Can Quantification Aid the Comparative Task?

Posted on by Anita Frohlich

So far, we have examined cultural comparative law as a social-science-inspired methodology that may help the discipline of comparative law to accommodate modern legal developments, i.e. globalization of laws. In the next few posts, I would like to look at another relatively new comparative law method that was developed by economists: quantitative comparative law.

In the late 1990s, a group of economists (mostly known under the abbreviation LLSV) published several papers examining commercial laws of 49 countries of the world. In doing so, they used statistical tests to determine which laws are more efficient and therefore more likely to attract businesses. With this methodology, they reached the provocative result that

[…] countries whose legal rules originate in the common law tradition tend to protect investors considerably better than do countries whose laws originate in the civil law, and especially the French civil law, tradition. [LLSV 1996, p. 40]

Naturally, this conclusion and even more its inclusion in the 2004 and 2006 Doing Business reports of the World Bank have resulted in a wave of (critical) publications from (comparative) jurists, mostly from civil law countries. The main points of critique were the apparent bias towards the common law tradition (LLSV have a common law background) and the reliance on legal origins to group the legal systems of the world.

I will talk about the legal origins theory in my next post. For now, I would like to focus on the quantification as a possible methodology in comparative law. In contrast to cultural comparative law, quantitative comparative law looks at large samples of legal systems which are clustered and quantified. The use of numbers as a comparative tool, makes the comparison more objective and leads to clear-cut results. Such results, however, can be misleading in two ways: First, depending on the choice of variables, results may be biased – usually towards the legal system with which the author of the study is most familiar. Second, laws are never identical and their substitution with mere numbers may obliterate legal diversity. So while quantification may provide a valuable overview and might be an important first step in a series of comparative analysis, results should be viewed with a grain of salt and put further into perspective.

Bibliography

  • Rafael La Porta et al., Law and Finance, NBER Working Paper 5661 (1996)
  • Rafael La Porta et al., Legal Determinants of External Finance, 52 J. OF FINANCE 1131-1150 (1997)
  • Rafael La Porta et al., Law and Finance, 106 J. POL. ECON. 1113-1155 (1998)
  • Ralf Michaels, Comparative Law by Numbers? Legal Origins Thesis, Doing Business Reports, and the Silence of Traditional Comparative Law, 57 AM. J. COMP. L. 765-795 (2009)
  • Catherine Valcke, The French Response to the World Bank’s Doing Business Reports, 60 UNIV. TORONTO L J 197-217 (2010)

Legal Families in a Cultural-Traditional Context

Posted on by Anita Frohlich

As discussed in an earlier post, comparative lawyers like to group legal systems in order to facilitate the comparative task. Traditionally, comparative law used the concept of legal families in order to cluster the legal systems of the world, mostly into simplified groups like common law countries and civil law countries. This method of classification has long been criticized as too simplistic and too Western. In particular, critics have pointed out that aspects of legal culture or tradition are not adequately represented in the conventional legal families.

Patrick Glenn therefore introduces a new system of classification based on his concept of legal tradition. Looking at the way legal knowledge is transferred from the past to the present, he distinguishes seven legal traditions of the world: (1) Chthonic legal tradition; (2) Talmudic legal tradition; (3) Civil law tradition; (4) Islamic law tradition; (5) Common law tradition; (6) Hindu legal tradition; (7) Asian legal tradition.

Csaba Varga, for his part, stresses legal variability. In other terms, comparative law and cultures is interested in the question of how legal systems can arrive at different solutions for the same legal problem. Accordingly, on the one hand, the clustering of legal systems into legal families (or traditions) based on their historical roots does not do justice to the diversity of laws. On the other hand, however, different laws can be part of the same legal culture. Consequently, some kind of clustering does also take place under Varga’s approach – only that the classification seems to be sociological/anthropological (based on common – present – social behavior) rather than historical (based on a common past).

Bibliography

  • PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD (2004).
  • Csaba Varga, COMPARATIVE LEGAL CULTURES: ON TRADITIONS CLASSIFIED, THEIR RAPPROCHEMENT AND TRANSFER, AND THE ANARCHY OF HYPER-RATIONALISM 2012.

Mixed Legal Systems

Posted on by Anita Frohlich

South Africa, Louisiana, Quebec, Cyprus … What do all these countries have in common? They all are so-called mixed jurisdictions or mixed legal systems – both terms are either used interchangeably or the former being part of the latter.

What are Mixed Legal Systems?

Traditionally, mixed legal systems have three key attributes:

(1) Fusion of Civil and Common Law: “Mixed” indicates some type of amalgam of common law and civil law elements.

(2) Adequacy of Civil and Common Law Elements: Contributions of both civil law and common law have to be substantial and recognizable as such to the legal community.

(3) Structural Divide of Common Law and Civil Law: A key characteristic of all mixed jurisdictions is that private law seems to be dominated by civil law elements, whereas public law consists basically of common law elements. According to Professor Palmer, this can usually be ascribed to historical events. Many mixed jurisdictions are former French colonies strongly influenced by the French Code Civil. Later, these colonies fell into British hands. The British, however,normally did not touch the already existing law, but naturally introduced their system of administration.

Assessment of Mixed Legal Systems

The traditional definition of mixed legal systems is more and more challenged. The growing awareness of non-western law that does not fit the typical common law – civil law divide, has made comparative law research focus on alternative ways to define mixed legal systems. As with the question of classification in general, legal traditions have been considered as a defining criteria.

Bibliography

  • Sean Patrick Donlan, Comparative Law and Hybrid Legal Traditions: an Introduction, in COMPARATIVE LAW AND HYBRID LEGAL TRADITIONS 9-18 (Eleanor Cashin-Ritaine, Sean Patrick Donlan & Martin Sychold eds., 2010).
  • H. Patrick Glenn et al. eds., STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING (1996).
  • Vernon Valentine Palmer, Mixed Jurisdictions, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 467-474 (Jan Smits ed., 2006).
  • Vernon Valentine Palmer ed., MIXED JURISDICTIONS WORLDWIDE, THE THIRD LEGAL FAMILY (2001).
  • Kenneth Reid, The Idea of Mixed Legal Systems, 78 TUL. L. REV. 5-40 (2004).
  • William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LOUISIANA L. REV. 618-738 (2000).