legislature or by
specific office-holders such as the Prime Minister or the President.
Amending Constitutions: Rigid/Flexible
The power to amend the constitution is an extremely important power which

determines the degree to which the constitution itself is entrenched. Most
constitutions provide for some special method or methods of amendment.
Indeed, those that do not display this characteristic cannot claim to embrace
the principle of constitutional supremacy.18 This special method is usually a
requirement for a much greater majority (as opposed to a simple majority) in
the legislature, which distinguishes the constitutional amendment procedure
from the procedure for amending ordinary legislation, for example, a two-thirds
majority of the members of each house, upper and lower, voting separately, as in
India;19 or a two-thirds majority in Parliament and six Provinces in the National
Council of Provinces, in South Africa.20 Some constitutions go further, requiring
17 Eg in Vietnam considerable debate in 2000–01 centred on an unenforceable constitutional
provision for free primary education: Sidel, 2002.

18 The Privy Council has created a distinction between ‘controlled’ and ‘uncontrolled’ constitutions:
McCawley v The King [1920] AC 691 (PC).

19 Constitution of India, Art 368 (in the ordinary case).
20 Constitution of the Republic of South Africa, s 74.
a referendum,21 sometimes involving also a requirement that the amendment be

supported by a special majority of electors or regions of the country, or a provi-
sion designed to ensure that there is a ‘cooling-off ’ period between the introduc-
tion of an amendment bill and its passing, to avoid hasty amendments and create
the opportunity for public debate.22
The terms ‘rigid’ and ‘flexible’ are often used to denote a constitution that is
difficult or easy to amend (Bryce, 1905). However, the rigidity and flexibility of a
constitution in practice involves much more than a consideration of the amend-
ment procedure. A constitution such as that of the United Kingdom is in theory
flexible, but has in practice proved somewhat rigid, evolving only slowly over time
(although the flurry of reforms since 1997 seems to belie this tendency); whereas
the Constitution of Brazil has been amended many times despite being, in theory
at least, somewhat rigid.23 The United States Constitution, on the other hand, is
rigid both in theory and in practice. The operation of party politics (for example
in a dominant-party system) or public opinion generally (for example, in refer-
enda) will affect the extent of flexibility or rigidity. Whether a constitution should
be rigid or flexible depends on how the constitution-building process is conceived
by the constitution-makers. A new constitution can be regarded as absolutely fun-
damental and unchanging law, or it can be regarded as merely a work in progress,
leaving much to be resolved by continuing debate. In a few cases24 the constitution
contains provisions which are expressed to be unalterable in any circumstances.
It is also not unusual for a constitution to provide different methods of amend-
ment according to the importance of the provision to be amended.25 In India the
Supreme Court has held that a bill for amending the constitution may not destroy
the basic structure or essential features of the constitution.26
Apart from the amendment procedure, there are other less obvious ways in
which constitutions may change. As indicated above, judicial decisions, conven-
tions, constitutional or legislative practice and government policies may change
over time and may affect significantly the nature of the constitutional order.
The significance of these methods of effecting constitutional change may well
be affected by the extent to which the formal amendment procedure is easily
invoked. The complexity and the tight or open texture of the words used will also
be a factor inviting or resisting change.
To summarise: a constitution also establishes the extent to which it may be
changed, and its effect on prior or subsequent law-making.
21 Eg, the Constitution of the Republic of Ireland, Art 46.

22 Eg, the Constitution of Australia, at Art 128, requires a Bill amending the Constitution, after
being passed by both houses of Parliament, to be submitted within 2–6 months to a referendum. The
amendment is law only if supported by a majority of electors as well as a majority of electors in each
State.
23 Constitution of Brazil, Art 60, to which there were 33 amendments between 1992 and 2000. The
Constitution of India had been amended 93 times since 1950 as at January 2006.
24 Eg, Brazil, Germany, Italy, Namibia and Norway.
25 The Federal Constitution of Malaysia specifies four different methods: Art 159.
26 Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
III. COMPARATIVE CONSTITUTIONAL LAW
Having described constitutions and their functions, as the objects of comparative

constitutional law, let us now ask what the subject itself is, how it differs from
comparative politics and how it relates to comparative law in general.
Relationship to Comparative Politics
It is immediately apparent that the relationship between comparative politics and

comparative constitutional law has been somewhat problematical because the lat-
ter differs from but overlaps with the former. Comparative constitutional law is the
branch of comparative law that studies constitutions as legal phenomena. On the
other hand, comparative politics compares political systems as social phenomena,
and has to take account of constitutions to the extent that they define the space
in which and the terms on which the political system operates. Further, compara-
tive constitutional law has to take account of political science to the extent that it
explains, in part at least, the context in which the constitution operates. The two
disciplines are therefore different in terms of their main focus but each is very
important for informing the work of the other (Finer, 1974; and Harding, 2002).
Moreover, it is worth recognising that a centrally relevant question for constitu-
tional lawyers concerns what might be termed ‘fitness for purpose’. At one level
the analyst will be inquiring into whether the constitution has been conceived
so that it sets out an adequate institutional framework in any particular national
context. At another level, the issue of ‘fitness for purpose’ involves an assessment
of the effectiveness of the detailed provisions which have been included as part of
a constitution. The focus will often be on evaluating institutional design in terms
of the adequacy of accountability mechanisms and the degree of transparency
that is present. In principle, there is an assumption that robust constitutional
ground rules can at least contribute to containing or defining the political process.
However, as we note in the discussion of constitutionalism that follows, consti-
tutional design will not, in itself, guarantee good practice, good governance or
adherence to a wider constitutional morality.
In summary, no sharp distinction can be made with comparative politics.
However, it might be suggested that comparative constitutional law tends to focus
on the conception of the legal and institutional framework of government and
the evolution of the institutions of government rather than concentrating on the
contestation of power and the actual exercise of power by politicians and other
constitutional actors.
Constitutions and Constitutionalism
We have established then that comparative constitutional law is the branch of

comparative law which studies constitutional law as a set of legal phenomena,
in the sense that constitutional law is ‘conceived as a structure of rules and
principles which provides the foundation of the political order’ (Loughlin,

2002: 193). Rather than merely looking at the political process itself, it deals
with how law shapes and limits the conduct of politics. However, as we have
set out above, this task is not simply a question of textual analysis, since there
is invariably a gulf between the formal constitution and the manner in which
government is actually conducted—in other words, between the constitution
and what can be termed ‘constitutionalism’. In general, it might be suggested
that constitutions only seek to embed a given set of fundamental principles as
part of the prevailing system of government. Constitutionalism, on the other
hand, may be said to embody a normative dimension. Here, the constitution
not only anchors and enforces certain principles, but also represents a clear
set of values. Many constitutions will set out liberal democratic principles of
some kind; others, like Eastern European constitutions of the past, may be
based on principles of socialist ownership or, like that of Iran, seek to embody
the religious nature of the state. Any commitment in the codified text towards
general enfranchisement, democratisation and economic redistribution has
to be assessed against the prevailing conditions of governance.27 It has been
recognised that
when the idea that political power resides in the people is transformed into practice, it
becomes a dynamic and liberating force, but also potentially dangerous and destructive
(Loughlin, 2002: 111).
Achieving the objective of substantial conformity with the rules is the real chal-
lenge. Indeed, as one well known commentator, referring to developments in
Western Europe, puts it:
The fundamental notion of the Rechtsstaat or the rule of law was … not conceived out
of the blue and introduced without resistance. It was, in fact, the fruit of political conflict
and scholarly disputes stretching over many centuries (Van Caenegem, 1995: 17).
In developing a response to such dangers, constitutionalism has been construed

in a way that often suggests that any exercise of political power will be bounded
by a system of higher order rules which will:
determine the validity of legislative and executive action by prescribing the procedure
according to which it must be performed or by delimiting its permissible content. The
rules may be at one extreme (as in the UK) mere conventional norms and at the other,
directions or prohibitions set down in a basic constitutional instrument, disregard of
which may be pronounced ineffectual by a court of law. Constitutionalism becomes
a living reality to the extent that these rules curb arbitrariness of discretion and are
in fact observed by the wielders of political power, and to the extent that within the
forbidden zones upon which authority may not trespass, there is significant room for
the enjoyment of individual liberty (De Smith, 1962).
27 ‘Constitutional mechanism has no value or efficiency itself, independently of the moral and social
forces which support it or put it in motion’ (Boutmy, 1891: x).

The emphasis in the above statement explaining constitutionalism is not simply

on procedure and rules, but on achieving conformity with the intention behind
the rules. Apart from its positive aspects, namely dealing with the generation and
organisation of power, a constitution may be taken to comprise a series of devices
designed to curb discretionary or unlimited power. In many instances it seeks
to establish different forms of accountability (Harlow, 2002: chapter one), not
simply through a system of freely elected government, but by placing restrictions
on the power of the majority. This accountability is reliant on transparency, and
it is acted out in a number of familiar ways:28 an obligation for the government
to be responsible to the elected Parliament; legal limits established by the courts
on the exercise of public power; formal financial accountability in public affairs;
accountability through contractual agreement where public services are provided
by private organisations; and, additionally, accountability through the interven-
tion of specialist constitutional oversight bodies such as those designed as part
of the recent constitutions in South Africa and Thailand (Hatchard, Ndulo and
Slinn, 2004; and Leyland, 2006). Moreover, the constitution also results in further
ground rules in the form of laws, codes of practice and conventions being adopted
to ensure fair play at every level. But we would argue that an equally significant
characteristic of constitutionalism is a degree of self-imposed restraint which
operates beyond the text of the constitution and its attendant rules, especially on
the part of political actors and state officials. The point to stress here is that all
nations have a constitution of some kind, but constitutionalism is only established
in the true sense where political behaviour is actually contained within certain
boundaries. In addition, the rules need to embody a defensible constitutional
morality which accords with principles of good governance29; but the constitution
also represents a sufficiently widely accepted political settlement. Finally, in defin-
ing constitutionalism we have recognised that there must be a general adherence
at all levels to the constitutional rules and the wider body of law and conventions
associated with them.
The Relationship to Comparative Law Generally
Traditionally comparative law has been concerned with private law comparison
and, at a more general level, with the comparison of legal traditions or legal fami-
lies. Comparative constitutional law used to be considered an aspect of compara-
tive politics or political theory, and incapable of being subjected to the doctrinal
rigour of comparative law due to the great differences which existed in political
systems (Kahn-Freund, 1974). Since the end of the cold war, however, there has
28 For a discussion of the development of such mechanisms in the United Kingdom see Oliver,
2003: chs 9–12.

29 For a discussion of ‘good governance’ from a global perspective see Botchway, 2001.
been an enormous increase in democratisation. Although there are still great dif-
ferences in political systems and cultures, the main objectives of constitutional law
have become more broadly similar than previously, due to the dominant inter-
national agendas of ‘good governance’, ‘human rights’, ‘international trade’, and
‘sustainable development’, all of which have had significant impacts on constitu-
tions. In addition, the same process has tended to blur the distinction between the
public and private sectors and therefore between constitutional and private law,
as indicated above.
In truth, however, the amnesia of comparative law with regard to constitutional
law was never justified. It was founded upon a number of things which are ques-
tionable. First, it assumed that comparison is only valid in the case of units of
comparison that are similar, whereas in fact the relevance of similarity depends on
the precise purpose of the comparison: sometimes we can learn more from differ-
ence than from similarity. Secondly, there were clearly many political systems and
constitutions that were in fact significantly similar. Thirdly, it omitted to realise
that many of the staple ‘problems’ of comparative law involve both public and pri-
vate law questions, and therefore comparison involved moving smoothly in and
out of constitutional and private law. Salient examples of this are labour law, envi-
ronmental law, and industrial regulation. Fourthly, it failed to realise that even in
the context of private law the political structure is highly significant. Consider, for
example, contemporary ‘constitutional’ debates concerning same-sex marriage.
Despite what is said above about the recent rapprochement between com-
parative law and comparative constitutional law, it would be a mistake to think
that the latter did not exist prior to the end of the cold war. Indeed, the recent
reformation of comparative law has involved a merging of two, largely separate,
traditions. Montesquieu, famously, engaged in comparative constitutional law
in comparing the English and French constitutions (neither of which was at the
time written). But one can find origins of the subject in Aristotle’s Politics and
Constitution of Athens (the latter, part of a grand survey of Greek city-states’ con-
stitutions). Another strand of intellectual history is the tendency of philosophers,
from Plato through Cicero and Sir Thomas More to Thomas Paine and John
Rawls, to theorise about the ideal republic or the ideal kingdom based on rational
speculative inquiry, or reading the mind of God, or, in some cases, socio-legal
inquiry. This tradition is relevant in that it sometimes involved assessing con-
stitutional experience and imagining a better society. Undoubtedly the French
and American revolutions had a galvanising effect on the subject, in that the
promulgation of written documents embodying instruments of government or
‘the rights of man’ became an increasingly common phenomenon. Comparative
constitutional law was undoubtedly relevant to the making of the United States
Constitution, and without doubt the United States and French Constitutions
informed constitutional reform processes over many parts of the world, notably
in Latin America and Europe. The revolutions across Europe in 1848 created
many opportunities for reconsideration of the ‘good constitution’ along com-
parative lines. These revolutions tried but generally failed to establish new, more
democratic constitutions, but the experience provided a basis for future constitu-
tional development through the 19th and 20th centuries. However, this trend was
interrupted by the advent of communism and fascism, both of which believed
in absolutist and highly authoritarian government. The comparative habit in
constitution-making was thus established but a comparative constitutional law
literature with its own classical texts and theoretical structure was distinctly lack-
ing. Even now the practice of comparative constitutional law greatly exceeds in
extent its theoretical literature. Nevertheless, since the early 1990s there has been
a proliferation of comparative constitutional law literature, due to the creation
of many reform projects, good governance programmes, teaching programmes,
chairs and research centres devoted to the subject. All these have added signifi-
cantly to the literature.30 In summary, comparative constitutional lawyers have
not yet (although there are some notable exceptions) provided us with a sophis-
ticated and well-tried methodology, nor with a literature which examines in a
comparative and analytical way the constitutions or constitutional systems of the
world.31 This is true not only of the newly established or reformed constitutions
but even sometimes of well-established constitutions.
IV. THE PRACTICAL APPLICATION OF COMPARATIVE

CONSTITUTIONAL LAW
We now proceed to examine the practical applications of comparative

constitutional law. Here we identify constitution-making, constitutional reform,
and constitutional adjudication.
Constitution-making
Over the span of modern history one can discern four waves of constitution-making.
The first wave occurred in the 18th century with the constitutions of the
American states and the United States and French constitutions, together with
the constitutions of those states that immediately followed these. These constitu-
tions were very basic by modern standards and emphasised the ‘rights of man’ and
popular assent to government.
The second wave occurred between the mid-19th and early 20th centuries,
when the liberalisation and democratisation process commenced with the 1848
revolutions in Europe gradually worked itself out in modern constitutional forms.
These constitutions were more concerned with the concepts of political represen-
tation, citizenship and equality before the law. They emphasised the legislature as
the forum in which the exercise of power could be scrutinised, and the expansion
of the franchise (Van Caenegem, 1995).
30 See Bibliography and Further Reading.
31 Hart Publishing is producing a series entitled ‘Constitutional Systems of the World’ from 2007: see
eg Leyland (2007).
The third wave took place in the decades immediately following the Second
World War, as colonial empires were disbanded and war-ravaged countries were
occupied or recovered from occupation or instability. This process continued
from the 1940s to the 1970s. The independence constitutions tended to copy
the European and United States constitutions, depending on the identity of
the colonial power, usually with some traditional elements. These constitutions
were not often successful and many lasted for only a short period of time before
being distorted beyond recognition by amendments or torn up by military or
authoritarian leaders.
The fourth wave commenced in the mid-late 1980s, when increasing democ-
ratisation and globalisation, and the resolution of local conflicts, all assisted by
the end of the cold war and the exercise of ‘people-power’,32 propelled forward
through the 1990s and 2000s the concept of a liberal and just state, based on free
and fair elections, and operating with a sophisticated array of good-governance
mechanisms. At the present time the process of constitution-making still goes
on in some post-conflict states,33 but by and large we are witnessing a period of
implementation and consolidation as the detailed working of the new constitu-
tions and their complex apparatus involving election commissions, constitutional
courts and anti-corruption agencies—is being examined and adjusted. Unlike in
previous generations, during this period the ordinary people have been prepared
to protest unconstitutional actions and demand that the constitution operate
fairly and transparently. ‘People power’ is a significant feature of fourth-wave
constitutionalism. It is, however, at best a double-edged sword and not a substi-
tute—except where there is no alternative—to constitutional government under
the rule of law.
The development of constitutional experience has benefited considerably
from the proliferation of models since the limited examples available to Indian,
German, Italian and Japanese constitution-makers in the 1940s. Constitutions are
no longer taken from the peg, but are tailored with some precision and consider-
ation of global experience as well as local needs and practicalities. The constitu-
tion-making process has also been considerably democratised, which opens up
both the careful consideration of diverse solutions and the accommodation of
different views. The comparative dimension is now so ingrained that it is hard
to imagine any constitution-building effort without it. Recent notable examples
of states where comparative experience has proved significant are South Africa,
Namibia, Cambodia, Thailand and Kenya.34 The European Union is also an
32 People-power was seen first in the Philippines in the ‘EDSA’ revolution, which led to the fall of
President Marcos in 1986.

33 Eg, Afghanistan, Cambodia, Iraq, Rwanda, East Timor, Somalia.
34 To take one example, in devising a electoral system based on some form of proportional represen-
tation it may be desirable to exclude from the legislature very small Political parties with extreme and
highly divisive views, which might also hold the balance of power. Here, the German electoral rule that
excludes from the legislature those parties with less than 5% of the total votes cast has proved useful.
interesting but slightly different example, in that constitution-making has had to

draw on the experience of member states rather than foreign states in an effort
to meld together different constitutional experiences. In the cases of Kenya and
the European Union the constitutional drafts have at the time of writing been
rejected in referenda, but as with the 1848 constitutions this does not mean that
the ideas they incorporate are dead. Comparative constitutional law can of course
be equally instructive where constitutional reforms falling short of a new con-
stitution are contemplated. International organisations concerned with issues of
access to justice or sustainable development also use comparative constitutional
law to construct international projects and draft international treaties. There is
also increasing interest in the concept of ‘world constitutionalism’ embracing
international organisations (Macdonald and Johnston, 2005).
Human Rights Adjudication
As signatories to the European Convention of Human Rights, which is an inter-

national treaty formulated in 1951 to prevent a repetition of the rights abuses of
the Second World War, most European nations have incorporated the Convention
into their domestic law.35 However, more generally, in recent years increasing use
has also been made of comparative constitutional law in constitutional litigation,
particularly in human rights cases. This process involves judges looking at cases
from a variety of jurisdictions that have considered the same question as that
before the court. While previously this process was fairly common, it did not
generally or necessarily result in the adoption of foreign case law: in fact it often
resulted in its rejection. What is new is the extent to which courts look at cases
from a wide variety of jurisdictions, not just those with the same constitutional
tradition; the extent to which they are prepared to follow these cases; and the
extent to which they are willing (or in the case of South Africa obliged36) to use
international legal norms. Some comparative constitutional law scholars have
even gone so far as to suggest that we are witnessing the emergence of a new
common law or ius commune of human rights (McCrudden, 2002).37
We conclude this part with an assertion that comparative constitutional law has
never been more important in practice than at the present time.
V. SPECIFIC ISSUES
In this part first we consider a question analogous to that relating to legal ‘families’
in the field of macro-comparison of legal traditions: Are there some general cat-
egories or families of constitutions, ie is there a taxonomy of constitutions? Can
35 This was achieved recently in the United Kingdom by way of the Human Rights Act 1998.
36 Constitution of the Republic of South Africa, s 38.
37 See also ch 16 of this Handbook.
constitutions be further classified by developing the idea of ‘ideal types’? Secondly,

we mention some of the practical hurdles that need to be overcome in under-
taking the task of in-depth comparative analysis and we propose a pragmatic
approach to overcoming many of the challenges faced by researchers in the field.
Categorisation
In attempting to analyse a topic of enormous range and complexity there is a

natural inclination to organise the subject-matter into more specific categories.
For example, at least at a descriptive level, it is possible to identify obvious char-
acteristics which can be selected and which may be indicative of broad types at
a surface level. Kenneth Wheare divided constitutions into written/unwritten;
flexible/rigid; unitary/federal; separated/fused powers; and republican/monarchi-
cal (Wheare, 1964). One could also add presidential/parliamentary; controlled/
uncontrolled; one-party/multi-party; secular/religious; constitutional court/
legislative sovereignty; bicameral/unicameral; and justiciable/non-justiciable.
This type of categorisation may be a useful way of identifying characteristics at a
superficial level, and therefore of understanding something about the broad type
of constitution being investigated, but it is of limited utility in that it does not look
beneath the surface or provide anything approaching a comprehensive guide to a
particular constitution.
Ideal Types
We might, moreover, consider whether the taxonomy of constitutions can be

further refined. For example, Max Weber’s conception of the ‘ideal typical’ has
offered a widely tested method of analysis which could be applied to constitutions
(Leyland, 2002: 221 ff; and Loughlin, 1992: 59). The first stage is the construction
of certain elements of reality into logically precise, controlled and unambiguous
conceptions, which are removed from historical reality (Gerth and Wright Mills,
1967: 59); and the second stage involves
the synthesis of a great many diffuse, discrete, more or less present and occasionally
absent concrete individual phenomena, which are arranged according to those one-
sidedly emphasized viewpoints into a unified analytical construct (Cotterrell, 1984:
159, 166).
Although constitutions are usually complex formulations, it can be argued that

certain features can be identified and stressed according to broad types. An
approach which provides extreme and pure models will allow the analyst to con-
sider that the ‘real meat of history’ falls somewhere between these extreme types.
In other words, as will be apparent from the discussion below, after the analyst has
been able to construct a given range of diverse examples, each exhibiting a series
of clear characteristics, it is then possible to examine the actual cases (particular
national constitutions) to see how closely they resemble the ‘ideal’ constitutional
types that have been identified.
By way of example, viewed from the standpoint of their origins, a substantial
number of constitutions are variations on what we might term the ‘Westminster’,
‘Paris’, ‘Washington’, or ‘Socialist Party State’ model (each of which might be
developed into an ‘ideal type’). On gaining independence from the United
Kingdom the former colonies that became Commonwealth states usually retained
a ‘Westminster’ parliamentary system which—as with the Westminster (UK) par-
liament itself—fuses the legislative and executive branches; has a permanent pro-
fessional civil service; and operates within a legal system based on the common
law. Many of these states, until relatively recently, relied on the Judicial Committee
of the Privy Council in London as their final court of appeal, which had also the
function of interpreting the constitution. Equally, some former French colonies
have a colonial constitutional legacy which has influenced constitutional develop-
ment in Africa.38 French influence is discernible in other ways too. For example,
the relatively brief period of Napoleonic conquest at the beginning of the 19th
century left behind a legal code which was adopted with surprisingly little changes
across much of Europe, and influenced legal development and hence public law in
many states of Africa, Asia, and (via its Spanish and Portuguese offspring) Latin
America. The United States Constitution has survived largely intact for over 200
years and many of its features have been widely disseminated, especially in 19th
century Latin American states, which, inspired by American revolutionary ideals,
wrested their independence from Spain. The United States Constitution has the
attraction of being extremely concise but it was also ‘state of the art’ when it was
conceived, as it was based on a clearly delineated separation of powers between
the executive, legislative and judicial organs of the state. At the same time, it
was symmetrical in conception and involved a uniform distribution of powers
between the federal government and each state government. Not only is each
State treated the same but also the state institutions of Governor, legislature and
supreme court precisely mirror the President, Congress and Supreme Court at the
level of the federal government. Finally, the enormous political influence of the
Soviet Union on client states and other socialist regimes following the end of
the Second World War resulted in single-party socialist dictatorships. These have
disappeared from Europe following the collapse of the Soviet Union in 1990,
but the residue of Soviet socialist models remains in the constitutions of North
Korea, Vietnam, Cuba and the People’s Republic of China (which have since been
amended to reflect varying degrees of economic change from socialist ownership
to a market economy). Apart from observing that a considerable number of con-
stitutions incorporate religious features (eg Islam and shari’a law) it is difficult to
propose additional distinct ideal types.
In the absence of a rigorous taxonomy for analysing constitutions, describing
a constitution according to its conformity or lack of conformity with a classical
38 Eg, in the Ivory Coast, Algeria and Togo.

model appears to have some utility, even if it leaves much detail to be explained
or excepted.
Methodology
In approaching comparative constitutional analysis, while stopping well short

of developing or advocating a particular methodology, it is possible to identify
certain questions which nearly always need answering. For instance, it is interest-
ing here to speculate whether there is a universal language of constitutional ter-
minology, allowing for common assumptions to do with constitutional features.
Even here we must maintain a degree of caution in how terms are used and what
their implications might be. We have just noted that typologies are often useful.
However, at all times it is crucial to deal with issues of terminology, ensuring that
words have been correctly understood and avoiding simplistic translations which
might lead to misunderstandings. In this regard it is necessary to remember that
general and legal expressions, in any language, are often very, or just subtly, differ-
ent,39 and that we should look for actual, as opposed to linguistic, equivalents.
Moreover, the comparative dimension, consisting of references to foreign
constitutional systems, is often prompted directly by the subject-matter
under consideration.40 The comparative task is mainly interpretive, but to inter-
pret a constitution in a particular way is to explicitly or implicitly distinguish it
from, or liken it to, other constitutions. Indeed, we have already explained above
that it is not possible to understand the law, the constitution, and the institu-
tions of any nation without understanding the context in which they come into
being. Equally, it is important to grasp how institutions are perceived by a range
of opinion within the nation under consideration, and also how these institu-
tions operate or have operated in practice. In terms of an overall approach, it is
recognised that a researcher might be loosely guided by a method that explicitly
takes account of the aforementioned questions of terminology, language and
context. However, we believe that such comparative work, particularly, if it is
empirically based, will have to include a pragmatic dimension. The task of getting
genuinely to grips with other constitutions will also be an active process involving
discussion and debate with locally-based academic colleagues, legal practitioners,
government officials and politicians.
To conclude, comparative constitutional law is, in our view, a wide-ranging dis-
course about constitutions and their interpretation which takes place at a different
level to any purely national discourse. At the same time any academic discussion
has to take account of the local constitutional context.
39 Think of the ordinary and technical meanings of ‘bill’ in English; the difference between ‘droit’
and ‘loi’ in French; and the different meanings of ‘cabinet’ in English and French.
40 For example, a discussion of administrative courts in Thailand, which were an important feature
of the 1997 Constitution, reveals that the entire system was consciously modelled on the French
Conseil D’Etat: Leyland, 2006.
VI. THE TEACHING AND THE STUDYING OF COMPARATIVE

CONSTITUTIONAL LAW
We now address briefly the teaching and the studying of comparative

constitutional law.
Comparative constitutional law as a subject taught in universities has become
much more common in recent years. Very many law schools world-wide now
offer something resembling a course of this kind. Most of these are concerned
with the comparison of major western constitutional traditions such as those of
the United States, Britain, France, and Germany (see eg Cappelletti and Cohen,
1979). Those countries having a constitution influenced by one or more of these
traditions will naturally emphasise it in comparative teaching. In recent years the
scope of comparison in such courses has become manifestly wider, and constitu-
tions other than those of Europe and North America are often addressed, notably
those of India, South Africa and Japan. Apart from considerations of prestige of
the constitutions studied, the accessibility of materials is a major factor in the
choice of countries. The fact that all constitutions (and even historic texts) are
now available on the Internet provides for ease of comparison of texts. What is
much more difficult to find is thematic analyses of constitutional systems which
explain and evaluate such texts.
Given the complexity of constitutional systems and the time constraints faced in
organising courses, it may not prove practical to compare entire constitutional sys-
tems. However, comparative discussion can be very illuminating in regard to partic-
ular constitutional features. For example, it may be useful to consider to what degree
specified constitutions display the characteristics of a federal system by comparing
the respective provisions relating to the distribution of competences, law-making
capacity, and tax-raising powers. The constitutional role of the courts in relation to
constitutional review is another specific aspect which might be compared.
For teachers and students of such courses the purposes of comparative con-
stitutional law are fairly clear, and reflect the purposes of any comparative law
course. These include gaining insight into other constitutional systems and the
nature of the societies in question, and also reflecting on one’s own constitution
in light of comparative experience.
Comparative law offers the law student a whole new dimension: from it he can learn to
respect the special legal cultures of other people, he will understand his own law better,
he can develop critical standards which might lead to its improvement, and he will learn
how rules of law are conditioned by social facts and what different forms they can take
(Zweigert and Kötz, 1998: 21).
VII. CONCLUDING REMARKS
This collection of essays might be regarded as a response to the paucity of aca-

demic texts which systematically address comparative law issues. The barriers
to teaching a demanding subject have included limitations on the availability of

comparative expertise and lack of appropriate publications. At one level the avail-
ability of web-based sources, books such as this one, and books which address
national constitutions, coupled with the launch of new journals, are essential to
support the wider dissemination of the subject.
In this discussion many important characteristics of comparative constitutional
law have been identified. Indeed, the classic purpose of studying constitutions
from a comparative perspective is to define by comparative examination what is
meant by the term ‘constitution’ in more than one nation and to explore the role
of the constitution in the political process, but the task only partly involves the
identification and understanding of structural characteristics as part of consti-
tutional design. At some level functional parallels will inevitably be encountered
between constitutions. That is because there is a common set of tasks that have to
be performed by all constitutions. At the same time, there has been much cross-
fertilisation and borrowing between constitutions, but the comparatist needs to
interpret any set of national rules in a particular national context. Moreover, in
explaining the task before us we have drawn a crucial distinction between consti-
tutions as texts and constitutionalism, which seeks to gaze beyond the text to the
evaluation of practice according to a range of criteria.
We wish to end the discussion by highlighting an important issue which com-
parative constitutional law will have to address in future—sometimes referred to
as the ‘convergence/divergence’ debate. As with some other areas of comparative
legal study, especially commercial and business law, many of those who study
and write about comparative constitutional law appear to think, or perhaps just
assume, that constitutional law is converging towards certain liberal-democratic
principles, and that this is an inevitable consequence of the globalisation of
democracy and human rights. One can also imagine a system of ‘world consti-
tutionalism’ (indeed some might argue this already exists) based on the same
principles. For example, it is possible to point at one level to cross-currents in
academic thought, particularly as mentioned in the field of the constitutional
‘oughts’ relating to the protection of human rights, encouraged by mass com-
munications and travel, but also, at another political level by the influence of
the United Nations, the Word Bank, and the United States, where there has been
more emphasis on the rather nebulous concept of ‘good governance’ (referred to
above). Our own view is that while certain contemporary global trends do in fact
encourage elements of convergence, and there is plenty of evidence of this taking
place, it does not follow that constitutions will all eventually look the same or
that they should look the same. And of course, when it comes to constitutional
practice strong divergences do remain in the implementation of human rights
principles and other constitutional features. Moreover, globalisation has within
it tendencies which are both conducive and non-conducive to the promotion of
constitutional government. While good governance, the rule of law and judiciali-
sation have become highly prominent objectives of the international community,
participative democracy and social justice, which are also crucial elements of
relatively successful constitutions, are often contradicted by these limited objec-

tives. In addition, political cultures and public law traditions are still very diverse,
and a measure of what Patrick Glenn, in relation to legal traditions generally,
calls ‘sustainable diversity’ (Glenn, 2003) may well be preferable to a bland one-
size-fits-all constitution. This, however, is a problem which hopefully will be
addressed, amongst others, by the readers of this chapter.
The following questions are intended to provide guidance in the use of this chapter
in comparative law teaching.
1. How might the distinction between ‘the text’ and ‘the constitution’ be best
expressed?
2. Is it possible to provide in a constitutional text a definition of the state,
and what purposes might such a definition serve?
3. Consider examples of ‘cross-over’ between public law and private law, and
whether crossing this line involves a different approach being taken to
comparison.
4. With regard to the ‘separation of powers’, are there other ‘powers’ that
should be provided for and included in the ‘counter-balancing’ of
powers?
5. You are asked to design a project to consider the creation of a Constitutional
Court for the (fictitious) Central Asian Republic of Burkhistan. What
would be the main problems you would address in considering this
question? How would comparative constitutional law impact on them?
APPENDIX I: PROJECT
This exercise is intended to give students first hand experience of studying con-
stitutions comparatively. It requires students to look at constitutions in their
original form and interpret the information contained therein in the light of their
knowledge of constitutional principles.
Two contrasting constitutions are selected (see Bibliography and further reading
section for relevant websites):
One from List A: India, Pakistan, People’s Republic of China, Thailand, Malaysia,
Indonesia, South Africa, Nigeria, Brazil.
One from List B: Australia, Canada, France, Italy, Germany, Norway, Sweden.
Cross-references to the constitution of the country in which the subject is being
studied are welcomed, but the two selected constitutions should be the main focus
of the exercise.
There are two tasks:

(1) Decide to what extent each of the chosen constitutions includes a separation
of powers between the executive branch and the judicial branch.
To respond, students will need first to define the ‘separation of powers’ and
then consider the way in which this principle operates within the context of the
selected constitution, with particular emphasis on the safeguards that have been
incorporated. It may be best to concentrate on analysing certain specific aspects
to illustrate the point.
(2) Contrast and evaluate the procedures by which the selected constitutions can
be amended.
Akiba, O (2004) Constitutionalism and Society in Africa (Aldershot, Ashgate).

Allison, JWF (1996) A Continental Distinction in the Common Law (Oxford, Oxford
University Press).
Alston, P (1999) Promoting Human Rights Through Bills of Rights: Comparative Perspectives
Andenas, M (ed) (2000) The Creation and Amendment of Constitutional Norms (London,
British Institute of International and Comparative Law).
Beer, LW (1992) Constitutional Systems in Late Twentieth Century Asia (Seattle, University
of Washington Press).
Bell, J (2002) ‘Comparing Public Law’ in A Harding, and E Örücü (eds), Comparative Law
in the 21st Century (The Hague, Kluwer).
Berggren, N, Karlson, N and Nergelius, J (2000) Why Constitutions Matter (Stockholm, City
University Press).
Botchway, FN (2001) ‘Good Governance: The Old, the New, the Principle and the Elements’
13 Florida Journal of International Law 159.
Boutmy, E (1891) Studies in Constitutional Law: France - England - United States (trans)
EM Dicey, with intro by AV Dicey (London and New York, Macmillan).
Brown, NJ (2002) Constitutions in a Non-constitutional World: Arab Basic Laws and the
Prospects for Accountable Government (New York, State University of New York Press).
Cappelletti, M and Cohen, W (1979) Comparative Constitutional Law: Cases and Materials
(Indianapolis, Bobbs-Merrill).
Cotterrell, R (1984) The Sociology of Law: An Introduction (Butterworths, London).
Duchacek, ID (1973) Power Maps: Comparative Politics of Constitutions (Santa Barbara,
ABC-Clio).
Duguit, L (1970) Law in the Modern State (New York, Fertig).
Ewelukwa, D (1993) A Historical Introduction to the Nigerian Constitution (Awka,
Mekslink).
Fallon, R (2004) The Dynamic Constitution: An Introduction to American Constitutional
Law (Cambridge, Cambridge University Press).
Finer, SE (1974) Comparative Government (Penguin, London).
—— (ed) (1979) Five Constitutions (Brighton, Harvester).
Franklin, DP and Baun, MJ (1994) Political Culture and Constitutionalism: a Comparative

Approach (New York, ME Sharpe).
Gerth, HH and Wright Mills, C (1967) From Max Weber, 6th edn (London, Routledge and
Kegan Paul).
Ginsburg, T (2003) Judicial Review in New Democracies: Constitutional Courts in Asian
Cases (New York, Cambridge University Press).
Glenn, HP (2004) Legal Traditions of the World, 2nd edn (Oxford, Oxford University
Press).
Harden, I (1992) The Contracting State (Buckiingham, Open University Press).
Harding, AJ (2000) ‘Comparative Public Law: a Neglected Discipline?’in ID Edge (ed),
Comparative Law in Global Perspective (New York, Transnational).
—— (2002) ‘Comparative Public Law: Some Lessons from South East Asia’in A Harding
and E Örücü (eds), Comparative Law in the 21st Century (The Hague, London, Kluwer).
—— (2004) ‘The Westminster Model Constitution Overseas: Transplantation, Adaptation
and Development in Commonwealth States’ 4:2 Oxford University Commonwealth Law
Journal 137.
Harlow, C (2002) Accountability in the European Union (Oxford, Oxford University Press).
Harlow, C and Rawlings, R (1997) Law and Administration 2nd edn (London,
Butterworths).
Harvey, J, Morison J, and Shaw, J (2000) ‘Voices, Spaces and Processes in Constitutionalism’
27 Journal of Law and Society 3.
Hassall, G and Saunders, C (2002) Asia-Pacific Constitutional Systems (Cambridge
University Press, Cambridge).
Hatchard, J, Ndulo, M and Slinn, P (2004) Comparative Constitutionalism and Good
Governance in the Commonwealth: an Eastern and Southern African Perspective
Held, D (1995) Democracy and the Global Order: From the Modern State to Cosmopolitan
Governance (Cambridge, Polity Press).
Henkin, L and Rosenthal, L (eds) (1990) Constitutionalism and Rights: The Influence of the
United States Constitution Abroad (New York, Columbia University Press).
Jackson, VC and Tushnet, MV (1999) Comparative Constitutional Law (New York,
Foundation Press).
—— (eds) (2002) Defining the Field of Comparative Constitutional Law (Westport, CT,
Praeger).
Kahn-Freund, O (1974) ‘Uses and Misuses of Comparative Law’ Modern Law Review 1.
Kelsen, H (1961) General Theory of Law and State (New York, Russell and Russell).
Leyland, P (2002) ‘Oppositions and Fragmentations: In Search of a Formula for
Comparative Analysis’ in A Harding and E Örücü (eds), Comparative Law in the 21st
Century (The Hague, London, Kluwer).
—— (2006) ‘Droit Administratif Thai-Style’ Australian Journal of Asian Law (forthcoming).
Loughlin, M (2002) Sword and Scales: An Examination of the Relationship between Law and
Politics (Oxford, Hart Publishing).
—— (2007) The Constitution of the United Kingdom: A Critical Analysis (Oxford, Hart).
Loughlin, RM (1992) Public Law and Political Theory (Oxford, Oxford University Press).
—— (2000) Sword and Scales: An Examination of the Relationship Between Law and Politics
Macdonald, RS and Johnston, DM (comp and ed) (2005) Towards World Constitutionalism
(Leiden, Martinus Nijhoff).
Mattei, U (1998) ‘An Opportunity Not to Be Missed: The Future of Comparative Law in the
United States’ 46 American Journal of Comparative Law 715.
McHugh, JT (2002) Comparative Constitutional Traditions (New York, Peter Lang).
Morison, J and Livingstone, S (1995) Reshaping Public Power: Northern Ireland and the
British Constitutional Crisis (London, Sweet and Maxwell).
Oliver, D (2003) Constitutional Reform in the UK (Oxford, Oxford University Press).
Oloka-Onyango, J (2001) Constitutionalism in Africa: Creating Opportunities, Facing
Challenges (Kampala, Fountain Publishers).
Örücü, E (ed) (2003) Judicial Comparativism in Human Rights Cases (London, UK National
Committee for Comparative Law).
Palmer, G (2002) ‘The Hazards of Making Constitutions: Some Reflections on Comparative
Constitutional Law’ 33 Victoria University Of Wellington Law Review 631.
Pegoraro, L (2001) ‘The Comparative Method and Constitutional Legal Science: New
Trends’ in A Rabello and A Zanotti (eds), Developments in European, Italian and Israeli
Law (Milan, Giuffrè Editore).
Pegoraro, L (1997) ‘Forme di governo, definizioni, classificazioni’ in L Pegoraro and A
Rinella (eds), Semipresidenzialismi, Quarderni Giuridici (Trieste)(Milan, CEDAM).
Pribán, J and Young, J (1999) The Rule of Law in Central Europe: the Reconstruction of
Legality, Constitutionalism and Civil Society in the Post-Communist Countries (Aldershot,
Ashgate).
Sartori, G (1996) Comparative Constitutional Engineering: an Inquiry into Structures,
Incentives and Outcomes, 2nd edn (Basingstoke, Macmillan).
Sidel, M (2002) ‘Analytical Models for Understanding Constitutions and Constitutional
Dialogue in Socialist Transitional States: Re-interpreting Constitutional Dialogue in
Vietnam’ 6:1 Singapore Journal of International and Comparative Law 42.
Sunstein, CR (2001) Designing Democracy: What Constitutions Do (Oxford, Oxford
University Press).
Teitel, R (2004) ‘Comparative Constitutional Law in a Global Age’ 117 Harvard Law Review
2570.
Tushnet, M (1999) ‘The Possibilities of Comparative Constitutional Law’ 108 Yale Law
Journal 1225.
Van Caenegem, W (1995) An Historical Introduction to Western Constitutional Law,
Venter, F (2000) Constitutional Comparison: Japan, Germany, Canada and South Africa as
Constitutional States (Juta, Kluwer).
Vile, M (1976) Politics in the USA (London, Hutchinson).
Walker, N (1996) ‘European Constitutionalism and European Integration’ Public Law 266.
Wheare, KC (1964) Modern Constitutions (Oxford, Oxford University Press).
Wolf-Phillips, LA (1968) Constitutions of Modern States: Selected Texts and Commentary
(London, Praeger).
Websites
Centre for Comparative Constitutional Studies, University of Melbourne
http://www.law.unimelb.edu.au/cccs/
Centre for Comparative Constitutionalism, University of Chicago
http://ccc.uchicago.edu/
Centre for Constitutional Studies and Democratic Development, University of Bologna

http://www.ccsdd.org/
Centre of Democratic Governance, University of Illinois
http://www.csdg.uiuc.edu/
Centre on Democracy, Development and the Rule of Law, Stanford University
http://cddrl.stanford.edu/publications/
International Journal of Constitutional Law
http://icon.oxfordjournals.org/
Journal of Comparative Law
www.thejcl.org/
European Journal of Constitutional Law
http://journals.cambridge.org/action/displayJournal?jid=ECL
International Association of Constitutional Law
http://www.iacl-aidc.org/
Constitutions of the World (and Research Guides)

http://www.ll.georgetown.edu/intl/guides/compcon/print.html
http://www.constitution.org/cons/natlcons.htm
http://www.georgetown.edu/pdba/english.html
http://kclibrary.nhmccd.edu/constitutions-subject.html#t-v\
http://www.findlaw.com/01topics/06constitutional/03forconst/
http://www.uni-wuerzburg.de/law/home.html)
http://www.charter88.org.uk/politics/links/link_cons.html
http://confinder.richmond.edu
http://www.constitution.org/cons/natlcons.htm
http://kclibrary.nhmccd.edu/constitutions-subject.html;
http://www.washlaw.edu/forint/alpha/c/constitutionallaw.htm.
http://www.oceanalaw.com/gateway/main_Catalog.asp.
https://netfiles.uiuc.edu/zelkins/constitutions/links.htm
http://www.venice.coe.int/site/dynamics/N_court_links_ef.asp?L=E
http://www.concourts.net/index.php
15
Comparative Law for International
Criminal Justice
PAUL ROBERTS*
KEY CONCEPTS
International criminal justice, International criminal law, Disciplinary taxon-

omy and conceptual analysis, Comparative legal method, International crim-
inal courts, Institutional design, Legislation and adjudication, Transnational
co-operation in policing and mutual judicial assistance, Legal harmonisa-
tion, The ‘eternal triangle’ of intellectual inquiry
I. INTRODUCTION
T
his chapter’s principal argument can be summarised succinctly.
Comparative law, it will be argued, is capable of making unique and indis-
pensable contributions to the realisation of international criminal justice.
Expressed in such deceptively simple terms, however, neither the significance nor
the complexity of this contention is readily apparent.
Scholars express divergent opinions on the meaning, merits and distinctive
methods of ‘Comparative Law’ as a discipline (see, eg Zweigert and Kötz, 1998;
Ewald, 1995; Legrand, 1996; and Frankenberg, 1985). Perceptions of the value
of Comparative Law for international criminal justice will necessarily be condi-
tioned by the stringency of one’s aspirations for comparative scholarship, and also
(it must follow) by the capacity of Comparative Law’s disciplinary resources—
theoretical, methodological and empirical—to satisfy the expectations placed
upon it. Anybody willing to contemplate a relatively inclusive concept of
Comparative Law will almost inevitably discover more extensive uses for com-
parative legal method in the theory and practice of international criminal justice
than those who insist on more restrictive definitions.
Part I of this chapter investigates the concept and substantive content of
international criminal justice. A flexible approach to disciplinary taxonomy is
* I am grateful to Rob Cryer and to the editors for helpful feedback on previous drafts.
340 Paul Roberts
maintained, in preference to stipulative definitions, by conceptualising a sequence

of ‘concentric circles’ of international criminal justice. The significance of the
events, institutions and practices in question will hopefully become self-evident as
the discussion proceeds. Part II then takes up the chapter’s central proposition, by
exploring six different ways in which Comparative Law’s contributions to inter-
national criminal justice should be regarded, in the aggregate, as both unique and
indispensable. The discussion’s overriding objective is to promote more explicit,
systematic, and methodologically astute recourse to comparative legal method in
the theory and practice of international criminal justice.
II. SEVEN CONCENTRIC CIRCLES OF INTERNATIONAL CRIMINAL JUSTICE
The very idea of international criminal justice is controversial to its core. Georg
Schwarzenberger’s mid-century evaluation is emblematic of the sceptical tradi-
tion:
[I]n the present state of world society international criminal law in any true sense does
not exist ... [T]he real swords of war and justice are still ‘annexed to the Sovereign Power’.
In such a situation an international criminal law that is meant to be applied to the world
powers is a contradiction in terms (Schwarzenberger, 1950: 263 at 295).
Theorists of a Realist persuasion insist that Superpowers, if not all sovereign

states, are de facto above the law. What hope, then, for legality—to say nothing
of justice—within the anarchical world of power politics? Thinkers in the benign
tradition of Immanuel Kant (1970 [1795]) who speak of international justice
and perpetual peace are dismissed as idealistic dreamers. ‘In the real world’ (an
appropriation of the concept of reality that can only be admired for its audac-
ity), international diplomacy essentially involves outwitting foreigners in the
single-minded pursuit of the national interest. This is best achieved by mutually-
advantageous compromise, but ultimately rests on coercion, including, for the
recalcitrant, resort to armed force—that is, less euphemistically, to guns and
bombs. The ‘law’ of these relations is the law of the jungle. And if one still wishes
to speak of justice in such environments, it is the ‘justice’ of Socrates’ interlocutor
Thrasymachus1 or the lesson of the Peloponnesian War transmitted to posterity by
Thucydides:
right, as the world goes, is only in question between equals in power, while the strong
do what they can and the weak suffer what they must (quoted in Reichberg, Syse and
Begby, 2006: 13).
1 In Plato’s dialogue, Thrasymachus bluntly informs Socrates,
in all cities the same thing is just, namely what is good for the ruling authority. This, I take it, is
where the power lies, and the result is, for anyone who looks at it in the right way, that the same
thing is just everywhere—what is good for the stronger (Plato, 2000: 16).
International Criminal Justice 341
Two-and-a-half thousand years later, the Realist school of law and international
relations remains hale and hearty (see Dunne and Schmidt, 2005), predicting a
looming ‘clash of civilizations’ (Huntington, 1996). But developments since the
Berlin Wall came down in 1989 have made it much harder to maintain an unre-
mittingly Schwarzenbergerian scepticism about international penal regulation. To
establish the institutional reality of modern international criminal law, it is only
necessary to point to the remarkable innovations which have occurred over the
last decade-and-a-half in international criminal adjudication. This section will
describe and critically evaluate these unprecedented institutional developments,
having first reviewed some basic conceptual distinctions.
International criminal law is not to be equated with international criminal
justice. This is merely an extrapolation to the international context of a familiar
dichotomy. Institutionally valid (positive) law is patently capable of perpetrat-
ing injustice, sometimes extravagantly. Nazi racial purity laws, depriving Jews
of their property, homes, livelihoods, liberty and ultimately their lives, were in
this sense only an extreme example of a perfectly general phenomenon (Fraser,
2005). Conversely, however, justice is impossible without law—at least in com-
plex modern societies in which legal duties are far from exhausted by simple,
morally-intuitive prohibitions (‘thou shall not kill’; ‘thou shall not steal’, etc).
One can fairly be held responsible (that is, answerable morally or legally) only
for deliberate rule-breaking or culpable neglect of duty through recklessness
or ignorance. For morally-justifiable legal liability, these criteria presuppose
general, prospective, publicised, clear, accessible and determinate criminal pro-
hibitions, allowing citizens to order their conduct and affairs without fear of
arbitrary penalisation. This is the kernel of the demand for justice under the rule
of law.
Taken at its narrowest, ‘international criminal law’ might refer to the corpus
of legal rules defining international crimes and procedures. Understood more
broadly, ‘international criminal law’ might encompass, in addition to positive
legal norms, the institutions—courts, tribunals, treaty regimes, international
organisations, etc—created to implement, apply and develop international crimi-
nal laws. This rules-plus-institutions conception of international criminal law is
frequently encountered in a rapidly expanding scholarly literature (eg Cassese,
2003; and Bantekas and Nash, 2003). A third, very different possibility is to regard
international criminal law—or International Criminal Law (ICrimL)—as a fledg-
ling academic discipline constituted by a distinctive set of norms, institutions,
concepts, ideals, questions, issues, problems and challenges for further scholarly
examination through research, teaching, analysis and critical commentary, and
theoretical reflection. In a similar vein, International Criminal Justice (ICrimJ)
might be regarded as a still broader academic discipline, integrating ICrimL within
an overarching interdisciplinary enterprise also incorporating philosophical, his-
torical, political and international relations, sociological, anthropological and
criminological perspectives. ICrimJ, in this conception, is more methodologically
342 Paul Roberts
diverse and correspondingly less preoccupied with the institutional features of

international criminal law (in either its first or second senses), than ICrimL. These
contrasting approaches in reality overlap and intersect in various complex and
significant ways.2
Beyond these basic conceptual clarifications, there is no settled or agreed defi-
nition of international criminal law, still less of the more emphatically normative
concept of international criminal justice. The following survey begins with the
incontestable core of international criminal justice institutions and works out,
through a sequence of concentric and interactive jurisdictional circles, to the pro-
gressively more debateable periphery.
The initial point of departure for any contemporary discussion of international
criminal law must be the International Criminal Court (ICC),3 created by a mul-
tilateral treaty agreed at Rome in 1998 (see Cassese, Gaeta and Jones, 2002). The
ICC became fully operational on 1 July 2002, having secured the requisite 60 rati-
fications.4 By November 2005 there were 100 fully-ratified States Parties, although
significant absentees still include China, Russia and the United States—all of
which, of course, enjoy permanent vetoes on the United Nations Security Council,
underwritten by irresistible economic leverage, diplomatic influence, and military
might. The ICC is invested with, exclusively prospective,5 jurisdiction over four
groups of substantive crimes: genocide, crimes against humanity, war crimes and
the ‘crime of aggression’ (unjustified resort to armed conflict).6 Under Article 12
of its Rome Statute, the ICC’s jurisdiction is essentially7 limited to international
crimes committed on the territory of a State Party or by one of its nationals.
In conjunction with Article 98, this limitation allows countries which remain
opposed to the ICC—notably the United States (see Dietz, 2004; and Wedgwood,
2001)—to extort agreements from individual ICC members promising never
to surrender the non-signatory’s nationals to the ICC. Though it is sometimes
referred to colloquially as the ‘World Court’, the scope of the ICC’s jurisdiction is
therefore plainly less than globally comprehensive.
At the heart of the ICC’s institutional structure is the ‘principle of complemen-
tarity’. It is not envisaged that every jurisdictionally competent allegation of inter-
national criminality, including even genocide, will automatically be referred to the
ICC after July 2002. Instead, the ICC is intended to assert jurisdiction ‘over the
most serious crimes of concern to the international community as a whole’ in a
2 One form of intersection worth emphasising is the potential for ICrimL and ICrimJ, qua aca-
demic disciplines, to influence the design, implementation and future prospects of international
criminal law and justice in their normative and institutional manifestations. That is to say, scholarly
discourse already permeates the theory and practice of international criminal justice.
3 See www.icc-cpi.int/.
4 ICC Statute, Art 126.
6 ICC Statute, Arts 5–8.
7 In addition, the United Nations Security Council may refer situations to the ICC involving non-
Party States: ICC Statute Arts 12(2) and 13(b).

manner which is ‘complementary to national criminal jurisdictions’.8 In practice,

this means that the ICC will normally allow national criminal processes to take
their course, unless the ICC Prosecutor judges that the relevant state ‘is unwill-
ing or unable genuinely to carry out the ... prosecution’.9 In accordance with the
principle of complementarity, therefore, domestic criminal courts are intended to
be the primary agents of international criminal justice, with the ICC as supervisor
and ultimate failsafe.
Although the ICC has yet to complete its first fully-fledged criminal trial,
substantial preliminary steps have been taken to make inquiries, gather evidence,
and execute arrest warrants.10 Article 13 of the ICC Statute provides that ‘a situa-
tion’ suspected of involving crimes within the ICC’s jurisdiction may be referred
to the Prosecutor by a State Party or by the United Nations Security Council, or
alternatively, may be investigated on the Prosecutor’s own initiative. Four inves-
tigations of suspicious ‘situations’ are currently on-going, concerning civil war
in the Democratic Republic of the Congo (DRC), the guerrilla activities of the
‘Lord’s Resistance Army’ in Uganda, allegations of genocide in the Darfur region
of Sudan, and war crimes in the Central African Republic.
The ICC is the focus of future hopes and aspirations for international criminal
justice. A second circle of institutional activity, with a more tangible record of on-
going achievement, comprises two ad hoc criminal tribunals created by the United
Nations Security Council. Having previously been employed to authorise military
intervention in Korea, Kuwait/Iraq and Somalia, the Security Council’s Chapter
VII enforcement powers were applied to the novel task of establishing judicial
organs.11 The International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia Since 1999—normally abbreviated to the
International Criminal Tribunal for the Former Yugoslavia (ICTY)12—was cre-
ated in 1993 to deal with allegations of war crimes and crimes against humanity
(including ‘ethnic cleansing’) arising from the break-up of Yugoslavia and the
descent of the Balkans into a series of vicious civil wars in the early 1990s (see
Bass, 2000: chapter 6). With this precedent established, the Security Council’s
second juridical experiment followed promptly in 1994. The International
Criminal Tribunal for Rwanda (ICTR),13 situated in Arusha, Tanzania, was
the United Nations’ belated response to genocide in the Great Lakes region of
Africa. Certainly 800,000 people, perhaps a million or more, were systematically
slaughtered in just 100 days following the premeditated assassination of Rwandan
President Juvenal Habyarimana in April 1994. Civil strife in Rwanda has a long,
8 ICC Statute, Preamble.

10 Report on the Activities of the Court ICC-ASP/4/16.
11 Ch VII concerns ‘action with respect to threats to the peace, breaches of the peace, and acts of
aggression’.
12 See www.un.org/icty/.
13 See www.ictr.org/.
344 Paul Roberts
colonial and post-colonial history, but the immediate conflagration targeted

members of the minority Tutsi population, who were hunted out and brutally
massacred (along with moderate Hutu sympathisers) by members of the Hutu
majority. Unarmed Tutsi civilians—men, women, children and babies—were
murdered on sight in bestial orgies of violence by machete-wielding gangs of their
erstwhile Hutu neighbours. Lieutenant-General Roméo Dallaire, the commander
of the small UN peacekeeping force stationed in Kigali during 1993–94, declared
that in the midst of the Rwandan genocide,
I shook hands with the devil. I have seen him, I have smelled him and I have touched
him. I know the devil exists ... We were not in a war of victors and vanquished. We were
in the middle of a slaughterhouse (Dallaire, 2004: xviii, 281).
Both the ICTY and the ICTR were tasked with exacting mandates. The immedi-
ate objective of bringing to justice those responsible for genocide, war crimes and
crimes against humanity was conceived as part of an all-encompassing interna-
tional agenda, extending to: establishing an unassailable historical record of events;
satisfying victims’ grievances (which if left to fester unattended might easily precip-
itate self-help revenge-taking and further cycles of inter-ethnic conflict); deterring
future international criminality by clearly signalling an end to the ‘culture of impu-
nity’ (cf Bassiouni, 2000) by which the worst international criminals—especially
deposed heads of state and other political and military leaders—have generally
eluded legal accountability without having to answer for their crimes; promoting
reconciliation between former adversaries; facilitating national political, social and
economic reconstruction in war-torn regions; instilling respect for human rights
and the rule of law; and helping to create the conditions for stable democratic
government—all with the (additional) ulterior purpose of contributing to the res-
toration and maintenance of international peace and security. The extent to which
such broadly-drawn, ambitious and potentially conflicting objectives have been,
or ever could be, accomplished by international criminal trials of any description
seems destined to be a topic of interminable debate and controversy.
More tangible achievements can be registered in the shorter-term. By 31 July
2005,14 the ICTY had completed 20 trials involving 39 accused, 36 of whom were
convicted on at least some counts whilst the remaining three were acquitted. A
further 18 accused had pleaded guilty. Thirty four trials, many of them involving
multiple defendants, remained on foot, and a further 50 indicted accused were
awaiting trial. The ICTY now has three separate Trial Chambers, allowing six
trials to be conducted simultaneously (each Chamber running two trials apiece,
alternating between morning and afternoon sessions). The scale of these judicial
operations, which are without precedent in the history of international criminal
adjudication, helps to contextualise in a more favourable light the ICTY’s well-
publicised embarrassment of presiding over the abortive prosecution of former
14 See the ICTY’s Twelfth Annual Report to the United Nations General Assembly and Security
Council, A/60/267—S/2005/532, 17 August 2005.

Yugoslavian president Slobodan Milosevic.15 Insisting on representing himself in

court, Milosevic took every opportunity to disrupt proceedings by denouncing his
prosecution as a show trial and attempting to subpoena Western politicians—Bill
Clinton16 and Tony Blair17 amongst them—as witnesses for the defence. The trial
dragged on for over four years and ran to almost 50,000 pages of transcript, until,
in progressively failing health, Milosevic’s heart finally gave out and (according
to preferred penal theology) he either prematurely reaped his just reward or in
extremis frustrated justice.18 It speaks volumes for the international community’s
sincerity of purpose that Milosevic, as a former head of state, was put on trial
at all, but neither advocates nor critics of international criminal trials can be
satisfied with what ultimately transpired. Another long-standing bone of conten-
tion concerns the obstructive attitude of certain successor Balkan states towards
tracking down and surrendering to the Tribunal fugitives believed to be located
in their territories. Although co-operation with the ICTY has, generally speaking,
improved over time, several notorious indictees remain at large, apparently with
the connivance of governmental authorities. As Judge Theodor Meron, former
President of the ICTY, summarised the position in his 2005 Annual Report:
The failure to arrest high-level accused, such as [former Republika Srpska President]
Radovan Karadžic, [Bosnian Serb General] Ratko Mladic and [Croatian Commander]
Ante Gotovina, despite several resolutions of the Security Council, is of grave concern
for the proper administration of justice. Repeated appeals to the Governments and
entities in the region and the international community to pursue and arrest them have
so far not borne results ... To achieve the Tribunal’s mandate of contributing to the
maintenance of peace and stability in the region it is imperative that those fugitives are
given their day in court in The Hague ... Ten years after the genocide in Srebrenica, the
Tribunal is continuing in its quest for justice, truth, peace and reconciliation.19
The ICTR, meanwhile, began its first trial in January 1997, and by June 2006
had rendered 22 judgments relating to 28 accused. These proceedings produced
25 convictions and three acquittals. Jean Kambanda, former Prime Minister of
Rwanda, claims the dubious distinction of being the first statesman ever to be
convicted (he pleaded guilty to genocide)20 of the ultimate international crime
15 Prosecutor v Slobodan Milosevic (IT–02–54).

16 ‘“If someone commits a horrific murder in Britain, do you attribute it to Tony Blair?” Slobodan
Milosevic shamelessly used his war crimes tribunal this week to blame everyone but himself ’: P
Sherwell, Sunday Telegraph, 17 February 2002.
17 See Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and
Gerhard Schröder, ICTY Trial Chamber, 9 December 2005.

18 Judge Robinson’s summation is exquisitely laconic:
‘The Chamber has been advised of the death of the accused, Slobodan Milosevic. We express our
regret at his passing. We also regret that his untimely death has deprived not only him but indeed
all interested parties of a judgement upon the allegations in the indictment. His death terminates
these proceedings’ (Transcript p 49191, 14 March 2006).
19 See the ICTY’s Twelfth Annual Report to the United Nations General Assembly and Security
Council, A/60/267—S/2005/532, 17 August 2005, paras 182, 257, 258.

20 V Brittain, ‘Rwanda’s former PM admits role in Genocide’, The Guardian, 2 May 1998.
346 Paul Roberts
(cf Friedrichs, 2000). In June 2006 the ICTR was conducting a further 11 on-
going trials involving 27 defendants. Another 14 accused were awaiting trial in
the Tribunal’s detention facility in Arusha, and a further 18 indictees remained at
large. This modest total of indicted individuals pales in comparison, however, to
the overall numbers of perpetrators and collaborators in the Rwandan genocide.
Over 130,000 suspects were initially detained, and many more—perhaps as many
as a million people—were directly implicated in one way or another. Genocide in
Rwanda was experienced alike by victims, perpetrators and bystanders as a viru-
lent cultural virus which saturated the entire social fabric and infected every pore
of the body politic. The sheer impossibility of prosecuting every perpetrator, at
the ICTR or anywhere else (Rwanda’s own depleted criminal justice infrastructure
was manifestly unequal to the task), posed acute problems of selection. Jurists and
administrators were forced to improvise imaginative alternatives to traditional
penal process in their endeavour to promote justice, peace, security and reconcili-
ation without backsliding into impunity (Drumbl, 2000a).21
The ICTR’s general strategy has been to ‘concentrate on the prosecution of
those persons who bear the greatest responsibility for the tragic events which
occurred in Rwanda’,22 whilst diverting lesser offenders to national prosecutions
or indigenous ‘gacaca’ mediation processes. This bifurcated approach, reserving
international prosecution for the very worst or most high-profile offenders, has
become a familiar pattern in international criminal adjudication.
The ad hoc Tribunals were never intended to be permanent institutions. Both
the ICTY and the ICTR have formulated ‘completion strategies’, according to
which all trials should be finalised by 2008, and appeal hearings (which are plenti-
ful in these cases) concluded by 2010. By this time, outstanding work should have
been transferred to local courts and prosecutors, and the ICC will henceforth be
on-hand to assert jurisdiction if fresh atrocities should occur. A prominent place
in the unfolding history of international criminal justice is already assured to the
ad hoc Tribunals. Confounding Schwarzenbergerian sceptics, they have broken
the spell of perpetrator-impunity in the most emphatic terms, by demonstrat-
ing that there is something that can be done by the international community
in response to genocide, crimes against humanity and other massive, state-
sponsored violations of fundamental human rights during civil wars or by tyran-
nical governments abusing their own people. Almost irrespective of the local
merits and scope for replication of the Tribunals’ activities, the practical enforce-
ment of international criminal law can no longer be dismissed peremptorily, as
the fantasy of idealists or logical self-contradiction.
As a template for the ICC, bequeathing personnel and experience as well as doc-
trinal innovation, the legacy of the ad hoc Tribunals will be subsumed into the core
of international criminal justice. In the meantime, the ICTY and the ICTR have
21 Cf D Gough, ‘Mass jail release haunts Rwanda’, The Guardian, 19 October 1998.
22 ICTR The Tribunal at a Glance—Fact Sheet No 1, para 15. See www.ictr.org/.
stimulated the proliferation of a third concentric circle of international criminal

tribunals, known as ‘internationalised’ or ‘hybrid’ courts (Romano, Nollkaemper
and Kleffner, 2004). Whilst precise legal arrangements differ, these tribunals share
the characteristic of being neither fully international, like the ICC and the ad
hoc Tribunals, nor exclusively domestic in character. Instead, they blend features
of municipal and international criminal proceedings in more or less unique
combinations, tailored to particular circumstances. At one end of the spectrum,
lobbying by international organisations might have been instrumental in creat-
ing a tribunal, whilst on-going international support—financial, administrative,
legal, political and military—may condition its institutional design, operational
protocols and future prospects. The Special Court for Sierra Leone, fashioned by
treaty between the government of Sierra Leone and the United Nations, fits this
pattern of major international sponsorship (see Cryer, 2001). Similar partnerships
between post-conflict states and the international community have precipitated
internationalised criminal tribunals in East Timor, Kosovo and Cambodia as an
integral part of national processes of victim reparation, social reconciliation and
political reconstruction. Towards the other end of the spectrum are predomi-
nantly national legal proceedings underpinned by international support and good
will. For example, the Iraqi High Tribunal, established in the wake of the 2003
Gulf War to try Saddam Hussein and his henchmen for atrocities perpetrated
against the Iraqi people, is, strictly speaking, a creature of Iraqi domestic law, but
clearly would never have existed without United States-led military intervention
to topple Saddam’s Ba’athist regime and subsequent facilitation by the occupation
Iraqi Provisional Authority. Indeed, it has been said that the
Tribunal’s origins doom its legitimacy, not merely because it appears to be yet another
instance of the Hegemon applying to others what it refuses to apply to itself ... but
because it suits US policy goals—including to undermine the ICC (Alvarez, 2004: 319
at 326–7).
The Scottish criminal court temporarily convened in the Netherlands to try two
Libyan nationals suspected of having planted the terrorist bomb which brought
down Pam Am Flight 103 over Lockerbie in 1988 (Murphy, 2001), is another
illustration of the exotic legal combinations to be found at the domestic end of
modern ‘internationalised’ criminal tribunals.23
A fourth ‘concentric circle’ of international criminal justice strains the geomet-
ric metaphor, because it takes us back in time as well as further from the core. The
International Military Tribunal (IMT) ‘for the just and prompt trial and punish-
ment of the major war criminals of the European Axis’,24 located in Nuremberg
during 1945–46, is often regarded as the fons et origo of modern international
23 For international interest in the Lockerbie trial, see eg Security Council Res 1192/98, welcoming
the initiative and calling on all United Nations members to co-operate with it.
24 IMT (London) Charter, Art 1. Materials relating to the IMT, including a full trial transcript, can
be found on Yale Law School’s excellent Avalon Project website: www.yale.edu/lawweb/avalon/imt/imt.

htm.
348 Paul Roberts
criminal proceedings.25 It set a remarkable historical precedent, in subjecting to

formal trial and judicial punishment—rather than summary execution, as many
contemporaries would have preferred—the most prominent politicians, military
leaders, ideologues and civil administrators in Hitler’s Nazi government, includ-
ing Reichsmarschall Hermann Goering. The Nuremberg trial in total produced
18 convictions of individuals,26 three acquittals and 12 sentences of death (which
Goering sensationally pre-empted by committing suicide hours before his planned
execution: see Persico, 1994). The iconic significance of the ‘legacy of Nuremberg’
is still hotly debated (for contrasting views, see eg Taylor, 1992; Eckhardt, 1996;
Falk, 1999; King, 1998; and Washington, 2003). Passing over more detailed criti-
cisms and objections, there is broad agreement that the IMT did not conduct a
truly international criminal process. As a joint-venture of the four principal
victorious powers (Britain, France, Russia and the United States), it was more in
the nature of military justice imposed by the Allies as the de facto government of
occupied Germany (see Cassese, 2003: 332–3). The ‘Nuremberg Principles’, which
were subsequently endorsed by a fledgling United Nations,27 have nonetheless
continued to exert a major influence on the development of international crimi-
nal law. Nuremberg pioneered the notion of individual criminal responsibility
for international crimes which has subsequently been consolidated by the ad hoc
Tribunals and the ICC.
Our fifth concentric circle might be termed ‘transnational criminal law’ (cf
Boister, 2003). It embraces various forms of international co-operation, co-
ordination and mutual judicial assistance in penal affairs, sometimes involving
relatively modest bilateral agreements between two or more states but often
founded upon major multilateral treaties or ‘conventions’ under the sponsor-
ship of the United Nations or some other competent international organisation
such as the Council of Europe (CoE).28 Paradigmatic are the so-called ‘suppres-
sion conventions’: international agreements by which signatory states promise
to enact national criminal laws to combat particular conduct of international
concern. Suppression conventions have addressed, amongst other topics, torture,
apartheid, drug-trafficking, environmental degradation, and international terror-
ism (see Bantekas and Nash, 2003: chapters 3–5; and Sunga, 1997: chapters 2–3).
Transnational criminal law, broadly conceived, also includes extradition agree-
ments, transborder mutual assistance in criminal investigations and prosecu-
tions, and even state-sponsored abductions of suspects on foreign soil and other,
more prosaic types of informal co-operation between national police forces,
25 Much less is said, or even remembered, about the International Military Tribunal for the Far East,
established in Tokyo between 1946 and 1948 to try alleged Japanese war criminals (Clark, 1997). For
various legal and political reasons, the Tokyo Tribunal is not regarded as a particularly happy prec-
edent for international criminal proceedings.
26 Several corporate entities were also prosecuted, including, the SS, the Gestapo and the Leadership
Corps of the Nazi Party, in order to facilitate subsequent prosecutions of their members.
27 United Nations General Assembly Res 95(I), 11 December 1946.
28 See www.coe.int/.
prosecutors and judiciaries. These arrangements do not, by and large, impose

legal duties directly on ordinary citizens or public officials, and for this reason
some commentators would exclude them from the core concept of international
criminal law (eg Broomhall, 2004: chapter 1). It can be objected that transnational
criminal law is not genuinely supra-national in conception or effect. We may
grant that suppression conventions technically specify ‘crimes under international
law’ rather than international crimes stricto sensu. However, this is no reason to
downplay the obvious affinities between transnational criminal law and other
norms of international criminal justice in constructing a reasonably comprehen-
sive and inclusive disciplinary taxonomy.
Until recent times, the application of international criminal law was virtually
the exclusive preserve of national criminal courts and military tribunals. This is a
sixth concentric circle of international criminal process. Post-Second World War
trials of Nazis and traitorous collaborators were mostly conducted by national
courts (Marschik, 1997), and with some notable milestones along the way—
including the trial of the Holocaust’s senior bureaucrat Adolf Eichmann by the
Israeli courts in 1961 (Douglas, 2001: Part 2; and Arendt, 1994 [1963])—national
prosecutions have continued right up to the present day (Hirsch, 2001).29 Erstwhile
Latin American premiers, such as ex-Chilean dictator Pinochet (Webber, 1999),
have also found themselves arraigned before national courts on charges of torture,
murder, ‘disappearances’ and other systematic human rights violations. Moreover,
even where fully international or hybridised criminal tribunals are established to
prosecute the worst offenders, the bulk of the relevant caseload is always carried
by domestic criminal courts and military courts martial. This was the experience
in post-war Germany, in the Balkans and in Rwanda, and it will continue to be
the pattern under the ICC’s jurisdictional regime of complementarity. Treating
national criminal proceedings as the sixth ‘concentric circle’ of international
criminal justice might therefore be regarded as inappropriately marginalising,
since national courts arguably populate the core.
The seventh, and final, ‘concentric circle’ of international criminal justice is
more aptly conceptualised as a chord running through the entire enterprise.
For it comprises scholars’ and researchers’ contributions to the broader ‘ICrimJ’
project, conceived programmatically as an emerging new academic discipline. In
a nutshell, ICrimJ epitomises interdisciplinarity. Some of its specifically legal and
jurisprudential complexities have already been touched upon, and will be elabo-
rated further in Part II, where the significance of socio-legal and criminological
contributions to ICrimJ will also become apparent. There is enormous scope for
Criminology to enrich the theory and practice of ICrimJ (Roberts and McMillan,
2003; and Drumbl, 2003). Criminology has developed the methodological tools
for investigating both the nature of international ‘crime’ and the variety of
29 See also D Fuchs: ‘Nazi war criminal escapes Costa Brava police search’, The Guardian 17 October
2005; and I Traynor, ‘Nazi sentenced to 10 years in Germany’s “Last war crimes trial”’, The Guardian
21 May 1999.
350 Paul Roberts
informal and official responses it provokes. Formal trial and punishment on the
traditional model is only one amongst several potential responses to international
criminality, which may also include—for example—‘restorative justice’ processes
and indigenous dispute resolution (Drumbl, 2000b; and Alvarez, 1999).
The overlapping disciplines of Politics and International Relations (IR) frame
the immediate geo-political and strategic context for concrete developments in
international criminal justice, and thus also naturally figured in the preceding
discussion. Since armed conflict has typically been the precursor, as well as the
subject-matter, of international criminal trials, a role for sociologies of the military,
and of waging war and making peace, is also implied by this disciplinary taxonomy.
History (for these purposes incorporating Holocaust Studies) must inevitably
infuse a subject on which the Second World War and the bloodstained annals of
aggressive war, genocide and state-sponsored atrocity cast a long shadow.
Last but not least, Philosophy is always indispensable to serious theoretical
enquiry, importing refined generic skills of logical reasoning, taxonomy and con-
ceptual analysis, supplemented by more substantive ethical reflections on justice,
authority, government, retribution, the nature of evil, wrongdoing, rights, human
dignity, personal autonomy, punishment, responsibility, and moral culpability.
These topics figure prominently amongst other pressing issues and questions
demanding practical answers from the advocates, architects and practitioners of
international criminal justice.
III. COMPARATIVE LAW’S UNIQUE AND INDISPENSABLE CONTRIBUTIONS
Having developed a sophisticated conceptualisation of international criminal

justice, we may now explore Comparative Law’s distinctive contributions, organ-
ised under six broad headings: institutional design; legislation; jurisprudence;
operational policy-making and mutual judicial assistance; legal harmonisation;
and research, analysis and critical evaluation. Since conceptual definition is para-
mount, not every example will be regarded by every reader as legitimate. Different
examples might have been substituted, and those actually chosen could have
been developed at much greater length. This flexible approach is calculated to
persuade even conceptual sticklers that Comparative Law, however conservatively
conceived, is capable of making some unique and essential contributions to inter-
national criminal justice, however narrowly defined. Readers who share my own
preference for more inclusive conceptualisations should find that Comparative
Law has much more to offer than conceptual minimalists perceive.
Designing the Institutional Frameworks of International Criminal Law
Modern domestic legal systems are grown, rather than deliberately made, norma-
tive orders (Allen, 1996: Part I), that is, slowly sedimented products of history,
politics, jurisprudence and culture. International criminal tribunals, by contrast,
have no institutional history, politics, culture or legal tradition to call their own,
at least until they become fully operational. International legal orders are made,
not grown. Everything about them is either borrowed or tailor-made. For their
planners and architects, international criminal tribunals present the unique chal-
lenge that their institutions and foundational legal instruments must be designed
essentially from scratch. This, however, does not necessarily imply that the draw-
ing board is completely blank. We have already seen that the United Nations ad
hoc Tribunals supplied an institutional model which was promptly adopted and
adapted by various internationalised tribunals, and by the ICC. Historically, how-
ever, the primary source of ideas and inspiration for institutional and procedural
models has been national criminal justice systems. In an ideal world, the architects
of international criminal tribunals would draw upon the best examples of domes-
tic institutional design from around the globe, suitably modified for the special-
ist task in hand. And this, of course, is where Comparative Law should make its
mark, not as the fountain of all wisdom, but as an indispensable contributor to an
interdisciplinary conversation (also see Delmas-Marty, 2003).
At least since Nuremberg, questions of basic institutional design have been
conceptualised in terms of the distinction between ‘adversarial’ and ‘inquisito-
rial’ procedures. Notwithstanding the problematic nature of that dichotomy (see
Jackson, 2005; and Nijboer, 1993), it remains a useful starting point for analysis.
Describing negotiations over the drafting of the IMT’s Charter, Telford Taylor
remarks that
[p]erhaps the most intractable problem was the technical one of stating the respective
functions and responsibilities of the Tribunal and the prosecution—a problem caused
by the differences between Continental and Anglo-American criminal procedures
(Taylor, 1992: 63).
Chief Prosecutor Robert H. Jackson apparently shared this assessment:

From the very beginning it has been apparent that our greatest problem is how to rec-
oncile two very different systems of procedure (quoted ibid: 64).
In the event, the Russians and the French were willing to let adversarial prefer-
ences prevail in order to placate the Americans, and ‘differences were resolved by
compromises which were crude but proved workable’ (Taylor, ibid). Yet there was
plainly much ignorance and suspicion of unfamiliar trial procedures on all sides.
Even Taylor’s authoritative memoir, which is careful to acknowledge differences
within as well as between the two procedural families, makes generalisations about
‘Anglo-American practice’, which look suspect through English eyes.30 Greater
30 According to Taylor, for example, it was ‘contrary to Anglo-American practice’ that defendants
before the IMT ‘could also make an unsworn statement at the end of the trial’. However, criminal
defendants in England and Wales did not generally become competent witnesses in their own defence
until 1898, and the accused’s right to make an unsworn statement from the dock was maintained
throughout most of the 20th century, until it was finally abolished by the Criminal Justice Act 1988
(primarily to stop bombers and assassins of the Irish Republican Army (IRA) from using their crimi-
nal trial as a platform for making political speeches and denouncing the authority of British courts).
352 Paul Roberts
comparative insight would help to distinguish those features of national criminal

proceedings which are regarded as essential and more or less non-negotiable,
from relatively ephemeral details attributable largely to historical accident or
whimsical cultural preference. This exercise, if undertaken in a spirit of candour
and co-operation, might ease the path to more acceptable compromises in the
design of international criminal procedures.
In more recent history, the ICTY, ICTR and ICC have all combined charac-
teristic features of adversarial and inquisitorial process in novel and imaginative
ways. Very roughly speaking, United Nations-sponsored international criminal
trials have been modelled on common law adversarial proceedings (Cassese, 2003:
chapter 20), whereas the pre-trial phases of international criminal investigations
and prosecutions have drawn substantially on the continental inquisitorial tradi-
tion. Comparative understanding of how these processes work in their native set-
tings, and their capacity to withstand extrapolation to the international context,
is surely no less important for successful institutional design than expertise in
international law, diplomacy or international relations.
The inquisitorial caste of pre-trial international criminal process is personified
in the figure of the prosecutor. In the ICC system, the Prosecutor ‘may initiate
investigations proprio motu on the basis of information on crimes within the
jurisdiction of the Court’, and to this end,
may seek additional information from States, organs of the United Nations, intergovern-
mental or non-governmental organizations, or other reliable sources ... and may receive
written or oral testimony at the seat of the Court.31
The ICC Prosecutor must, however, obtain the authorisation of the Court’s Pre-
Trial Chamber in order to proceed with an investigation and prosecution.32 This
institutional arrangement is modelled directly on continental criminal procedure
codes. It is in marked contrast to the rigid separation between English police and
prosecutors enshrined in the Prosecution of Offences Act 1985, which has dictated
a somewhat estranged relationship between police investigators and the Crown
Prosecution Service in England and Wales.33 At the ICTY and ICTR, a succession
of talented, energetic and personally well-respected prosecutors (Arbour, 1997;
and Goldstone, 2000) has been instrumental in implementing the Tribunals’ man-
date (to the extent that it has been implemented) by doggedly pursuing fugitive
indictees, amassing evidence of international crimes, preparing cases for trial, and
cajoling or embarrassing reluctant national governments to fulfil their interna-
tional obligations by complying with the Tribunal’s requests for assistance.
31 ICC Statute, Art 15(1)–(2).

32 ICC Statute, Art 15(3).
33 Recent developments, culminating in a transfer of the initial power to charge suspects form police
to prosecutors under the Criminal Justice Act 2003, are in the process of reducing this institutional dis-
tance (Brownlee, 2004). Whether closer contact will facilitate effective prosecution, or damage Crown
prosecutors’ vaunted ‘independence’, remains to be seen.
The tendency of international criminal trial proceedings to conform to a

broadly adversarial format, with party-orchestrated presentation of evidence and
oral examination of witnesses, is attributable to several factors. Looking beyond
the United States’ disproportionate influence in all of these initiatives, the global
human rights movement has left its mark. International human rights instru-
ments like the United Nations’ Universal Declaration of Human Rights (UDHR)
1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966
contain various criminal process-related provisions—including the ‘right to a fair
trial’, which is elaborated in considerable detail.34 Global human rights instru-
ments have been reinforced by regional organisations and treaties, such as the
European Convention on Human Rights (ECHR). In extending its activities into
the sponsorship of international criminal trials, the United Nations has naturally
been at pains to preserve its long-standing commitment to human rights.35 The
ICTY, ICTR and ICC all consequently reproduce within their respective statutes
a full suite of rights for suspects and the accused, including faithful translations
of the ICCPR’s Article 14 right to a fair trial.36 Thus, every person facing criminal
charges must be allowed to conduct their own defence, with the assistance of
counsel if they prefer, and their entitlements shall include the right
to examine, or have examined, the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him.37
Anglo-American style examination-in-chief and cross-examination of party-

summoned witnesses are clearly contemplated, in preference to the dossier-based,
judicially-directed factual inquiry characteristic of continental criminal trials. Yet
these generalisations barely scratch the surface of some complex and imperfectly
digested legal issues. Comparative investigation would reveal that oral examina-
tion of witnesses by the parties has been embraced enthusiastically (albeit not
always entirely successfully) in several historically ‘inquisitorial’ legal systems (see
Weigend, 2003; Siegel, 2006; and Vogler, 2005), at the same time as classically
adversarial exclusionary rules of evidence have been relaxed (Roberts, 2006) and
judges have assumed more directive case-management functions in common law
jurisdictions (Duff, 2004). Traditional procedural dichotomies have shifted and
blurred. Nor is JH Wigmore’s notorious boosterism for cross-examination as ‘the
greatest legal engine ever invented for the discovery of truth’ (Wigmore, 1974: vol
5, para 1367) today unequivocally endorsed in the common law’s heartlands. Even
if cross-examination worked flawlessly in England and Wales or New York, which
many critics vehemently dispute (see Roberts and Zuckerman, 2004: 215–21),
it would be foolhardy to assume that it can be replicated with equal success in
34 UDHR, Arts 10 and 11; ICCPR, Art 14. For general discussion, see Bassiouni (1993).
35 The Preamble to the UN Charter reaffirms ‘faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of nations large and small’.
36 ICTY Statute, Art 21; ICTR Statute, Art 20; and ICC Statute, Arts 66 and 67.
37 ICCPR, Art 14(3)(e).
354 Paul Roberts
the multi-lingual, culturally diverse international courtrooms of The Hague or

Arusha.38 Microscopic examination of proof-taking and evidence-testing at the
domestic level is required to identify the comparative strengths and weaknesses
of procedural mechanisms, and to assess their capacity for extrapolation to the
international context.
Comparative Law generates both ‘negative’ and ‘positive’ contributions to the
basic design of international criminal justice institutions and procedures, poten-
tially building into an indispensable reference-library of ‘do’s and don’t’s’. On the
negative side, comparative analysis should help to dispel all-too-familiar carica-
tures of domestic legal systems as inflexibly static, exclusively parochial, ciphers of
national mores. Ignorance of this kind is a crutch for nationalistic prejudice and
an obstacle to successful international co-operation in penal affairs. Viewed more
positively, Comparative Law supplies invaluable models, experience and juridical
resources for robust institution-building at the international level.
Legislating Substantive International Criminal Law
International criminal law is sui generis, and one must avoid facile analogies to
domestic criminal litigation (cf Tallgren, 2002: 561 at 572). This unique supra-
national enterprise should nonetheless be informed and enriched by comparative
studies of municipal criminal law and process. The task of legislating substantive
international criminal law exemplifies this duality.
Consider the four ‘core international crimes’, as specified by the ICC Statute.
They comprise, first, genocide, which means (in summary) killing, seriously
harming or interfering with human reproduction or childrearing ‘committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such’.39 Secondly, ‘crimes against humanity’ involve murder, extermi-
nation, enslavement, deportation, unlawful imprisonment, torture, rape, sexual
slavery, discriminatory persecution, enforced disappearances, apartheid, or ‘other
inhumane acts of a similar character’ when ‘committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the
attack’.40 Thirdly, ‘war crimes’ are specified in elaborate detail. They include generic
criminal violations such as murder, rape and assault; breaches of military ethics
like hostage-taking, mistreating surrendered combatants or POWs, or declaring
‘no quarter’; and discrete prohibitions of illegal weaponry (eg poison gas or dum-
dum bullets) and forbidden tactics (eg bombardment of non-military targets or
deployment of ‘human shields’). Finally, fourth, the ‘crime of aggression’ concerns
unjustified resort to warfare, in unprovoked armed attack or military conquest,
38 Cross-examination of Goering at the Nuremberg IMT backfired for somewhat different reasons:
Jackson’s preparation was flawed and the former Reichsmarschall was adept at political point-scoring
(Johnson and Hinderaker, 2002).
for example. Aggression violates the cardinal principle of state sovereignty, which
is the legal and political foundation-stone of modern international relations. The
ICC cannot assume jurisdiction over crimes of aggression unless and until the
Assembly of States Parties reaches agreement on the meaning of ‘aggression’,41
however, and this could be a long time coming.
The core crimes derive predominantly from International Humanitarian Law
(IHL). Much of their substance is plainly far removed from the everyday concerns
of criminal lawyers in domestic practice. To this extent, ‘ICrimL’ appears to be
exactly what most of its exponents take it to be, a specialised branch of public
international law (PIL). Yet two further considerations bring Comparative Law
firmly back into focus.
First, ICrimL does draw directly on domestic criminal laws, both in its defi-
nitions of generic crimes like murder, rape and assault, and also in its general
principles of criminal liability. Article 30 of the ICC’s Rome Statute, for example,
specifies that
a person shall be criminally responsible and liable for punishment for a crime within
the jurisdiction of the Court only if the material elements are committed with intent
and knowledge
and the meaning of ‘intent’ is further defined. Articles 31 and 32 address such
familiar topics as insanity, intoxication, self-defence, duress, and mistake of fact
or law. Article 25 deals with accomplices, incitement and criminal attempts. Each
of these definitional elements raises points of legislative drafting and underlying
moral rationales on which domestic criminal legislation could shed important light.
Comparative inquiry might ascertain not only points of convergence in national
criminal laws—suggestive of international ‘best practice’ in criminalisation—but
also distinctive domestic innovations potentially worthy of emulation at the inter-
national level. English criminal law, for example, has generated acres of judgments
and commentary on the meaning of mens rea terms such as ‘intention’ (Ashworth,
2006: 174–81; and Simester and Sullivan, 2003: 126–36, 334–8) and ‘knowledge’
(Shute, 2002) which might inform drafting choices in international criminal legisla-
tion. To cap it all, Article 21 of the ICC Statute expressly qualifies ‘general principles
of law derived by the Court from national laws of legal systems of the world’ as a
formal, albeit tertiary,42 source of legal authority in proceedings before the ICC.
Moreover, traffic between international and domestic criminal legislation is a
two-way street. Many States Parties to international treaties are obliged by their
national constitutions to enact enabling legislation to give effect to international
agreements in domestic law.43 Authentic interpretation is obviously essential for
41 ICC Statute, Art 5(2).

42 The ICC’s primary law is the ICC Statute itself (plus ancillary materials), followed by applicable
treaties and custom binding in public international law ‘including the established principles of the
international law of armed conflict’.
43 See, eg the International Criminal Court Act 2001, giving effect in English law to the ICC
Statute.
356 Paul Roberts
faithful transposition. But if international norms are partly derived from the legisla-
tion, jurisprudence and legal commentary produced by a diversity of national legal
cultures and traditions, working knowledge of these domestic origins must surely
be advantageous for any government lawyer or judge attempting to interpret inter-
national legal instruments. The challenge of transposition therefore implies a sec-
ond reason why ICrimL cannot be relegated to a mere out-post of PIL, and another
schedule of major works for comparative legal studies. For the reception of inter-
national criminal law into domestic legislation is only the first strand in a seamless
web of normative migration, adaptation and reinvention in which comparative
methodology assumes a central role. Straightforward enough, in conception if not
in practice, at the macro level of legislation, these processes become infinitely more
complex and variegated in the micro-dynamics of judicial practice.
Judicial Development of International Criminal Jurisprudence
National legal systems differ in the extent to which judicial law-making is formally
acknowledged. Whether or not they embrace a formal system of precedent on the
common law model, however, all appellate tribunals in mature legal systems con-
tribute to the development of domestic law through their judgments in contested
cases. This quasi-legislative side of legal adjudication bears profound significance
for international criminal justice, and for the role of Comparative Law as its
handmaiden.
It is impossible for a criminal code of any description to anticipate and legislate
comprehensively for every conceivable contingency. Legislators therefore sensi-
bly confine themselves to enacting general normative frameworks, leaving finer
details to be supplied through judicial interpretation. Judicial contributions to
international criminal law and procedure have been immense, not least because
legislative materials prior to the enactment of the ICC Statute were remarkably
sparse. The Nuremberg IMT’s London Charter contained just 30 succinct Articles,
briefly elaborating the Tribunal’s jurisdiction, powers and procedure. Substantive
legal doctrine and process had to be improvised by the judges, with the assistance
of counsel, as the proceedings unfolded. The Statutes of the ICTY and ICTR are
noticeably more detailed in specifying the form of trial,44 suspects’ procedural
rights45 and protections for victims and witnesses.46 But they inevitably remain
silent on the technical minutiae of criminal law and process (see May and Wierda,
1999). Indeed, there is a formal mechanism for the judges of the ICTY and
ICTR to draft and update their own Rules of Procedure and Evidence.47 This is a
44 ICTY Statute, Art 20; ICTR Statute, Art 19.

47 ICTY Statute, Art 15; ICTR Statute, Art 14. The ICTY’s Rules of Procedure and Evidence are in
their 37th revision: IT/32/Rev 37 (April 2006); and the ICTR’s Rules of Procedure and Evidence had
been amended 14 times to June 2005.
delegated legislative function. In their more familiar adjudicative role, the judges
of the ICTY and ICTR are credited with having contributed substantially to the
doctrinal development of international criminal law and procedure through evi-
dentiary rulings and judgments in trials and appeals (see Cassese, 2003: Part II).
The centrality of comparative legal analysis to international criminal adju-
dication is guaranteed by multinational judiciaries. At Nuremberg, the IMT’s
judges represented four different legal traditions, though the Anglophones were
common law cousins and the Russians and French shared an ‘inquisitorial’ legal
heritage. Fast-forward half a century, and the ICC’s 18 judges are drawn from
100 States Parties.48 Consciously or otherwise, individual judges bring their
national legal and cultural expectations, assumptions, preferences and prejudices
(cf Merryman, 1988) into international courtrooms. A comparative approach is
necessitated by the impetus in adjudication to debate national legal traditions.
To be an effective member of a collegiate multinational bench, the international
judge must gauge where his or her judicial colleagues are ‘coming from’, in terms
of their legal background, training and professional cultural assumptions. How
else can nationally-trained judges serving on international criminal tribunals
hope to engineer appropriate compromises on points of disagreement, or garner
support for their own preferred legal solution, or even just arrive at authentic and
sustainable interpretations of international criminal law?
In a fundamentally devolved system of law, the comparativism integral to the
work of international criminal courts is magnified at the regional and domestic
levels. Both the ICTY and the ICTR are currently transferring selected defendants
for trial before national courts and building up local judicial capacity as part of
their respective ‘completion strategies’. The ‘internationalised’ criminal tribunals
are distinguished—from other forms of judicial process as well as from each
other—precisely by their unique conjunctions of international and local laws.
Referring generally to hybrid tribunals, Cassese observes:
Both the prosecution and the bench are of mixed composition and there you have this
huge problem—to make sure that the local component, and the international compo-
nent, do cooperate, do understand each other, do work effectively in their pursuit of the
common and shared goal of rendering justice (Cassese, 2004: 7).
And looking ahead, domestic courts in transitional or post-conflict societies will

need to ensure that local prosecutions of international crimes are conducted
in accordance with international due process, or risk intervention by the ICC
Prosecutor asserting residual jurisdiction.49 At each of these junction-points
where international and domestic laws converge, the quality of legal analysis
and decision-making can only be enhanced by expertise in Comparative Law.
To qualify as the international community’s agents in enforcing international
48 The Court is currently comprised of judges from Brazil, Bolivia, Bulgaria, Canada, Costa Rica,
Cyprus, Finland, France, Germany, Ghana, Ireland, Italy, Republic of Korea, Latvia, Mali, South Africa,
Trinidad and Tobago, and the United Kingdom.
358 Paul Roberts
penal law, domestic courts must strive for a co-ordinated, culturally-sensitive,

‘cosmopolitan’ approach which is capable of being endorsed by the reasonable50
majority of states, international organisations, NGOs, activists, and a 24-hour-
global-news-led international public opinion.
The synthetic integration of comparative legal method within international
criminal adjudication is reinforced by the salience of international human rights
law (IHRL) for international criminal justice. Although human rights courts do
not directly receive appeals from domestic criminal convictions, they are empow-
ered to rule that a particular domestic criminal law or procedure, as applied to
the accused in the instant case, is incompatible with respect for fundamental
human rights. In this indirect fashion, international human rights courts exert
tangible influence over the development and application of domestic criminal
law and procedure—another facet of the contemporary internationalisation of
municipal state law. Via the burgeoning jurisprudence of the Strasbourg-based
European Court of Human Rights,51 for example, IHRL indirectly informs
interpretations of ICrimL at the domestic level (reinforcing IHRL’s more overt
presence in international treaties and their interpretational jurisprudence). Since
comparative methodologies are already built-into European human rights adju-
dication (cf Carozza, 1998), this integral comparativism is automatically extended
when human rights standards are subsumed within international criminal law.
The interweaving circuits of jurisprudential influence and authority continue to
expand, consolidate, and diversify exponentially and self-reflexively, as courts and
tribunals with overlapping jurisdiction constantly revisit and rework their own
and each other’s previous decisions into novel legal arguments.
Operational Policy-Making and Mutual Judicial Assistance
Lawyers have a tendency to focus on formal treaties, constitutions, statutes and

precedent cases, and specialists in PIL are far from immune from this fascina-
tion with positive sources of law. At least since the 1970s, however, socio-legal
scholars have insisted that law must be conceptualised as an interlocking set of
institutionalised ‘social ordering practices’ (Lacey, 1994: 28) which simultaneously
shape and are shaped by their juridical, cultural, social, political, economic and
historical environments. The ‘law in the books’ must be augmented by investiga-
tions of the ‘law in action’. Having traditionally concentrated on national law and
legal process, socio-legal scholars and criminologists have more recently branched
out into the study of international crime and criminal justice (eg Morrison, 2006;
Ruggiero, 2005; and Day and Vandiver, 2000).
50 This equivocation implies something approximating Rawls’s idea of an ‘overlapping consensus’
around ‘reasonable pluralism’ (Rawls, 1996: see especially Lecture IV). International criminal justice
could never be founded on universal consensus, if only because international criminals will rarely
assent to their own punishment.
51 See www.echr.coe.int/echr.
Socio-legal research has repeatedly demonstrated that officials’ conduct and

decision-making are strongly influenced by a variety of ‘soft’ legal instruments
and informal occupational routines or ‘working rules’, which tend to mediate—
where they do not eclipse entirely—the strict letter of the law (see, eg Hawkins,
2002; Dixon, 1997; and McConville, Sanders and Leng, 1991). ‘Soft law’ sources
and informal operational policy-making are no less significant for international
criminal law and its enforcement than for domestic criminal process. PIL is
awash with non-binding legal instruments and materials, such as United Nations
General Assembly resolutions, International Law Commission (ILC) reports and
working papers, multilateral draft conventions, accords, codes, guidelines and
other indicia of ‘state practice’, a great many of which concern criminal justice
issues (Bassiouni, 1994). The European Union’s expanding portfolio of activi-
ties in the field of Justice and Home Affairs is another energetic contributor of
soft law instruments bearing on the formation and implementation of criminal
justice policy in the 27 EU Member States, and beyond via the European Union’s
‘external relations’ (foreign policy) agenda. The European Union, for example,
is a major sponsor of the ICTY, and the Tribunal dangles the carrot of potential
European Union membership to coax reluctant governments in Belgrade and
Zagreb to comply with its requests for indictees to be arrested and transferred to
The Hague.
Frontline professionals’ decision-making and conduct is typically motivated by
‘third-tier’ directives, such as police force orders, prosecutorial codes or military
training manuals (which are not necessarily publicly available), rather than by
primary legal rules or secondary delegated legislation. Sometimes ‘policy’ is not
even written down; occasionally it is not written down on purpose. Unwritten
operational policies occupy the shadow-lands of informal agreements, institu-
tionalised routines, shared professional understandings, and taken-for-granted
cultural assumptions. A striking recent example is the highly controversial policy
of ‘extraordinary rendition’ (Weissbrodt and Bergquist, 2006),52 whereby sus-
pected terrorists have allegedly been handed over by Western powers to friendly
jurisdictions with brutal policing methods, in order to circumvent domestic legal
restrictions on torture—a backhanded compliment to American civil liberties and
European human rights law, which simultaneously exposes the inadequacies of
regionally discrepant approaches to human rights protection.
Comparative Law is an essential practical resource at all levels and in all phases
of formal and informal operational policy-making and mutual judicial assistance.
Towards the more formal end of international judicial co-operation, for example,
extradition proceedings require judges to undertake comparative assessments of
the compatibility of criminal laws in the requesting and requested states. This is
not necessarily a straightforward textual exercise: concepts, terminology, rules
and doctrines encountered in domestic criminal legislation must be interpreted
52 R Verkaik: ‘The Big Question: What is Extraordinary Rendition, and What is Britain’s Role in it?’,
The Independent, 8 June 2006.

360 Paul Roberts
holistically against the background of a distinctive national legal culture and

tradition, itself dynamically responsive to social pressures and political events
and increasingly moulded by extra-territorial normative influences, prominently
including IHRL. Proceedings to extradite Senator Pinochet from the United
Kingdom,53 for example, turned in part on a somewhat convoluted legal analy-
sis to ascertain whether internationally-proscribed torture had been a crime in
English law at the material time (see Boister and Burchill, 1999). Likewise, trans-
border co-operation in police investigations must be informed by an appreciation
of comparative criminal procedure, in order to satisfy proof-taking requirements
and comply with evidentiary standards observed by the requesting state or tri-
bunal. Despite a notable modern trend towards convergence (Safferling, 2001;
and Bradley, 1993), rules of criminal procedure and evidence still differ markedly
across legal jurisdictions, both national and international. The English courts, for
example, have deprecated informal collaboration between national police forces
designed to circumvent the inadequacies of existing extradition arrangements
by deceit.54 Israeli courts55 and the United States Supreme Court,56 on the other
hand, do not regard even outright kidnapping as fatal to the successful prosecu-
tion and conviction of suspects identified and apprehended extra-judicially. Police
officers of all ranks involved in international mutual judicial assistance need to be
alive to these comparative legal distinctions.
Socio-legal studies of national criminal justice processes have frequently
emphasised the ubiquity of operational discretion. From the informal ‘working
rules’ of their occupational culture, police officers learn where to patrol or watch,
the cues constituting ‘suspicious’ behaviour, which vehicles to stop and search,
when to effect an arrest or, alternatively, settle for ‘having a quiet word’, when to
interview a witness or suspect, how to handle informants, etc. Local variations
in occupational culture virtually guarantee that comparative understanding will
be a significant operational asset in co-ordinating transborder co-operation and
international policing networks. Similar considerations apply to international co-
operation between prosecutors, defence lawyers, judges, penal administrators, and
military personnel, and in every sphere of informal operational policy-making
and mutual judicial assistance. For as President George W. Bush recently reflected:
‘Not everybody thinks the exact same way we think. Different words mean differ-
ent things to different people’.57
53 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty
International and others intervening) (No 3) [2000] 1 AC 147 (HL).

54 See R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 (HL); see also R v
Mullen (Nicholas Robert) (No 2) [2000] QB 520 (CA).

55 Attorney General of Israel v Eichmann (1961) 36 ILR 5 (Isr DC, Jerusalem); aff ’d, (1962) 36 ILR
277 (Isr Sup Ct).

56 In US v Alvarez-Machain (1992) 504 US 655 112 S Ct 2188 a 6-3 majority of the United States
Supreme Court held (per Rehnquist, CJ) that although it might be true that the
respondent’s abduction was ‘shocking’... and ... in violation of ... international law ... The fact of respondent’s forc-
ible abduction does not therefore prohibit his trial in a court in the United States.
57 S Blumenthal: ‘A Pantomime President’, The Guardian, 18 July 2006.
Harmonising National Criminal Laws
Legal harmonisation lies at the more ambitious pole of international co-operation

in criminal justice and penal affairs. Experience suggests that progress is best
achieved by facilitating incremental assimilation of domestic criminal laws rather
than by sweeping legislative schemes. Criminal law, in contrast to the law of com-
merce, property entitlements or even civil wrongs, tends to encapsulate a nation’s
fundamental political, social, moral and religious commitments, which states will
not readily compromise for the sake of international uniformity. Nonetheless,
through a series of United Nations-sponsored ‘suppression conventions’, and
in softer legal instruments such as minimum standards for the treatment of
detainees and indicative codes of professional conduct for police, prosecutors
and judges,58 a measure of convergence in domestic criminal law and practice has
been promoted.
Gradual, piecemeal assimilation respects national sovereignty and acknowl-
edges the reality of international law as a devolved and potentially dysfunctional
system. Even the ICC Statute, the most unified and comprehensive system of
international criminal law ever implemented, still defers to national variation
within the loose parameters of complementarity. On a broader view of ICrimL,
it is possible to find further examples of harmonisation of national laws through
vertical legal integration within the European Union (generally, see Baker, 1998;
and Peers, 2000). First pillar EC law, including competition law enforced by penal
fines, is binding in Member States and takes precedence over conflicting national
law.59 Domestic criminal legislation infringing European Community rights may
incur public liability to compensate affected parties.60 And the exercise of discre-
tionary powers by officials, including operational policy-making by senior police
officers (Baker, 2000), must a fortiori be consistent with European Community
prescriptions.
Other developments are more ad hoc and uneven in their impact. The Corpus
Juris (Delmas-Marty and Vervaele, 2000) was an ambitious attempt to design a
European-style criminal ‘code’, comprising both substantive offence definitions
and procedural rules, to regulate European Union fraud (see Kuhl, 1998). Like the
ill-starred European Union Constitution (which also contains provisions affecting
criminal law and process), efforts to implement the Corpus Juris currently appear
to have stalled. However, related initiatives have been taken forward, notably
the adoption of a pan-European Arrest Warrant.61 With mounting pressures for
closer legal cooperation between Member States to combat fraud, illegal immigra-
tion, people trafficking, drug-smuggling, cross-border arms running, and—above
58 See, eg http://www.uncjin.org/Standards/standards.html.
59 Costa v ENEL [1964] CMLR 425 (ECJ).
60 R v Secretary of State for Transport, ex parte Factortame Ltd (No 5) [2000] 1 AC 524 (HL).
61 EC Framework Decision 2002/584/JHA on the European Arrest Warrant and the Surrender
Procedures between Member States came into force on 1 January 2004 in those eight Member States
(including the United Kingdom) which had satisfied the agreed implementation criteria.
362 Paul Roberts
all—international terrorism, the impetus towards integration and harmonisation

of Member States’ domestic laws is bound to intensify. Although regional exam-
ples of harmonisation in ICrimL are by definition geographically restricted, the
extent of legal integration in criminal justice and penal affairs already achieved by
Western European powers is unparalleled around the globe.
Comparative Law and legal method are indispensable resources for projects of
legal harmonisation (Delmas-Marty, 2003). Pre-existing national laws must be
surveyed, collated and subjected to critical examination as essential preliminaries.
The tantalising prospect of harmonisation has inspired Comparative Law since its
formative years (Clark, 2001: Part VI), and contemporary developments in inter-
national criminal law, including the European Union initiatives just mentioned,
retain a strong comparative ethos (see, eg van den Wyngaert, 2001). The uncertain
fate of the Corpus Juris testifies to the political obstacles standing in the way of
fully-fledged supra-national vertical integration in domestic criminal legislation,
even amongst broadly similar, economically developed, geographically proximate,
secularised western democracies. One size invariably does not fit all. Successful
programmes of legal harmonisation need to work with the grain of national
legal traditions, and even sometimes to accommodate their foibles—so long as
local variations are substantially consistent with the overall scheme. Without
rigorous planning incorporating comparative legal analysis, however, projects of
legal harmonisation are almost guaranteed to fail, even with committed political
sponsorship.
Research, Analysis and Critical Evaluation
We have been exploring Comparative Law’s contributions to international crimi-

nal justice predominantly from the perspectives of policymakers and practitioners
(and policy-maker practitioners): legislators, government ministers, diplomats,
civil servants, judges, lawyers, police, military commanders, armed services per-
sonnel, and the rest. Here we emphasise the scholarly component of ICrimJ, its
seventh ‘concentric circle’. ICrimJ needs to develop a systematic research base
underpinned by mature theoretical inquiries, and Comparative Law and legal
studies should be in the vanguard of this trail-blazing intellectual endeavour.
Comparative legal studies contribute to ICrimJ on every (inter)disciplinary
front. Comparative lawyers have applied their research methods and data to illu-
minate the fundamental character of law and legality (Twining, 2000; and Glenn,
2004). A growing body of impressive work in the overlapping fields of compara-
tive criminology and comparative criminal justice studies is making a determined
effort to push Criminology beyond its traditional state-based comfort-zone (eg
Sheptycki and Wardak, 2005; and Nelken, 2000). Comparative analyses of legal
institutions today figure in Politics and IR textbooks (eg Christiansen, 2005) and
curricula. Comparative histories of criminal justice have been written (Godfrey,
Emsley and Dunstall, 2003). The philosophy of punishment has been enriched
by comparative studies of criminal justice policy-making (Rutherford, 1996; and

Garland, 2001; but cf Zedner, 2002), distinctive cultures of penality (Whitman,
2003), and the legal regulation and practical realities of penal treatment (Lazarus,
2004).
Conventional disciplinary taxonomies are stretched beyond breaking point
by these novel conjunctions. Is a comparative study of the evolution of criminal
procedure (cf Vogler, 2005) ‘really’ Comparative Law, Legal History, Criminology,
Criminal Justice, all of the foregoing, or none of the above? Does it matter?
Howsoever characterised, comparative legal theory, method, and research are
manifestly integral to theorising, researching, advocating and institutionalising
international criminal justice. When Comparative Law’s contributions are not
strictly unique, in the way of original empirical data or bona fide jurisprudential
innovation, they nonetheless reinforce the multiple strands of ICrimJ’s incompa-
rably interdisciplinary constitution.
IV. SUMMARY AND CONCLUSIONS
Any research project can usefully be broken down into three foundational ques-
tions, which may be conceptualised, meta-methodologically (ie specifying the
method of method), as an ‘eternal triangle’ of intimately interrelated, mutu-
ally conditioning considerations. First, the ‘Question of Subject-Matter’ con-
cerns issues of taxonomy and conceptual definition. Secondly, the ‘Question of
Motivation’ asks why the inquiry is worth undertaking and what one hopes to
gain from it. Thirdly, the ‘Question of Method’ raises issues of methodological
perspective and technique. The eternal triangle, in short, specifies the What?,
Why? and How? of intellectual inquiry. To recap and conclude, let us apply this
explanatory framework to the argument developed in this chapter.
To claim that Comparative Law is capable of making unique and indispensable
contributions to international criminal justice might be regarded as puzzling on
many levels. Most profoundly, neither ‘Comparative Law’ nor—still less—‘interna-
tional criminal justice’ are terms with settled or transparent conventional meanings.
Much of this chapter was consequently given over to taxonomy and conceptual
definition in an effort to clarify the ‘Question of Subject-Matter’. Comparative Law
is plainly something to do with comparison and something to do with law, but it is
not particularly illuminating to extend the label to all juridical comparisons of any
description. Cross-jurisdictional comparisons between domestic national laws are
the paradigm case. Yet the simple ‘compare and contrast’ model, conceptualising
national legal systems as two discrete units of analysis, has been vastly complicated
by modern law’s promiscuously cosmopolitan tendencies, facilitated and rein-
forced by growing experimentation in supra-national legal regulation.
International criminal justice is controversial to its core. Many have denied
its existence, and even scoffed at the suggestion. Rather than trying to formulate
and defend a particular stipulative definition, this chapter explored the notion
364 Paul Roberts
of ‘international criminal justice’ through a series of seven ‘concentric circles’,

starting with the core activities of international criminal tribunals and fanning
out into the hinterlands of transnational legal co-operation, national trials of
international criminality, and related—both visionary and parasitic—scholarly
commentaries and research. Sceptics might say that appeals to international
criminal justice are really just the latest disingenuous apologetics for national
self-interest, international finance capital, neo-colonialism or Western cultural
imperialism. What can no longer be claimed, however, is that international crimi-
nal trials are a logical impossibility, or that political and military leaders can bank
on impunity for atrocities, or that nobody will ever be convicted of genocide, or
that rape will never be taken seriously as a war crime, or that the international
community will forever sit on the sidelines wringing its hands. The very exis-
tence of the ICC, building on the unprecedented achievements of the ICTY and
ICTR, demonstrates that (for all their admitted weaknesses and deficiencies)
recent institutional and normative developments in international criminal justice
have major significance for legality, for justice, for world peace, and—it is no
exaggeration—for the future of humanity on this earth.
The ‘Question of Motivation’ barely requires extended examination in the
light of these remarks, and this chapter’s content. Why should one take an inter-
est in the Holocaust and post-Second World War trials of Nazi war criminals,
or in endeavours to resolve ethnic conflict in the Balkans, or in internationally-
co-ordinated efforts to rescue the Great Lakes region of Africa from the fires of
the Rwandan genocide—‘one of the defining events of the twentieth century’62?
Why be concerned about the ICC Prosecutor’s investigations in northern Uganda
and the Darfur region of Sudan, or the fate of child soldiers in Sierra Leone, or
the outcome of the trial of Saddam by the Iraqi High Tribunal? To readers who
already care passionately about promoting law, justice, human rights and human
dignity at home and abroad, the answer will be all-too-painfully obvious. Those
less secure in their convictions might profitably meditate on this epistemological
and existential conundrum: what else could possibly matter, if these things don’t?
Once upon a time, it might have been possible for governments virtually to ignore
foreign affairs whilst concentrating on improving national well-being within
secure frontiers. But those days of Splendid Isolationism are gone. Drugs barons,
people-smugglers, white-slavers, black-market arms traders, political insurgents
and suicide bombers testify with one voice to this implication of globalisation:
there is no rigid distinction between national and international criminal justice,
just as there can be no ‘domestic policy’ hermetically sealed off from ‘foreign
policy’. There is only justice, and policy, in a global context, just as there is only a
single human family to make this one world our home.
62 Human Rights Watch (2004) Leave None to Tell the Story: Genocide in Rwanda.
www.hrw.org/reports/1999/rwanda/index.htm.
If international criminal justice matters profoundly, and if Comparative Law

might potentially make unique and indispensable contributions to its ultimate
realisation, then this virtuous conjunction should be explored and explained,
and its significance widely advertised. The strength of Comparative Law and legal
scholarship lies in its distinctive methodologies, which brings us to the third point
on the eternal triangle. How does Comparative Law contribute to international
criminal justice? By extending comparative method, perspectives and insight into
every phase and corner of international criminal justice policy-making and prac-
tice, including institutional design, legislation, adjudication, operational policy-
making and transborder co-operation in policing, mutual judicial assistance, legal
harmonisation, and scholarly theorising, commentary and research.
The precise nature and extent of Comparative Law’s overall contribution to
international criminal justice turns on questions of conceptual definition. My own
preference for broadly inclusive conceptualisations has the congenial implication
of maximising Comparative Law’s potential in this respect. But those who prefer
more orthodox conceptions of Comparative Law, or are disinclined to venture
beyond the inner circles of international criminal law and practice, should still
conclude, on the evidence of this chapter, that Comparative Law’s contributions
to international criminal justice are potentially both indispensable and unique.
1. What distinguishes ‘international criminal law’ from ‘international crimi-

nal justice’? When, and why, are the differences important?
2. What, if anything, distinguishes international criminal justice from
International Criminal Justice? Or international criminal law from
International Criminal Law?
3. In what ways, and to what extent, can Comparative Law contribute to inter-
national criminal justice? (How are you defining ‘Comparative Law’? How
does your definition of ‘Comparative Law’ affect your answer to the original
question? Would you like to reconsider your definition of ‘Comparative Law’
in the light of its implications for the relationship between Comparative
Law and international criminal justice? Why (not)?)
4. Is there any (interesting, non-trivial) sense in which international criminal
law is not comparative?
5. Are there any significant aspects of international criminal justice that
comparative legal method cannot explain, or important questions it
cannot answer?
6. Is disciplinary taxonomy completely arbitrary? Is conceptual analysis just
sterile logic-chopping? Why (not)?
7. What is the ‘eternal triangle’ of intellectual inquiry? Can you apply it to
illuminate any other research topic or question mentioned in this book?
Or any other research topic or question you can think of?
366 Paul Roberts
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16
Judicial Comparativism and Human
Rights
CHRISTOPHER MCCRUDDEN*
KEY CONCEPTS
Human rights; Constitutional rights; Natural law; Positivism; Pluralism;

Dialogic method; Functionalism; Judicial review; Counter-majoritarian
difficulty; Judicial comparativism.
I. INTRODUCTION AND SUMMARY OF ARGUMENTS
D
ebates concerning the appropriate relationship between human
rights interpretation and comparative legal methods have increased
significantly in the past decade, and are by no means exhausted. This
has occurred in part because of the increased citation by judges of ‘foreign’ legal
materials, in particular judicial opinions, from jurisdictions that have no legal
authority in the ‘receiving’ jurisdiction. Courts are playing an impressive role in
the creation of what some see as a ‘common law of human rights’ or, in the context
of Europe, ‘a ius commune of human rights’. How human rights interpretation
develops by making extensive use of comparative law is an intriguing example of
the utilisation of comparative law by courts. Debates about the appropriateness
of this have proven useful in illuminating aspects of both comparative law and
human rights interpretation.
There are several aspects of this development that mark it out from some
earlier debates about the role of comparative methods in law. First, the issues
in this chapter involve issues of high political controversy, particularly at
a time when human rights issues are of considerable salience for political
debates, such as how to cope with changing sexual mores and dealing with
terrorism. In the past, comparative legal methods were more often used to
* I am grateful to Rosalind Dixon, Veronika Fikfak, and Brian Flanagan for their comments on this
chapter.
372 Christopher McCrudden
deal with essentially private and commercial law issues; in the human rights
context, the issues are public, often constitutional, law. Secondly, the debate
about the appropriate use of the comparative method is often a reaction to
judicially-driven use of comparisons, rather than academically-driven advo-
cacy of comparisons. We thus see human rights theory and comparative law
theory struggling to make sense of relatively fast-moving judicial practice,
rather than such theories giving rise to legal practice.
This chapter begins by sketching out several of the key concepts that these
debates have involved. There are three sets of concepts that arise in the debate:
one set arising in discussions of how we analyse human rights, another in how we
think about the role and function of the comparative method, and a third in how
the continuing debate about the legitimacy of judicial decision-making in human
rights is conducted. We then turn to consider in more detail the issues that have
arisen in the use by judges of comparisons in human rights interpretation.
Human Rights Concepts
The very concept of ‘human rights’ is contested. Sometimes a distinction is drawn

between ‘human rights’ and ‘constitutional rights’, with the former referring to
those rights that are legally required because of international legal obligations
arising from treaties or custom, and the latter referring to rights that arise from
national texts, such as Constitutions. For some, this distinction is crucial. The lat-
ter may accord rights to a smaller group of people than the former, for example
the latter may accord rights only to citizens, whereas the former are unlikely to be
so confined. Or international law may supply a basic standard that constitutional
rights improve upon.
Whether this distinction is important points to another aspect of ‘human
rights’ that is important for the purposes of this chapter. We need to distinguish
between theories supporting human rights—including the general principles
included in human rights—and their application in specific situations. There is
much apparent agreement on the general principles of human and constitutional
rights (such as the need to protect people from torture, or discrimination). Most
charters of rights, whether national or international, contain much the same list
of rights. Does this suggest agreement also on theories supporting human rights?
Not necessarily. There is little agreement on why individuals should be protected
in these ways. (Several conflicting general theories are often put forward: Because
to treat people in this way is contrary to their ‘dignity’ or their ‘autonomy’. Or
because everyone is made in the image of God.) This lack of agreement on what
theory or theories support human rights has some important implications,
particularly because the way in which particular human rights are phrased in
legal texts is often extremely general and thus subject to considerable interpreta-
tion when it comes to applying them in practice. What, exactly, do we mean by
‘torture’? When, exactly, is ‘discrimination’ invidious?
Judicial Comparativism and Human Rights 373
There are several issues that arise from this need for interpretation of the
general principles. One debate that arises is whether these various national and
international texts, containing apparently common human rights principles, state
a universal standard that is true across time and space. The universality of human
rights is often thought to be central to conceptions of human rights. As Vicki
Jackson has argued, referring to the United States,
[m]any of our constitutional rights and values—liberty, equal protection of the law, due
process, freedom of expression—reflect not only specific decisions made in the United
States, but also widely shared commitments of many Western democracies (Jackson,
2004a; see also Jackson, 2004b).
Yet such claims have proven deeply controversial, with some arguing that the
inclusion of common principles in these texts camouflages profound disagree-
ment on their application as well the theory supporting them. Lord Hoffmann,
for example, has stated:
[O]f course we share a common humanity ... Nevertheless ... the specific answers, the
degree to which weight is given to one desirable objective rather than another, will be
culturally determined. Different communities will, through their legislature and judges,
adopt the answers which they think suit them. (Hoffman, 1999: 159).
All that is left is an empty shell of principle and when the principle comes to
be applied, the appearance of commonality disappears, and human rights are
exposed as culturally relative, deeply contingent on local politics and values.
Despite claims to the contrary, the debate between universalism and cultural
relativism refuses to go away, and it has considerable implications for the exercise
of judicial comparativism. For those who support universalism, use of compari-
sons appears obvious—after all, it is the same principle that is being applied. For
those who support cultural relativism, use of comparisons is pointless except to
expose these differences—after all, it is a different principle that is being applied.
The growth of regional legal systems complicates this debate somewhat, as one of
their attractive aspects is that states that appear to share more common cultural
and ethical roots can come together to establish human rights regimes that go
beyond the state, but stop short of the global. This gives rise to the question as to
whether regionally shared conceptions of human rights are emerging, for example,
a European ius commune.
The debate between universalism and cultural relativism is related to, but dif-
ferent from, another debate that arises in the human rights context that is relevant
to the use of comparisons. This is the issue of whether the obligations that human
rights impose depend on the state for their existence or exist irrespective of state
recognition. The issue is one of profound significance. Does an individual, who
lives in a state that does not recognise human rights internationally or implement
them in national law, still have such rights? Another way of putting the issue is in
terms of the larger debate between natural law and positivism. This is, of course,
an immensely complex jurisprudential debate, and any brief summary will fail to
deal adequately with its complexity. Put briefly, however, we can pose the issue as
follows: Are human rights legal rights because they are incorporated into positive
law, or are they legal rights irrespective of whether they have been incorporated
into any particular legal system, because they are already included in what we
consider foundational to any legal system?
Leaving these debates aside for the moment, we can identify another issue
that arises. A principled interpretation of these grand principles often seems
to call for agreement on why we are against torture, or discrimination, but
this type of theoretical agreement is often absent. Judges deciding these cases
are, therefore, faced with a difficulty. Yet they do, of course, make decisions
on the basis of specific facts. Cass Sunstein has described the process of decid-
ing cases on their facts without necessarily agreeing on any particular theory
supporting the decision as giving rise to ‘incompletely theorised’ agreements.
Such agreements exist where individuals can agree on a specific result, even if
they do not agree on the specific theory justifying that result (Sunstein, 1996).
Some judges use comparative reasoning as part of the process of attempt-
ing to generate reasons justifying a particular result. Comparativism thus
becomes a part of the process of reaching a more fully theorised (although
still incomplete) agreement.
Concepts in Comparative Law Methodology
These key issues and concepts in human rights have some similarities with
debates in comparative law. Thus, for example, there is a debate in comparative
law theory between univeralism and pluralism. In the former camp are those who
see the function of comparative law as being to explore what is common between
legal jurisdictions; even sometimes going so far as to view comparative law as
the basis for identifying the ‘best’ approach with the ultimate aim of securing its
universal adoption. In the pluralist camp are those who see the function of the
comparative method as being the identification of what is different between juris-
dictions, stressing the need for an understanding of local context and emphasising
the truth that even when similar concepts are being used across jurisdictions, they
may not necessarily play the same role in each. These debates in comparative law
echo the debates in human rights between universalism and cultural relativism.
The more ‘political’ and ‘constitutional’ the issue, the more comparative lawyers
tended to move to the cultural relativist end of the spectrum.
In addition, however, there is a somewhat more recent debate within com-
parative law scholarship that is of considerable importance to our understand-
ing of judicial comparativism in human rights interpretation. This is the debate
between functionalism and the dialogic method. Ruti Teitel has helpfully described
functionalism in comparative law scholarship as an approach that
treats comparative law as a technique of problem solving. The subject of comparative
analysis is the legal problem, excised from its context (Teitel, 2004: 2570 at 2574).
She goes on to characterise functionalism as considering ‘the relevant unit of

analysis’ not as ‘a geographic entity, such as a country or region, but ... rather the
problem and its legal solution’ (ibid). She identifies Rudolph von Jhering as clearly
representing this functionalist approach when he wrote:
The reception of foreign legal institutions is not a matter of nationality, but of usefulness
and need. No one bothers to fetch a thing from afar when he has one as good or better at
home, but only a fool would refuse quinine just because it didn’t grow in his back garden
(von Jhering, quoted in Zweigert and Kötz, 1998: 17).
Functionalism was the dominant approach to comparative law scholarship during

the second half of the twentieth century and still retains an important influence
in comparative law circles. It has been challenged in recent years, if not before, by
those who see functionalism as too divorced from context. One response to this
has been the development of a pluralist critique of functionalism, often from a
critical perspective.
Another response, however, has been to attempt to develop an approach that is an
alternative to both functionalism and pluralism. Teitel, among others,1 contrasts a
functionalist approach with a ‘dialogic’ method, which she sees as both more recent
and responding to ‘the present context of a globalizing politics’ (Teitel, 2004: 2570
at 2584). This theorises the comparative method ‘as a dynamic interpretive and dis-
cursive practice’ (ibid: at 2584–5). In the context of comparative constitutionalism in
particular,
the dialogical approach focuses on the processes of constitutional interpretation …
Comparative exchange is not bound in path-dependent or hierarchic ways. Rather, it
poses a comity-based ‘transjudicial’ enterprise—a decentered view of constitutional
practices deriving from pluralist sources, with the possibility of ‘cross fertilization’ (ibid:
at 2586).
Controversies Concerning ‘Judicial Review’
There is a third set of concepts that tend to arise in discussion of the phenom-
enon of judicial comparativism in human rights adjudication; those that are
used in continuing debates concerning the legitimacy of ‘judicial review’. Since
the Second World War, courts have increasingly been given (or taken on) a role
in interpreting and applying constitutional rights, sometimes in specially created
constitutional courts, sometimes in courts of general jurisdiction, and sometimes
in administrative courts. Such adjudication usually involves the judiciary being
1 Choudry, 1999: 819 at 838–9, contrasting dialogical comparison with universalistic and genea-
logical modes of comparison; Choudry, 2004: 50–52, contrasting dialogical with universalist and
functionalist modes of comparison; L’Heureux-Dubé, 1998: 17, contrasting dialogical influence with
‘reception’ of foreign law; Slaughter, 2003, describing dialogical modes of transnational influence. I am
grateful to Rosalind Dixon for these references; see further Dixon, to be published 2007.
asked to adjudicate on disputes that involve an allegation of a breach of a claimed

right by the actions of a public body such as a Department of government, or
by the legislature itself. This jurisdiction is frequently called ‘judicial review’ of
administrative acts or of legislation. It is controversial because it runs the risk
of creating tension with other constitutional principles, such as the separation
of powers. Where judicial review involves judges striking down legislation on
the ground that it breaches constitutional rights, it is particularly controversial
because it also involves a body of unelected judges calling into question the
decision of a democratically elected body, leading to the so-called ‘counter-
majoritarian difficulty’. This has led to a continuing debate about the legitimacy of
judicial review, particularly of this strong type, and how far it is compatible with
notions of democratic self-government. Part of that debate involves close scrutiny
of what sources judges derive their conclusions from.
II. RELATIONSHIP BETWEEN COMPARATIVE LAW AND HUMAN RIGHTS

GENERALLY
Depending on which approaches are taken to human rights, and which compara-
tive method is used, tensions may arise between comparative theorists and human
rights practitioners. An emphasis on differences, in part to underscore diversity,
gives rise to tensions with those human rights lawyers with universalist aspirations
for human rights.
Human rights practice is often driven by a strong moral or ethical dimension, and
consequently a further potential for considerable tension between the two disciplines
arises. For the human rights advocate the role of comparison is that of persuasion
to an essentially moral position. Lawyers in the human rights context often use
comparison to legitimate their argument that a particular interpretation of an exist-
ing human rights norm should be adopted, or as part of the process of generating
further norms. The use of comparison as part of the process of persuasion not infre-
quently gives rise to highly selective, often rather simplistic comparative arguments.
For some modern comparatists, this must be intensely frustrating, as they attempt
to generate increasingly sophisticated methodologies of comparison. Not only is the
methodology of what might be called ‘persuasive comparativism’ apparently weak
(cherry picking, weak evidence, overly formalistic assessment of what the law is), but
several of these functions of comparison tend towards the older, universalist tenden-
cies of comparative law scholarship that are now viewed critically by many modern
comparative law scholars.
Judicial Comparativism: Contrasts between Jurisdictions
We turn now to consider the more particular issue of the use of comparative
methods by judges in human rights interpretation. The first point to note is
that judicial comparativism in human rights adjudication is immensely variable
between jurisdictions, not least in so far as the citation of cases from other juris-
dictions is concerned. (It is likely that some jurisdictions that do not cite foreign
judgments nevertheless refer to them in private research.) Thus, for example,
there is a significant difference between the use of judicial comparativism in the
United Kingdom (relatively high) and France (very low), and between the United
States (relatively low) and South Africa (high). Secondly, the use of such material
differs within jurisdictions across time, so we see a relative increase in the use of
such material in recent years in several jurisdictions. (We might also see in the
future a decline in the use of such material, for example in South Africa, depend-
ing on why such material is being used there, of course.) Thirdly, even in those
jurisdictions in which the use of comparative material by judges is noticeable,
such use is often greater with regard to some types of human rights claims, and
less frequent with regard to other types of human rights claims. So, for example,
in the United States, judicial comparativism has been particularly prominent in
judging the constitutionality of the death penalty, but relatively little used in the
context of equal protection claims.
There is some controversy about what determines the degree of use of compar-
ative material by judges in human rights adjudication, and little consensus. Few
jurisdictions have explored systematically the use of such material in their own
jurisdiction, and little empirical work has been completed that attempts to explain
the differences between jurisdictions or within jurisdictions in this respect. Nor
has sustained empirical work been conducted that would explain why the use
of such material is more politically and jurisprudentially controversial in some
jurisdictions and not others.
Judicial Comparativism and Human Rights Interpretation: Some Further

Distinctions
In those jurisdictions that do explicitly engage with ‘foreign’ legal material, we

need to distinguish between different uses of such material, since only some of
these uses are controversial. Judges use ‘foreign’ judicial decisions to determine
the meaning of binding international law in their jurisdiction. Judges use ‘foreign’
judicial decisions to determine the meaning of terms in contracts that are to be
interpreted according to the law of that other jurisdiction. Judges use ‘foreign’
judicial material to determine the law of other jurisdictions in conflicts of law
disputes. None of these uses of foreign material is particularly controversial in
theory.
Judges also use decisions of courts outside their jurisdiction when there is some
relationship of authority between the two. So, for example, United Kingdom
courts constantly refer to decisions of the European Court of Justice in interpret-
ing provisions of domestic law that implement European Community law. Even
prior to the Human Rights Act 1998, which now requires judges to have regard
to decisions of the European Court of Human Rights, English judges had regard
to decisions of the European Court of Human Rights in deciding what rights to

accord under English law, in part because they knew that disappointed applicants
could apply to have their complaints adjudicated under the European Convention
on Human Rights, which the United Kingdom had ratified. Judges also frequently
have regard to decisions of courts that they regard as sharing aspects of a com-
mon legal system, even where there is no issue of hierarchical authority in issue
between them. So, courts in common law countries frequently have regard to
decisions of ‘foreign’ courts in the interpretation of tort and contract. Again, none
of these uses of foreign material is particularly controversial.
We are not primarily concerned with these uses of foreign material. Most
controversy has arisen where other uses of ‘foreign’ material are involved, and it
is with these that we shall be primarily concerned. But not even all these uses are
controversial. There are four uses of this type that are frequently not sufficiently
distinguished. The first is where a court in jurisdiction ‘X’ quotes from a court in
jurisdiction ‘Y’ a particular phrase or way of describing an issue that appears to the
judge particularly apposite or elegant. Some judges in some jurisdictions have had
a way with words that is deemed by other judges to be particularly worth quoting.
This can be termed the ‘rhetorical’ use of ‘foreign’ material and is akin to using
quotations from Shakespeare or the Bible. The second is where a court in jurisdic-
tion ‘X’ cites ‘foreign’ material such as a judicial decision in jurisdiction ‘Y’ as part
of the evidence to support an empirical conclusion that a particular approach is
or is not workable in practice, or has particular unintended effects.2 The fact that
it is a judicial opinion that is part of the evidence is, essentially, neither here nor
there; it is merely a convenient source of the empirical information.
For Judge Posner, however, the problem with using ‘foreign’ judicial opinions
arises in a somewhat different class of case. He writes:
Problems arise only when the foreign decision is believed to have some (even if quite
attenuated) persuasive force in an American court merely by virtue of being the decision
of a recognised legal tribunal. This occurs, in short, when it is treated as an authority,
albeit not a controlling one ... even though the issue is purely local, such as whether
abortion should be forbidden, or the execution of retarded murderers forbidden, or gay
marriage allowed. (Posner, 2004)
It is for this reason that the third and fourth uses are the most controversial. Both
involve the use of a judicial decision in jurisdiction ‘Y’, or some other legal norm,
that is not legally binding in jurisdiction ‘X’ (such as an unratified human rights
convention), as part of a judicial decision regarding what is the legal position in
jurisdiction ‘X’. In both, the ‘foreign’ material is part of a normative argument, in
a judicial context that is, in any event, often controversial. But there are significant
differences within that general category. One use (our third approach) involves
the citation of a ‘foreign’ material as establishing a reason (however attenuated)
2 Compare the use of foreign material in Washington v Glucksberg, 521 US 702 at 730, 734 (1997)
(Rehnquist, CJ).
why a human rights claim against a governmental entity should not succeed.
Another (our fourth approach), and probably the most controversial, involves the
use of ‘foreign’ material in a similar context where it establishes a reason (however
attenuated) why a rights claim should succeed.
There are two critical aspects to the description of the problematic uses of
foreign material in the previous paragraph. The first relates to the inclusion of
non-binding international legal material as well as ‘foreign’ material such as a
judgment of a foreign court. The important distinction that is drawn is between
international law that is binding in the jurisdiction concerned, and international
norms that are not binding in the jurisdiction concerned. Sometimes this distinc-
tion is not sufficiently recognised in discussions of the use of judicial comparativ-
ism, and the use of all international norms, whether binding in the jurisdiction or
not, are treated as raising the same issues. This is unhelpful. Legally, there is a clear
difference between the use of international legal material by the House of Lords
in the A case,3 and the use of legal material by the plurality of the United States
Supreme Court in Roper v Simmons.4 In the former case, the Lords disallowed the
use of foreign torture evidence in administrative proceedings. The international
material was used to establish what international law was binding on the United
Kingdom, in order to ensure that the common law was interpreted in confor-
mity with the United Kingdom’s international commitments. In the latter, as we
shall see subsequently, the plurality of the United States Supreme Court used
international legal norms, which it explicitly accepted as non-binding, as part of a
discussion about the current meaning of the Eighth Amendment.
The second point worth noting is that the distinction between the third and
fourth types of judicial comparativism has attracted judicial attention. Scalia, J,
dissenting in Roper draws attention to the distinction:
Foreign sources are cited today, not to underscore our ‘fidelity’ to the Constitution, our
‘pride in its origins’, and ‘our own [American] heritage’. To the contrary, they are cited to
set aside the centuries-old American practice’.5
The two types are worth separating, as Mary Anne Glendon has argued, because
there is a
crucial difference between the legitimate use of foreign material as mere empirical
evidence that legislation has a rational basis, and its use to buttress the court’s own
decision to override legislation (Glendon, 2005).
She views the distinction as important because of the unhealthy effects of ‘judicial
adventurism’. Where foreign material is used to uphold the democratic decision,
those who believe the legislature got it wrong ‘can work to change the law through
the ordinary democratic processes of persuasion and voting’(ibid). But where
3 A (FC) v Secretary of State for the Home Department [2005] UKHL 71, especially [27], [30],
[33]–[35] (Lord Bingham).

4 Roper v Simmons 125 S Ct 1183 (2005).
5 Ibid, at 1229 (Scalia, J).
constitutions are difficult to amend, the effect of a court upholding a rights claim
against the democratic decision-maker is dramatic:
[T]he court’s constitutional mistakes are exceedingly hard to correct. The unhealthy
ripple effects of judicial adventurism are many: Legislatures are encouraged to punt
controversial issues into the courts; political energy, lacking more constructive outlets,
flows into litigation and the judicial selection process (ibid).
All this should lead courts to be more hesitant in using ‘foreign’ material to strike
down legislation than to uphold it.
III. EXAMPLES OF JUDICIAL COMPARATIVISM IN HUMAN RIGHTS

INTERPRETATION
There is now an extensive academic literature analysing the use of judicial

comparativism in several jurisdictions, and no attempt will be made here to try
to give a comprehensive survey. Instead, four examples drawn from recent deci-
sions of the United States Supreme Court will be used to illustrate several of the
points made above. These recent examples are particularly interesting because
they provide, in a specific interpretative context, an extensive exploration by the
judges of what judicial comparativism involves, and its potential problems, in a
way that few other jurisdictions have yet engaged in. Three of the cases involve
the constitutionality of aspects of the death penalty (the acceptability of delays in
carrying out the sentence, the use of capital punishment against juveniles, and its
use against the ‘mentally retarded’). The fourth involves perhaps the most contro-
versial recent example of judicial comparativism; its use in a case striking down
the criminalisation of sodomy between consenting adults.
In Knight v Florida,6 the court refused to stop an execution, rejecting an
argument that delays in carrying out the sentence should be held to render the
execution contrary to the Eighth Amendment’s prohibition on cruel and unusual
punishment. Breyer, J dissented, drawing on judicial decisions from foreign juris-
dictions, which were extensively considered. The structure of his argument is of
importance. First, he stressed that he was only concerned with ‘courts that accept
or assume the lawfulness of the death penalty’,7 thereby excluding courts in coun-
tries where the death penalty is not carried out. Taking this as the relevant set of
comparators, he found that ‘a growing number’ of these courts ‘have held that
lengthy delay in administering a lawful death penalty renders ultimate execution
inhuman, degrading, or unusually cruel’.8 The Judicial Committee of the Privy
Council’s cases dealing with Jamaica were cited, as were decisions of the Supreme
Court of India, the Supreme Court of Zimbabwe, and the European Court of
6 Knight v Florida 120 S Ct 459 (1999).

7 Ibid, at 462 (Breyer, J).
8 Ibid. [TS close gap]
Human Rights in Soering v United Kingdom,9 in which the court interpreted the
European Convention on Human Rights as prohibiting the United Kingdom
from extraditing a potential defendant to the Commonwealth of Virginia, in part
because the delay that typically accompanied a death sentence there amounted
to ‘cruel, inhuman, [or] degrading treatment or punishment’10 forbidden by the
Convention. Secondly, Breyer, J acknowledged that ‘[n]ot all foreign authority
reaches the same conclusion’,11 citing opinions from the Supreme Court of Canada
and the United Nations Human Rights Committee that tended to go against the
proposition he was supporting. Thirdly, the interpretation he advanced was not
based on any supposed United States obligation in international law. Indeed, he
noted how, after Soering, the United States Senate had insisted on reservations to
various other human rights treaties to ensure that language similar to that of the
European Convention on Human Rights did not
restrict or prohibit the United States from applying the death penalty consistent with
the … Constitution, including any constitutional period of confinement prior to the
imposition of the death penalty.12
Fourthly, Breyer, J recognised that ‘[o]bviously, this foreign authority does not
bind us.’13 Quoting Scalia, J in an earlier case, he said ‘[a]fter all, we are interpret-
ing a “Constitution for the United States of America”’.14 In the context of this
domestic constitutional interpretation, however,
[T]his Court has long considered as relevant and informative the way in which foreign
courts have applied standards roughly comparable to our own constitutional standards
in roughly comparable circumstances. In doing so, the Court has found particularly
instructive opinions of former Commonwealth nations insofar as those opinions reflect
a legal tradition that also underlies our own Eighth Amendment.15
This, presumably, explains the choice of jurisdictions cited. In conclusion,

then, Breyer, J’s position justifying this exercise of judicial comparativism was
that
the foreign courts I have mentioned have considered roughly comparable questions
under roughly comparable legal standards. Each court has held or assumed that those
standards permit application of the death penalty itself. Consequently, I believe their
views are useful even though not binding.16
9 Soering v United Kingdom—(1989) 11 EHRR 439.

10 Knight v Florida 120 S Ct 459 at 463 (Breyer, J).
11 Ibid.
12 Ibid.
13 Ibid.
14 Thompson v Oklahoma 487 US 815, n4, 101 L Ed 2d 702, 108 S Ct 2687 (1988) (Scalia, J,
dissenting).
15 Knight v Florida 120 S Ct 459 at 463—4 (Breyer, J).
16 Ibid, at 464.
In Atkins v Virginia,17 the court decided that the imposition of the death
penalty for crimes committed by ‘mentally retarded offenders’ was unconstitu-
tional. Stevens, J’s opinion for the court drew on ‘foreign’ material to help reach
a conclusion that
within the world community, the imposition of the death penalty for crimes committed
by mentally retarded offenders is overwhelmingly disapproved.18
Along with other information, Stevens, J concluded that the degree of consistency
of this trend together with evidence of what was occurring in legislatures in the
United States
lends further support to our conclusion that there is a consensus [against imposition of
the death penalty in such cases] among those who have addressed the issue.19
There are several differences to the approach that Breyer, J took in Knight v
Florida. First, the foreign material was displayed much less prominently in Atkins
v Virginia (it was confined to a footnote); it was dealt with much less extensively
(it referred only to an amicus curiae brief containing the information); and it
was much less specific, referring to the ‘world community’, rather than particular
countries. In common with Breyer, J in Knight v Florida, however, Stevens, J also
stressed that ‘these factors are by no means dispositive’.20
In the later case of Roper v Simmons,21 the Supreme Court held that the imposi-
tion of the death penalty on offenders under 18 was unconstitutional under the
Eighth Amendment. In his opinion for the court, Kennedy, J drew on ‘foreign’
material. As with Breyer, J in Knight v Florida and Stevens, J in Atkins v Virginia,
he stressed that this material, apparently demonstrating
that the United States is the only country in the world that continues to give official
sanction to the juvenile death penalty,22
was used only to support a determination that such uses of capital punishment are
unconstitutional under the United States Constitution, and that this information
‘does not become controlling, for the task of interpreting the Eighth Amendment
remains our responsibility’. He stressed, too, that such information has relatively
frequently been used by the court ‘as instructive for its interpretation of the
Eighth Amendment’s prohibition of “cruel and unusual punishments”’.
Unlike in previous cases, however, Kennedy, J then referred to the provisions
of the United Nations Convention on the Rights of the Child.23 As he pointed
17 Atkins v Virginia 563 US 304 (2002).

18 Ibid, at 316, n 21(Stevens, J).
19 Ibid.
20 Ibid.
21 Roper v Simmons 125 S Ct 1183 (2005). [TS close space]
22 Ibid, at 1198 (Kennedy, J).
23 United Nations Convention on the Rights of the Child, 20 November, 1989, 1577 UNTS 3, 28 ILM
1448 (entered into force 2 September, 1990).

out, the Convention, ‘contains an express prohibition on capital punishment for

crimes committed by juveniles under 18’.24 The Convention had been ratified
by ‘every country in the world ... save for the United States and Somalia’.25 No
ratifying country had entered a reservation to the provision prohibiting the execu-
tion of juvenile offenders. There were ‘parallel prohibitions’26 contained in other
significant international covenants some of which the United States had ratified,
but with reservations protecting the use of the death penalty for juveniles:
[O]nly seven countries other than the United States have executed juvenile offend-
ers since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic
of Congo, and China. Since then each of these countries has either abolished capital
punishment for juveniles or made public disavowal of the practice.27
He concluded, on the basis of this information, that

it is fair to say that the United States now stands alone in a world that has turned its face
against the juvenile death penalty.28
This use of human rights conventions to demonstrate an international consensus

against the juvenile death penalty is particularly noteworthy, given that some had
not been ratified by the United States (the Convention on the Rights of the Child),
and others which had been ratified had US reservations on the specific issue
before the court. Kennedy, J also paid particular attention to the United Kingdom,
whose experience was ‘instructive’ and of
particular relevance ... in light of the historic ties between our countries and in light of
the Eighth Amendment’s own origins,
which he noted had been ‘modeled on a parallel provision’ in the English

Declaration of Rights of 1689.29 Decades before it had abolished the death penalty
entirely, ‘it recognized the disproportionate nature of the juvenile death penalty;
and it abolished that penalty as a separate matter’.30
No doubt anticipating an attack on his use of these sources, the relevant section
of his opinion ended with his reflection on the question whether the use of
‘foreign’ material in some way undermined the independent role of the Court in
interpreting the Constitution. He sought to dampen down concerns that it might.
The ‘overwhelming weight of international opinion’ against the juvenile death
penalty, ‘while not controlling our outcome, does provide respected and signifi-
cant confirmation for our own conclusions’.31 The guarantees in the Constitution
24 Art 37.
25 Roper v Simmons 125 S Ct 1183 at 1199 (Kennedy, J).
26 Ibid.
27 Ibid.
28 Ibid.
29 Declaration of Rights, 1 W & M, ch 2, para 10, in 3 English Statutes at Large 441 (1770).
30 Roper v Simmons 125 S Ct 1183 at 1199 (Kennedy, J).
31 Ibid, at 1200.
are ‘original to the American experience’, ‘central to the American experience’,

and ‘essential to our present-day self-definition and national identity’.32 It did not
lessen
our fidelity to the Constitution or our pride in its origins to acknowledge that the
express affirmation of certain fundamental rights by other nations and peoples simply
underscores the centrality of those same rights within our own heritage of freedom.33
As we shall see subsequently, there was a strong dissent in Roper v Simmons con-
cerning the use of ‘foreign’ material, as well as the substantive finding of unconsti-
tutionality. Although O’Connor, J also dissented on the issue of constitutionality,
she made clear her general support for the use of ‘foreign’ material, although
not the conclusions the majority drew from it. She disagreed with the conten-
tion, advanced by Scalia, J in dissent, that foreign and international law ‘have no
place in our Eighth Amendment jurisprudence’.34 In some areas of constitutional
interpretation, on the other hand, she agreed with Scalia, J that
American law is distinctive in many respects, not least where the specific provisions of
our Constitution and the history of its exposition so dictate,
mentioning ‘distinctively American rules of law related to the Fourth Amendment

and the Establishment Clause’.35 Over the course of nearly half a century, the court
had, she said, ‘consistently referred to foreign and international law as relevant
to its assessment of evolving standards of decency’.36 Unlike the majority, how-
ever, she saw the use of comparative material in the interpretation of the Eighth
Amendment as particularly appropriate, ‘reflect[ing its] special character’ which
‘draws its meaning directly from the maturing values of civilized society’.37 The
United States’
evolving understanding of human dignity certainly is neither wholly isolated from, nor
inherently at odds with, the values prevailing in other countries. On the contrary, we
should not be surprised to find congruence between domestic and international values,
especially where the international community has reached clear agreement ... that a
particular form of punishment is inconsistent with fundamental human rights.38
The results of such an inquiry into these international values—and here she
agrees with the majority—‘do not dictate the outcome of our Eighth Amendment
inquiry’, but where ‘an international consensus of this nature’ exists, this ‘can serve
to confirm the reasonableness of a consonant and genuine American consensus’.39
32 Ibid.
33 Ibid (emphasis added).
34 Roper v Simmons, 125 S Ct 1183 at 1215 (O’Connor, J).
35 Ibid.
36 Ibid.
37 Ibid.
38 Ibid, at 1215–16.
39 Ibid, at 1216.
That is not the only role that she seems to envisage an inquiry into international
consensus playing, since she also considered whether the international consensus
would ‘confirm’ other arguments of principle that the majority advances. She
concluded, however, that while such uses of international consensus would be
appropriate, they were unconvincing in this particular case:
Because I do not believe that a genuine national consensus against the juvenile death
penalty has yet developed, and because I do not believe the Court’s moral proportional-
ity argument justifies a categorical, age-based constitutional rule, I can assign no such
confirmatory role to the international consensus described by the Court.40
Scalia, J in dissent asked, perhaps somewhat mischievously, ‘Why would foreign

law not be relevant’ to the moral proportionality judgment?
If foreign law is powerful enough to supplant the judgment of the American people, surely it
is powerful enough to change a personal assessment of moral proportionality.41
The (probably) most controversial use of ‘foreign’ material by the United States
Supreme Court arose in Lawrence v Texas,42 in which the court held to be uncon-
stitutional under the Due Process Clause a state law that criminalised sodomy
between consenting adults. There were two main uses of foreign material in this
case. The material was used, first, to rebut an historical argument advanced in the
earlier Bowers v Hardwick case,43 in which the Court had upheld similar laws. In
Bowers, Chief Justice Burger (as he then was) had adopted the argument that the
history of Western civilisation and Judeo-Christian moral and ethical standards
was consistent with the use of such legal restrictions. However, Kennedy, J’s opin-
ion for the majority in Lawrence v Texas argued that the
sweeping references ... to the history of Western civilization and to Judeo-Christian
moral and ethical standards did not take account of other authorities pointing in an
opposite direction.44
Two particular pieces of evidence pointing in that opposite direction were cited,
the first being the report of the influential Wolfenden Committee in Britain, which
recommended the repeal of laws punishing homosexual conduct in 1957.45 The
United Kingdom Parliament enacted the substance of those recommendations
10 years later (except with regard to Northern Ireland).46 The second piece of
evidence used to rebut Burger, CJ’s historical argument was the jurisprudence of
40 Ibid.
42 Lawrence v Texas, 123 S Ct 2472 (2003).
43 Bowers v Hardwick, 478 US 186, 92 L Ed 2d 140, 106 S Ct 2841 (1986).
44 Lawrence v Texas, 123 S Ct 2472 at 2481 (Kennedy, J).
45 The Wolfenden Report: Report of the Committee on Homosexual Offences and Prostitution
(London, HMSO, 1957).

46 Sexual Offences Act 1967.
the European Court of Human Rights. In Dudgeon v United Kingdom,47 an adult

male resident in Northern Ireland stated that he was a practising homosexual
who desired to engage in consensual homosexual conduct. The laws of Northern
Ireland forbade him that right. He alleged that he had been questioned, his home
had been searched, and he feared criminal prosecution. The European Court of
Human Rights held that the laws proscribing the conduct were invalid under
the European Convention on Human Rights. Referring specifically to Dudgeon,
Kennedy, J said:
Of even more importance, almost five years before Bowers was decided the European
Court of Human Rights considered a case with parallels to Bowers and to today’s
case ... Authoritative in all countries that are members of the Council of Europe (21
nations then, 45 nations now), the decision is at odds with the premise in Bowers
that the claim put forward was insubstantial in our Western civilization.48
The second use of ‘foreign’ materials in Lawrence v Texas was even more con-
troversial because it sought to ascribe to these materials an additional function.
Kennedy, J clearly considered that the values that were relevant to interpreting
the Due Process Clause in this case were values held in common with at least
some other countries. To the extent that this was true, then, how other countries
interpreted and applied those common values was relevant to the interpretation
of the United States Constitution. In particular, it was relevant to ask whether
the approach put forward in Bowers had gained acceptance among those holding
these values in common. Citing two more named decisions of the European Court
of Human Rights that were decided after Bowers,49 Kennedy, J concluded:
To the extent Bowers relied on values we share with a wider civilization, it should be
noted that the reasoning and holding in Bowers have been rejected elsewhere. The
European Court of Human Rights has followed not Bowers but its own decision in
Dudgeon v. United Kingdom.50
Citing an amicus curiae brief submitted to the court in Lawrence v Texas by Mary
Robinson, the then United Nations High Commissioner for Human Rights, he
noted that
[o]ther nations, too, have taken action consistent with an affirmation of the protected
right of homosexual adults to engage in intimate, consensual conduct.51
What use would be made of this evidence? Effectively, the use made was to raise
a serious question as to whether the interest put forward by the government in
this case to support the continued criminalisation of sodomy was convincing
47 Dudgeon v United Kingdom (1981) 4 EHRR 149.

49 PG & JH v United Kingdom, App No 44787/98, (2001) 56 ECtHR 546, 25 September, 2001);
Modinos v Cyprus, (1993) 16 EHRR 485; Norris v Ireland (1991) 13 EHRR 186.
51 Ibid.
enough to warrant upholding these criminal restrictions, given the strength of the
competing right.
The right the petitioners seek in this case has been accepted as an integral part of human
freedom in many other countries. There has been no showing that in this country the
governmental interest in circumscribing personal choice is somehow more legitimate
or urgent.52
IV. JUDICIAL AND POLITICAL CRITIQUES OF JUDICIAL COMPARATIVISM
There are several current arguments that have been used to support a conclu-
sion that using foreign sources is problematic. First, such use is thought to alter
the balance between constraint and discretion that judges exercise in constitu-
tional rights interpretation. Judges in all jurisdictions are both empowered and
constrained at the same time by a set of rules and accepted practices. The use of
foreign legal material, it is said, alters that balance by giving more discretion to the
judge than hitherto. John Roberts, currently the Chief Justice of the United States,
said in his confirmation hearings before the United States Senate that,
relying on foreign precedent doesn’t confine judges. It doesn’t limit their discretion the
way relying on domestic precedent does. Domestic precedent can confine and shape the
discretion of the judges. Foreign law, you can find anything you want. If you don’t find it
in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia
or wherever.53
The assumption is, of course, that increased judicial discretion in exercising judi-
cial review is problematic, and this reflects, perhaps, a latent unease with judicial
review as currently practised and a judgement that it should not be expanded.
A second argument also arises from general scepticism and unease with judi-
cial review and the counter-majoritarian difficulty that it gives rise to. There has
been persistent criticism from sceptics that judicial review in some jurisdictions
is ‘results driven’, meaning that judges decide the result they want to achieve and
draw up reasons to support that conclusion, rather than letting the legal reason-
ing dictate the result, which is assumed to be the way proper judges behave. Some
have seen legitimising judicial recourse to foreign material as giving yet another
way that judges will be able to support the political choices that judges anyway
wish to make. Thomas, J concurring in Knight v Florida, and arguing against
Breyer, J’s references to foreign material on the effect of delays on the legitimacy
of carrying out the death penalty, suggested that
the only reason why this material was resorted to was there was no support in the
American constitutional tradition or in this Court’s precedent for the proposition that
52 Ibid.
53 Confirmation hearing for United States Supreme Court of John Roberts as Chief Justice,
September 2005.
a defendant can avail himself of the panoply of appellate and collateral procedures and
then complain when his execution is delayed.54
Had there been

any such support in our own jurisprudence, it would be unnecessary for proponents
of the claim to rely on the European Court of Human Rights, the Supreme Court of
Zimbabwe, the Supreme Court of India, or the Privy Council.55
Scalia, J dissenting in Roper v Simmons reiterated this view:

What these foreign sources ‘affirm’ rather than repudiate, is the Justices’ own notion
of how the world ought to be, and their diktat that it shall be so henceforth in
America.56
Judge Posner has argued extra-judicially that

[j]udges are likely to cite foreign decisions for the same reason that they prefer
quoting from a previous decision to stating a position anew: They are timid about
speaking in their own voices lest they make legal justice seem too personal and
discontinuous ... Citing foreign decisions is probably best understood as an effort,
whether or not conscious, to further mystify the adjudicative process and disguise
the political decisions that are the core, though not the entirety, of the Supreme
Court’s output (Posner, 2004).
This intuition is also reflected in the criticism of the way that judges choose
which jurisdictions to have regard to as involving ‘cherry-picking’. Justice Scalia’s
criticism of a court using foreign judicial opinions is of this type when he accuses
it of simply ‘looking over the heads of the crowd and picking out its friends’.57
Dissenting in Lawrence v Texas, he pointedly remarked on how the court’s discus-
sion of ‘these foreign views ... ignor[es], of course, the many countries that have
retained criminal prohibitions on sodomy’.58 A somewhat different aspect of the
charge of cherry-picking relates to the substantive issues concerning which the
court is willing to look at comparative material. Dissenting in Roper v Simmons,
Scalia, J pointed to the court’s willingness to invoke ‘foreign’ material in the death
penalty context, but not in other areas such as abortion, or separation of church
and state.
The Court should either profess its willingness to reconsider all these matters in
light of the views of foreigners, or else it should cease putting forth foreigners’ views
as part of the reasoned basis of its decisions. To invoke alien law when it agrees with
one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but
sophistry.59
54 Knight v Florida, 120 S Ct 459 at 460 (Thomas, J).

55 Ibid.
56 Roper v Simmons, 125 S Ct 1183 at 1229 (Scalia, J).
57 Roper v Simmons, 125 S Ct 1183 at 1223 (Scalia, J, dissenting).
58 Lawrence v Texas, 123 S Ct 2472 at 2495 (Scalia, J) (emphasis added).
A third criticism arises more from scepticism about the idea of universal
human rights generally than from scepticism about the use of judicial forums for
interpreting them. This objection has several elements. The first is that any appar-
ent agreement that exists at the international level camouflages massive variations
in actual practice. So, for example, Scalia, J, dissenting in Roper v Simmons, criti-
cised the majority as,
quite willing to believe that every foreign nation—of whatever tyrannical political
makeup and with however subservient or incompetent a court system—in fact adheres
to a rule of no death penalty for offenders under 18.60
A second aspect of this general scepticism is somewhat more sophisticated. It is

that the way in which particular practices operate in particular countries is so tied
in with other practices, that attempting to transplant the one without the others
is to engage in bad comparative law. For Judge Posner, a significant problem with
using foreign opinions,
is that they emerge from a complex socio-historico-politico-institutional background of
which our judges, I respectfully suggest, are almost entirely ignorant (Posner, 2004).
This position is not far from viewing the rights protected in each nation as so
context-specific, so culturally contingent as to render interpreting one’s nations
set of constitutional rights in light of another’s fatuous. Not surprisingly, we find
just such a view being expressed by Judge Posner. ‘To cite foreign law as authority’,
he argues,
is to flirt with the discredited (I had thought) idea of a universal natural law; or to sup-
pose fantastically that the world’s judges constitute a single, elite community of wisdom
and conscience(Posner, 2004).
Scalia, J, dissenting, in Atkins v Virginia, refers to the ‘practices of the “world com-
munity”, whose notions of justice are (thankfully) not always those of our people’.61
The fourth criticism of the use of judicial comparativism relates to its effect
in circumventing national democratic controls on the creation of law. Domestic
judges in most jurisdictions are appointed by bodies that are legitimated by
domestic legislation or by a domestic constitution, thus allowing for democratic
input directly or indirectly into their appointment. For John Roberts, in his
confirmation hearings, this raised a significant problem for the use of foreign
judgments. ‘If we’re relying on a decision from a German judge about what our
Constitution means’, he said,
no President accountable to the people appointed that judge and no Senate accountable
to the people confirmed that judge. And yet he’s playing a role in shaping the law that
binds the people in this country. I think that’s a concern that has to be addressed.62
60 Ibid, at 1226.
61 Atkins v Virginia, 563 US 304 at 348 (Scalia, J) (emphasis added).
62 See above n 55.
A similar concern arises in the context of references to world opinion more

generally, or Resolutions of the United Nations General Assembly, or human
rights treaties that have not been ratified. Here the problem is similar, that the
constitutional mechanism that requires a democratic mechanism before domestic
law is created is circumvented by judicial fiat. Scalia, J criticised the plurality’s use
of foreign sources in Roper v Simmons as based on the premise ‘that American law
should conform to the laws of the rest of the world’.63 He was particularly scath-
ing about the reference to unratified conventions or conventions which, though
ratified, had relevant United States reservations.
Unless the Court has added to its arsenal the power to join and ratify treaties on behalf
of the United States, I cannot see how this evidence favors, rather than refutes, its
position. That the Senate and the President … have declined to join and ratify treaties
prohibiting execution of under-18 offenders can only suggest that our country has either
not reached a national consensus on the question, or has reached a consensus contrary
to what the Court announces.64
In Atkins v Virginia, Rehnquist, CJ regarded the ‘uncritical acceptance’ of foreign

sources as ‘anti-democratic’65:
The Court’s suggestion that these sources are relevant to the constitutional question ...
in my view, is antithetical to considerations of federalism, which instruct that ‘any per-
manent prohibition upon all units of democratic government must [be apparent] in the
operative acts (laws and the application of laws) that the people have approved’.66
Scalia, J’s criticism of the use of ‘foreign’ sources in Atkins also reflects this view
when he argues that
where there is not first a settled consensus among our own people, the views of other
nations, however enlightened the Justices of this Court may think them to be cannot be
imposed upon Americans through the Constitution.67
It is this concern that also appears to be a significant part of the motivation

behind the (so far unsuccessful) proposal in the United States Congress to enact a
Constitutional Restoration Act, providing that,
[i]n interpreting and applying the Constitution of the United States, a court of the
United States may not rely upon any constitution, law, administrative rule, Executive
order, directive, policy, judicial decision, or any other action of any foreign state or
international organization or agency, other than the constitutional law and English
common law.68
63 Roper v Simmons, 125 S Ct 1183 (Scalia, J, dissenting).

65 Atkins v Virginia, 563 US 304 at 322 (Rehnquist, CJ dissenting).
66 Ibid.
67 Atkins v Virginia 563 US 304 at n 4 (Scalia, J).
68 HR 3799, 108th Congress § 201 (2004). See also HR Res 568, 108th Congress (2004); HR Res 468,
108th Congress (2003); Constitutional Preservation Resolution, HR Res 446, 108th Congress (2003).
Finally, the critics of the use of such foreign material argue that the distinction
that is made between judges using such ‘foreign’ material as helping to determine
the case (which advocates of the use of foreign judgments say is not the case), and
merely using such foreign material as relevant, and informative (which is how its
use is often characterised, for example, by the majority in Roper v Simmons), is
untenable. Scalia, J, dissenting in Roper, argued:
The Court’s parting attempt to downplay the significance of its extensive discussion of
foreign law is unconvincing. ‘Acknowledgment’ of foreign approval has no place in the
legal opinion of this Court unless it is part of the basis for the Court’s judgment which is
surely what it parades as today.69
In other words, supporters of the use of such material cannot have it both ways:
either the material is determinative (which few would accept), or the material is
irrelevant, in which case it should not be discussed.
V. FUNCTIONALISM, NATURAL LAW, AND THE DIALOGIC METHOD
How do these examples of the phenomenon relate to the different approaches to

comparativism discussed earlier? For Ruti Teitel,
[a] consensus appears to be forming regarding the relevance of foreign sources, at least
within circumscribed parameters. The justification for comparativist analysis is couched
largely in functionalist terms: as a basis for the resolution of specific constitutional
issues, particularly in areas of unsettled law (Teitel, 2004: 2570 at 2589).
Indeed, much of the debate between supporters and opponents of the use of judicial
comparativism, as discussed above, is couched in functionalist terms, with supporters
arguing that ‘foreign’ legal material helps them find solutions to legal problems that
are similar to, or can be illuminated by, approaches taken elsewhere. Opponents often
contest the idea that such comparisons can be of use, in part because they contest the
idea that the issues faced elsewhere are sufficiently similar that comparisons can ever
be useful. Mary Ann Glendon has neatly summed up the debate on this issue:
As the issue was framed recently in a debate between Justices Stephen Breyer and
Antonin Scalia, it comes down to this: The former says that if a judge abroad has dealt
with a similar problem, ‘Why don’t I read what he says if it’s similar enough? Maybe I’ll
learn something.’ Yet the latter would exclude such material as wholly without bearing
on the meaning of the Constitution; and quite apart from originalism, the different
political, constitutional, procedural and cultural contexts in other nations drastically
limit its relevance. Justice Breyer counters that the experience of others ‘may nonethe-
less cast an empirical light on the consequences of different solutions to a common legal
problem’ (Glendon, 2005).
Others, however, want to break out of the limits of a functionalist explanation
for judicial comparativism in human rights adjudication. In an article published
some time ago, I asked,
Is there something specific to human rights that explains the apparently greater use of
foreign case law in human rights cases?
I suggested (following Anne-Marie Slaughter (Slaughter, 1994) that judges may

consider themselves to be engaging in a common enterprise worldwide and that
to those who thought that, it would seem natural to engage in a judicial conversa-
tion with colleagues in other jurisdictions. The use of foreign judgments is one
way in which conversation is continued. I rejected, however, the idea that these
judges were engaged in ‘some form of new natural law’ enterprise (McCrudden,
2000).
Paolo Carozza, in commenting on my article in the course of his own
discussion of the phenomenon in the context of United States capital punish-
ment adjudication, agreed with the question I asked, but not my answer (Carozza,
2003). Carozza identified the extensive use of the concept of ‘human dignity’
alongside the use of comparative judicial opinions. He agreed with my view that
identified the judges’ ‘sense of sharing a common enterprise with judges in other
jurisdictions’ as one principal explanation for the use of comparative material.
He identified my explanation as ‘essentially functionalist, based in the shared
task of seeking solutions to common problems’ but regarded such functionalist
explanations as impoverished, since
there is more than functionalism present in the ethical premise of the value of human
dignity so widely shared among the different courts involved in the transnational
jurisprudence of capital punishment (Carozza, 2003: 1031 at 1081).
He supported this argument with evidence that,
on many occasions we see judges specifically abstracting from and eschewing compari-
sons in the functional terms of ‘common solutions to common problems’ and speaking
much more in terms of ‘common principles for a common humanity’. It is, more often
than not, the judge who wants to avoid foreign influences who takes a functionalist
approach focusing on the unique, pragmatic aspects of the problem at home (ibid).
Leaving aside whether my explanation was ‘functionalist’, Carozza’s critique is

important in opening up a debate as to whether non-functionalist explanations
of the phenomenon are more convincing. For Carozza, my ‘mistake’ was in too
easily rejecting what I referred to as ‘some form of new natural law’. For Carozza,
natural law involves accepting that,
moving from universal principles of justice (like basic human rights norms) to posi-
tive law involves the exercise of human reason in the contingent contexts of practical
possibility, culture, history, and so forth. The concrete specification of the principles
of natural law, therefore, necessarily admits a variety of reasonable solutions to most
problems (ibid).
Viewed from this perspective, my contentions regarding what judges are actually
saying that they do
does not at all contradict the idea that there are some implicit natural law premises
operative in the phenomenon of cross-judicial discourse on human rights (as distinct
from other substantive areas of law) (Carozza: 1031 at 1082).
In the capital punishment cases,

the tendency of courts ... to consistently place their appeal to foreign sources on the
level of the shared premise of the fundamental value of human dignity is a paradig-
matic example of naturalist foundations at work. Despite differences in positive law, in
historical and political context, in religious and cultural heritage, there is the common
recognition of the worth of the human person as a fundamental principle to which the
positive law should be accountable (ibid).
For Carozza, the ‘common enterprise’ that I identified is,

first and foremost, the working out of the practical implications, in differing concrete
contexts, of human dignity for the rights to life and physical integrity (ibid: 1031 at
1081–2).
However, there is a third alternative that is neither functionalist nor based in

natural law. We have seen that judges not infrequently seek to distinguish judg-
ments from other jurisdictions, explaining why they are not persuasive. Why? A
possible explanation of this particular aspect of the phenomenon, and perhaps of
the phenomenon as a whole, is provided by the dialogical method of comparativ-
ism discussed earlier. Anne-Marie Slaughter speaks of the emergence of a ‘global
jurisprudence’, referring to
the existence of active dialogue among the world’s judges in the language of a common
set of precedents on any particular issue. No one answer is the right one; the principles
of pluralism and legitimate difference again prevail (Slaughter, 2003: 203).
She has noted a trend to ‘dialogue rather than monologue, and deliberation
rather than gap-filling’. (ibid: 196) Claire L’Heureux-Dubé, a former member of
the Canadian Supreme Court, has argued that ‘the process of international influ-
ence has changed from reception to dialogue’ (L’Heureux-Dubé, 1998: 17). Justice
Ginsburg, of the United States Supreme Court has referred to the ‘value of com-
parative dialogue’ (Ginsburg, 2005: 578). Sujit Choudry has also set his discussion
of the phenomenon within a model of dialogical interpretation (Choudry, 1999:
851–75).
There appears to be an identifiable move to use comparative approaches as
one of the techniques of trying to reach ‘solutions’ to issues of human rights
interpretation that are not the same in each jurisdiction, that are not imposed
on a jurisdiction simply because another has adopted it, and that are not
necessarily considered to be examples of emerging universal norms. The com-
parative method in this context often involves judges considering what occurs
in other jurisdictions as well as their own in order to appreciate dimensions
of the issue that might not otherwise have been as apparent. It is ‘dialogic’
because it involves each jurisdiction not only contributing to the bank of
experience that each other jurisdiction draws on, but also discussing this with
those in other jurisdictions who are regarded as carrying out a similar inter-
pretative role. It is in the development of this dialogic method applied to the
problem of incompletely theorised agreements in human rights that the most
fruitful role for judicial comparativism may lie.
VI. CONCLUSION
A more complete study of the complex phenomenon discussed in this chapter

should examine particular issues I have identified more systematically. Essentially,
I have identified some empirical questions (How far does it happen, and where?);
a jurisprudential question (Can we identify criteria which help explain why it does
or does not happen?); and a normative question (Is it legitimate?). None of these
basic questions has yet been adequately answered. The empirical question requires
more consistently gathered evidence than the somewhat anecdotal evidence drawn
from the one jurisdiction presented here. The jurisprudential question requires a
more thorough examination of how the phenomenon is illuminated by current
debates on the theory of judicial interpretation, and emerging theories of com-
parative law. The normative question requires a closer study of the relationship
between the phenomenon and the universality of human rights.
1. Do you agree with Justice Scalia’s criticism of a court using foreign judicial
opinions when he accuses it of ‘looking over the heads of the crowd and
picking out its friends’?
2. Do you agree with Mary Ann Glendon that there is a ‘crucial difference
between the legitimate use of foreign material as mere empirical evidence
that legislation has a rational basis, and its use to buttress the court’s own
decision to override legislation’, when she contrasts the (inappropriate) use
of foreign law by Justice Breyer in Lawrence v Texas, with the (appropriate)
use of such law by Chief Justice Rehnquist in Washington v Glucksberg?
3. Do you agree with Judge Posner’s argument that: ‘citing foreign decisions
is probably best understood as an effort, whether or not conscious, to
further mystify the adjudicative process and disguise the political deci-
sions that are the core, though not the entirety, of the Supreme Court’s
output.’?
4. Do you agree with John Roberts in his confirmation hearings that ‘relying
on foreign precedent doesn’t confine judges. It doesn’t limit their discre-
tion the way relying on domestic precedent does. Domestic precedent can
confine and shape the discretion of the judges. Foreign law, you can find
anything you want’.
5. Is the use of foreign judicial opinions ‘undemocratic’?
6. Do you consider, with Judge Posner, that a significant problem with

using foreign opinions, ‘is that they emerge from a complex socio-
historico-politico-institutional background of which our judges, I
respectfully suggest, are almost entirely ignorant’?
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Internationalism in American Courts’ 43 San Diego Law Review 1.
Barak, A (2005) ‘Response to The Judge as Comparatist: Comparison in Public Law’ 80
Carozza, PG (2003) ‘“My Friend is a Stranger”: The Death Penalty and the Global Ius
Commune of Human Rights’ 81 Texas Law Review 1031.
Choudhry, S (1999) ‘Globalization in Search of Justification: Toward a Theory of
Comparative Constitutional Interpretation’ 74 Indiana Law Journal 819.
—— (2004) ‘The Lochner Era and Comparative Constitutionalism’ 2 International Journal
of Constitutional Law 1.
Cleveland, SH (2006), ‘Our International Constitution’ 31 Yale Journal of International
Law 1.
Dixon, R (to be published) ‘Co-operative Constitutionalism and Constitutional
Comparison: Traces of Dialogue?’.
Ginsburg, RB (2005) ‘“A Decent Respect to the Opinions of [Human]kind”: The Value of a
Comparative Perspective in Constitutional Adjudication’ 64 Cambridge Law Journal 575.
Ginsburg, RB (2006) ‘“A Decent Respect to the Opinions of [Human]kind”: The Value of a
Comparative Perspective in Constitutional Adjudication, Constitutional Court of South
Africa’, February 7, 2006, http://www.supremecourtus.gov/publicinfo/speeches/sp_02-
07b-06.html
Glendon, M-A (2005) ‘Judicial Tourism: What’s wrong with the US Supreme Court citing
foreign law’ The Wall Street Journal, September 16, 2005 http://www.opinionjournal.
com/editorial/feature.html?id=110007265
Harding, SK (2003) ‘Comparative Reasoning and Judicial Review’ 28 Yale International Law
Journal 409.
Henkin, L (2001) ‘The International Judicial Dialogue: When Domestic Constitutional
Courts Join the Conversation’ 114 Harvard Law Review 2049.
L’Heureux-Dubé, C (1998) ‘The Importance of Dialogue: Globalization and the
International Impact of the Rehnquist Court’ 34 Tulsa Law Journal 15.
Hoffmann, Lord (1999), ‘Human Rights and the House of Lords’ 62(2) Modern Law
Review 159.
Jackson, VC (2002) ‘Narratives of Federalism: Of Continuities and Comparative
Constitutional Experience’ 51 Duke Law Journal 223.
—— (2004a) ‘Comparative Constitutional Federalism and Transnational Judicial Discourse’
2 International Journal of Constitutional Law 91.
—— (2004b) ‘Yes please, I’d love to talk with you: The court has learned from the rest of
the world before. It should continue to do so’, Legal Affairs, July/August 2004. http://
www.legalaffairs.org/issues/July-August-2004/feature_jackson_julaug04.msp--
—— (2005) ‘Foreword—Comment: Constitutional Comparisons, Convergence, Resistance,
Engagement’ 119 Harvard Law Review 109.
Jackson, VC and Tushnet, M (2002) Defining the Field of Comparative Constitutional Law
(Westport, CT, Praeger Publishers).
—— (2006) Comparative Constitutional Law 2nd edn (New York, Foundation Press).
Jacobs, FG (2003)’Judicial Dialogue and the Cross-Fertilization of Legal Systems: The
European Court of Justice’ 38 Texas International Law Journal 547.
von Jhering, R (1955) Geist des römischen Rechs auf den Verschiedenen Stufen Seiner
Entwicklung (Schwabe, 9th ed).
Jacobson, G (2003) ‘The Permeability of Constitutional Borders’ 82 Texas Law Review
1763.
Kentridge, S (2005) ‘Comparative Law in Constitutional Adjudication: The South African
Experience’ 80 Tulane Law Review 245.
Kreimer, SF (1999) ‘Invidious Comparisons: Some Cautionary Remarks on the Process of
Constitutional Borrowing’ 1 University of Pennsylvania Journal of Constitutional Law 640.
Larson, JL (2004) ‘Importing Constitutional Norms from a ‘Wider Civilization’: Lawrence
and the Rehnquist Court’s Use of Foreign and International Law in Domestic
Constitutional Interpretation’ 65 Ohio St Law Journal 1283.
Levinson, S (2004) ‘Looking Abroad When Interpreting the US Constitution: Some
Reflections’ 39 Texas International Law Journal 353.
McCrudden, C (2000) ‘A Common Law of Human Rights?: Transnational Judicial
Conversations on Constitutional Rights’ 20 Oxford Journal of Legal Studies 499.
—— (2003) ‘Human Rights and Judicial Use of Comparative Law’ in E Örücü (ed),
Judicial Comparativism in Human Rights Cases (London, UK National Committee of
Comparative Law).
Markesinis, B and Fedtke, J (2005) ‘The Judge as Comparatist’ 80 Tulane Law Review 11.
Örücü, E (ed) (2003) Judicial Comparativism in Human Rights Cases (London, UK National
Committee of Comparative Law).
Posner, R (2004) ‘No thanks, we already have our own laws: The court should never view
a foreign legal decision as a precedent in any way’, Legal Affairs, July/August 2004. http:
//www.legalaffairs.org/issues/July-August-2004/feature_posner_julaug04.msp
Rosenfeld, M, Sajo, A, Baer, S and Dorsen, N (eds) (2003) Comparative Constitutionalism:
Cases and Materials (New York, West Publishing Company).
Saunders, C (2006) ‘The George P. Smith Lecture in International Law: The Use and Misuse
of Comparative Constitutional Law’, 13 Indiana Journal of Global Legal Studies 37.
Slaughter, A-M (1994) ‘A Typology of Transjudicial Communication’ 29 University of
Richmond Law Review 99.
—— (2003) ‘A Global Community of Courts’ 44 Harvard International Law Journal 191.
Sunstein, CR (1996) Legal Reasoning and Political Conflict (New York, Oxford University
Press).
Teitel, R (2004) ‘Book Review: Comparative Constitutional Law in a Global Age’ 117
Harvard Law Review 2570.
Tushnet, M (1999) ‘The Possibilities of Comparative Constitutional Law’ 108 Yale Law
Journal 1225.
Waldron, J (2005) ‘Foreword—Comment: Foreign Law and the Modern Ius Gentium’ 119
Young, EA (2005) ‘Foreword—Comment: Foreign Law and the Denominator Problem’ 110
Zweigert, K and Kötz, H (1998) Introduction to Comparative Law, 3rd edn (trans) T Weir
Website connections:
Video archive and transcript of discussion on the constitutional relevance of foreign court
decisions, between US Supreme Court Justices Antonin Scalia and Stephen Breyer,
American University Washington College of Law, 13 January, 2005 http://www.wcl.
american.edu/secle/founders/2005/050113.cfm
Confirmation hearings for US Supreme Court of John Roberts as Chief Justice, September 2005
http://www.c-span.org/VideoArchives.asp?CatCodePairs=Current_Event,SCourt&Arc
hiveDays=365&Page=14 http://www.nytimes.com/2005/09/13/politics/politicsspecial1/
roberts_textindex.html?ex=1152936000&en=c622ad6bd5a1f97f&ei=5070
Confirmation hearings for US Supreme Court of Judge Samuel Alito, January 2006 http://
www.c-span.org/homepage.asp?Cat=Current_Event&Code=SCourt&ShowVidNum=5
1&Rot_Cat_CD=SCourt&Rot_HT=&Rot_WD=&ShowVidDays=365&ShowVidDesc=
&ArchiveDays=365
17
Comparative Private Law in Practice:
The Process of Law Reform
SJEF VAN ERP*
KEY CONCEPTS
Law reform projects; Economic regional and global integration; Project

advising; Experts; Project preparation; Donor country; Receiver country;
Legal transplants; Expert preparation; Consultation process; The role of
interpreters; The training of judges; Legal traditions; A pragmatic approach
to comparative law; ‘The adequate approach to comparative law’
I. INTRODUCTION
U
ntil some 20 or 30 years ago, comparative law was seen as a rather exotic
branch of the law. It was a subject that could be chosen at the end of one’s
legal studies to learn of the remarkable ways in which foreign lawyers
were educated and trained to think. Frequently, it also meant that one had to read
legal materials in a foreign language. Comparative law was meant for those who
were curious of mind. Perhaps a visiting foreign law professor might give a guest
lecture in a foreign language on a topic one did not really understand, but, as a
curious student, one still listened with great attention.
How the world has changed in such a short period! Comparative law, at least in
Europe, has become one of the core subjects in the curricula of law faculties. In
some law faculties comparative law is even at the heart of the law programme. The
reasons behind this are the changing role and practical importance of knowledge
in foreign legal systems. It is realised more and more that foreign law is not really
so ‘foreign’ anymore. Within the European Union, to give but one example, grow-
ing intra-European trade has led to an increasing number of cases in which at
least one of the parties is confronted with a different legal system to his/her own.
* I would like to thank Mel Kenny and Patrick O’Callaghan, researchers at the Centre of European
Law and Politics at the University of Bremen, for their critical comments on this chapter.
400 Sjef van Erp
Although in such a case the assistance of a lawyer from that foreign legal system
will be necessary, that party (or his/her lawyer) still has to be able to understand
at least the basics of what the foreign lawyer explains. Having studied comparative
law facilitates the communication process.
This growing number of contacts with foreign law, provoked by economic
regional and global integration, gives rise to an increasing need to harmonise or
even unify certain legal areas to promote even more intensive trade. Legal diver-
sity is often seen as a source of unnecessary ‘transaction costs’, which should be
avoided. More often than not, these harmonisation or unification attempts are
being prepared by comparative legal studies to examine the various solutions to
be found in relevant legal systems and evaluate these solutions in order to decide
what would be the best approach.
Next to the practical use of comparative law in such harmonisation and uni-
fication projects, comparative law became highly relevant when, after the fall of
communism, countries that had so-called ‘socialist’ legal systems wanted funda-
mentally to change their economies. State-planned economies were to become
free market economies. This meant that the law also had to change drastically. If
the law had previously only allowed private ownership to a very limited degree
and had declared that the means of production were in the hands of the state,
the law had now to allow private ownership as a matter of principle. If trade
had previously been in the hands of state-owned enterprises, which concluded
administrative contracts between themselves within the framework of a central
five-year plan, private companies now had to be allowed to contract freely on the
basis of market conditions. It meant that the means of production and state enter-
prises had to be privatised. This had all to be done within a fairly short period, as
the economies of most communist states at that time were close to bankruptcy.
If, furthermore, a state had started negotiations with the European Union to
become a new member, that state, as part of the accession process, had to adopt
the European ‘acquis communautaire’, which is already an enormous endeavour
in itself, even without the need to reform the national legal system drastically. In
order to accelerate the law reform process accompanying the economic transition,
foreign lawyers were asked to give advice as to how to change the law and how to
adopt the ‘acquis communautaire’. This chapter discusses what role these lawyers
played in the reform process and how comparative law was used as a practical
tool.
Not only the law had to be changed, but also the way the law had to be admin-
istered and the way courts decided cases. First of all, the independence of the judi-
ciary had to be secured. Under communism, judges were not really independent.
More than once I have heard from judges that a local secretary of the Communist
Party called that judge to inform him/her that the Party would very much favour
a particular outcome. Such ‘telephone justice’ was, of course, to be absolutely
forbidden in a legal system firmly based on the rule of law. This meant that a
fundamental change of mind and legal culture had to be achieved, otherwise the
changes with regard to substantive law would not have the desired result. Here,
Comparative Private Law in Practice 401
again, foreign lawyers, especially judges, were asked to give advice and organise
training sessions.
In the following paragraphs I will discuss how, generally speaking, a law reform
project proceeds. Topics to be discussed will include how lawyers get involved in
these projects as advisors (frequently called ‘experts’), how they prepare them-
selves, how they give advice (written advice, oral presentations, discussions, com-
ments on legislative drafts) and how judges are trained to work as independent
officials applying the law in a non-bureaucratic way.
II. PROJECT PREPARATION: CHOICE OF EXPERTS
The initiative for a law reform project can be taken by either a particular coun-
try or by an organisation that is in need of advice—I will call such a country or
organisation the ‘receiving country’ and ‘receiving organisation’—or it can be
taken by a ‘donor’ country or organisation that feels it can be of assistance. Donors
can be international organisations such as the European Bank for Reconstruction
and Development, the Asian Development Bank, the World Bank and the United
Nations Development Programme.1 Although the first three of these institutions
are banks, they have been very much involved in law reform in order to create a
legal environment in which a market economy can develop. A donor could also
be a particular country (usually acting via its Ministry of Justice) or a national
organisation from that country aiming to assist foreign law reform projects.
Examples of the latter are the Deutsche Gesellschaft für Technische Zusammenarbeit
(GTZ), the Dutch Center for International Legal Co-operation (CILC) and the
United States Agency for International Development (USAID).2
Gradually, after contacts at the level of academics and civil servants have been
restored, a development can be seen towards more direct cross-border contacts
between lawyers. Once networks between lawyers have been created, it is easier
for lawyers in the receiving country to approach a foreign colleague abroad more
directly. However, when funding is required, the above-mentioned organisations
will often be directly or indirectly involved.
As far as I know, most—not to say all—Central and Eastern European coun-
tries that have gone through a transition process from a planned to a market
economy have requested at least some assistance during their processes of law
reform. However, law reform projects are undertaken in various parts of the world
and I would like to avoid the impression that what I am writing is limited to law
reform in Europe. These law reform projects are certainly not always related to a
1 For more information, see the respective websites of these financial institutions. European Bank
for Reconstruction and Development: http://www.ebrd.com/; Asian Development Bank: http://www.

adb.org/About/default.asp; World Bank: http://www.worldbank.org/; United Nations Development
Programme: http://www.undp.org/.
2 GTZ: http://www.gtz.de/en/index.htm; CILC: http://www.cilc.nl/; and USAID: http://www.usaid.
gov/.
402 Sjef van Erp
change of economic system. To give but one example: a country that wants to set
up a land registry might seek the help of a state in which a well-functioning land
registry system already exists.3 This chapter, however, will take as a starting point
law reform within Europe as a result of the fall of communism.
Depending upon the donor, either a tender procedure is followed, according
to which organisations that intend to be involved in the project make an offer at
a given price, or organisations are contacted directly. In both cases the organisa-
tions approach experts, either because the donor needs to be informed about the
experts as part of the bidding process or because the organisation wants to be
certain beforehand that it can fulfil its promises to give the required assistance.
Experts are chosen basically on one ground: the person concerned must truly
be an expert in his/her field of law. Although a national organisation generally
prefers experts from its own country, sometimes experts from other countries are
approached as well. This happens for example if an organisation in a common
law jurisdiction, is asked to give advice to a country that belongs to the civil law.
Furthermore, experts are preferred who have some basic knowledge of the legal
system as it existed before the fall of communism. Especially during the first years
after the fall of communism, knowledge about the old socialist legal systems was
of great importance. In order to understand what had to be changed and how,
the existing law had to be understood. Otherwise, a useful exchange of ideas with
lawyers from the receiving country would be difficult.
Let me give an example from private law. In socialist legal systems, private
ownership was only allowed to a very limited degree. Ownership of houses or
farm estates was curtailed to prevent accumulation of wealth in the hands of a
few private parties (‘capitalists’). What was allowed depended upon the country.
Consumer goods for private purposes were still recognised as private property,
once they had been acquired (frequently after queuing). Trading in goods could
only be done by state-owned enterprises, as the means of production and the
goods produced were in the hands of the state. The various factories (numbered,
such as: shoe factory 1) concluded administrative agreements among themselves
in order to implement the economic five-year plan. Depending upon the coun-
try and upon the period, hardly any (or, sometimes, a measure of) freedom was
allowed to the managers of these factories to implement the plan. In a market
economy this had to change drastically. Markets had to be created, and this pre-
supposed the existence of private ownership and freedom of contract. Foreign
experts had to be aware of the existing situation in order to understand lawyers
who had been working in a socialist legal system, sometimes for their whole lives.
Creating a market economy means the creation of choice and freedom, but it
also means less protection provided by the state. This required a radical change
of mentality, and the foreign expert had to understand this. Debates on draft civil
3 See, eg the information on international projects on the website of the Dutch Land Registry:
http://www.kadaster.nl/international-english/default.html.
codes are, in such a situation, never purely technical discussions, as the new rules
are the expression of a new economic model and a new, sometimes experienced
as alien, mentality. For lawyers from the receiving state it was sometimes difficult
to accept that foreign lawyers from the West could change from representations
of the capitalist threat to colleagues in the search for legal solutions. Communism
was still seen by some lawyers as the ideal society, in which everything would be
shared by all, and where one worked according to one’s abilities and received
according to one’s needs. From an outsider’s viewpoint this may sound unrealistic
and it may be clear that the ideal was never reached, but the force of believing in
ideals should not be underestimated. I need only remind the reader of the inspira-
tion which some still derive from the ‘American dream’ that you can start your life
as a newspaper boy and end as the owner of a newspaper conglomerate.
Not only does the expert need to understand the pre-existing law, or at least be
willing to learn more about it, but the expert must also be able to at least under-
stand and speak English, preferably also German and/or French. In my experience
English is the language most frequently used, followed by German. French is only
used occasionally. It might seem that this gives an advantage to lawyers educated
in, for example, the United Kingdom or the United States, but this need not
necessarily have to be the case. The English legal language is intimately linked to
the English common law and this might be highly problematic when discussing
law reform in a civil law system. Law reform in civil law systems can be far more
adequately discussed in a civil law language, such as French or German. That is
why sometimes, although English is the main language, experts and lawyers from
the receiving country discuss certain problems in German or French.
III. EXPERT PREPARATION
After agreement has been reached between the donor and the organisation in
charge of performing the contract, the experts are informed that they are, in turn,
expected to perform their (in most cases informal) contracts with the organisation
through whom they will offer their services to the receiving country. Generally the
so-called ‘TOR’ (Terms of Reference) are agreed upon, in which the purpose of the
project is laid down and the various work packages are defined, such as the number
of expert meetings or seminars. The responsible project manager then organises a
first meeting with the experts and is also in touch with the receiving country.
It is at this stage that the experts receive more information on the receiving
country’s legal system. Legislation, if available in translation, is provided and it is
discussed which additional legal texts should be translated to enable the experts to
prepare themselves. All legal documents to be discussed (eg draft civil code, draft
legislation) will have to translated into a language which the experts understand.
If the lawyers of the receiving country do not speak English, German or French
the meetings cannot take place without an interpreter. Two forms of interpre-
tation can be used: consecutive or simultaneous interpretation. Consecutive
404 Sjef van Erp
translation means that after someone puts forward what he/she wants to say,
that person then waits to allow the interpreter to translate into the language
required. In case of simultaneous translation the interpreter translates what was
said immediately. It will be clear that with consecutive translation much time is
lost. If a presentation is scheduled for one hour, it in effect means half an hour.
The translator can be someone from the country of the expert, who speaks his/her
language, but frequently the interpreter comes from the receiving country and
only speaks one foreign language, usually English. It can happen that the (draft)
legal text to be discussed has been translated into a language that is understood by
the expert (eg into German), whereas the interpreter can only translate between
his/her national language and English or the other way around. This creates a
situation which can be highly demanding for all the lawyers involved. It may even
become more complicated when the experts want to discuss a particular point
among themselves quickly and they choose to do this in their own language. The
same happens when lawyers from the receiving country want to discuss a particu-
lar point among themselves in their own language. The linguistic process then
becomes highly hazardous and so, consequently, the process of giving legal advice.
It could mean—and this is an example from a situation I once found myself in—
that after a discussion by Dutch experts in Dutch on a draft civil code translated
from the original language into German, the outcome of that discussion had to
be explained to the interpreter in English, who would then have to translate this
into the national language of the lawyers from the receiving country. When sev-
eral legal languages are involved (in my example, four) varying concepts are also
involved and both the experts as well as lawyers from the receiving country (and,
not to be forgotten, the interpreters!) must be aware of the pitfalls.
IV. THE PROCESS OF GIVING ADVICE
The actual consultation process can take place in several ways. It can be done in
the form of conferences and seminars, with participants from legal practice, the
academic legal world and the civil service involved. These conferences and semi-
nars are usually held in the receiving country, but sometimes in the donor country
to allow lawyers from the receiving country to visit, for example, a Ministry of
Justice or the Supreme Court. During these conferences and seminars presenta-
tions are made, followed by discussion. A different form, frequently used when
the topic is to discuss legislative drafts (such as a civil code), is an expert meeting.
During such a meeting a limited number of people attend—from the receiving
country only those who are directly involved in the legislative process. The discus-
sions generally take place on the basis of a presentation by both the lawyers from
the receiving country and the experts. This is then followed by a detailed discus-
sion of legislative texts. After the session, sometimes the discussion continues by
e-mail. This can be done on the basis of a supplementary questionnaire or by
answering individual questions.
A difficult aspect of these meetings is the actual preparation, ie choice of top-

ics and access to documents. If, for example, a draft civil code is to be discussed
the text should be available in translation long before the meeting. This is not
always done. It may also be useful to have a translation of existing legislation.
Furthermore, anyone who takes part in these meetings knows that black letter
rules do not present the whole picture of the law. This means that questions
have to be prepared on the impact of case law as well as legal and commercial
practice. This has to be done by both the lawyers from the receiving country,
and the experts. Particularly the experts, but frequently also the lawyers from
the receiving country, are well-experienced comparative lawyers who under-
stand the risks of misunderstanding and know how to avoid these risks as far as
possible.
V. THE TRAINING OF JUDGES
After the law has been changed, a mentality change has to take place. Everyone
involved in the law reform process realises this. A mentality change, however,
does not happen overnight and it has to include all legal actors, particularly the
judiciary. During the communist era courts were not independent in the way
that they are considered to be independent in, for example, Western Europe and
the United States. Courts were bureaucratic institutions under the control of the
government. Reference can be made to the Russian ‘Prokuratura’ which controlled
the courts. Once I was told that a government had exercised indirect pressure on
a court by limiting the supply of coal to the courthouse during a winter period,
thus creating an unworkable atmosphere. Under the rule of law, judges make
up their own minds and they are no longer dependent upon circular letters or
instructions from the government or the Communist Party. Freedom, however,
brings with it responsibility. How should open-ended norms, such as ‘good faith’,
be interpreted?
In order to support judges in their endeavours to form a truly independent judi-
ciary, training sessions are organised to discuss the role of courts under the rule of
law. Independence in this respect means that the judiciary dares to be creative and,
if necessary, shape events, albeit within the limits set by the constitutional separa-
tion of powers and a system of checks and balances. The experts in these sessions
are, of course, usually experienced judges from, eg, a donor country.
The problems such as translation and preparation, discussed above, can also
be seen here. Generally speaking, it can be said that the experts/judges involved
either already have a strong comparative law interest or come with an open mind
and are willing to understand their colleagues. What is interesting to note is that
judges seem to be able to understand one another fairly quickly. Reading claims
and defences, listening to oral argument, discussing a case in chambers, deciding
a case and writing a judgment seems to provoke the same problems, but more
importantly, the same attitude everywhere.
406 Sjef van Erp
VI. CRITICAL EVALUATION
It will have become clear that the process of giving advice in a law reform pro-
ject demands a high level of awareness of possible misunderstandings. Lawyers
involved in such projects generally develop an attitude that enables them to avoid
problems as much as possible, although misunderstanding can never be excluded.
Misunderstanding is not, however, characteristic only of law reform projects,
but of human communication generally. What if, to avoid any misunderstand-
ing, these projects did not take place? An opportunity would have been missed
to try to help lawyers from another legal system who had requested assistance. If
all those involved realise the difficulties and also realise that misunderstandings
might occur, the risks involved are brought back within acceptable limits. In my
inaugural lecture I have called this the adequate approach to comparative law (van
Erp, 1998).
What I consider to be of utmost importance is the expert’s knowledge (the per-
son should be a real ‘expert’ and not simply be called such because of his/her being
a lawyer from the West), his/her legal, socio-cultural, economic and political aware-
ness and his/her integrity. As to integrity, funding could be a problem, although
usually it is not. Funding can, of course, influence the aim of the law reform pro-
ject. If, to give but one example, a particular organisation deems it inevitable for
future economic development that a particular legal model is adopted, this might
be the explicit or implicit aim of the project. It is particularly this latter issue of
implicit aims, which might be problematic for independent experts. In the case of
explicit aims, an expert can decide to take part or not, depending upon whether
he/she agrees with such an aim. It is, of course, completely different with regard
to implicit aims. In the latter case, it might only become clear during the consulta-
tion process what the donor expects, and this might then create problems if the
expert disagrees or if the lawyers from the receiving country are not prepared to
follow the path chosen by the donor. Sometimes not even the donor realises that
it had set its own implicit aims. It could, for example, very well be the case that the
funding organisation is so convinced of the rationality and reasonableness of the
solutions it favours that deviating opinions by experts—particularly if they come
from the same country as the donor—come as an unexpected and unwelcome
surprise. In my experience, the chance that this may happen arises especially when
the donor organisation is established in a common law jurisdiction and the expert
is a civil lawyer.
This aspect of law reform brings us to the economic and political side of the
process. If a country adopts a model developed in another country, that is, a ‘legal
transplant’, the donor country gains an advantage over the receiving country, as its
own lawyers will then have better insight into the law of the receiving country than
lawyers from the receiving country itself (see Watson, 1993). It would make doing
business by eg companies from the donor country easier, as the law will be familiar
and this might also be of advantage vis-à-vis competitors from other countries for
whom that particular part of the law might not be so familiar. A receiving country
might experience this as a ‘take-over’ and for that reason reject the foreign solution.
At the end of the day, it is the receiving country that decides what the new law will
be. However, with regard to the adoption of the European ‘acquis communautaire’,
the European Commission in Brussels can exercise decisive influence as to coun-
tries that intend to become Member States of the European Union. It is a condition
for membership that the existing acquis is adopted.
A foreign expert must therefore realise what the aims of the law reform project
are, what his/her expertise is and what one’s role is expected to be. In my experi-
ence, experts are especially highly valued who know their national legal system
inside out both from a theoretical as well as a practical viewpoint, who have suf-
ficient comparative expertise to be able to explain different solutions chosen in
different legal systems, and who know when to step back and accept that the final
decision as to the new law is part of the political process in the receiving country.
Comparative legal analysis is a way to counterbalance an expert’s own prejudices
(in the sense of what in German is called ‘Vorverständnis’(‘preconception’)),
meaning that one realises and becomes aware of one’s own cultural, social, eco-
nomic, political and even personal background and how it affects legal thinking.
All these aspects of personality are an integral part of the way a person thinks and
argues and are therefore relevant for one’s self-perception also as a lawyer. In my
view, which I expressed in my inaugural lecture at the University of Maastricht in
1998, comparative law is only possible in practice if it follows, what I called, the
adequate method of comparative law. The comparative lawyer must constantly
reflect upon his/her work within the context of the project in which he/she is
involved. A law reform project demands a different approach than an in-depth
academic article. If this pragmatic approach is used, useful results can be reached
in practice. The possible post-modern death of comparative law, as would fol-
low from Pierre Legrand’s views on comparative law, is not likely to happen (cf
Legrand, 1999; and Watson, 2000). Post-modern theory is trumped by practice.
As to the results of law reform projects, one has to be realistic and not ide-
alistic. Sometimes the direct influence of the advice given can be detected, but
that does not mean that the new law in the receiving country really functions
well or is applied at all. Introduction of the English-American trust in a civil law
system might be the outcome of pressure from advisers inspired by a common
law approach, but that does not mean that the legal system is able to incorporate
a concept which is alien to that system. What happens is the same as can be seen
with the transplant of an organ: it is rejected. What are the factors which favour
the adoption of a foreign solution? First of all, if the solution comes from the same
tradition (in Central and Eastern Europe, the civil law) it is easier to follow such a
solution than one from a different tradition. Secondly, if the advice given is seen as
objective information, based upon arguments pro and contra and presented from
a comparative perspective without arguing from a purely nationalist perspec-
tive, the advice is more likely to be considered seriously or to be followed. This
means that only making references to a particular national civil code, without
referring also to other solutions and discussing developments at a European
408 Sjef van Erp
level—such as the Lando Principles (Principles on European Contract Law)

or the work concerning the European Common Frame of Reference aimed at
giving a systematic overview of large parts of European private law—is counter-
productive.4 Thirdly, it should always be made clear that the expert is there to give
advice and not to decide the matter. Fourthly, it is important that the receiving
country takes the initiative for asking advice itself. Fifthly, advisers from a smaller
jurisdiction have a certain advantage, because, if the donor organisation is also
from that same country, it is less likely that the donor may have a hidden agenda
with implicit (eg political) aims.
To conclude, it can be said that giving advice in a law reform project shows the
strength of comparative law as a method, a way of thinking, and as a source of
knowledge. Its influence is, first of all, intellectual, as it leads to reflection on legal
solutions that might otherwise be considered to be self-evident. Comparative legal
analysis can also influence judicial decision-making and the work of the legisla-
ture, but this influence is sometimes somewhat invisible, as it might be hidden in
preparatory documents. As we have seen, comparative law can also contribute to
the success of a law reform project. Nevertheless, also here the results of compara-
tive legal analysis may be less clear and difficult to define.
1. What examples do you know of the practical use of comparative law?

2. Give a description of a law reform project, discussing aims and results.
3. Give examples of legal transplants and evaluate whether these transplants
have been successful.
4. What are the essential characteristics of the socialist legal systems?
5. Why could it be said that the legal system of China is becoming a ‘mixed’
legal system?
6. The approach advocated in this chapter is a pragmatic approach to com-
parative law, limited by continuous self-reflection within the context of
law reform projects. What do you think of this approach?
7. How would you evaluate the role of ‘experts’ in law reform projects?
Channell, W (2006) ‘Lessons not Learned: Problems with Western Aid for Law Reform in
Post-communist Countries’ 1:2 Journal of Comparative Law 321.
Legrand, P (1999) Le droit compare (Paris, Presses Universitaires de France).
Mistelis, LA (2000) ‘Regulatory Aspects: Glabalization, Harmonization, Legal Transplants
and Law Reform—Some Fundamental Observations’ 34 The International Lawyer 1055.
4 The Lando Principles can be found at: http://www.jus.uio.no/lm/. More information on the
European Common Frame of Reference can be found at: http://ec.europa.eu/consumers/index_en.htm.

Seidman, A and Seidman, RB (1995) ‘Drafting Legislation for Development: Lessons from
a Chinese Project’ 44 American Journal of Comparative Law 1.
van Erp, JHM (1998) ‘European private law: Postmodern dilemmas and choices. Towards
a method of adequate comparative legal analysis’ inaugural lecture Maastricht, 1998
(trans) 3.1 Electronic Journal of Comparative Law (August 1999) <http://www.ejcl.
org/31/art31-1.html>.
Watson, A (1993) Legal transplants: an approach to comparative law (London, University
of Georgia Press).
—— (2000) ‘Legal transplants and European private law’ 4.4 Electronic Journal of
Comparative Law <http://www.ejcl.org/44/art44-2.html>.
18
Comparative Law in Practice: The Courts
and the Legislator
ESİN ÖRÜCÜ
KEY CONCEPTS
Comparative law as a tool for law reform and legislation; For interpretation
and construction by the courts; ‘Decorative’ use of; ‘Functional’ use of; As an
‘auxiliary source of law’.
I. INTRODUCTION
Developments of the law in this country cannot of course depend on a head-count

of decisions and codes adopted in other countries around the world, often against a
background of different rules and traditions. The law must be developed coherently,
in accordance with principle, so as to serve, even-handedly, the ends of justice. If, how-
ever, a decision is given in this country which offends one’s basic sense of justice, and
if consideration of international sources suggests that a different and more acceptable
decision would be given in most other jurisdictions, whatever their legal tradition, this
must prompt anxious review of the decision in question. In a shrinking world … there
must be some virtue in uniformity of outcome whatever the diversity of approach in reach-
ing that outcome.1
Strongly though I support the study of comparative law, I hesitate to embark in
an opinion such as this upon a comparison, however brief, with a civil law system,
because experience has taught me how very difficult, and indeed potentially mis-
leading, such an exercise can be. Exceptionally however, in the present case, thanks
to material published in our language by distinguished comparatists, German as
well as English, we have direct access to publications which should sufficiently dispel
our ignorance of German law and so by comparison illuminate our understanding of
our own.2
1 Fairchild v Glenhaven Funeral Servıces Ltd [2002] 3 All ER 305 (HL) at 334 (Lord Bingham).
2 White v Jones [1995] 1 All ER 691 (HL) at 705 (Lord Goff of Chieveley).
412 Esin Örücü
I have not been referred to the law of any continental jurisdiction except
Switzerland. It seems to me unlikely that in any system derived from the civil code,
the law will differ in this respect from the position under Swiss law. It seems … that
under Scottish law a creditor can contract out of or waive his right to set-off and if
so, he can presumably validly agree that his debt be subordinated. I have set out the
leading authorities in South Africa, The United States and Australia. It would, I think,
be a matter of grave concern if, at a time when insolvency increasingly has international
ramifications, it were to be found that English law alone refused to give effect to con-
tractual subordination.3
The discipline of comparative law does not aim at a poll of solutions adopted in dif-
ferent countries. It has the different and inestimable value of sharpening our focus on
the weight of competing considerations.4
Does the above indicate that comparative law merely facilitates the incorporation
by judges of ‘holus bolus from some other system of law’,5 or does it indicate the
way forward?
The first aim of this chapter is to look at the ‘practical’ and ‘functional’ use of
comparative law by courts and to throw light on some of the following questions
in detail: How far is foreign law referred to by courts? Are there more references
to some particular jurisdictions and why? Do some courts present a different
picture to others and why? In which areas are most of such references made? Do
the courts resort to foreign law to correct and improve domestic law, to help the
development of domestic law, to fill gaps in domestic law, clarify the law, seek
support and guidance or bring about harmonisation? Apart from cases when
there has to be a reference for reasons of conflict of laws or because a foreign
law is applicable to the case, why are references made? Have membership of the
European Community, the growing importance of international conventions
and the growth of international commercial practice made any difference in this
field? What are the limits of such use of comparisons? There is talk of the chang-
ing climate and a greater internationalisation in the approach of national courts
(Bingham, 1992; and Koopmans, 1996). Is this the case?
The second aim is to consider briefly the role of comparative law in legislative
law reform.
Comparative law has been in use for centuries in efforts to develop the law in
many areas and help ideas cross borders. One practical aspect of comparative
law is its use as a tool of interpretation, another is as a tool of law reform. It now
seems natural in the development of globalising law, to borrow from the interna-
tional for the national, and from one national for another national. Therefore the
debate on the use or non-use of comparative experience remains theoretical when
3 Re Maxwell Communications Corporation plc (NZ) [1994] 1 All ER 737 (Ch) at 754, 755
(Vinelott, J).
4 McFarlane v Tayside Health Board 2000 SC 1 (HL) at 15 where the ius commune case book on tort
law was also considered (Lord Steyn).

5 McShannon v Rockware Glass Ltd [1978] AC 795 (HL) at 811 (Lord Diplock).
The Courts and the Legislator 413
viewed from the ground of what is actually taking place. However, the degree of,
and the reasons for, the borrowing differ. In addition, the attitudes of legislators,
academics, practising lawyers and judges to the use of foreign material also differ,
all making use of this tool in their own ways.
The term ‘comparative law’ is used in this chapter in its widest sense, to cover
even passing reference to foreign law by a legislator, a court or a practising lawyer,
and the use of a foreign solution or argument by a domestic judge as a guide to
interpretation (see Örücü, 1999: 253).
II. COMPARATIVE LAW IN COURTS
Comparative law method is among the tools used by courts for the interpretation
of national rules in conjunction with the usual methods of interpretation and
construction. Although when there is unequivocal national law, foreign mate-
rial cannot be used to by-pass these rules, where the construction is doubtful or
there is a gap, the judge acts as the legislator, and like a modern legislator, looks to
comparative law for solutions. Comparative law can serve to confirm and support
a result reached by a traditional route. The aim of any reference to foreign law by
courts may be to promote a change at home, fill in a gap or discard an unsatisfac-
tory domestic solution—that is, the ‘functional use’ of foreign law. The aim may
also be a ‘decorative use’ of foreign law in that an opinion in a developing area of
law might appear to be out of date, unless reference were made to some recent
progressive development elsewhere. There are also cases where a court, comparing
different rules of foreign and domestic systems thoroughly, opts for one of these
as the ‘better’ answer to the problem under consideration. However, a judge tries
to avoid any suspicion that he has borrowed the law from a foreign system to fill
in a gap. Of course, a judge may also be intellectually arrogant, nationalistic or
genuinely believe that a foreign solution will not be of practical use.
Judges and counsel go through three phases in the process of using foreign law:
discovering, understanding and applying. However, of what is found, what is to
be used: the result or the reasoning? How far does this activity of borrowing go?
Why are some judges in some jurisdictions more ready to use comparative law
than others?6 What is the measure of success? If a sign of success is uniformity of
treatment and values, does this lead to the creation of uniform socio-economic
and cultural conditions?
Comparative Law in British Courts
Courts in Britain make extensive use of cases from other common law jurisdic-
tions. The question is: Has membership of the European Union affected the
number of cases in the UK where reference is made to a continental legal system
6 For the use of comparative law by courts in general in 17 jurisdictions see the General Report
submitted by Drobnig, 1999: 3–21. Also see contributions to Canivet, Andenas and Fairgrieve, 2004.
414 Esin Örücü
or a rule of such when new areas of law are being built up or in cases where
Common Law is not clear? Is there a trend in this direction as suggested by
Bingham (Bingham, 1992)?
To this end decisions rendered in 1972, 1982, 1992 were looked at in earlier
research (Örücü, 1999) and in this chapter, 2002 has been added to that survey. This
would be one way of approaching the topic. Another approach could be to inves-
tigate various areas of law. Are there more references to foreign law in negligence,
contract and competition law for example, than in tax, divorce or adoption?
Looking intensively at the period 2003–06 could also help to test the findings
of the 10-yearly search, discover tendencies (if any) and make predictions, using
both statistical and substantive information. One might also find the answer to
the question: Have things changed in the last decade?
There are certain practical considerations in the use of comparative law that
must be stressed at the outset: Language skills; national insularity and/or pride;
the enormous pressures under which judges and counsel work because of lack
of time and volume of work; and an increasing awareness of expenditure on the
part of clients. Of these, four distinct elements pertaining to the United Kingdom
position must be separately considered.
One is language skills. English is a world language. There is rather little incentive
to learn foreign languages in the United Kingdom. It is easier and more natural for
a person unfamiliar with foreign languages to have access to common law materials
(see Gutteridge, 1949: 44–5).
The second element is the difficulties created by the rules on proof of foreign
law, which is a question of fact, and must be pleaded and proved by expert evi-
dence. The court cannot take judicial notice of foreign law, though the judge may
be perfectly aware of the existence of the foreign rule. In addition, in the absence
of evidence, foreign law is presumed to be the same as domestic law. 7 For example,
in Morrison v Panic Link Ltd it was held:
If it was suggested that there was any difference between English law and Scots law in
relation to the construction of this contract, it would be necessary for the defenders
to aver what that difference was in the present action. They have made no such aver-
ments and accordingly it must be assumed that the English law is the same as Scots
law as far as the construction of the contract is concerned.8
This means that an awareness and the use of foreign cases and foreign material
by counsel are more important than a judge’s knowledge of them in reference to
foreign law in a particular case. As Lord Mustill stated in Channel Tunnel Ltd v
Balfour Beatty Construction Ltd:
It is perhaps just permissible to take notice that the contemporary Belgian Law of
arbitration differs from the law of other European countries, but beyond this I would
7 El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717(Ch) at 739 (Millet, J). However, in appeals
before the House of Lords all questions of Scots, English and Northern Irish law are treated as matters
of law within the judicial knowledge of their Lordships.
8 Morrison v Panic Link Ltd 1993 SLT 602 (OH) at 604.
certainly not be willing to go since, most remarkably, no evidence of Belgian law is

before the court.9
The rules of foreign law are to be proved by the testimony of experts giving
evidence. When there is a conflict in the evidence of the experts, the judge has
to decide between them, so he may pursue his own inquiries into the sources of
foreign law if he is equipped to do so, and draw his own conclusions.
The third element has been summarised as: ‘Why bother with foreign cases
when we have so much material of our own’ (Markesinis, 1990). This may not be
solely a British attitude but as Lord Justice Bingham says of the period when he
started practice,
it was an almost universal article of faith that English law and legal institutions were
without peer in the world with very little to be usefully learned from others (save, on
occasion, the High Court of Australia) (Bingham, 1992: 514).
This he characterises as the proud, confident and self-reliant spirit. Thus a judge’s
mentality and his unwillingness to be guided by foreign experience may be an
obstacle.
The fourth is an element more particular to the common law family than to
others. It is the consciousness that common law is a whole. The unity of common
law is a very real tie between the jurisdictions within the common law family,
and the citing of decisions from another common law jurisdiction as authority
is very frequent, though usually for the purpose of ‘help’ or ‘comfort’. When the
aim is to improve national law, British courts often cite Canadian, Australian and
New Zealand judgments, almost as if they were domestic judgments. Indeed, ‘It is
manifestly desirable that the law on this subject should be the same in all common
law jurisdictions’,10 and also that the law north and the south of the border should
be the same or similar as far as possible. For example Lord Clyde opined in Smith
v Bank of Scotland that
[i]n the present case we are dealing with an area of law whose development has for
a long time been influenced by decisions on the other side of the border. I am not
persuaded that there are any social or economic considerations which would justify a
difference in the law between the two jurisdictions in the particular point. 11
This element is also tied to the shared language, culture and appreciation of men-
tal constructs and consideration of uniformity of these jurisdictions. Lord Bridge
stated in Bennett v Horseferry Road Magistrates’ Court:
Whatever differences there may be between the legal systems of South Africa, the United
States, New Zealand and this country, many of the basic principles to which they seek to
give effect stem from common roots.12
9 Channel Tunnel Ltd v Balfour Beatty Construction Ltd [1993] 1 All ER 683 (HL) at 691.
10 Cheah v Equiticorp Finance Group Ltd [1991] 4 All ER 989 (PC) at 992 (Lord Browne-Wilkinson).
11 Smith v Bank of Scotland 1997 SC 111 (HL) at 120 (Lord Clyde).
12 Bennett v Horseferry Road Magistrates’ Court [1993] 3 All ER 138 (HL) at 155 (Lord Bridge).
416 Esin Örücü
Again, when there is no domestic authority to help them, courts do not hesitate
to rely on other Commonwealth and common law authorities, for example by
saying:
In the absence of any countervailing authority in English courts, I am of opinion that
the principles to be derived from the foregoing sources should be accepted as valid in
English law.13
Even when there are domestic solutions but these prove to be unsatisfactory in
dealing with contemporary problems, courts will refer to these same foreign
Commonwealth and common law jurisdictions.14 In the last decade however,
there have been a few significant cases where laws of legal systems from the
civilian tradition have been resorted to.
One question is: Would the judge as interpreter be able to, or be entitled to,
invoke a superior foreign solution? In fact, in the face of an unequivocal national
enactment, foreign material cannot be used to by-pass those rules. However,
when the construction is doubtful or there is a lacuna, the judge, as does the leg-
islator, sometimes takes his solutions from comparative law. Then the question is:
‘How far can, or should, this go?’ Comparative law helps the courts to clarify and
amplify the law, to throw light on domestic law and—used in conjunction with
usual methods—to confirm and support a result reached by a traditional route.
But merely to juxtapose the laws of various jurisdictions without comment is
not comparative law, and to compare only parts of a solution could be not only
unprofitable, but misleading.
It is interesting however, to note that Lord Diplock, whose many judgments
contain references to continental, especially French and German law, and
American positions, did not seem to adhere to the ‘pious fiction’ that ‘the judge
must avoid any suspicion that he has borrowed his law from a foreign system’,
when he openly used Evans’s translation of Pothier in developing ‘primary and
secondary obligations’ and ‘synallagmatic and unilateral’ contracts, saying, ‘I have
borrowed it from French law and the Civil Code arts.1102—1103’.15
Roman law has also been frequently resorted to by judges of the Chancery
Courts, and English commercial law is largely derived from foreign sources,
partly by its descent from the lex mercatoria of the Middle Ages (see Gutteridge,
1949: 38).16
When judges use foreign judgments, this is more by way of testing the sound-
ness of their conclusions than in reliance on those decisions. Indeed, all judges
cannot be expected to be comparatists, but it is their duty to consult those who are
13 Martin v Watson [1995] 3 All ER 559 (HL) at 562, 566 (Lord Keith).
14 See eg, Mercedes-Benz AG v Leiduck [1996] 3 All ER 929 (PC); and, Attorney General for Hong
Kong v Reid [1994] 1 All ER 1 (PC).
15 United Dominion Trust (Commercial) Ltd v Eagle Aircraft Services Ltd [1968] 1 WLR (HL).
16 Note that in Scotland though from time to time there is reference directly to Roman law or
institutional writers, this falls into ‘historical interpretation’ and not the ‘comparative’. See eg, Sharp v
Thomson 1997 SLT (HL), where Lord Hope said: ‘Scots law, following Roman law, is unititular’.
in a position to supply the information needed, which indicates the importance of

partnership with the academic profession.
Let us now throw some empirical light on the above views related to this
topic.
Empirical Evidence
As far as the United Kingdom is concerned, judicial practice at the 10-yearly
intervals since the United Kingdom joined the European Union, shows us that
in 1972, there were 26 cases where foreign law was referred to. Of these, three
were conflict cases, and three dealt with international conventions. There were
12 references to continental law/civilian and 30 to common law/Commonwealth
jurisdictions (USA–10; Australia–seven; Canada–two, New Zealand–three, and
Scotland–three).
In 1982, 29 cases referred to foreign law. Of these, there were two conflict cases,
three references to the European Court of Justice or European Commission, four
to international conventions, four to continental or civilian systems, and 42 to
common law/Commonwealth jurisdictions (United States–nine; Australia–six;
Canada–seven; New Zealand–five; Scotland–none).
In 1992, there were 25 cases with references to foreign law: six were con-
flict cases, there were seven references to the ECJ or EC, four to international
conventions, seven to continental or civilian jurisdictions and 33 to common
law/Commonwealth jurisdictions (United States–nine; Australia–seven; Canada–
seven; New Zealand–two; Scotland–two).
In 2002, however, 121 cases referred to foreign law: five were conflict cases,
16 references were to the ECJ or European Commission, 76 were to international
conventions, mostly the European Convention on Human Rights and, seven to
continental or civilian jurisdictions and 57 to common law/Commonwealth
jurisdictions (United States–18, Australia–22, Canada–14, New Zealand–22,
Scotland–16, South Africa–two, Ireland–three and India–one). This picture shows
the changing balance of references.
When we look at the fields into which the above statistically analysed cases fall,
we see a very wide and varied picture such as: Substitution, mergers; Company;
Proper law of contract; Wills; Occupier, duty owed by occupier to trespasser;
Causation, duty to take care, breach of duty; Duty to share holders; Vicarious lia-
bility; Gaming, lottery; Libel; Slander; Divorce, living apart, maintenance order;
Marriage, validity; Division of matrimonial property; Income tax, double taxa-
tion; Stay of proceedings; Currency control, debt in foreign money; Contempt
of court; Criminal evidence, hearsay; Carriers, loss or damage to goods; Trial,
evidence in the absence of the jury; Extradition, committal; EC law, competition;
Employment, equal pay, equal work; Constitutional law, long delay in executing
of sentence; Sale of land, fraud; Limitation of action, public authorities; Shipping,
carriage by sea; Gift, donatio mortis causa; Title to foreign copyright; Compulsory
purchase; Right not to be hindered in the enjoyment of freedom of expression;
418 Esin Örücü
Minor, abduction; Custody; husband and wife, Divorce; Carriage of goods by air;
Pre-trial, post judgment relief; Copyright, infringement; Forum non conveniens;
Mental health, patient, recall to hospital; Refusal of medical treatment; Medical
treatment, withdrawal of consent; Malicious falsehood, negligence; False impris-
onment, residual liberty; Blasphemy; Conspiracy; Abortion, medical negligence;
Rape, marital exemption; Easement, right of way; Sunday trading, proportion-
ality; Judicial review; Drug trafficking; Insurance; Abuse of process; Solicitor,
professional negligence; Tort, harassment; Arbitration; Fraud, will, succession,
reduction; Loss of earnings, capacity; public interest, pyramid selling; Landlord
and tenant, lease, irritancy; Employment, unfair dismissal, racial discrimination;
Copyright, statutory interpretation; Administrative law, natural justice, unjusti-
fied enrichment; Bankruptcy, sequestration, evidence, sale of goods; Implied
terms, agent and principal, Warsaw Convention; The Hague Convention; Brussels
Convention.
When and How is Foreign Law Used?

Foreign law is used in cases where it is indicated. The first type of case here is
conflict of laws. When conflict of laws points to foreign law or when the case has a
foreign element such as recognition of a foreign divorce, any relevant foreign law
will be referred to. As observed above, in such cases domestic law will preferably
be used and foreign law will be assumed to be the same as domestic law unless
evidence is brought to show otherwise,17 (as there is a presumption that law of
another jurisdiction is the same as that of the forum where no proof or insufficient
proof to the contrary is presented). In addition, often natural justice and public
policy grounds may show that foreign judgments cannot be enforced,18 as the exis-
tence of prior orders from foreign courts is not significant; the principles should be
acceptable to British courts.19 The courts also ask whether there are considerations
of European law or comity. In many such cases European Court of Justice rulings
serve as a guide.20 Usually the determination of applicable law depends on the pub-
lic interest of the forum in dispute, the parties’ access to foreign law materials, the
clarity of choice of law rules and the nature of the foreign legal system involved.
However, British courts do have an internationalist attitude, nurtured by the
doctrine of international comity, because of which they are reluctant to invoke
public policy against the normally applicable foreign law.
17 For instance, this was stated clearly in Bumper Development Corp Ltd v Commissioner of Police of
the Metropolis[1991] 4 All ER 638 (CA). For a similar statement see El Ajou v Dollar Land Holdings plc
[1993] 3 All ER 717 (Ch).
18 This was the case in Adam v Cape Industries plc [1991] 1 All ER 929 (Ch).
19 Re F (minor) [1990] 3 All ER 97 (CA).
20 Good examples are Webb v Webb [1992] 1 All ER 17 (Ch); Union Transport Group plc v
Continental Lines SA [1992] 1 All ER 161 (HL); Dresser UK Ltd v Falcongate Freight Management Ltd
The Duke of Yare [1992] 2 All ER 450 (HL); and Johnson v Coventry Churchill International Ltd [1992]
3 All ER 14 (QBD).
The second type of case is where courts look at foreign law and an international
convention concerned, to understand its application or for the sake of comity.21
For instance, in Michael Galley Footwear Ltd (in liq) v Iaboni,22 Belgian, Dutch
and German cases were looked at in order to understand the application of the
Contract for the International Carriage of Goods by Road, in view of comity. In T
v Secretary of State for the Home Department, Lord Lloyd said:
In a case concerning an international convention it is obviously desirable that decisions
in different jurisdictions should, so far possible, be kept in line with each other.23
In Re A and another (minors) for example, Balcombe, J said:
Since French and English are both official languages of the Hague Convention, we were
referred also to the French version of art 13(a) … Since we are here concerned with the
meaning of ‘acquiesced’ in an international convention to which many countries, not only
those with a common law background, have adhered, it cannot be right to attempt to
construe ‘acquiesced’ by reference only to its possible meaning at common law or equity. 24
However, we should note the observation by Lord Hope in Herd v Clyde Helicopters
Ltd, when he said:
[T]he fact that the jurisprudence in one country has adopted an interpretation of the
Convention which supports counsel’s argument is not in itself a compelling reason for
holding that we should follow the same approach in our interpretation.25
Before the Human Rights Act 1998, the use of the European Convention of
Human Rights could be deployed for the purpose of the resolution of an ambigu-
ity in domestic primary or subordinate legislation.26 It was accepted that domestic
law should develop alongside the European Convention on Human Rights, as
stated by Lord Scarman in Home Office v Harman:
We believe the true path forward is to ensure that our law develops in a way which is
consistent with the obligations accepted by the UK in the European Convention and
with the developments of the common law achieved in America … Of course, neither
American law nor the convention can be decisive of this appeal. But both are power-
fully persuasive, the convention because its observance is an obligation of the United
Kingdom, and American law because of its common law character. Each reinforces
conclusions which we draw independently from our own legal principles.27
21 See, eg Hewitson v Hewitson [1995] 1 All ER 472 (CA).

22 Michael Galley Footwear Ltd (in liq) v Iaboni [1982] 2 All ER 200 (QBD).
23 T v Secretary of State for the Home Department [1996] 2 All ER 865 (HL) at 889 This was the
Convention relating to the Status of Refugees, 1951. Phillip, J said in Kinnear v Falconfilms NV:
‘In a convention case it would not be proper for the court to apply domestic rules to decline
jurisdiction under 6(2) simply because the third party was domiciled abroad’ ([1994] 3 All
ER 42 (QBD) at 50).
24 Re A and another (minors) [1992] 1 All ER 929 (CA).
25 Herd v Clyde Helicopters Ltd 1997 SC 86 (HL) at 102 (Lord Hope).
26 Rantzen v Mirror Group Newspapers (1986) [1993] 4 All ER 975 (CA) at 993 (Neill, J).
27 Home Office v Harman [1982] 1 All ER 532 (HL). For another such case see Re D and another
(minors) [1995] 4 All ER 385 (HL) at 397. See also R v Secretary of State for the Home Department, ex
parte Wynne [1992] 2 All ER 315 (CA).
420 Esin Örücü
In R v Secretary of State for the Home Department, ex parte McQuillan, Sedley, J

looked at the Convention through the jurisprudence of the Court of Justice of the
European Community and said:
Once it is accepted that the standards articulated in the convention are standards
which both march with those of the common law and inform the jurisprudence of
the European Union, it becomes unreal and potentially unjust to continue to develop
English public law without reference to them.28
The third type is when there is an involvement of European Community law.
British courts look at cases in the European Court of Justice and via these to cases
involving foreign systems of law, this being done within the scope of ECJ deci-
sions. The courts are keen to keep to meanings as defined by the ECJ, especially
if the matter is not covered by domestic authority. ECJ decisions give guidance,
and a judgment obtained in a Member State on a matter of European Community
law has a special weight. For instance, Lord Goff remarked in Woolwich Building
Society v Inland Revenue Commissioners (No 2)29:
I only comment that, at a time when Community law is becoming increasingly impor-
tant, it would be strange if the right of the citizen to recover overpaid charges were to be
more restricted under domestic law than it is under Community law.
Foreign law is also used in developing English law when there is no statutory law.
When the area under scrutiny is one of common law, counsel introduces deci-
sions from other common law or Commonwealth jurisdictions. In United City
Merchants (Investments) Ltd v Royal Bank of Canada,30 for instance, it was pointed
out that,
although there does not appear among English authorities any case in which this
exception has been applied, it is well established in the American cases.
Judges use these decisions for ‘support’, ‘aid’ and ‘guidance’ or because they give
‘comfort’. The decisions are referred to ‘with great respect’ as ‘powerful’, ‘persua-
sive’, ‘helpful’, ‘illuminating’ or ‘applicable’. This respect arises sometimes because
the principle was first developed in the jurisdiction referred to. These decisions
are sometimes preferred over domestic law,31 sometimes ‘accepted unreservedly’,32
28 R v Secretary of State for the Home Department, ex parte McQuillan [1995] 4 All ER 400 (QBD)
at 422.
29 Woolwich Building Society v Inland Revenue Commissioners (No 2) [1992] 3 All ER 737 (HL) at
764 (Lord Goff).

30 United City Merchants (Investments) Ltd v Royal Bank of Canada [1982] 2 All ER, 720 (HL).
31 For example, in interpreting the Copyright Act 1982, the view expressed by the High Court of
Australia was preferred in Express Newspapers plc v News (UK) Ltd [1990] 3 All ER 376 (Ch). For
another case, see Galoo Ltd (in liq) v Bright Grahame Murry (a firm) [1995] 1 All ER 16 (CA) at 26
where Glidewell LJ says:
‘The answer in my judgment is supplied by the Australian decisions to which I was referred,
which I hold to represent the law of England as well as of Australia, in relation to a breach of
duty imposed on the defendant whether by contract or in tort’.
32 C v S (minor) [1990] 2 All ER 449 (CA).
sometimes used to ‘clarify definitions’ and almost always for the furtherance of
common law. In all cases, the courts tend to look at and extensively discuss devel-
oped Commonwealth jurisdictions such as Australia, Canada and New Zealand,
and the common law jurisdiction of the United States of America as ‘authority’
and use them for ‘assistance’.33
This being the area in which comparative method is most extensively used, it
will be considered in further detail for the sake of clarity.
Common law jurisdictions provide unity and uniformity of common law. In
one case the court followed American solutions to provide uniformity in the
whole common law world as seen in Cheah v Equiticorp Finance Group Ltd.34 In
another case,35 in the name of comity in common law, the Australian position
was followed.
When there is no modern decided English case36 as in Woolwich Building
Society v Inland Revenue Commissioners (No 2)37 and Airedale NHS Trust v
Bland,38 or English law has not moved on since, for instance, 1861, as in White
v Jones,39 the courts search for a general principle by looking at other developed
common law jurisdictions.
When there is no direct English authority, other common law authorities are
helpful and persuasive. For instance, in Martin v Watson, McCowan, LJ said:
I have found no English authority which is directly in point in the present case … In the
Commonwealth: however, there have been a number of cases which posed similar prob-
lems … I find myself in complete agreement with these views (Australian, Canadian,
New Zealand and American cases were looked at).40
Again in Mulcahy v Ministry of Defence, while looking into negligence and duty
of care, Neill, LJ said:
It was accepted on behalf of the defendants that there was no direct English author-
ity to support the proposition that no duty of care in tort is owed by one soldier to
another when engaging the enemy in battle conditions … I consider that an English
court should approach this claim in the same way as the High Court of Australia in the
Shaw Savill case.41
33 Murphy v Brentwood District Council [1990] 2 All ER 908 (HL).

34 [1991] 4 All ER 989 (PC).
35 Attorney General v Sport Newspapers Ltd, [1992] 1 All ER 503 (QBD).
36 For more such cases see: Ancell v McDermott [1993] 4 All ER 355 (CA); R v Secretary of State for
the Home Department, ex parte Bentley [1993] 4 All ER 442 (QBD); Coppee-Lavalin SA/NV v Ken-Ren
Chemicals and Fertilizers Ltd (in liq); Voest-Alpine AG v Ken-Ren Chemicals and Fertilisers Ltd [1994]
2 All ER 449 (HL); Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] 4 All ER 834 (CA); and T v
Secretary of State for the Home Department [1996] 2 All ER 865 (HL).
37 Woolwich Building Society v Inland Revenue Commissioners (No 2) [1991] 4 All ER 577 (CA) and
[1992] 3 All ER 737 (HL).

38 Airedale NHS Trust v Bland [1993] 1 All ER 821 (HL). This case illustrates all the types of refer-
ences and relationships that exist between the legal systems in the common law world and therefore,
is an all-rounded excellent example to study.
39 White v Jones [1993] 3 All ER 481 (CA).
40 Martin v Watson [1994] 2 All ER(CA) 606 at 627.
41 Mulcahy v Ministry of Defence [1996] 2 All ER 758 (CA) at 766, 770.
422 Esin Örücü
When English common law is inadequate such as in Simmonds v Dobson,42

Derbyshire County Council v Times Newspapers Ltd 43 and Khorasandjian v Bush,44
again reference is made to other common law jurisdictions.45
To extend the law as in Bennett v Horseferry Road Magistrate’s Court,46 or to
move the law on, as in White v Jones,47 or in furtherance of common law in
novel cases of negligence and damages, great weight is given to Australian, Irish,
Canadian and United States cases such as in Burton v Islington Health Authority48
and Jones v Wright.49
When there is much to learn from imaginative legal developments from, for
example, Australia, New Zealand, Canada and the United States as in the case of
White v Jones,50 English courts refer to such other common law jurisdictions. In
this case, German, French and Dutch positions were also considered.
When seeking to soften the impact of an English rule as in British Railways
Board v Herrinton,51 it was pointed out that
there is a growing tendency of courts both in England and Scotland to try to soften the
impact of the rule in Addie’s case. Australian authorities are even more persuasive and
far reaching that those in this country.
When seeking support for the position of the English court developing the law
and helping the judge to make up his mind, such as in the area of negligence
and duty of care, Australia provided ‘inspiration’ as in Caparo Industries plc v
Dickman.52 Lord Jauncey, in a case involving personal injury and nervous shock,
looked at Scotland, Australia and the United States and said:
My Lords, as is so often the case, in the field of negligence valuable contributions to the
discussion are to be found in judgments of the High Court of Australia.53
In Stoke-on-Trent City Council v B & Q plc; Norwich City Council v B & Q plc,54
dealing with proportionality, Canadian judgments were referred to in addition
to the jurisprudence of the European Court of Justice, to confirm the views of
the judge.
When we consider the Privy Council decisions, we see that on the whole the
Privy Council prefers the English law’s understanding of rules. However, the Privy
42 Simmonds v Dobson [1991] 4 All ER 25 (CA).

43 Derbyshire County Council v Times Newspapers Ltd [1992] 3 All ER 65 (CA).
44 Khorasandjian v Bush [1993] 3 All ER 669 (CA).
45 Other cases of interest are: Giles v Thompson [1993] 3 All ER 321 (HL); and Tinsley v Milligan
[1993] 3 All ER 65 (HL).

46 Bennett v Horseferry Road Magistrate’s Court [1993] 3 All ER 138 (HL).
47 White v Jones [1993] 3 All ER 481 (CA); [1995] 1 All ER, 691 (HL).
48 Burton v Islington Health Authority [1992] 3 All ER 833 (CA).
49 Jones v Wright [1991] 1 All ER 353 (QBD).
50 White v Jones [1993] 3 All ER 481 (CA); [1995] 1 All ER 691 (HL).
51 British Railways Board v Herrinton [1972] 1 All ER 749 (HL).
52 Caparo Industries plc v Dickman [1990] 1 All ER 568 (HL).
53 Page v Smith [1995] 2 All ER 736 (HL) at 745.
54 Stoke-on-Trent City Council v B & Q plc, Norwich City Council v B & Q plc [1991] 4 All ER
221. (Ch).
Council gives special weight to the views of judges in the lower courts in those
Commonwealth systems under its jurisdiction in so far as they reflect the advan-
tage of familiarity with prevailing local conditions. This is done with the proviso
that the courts have used that advantage, as seen in Hector v Attorney General of
Antigua and Barbuda.55 The Privy Council plays a crucial role in maintaining
the harmony of the common law within the Commonwealth world, laying down
paths for cross-fertilisation.56
As noted, British courts at times make use of continental law and the civil law
tradition. Though continental law is usually mentioned only in passing by British
courts when brought to their attention and is not normally used for support or
guidance, in Antwerp United Diamonds BVBA v Air Europe for example, a Dutch
and a Belgian case were presented to the Court of Appeal together with a case
from the United States and another from British Columbia as foreign authority.
There was no English decision on the question prior to the decision of the lower
court in the present case. Hirst, LJ said:
Of these by far the most significant decision, both by virtue of its high authority and
by virtue of its close reasoning and analysis, is in my judgment Insurance Co of North
America v Royal Dutch Airlines in the Supreme Court of the Netherlands … I find (this
decision) very strongly persuasive ... even though it is not of course binding upon us or
conclusive.57
Again, in Barclays Bank plc v Glasgow City Council and Kleinwort Benson plc v
Glasgow City Council, where a question arose as to the meaning of a term taken
from the Common Customs Tariff and used as part of German tax law, Lloyd, LJ
said: ‘But there is precedent for the course we propose to take, provided by the
German courts (case cited in—C–231/89)’.58
Woolwich Building Society v Inland Revenue Commissioners (No 2), is more typi-
cal where Lord Goff pointed out in his judgment:
An instructive example of this approach is to be found in German law, in which we find
a general right of recovery … Such draconian time limits as these may be too strong a
medicine for our taste; but the example of a general right of recovery subject to strict
time limits imposed as a matter of policy is instructive for us 59
Another important example is the case of White v Jones, where the House of Lords
dealt with negligence and duty of care in relation to solicitors. Lord Goff looked
at the experiences in other countries in this developing area and stated that the
question was
55 Hector v Attorney General of Antigua and Barbuda [1990] 2 All ER 103 (PC).
56 See eg, Invercargıll City Council v Hamlin [1996] 2 WLR 367, where the Privy Council not only
recognises but values difference: ‘a monolithic uniformity might be destructive of the individual
development of a distinct common law system’, at 367 (Lord Lloyd Berwick).
57 Diamonds BVBA v Air Europe [1995] 3 All ER 424 (CA) at 428 (Hirst, LJ).
58 Barclays Bank plc v Glasgow City Council; Kleinwort Benson plc v Glasgow City Council [1994] 4
All ER 865 (CA) at 889 (Lloyd, LJ).

59 Woolwich Building Society v Inland Revenue Commissioners (No 2) [1992] 3 All ER 737 (HL) at
761 (Lord Goff).

424 Esin Örücü
much discussed, not only in this country and other common law countries, but also in
some civil law countries, notably Germany.60
Pointing out also similar conclusions reached by French and Dutch courts, he
extensively discussed all cases, civilian and common law, reserving extensive treat-
ment to German law, though his solution was based on tort and English authority.
Again, in a case in relation to psychiatric damage, Greatorex v Greatorex,61 the
High Court considered arguments derived from a German case.
More recently, in the Fairchild v Glenhaven Funeral Servıces Ltd case, not only deci-
sions and doctrine from the traditional sources such as Australia, Canada, the United
States and Scotland were considered, but decisions and doctrine from Germany,
France, the Netherlands, Austria, Spain and, Norway, and Roman Law were also
extensively discussed, though again the end result relied on a common law case.62
However, most of the references to a continental system occur in cases where
that foreign law is indicated in the dispute. Cases related to child abduction, extra-
dition, recognition and enforcement of judicial decisions, and double taxation are
the types of cases where we see such references. For example, in G and H Montage
GmbH v Irvani,63 English, German and Iranian laws were compared in relation to
a signature placed on a bill.
Yet, here there are problems. For example in Webb v Webb,64 Judge Paul Baker,
QC, after stating that under the law of the European Community the French courts
seem to have exclusive jurisdiction in the case, said that the conferment of exclusive
jurisdiction could lead to great inconvenience for the parties and therefore there
was sound reason for limiting it as far as possible. He even complained,
Article 16 is couched in the concepts of the civil law systems of the original mem-
ber states. It does not readily fit in with the system of legal and equitable interests in
property obtaining in England and Wales and in both parts of Ireland.
However, in Dresser UK Ltd v Falcongate Freight Management Ltd, The Duke of

Yare, Bingham, LJ opined:
But procedural idiosyncrasy is not (like national costume or regional cuisine) to be
nurtured for its own sake and in answering the question before us we must have regard
to the realities of litigation in this country and the purpose of the convention, not to
tradition, nomenclature or rules developed for other purposes. 65
In a few cases brief comments are made in general reference to continental or

civilian tradition, to indicate the background and the origin of legal rules.66 Even
Roman law and Justinian are occasionally mentioned when indicating sources of
60 White v Jones [1995] 1 All ER 691 (HL) at 697 (Lord Goff).

61 Greatorex v Greatorex [2000] 1 WLR 1970 (QBD).
62 Fairchild v Glenhaven Funeral Servıces Ltd [2002] 3 All ER 305 (HL).
63 G and H Montage GmbH v Irvani [1990] 2 All ER 225 (CA).
64 Webb v Webb [1992] 1 All ER 17 (Ch) at 25 (Baker, J).
65 [1992] 2 All ER 450 (CA) at 467 (Bingham, LJ).
66 See El Ajou v Dollar Holdings plc [1994] 2 All ER 705 where English law and German law are
compared in the use of the term ‘directing mind’ derived originally from German law.
laws, but not for help, such as in Sen v Headley, discussing gifts and donatio mortis
causa, where Roman law was only cited as the origin of the concept:
Although donationes mortis causa were taken from Roman law, it is only the first two
requirements which now bear evidence of that ancestry. They are embodied in the
definition given in Justinian’s Institutes (2 Just Inst,tit vii) which was adopted by Lord
Loughborough LC in Tate v Hilbert (1793) 2 Ves III at 119 … We can therefore turn away
from Roman law and give our whole attention to the English authorities.67
In The Funabaski Sycamore Steamship Co Ltd v Owners of the Steamship White

Mountain68 Dunn, J said that the Admiralty Court always awarded interest on a
limitation fund and then quoted from Lord Denning:
Court of Admiralty did not apply common law. It followed the civil law and gave interest
on damages whenever the non-payment was due to the wrongful delay of the defendant.
Ex mora the obligor; ex mora means ‘on account of the delay’. It is so stated in the Digest
21.1.32(2).
How Far Can, and Do, Courts Go?

We see the following clauses used by judges when referring to foreign cases: ‘ample
support’, ‘particularly useful’, ‘helpful’, ‘compatible with values of democratic soci-
eties’, ‘instructive’, ‘persuasive but not binding’, ‘of assistance’, ‘of interest’ and ‘gives
comfort’. We also see that judges often turn to foreign jurisdictions in developing
the law, in cases when the existing law is inadequate, or in extending the law, to
achieve some uniformity within the ‘civilised’ world. This may also be done in
order to soften the impact of a domestic rule. Judges may be confronted with
novel issues. They may wish to depart from domestic understandings. Concepts of
equality, morality and justice may demand new approaches. There may be insuf-
ficient domestic guidance on a matter. In such cases, comparative law is a valuable
tool of interpretation.
To achieve improvement in the law and to create unity in all common law
jurisdictions courts may depart from domestic law.69 In keeping with this,
Commonwealth cases are sometimes treated as if they are English cases and cited
as authority, as seen in R v Lord Chancellor’s Department70 and in Airedale NHS
Trust v Bland.71
However, when domestic law is well established and satisfactory, the courts
do not depart from it. When an area of English or Scottish law is covered by
statute not by common law, a domestic judge cannot benefit directly from
67 Sen v Headley [1991] 2 All ER 636 (CA) at 640. See also Faırchıld (2002) 3 All ER 305 at 378.
68 The Funabaski Sycamore Steamship Co Ltd v Owners of the Steamship White Mountain [1972] 2
All ER 181 (Adm) at 183 (Dunn, J).
69 See Cheah v Equiticorp Finance Group Ltd [1991] 4 All ER 989 (PC); and Behzadi v Shafterbury
Hotels Ltd [1991] 2 All ER 477 (CA); [1993] 3 All ER, 669 (CA).
70 R v Lord Chancellor’s Department [1992] 1 All ER 897 (QBD).
71 Airedale NHS Trust v Bland [1993] 1 All ER 821 (HL).
426 Esin Örücü
foreign law, common law or otherwise. For instance, in Luc Thiet Thuan v R,
Lord Goff said:
It must be unwise to impose uncritically upon an English statute an interpretation
placed upon a statute from another jurisdictions, which is not expressed in the same
words. Of course, there is a strong affinity between England and New Zealand law
on this subject, reflecting their common origin; and anything which has fallen from
North, J is regarded with great respect in this country, as it is in New Zealand. But their
Lordships feel compelled to say that the wholesale adoption, without analysis of a sub-
stantial part of this obiter dictum, which covers a whole range of points on a notoriously
difficult subject with particular reference to the New Zealand statute, is not a satisfactory
approach to the interpretation of the objective test in provocation as recognised in the
English statute. Each point must, in Hong Kong as in England, fall to be considered by
reference to the words of the statute, their historical derivation from the common law,
and the legislative setting (where relevant) at the time of enactment.72
However, when it is a matter of interpretation of a statutory obligation,

judge-made law is important. Support and guidance is then sought from other
common law jurisdictions.
In Courts ‘Elsewhere’
According to Koopmans, national courts in many jurisdictions have been more

interested in using the comparative method over the last 15 years or so than previ-
ously and the climate is changing especially when there is a lack of suitable prec-
edents (Koopmans, 1996). As well as the ties to cultural and historical influences
and current role models and knowledge of the specific language of the models,
there are further reasons why comparative law is used, such as: for prestige or
for the quality of the legal rules to be exported and imported; efficiency; the role
of the national elite; practical utility; cultural forces; imposition; and chance.
Increased inter-system contact creates a receptive atmosphere whereby ideas cross
borders and lead to convergence. In addition, reference to other jurisdictions may
give broader legitimacy to judicial decisions.
In the civilian tradition, we cannot easily detect comparative law at work in
courts, where it is the advocate-general who writes the advisory opinion, carries
out comparisons and makes a thorough analysis of foreign laws. Courts rarely
discuss or refer to such material. In many cases, comparative work may have had
an effect on the preliminary investigation but does not find an explicit place in
the decision, although it may have inspired that decision. It can only be traced by
the inductive reasoning of the researcher.
The universal rule is that national courts apply national law unless they are
required to do otherwise. However, in difficult cases, controversial new cases, in
cases where no solution is available in national law, or where the applicable rule
72 Luc Thiet Thuan v R [1996] 2 All ER 1033 (PC) at 1042–3 (Lord Goff).
is not clear, courts resort to comparative reasoning. Increased contact leading to

convergence in many areas of law has made it easier, more palatable and justifiable
for courts to look at foreign law, whether it be to foreign court decisions or foreign
doctrine. In some jurisdictions in the civilian tradition, such as the German and
the Dutch, this trend is more easily traceable than in others, such as the French. In
the United States courts seldom look at foreign law, though comparison between
State laws is common practice.
It is worth noting that South Africa has the first Constitution setting out an
explicit mandate for the courts to use comparative and international law in their
human rights reasoning. In its interpretation section 39(1)(b) and (c), the 1996
Constitution provides that a court, tribunal or forum ‘must consider International
law’ and ‘may consider foreign law’ in interpreting the Bill of Rights, which is a
tacit invitation to the judiciary to apply comparative law. In this context, extensive
use is made of American, Australian, Canadian, Indian and German cases. The
basic question to be asked is whether European and North American models are
appropriate in areas of law where the aim is to correct past failures and respond
to specific or unique home concerns. In such cases it is more appropriate to prefer
cultural exceptionalism rather than comparativism. According to David Carey-
Miller, comparative law as used in human rights cases by South African courts
can be classified as ‘illustrative’, ‘supplementary’, ‘elucidatory’ or ‘going to core
substance’ (Carey-Miller, 2003).
It is interesting to note that the European Court of Human Rights also makes
‘reverse’ reference to national laws, establishing two-way traffic between inter-
national law and national laws in a comparative context. In fact, the European
Convention itself derives from principles already recognised under the domestic
laws of all democratic countries. We also see the European Court of Justice, as an
active court in the use of comparative material, borrowing both from the laws
of the Member States and international conventions and the decisions of the
European Court of Human Rights.
III. COMPARATIVE LAW AND THE LEGISLATOR
The first interest in foreign law was in the area of legislation, and ‘comparative
legislation’ was encouraged by the French-based Société de Législation Comparée,
founded in 1869, although one could even go back to Roman times, as far back
as the Twelve Tables (450 B.C.). All the continental codes drew inspiration from
foreign law in their preparation. National legislatures have always used compara-
tive law in creating and reforming the law. This is usually done in the search for a
better solution to the problem at hand. In fact, interest in using comparative law
and looking ‘sideways’ to other legal systems in the process of law reform is an
activity used earlier by legislatures than by courts.
Although in drafting statutes comparative reasoning plays a vital role, it is
never possible to exactly measure the extent of the influence of comparative law
428 Esin Örücü
in the final statute, despite abundant reference to foreign law in the explanatory
memoranda. For instance, in the United Kingdom, both the Law Commissions for
England and Wales and for Scotland are under an obligation to look at foreign law
in the preparation of new legislation. Section 3(1)(f) of the Law Commissions Act
1965 states that the Law Commissions must
obtain such information as to the legal systems of other countries as appears to the
Commissioners likely to facilitate the performance of any of their functions.
Laws of other common law jurisdictions and civilian countries are surveyed in
reports and preliminary memoranda. However, it is not always possible to trace
the outcome of this research in the Acts that follow. In the United States, in draft-
ing the Restatements of Law, the American Law Institute uses information gleaned
from comparative law surveys, mostly inter-State, but inspiration is sometimes
drawn even from European experience.
Today in many areas of law similar laws are being produced by European legis-
latures, mostly fulfilling the requirements of the European Directives. Little new
legislation is enacted that does not involve some comparative research, as there
are very few, if any, unique areas of law left to the creative forces of a single state.
For instance, we see similar developments in the areas of social security law, envi-
ronmental law and environmental liability, company law, anti-terrorist legislation,
same-sex relationships, adoption and euthanasia.
There are, of course, wholesale imports such as the taking over of an entire civil
code. This was the case in the earlier part of the last century for countries such
as Turkey and Japan and later for East and Central European states entering the
socialist sphere.
IV. JUSTIFICATION OF COMPARATIVISM AND THE VERDICT
In Britain, the main judicial comparisons are between the members of the com-
mon law family, with courts making frequent reference to Commonwealth juris-
dictions and the United States. As new areas are being developed and as domestic
law needs modernisation, there is a general increase in reference to foreign law.
The major justification for reference to Australia, the United States and New
Zealand, is the perceived unity of common law, which allows the use of decisions
from other common law jurisdictions as if they are domestic authority. This usage
and reference does not extend however, to statutory laws.
In theory, there is ample justification for referring to laws of the other Member
States of the European Union, especially in comparing their attitudes to the inter-
pretation of European Community law. However, British cases do not reflect an
‘integrationist’ approach with other Member States of the European Union except
when the specificities of a case so demand. There does not seem to be the kind of
cross-fertilisation between the Member States of the European Union as there is
between the jurisdictions of the common law. This applies as much to Britain as
it does to the legal systems of the civilian tradition.
When comparisons are made between British law and other common law
jurisdictions, this is essentially a ‘functional use’ of comparative law, whereas
when civilian systems are considered, it reflects a ‘decorative use’ of compara-
tive law. In the first group, the British cases deal mostly with domestic law and
domestic problems. In the second group, the cases fall mostly within a wider
ambit, usually of European law or an international convention. Again, in the first
group, foreign cases are either directly used or used to give guidance and support,
reflecting the ‘integrationist’ approach in the common law world. In the second
group, the moral and political considerations necessitate looking into the laws of
the civilian states, especially if the case is related to European Community law or
a convention, at which point we even see that
[t]here seems no doubt that, while national laws of contract differ, there is a general
sense in which the word contract is understood by the signatories to the convention.
English notions of consideration and privity must be discarded.73
Here certainly the ‘internationalism’ is manifest. As for seeking guidance or sup-

port from, or direct use of, civilian cases in preference to United Kingdom law or
other common laws, the same cannot be said. As foreign law is a question of fact
in common law, it is worth repeating once more that it is the counsel who must be
convinced of the value and relevance of comparisons, and, since the judges rely on
counsel, the concept of ‘in practice’ used in the title of this chapter must be taken
to cover all actors of the law.
The crucial issue is whether comparativism is used for inspiration and as an
interpretative tool, or to seek the legitimation of a foregone conclusion. Sometimes
there is a real effort at a ‘common enterprise’ and sometimes a search for justifica-
tion for a domestic decision. For example, in discussing ‘compatibility’ with the
European Convention on Human Rights as embodied in the 1998 Human Rights
Act in the United Kingdom, judges are rapidly becoming conversant with human
rights issues, and in this area comparativism is gaining weight, becoming second
nature to judges and providing a valuable interpretative tool. As we assess this
‘transjudicial communication’ (see Slaughter, 1994), the present chapter claims
that the starting point should be a positive, welcoming approach.
Judges are ‘tuners’ of the law. While they adapt the law to the evolution of soci-
ety and create bridges between the law and the values of the society in which they
live, they also build bridges between that society and other societies and universal
values by means of comparativism. The basic values used are those of the judge’s
own society but as integrated into a wider universe. This also provides a certain
anchorage for domestic decisions. Obviously there is the added assumption in the
Western world, that the basic values underpinning democratic societies are shared
values. Comparisons reveal these shared values and therefore it is appropriate
to use comparativism as an interpretative tool. However, it is not the technical
aspects of the foreign solution that should be studied, but the legal, economic
73 Kleinwort Benson Ltd v Glasgow City Council [1996] 2 All ER 257 (CA) at 273.
430 Esin Örücü
and cultural contexts within which similar cases are decided by judges of foreign
jurisdictions. Here, integration can be created by comparative analysis, since look-
ing at things comparatively brings an incremental common perspective. This gives
rise to a gradual ‘internalisation of common values’ by the courts of national legal
systems. Practising lawyers should also take part in this process.
Comparativism feeds cross-fertilisation and cross-fertilisation encourages
instrumentalisation and transposition of the received. In this way commonality is
developed, albeit at a more abstract and higher level of principle than at the level
of rules. Comparativism certainly broadens the spectrum of choice and provides
inspiration to an activist judge.
Comparative law is often treated today by courts and practitioners as ‘an auxil-
iary source of law’, ‘a subsidiary method of interpretation’. In addition, the courts
of developing countries and newly-emerging democracies are looking to other
legal systems considered ‘Western’ or ‘developed’ (see, eg Dupré, 2003).
The most problematic and most important area of concern is related to legal
rules of a purely domestic character. Here, references to foreign solutions are few,
and their use is difficult to justify. The courts tend to look only at the content
of the foreign rules rather than their context or effects—such references being
rather short—with attention paid only to results and rarely to reasoning, and the
courts proceed pragmatically. References are often over-simplistic. The selection
of countries also seems random. Sometimes only certain groupings are used,
problems of language and documentary access being the main obstacles.
For lawyers, it is only necessary to bring foreign law to the attention of the
courts, and for the courts to have sufficient knowledge to ask the foreign law
expert the pertinent questions. Foreign law could only concern a lawyer if, for
example, her client had a traffic accident in a foreign country, or the company she
represents established a new branch in a foreign jurisdiction. Then, she could use
the services of appropriate foreign lawyers in her international network. All she
needs to do is to give the foreign expert the right instructions and ask the right
questions.
In the common law world the practising lawyer is, in essence, looking for for-
eign cases in order to ask the court to depart from an established precedent, and
therefore is searching for solutions that are different from the domestic to further
her cause. However, in many cases, a court uses foreign decisions to strengthen its
hand in reaching what is in fact a foregone conclusion. So the practising lawyer
and the judge will not always be working towards the same end and what aspect
of the foreign law each will stress will not be the same.
What do we detect overall? The use of foreign law and foreign cases is selective
and there is no logical approach to the choice. Neither is a specific methodology
applied. In addition, the decision to use foreign judicial judgments remains largely
in the realm of judicial discretion, and the exercise of this discretion may be due
to many factors. We should also ask whether courts are properly equipped to carry
out detailed comparative law surveys in every suitable case. Courts may make
decisions on the basis of superficial or even misleading comparisons. Picking and
choosing is a grave danger. In any event, very often, the exact nature of foreign
law influence may not be obvious from reading a case, and this not only in the
civilian tradition either.
It must also be admitted that comparativism may be used solely to further a
particular cause, with the aim of having a particular ‘effect’ on a target audience.
Judges would have reached the same conclusion without comparativism. It is also
natural that courts want to claim full decisional autonomy.
The choices made by judges can be tied to cultural and historical influences,
historical ties, a current role model, a legal system being fashionable at that par-
ticular time, or knowledge of a specific language by a group of lawyers. Choices
may also be made because of the influence of European Community law or the
European Convention on Human Rights, because there are similar circumstances
to the case at hand and there is no applicable domestic law, or because the chang-
ing culture of judges through education and new technical developments makes
access to foreign judgements easier. Obviously, there may also be misunderstand-
ings, errors—even deliberate errors.
In Europe, cross-breeding comes through the direct and indirect influence of
the European Union, through the ‘better law’ filter applied by Community judges
and the judges of the European Court of Human Rights; through the spreading of
knowledge by academic writers; or through following a transplant deriving from
an autonomous action by the courts. The cultural gap in the training of judges
and lawyers and their use of foreign law remains, but a corpus of fundamental
principles common to European orders is identifiable today.
In the area of human rights, for instance, comparativism can provide the basis
for an a historical development not specific to any one nation state’s history but
to universal history. When established understandings are challenged in the name
of this universalism, what should judges do? It has been said that ‘courts are talk-
ing to one another all over the world’ (Slaughter, 1994) as judges are involved in
active international traffic. Research shows that courts of some jurisdictions are in
constant conversation, while others are not. So, apart from the matter of why this
is the case, an additional matter arises as to what are the frontiers of judicial com-
parison. It is possible to say that human rights case law is more likely to flourish if
it is supported by the legitimacy of virtual unanimity amongst the judges.74
When the law is well established and satisfactory, judges may see no need to
look abroad. Where there is a legislative framework in an area under consider-
ation, judges may feel bound to follow the direction laid down for them by the
legislature, even though they may know that there are other, and possible better,
answers elsewhere. Many laws deal with problems of a national past and there-
fore, there may be no full correspondence between these and universal rules and
standards.
Our century will certainly witness new reciprocal influences and cross-
fertilisation between legal systems within the Western legal tradition. These
74 See ch 16 in this Handbook.

432 Esin Örücü
reciprocal influences may prove extremely beneficial for the development of the
law to meet the changing needs and demands of the people the law serves. For this
we need imaginative and pro-active judges, informed and active counsel, creative
academics, a flexible legal education, an enlightened legislature, a daring execu-
tive, Law Commissions with insight, and a good and fruitful balance between
these. It is time to change the general belief that ‘other systems of jurisprudence
are relevant only so far as they throw light on our law’ (Gutteridge, 1949: 39 ff ),
though this in itself is a valuable starting point.
Domestic courts must look forward, sideways, at each other and beyond.
Comparativism must be at the heart of all judicial activity if law is to embody
principles that are ‘universal’ rather than purely domestic or even ‘European’.
When actors of the law, that is academics, legislators, judges and lawyers, adopt a
pragmatic and progressive approach, then comparativism can provide the most
effective tool for interlocking legal systems.
1. What do you regard as the ‘proper object’ of comparative law efforts by

courts?
2. Comment on comparative law in courts as part of ‘necessary comparison’,
in ‘legal rules with an international element’ and in ‘legal rules with a
purely domestic character’.
3. Comment on the use of comparative law by courts for the purposes of
abrogating existing national rules, of filling gaps and for decorative or
ornamental purposes.
4. How can the use of cases and doctrine from foreign jurisdictions by
domestic courts be justified?
5. Is it appropriate to use foreign solutions for domestic problems?
6. Do you think that the Fairchild case is an indication that the common law
and civil law worlds are converging?
7. Comment on the use of comparative law by the legislators.
Bingham, J (1992) ‘There is a World Elsewhere: The Changing Perspectives of English Law’
41 International Comparative Law Quarterly 513.
Canivet, G, Andenas, M and Fairgrieve, D (eds) (2004) Comparative Law Before the Courts
(London, British Institute of International Comparative Law).
Canivet, G and Palmer, VV (2006) ‘The Practice of Comparative Law by the Supreme
Courts: Brief Reflections on the Dialogue between the Judges in French and European
Experience’ 80 Tulane Law Review 1377.
Carey-Miller, DL (2003) ‘The Great Trek to Human Rights: The Role of Comparative Law
in the development of Human Rights in Post-reform South Africa’, in E Örücü (ed),
Judicial Comparativism in Human Rights Cases vol 22 United Kingdom Comparative
Law Series (London, UK National Committee for Comparative Law/British Institute of

International Comparative Law).
Drobnig, E (1999) ‘The Use of Comparative Law by Courts’ in U Drobnig and S van Erp
(eds), The Use of Comparative Law by Courts (The Hague, Kluwer Law International).
Dupré, C (2003) Importing the Law in Post-Communist Transitions: The Hungarian
Constitutional Court and the Right to Human Dignity (Oxford, Hart Publishing).
Gutteridge, H (1949) Comparative Law (Cambridge, Cambridge University Press).
Kaminski, IC (2000) ‘The Power of Aspiration: The Impact of European Law on a non-EU
Country’ in M van Hoecke and F Ost (eds) The Harmonisation of European Private Law
Koopmans, T (1996) ‘Comparative Law and the Courts’ 45 International Comparative Law
Quarterly 544.
Markesinis, B (1990) ‘Comparative Law—A Subject in Search of an Audience’ 53 Modern
Law Review 4.
—— (2003) Comparative Law in the Courtroom and Classroom: The Story of the Last Thirty-
five Years (Oxford, Hart Publishing).
—— (2006) ‘Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding
Recourse to Foreign Law’ 80 Tulane Law Review 1325.
Markesinis, B and Fedtke, J (2005) ‘The Judge as Comparatist’ 80 Tulane Law Review 11.
Örücü, E (1999) ‘Comparative Law in British Courts’ in U Drobnig and S van Erp (eds),
The Use of Comparative Law by Courts (The Hague, Kluwer Law International).
—— (2000) ‘Comparative Law as a Tool of Construction in Scottish Courts’ Part I Juridical
Review 27.
—— (2003) ‘Whither Comparativism in Human Rights Cases?’ in E Örücü (ed), Judicial
Comparativism in Human Rights Cases, vol 22 United Kingdom Comparative Law Series
(London, UK National Committe for Comparative Law/British Institute of International
and Comparative Law).
Rozakis, CL (2005) ‘The European Judge as Comparatist’ 80 Tulane Law Review 257.
Slaughter, A-M (1994) ‘A Typology of Transjudicial Communication’ University of
Richmond Law Review 99.
Zaring, D (2006) ‘The Use of Foreign Decisions by Federal Courts: An Empirical Analysis’
3 Journal of Empirical Legal Studies 297.
Zweigert, K and Kötz, H (1998), An Introduction to Comparative Law, 3rd edn (Oxford,
19
A Project: Comparative Law in Action
ESİN ÖRÜCÜ
I. INTRODUCTION
M
any comparatists in Europe today are involved in harmonisation
projects looking for ‘common cores’ or the ‘better law’.1 These proj-
ects are geared towards either harmonisation of a particular area of
law, such as contract law, family law or tort (delict) law, or unification of law by
drawing up European codes in, for example, criminal law or contract law. Other
comparatists are occupied in assisting the European Union to draw up Directives,
Regulations or treaties.
An overview of ongoing projects related to a number of fields of private law,
for instance, shows us that most projects begin with questionnaires, though the
questionnaires themselves are not standardised (see Hondius, 2003: 118-39).
Some projects present the contributors, usually National Rapporteurs, with fac-
tual questions, while some create hypothetical cases and ask for solutions from the
different legal systems involved in the project. Others present specific problems
and try to find out how different systems would resolve them.
For example, the Trento-Project, which seeks to broaden the scope of the
Cornell Project (see Schlesinger, 1961) beyond contract law, has put the emphasis
on contract, property and tort, with a number of sub-topics such as commercial
trusts, mistake and fraud in contract law; security rights in moveable property;
pure economic loss, enforceability of promises, good faith, and strict liability
in tort law. This project relies on the factual approach, that is, ‘fact-based, in-
depth research’ methodology, or a ‘question and answer’ methodology, present-
ing a number of cases to national reporters and asking for solutions offered
by their legal systems (see Bussani, 1998). Information is requested on all the
relevant elements that affect the legal solutions to a given case, including policy
1 Most of these projects are in a number of fields of private law and include the Lando Commission
on European Contract Law that prepared the Principles of European Contract Law; UNIDROIT on
a very similar project, the Principles for International Commercial Contracts; the Von Bar Study
Group on the European Civil Code; Gandolfi’s Code of Contract Law; the Trento Common Core of
European Private Law; the Spier and Koziol group dealing with causation among other things; the
acquis communautaire Group and the SECOLA, and the Commission on European Family Law.
436 Esin Örücü
considerations, economic and social factors, social context and values, and the
structure of the process.
Another example is the Commission on European Family Law, which has
undertaken the academic activity of harmonising a number of areas of family
law such as divorce, maintenance, custody and parental responsibility. This
Commission uses what it calls the ‘comparative research-based drafting of prin-
ciples’ as the process, having been inspired by the American Restatements. A team
of specialists from 26 jurisdictions targets legislators who may be in the process
of modernising their national family laws, the hope being to create a source of
inspiration. In concert with this hope, both the ‘common core’ and the ‘better
law’ approaches are adopted. They draft questionnaires employing the functional
approach, draw up national reports reflecting both the law in the books and law
in action, draft the Principles having chosen between the ‘common core’ and ‘bet-
ter law’ approaches and then publish these Principles. The drafters choose ‘the
best’, ‘the more functional’ and the ‘most efficient’ rules, the touchstone being
the modernisation of the law. The overall justification lies in the shared notions
of human rights in Europe, with the additional emphasis on ‘increasing choice’.
Thus the options are: the common core is found and selected as the best solution;
the common core is found, but a better solution is selected; the common core is
found, but the selection is left to national law; no common core is found and ‘a
best solution’ is selected; and finally, no common core is found and the solution
is left to national law.
Comparatists involved in the above processes employ a comparative law meth-
odology, albeit based on the factual problem-oriented approach or the functional/
institutional approach, widely discussed in various chapters of this Handbook
both at the theoretical and the practical levels.2 Most projects rely mainly on func-
tional equivalence. Projects comparing cases that have been decided on similar
facts also compare solutions. A substantial number of projects do not consider
general doctrine, different techniques, historical processes or different mentalité.
The context of the rules is rarely analysed. The search is frequently for the ‘com-
mon core’, with similarities being treated as more important than differences.
These projects may have specific short-term aims, but in the long run they are all
trying to lay down a foundation for a common European law.
Comparing cases, comparing problems, comparing solutions, seeking answers
to hypothetical fact situations in an effort to discover similarities, working
through functional equivalence—and where none can be found, suggesting a bet-
ter law—are among the shared characteristics of these projects, though the paths
followed, the techniques used and the end products may look quite different.3
Yet other comparatists are involved in assisting legal systems in their law
reform efforts by providing advice on which model would best suit their situation
2 See chs 2, 3, 10 and 11 in this Handbook for more information and especially a discussion on
functional equivalence.
3 See, eg chs 10 and 11 in this Handbook.
A Project: Comparative Law in Action 437
and system.4 These comparatists are working as advisers to foreign working

groups or governments, aiding their efforts to import ‘modern’ or ‘efficient’ or
‘European law-friendly’ changes into their substantive and procedural laws.
On the 10th anniversary of the United Kingdom’s membership of the European
Community, a research project was initiated to study the impact of membership
of the European Community (now European Union) on practising lawyers in
Scotland and The Netherlands, as a contribution to the study of the role of lawyers
in the process of European integration. This was not a grand scale project such
as those mentioned above. It was not ambitious. It did not aim to harmonise the
law or produce general principles in a specific area of law. It was born out of the
curious minds and experiences of a small group of academics. It illustrates there-
fore, a middle-sized piece of empirical research, which also involved testing the
hypotheses which the members of the research team individually wanted to test.5
The way the project was set up and carried out is presented here as an example
of the use of comparative law methodology. It can be an initiation exercise for
novices wanting to undertake comparative law research.6
II. THE SETTING UP OF THE PROJECT
Composition of the Team
The project was undertaken by five people: a social psychologist, a lecturer in

European Law, a legal practitioner and senior lecturer in European Law, a lecturer
in Comparative Law, and a Professor of Comparative Law.7 Convenience, existing
links of friendship and scholarship, and the nature of the project itself—which, by
definition, was multi-disciplinary and multi-national—dictated the composition
of the research team. The project demanded the knowledge and skills of a group
of people drawn from diverse academic backgrounds. In addition to the involve-
ment of legally-trained researchers with experience in the relevant legal systems,
in European law and comparative law, it required the contribution of a method-
ologist with expertise in the gathering and analysis of empirical data—skills that
are lacking in present-day legal training. All the members of the team were work-
ing outside their traditional boundaries.
4 See, eg ch 17 in this Handbook.

5 The following sections of this chapter rely on excerpts from the published findings of the project.
See Aitkenhead, Burrows, Jagtenberg and Örücü, 1988.
6 The project started in 1982 and the results were published in book form in 1988. Obviously it is
not a recent work. It is presented here as a successful project using certain methods and strategies of
comparative law. It should not be taken to imply that doing empirical research does not change over
time and that its methods have not been refined in the intervening period.
7 Marilyn Aitkenhead—social psychologist lecturer at Loughborough University of Technology
in Management Studies, Noreen Burrows—lecturer in European Law at the University of Glasgow,

Douwe Gijlstra—legal practitioner in Amsterdam and senior lecturer in European Law at the Europa
Institute of the University of Amsterdam, Rob Jagtenberg—lecturer in Comparative Law at Erasmus
Universiteit, Rotterdam, and Esin Örücü—senior lecturer in Comparative Law at the University of
Glasgow and Professor of Comparative Law at Erasmus Universiteit, Rotterdam.
438 Esin Örücü
The Subject: The Personnel of the Law
The project centred on lawyers, an ‘umbrella’ term, which was taken to mean advo-
cates and solicitors in Scotland and advocaten and notarissen in The Netherlands.
It was felt that the role of members of the legal profession, other than the judi-
ciary, was also crucial in the operation of a European legal system, as cases arrive
at courts via the intermediary of lawyers. Their role and the importance of their
active participation in furthering the process of European integration had so far
been ignored. Therefore, the study was meant to examine how European law was
put into operation in the municipal sphere by lawyers in private practice. Were
they, for instance, ‘European minded’? Did they discount or misapply the rules
made by the European Court of Justice? Did they contribute to the functioning
of the Community?
The assumption was that the legal profession exerts great influence on the
legal and the political system. Another assumption underlying the study was
that European integration could not advance significantly without the active
participation of the legal profession as a whole.8
The Hypotheses to be Tested
It was decided to use a comparative approach so that similarities and differences

could be assessed and their implications for European integration elucidated.
Though the best strategy would have been to investigate in detail the legal practi-
tioners in each European Community Member State, limited resources precluded
this, so two jurisdictions were opted for. Scotland and The Netherlands were cho-
sen for a variety of practical and theoretical reasons. The research team had good
academic and professional contacts in both jurisdictions. This practical consider-
ation, which is always a good starting point, would not in itself justify the choice
made however. The theoretical underpinnings were that the United Kingdom was
a relatively new member of the European Community at the time of the research,
whereas The Netherlands was a founding member. Therefore, lawyers in The
Netherlands would have had longer experience and this might have impacted
their attitudes, approaches, familiarity and use of European law. In addition,
geographic and economic differences could also be factors contributing to any
differences in the attitudes and behaviour of lawyers in the two jurisdictions. For
instance, Scotland is on the periphery of Europe, trading to a large extent with
England, whereas The Netherlands is more central and therefore in closer contact
8 In this chapter the reader will find the bare bones of the research project, as the aim is to show
how a project is conceived and set up, how a questionnaire is drawn up, what conceptual problems
are encountered and what kind of hypotheses can be tested by questionnaires alone. The aim of this
chapter is not to highlight socio-legal studies, discussions and the wide-ranging research on the legal
profession. However, for the relationship of the legal profession to society at large and to their clients,
their legal culture and factors influencing these issues see Aitkenhead, Burrows, Jagtenberg and Örücü,
1988: chs 1, 3, 5, 6 and 7.
with other Member States. Moreover, The Netherlands is a civilian jurisdiction

and Scotland, though a mixed jurisdiction, more akin to the common law. These
hypotheses had to be tested. The survey would throw light on such issues via a
carefully constructed questionnaire. Conversely, there were similarities too, such
as historical links and similar geographical size.
The research project started with hypotheses. The underlying anticipated outcomes
were: (i) Dutch lawyers would perceive greater relevance of European Community
law for their practices than their Scottish counterparts; (ii) as a consequence, legal
education received by lawyers in The Netherlands would place greater emphasis on
European law than did legal education in Scotland; (iii) as a further consequence,
Dutch lawyers would be more aware of areas of law where Community law would
arise; (iv) the Dutch lawyers would come across problems relating to Community law
more often; and (v) therefore, they would find ways of keeping up to date with devel-
opments in European law and adopt strategies for dealing with issues as they arose.
Taking all these factors into account, it was expected that the Dutch lawyers would
have more positive attitudes to European law and towards the Community in general
(Aitkenhead, Burrows, Jagtenberg and Örücü, 1988: 16–17). In addition it was felt
desirable to find the reason why a rather limited number of cases were referred from
Scottish courts to the European Court of Justice for a preliminary hearing. Did issues
related to the European Community law not arise? Or did the lawyers in Scotland
fail to use European procedures for other reasons? For instance, in 1982 Dutch courts
referred 21 cases, but the Scottish courts none.
It was obvious that only a crude assessment could be made, that the cause-effect
linkages could not be readily determined, and therefore the results of the survey
should not be read in isolation. Explanations from other sources were therefore
sought when discussing the empirical results.
The Method
In this piece of research the comparative approach combined sociological analysis

(through empirical observation of ‘how things are’ viewed within the frame of the
survey) with comparative jurisprudence, or ‘how things ought to be’ according
to the desired end—that is European integration. Comparative law was regarded
both as an aspect of sociology of law and as a method of approaching the prob-
lem in hand. The study relied on expert knowledge in the areas of social science
methodology, comparative law and European law; a vast amount of discussion
and determination of hypotheses to be tested; a questionnaire reflecting the
hypotheses; and finally, analysis of the findings.
Schlesinger asked:
Should the classificatory scheme of one or the other national system be adopted? Or
should one try to create a new system of classification by merging or compromising
between some of the divergent categories found in the various systems? Or is it preferable
to create a brand new set of categories for comparative purposes? (Schlesinger, 1961: 76).
440 Esin Örücü
At the macro-level, neither the Scottish nor the Dutch legal system had any dif-
ficulty in meeting the requirements of a number of definitions of a legal system
used. This was so despite the fact that Scotland is a sub-system within a politically
unitary state. A link to independent statehood has never been a prerequisite for
the existence of a legal system. Moreover, the independence of the Scottish legal
system is guaranteed by the 1707 Act of Union.
Therefore, it could confidently be said that the systems were comparable, and
there was no need to resort to any of the paths suggested by Schlesinger in the
quotation above, although there were a number of differences and a number of
similarities between the legal systems, and obviously each system also had its own
distinct features.
At the micro-level, the first and crucial problem was to decide on the functional
comparability of advocates and advocaten. These are homonymous expressions
but are not precisely equivalent. The equivalence materialised only when advo-
cates and solicitors together and advocaten and notarissen together, were taken as
the unit under survey. Here, the third path suggested in the above quotation by
Schlesinger had to be followed. Thus, an ‘umbrella’ concept was to be created to
cover both groups of actors, since synonyms and taxonomies were not suitable.
Although the profession of a practising lawyer covers a wide spectrum of basic
legal activities—ranging from litigation to non-contentious affairs, from court
work to out of court assistance, from preparing documents to appearing in court,
from training other professionals to giving moral advice—there is a difference in
the way in which these activities are distributed between the specific professional
groups. After studying what the existing institutions entailed, an umbrella con-
cept had to be created on the basis of aggregate functions of all groups, for use
as a problem-solving technique, and a definition elaborated that did not involve
concepts exclusive to one of the jurisdiction. This is still a functional definition
but wider than the existing individual concepts. An assessment of overall compa-
rability was made of the four individual professions and since all institutions were
sufficiently comparable, a meaningful umbrella concept ‘the lawyers in private
practice’ could be ascertained to cover all.9
At the start each group was analysed by looking into educational requirements;
in-service training; professional organisation, conduct and discipline; partner-
ships; size of firm; function and scope of practice; relationship with the client;
and relationship with the other branch of the profession. Certain factors such as
the relative size of each distinct group, the size of practice and the case-loads cre-
ated quantitative problems despite the overall functional equivalence. These are
inevitable differences and they were taken into account in analysing the results.
For instance, advocates always deal with cases which have a counterpart in the
9 This activity should also remind us of Zweigert and Kötz who advocate developing a special
syntax and vocabulary, with concepts large enough to embrace the quite heterogeneous institutions
which are functionally comparable—the higher concept being related to the function common to all
(Zweigert and Kötz, 1998: 37–8).
case-loads of solicitors: these cases had to be counted twice when the case-loads
of advocates and solicitors were added together. A similar relationship does not
exist between advocaten and notarissen.
On the subject of areas of law to be covered in the questionnaire, that is, in the
choice of concepts and categories or topics of law, again, functional equivalence
was resorted to. Problems arose when it was realised that certain areas of law,
such as law relating to transport or competition, had a narrower scope in Scottish
law than in the Dutch. Therefore, direct translations or synonyms did not suffice.
Here, the chosen path was the second one suggested by Schlesinger. This entailed a
definitional effort from the outset of either redefining or delineating existing con-
cepts in order to communicate across the barriers. Functional equivalents were
sought. The questionnaires in two languages, English and Dutch, were directed
to two different groups. Hence there would be no advantage in creating universal
concepts, which, for the purposes of the questionnaire, would add new problems
rather than solving existing ones. Areas of law that performed the same tasks, that
is, institutions that served the same function, were looked at. Care was taken to
identify functions in terms of system-relevance.
The Design of the Survey
It was decided that a large and representative group of lawyers should be

approached in order to be reasonably certain that the results would reflect the
characteristics of lawyers in both countries. Of all lawyers in private practice
in the selected cities, a commercial centre, an industrial centre, a third major
city and a rural area (Edinburgh, Glasgow, Aberdeen and Perth in Scotland;
and Amsterdam, Rotterdam, the Hague and Leeuwarden in The Netherlands
respectively) one in four were chosen at random. These were taken from a care-
fully defined population—the law society or bar list of members—excluding
those not in private practice. This is a fairly large sample, so a high degree of
confidence in the results was achieved.
The survey method was to send questionnaires to this randomly-chosen sample
of lawyers. A high response rate was also needed.10 Various precautions were taken
to achieve this. The questionnaire was prepared so as to include questions that
would throw light mainly on the frequency with which European Community
law was encountered by lawyers; their education in European Community law;
their knowledge of European Community law; and the attitude they had towards
European Community law and the European Community. Additional issues such
as whether they had studied comparative law during their degree course, the level
to which they specialised in European Community law, and background infor-
mation as to their qualifications and experience were also sought. Furthermore,
10 For the details of the survey methodology employed and the theoretical discussion related to
hypothesis-testing and the choices, see Aitkenhead, Burrows, Jagtenberg and Örücü, 1988: 65–95.
442 Esin Örücü
information was gathered as to the sex of the respondents, number of years in

practice, and the size of their firms.11
The overall hypothesis that lawyers in The Netherlands are more involved with
Community law was to be tested by posing appropriate questions. All the ques-
tions proposed by the members of the team had to be corrected or approved by
the social scientist member of the team, to ensure that they were not leading ques-
tions. The strands of evidence obtained were not, however, directly concerned
with the day-to-day activities of the lawyers. Additional hypotheses were related
to issues surrounding the education of the lawyers and their attitude towards this
education: Scottish lawyers were less well educated in European Community law
than their Dutch counterparts. They therefore had more negative attitudes, and
read fewer journals to keep themselves informed.
The Questionnaire
The Construction
Since mail surveys are regarded as inferior to interviews, Dillman’s Total Design
Method (TDM), a classic work on survey design and implementation (Dillman:
1978), was followed step-by step in order to maximise the response rate. One of
the assumptions of this procedure is that people’s behaviour is motivated by the
benefits they expect to achieve from behaving in particular ways. The costs such as
effort, time, incurring negative feelings of social disapproval and so on, have to be
counterbalanced (exchange theory). The sample is more likely to respond to a mail
survey, for instance, if they perceive the benefits of doing so. Therefore, the cost of
responding was minimised by including self-addressed envelopes. The rewards of
responding were maximised by making the answering process easy, allowing them
also to make comments and promising them that they would receive the results of
the research, establishing trust that the reward would be delivered.12 Follow-up
letters were also sent after one, four and seven weeks. A 70 per cent response rate
was achieved in The Netherlands and an 80 per cent response rate in Scotland. A
third of the respondents wanted the results to be posted to them.
The Content
The questions from the Scottish version of the questionnaire are provided below.
There were 23 questions, some with three optional answers to be circled, such as
‘unimportant’, ‘important’ and ‘extremely important’; ‘not at all useful’, ‘useful’
and ‘extremely useful’; or ‘are sufficiently knowledgeable’, ‘are not sufficiently
knowledgeable’ and ‘don’t know’.
11 It was clear that the sample, like the legal profession at large, was predominantly male. Most had
had several years in practice and very few had a post-graduate degree in law.
12 See for details of the aspects, recommendations and the rationale of our questionnaire construc-
tion and implementation Table 4.2, Aitkenhead, Burrows, Jagtenberg and Örücü, 1988: 73–6.
Questions 1–4 were designed to ascertain the views of the respondents concerning
the teaching of European Community Law (ECL).
1. How important do you feel it is for the legal profession that ECL is taught
in Scottish Universities?
2. How useful do you feel it is for lawyers practising in Scotland today to have
a good knowledge of ECL?
3. On the whole, do you think that lawyers practising in Scotland today are,
or are not, sufficiently knowledgeable about ECL to recognise the legal
implications raised by United Kingdom membership of the EC?
4. On the whole, do you think that members of the judiciary in Scotland
today are, or are not, sufficiently knowledgeable about ECL to cope with
the issues raised by United Kingdom membership of the EC?
Questions 5–8 concerned their education in law.

5. When you were studying for your university degree(s) and for your profes-
sional qualification(s), which of the areas listed below did you study? How
much consideration was given to EC aspects of each area? (The areas cited
were agricultural law; taxation; criminal law; monopolies and mergers;
company law; family law; immigration law; consumer protection/product
liability; employee/employer relations; social security law; conveyancing;
copyright, patents and trademarks; law relating to customs and excise; law
relating to transport; wills; and evidence and procedure).
6. Have you studied any of the following aspects of ECL? (Institutional law;
Judicial remedies; Substantive law; other).
7. Which of the following, if any, would you like to see made available to
lawyers practising in Scotland today? (A basic course in ECL; A refresher
course in ECL; Seminars in practical topics of ECL; other).
8. When you were studying to qualify as a lawyer, was consideration given to
comparative law? (In no course; In some courses; In all courses; If in some
courses, please specify).
The next six questions relate to finding out the effect of ECL on the working
lives of lawyers.
9. In the course of your practice, in the last five years, have you had occasion
to visit another country for professional reasons connected with ECL?
For the purposes of this question, assume that Scotland and England are
separate countries (Yes/No. If yes, specify the country and approximate
number of visits).
10. In which of the following areas might you expect there to be an aspect of
ECL? (The list produced is the same as in question 5).
11. For the year 1 January, 1982 to 1 January, 1983, please indicate in the col-
umns below the approximate number of cases you dealt with involving
each of the areas of law listed; the approximate number of cases in each
444 Esin Örücü
area where an aspect of ECL was raised. (The list produced is again the
same as in question 5).
12. In the year 1 January, 1982 to 1 January, 1983 which, if any, of the follow-
ing journals have you consulted: to keep yourself generally informed on
ECL and/or, to obtain information relevant to specific cases you have dealt
with where an aspect of ECL was involved? (11 journals were given and
five additional slots were provided for others).
13. If a client were to come to you with a case in which you suspect ECL was
involved, how would you deal with such as case? (The list of courses of
action was: (1) Deal with it yourself. (2) Deal with it in consultation with
a specialist. (3) Send it to a specialist in another firm in the same city. (4)
Send it to another firm in Scotland. (5) Send it to another firm in London.
(6) Other, please specify).
14. This question aims at finding the differences in working practices, if any,
between cases where an aspect of ECL is raised and those where it is not.
If you have never dealt with a case involving ECL, please go straight to
question 15. In those cases you deal with yourself or in consultation with
a specialist, in which an aspect of ECL is raised, do you find that: (1) You
have to do more research. (2) You need more consultations with clients.
(3) You need to travel outside Scotland. (4) You encounter language prob-
lems. (5) You have increased financial outlay. (6) None of these. (7) Other,
please specify.
The next few questions are to ascertain the respondent’s opinion on ECL.
15. Please indicate whether you agree or disagree with each of the following
nine statements (Agree/disagree/no opinion are the options): (1) I would
welcome moves to harmonise laws within the European Community. (2)
I think it is easy to keep pace with developments in ECL. (3) In my view it
is difficult to gain access to information regarding ECL. (4) In my opinion
the relationship between ECL and domestic law is too complex. (5) I find
it difficult to appreciate the merits of ECL because it is so different from
my own domestic system. (6) I believe that European integration is a good
thing for Scotland. (7) I would welcome moves to encourage free move-
ment of lawyers within the EC. (8) I fear that the influence of ECL will
adversely affect the integrity of the Scottish legal system. (9) In my opinion
ECL is more relevant to the legal profession in other EC countries than it
is to the legal profession in Scotland.
16. In proceedings in which an aspect of ECL is raised, the case is not always
referred to the European Court of Justice. Why do you think this is so?
(The options were: (1) Unacceptable additional delays may arise. (2)
Unacceptable additional costs may be incurred. (3) Judges and tribunal
chairmen prefer to decide issues on the basis of domestic law. (4) Don’t
know. (5) Other.)
17. Fewer cases have gone to the European Court of Justice from Scotland than
from The Netherlands. Why do you think this is so? (More than one option
can be circled: (1) Scotland joined the EC later than the Netherlands. (2)
ECL issues arise less often. (3) The bench is conservative. (4) There are anti-
European feelings amongst the legal profession. (5) The legal profession
is not sufficiently knowledgeable about ECL. (6) There is no tradition of
uniformity of interpretation in the UK. (7) Don’t know. (8) Other.)
Finally, some questions were about the respondents to help interpret the results
of the survey:
18. How long have you been practising as a lawyer?
19. How many partners are there in your firm?
20. How many assistants are there in your firm?
21. How many trainees are there in your firm?
22. Of which of the following are you a member? (The Scottish Lawyers
European Group; The Solicitors European Group; The Young Lawyers
European Group; The International Bar Association).
23. Please specify your academic and professional qualification(s) with date(s).
(Options were Degree(s), diploma(s), professional qualification(s)).
Are there any further comments you wish to make on the matters dealt with in this
questionnaire? If so, please use this space for that purpose (a full page was left).
III. THE RESULTS
There were three clear aims behind the project. The first was to examine the
impact of membership of the European Community on the legal professions
of the two jurisdictions. The second aim was educational. It was hoped that the
distribution of questionnaires to a large sample of the legal profession would gen-
erate or stimulate their interest in European Community law (ECL), make them
more aware of the possibilities it afforded, act as a gentle reminder that member-
ship of the Community has implications for them, and lead them to examine the
gaps in their own knowledge. The third aim, also educational, was related to work
done in the universities. Was legal education preparing prospective lawyers for
practice and the needs of the day?
Considering these overall aims, it can be said that a great deal of information
was obtained about the education of the lawyers sampled, their attitude to ECL,
the frequency and nature of their work in ECL and any tendency to specialise
in particular areas of law. In addition to increasing knowledge, the project had
some success in improving university teaching, in that adjustments were made
to teaching both European and Comparative Law in Glasgow University and in
Erasmus Universiteit, Rotterdam. A joint study programme was initiated in 1986
between these two universities specifically on the topic of the legal profession
in European integration. The course was funded by the European Community
446 Esin Örücü
and entailed the exchange of students between the two countries, allowing them
to work in legal practices in their host countries. The hope was that the results
obtained from the survey would be useful in teaching future generations of stu-
dents to see themselves as part of a wider legal environment and to show them
how they could critically evaluate their own contribution to the development of
their legal cultures.
However, some weaknesses of the questionnaire also became apparent, not least
that it failed to address certain problems that were subsequently thought to be of
importance. Furthermore, it is difficult to measure the degree of ‘consciousness
raising’ that might have been achieved. Also, there is no guarantee that the results
were read, although they were available for those interested.
As to the particular hypotheses: it was predicted that Scottish lawyers would
deal with fewer ECL cases than their Dutch counterparts. This prediction was
strongly upheld in every area of law. It was clear that there was much greater
involvement with ECL cases in The Netherlands than there was in Scotland. This
finding was so overwhelmingly powerful that it could confidently be said that this
reflected a real difference in the workloads (Aitkenhead, Burrows, Jagtenberg and
Örücü, 1988: 82–4).
Another hypothesis was that a smaller proportion of lawyers in Scotland had
studied ECL than was the case in The Netherlands.13 Here it was important to
distinguish those who studied law before 1957 (the year the European Economic
Community was founded) in The Netherlands and 1972 (the year the United
Kingdom joined the European Economic Community) in Scotland. In addition,
each area of law was examined separately. Once again the hypothesis was clearly
supported. In every area of law except immigration law, a higher proportion
studied its European Community aspects in The Netherlands than in Scotland.
However, it was also discovered that the education in ECL did not meet the needs
of practising lawyers in either jurisdiction (Aitkenhead, Burrows, Jagtenberg and
Örücü, 1988: 84–6 and 96–110).
The hypothesis that the Dutch lawyers would be more knowledgeable in ECL
was derived by the investigators from their knowledge of those areas where ECL
was involved most fully and those where it was hardly involved. The strategy
adopted for assessing knowledge was a fairly crude one and therefore the results
here were regarded as a tentative exploratory step. Omissions (failing to include
a ‘relevant’ category) and commissions (inclusion of ‘irrelevant’ areas into the
‘relevant’ category) were looked for. Less knowledgeable lawyers were expected to
commit more such errors. This hypothesis was not successfully proven and here it
was concluded that interviewing as a technique would be more useful, as possibly
the questions asked were open to a number of interpretations. In the face of such
difficulties, it was decided not to draw too many firm conclusions from the results
gained (see Aitkenhead, Burrows, Jagtenberg and Örücü, 1988, 87–90).
13 See Table 4.5 in Aitkenhead, Burrows, Jagtenberg and Örücü, 1988: 85; and see also Aitkenhead,
Burrows, Jagtenberg and Örücü, 1986.

The most important hypothesis on trial was the one on attitudes. What was
clear from the results was that, for every attitude statement, a higher proportion
of the Dutch lawyers showed a positive attitude and for every statement except
one (that relating to the difficulty of obtaining information about ECL) a lower
proportion of Dutch lawyers showed a negative attitude. Thus the hypothesis was
strongly supported (see Aitkenhead, Burrows, Jagtenberg and Örücü, 1988: 90–91
and 111–27).
In the analysis, the results obtained from each hypothesis were also pitched to
the others. Then some deviations were noted. For example, when the hypothesis
that education and attitudes are linked was examined, it was found that although
the Dutch sample had much more positive attitudes and more education in
ECL than the Scottish sample, a direct test of the hypothesis within each sample
revealed no relationship between the two whatsoever. Some explanations could
be offered: It could be that legal education does not influence the way lawyers
think about ECL and European integration. There may also be a problem with
the size of the sample, caused by having too few lawyers who had had extensive
training in ECL. Thus, the true nature of the relationship between education and
attitudes was difficult to reveal. It is also possible that lack of exposure to ECL
in practice may have more to contribute to attitudes than education. It might
also be that the Scottish lawyers feel that their legal system is more under threat
from ECL because, ever since the 1707 Act of Union with England, the Scottish
legal system is a source of pride related to a feeling of independence, and thus
something to be preserved and protected from outside influences. The Dutch
have already been involved in other integration processes, such as within the
Benelux.
The implications of the findings gave some cause for alarm for the process of
European integration. It was clear from the findings that lawyers felt somewhat
distant from the European legal system, they had difficulties in gaining access
to information, they believed that the inter-relationship between ECL and their
domestic law was too complex, and they found it difficult to keep pace with
developments. For example, nearly half the lawyers in both countries thought
that the reason why there were few referrals to the European Court of Justice
was because unacceptable delays might arise, and nearly half in Scotland, and
around a quarter in The Netherlands, thought that unacceptable additional
costs might be an inhibiting factor. In both countries around 40 percent felt that
judges and tribunal chairmen have a preference for deciding cases on the basis
of domestic law.
However, considering the conservatism of legal systems and lawyers who oper-
ate them, it might be argued that, given time, lawyers in all jurisdictions of the
European Community would come to terms with the provisions of the ECL and
eventually accept Brussels and Luxembourg as essential sources of law.
Two levels of problems were indicated by the study: those at an institutional
level and those at a personal level. Problems at the institutional and personal lev-
els are, of course, related and can to some extent be explained by examining the
448 Esin Örücü
traditional patterns of the national legal systems. The study clearly demonstrated
a certain lack of harmony between the aspirations of the European Community
and rhetoric of European integration, and the experiences of lawyers in day-to-
day practice. Many explanations can be offered for this but would involve a great
deal of speculation and cannot be offered with any certainty. It was felt that they
should, however, be explored further to provide the full picture of how law and
lawyers can contribute to the process of European integration.
The subject has not lost its relevance today, and similar empirical and theo-
retical research should be carried out in the new Member States of the European
Union. In this, the project discussed can be used as a starting point or as a tem-
plate, with refinements reflecting more recent developments in research tech-
niques and methods of in-context analysis. The problems are all the more acute
since the European Union is enlarging with serious cultural implications and
Community law is increasing in both importance and scope affecting major areas
of domestic law today. In certain areas it is even taking the place of domestic law
or is being superimposed on it or enmeshed with it.
1. Select a topic and set up a hypothetical research project. Justify your choice
of the topic, the legal systems, the membership of your research team, your
research design and methodology. Formulate at least three hypotheses you
would like to test and the results you expect, with reasons.
2. If you were approached by your government to carry out a piece of com-
parative law research to facilitate harmonisation of family law especially
related to the area of do-it-yourself-divorce in the European Union, but
also looking at the problem in a culturally wider context, what kind of
methodology would you use? What kind of problems would you expect to
come across? And how would you propose to solve these?
3. ‘There is no standard comparative law methodology: the method depends
on the researcher’s purpose’. Assess this statement with examples.
Aitkenhead, M, Burrows, N, Jagtenberg, R and Örücü, E (1985) ‘Advocaat en Europees

Recht: Kwantitatieve Praktijkgegevens, Specialisatie en Opleding’ 21 Advocatenblad 501.
—— (1985) ‘European Law and the Practitioner’ Journal of the Law Society of Scotland 270.
—— (1986) ‘Education on Community Law in Scotland and the Netherlands’ The Law
Teacher 79.
—— (1988) Law and Lawyers in European Integration: A Comparative analysis of the educa-
tion, attitudes and specialisation of Scottish and Dutch lawyers (Rotterdam, Mededelingen
van her Juridisch Instituut van de Erasmus University Rotterdam No 43).
Boele-Woelki, K (2002) ‘Comparative Research-Based Drafting of Principles of European
Family Law’ in M Faure, J Smits and H Schneider (eds), Towards a European Ius
Commune in Legal Education and Research (Antwerp-Groningen, Intersentia).
Bussani, M (1998) ‘Current Trends in European Comparative Law: The Common Core
Approach’ 21 Hastings International and Comparative Law Review 785.
Dillman, DA (1978) Mail and Telephone Surveys (New York, Wiley).
Hondius, E (2003) ‘Towards a European Ius Commune: The Current Situation in Other
Fields of Private Law’ in K Boele-Woelki (ed), Perspectives for the Unification and
Harmonisation of Family Law in Europe (Antwerp-Oxford-New York, Intersentia).
Schlesinger, RB (ed) (1968) Formation of Contracts: a Study on the Common Core of Legal
Systems (Dobbs Ferry, Oceana Publications).
—— (1961) ‘The Common Core of Legal Systems, An Emerging Subject of Comparative
Study’ in KH Nadelmann, AT Von Mehren, and JN Hazard, (eds), XXth Century
Comparative and Conflicts Law: Legal Essays in Honor of Hessel E. Yntema (Leyden, AW
Sijthoff).
Index
accountability, 194, 319, 322, 324 Alston, Philip, 301

administrative law: Alvarez, JE, 347
administrative courts, 298–9 Amnesty International, 16, 75
allocation of powers, 291–5 ancient Greeks, 94, 103, 133, 174, 325
common standards, 29, 306 Anderson, Norman, 81
compensation, 306–9 anthropology, 16, 19, 97, 98, 114
conception of the state, 290, 293–5 Anti-Globalisation Movement, 69
devolution, 294 Antokolskaia, Masha, 8–9, 15, 17–18, 20–1,
discretionary powers, 27, 303–5, 306 22, 25, 28, 29, 30, 31, 32, 38, 39, 56,
diversity, 31 241–58
hearings, 296–7 arbitration, 100
judicial control, 300–6 Aristotle, 93, 94, 95, 133–4, 325
discretion, 27, 303–5, 306 artificial product differentiation, 163
fundamental rights, 301–2 Asian Development Bank, 401
grounds of review, 302–6 Asian law, legal family, 170
indeterminate concepts, 305–6 Asian values, 28–9
lack of competence, 302 assimilation, 7, 136–8, 145–7
legitimacy, 375–6 Australia, 105, 318n13, 321n22
legitimate expectations, 305 Austria, 221, 245, 252, 295
procedural irregularities, 303 autonomy, 372
proportionality, 304, 305 autopoiesis, 115
reviewable decisions, 302
rule of law, 300–1 Bar, Christian von, 231, 435n1
meaning, 287, 288 Barber, Benjamin, 265
private/public law boundaries, 289–91 Beale, H, 232
procedures, 295–8 Belgium, 221, 245, 247, 250, 252, 256
reasons for decisions, 297–8 Bell, John, 9–10, 20, 23, 27, 28, 29, 31–2,
scope, 288 37, 59, 287–309
standards of good administration, 298 better law:
supranational organisations and, 295 approaches, 49, 258, 436
transparency, 297–8 criteria, 56
tribunals, 299 harmonisation of law, 56
welfare state, 293–4 judicial comparativism, 413
African law: projects, 38, 435
colonial groupings, 196 search for, 16, 31
legal family, 170 binary logic, 93–4
mixed legal systems, 183 Bingham, Lord, 415
neglect, 81 Black, B, 276
aggression, 342, 354–5 black-letter-law, 49
Aitkenhead, Marilyn, 437n7 Blair, Tony, 345
Albania, 276 Blankenburg, Erhard, 109, 112, 113–14
Algeria, 171, 172, 180, 183 Boele-Woelki, Katharina, 257
Allen, William, 279 Bogdan, M, 48
Allott, Antony, 81 Bosnia-Herzegovina, 255
452 Index
boundaries: law reform, 403

civil/common law, 139–41, 228, 237 legal cultures, 117
geographical boundaries, 73 origins, 174
legal cultures, 117, 118 politics, 122
significance, 71–2, 74–5, 99 practicality, 33
Bourdieu, Pierre, 127 principled approach, 233
Brandeis, Louis, 234 protection of consumers, 156
Brazil, constitution, 321 security law, 274–5, 277
Brierley, John, 58, 170 trust law and, 162, 407
Bruinsma, Freek, 109, 122 UK judicial comparativism, 424–5
Buddhism, 181 clash of civilisations, 98
Bulgaria, 245, 251, 252 Clement V, Pope, 269
Burkina Faso, 180 Clinton, Bill, 345
Burma, 172 cohabitation:
Burrows, Noreen, 437n7 comparative European law, 241, 253–6
Bush, George W, 360 early legislation, 254–5
business studies, 16 European trend, 22
bye-laws, 85 registered partnerships, 255–6
colonialism, 76, 77, 101–2, 165, 196, 330
Cambodia, 327, 347 Columbia, 110
Cambridge, 95, 230 comity, 418–20
Campbell, CM, 46 commercial law:
Canada, 105, 318n13, 381 comparative culture, 277–80
Canon law, 175, 179 contextual approach, 19, 279–80
capitalism, 80, 142 globalisation and, 263–77
Carey-Miller, David, 427 instrumentalist view, 266–7, 278, 279
Carozza, Paolo, 392 issues, 32
Cassese, Antonio, 357 legal cultures and, 30, 266–7, 278
Catholic Church, 16, 39, 75, 85, 95, legal transplants, 275–7, 279
160, 269 status of financial careers, 21, 270
CEE countries, law reform, 400–1, 407 transnational world, 100
Central African Republic, 343 UK-France comparison, 269–73
Centros case, 273–4 common core:
Chiba, Masaji, 193–4 approaches, 49, 55, 56, 258, 436
Chicago School, 110 European projects, 3, 51, 435
children: Trento project, 231, 435
legitimacy, 241 common good, 289–90
US death penalty, 382–3 common law:
Chile, 110 civil law and, 139–41, 228, 237
China, 182, 197, 264, 274, 330, 342, 383 codes and, 228
choice of law, 159, 160, 163 colonial sphere, 196
Choudry, Sujit, 393 commercial law and, 263
Christian ethic, 140 drawbacks, 33
Cicero, Marcus Tullius, 325 economic growth and, 7, 158
civil law: efficiency, 156
CEE countries, 407 European common laws, 10
colonial sphere, 196 flexibility, 233
commercial law and, 263 hallmarks of legal culture, 158
common law and, 139–41, 228, 237 meaning, 101
economic growth and, 158 origins, 174
government intervention and, 158 pragmatism, 33, 141
judicial comparativism and, 426–7, 429 unity, 415, 428
Index 453
Commonwealth, 102, 330, 381, 415–16, results, 445–8

417, 421–3, 425–6 sociological analysis, 439
community, ideal types, 122 subject, 438
company law: survey design, 441–2
minimum capital rules, 273–4 team composition, 437
real seat doctrine, 162–3 tertium comparationis, 48, 95, 233
comparability, 47–8, 52, 57 traditional, 44, 45, 49
comparative law comparison:
see also comparative methodology etymology, 92
actors, 37 meaning, 91–2
advocacy, 3, 13, 15 successful comparison, 37
applied, 45 competition:
autonomy, 12, 32, 45–6 between legal systems, 7, 37, 158–62,
competing views, 12–13, 32 234–6
contested territory, 191 monopolies, 163, 164
contexts, 19–25, 45, 436 race to the bottom, 235
definitions, 43, 44–7, 413 Trendex Trading case, 159, 161, 162
directions, 12–19 conciliation, epistemology of conciliation,
epistemology of conciliation, 6, 98–106 6, 98–106
evaluation v explanation, 17–18 conflict, epistemology of conflict, 6, 92–8
exclusions, 80–3 conflict of laws, 97, 99, 159
functions, 5, 34–5, 44, 53–6, 62, 134–5, Confucianism, 113, 181, 197
191, 374 Congo (DRC), 343, 383
future, 3–4 constitutions:
humanism, 145 accountability, 319, 322, 324
indispensability, 45 allocation of powers, 317–18
interdisciplinary approaches, 16–19, 33 amendments, 320–1
interest in, 3, 44, 62, 91, 399–400 approaches, 24
justification, 428–32 autochthonous characteristics, 316–17
macro/micro-comparison, 56–62 comparative law, 10, 314, 322–6
origins, 43 comparative politics and, 322–4
policy-oriented work, 14–15 general comparative law and, 324–6
post-modernism, 44, 407 methodology, 331
practices, 13, 32–9 neglect, 14, 324–6
scholarly, 46, 50, 54 practical applications, 326–8
similarities and differences, 6–7, 25–32 teaching, 332
social trends and, 39 constitutional courts, 320
tainted heritage, 193 constitutionalism and, 322–4
terminology, 19, 46–7 constitutionality of death penalty, 377
theorising, 32 context, 23, 24
universalism, 37, 39 contracting states, 319
Western traditions, 78–83 convergence, 21, 333–4
comparative methodology: enforcement, 20, 319, 322
approaches, 47–53 fitness for purpose, 322
choice of method, 439–41 flexibility, 320–1
comparability, 47–8 functions, 317–19
concepts, 374–5 human rights and, 328, 372
constitutionalism, 331 ideal types, 329–31
hypotheses, 438–9 instrumentalist approach, 23
project description, 437–48 interdisciplinary approaches, 17
project setting, 437–45 nature, 314–17
questionnaires, 435, 436, 441, 442–5 special status, 319–20
454 Index
supremacy, 320 Croatia, 244, 255

taxonomy, 328–31 Cuba, 330
waves of constitution-making, 326–7 culture
consumer protection, 156, 222–3, 234 see also legal cultures
contexts: assimilation and multiculturalism, 7,
commercial law, 19, 279–80 136–8, 145–7
comparative law and, 19–25, 45, 436 clash of civilisations, 98
formants of law, 61 commercial law and, 266–7
human rights and, 35, 389 concept, 114–16
legal systems, 57 cultural defence, 100
methodologies, 53 definitions, 97–8
non-Western legal systems, 194–8 global culture, 115
contract: human rights and, 389
choice of law, 159, 160, 163 law and, 21, 28, 137, 143–4, 145, 194–8
CISG, 224, 232, 277 legal visibility of cultural difference,
contracting states, 319 145–8
diffusion of law, 235 monocultural myopia, 38
EU Directives, 225 relativism, 373
good faith, 141 significance, 39
Lando Commission, 140, 435n1 social construct, 23
Principles of European Contract Law sociological concept, 19
(PECL), 231–3, 435n1 studying cultural difference in law,
Rome Convention, 232, 235 148–52
Trento Project, 435 systems and, 268–9
unfair terms in consumer contracts, 222 Curran, Vivian, 148
Unidroit Principles, 232, 435n1 customary law, 8, 61, 95, 156, 158, 172,
Vienna Convention, 163 179, 192
convergence see harmonisation of law Cyprus, 221
cooperation, international criminal law, Czech Republic, 221, 244, 251, 252
348–9
Copernicus, Nicolas, 103 Dallaire, Roméo, 344
copyright, 118 Damaska, MR, 121, 122
Cornell Project, 435 Danial Latifi case, 207, 208, 211, 212
corporate governance, reforms, 22 David, René, 58, 78, 170
Corpus Juris, 361, 362 De Cruz, Peter, 50
corruption, 110, 194 de lege ferenda, 55
cosmopolitanism, 84 De Roover, R, 269
Cotterrell, Roger, 6–7, 22, 23, 26, 28, 29, 31, De Smith, Stanley, 323
33, 116, 120, 122, 123, 124, 133–166, 329 death penalty, 377, 380–5, 387–91, 393
courts delays, 34, 126–7, 206, 207, 209
see also judicial comparativism democracy:
context of judicial decisions, 20–1 counter-majoritarian issue, 376
delays, 34, 126–7, 206, 207, 209 judicial comparativism and, 379–80,
crimes against humanity, 342, 343, 344, 389–90
346, 354 Denmark, 110, 221, 244, 247, 252, 255,
criminal law 273–4
see also international criminal justice Denning, Lord, 159, 160, 176
civil and common law procedures, 121 Derrett, Duncan, 81
cultural defence, 100 developing countries, 35
harmonisation, 361–2 development, law and, 16
procedures, 360 devolution, 294
critical race theory, 145–6, 147 Dezalay, Y, 37
Index 455
dialogic method, functionalism and, Drobnig, Ulrich, 266

374–5, 391–4 Dubai, 277
Dicey, AV, 300 due process, 34, 385, 386
diffusion of law Duguit, L, 316
see also legal transplants
colonialism, 76, 77, 101–2 East Timor, 316n10, 347
naive model, 83–4 economics:
processes, 171–2, 175 artificial product differentiation, 163
terminology, 19 competition between legal systems, 7,
third cultures and, 29 37, 158–62
variations on standard model, 86–7 efficiency, 7, 145, 155–6, 162
dignity, 149–51, 372, 384, 392, 393 global changes, 264–7
Dillman, DA, 442 growth and English common law,
Diplock, Lord, 416 7, 158
discretionary powers, 27, 303–5, 306 interdisciplinary approaches, 16, 17,
discrimination: 18n10
family law and, 242, 245, 247 law and, 155–8
India, 211 liberalism, 144
judicial comparativism, 377 efficiency, 7, 145, 155–6, 162
distributional justice, 156 Ehrlich, E, 191
diversity: Ehrmann, Henry, 58
assimilation and multiculturalism, 7, Eichmann, Adolf, 349
136–8, 145–7 emergency powers, 289
belief systems, 77 empirical school, 50
case for, 25–6, 31, 33, 36, 39, 144, 234 England
efficiency and, 145 see also United Kingdom
EU positions, 31 casuistic nature of law, 141
European private laws, 220–1 common law, 101, 102, 221, 226,
globalisation and, 38 228, 233
jurisprudence of difference, 146 economic growth and, 158
legal visibility of cultural difference, 145–8 contract law, 141
Legrand and European private law, criminal procedure, 352
138–44 Declaration of Rights (1689), 383
moral deficit of harmonisation, 142–5 divorce law, 247–8, 250–1, 251, 252
non-Western legal systems, 193–8 jus commune and, 230
similarities and differences, 25–32 law of obligations, 82
studying cultural difference in law, legal system, origins, 172, 176–7, 180
148–52 marriage law, 244
sustainable diversity, 334 mens rea, 355
tolerance, 6, 105–6 Pre-Action Protocols, 299
transaction costs, 35, 38, 400 Enlightenment, 102
unity from legal diversity, 133–6 Enron, 22
divorce: epistemologies:
comparative European law, 241, 247–53 epistemology of conciliation, 6, 98–106
European harmonisation, 257 epistemology of conflict, 6, 92–8
India, 200–2 legal epistemologies, 28
irretrievable breakdown of marriage, equity, 141
251–3 Erp, Sjef van, 11, 18, 28, 33, 35, 36,
Islamic law, 201 399–408
maintenance of divorced Indian women, Errera, Roger, 308
8, 36, 205–9 essentialism, 98
no-fault divorce, 247–51 Estonia, 221, 245
456 Index
ethnocentricism, 3, 72 imposition, 224–7

Eurocentricism, 7, 76, 170, 171, 181, 190, organic development, 236–7
191, 196, 198, 204 European identity, 223
European Bank for Reconstruction and free movement principle, 235
Development, 401 functional comparative analysis, 51
European Convention on Human Rights: General European Principles, 56
administrative law and, 301 general interest services, 290
cruel or inhuman treatment, 381 harmonisation of law, 26, 29, 31, 56,
dynamic interpretation, 242, 243 224–6, 361
incorporation in constitutions, 328 ICTY and, 359
model, 315 internal market, 221–3
right to marry, 245 intra-European trade, 399–400
UK judicial comparativism, 419, Justice and Home Affairs, 359
429, 431 legal cultures, 29
European Court of Human Rights: Turkish accession, 118, 184
family law and, 242 UK judicial comparativism and, 413–14,
impact, 358 417, 420, 431
Italy and, 127 unfair terms in consumer contracts,
judicial comparativism, 377–8, 380–1, 222
386, 427 United States and, 37
margin of appreciation, 242, 246 Ewald, William, 81
social trends and, 39 exceptionalism, 27, 117
transsexual marriage, 246 experts, law reform process, 401–3, 406,
European Court of Justice: 407, 408
free movement principle, 235 extradition, 359–60
judicial comparativism, 377, 420, 427 extraordinary rendition, 359
organs of the state, 290
principles of tort law and, 233 factual approach, 48, 51
Tobacco judgment, 222 failed states, 97
European Union: fair trial, 301, 353
acquis communautaire, 222, 225, family law
400, 407 see also cohabitation; divorce; marriage
administrative law, 298, 304, 305 Commission on European Family Law,
Charter of Fundamental Rights, 243, 435n1, 436
245, 247, 298 common European standards, 242
common constitutional traditions, 104 commonalities, 25, 30
common values, 140 comparative law, 8–9, 241–58
comparative law and, 146 context, 20–1
comparative project, 435–48 ECHR jurisprudence, 39
compliance, 110 Europe, 241–2
Constitutional Treaty, 243, 245, 247, 298, harmonisation of European laws, 256–8
327–8, 361 human rights and, 241–2
contract law and, 140 India, 199–204
diversity and, 31 international development, 29
effect of Directives, 139 legal cultures and, 257
enlargement, 407 networks of comparative lawyers, 38
European arrest warrants, 361 Principles of European Family Law, 257
European civil code, 219 psychology and, 17
bottom-up approach, 229–36 social change, 17–18
case for, 220–3 transnational world, 100
feasibility, 227–9 values, 30
idea, 226–7 family life, ECHR protection, 242
Index 457
fault, 307–8 road accident compensation, 160, 161

fax system, 164 rule of law, 300–1
female circumcision, 39 security law, 274, 276
feudalism, 175, 269 Société de Législation Comparée, 427
Fiji, constitution, 317n11 UK v French commercial law, 269–73
Finland, 221, 244, 252, 255 franchising, 235
folk law, 61 Frankenberg, Günter, 21, 23, 24
forum shopping, 31 freedom of information, 297–8
Foster, Nicholas, 9, 15, 19, 20, 21, 23, 28, Friedman, J, 115, 124, 126
30, 32–3, 263–80 Friedman, Lawrence, 83, 109, 112–13, 116,
Foucault, Michel, 127 121–2, 124, 125, 127
France: Frost, Robert, 93
administrative court, 299 Fukuyama, Francis, 265
administrative law, 289 functional equivalence, 47, 48, 50–2
allocation of powers, 291–2 functionalism:
commissions, 299 comparative law, 50–2, 375
compensation, 307, 308, 309 cultural approaches and, 6
criminal liability, 309 dialogic method and, 374–5, 391–4
discretion, 303, 304 family law, 18
freedom of information, 297, 298 harmonisation of law, 140–2
hearings, 297 India, 22
legal certainty, 305 judicial comparativism, 413, 429
reasons for decisions, 297 social sciences, 23
remedies, 299 fuzzy logic, 94, 98–102
Tribunal des Conflits, 299
choice of law and, 163 Gandhi, Indira, 205
civil law system, 228 Gandhi, Rajeev, 206
cohabitation, 256 Garnot, SFR, 280
company law, 276 Garth, B, 37
constitution, 318, 325, 326, 332 Geertz, C, 123
culture of dignity, 149 gender reassignment, 246–7
Declaration of the Rights of Man genocide, 342, 343, 344, 345, 354
(1789), 308 geography, 16
diffusion of legal system, 172, 175, Germany:
183, 330 administrative court, 299
divorce law, 248–9, 250, 252 administrative law, 28
droit commun, 101 allocation of powers, 292–3
état de droit, 300 discretion, 303, 304, 305
financial careers, 21, 270 freedom of information, 297–8
health service, 294 hearings, 297
judicial comparativism, 377 housing, 294
law of obligations, 82 indeterminate concepts, 305–6
legal profession, 273 legitimate expectations, 305
legal tradition, 80 liabilities, 308
marriage law, 245 procedures, 295
Napoleonic legacy, 175, 221, 330 proportionality, 304, 305
Nuremberg Tribunal and, 348, 351, 357 reasons for decisions, 297
perception of litigation, 123 remedies, 299
privacy, 150 cohabitation, 255
public inquiries, 296 constitution, 317, 321n24, 332
public law, 290 culture of dignity, 149
Revolution, 248, 318, 325 diffusion of legal system, 172, 221, 235
458 Index
divorce law, 248, 252 good governance, 14, 313, 322, 324, 325,
federalism, 294 327, 333
gemeine Recht, 101 Goode, RM, 271, 272
GTZ, 401 Google Scholar, 18
health service, 294 Gotovina, Ante, 345
law and order attitudes, 115 Grands Systèmes approach, 58, 77, 78–80
law of obligations, 82 Graziadei, Michele, 50–1, 53
legal tradition, 28, 80 Greece, 183, 221, 244, 251, 252
litigation rate, 124 Greenland, 85
marriage law, 245, 247, 303 Greenpeace, 16, 75
Nuremberg trial, ?? Griffiths, John, 194
occupation of Netherlands, 118 Gutteridge, Harold, 44, 45, 54, 57, 82
post-war trials, 349 Guyon, Y, 272
privacy, 150 Gypsies, 16, 75, 85
public v private law, 290–1 Gypsy law, 85
Rechtstaat, 301, 323
terminology of comparative law, 46 Habyarimana, Juvenal, 343
Giddens, Anthony, 70, 74, 265 Hammurabi, 174
Gijlstra, Douwe, 437n7 Hamson, CJ, 82
Ginsburg, RB, 393 Harding, Andrew, 7–8, 10, 14, 17, 20, 21,
Glendon, Mary Anne, 379–80, 391 23–4, 27–8, 30, 171, 313–34
Glenn, Patrick, 3, 6, 13–14, 15, 19, 20, Harlow, C, 319
25–6, 28, 32, 36, 58, 73, 79, 91–106, 115, harmonisation of law:
124, 174, 177, 334 advocacy, 26
global jurisprudence, 393 Anglo-Saxon practices, 38
global law, 85, 210 assumption of common framework, 148
globalisation: authoritarianism, 143
commercial law and, 263–77 commercial law, trends, 266
comparative law and, 3, 14, 69–87 comparative law function, 55–6, 134–5
concept, 69–75 constitutional convergence, 333–4
constitutions and, 333–4 criminal laws, 361–2
controversy, 69–70, 74 debate, 25–32
definition, 265 European family law, 256–8
diversity and, 26, 30, 38 European private law, 8, 219–20
global culture, 115 bottom up approach, 8, 229–36
global perspective, 70, 71, 72, 77 case for, 220–3
harmonisation of law and, 142, 190 civil code idea, 226–7
hegemonic and counter-hegemonic feasibility, 227–9
forces, 79 internal market, 221–3
interdepedence, 69–70, 72, 74, 77 international conventions, 223–4
intermediate levels, 70 legal science and education, 229–31
law and politics, 122 organic development, 236–7
literature, 69, 74, 75 symbol of European identity, 223
local laws and, 212 European Union, 26, 29, 31, 56,
misuse of term, 5, 70–2 224–6, 361
non-Western legal systems and, 189 functionalist approach, 140–2
origins, 74 globalisation and, 142, 190
significant actors, 75 Indian personal law, 198–204, 209–12
sub-worlds, 70 Legrand and European private law,
Goering, Hermann, 348 138–44
Goldstein, A, 32 minimum harmonisation, 235
good faith, 141, 435 moral deficit, 142–5
Index 459
non-Western legal systems, 195–6 humanism, 145

obstacles, 162–3 Hungary, 181, 221, 251, 252, 255
preconditions, 34–5 Huntington, Samuel, 98
terminology, 19, 220 Husa, Jaakko, 3–4
Hart, HLA, 80, 97, 104
Hayek, Friedrich von, 156 Iceland, 244, 252, 255
Hindu law, 8, 78, 79, 81, 85, 196–7, ideal systems, 49
200, 204 ideal types:
Hinduism, 181 constitutions, 329–31
Historical School, 234 Western academic law, 75–7
history: Western comparative law, 81
context, 22 ideology, 116, 243–4, 317
importance, 79 imperialism, 76, 77, 101–2, 165, 196, 330
UK/French commercial law, 269–73 incommensurability, 94–5
Hitler, Adolf, 348 India:
Hobbes, Thomas, 156 Christians, 201–2
Hoffman, Lord, 373 constitution, 198, 199, 315n2, 320n19,
Holiday Inns, 72 321n23, 332
Holmes, Oliver Wendell, 233 context, 21, 22, 26
Holocaust, 349, 350 Danial Latifi case, 207, 208, 211, 212
Holy Roman Empire, 95 divorce, 22, 200–2
Hong Kong, 172, 181, 182, 183 federalism, 318n13
human dignity, 149–51, 372, 384, 392, 393 harmonisation of personal laws, 26,
human rights: 198–204, 209–12
comparative law and, 100, 371, 376–80 Hindus, 198, 200, 201, 203, 204
concepts, 372–4 Kuchi-pudi, 96
constitutional rights and, 328, 372 legal realism, 18, 203, 205, 207
contexts, 35, 389 litigation rates, 121
counter-majoritarian issue, 376 maintenance of Muslim divorced
European family law and, 241–2 women, 8, 36, 205–9
functionalism and dialogic method, mixed legal system, 15, 172, 195
374–5 model, 35–6
grounding, 372–3 Muslims, 201, 202–3, 204
international criminal justice and, 358 Parsis, 201
judicial comparativism, 372, 380–7 patriarchy, 211
critiques, 387–91 Penal Code, 199
US criminalisation of sodomy, 380, polygamy, 200
385–7, 388 secularism, 198, 202, 204, 206
US death penalty, 380–5, 387–91, 393 Shah Bano case, 204, 205–9
jus commune, 55, 371 traditional concepts, 35, 211
lawyers’ practice, 36, 39 Uniform Civil Code, 198–204, 206, 207,
legal cultures and values, 190 209, 212
marriage and, 243 indigenous peoples, 16, 75, 85, 105
natural law, 373–4, 389, 392–3 Indonesia, 181, 318n16
pluralism, 374 Industrial Revolution, 270
political controversies, 371–2 information:
relativism, 27, 39, 373 foreign law information, 236
right to marry, 245 freedom of information, 297–8
state recognition, 373–4 information technology, 264
treaties, 390 instrumentalism:
UK judicial comparativism, 429, 431 Anglo-Saxon approach, 128
universalism, 39, 373, 374, 389 commercial law, 266–7, 278, 279
460 Index
comparative law, 17–18, 23, 191 international law:

impoverishment, 145 comparative law and, 55
legal positivists, 135–6 criminal law, 348–9
modern states, 76 general principles, 55
post-modernism and, 33 levels of order, 71
inter-communal law, 85 Westphalian order, 71, 75
interdepedence, 69–70, 72, 74, 77 internationalised courts, 347, 357
interdisciplinary approaches, 16–19, 33 Internet, 18, 72, 264
interlegality, 119 interpreters, 403–4
International Academy of Comparative Iran, 265, 323, 383
Law, 13, 14 Iraq, 343, 347
International Commission of Jurists, 300 Ireland, 221, 226, 244, 247, 249, 299, 321n21
International Commission on European Islam:
Family Law (CEFL), 257–8 comparative law neglect, 81
International Convention on the Rights of constitutions and, 330
the Child, 382–3 diasporas, 73
International Covenant on Civil and divorce, 201
Political Rights (ICCPR), 353 dynamic law, 195
International Criminal Court, 342–3, 347, globalisation and, 71
351, 352, 353, 355, 361, 364 legal co-existence, 8, 196
international criminal justice: legal family, 170
ad hoc tribunals, 343–7, 351, 352–3, maintenance of divorced women,
356–7 205–6, 207
comparative law contribution, 339, mixed legal systems and, 181
350–63 mortgages, 100
complementarity principle, 342–3, 361 Nigeria, 316
concept, 18, 341–2 resurgence, 265
controversy, 363–4 riba, 274
directions, 16 status of shari’a law, 175
emergence, 14 transnational law, 85
hybrid courts, 347, 357 Israel, 315, 349, 360
ICC, 342–3, 347, 351, 355, 361, 364 Italy:
institutional framework design, 350–4 administrative law, 289, 295, 299, 304
international conventions, 348–9 Catholicism, 39
international criminal law and, 341–2 civil law world, 117
international human rights law comparative legal studies, 4n1
and, 358 constitution, 317, 321n24
jurisprudence, development, 356–8 court delays, 126–7
legislating, 354–6 devolution, 294, 318n13
motivation of comparative studies, 364 divorce law, 247, 249, 252
mutual assistance, 359–60 marriage law, 244
Nuremberg Tribunal, 347–8, 351–2, meaning of legal culture, 111
356, 357 mixed legal system, 172, 180
policy making and, 358–9 Napoleonic legacy, 221
procedures, 351–4 security law, 275
scholarship, 349–50
International Criminal Tribunal for Jackson, Robert H, 351
Rwanda (ICTR), 343–6, 352–3, 356–7 Jackson, Vicki, 316, 373
International Criminal Tribunal for the Jagtenberg, Rob, 437n7
Former Yugoslavia (ICTY), 343–6, Japan:
352–3, 356–7, 359 concept of rights, 124
international humanitarian law, 355 constitution, 332
Index 461
corporate governance, 22 uses, 55, 377–80

exceptionalism, 27 weaknesses, 37, 376
legal transplant, 118, 165, 428 judicial notice, foreign law, 414–15
litigation rate, 113 judicial review:
mixed legal system, 183 comparisons, 300–6
Jewish law, 85 expansion, 32
Jhering, Rudolph von, 375 legitimacy, 375–6
judges: jus commune:
common enterprise, 28, 392, 393 EU debate, 219–20
independence, 400–1 European continental tradition, 230
insularity, 413, 414, 415 European jus commune, 373
international conversations, 392 human rights, 55
training, 405, 431 legal education, 95, 229
judicial comparativism: new jus commune, 229–31
auxiliary source of law, 430 obstacles, 179
better-law approach, 413 Roman origin, 101, 229
civilian jurisdictions, 426–7 scholarly tradition, 229–30
critiques, 387–91 Jus Commune Casebook on Tort
decorative use, 413, 429 Law, 231
democracy and, 379–80, 389–90 Jus Commune Research School, 231
ECJ, 377, 420, 427 justice
ECtHR, 377–8, 380–1, 386, 427 see also international criminal
functional use, 413, 429 justice
human rights, 372, 380–7 distributional justice, 156
jurisdictional contrasts, 376–7 global justice and comparative
justification, 428–32 law, 14
persuasive comparativism, 376 law and, 341
South Africa, 427 natural justice, 134, 296–7, 418
UK courts, 37, 378–9, 379, 413–26 Rawlsian theory, 74
civilian jurisdictions, 424 relative justice, 211
comity, 418–20 restorative justice, 350
Commonwealth cases, 415–16, 421–3, social justice, 309
425–6 Total Justice, 112
empirical evidence, 417–18 Justinian’s Digest, 424–5
EU law, 420, 431
EU national laws, 428 Kahn-Freund, Otto, 45, 83, 100, 266
functional use, 429 Kambanda, Jean, 345–6
guidance and support, 420–5 Kant, Immanuel, 340
human rights, 429, 431 Karadzic, Radovan, 345
insurality, 415 Karameus, KD, 47
internationalism, 429 Kelsen, Hans, 60, 104, 191
language, 414 Kennedy, David, 38–9, 43, 278
limits, 425–6 Kenya, constitution, 327, 328
proof of foreign law, 414 kidnapping, 360
public policy, 418 Knights of St John, 175
Roman law, 424–5 Koopmans, T, 44, 426
selectivity, 430–1 Kosovo, 347
unity of common law, 415, 428 Kötz, Hein, 22, 44, 48, 51, 55, 58, 60, 78–9,
uses, 418–25, 429–32 81, 170, 175, 251
US criminalisation of sodomy, 380, Kraakman, R, 276
385–7, 388 Kuchi-pudi, 96
US death penalty, 380–5 Kuwait, 343
462 Index
Lando Commission, 140, 232, 435n1 collective ignorance, 71–2

Lando Principles, 408 colonialism and, 165
language, 36, 403, 414, 441 commercial law and, 30, 266–7, 278–9
Latvia, 221, 244, 247, 250 concepts, 6, 28, 29, 58–9, 102–6,
law: 109–14
boundaries, 15–19 culture of legality, 111
concepts, 18, 61, 111 economic interpretation, 7
contexts see contexts elements, 112, 113
culture and, 28, 137, 143–4, 145, 194–8 European legal culture, 28–9
economics and, 155–8 external cultures, 112
first order, 32 family law and, 257
formants, 61 human rights and values, 190
ideal types, 75–7 internal cultures, 112
institutionalised social practice, 73 international criminal justice and, 357
interdisciplinary approaches, 16–19 interpretative approach, 123–4
levels of order, 71, 85 methodology and, 52
local knowledge, 123 networks, 163–5
logic of separation, 93–6 overlaps, 6, 29
power and, 194 overthrowing, 103
second order, 32 reflexivity, 124, 127–8
social practices, 19, 77, 358 relational legal cultures, 126
sociology of law, 18, 19, 21 tolerance of diversity, 105–6
states as source of, 61, 96–7, 101, 194 units, 117–20
theories, 73, 141 use of concept, 116–20
third-tier rules, 20 visibility of difference, 145–8
top-down perspective, 76, 77 Western academic tradition, 75–83
universalistic approach, 77 legal education:
Western academic traditions, 75–83 comparative project, 440, 443, 446
Law, John, 270 harmonisation of law and, 229–31
law in action, 20, 23, 61, 73, 121, 358 history, 95
law reform: law in context, 25
advice giving, 404–5 legal families:
borrowings, 235 broad families, 170–1, 174
choice of experts, 401–3 classification, 54, 78
comparative law and, 427–8 concept, 16, 28, 196
comparative law function, 55 constant elements, 170
critical evaluation, 406–8 cultural boundaries, 139–40
expert preparation, 403–4 deficiencies, 8, 169–70
funding, 401, 406 Eurocentricism, 7, 170, 171, 181, 196
interpreters, 403–4 Europe, 60
languages, 403–4 irreconciliability, 26
legal transplants, 406–8 non-Western legal systems and, 196
legislative comparativism, 427–8 third family, 182
processes, 176, 401–8 legal pluralism:
training judges, 400–1, 405 concept, 61
transition countries, 400–1 India, 204
Law Society of England and Wales, 163 jus unum and, 95
Lawson, FH, 82 legal and social norms, 15
leases, 235 levels of order, 71, 85
legal cultures: non-Western legal systems, 193, 194–8
circular argument, 123–7 normative legal pluralism, 60
coherence, 120–7 situations, 73
Index 463
terminology, 19 literary theory, 16

universalism and, 374 Lithuania, 221, 244, 250
legal practictioners: litigation:
convergence and, 163, 235 delays, 34, 126–7, 206, 207, 209
education, 440, 443, 446 efficiency, 156
monopolies, 163 foreign courts, 38
multivalent logic, 98–102 rates, 110, 113
transnational firms, 100 living law, 147, 191
UK comparative project, 438–49 localisation, 265
legal proceedings see litigation Lockerbie trial, 347
legal realism, 18, 20, 53, 205, 207, 340–1 Loughlin, RM, 323
legal systems Louisiana, 175, 178, 179, 183
see also non-Western legal systems; Luhmann, Niklas, 25, 115, 127, 142
Western traditions Luxembourg, 221, 245
classification, 7, 54, 59, 78–9, 169–71
competition between, 7, 37, 158–62, McBarnett, Doris, 34
234–6 McCrudden, Christopher, 11, 27, 32, 36,
constant elements, 170 37, 39, 371–97
culture and, 268–9 Macedonia, cohabitation, 255
definitions, 57 Macintosh, A, 269
European private laws, 220–1 macro-comparison, 56–62, 78–80
grounding, 104 Mahoney, PG, 278
history, 104 Maine, Henry, 200
macro-comparisons, 57–8 Malaysia, 172, 173, 181, 196, 318, 321n25
mixed, 7, 165, 170, 171, 177–84, 194–8 Mallat, Chibli, 276
overlaps, 7, 171–7 Malta, 175, 184, 221, 244
separation, 93–6, 105 Mansfield, Lord, 271
top-down models, 60 Mao Zedong, 264
tree model, 173, 174, 175–6 Maoris, 16, 75, 85
wave theory and, 173–4, 181 Marcus, M, 32
legal traditions see legal cultures Markesinis, Basil, 18, 28, 81, 82, 307, 415
legal transplants: marriage
commercial law, 275–7, 279 see also divorce
culture and, 117–18 age, 245
economics and, 162–3, 165 capacity to marry, 245–6
examples, 428 comparative European law, 242–7
feasibility, 179 consanguinity, 246
law reform processes, 406–8 de-ideologisation, 32, 243–4
objectives, 35 equal rights of spouses, 247
transplant theory, 191 European tradition, 241
legislative comparativism, 427–8 impediments, 246
legitimate expectations, 305 new concept, 242–3
lego-centrism, 38, 194, 198 right to marry, 242, 245, 247, 303
Legrand, Pierre, 26, 33, 37, 38, 48, 81, 83, same-sex marriage, 247, 325
138–44, 147, 148, 179, 227–8, 237, 407 secularisation, 244–5
lex mercatoria, 15, 85, 105, 119, transsexuals, 246–7
270–1, 416 Marx, Karl, 127
Leyland, Peter, 10, 14, 17, 20, 21, 23–4, Mattei, Ugo, 162, 171
27–8, 30, 313–34 Maurer, Helmut, 293
L’Heureux-Dubé, Claire, 393 Melissaris, Emmanuel, 194
liberalism, economics, 144 Menski, Werner, 8, 15, 16, 18, 21, 22, 26,
liberty, 149 28, 35, 36, 38, 189–212
464 Index
Meron, Theodor, 345 neo-liberalism, 110, 122, 264, 265

Merry, Sally, 114, 119 neo-romantic turn, 4
Merryman, John, 49, 57, 58–9, 268 Netherlands:
meta-language, 38 administrative law, 295, 299
methodology see comparative Center for International Legal
methodology Co-operation, 401
Meulders-Klein, Marie-Thérèse, 257 civil law world, 117, 438–9
Mexico, federalism, 318n13 cohabitation, 255
micro-comparison, 50–2, 56–62, 78, 80–3 comparative project, 437–48
Micronesia, 180 diffusion of legal system, 183
migrants, 16, 75 dispute mechanisms, 118
millet system, 195 divorce law, 251, 252
Milosevic, Slobodan, 345 gay marriages, 234
minorities: German law model, 221
assimilation and multiculturalism, German occupation, 118
136–8 legal culture, 109, 122
intolerance by, 31 litigation rate, 110, 113, 124
mixed legal systems, 7, 165, 170, 171, marriage law, 244, 245
177–84, 194–8 mixed legal system, 172, 180
Mladic, Ratko, 345 public utilities, 290
Moldova, 245 same-sex marriage, 247
Monateri, Pier Guiseppe, 171–2 networks, 163–5
Montesquieu, Charles de, 191, 325 New Zealand, 315
More, Thomas, 325 NGOs, significance, 16, 75
Müller-Freienfels, Wolfram, 256 Nigeria, 159, 315–16, 315n5, 318n13, 383
multiculturalism, 7, 136–8, 145–7 non-state law, 60, 61, 71, 78, 85, 104–5
multinational companies, 31 non-Western legal systems:
multivalent logic, 94, 98–102 belittling, 189
Munday, R, 47 context, 190–4
Muslims globalisation and, 189–90
see also Islam interlinked systems and cultures,
India, 201, 202–3, 204 194–8
maintenance of divorced Indian women, pluralist attitudes, 193
36, 205–9 unacceptability, 206
UK ‘living law,’ 147 Normans, 175, 179
mutual assistance, 359–60 normative inquiries, 48, 60, 61
mutual recognition, 99 North Korea, 330, 343
myths, 128 Northern Ireland, 85, 244, 386
Norway, 244, 252, 254, 255, 321n24
NAFTA, 119 Nuremberg Tribunal, 347–8, 351–2,
Namibia, constitution, 321n24, 327 356, 357
Naples, 175
Napoleonic wars, 270 obligations, comparative studies, 82
nationalism, legal nationalism, 101 OECD, 29, 119, 295
nations Ogus, Anthony, 7, 16, 25, 28, 29, 33, 34, 37,
see also states 155–66, 183–4
without states, 16, 75 Ombudsmen, 299
natural justice, 134, 296–7, 418 Orientalism, 114
natural law, 134, 135, 193, 373–4, Örücü, Esin, 3, 5, 7–8, 11–13, 15, 20, 22,
389, 392–3 31, 32, 36, 37, 43–62, 48, 83, 169–85,
Nehru, Jawaharlal, 200 228, 411–32, 435–48
neighbours, 93 Ottoman Empire, 195, 276
Nelken, David, 3–39, 109–28 Oxford, 95, 230
Index 465
Paine, Thomas, 325 privacy, 150

Pakistan, 172, 191, 198, 318n13 private international law, 97, 99, 159
Palmer, Vernon, 171, 182–3, 184 private law
parental responsibility, 257 see also contract; family law; torts
parochialism, 77, 80, 198 comparative law focus on, 81, 325
Pasagarda law, 85 comparative projects, 435–6
patriarchy, 211, 241 diversity of European laws, 220–1
Paul, Saint, 269 European convergence, 8, 219–20
Perdomo, P, 124 bottom up approach, 8, 229–36
Philips, MS, 103 case for, 220–3
Phoenicians, 175 feasability, 227–9
Pinochet, Augusto, 349, 360 imposition, 224–7
Pistor, K, 268 organic development, 236–7
planning inquiries, 296 Legrand and European private law,
Plato, 325 138–42, 146
pluralism see legal pluralism private/public law boundaries, 289–91
Podgorecki, Adam, 171 problem-solving approaches, 52
Poland, 221, 244, 251 proportionality, 304, 305
political science, 16, 17, 18 protectionism, 264
politics: psychology, 16, 17
civil law states, 122 public bodies, meaning, 290
comparative lawyers and, 39 public choice theory, 156
comparative politics, 322–4 public inquiries, 296
human rights and, 371–2 public policy, 418
legal transplants and, 406–8 public utilities, 290, 293
polygamy, 200
Portugal, 221, 224, 244, 247, 249, 252 Quebec, 85, 165, 171, 179, 183
positivism: questionnaires, 435, 436, 441, 442–5
cultural difference and, 123, 150
Eurocentricism, 191 race to the bottom, 235
human rights and, 373–4 railways, 163–5, 294
impoverishment, 145 rationalism, 103
instrumental approach, 135–6 Rawlings, R, 319
pervasive influence, 135 Rawls, John, 74
power and, 194 Read, James, 81
prejudices, 45 Reagan, Ronald, 264
traditional comparative law, 49, 60 realism, 18, 20, 53, 205, 207, 340–1
Western academia, 77, 79–80 regional law, 85, 373
Posner, R, 378, 388, 389 registered partnerships, 255–6
post-modernism, 4, 24, 33, 44, 53, 407 reification, 96–8
Pothier, Robert, 416 relational laws, 126, 177
Pound, Roscoe, 121 relative justice, 211
power, law and, 194 relativism, human rights, 27, 39, 373
practice: religion
comparative law, 13, 32–9 see also Catholic Church; India; Islam
EU and legal practitioners, 438–49 constitutions and, 323, 330
multivalent logic of legal practice, European marriage and, 243–5
98–102 exemptions, 207
precedents, 60, 158 family law and, 256
Priest, GL, 156 importance, 6, 8, 192
Principles of European Contract Law non-Western legal systems, 195
(PECL), 231–3, 435n1 religious law, 71
Principles of European Trust Law, 232 restorative justice, 350
466 Index
revolutions, 103 Trento Project, 435

Rheinstein, Max, 84 universal securities, 274–5, 276
risk, 308 semiotics, 24, 119
Roberts, John, 387, 389 separation:
Roberts, Paul, 10, 14, 16, 18, 20, 34–5, logic, 93–6, 194
339–65 reification, 96–8
Robinson, Mary, 386 separation of powers, 315, 317, 330, 376
Roman law, 77, 100, 140, 172, 175, 176–7, Serbia, cohabitation, 255
179, 219, 230, 416, 424–5 sex scandals, 110
Rome Convention, 232, 235 Shils, Edward, 102
rule of law, 157, 293, 300–1, 323, 405 Sicily, 175
Russia Sierra Leone, Special Court for, 347
see also Soviet Union Singapore, 172
civil code, 232 Slaughter, Anne-Marie, 392, 393,
company law, 276 429, 431
divorce law, 251, 252 Slovakia, new civil code, 221
ICC and, 342 Slovenia, 221, 255
marriage law, 244, 245, 247 Smith, Adam, 156
Rwanda, 343–4, 345–6, 349 Smits, Jan, 8, 25, 171, 179, 219–37
social movements, 75
Sacco, Rudolfo, 4n1, 45, 60, 61 social order, 15–16, 57, 358
Saddam Hussein, 347 social sciences, 16, 17, 18, 19, 124
same-sex relationships: social solidarity, 308–9
Europe, 241, 254, 256 sociology:
marriage, 247, 325 comparative law and, 439
US criminalisation of sodomy, 380, concept of culture, 98
385–7, 388 interdisciplinary approaches, 16
Sandulli, Aldo, 304–5 orthodoxy, 74
Santos, Boaventura de Sousa, 61, 79, process of reification, 97
85, 119 sociological approach, 52
Saudi Arabia, 383 sociology of law, 18, 19, 21, 115
Savigny, Friedrich Carl von, 234 Socrates, 340
Schacht, Joseph, 81 sodomy, 380, 385–7, 388
Schlesinger, Rudolf, 231, 439, 440, 441 soft law, 71, 359
Schochet, G, 103 Somalia, 343, 383
School of Oriental and African Studies, South Africa:
84, 267 constitution, 24, 316n10, 320, 320n20,
Schwarzenberger, Georg, 340, 341 324, 327, 332
Scotland: hybrid legal system, 165, 179, 183
comparative project, 437–48 international law and, 328
divorce law, 251, 252 judicial comparativism, 377, 427
independent legal system, 220, Soviet Union:
236, 447 dissolution, 264
Lockerbie trial, 347 judges, 405
marriage law, 244 meaning of legal culture, 111
mixed jurisdiction, 439 Nuremberg Tribunal and, 348, 351, 357
mixed legal system, 178–9, 180, 183 political influence, 330
nation without state, 16, 440 Spain:
Scots and English law, 414 administrative law, 289, 299
securities: cohabitation, 256
cultural differences, 274–7 derecho commún, 101
harmonisation of law, 266 devolution, 294, 318n13
Index 467
divorce law, 247, 249, 252 Tiebout, Charles, 234

feudal law, 175 torts:
marriage law, 244 ECJ and, 233
Napoleonic law, 221 Jus Commune Casebook on Tort
same-sex marriage, 247 Law, 231
spatial metaphors, 73 Trento Project, 435
Stammler, Rudolph, 193–4 transaction costs, 35, 38, 400
state law transition countries:
see also non-state law constitutions, 319
arbitration and, 100 legal transplants, 35, 400–8
competing forces, 192 property rights, 402
legal nationalism, 101 transnational law, 85
practice beyond state law, 99 transparency, 194, 297–8, 322, 324
states: transsexuals, marriage, 246–7
administrative law concepts, 293–5 Trendex Trading case, 159, 161, 162
church and, 95–6 Trento project, 231, 435
contracting states, 319 tribal laws, 172
experimenting laboratories, 234 trust law, 162, 235, 407
law as state creation, 61, 96–7, 101, 194 Tur, Richard, 46
lego-centrism, 38, 194, 198 Turkey:
nations without states, 16, 75 EU accession, 184
organs of the state, 290, 293–5 legal transplant, 118, 165, 428
persistence, 75 marriage law, 245
recognition of human rights, 373–4 mixed legal system, 175, 181, 183, 184
sovereignty, 76, 355 Tushnet, MV, 316
Westphalian order, 71, 75 Twining, William, 5–6, 15, 16, 17, 18, 19,
sub-worlds, 70 29, 30, 43, 46, 49, 58, 69–87, 190
subsidiarity, 294
Sudan, 85, 180, 343, 364 Uganda, 343, 364
Sunstein, Cass, 374 Ulpian, 289
Sweden: ultra vires, 302
administrative law, 299 UNCITRAL, 266
cohabitation, 253, 254, 255 UNIDROIT, 232, 435n1
divorce law, 249, 252 United Arab Emirates, 277
marriage law, 244 United Kingdom
same-sex marriage, 247 see also England; Northern Ireland;
Scandinavian commonalities, 221 Scotland
Switzerland, 245, 252, 255 administrative law
symbolic capital, 37 allocation of powers, 291–2
systems theory, 97 courts, 299
discretion, 303, 304
Taiwan, 181 liability, 309
Tamanaha, Brian, 73, 79–80 national security, 303
Taylor, Telford, 351 procedures, 295
Teitel, Ruti, 374–5, 391 reasons for decisions, 297
territorial law, 85 cohabitation, 255
tertium comparationis, 48, 95, 233 company law, 273–4
Teubner, Gunther, 141–2, 143, 225 comparative project, 437–48
Thailand, 172–3, 183, 184, 196, 324, 327 compliance with EU law, 110
Thatcher, Margaret, 264, 265 constitution, 315, 317, 321, 330, 332
theories of law, 73, 141 contract law, 273
Thucydides, 340 corruption, 110
468 Index
devolution, 294, 318n13 diffusion of legal system, 172

diffusion of legal system, 175, 330 divorce law, 250
financial careers, 21, 270 EU law and, 37
freedom of information, 297 European cultural differences, 149–51
homosexual laws, 385 exceptionalism, 27, 117
judicial comparativism, 37, 377–8, 379, external legal culture, 31
413–26 extraordinary rendition, 359
legislative comparativism, 428 federalism, 234, 236, 318n13
multiculturalism, 146 free speech, 149, 150
National Health Service, 294 hegemony, 69, 333
non-ratification of CISG, 224 imprisonment levels, 25, 27
Nuremberg Tribunal and, 348 international criminal justice and,
prerogative powers, 292–3 342, 353
public law, 290 Iraq and, 347
railway system, 294 judicial comparativism, 100, 377,
rule of law, 300 378, 379
security law, 274–5 critiques, 387–91
transsexual marriage, 246 death penalty, 380–5, 387–91, 393
UK v French commercial law, 269–73 sodomy, 380, 385–7, 388
unofficial Muslim living law, 147 jurisprudence of difference, 146
vaccine damage, 309 kidnapping, 360
United Nations: legal education, 231
ad hoc tribunals, 352 legislative comparativism, 428
CISG, 224, 232, 277 Marbury v Madison principle, 315
Convention on the Rights of the Nuremberg Tribunal and, 348
Child, 382–3 perception of litigation, 123
Human Rights Committee, 381 privacy, 150
human rights covenants, 353 restatements of law, 232
ICC referrals, 343 Revolution, 325
influence, 333 Sabine-Oxley reforms, 22
Nuremberg Principles, 348 secularism, 96, 316
resolutions, 359, 390 sociology of law, 21, 125
Sierra Leone, 347 Supreme Court practices, 37
UNDP, 401 tort awards, 121
United States: Uniform Civil Code, 226, 227, 275
administrative law, procedures, 295 universality of human rights, 373
American dream, 403 USAID, 401
American identity, 223 Universal Declaration of Human
Common Law Movement, 85 Rights, 353
concept of legal culture, 112 universalism, 6, 37, 39, 51, 77, 204, 373,
constitution, 24, 315–16, 325, 326 374, 389
amendments, 318, 321 usury laws, 269–70
Due Process Clause, 385, 386 utilitarianism, 51
foreign material and, 384
model, 330, 332 values:
separation of powers, 317, 330 Catholic Church, 160
Constitutional Restoration Act, 390 divergence, 160
corruption, 110 European v American values, 149–51
covenant marriages, 250 European values, 140
critical race theory, 145–6, 147 family law, 30
cultural assimilation, 145 human rights and, 190
Delaware jurisdiction, 159, 163 pluralism, 194
Index 469
practice, 34 Westphalian order, 71, 75

relativism, 27, 39, 373 Wheare, Kenneth, 329
Van Caenegen, W, 323 Whitman, James, 120, 149–51
Van Hoecke, Mark, 59, 170 Wigmore, JH, 353
Vienna Convention on Contracts, 163 Wittgenstein, Ludwig, 99
Vietnam, constitution, 320n17, 330 Wolfenden Report, 385
Visser, WA, 269 women:
cohabitation and, 254
war, 265 female circumcision, 39
war crimes, 342, 343, 344, 354 maintenance of Indian divorcees, 8,
Warrington, Mark, 59, 170 36, 205–6
Watson, Alan, 79, 81, 83, 140, 191, 235 marriage and, 242–3
wave theory, 173–4, 181 Woodman, Gordon, 73
Webber, Jeremy, 112 World Bank, 109–10, 333, 401
Weber, Max, 156, 197, 329 World Cup, 70
welfare state, 293–4 WTO, 119, 264
Western traditions
see also non-Western legal systems Yemen, 383
academic law, 75–83 Yugoslavia, 255, 265, 343–6, 349
comparative law approaches, 78–83
cross-fertilisation, 431–2 Zanzibar, 85
epistemology of conflict, 6, 92–8 Zimbabwe, 180
homosexuality, 385 Zimmermann, Reinhart, 141
legal family, 170 Zweigert, Konrad, 22, 44, 45, 48, 51, 58, 60,
modernity, 103 78–9, 81, 170, 175, 251

Esin Orucu Comparative Law

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COMPARATIVE LAW

This innovative, refreshing, and reader-friendly book is aimed at enabling stu-

OXFORD AND PORTLAND, OREGON

© The editors and contributors severally 2007

Hart Publishing, 16C Worcester Place, OX1 2JW

British Library Cataloguing in Publication Data

ISBN-13: 978-1-84113-596-0 (paperback)

Typeset by Compuscript Ltd, Shannon

I. Comparative Law at a Cross-roads ............................................................1

1. Comparative Law and Comparative Legal Studies........................................3

2. Developing Comparative Law ......................................................................43

II. New Directions for Comparative Law .....................................................67

3. Globalisation and Comparative Law ............................................................69

5. Defining and Using the Concept of Legal Culture ....................................109

6. Is it so Bad to be Different? Comparative Law

7. The Economic Approach: Competition between Legal Systems ..............155

8. A General View of ‘Legal Families’ and of ‘Mixing Systems’ ....................169

9. Beyond Europe ............................................................................................189

III. New Territories for Comparative Law ...................................................217

10. Convergence of Private Law in Europe:

11. Comparative Family Law: Moving with the Times? ...............................241

12. Comparative Commercial Law: Rules or Context? .................................263

13. Administrative Law in a Comparative Perspective ..................................287

14. Comparative Law in Constitutional Contexts .........................................313

15. Comparative Law for International Criminal Justice..............................339

16. Judicial Comparativism and Human Rights ...........................................371

17. Comparative Private Law in Practice: The Process of

19. A Project: Comparative Law in Action ....................................................435

John Bell is Professor of Law at the University of Cambridge, UK.

Roger Cotterrell is Anniversary Professor of Legal Theory at Queen Mary,

Nicholas HD Foster is a lecturer at the School of Law, School of Oriental

Andrew Harding is Professor of Asia-Pacific Legal Relations at the University of

Peter Leyland is Professor of Law at London Metropolitan University, UK.

Christopher McCrudden is Professor of Human Rights Law, University of

Werner Menski is Professor of South Asian Laws, School of Law, School of

David Nelken is Distinguished Professor of Legal Institutions and Social Change

Anthony Ogus is Professor of Law, University of Manchester, UK; and Research

Esin Örücü is Professorial Research Fellow and Professor Emerita of Comparative

Paul Roberts is Professor of Criminal Jurisprudence in the University of

Jan M Smits is Professor of European Private Law, Maastricht University, The

William Twining is Quain Professor of Jurisprudence Emeritus, University

Comparative Law at a Cross-roads

W hat is happening to comparative law? Not so long ago it could be said

II. AN OVERVIEW OF THE HANDBOOK

idea for this Handbook.

show their relevance to understanding the relationship between ‘comparative law’

As the source of normative information, traditions do not have clear boundaries

The same point is well illustrated in Werner Menski’s contribution, ‘Beyond

McCrudden’s chapter, ‘Judicial Comparativism and Human rights’ (chapter seven-

made to other legal systems, (a question that is also discussed in McCrudden’s

III. GETTING BEYOND

16–22 July 2006 at Utrecht by Professor Konstantinos Kerameus, President.

process of globalisation and in the pursuit of peaceful relations between peoples’

According to Harding and Leyland,

6 I come to the subject from a background in sociology of law.

leading writers were (Curran, 1998: 657 at 661).

would be too difficult for many students of comparative law.

In addition to movements in ideas and culture, and in part as a factor shaping

such as population movements, globalisation and so on. Hence Antokolskaia, in

While there are no worked-through examples of this type of approach in this