The Beginnings of the Common Core Method in Comparative Law

As I mentioned in my previous post, the Common Core Project is based on a method that was developed and first implemented in the 1960s by Rudolf Schlesinger. In 1957, Schlesinger published an article Research on the General Principles of Law Recognized by Civilized Nations in which he first presented his idea of finding out the common core of the legal systems of the world. He argued that the term general principles of law recognized by civilized nations (general principles) was relevant in many aspects of law ranging from international statutes (e.g. the statute of the International Court of Justice refers to the general principles) to court decisions (e.g. when it comes to the public policy doctrine). It was therefore important to find commonalities among the legal systems – a common core.

In order to get to the core of the world’s legal systems, Schlesinger initiated the Cornell Project. The proclaimed goal of the project was three-fold: (1) to provide a reference for legal education; (2) to help develop international and transnational law; (3) to facilitate the development of national legal systems. The scope of the Cornell Project, however, was limited in three regards – mostly for practical reasons: (1) the project had a limited subject matter coverage – it only examined contract formation because of this area’s transnational relevance and its distinctness within each legal system; (2) the project had a limited geographic coverage as quite a few national legal systems had to be excluded due to “human and accidental factors” ; (3) the project had a limited time coverage and only covered laws until July 1st, 1964.

The Cornell Project was designed to assure an objective juxtaposition of laws (as opposed to a subjective comparison). To achieve this objectivity, Schlesinger had developed a distinct methodology – a four-step process that was novel to comparative law research. Step one involved a working paper with questions and hypotheticals (drafted by Schlesinger) that was circulated among the participants in the project. In step two, each legal expert wrote an individual report answering the specific questions by applying his law. Step three was a discussion of the individual reports during a seminar. Finally, step four consisted of drafting a general report (unanimously adopted by the seminar participants) that pointed out differences and commonalities of the legal systems that were subject to the study. The end result was a two-volume treatise titled Formation of Contracts: A Study of the Common Core of Legal Systems and published in 1968.

The Cornell Project was exceptional due to the way it approached the study of legal systems. Its impact, however, was not as big as the time and effort that was put into the project would have suggested. Apart from some criticism regarding specific points of the study, a few major concerns have been raised most of them pointing out the above-mentioned limitations (subject-matter, geographic and time). Overall, the tediousness of the project might have been its biggest problem. Ten years is a long time for a treatise that only covers a subset of contract law for a subset of legal systems. On an educational-theoretical basis, however, the merit of the Cornell Project cannot be emphasized enough.

Bibliography

• Robert Braucher, Book Review: Formation of Contracts: A Study of the Common Core of Legal Systems, 83 Harvard L R 957 (1970).
• Albert Ehrenzweig, Book Review: Formation of Contracts: A Study of the Common Core of Legal Systems, 56 Cal L R 1514 (1968).
• Allan Farnsworth, Book Review: Formation of Contracts: A Study of the Common Core of Legal Systems, 69 Columbia L R 339 (1969).
• Rudolf Schlesinger, Research on the General Principles of Law Recognized by Civilized Nations, 51 Am. J. Int. L 734 (1957).