A Pledge for the Importance of Comparative Law in the Ongoing COVID Pandemic (and Beyond)

Posted on by Anita Frohlich

I recently attended a meeting on “Comparative Law and the COVID-19 Pandemic” organized by the International Association of Legal Science. The presenters highlighted different local and regional reactions to the global pandemic. For me, these presentations emphasized that countries responded (and are still responding) to the global health threat with highly individualistic legal measures.

From a strictly political perspective, this makes perfect sense: there is an external threat to national security to which the government reacts with isolationism – which is reasonable in the short term. Now that the pandemic has been around for almost two years, however, I believe that it is time to reconsider this approach. In fact, thanks to social media, citizens have cooperated and mobilized across country borders. Hence, I think, it is time for governments to stop trying to reinvent the wheel and to start looking beyond their territorial lines. In other words, globalization makes it essential for legislators to get inspired by their neighbors and to cooperate internationally.

Comparative law could be an important tool for such legal cooperation. Thus, comparative law points out legal synergies while at the same time taking legal singularities and cultures into consideration. The importance of comparative law is true not only for regulations dealing with the current pandemic, but also for other issues of global implications, including legislation on climate change. My hope is that governments and legislators will recognize the increasing relevance of comparative law for solving issues that may have an impact on the future of our global society and our planet.

Sources

Contributions to Zoom Webinar on “Comparative Law and the COVID-19 Pandemic”, in particular by

Paris International Congress of Comparative Law – Culmination and End of the First Phase of Comparative Law Research

Posted on by Anita Frohlich

Raymond Saleilles was one of the driving forces behind the Paris International Congress of Comparative Law in 1900 (Congress). The idea behind this event was that organizing this conference in the framework of the famous Paris World Exposition would draw a broader international audience to the subject of comparative law.

The program of the Congress consisted of a scientific and a practical part, though more emphasis was placed towards the former. The four main goals of the Congress were as follows:

  1. determine a methodology to analyse diverse legislation;
  2. define the role of comparative methods in teaching law;
  3. highlight the relevance of comparative law analysis for national legislation, judicial interpretation and international agreement;
  4. discuss mechanisms for making foreign law more accessible.

Overall, the Congress was methodology-heavy, meaning that its main focus was to envision a way that would facilitate consideration of comparative law in practice (e.g. legal translation) and thus establish comparative law teaching within the university curriculum. No original scientific works of comparative law were discussed. Also, the Congress had a strong continental imprint. Though some jurists from England and the United States attended, common law was completely left out of the picture.

In retrospect, one can argue that the Congress marks the culmination as well as the end of the first phase of comparative law research. The main attributes of this phase are discovery and initial use of comparative law methods for drafting and eventually unification of laws. Comparative law was mostly seen as harmonization tool. In this context, with some distinct exceptions, mainly similar legal systems were considered and compared which essentially limited this kind of comparative law research to continental Europe and its laws.

Bibliography

  • David S. Clark, Centennial World Congress on Comparative Law: Nothing New in 2000?Comparative Law in 1900 and Today, 75 Tul. L. Rev., 871, 875-888 (2001).
  •  Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 59.

Harmonization through Principles

Posted on by Anita Frohlich

When I wrote about the Common Core project, I mentioned that it was strictly descriptive without any intention to aid harmonizing the laws of Europe. There are, however, also some comparative legal efforts that strive to foster cross-border uniformity of laws in order to aid transnational commerce. These efforts, again, are of an academical nature, i.e. detached from any political body or parties. Their goal, however, is to provide such political bodies with a working basis that will eventually lead to harmonization of laws. On the European level, two recent (and subsequent) groups are worth to be mentioned: the Commission on European Contract Law (Lando Commission) and the Study Group on a European Civil Code (SGEC).

The Lando Commission set out to draft uniform principles of contract law. The first commission under the chairmanship of Ole Lando started its work in 1982 and published the first set of principles on performance, non-performance and remedies for non-performance in 1995. A second commission (established in 1992) focused on contract formation, interpretation and validity as well as on agency. It published its conclusions in 1999.

The Study Group on a European Civil Code, established in 1997, emanated from the Lando Commission. It had a broader scope than the Lando Commission focusing on patrimonial law which includes contracts, non-contractual obligations and movable property. Contentious areas such as family law have been left untouched. The SEGC published its Draft Common Frame of Reference (DCFR) in 2009.

Both the Lando Commission and the SEGC were comparative legal research efforts striving to create a body of principles of private (contract) law that is most suitable for Europe-wide application. While the SEGC does not have any legislative intent and only sees its work as a starting point for possible future EU law-making, the Lando Commission, at least initially, had intended a more direct political impact of its work.

A part from this more political focus, the main difference between the Lando Comission/SEGC and the Common Core Project are that the latter solely strives to carve out the common core of the existing European private laws, i.e. it constitutes a description of the status quo. The Lando Commission/SECG, in turn, do not stop there but aim to formulate the ideal provisions that a European private law regulation would contain (which does not necessarily have to be the most common type of provision within European national laws).

From a more philosophical perspective, the Lando Commission/SECG are the brain child of a comparative law analysis on how unification can work in a complex network of different legal entities. In particular, the European efforts have been inspired and aim to imitate the work of the American Law Institute (ALI). The ALI is an independent body of legal scholars in the United States that, by publishing Restatements, purports to facilitate a unification of the laws of the U.S. states. While these Restatements are by no means binding on any state, legislators and courts have often drawn inspiration from them resulting in a less diverse legal landscape within the United States. It remains to be seen whether a harmonization through principles also works on the long run in the European context.

Bibliography

  • Ole Lando, Salient Features of the Principles of Contract Law: A Comparison with the UCC, 13 Pace Int’l L.R. 339-369 (2001).
  • Von Bar et al., Principles, Definitions, And Model Rules of Private Law, Draft Common Frame of Reference (2009), available here.