Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition1
Esin Örücü
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Abstract
This study is presented in eight chapters. The first chapter looks at comparative law as it
faces new trends. Today, these are legal theory, legal history, culture and economics. I
suggest that there is a link between these and that these are reciprocal influences, and that the
way to look forward is through critical comparative law.
The paradoxes of comparative law are closely related to convergence and
non-convergence theories. The next chapter examines this dichotomy and determines that it is
not a matter of either-or, and then juxtaposes harmonisation and harmony.
Chapter 3 considers three paradoxes involved in modernisation and law reform by
borrowings that face legal systems in transition.
Chapter 4, the Intermezzo, introduces the way in which the three case studies will test
some of the concepts and theories involved in reciprocal influences. The three case studies
are not comparable and they are not all testing the same concepts and theories.
The first case study (in chapter 5) considers English common law and specifically
McGregor’s Contract Code, and searches for answers to the question whether common law is
contaminated, irritated or corrected by its historic and present encounters. Seepage,
contaminant, irritant, underlay, overlay and cross-fertilisation are among the terms analysed
here.
The second case study is that of the Turkish legal and social systems approaching
these under the title ‘hyphenated systems’ (in chapter 6). Concepts of chance, choice, desire,
competing legal systems, reception, imposed reception and irritant are discussed.
The third case study (chapter 7) probes into Central and Eastern European systems,
systems in transition par excellence, and attempts to assess concepts such as choice, chance
and necessity and the role of efficiency, prestige and elites. Again terminology such as
reception, imposed reception, imitation, concerted parallel development, transpositions and
layered law are evaluated in these surroundings.
The final question is posed in chapter 8: ‘Can comparative legal studies offer the
panacea?’, followed by what is for the comparatists the most important question of all,
‘Where do we go from here?’ At the end of one century and the beginning of another we
must ask: ‘Unde venit, quo tendit comparative law?’
Contents
This contribution was first published as No. 59 in the series for the ‘Nederlandse Vereniging voor
Rechtsvergelijking’ (Deventer: Kluwer, 1999).
1
1. Shifting horizons: Old and new
1.1 Comparative law: An old question
1.2 Comparative law: Facing new trends
1.2.1 Comparative law: Legal theory and jurisprudence
1.2.2 Comparative law: Legal history
1.2.3 Comparative law: Culture
1.2.4 Comparative law: Economics
1.2.5 Critical comparative law: A different name or a different approach?
1.3 The link: Reciprocal influences
2. Convergence versus divergence: Must it be either-or?
2.1 The two approaches: Are they mutually exclusive?
2.2 Harmonisation or harmony?
3. Paradoxes for recipients: Modernisation and borrowing
3.1 Pool of models and possible mismatch: Which model? Which recipient?
3.2 The first paradox: Similarity and difference
3.2.1 Which to stress?
3.2.2 The value of the different
3.3 The second paradox: Can the mismatch be corrected?
3.4 The third paradox: Contemporary character of import/export
4. Intermezzo: The test bed
5. The case of English common law: Contaminated, irritated or corrected?
5.1 Past encounters abroad
5.2 The Privy Council: Unity through diversity?
5.3 Encounters at home
5.4 Present-day encounters
5.4.1 Convergence: Concepts
5.4.2 Convergence: Statutory interpretation
5.4.3 Convergence: Codification
5.4.3.1 Introduction
5.4.3.2 The Law Commission
5.4.3.3 Commercial Code
5.4.3.4 Criminal Code
5.4.3.5 Contract Code
5.4.3.6 Coexistence of common law and civil law in Codes
5.4.3.7 European Codes in the common law context
5.5 Civil law and common law: Contaminants, irritants or correctives?
6. The case of Turkey: A hyphenated legal system?
6.1 The formation
6.1.1 Turkish import and the EU
6.1.2 Internal implications
6.1.2.1 Examples of adjustment: Legislative
6.1.2.2 Examples of adjustment: Judicial
6.2 The development
6.3 The experience: Hyphenated legal system
6.3.1 Mode One: Swiss-Turkish law
6.3.1.1 In developing principles
6.3.1.2 In the unification of precedents
6.3.1.3 In dissenting opinions
6.3.2 Mode One: Turkish-Other ‘source laws’
6.3.2.1 Italian-Turkish and German-Turkish law
6.3.2.2 French-Turkish law
6.3.3 Mode Two: Layered and hyphenated existence
6.4 Assessment
7. The case of Central and Eastern Europe: Choice, chance or necessity?
7.1 Systems in transition
7.2 Legal transpositions
7.3 The elements of the present experience
7.3.1 Form and content
7.3.2 Chance
7.3.3 Prestige and efficiency
7.3.4 Elites
7.3.5 Choice
7.3.6 Culture, structure and substance
7.4 Models
7.5 Assessment
8. Can comparative legal studies offer the panacea? Where do we go from here?
1. Shifting horizons: Old and new
1.1 Comparative law: An old question
Modern, systematic comparative law is a child of the nineteenth century and an adolescent of
the twentieth. During this period, beyond giving the comparative lawyer a ‘free rein’ and
being regarded as ‘interesting’, comparative law has provided a seemingly unending pastime
for comparatists and others to discuss its true meaning, historical development, dangers,
virtues, scope, functions, aims and purposes, uses and misuses, and method, and this even
after comparative law had been accepted as part of the undergraduate curriculum in most
universities.2 This was a sorry state of affairs. Comparative law is, dare I say it, still in a sorry
state in 1999, in spite of being regarded now as indispensable and the fact that the next
century may become ‘the era of comparative law’,3 the time of its majority. Let alone having
a decisive definition of what comparative law and comparative method is today, it seems still
open to discussion whether this is indeed an independent discipline at all.4 Comparatists have
already been called upon to rethink their subject.5 It is even suggested that ‘the comparative
method may have more of a future by penetrating other subjects than by trying to assert its
own continued independence under the unconvincing title of comparative law’.6 This kind of
desperate view may have arisen partly from a circular and rather vague definition given by
two of the most established comparatists of our time: ‘[T]he words suggest an intellectual
Though Zweigert and Kötz say: ‘Comparative law still occupies a rather modest position in academic
curricular.’ See K. Zweigert and H. Kötz, An Introduction to Comparative Law, 3rd edn. (Oxford, Clarendon
Press, 1998), pp. 3, 22.
2
3
T. Koopmans, ‘Comparative Law and the Courts’, (1996) 45 ICLQ, 545, at p. 1.
G. Samuel, ‘Comparative Law and Jurisprudence’, (1998) 47 ICLQ, 817, and J. Gordley, ‘Is Comparative Law
a Distinct Discipline?’, (1998) 46 Am. J. Comp. L., 607.
4
5
B. Markesinis, ‘Comparative Law: A Subject in Search of an Audience’, (1990) 53 MLR, 1.
6
Ibid., at p. 21.
activity with law as its object and comparison as its process.’7 We well know that there is no
fundamental agreement even on ‘what law is’.8
Might one go so far as to say that, if ‘historical accidents’ such as the following had
not taken place, there would have been no need for comparative lawyers? ‘If the legal
learning of the Roman Empire had not been lost in the barbarian invasions ...’, ‘If in England
there had been no Norman conquest and consequently the centralised courts of the King had
not been established ...’, ‘If Napoleon had not been interested in codification ...’, ‘If Roman
Law had not been rediscovered in the twelfth century ...’, ‘If in every country legal science
had not been nationalised in the sense of being nationally isolated ...’, ‘If Algeria had not
been colonised by the French ...’, that is, ‘If “buts” and “ands” were “pots” and “pans” ...’
Yet, not only are comparatists here, but there is also a renewed and growing interest in the
subject. A survey of law journals over the last ten years reveals that the number of articles on
comparative law - and these are not just comparative studies of certain areas of law, but
searching, creative and innovative articles looking at comparative law proper - have
quadrupled.9 Ault and Glendon’s remark in 1974 that, ‘if comparative law did not exist, it
would have to have been invented’,10 is even more pertinent today.
A cursory reading of any well established comparative law textbook will inform the
reader of the 1900 Paris Congress and of the aligning of comparatists as methodologists and
social scientists, the aims and purposes of comparative law and how it relates to other
branches of law. When the vast number of works making use of comparative law are read,
the following objectives can be noted: academic study; law reform and policy development; a
tool for research to reach a universal theory of law; the provision of perspective to students;
an aid to international practice of the law; international unification and harmonisation common core research; a gap-filling device in law courts; and an aid to world peace. These
objectives are sometimes grouped as practical, sociological, political or pedagogical. The
findings of comparative lawyers can indeed be utilised for any of these objectives. Whether
these uses have been fully taken advantage of and whether the objectives formulated above
have been realised should be open for discussion when taking stock of comparative legal
studies at the end of the twentieth century. These issues must be studied and assessed before
we move into a ‘new century for comparative law’.11 However urgent this may be, it is not
the aim of the present study. Neither is it the main concern of the present study to question
whether the above are the prime objectives of comparative law. One might, for example,
prefer to understand the prime function of comparative law to be the provision of wider
access to legal knowledge, to further universal knowledge and understanding of the
phenomena of law,12 and regard comparative law primarily as the critical extraction of this
7
Zweigert and Kötz, op. cit., at p. 2.
Look for a discussion in M. Van Hoecke and M. Warrington, ‘Legal Cultures and Legal Paradigms: Towards a
New Model for Comparative Law’, (1998) 47 ICLQ, 495, at p. 520, and W. Ewald, ‘Comparative Jurisprudence
(I): What Was It Like to Try a Rat’ (1995) 143 Penn. L. Rev., 1889, at p. 2120.
8
See P.G. Monateri, ‘“Everybody’s Talking”: The Future of Comparative Law’, (1998) 21 Hastings Int’l &
Comp. L. Rev., 825.
9
H.J. Ault and M.A. Glendon, ‘The Importance of Comparative Law in Legal Education: United States - Goals
and Methods of Legal Comparison’, in: J.N. Hazard and W.J. Wagner (eds.), Law in the United States of
America in Social and Technological Revolution (Brussels: Bruylant, 1974), p. 69.
10
Here, already note recent symposia in the USA and Europe. See, for example, ‘New Directions in
Comparative Law’, Michigan, September 1996 and Hastings College in San Francisco, 1997; ‘New Approaches
to Comparative Law’, Utah, October 1996.
11
legal knowledge from individual instances.
In earlier years comparative law was categorised as ‘descriptive’, ‘applied’, ‘abstract
or speculative’. Other categorisations in comparative law are also well known:
internal/external; descriptive/dogmatic/applied/contrasting; legislative/scholarly/scientific or
theoretical; formal/dogmatic/historical; comparative nomoscopy/nomothetics/nomogenetics;
and, macro comparison/micro comparison. Towards the end of the twentieth century,
however, a number of distinct approaches to comparative law have become prominent and
have gained dominance over the others. On the one hand, these approaches may enhance the
prospects of comparative law, on the other, they could swallow it and change its character.
1.2 Comparative law: Facing new trends
There are four such distinct trends worth mentioning in comparative law discourse today:
comparative law and legal philosophy (comparative jurisprudence); comparative law and
legal history (historical comparative law or historico-comparative perspective); comparative
law and culture (comparative legal cultures and law and culture studies); and comparative
law and economics.
Its advocates claim that only the combination of comparative law and legal
philosophy can reach a true understanding of law. The combination of comparative law and
legal history is used by the ‘new ius commune’ seekers and legal transplant scholars. The
combination of comparative law and culture, which took the form of ‘law and society studies’
in the 1970s and ‘law and popular culture’ in the 1980s, now seeks to involve comparative
law studies in order to provide a better understanding of multi-culturalism and integration.
The comparative law and economics movement, very much in vogue to day, endeavours to
set up competing legal systems as an alternative to harmonisation and codification to find the
most efficient solutions to global problems.
1.2.1 Comparative law: Legal theory and jurisprudence
The first of these trends was initially the outcome of the search for a true meaning for
comparative law attempting to establish comparative law not only as a discipline in itself, but
also as ‘just another term for sophisticated legal analysis’.13 As ‘a local or national science of
law is a contradiction in adjecto’,14 Yntema, who equated legal research to comparative law,
said in 1952, ‘in this sense comparative law is another name for legal science’.15 This is a
negation of a national legal science. Thus far this trend is perfectly satisfactory. More recent
comparative law literature , however, reflects a wish for a different combination. In his article
‘Comparative Law and Jurisprudence’, Samuel points out that the ‘anti-theory or common
See, E. Örücü, ‘Symbiosis between Comparative Law and Theory of Law: Limitations of Legal
Methodology’, (1982) 16, Mededelingen van het Juridisch Instituut (Erasmus Universiteit Rotterdam), 1-25,
and citations therein.
12
B. Kozolchyk, ‘Trends in Comparative Legal Research: Apropos Dainow’s The Role of Judicial Decisions and
Doctrine in Civil Law and in Mixed Jurisdictions’, (1976) 24 Am. J. Comp. L., 100, at p. 111.
13
H. Yntema, ‘The American Journal of Comparative Law’, (1952) 1 Am. J. Comp. L., at p. 15 and L.J.
Constantinesco, Traité de droit comparé: La méthode comparative, Tome II, (Paris, Librairie Générale de Droit
et de Jurisprudence, 1974), pp. 306-310.
14
H. Yntema, ‘Comparative Legal Research: Some Remarks on Looking out of the Cave’, (1956) 54 Mich. L. R.,
p. 902.
15
sense view’ can ‘lead to the view that comparative law is nothing more or less than a
methodology’,16 and therefore suggests that ‘comparative law should provide the opportunity
to study the internal structures of legal knowledge’.17 He would like to see comparative law
contributing to jurisprudence by helping to ‘construct a range of different “ontological”
models through the institutional deconstruction and reconstruction, of case law and doctrinal
analysis from a range of different legal systems’.18 So here the legal theorist wants to employ
the services of comparative law for legal theory, since comparative law ‘can go far in testing
each system’s construction of its perceived social reality’.19
Others also have seen a unity between general jurisprudence and comparative law.
‘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 jurisprudence with
comparative law is real and actual; comparative law with general jurisprudence is selective
and clear sighted.’20 Here we are told that the jurist should approach comparative law by way
of legal theory and legal theory by way of comparative law. Yet, in the standard textbooks of
Jurisprudence or Legal Theory,21 there is no section marked ‘Comparative Jurisprudence’,
though, for example, Schlesinger22 and Monateri23 use this term expressly.
According to Ewald, traditional comparative law has failed by paying insufficient
attention to context and ignoring the context of ideas.24 ‘Comparative law, properly pursued,
is an essentially philosophical activity.’25 Ewald then talks of ‘comparative jurisprudence’.
After admitting that there is as yet no precise definition of ‘comparative jurisprudence’ he
gives a tentative definition as ‘the comparative study of the intellectual conceptions that
underline the principal institutions of one or more foreign legal systems’. He then states that
comparative jurisprudence can make two sorts of contributions to legal philosophy. It first,
‘raises abstract and intrinsically philosophical questions of method’ and second, ‘supplies
substantive information about law in foreign countries that can itself be of philosophical
interest’.26 Not only should comparative law be renamed ‘comparative jurisprudence’,27 but it
16
Samuel, op. cit., at p. 827.
17
Ibid., at p. 833.
18
Ibid., at p. 836.
Ibid., and also see along similar lines, W.J. Kamba, ‘Comparative Law: A Theoretical Framework’, (1976) 23
ICLQ, 494.
19
20
R.H.S. Tur, ‘The Dialectic of General Jurisprudence and Comparative Law’, (1977) Jurid. Rev., 249.
21
In the School of Law of the University of Glasgow I have a four-hour input into the Jurisprudence course,
however.
22
R.B. Schlesinger, ‘The Past and Future of Comparative Law’, (1995) 43 Am. J. Comp. L., 477.
P.G. Monateri, ‘The “Weak” Law: Contaminations and Legal Cultures’, in: Italian National Reports to the
XVth International Congress of Comparative Law, Bristol 1998 (Milano: Giuffrè, 1998), p. 84.
23
24
Ewald, op. cit., at pp. 2111-2112.
25
Ibid., at p. 2145.
26
Ibid., at p. 2115.
should become the handmaid of philosophy. This view should worry comparative lawyers
considerably.
I do not agree with Samuel28 when he attributes to Sacco the view that ‘the need to
justify comparison in law by an appeal to its practical use can ... verge on the ridiculous’.
Sacco says, ‘the use to which scientific ideas are put affects neither their definition of a
science nor the validity of its conclusions’.29 This is absolutely true; however, it does not
mean that comparative law should actually have no practical use. The reason why ‘those who
compare legal systems are always asked about the purpose of such comparisons’,30 is not
because comparative law has to justify its existence by its uses, but because the inquirers are
of the ‘common sense’ or ‘utilitarian’ ilk. We as comparatists should blame ourselves if we
are still at the level of seeking a justification for our subject and do not have a
once-and-for-all answer to give. However, we must also consider that this may reflect on the
subject we are professing. The involvement of scholars from other fields in claiming
comparative law for their own use may very well strengthen suspicions that comparative law
is not an independent subject.
When Sacco says, ‘like other sciences, comparative law remains a science as long as
it acquires knowledge and regardless of whether or not the knowledge is put to any further
use’,31 this cannot be taken to mean that the knowledge gained should not be put to any use.
If comparative law ‘presupposes the existence of a plurality of legal rules and institutions, ...
and studies them in order to establish to what extent they are identical or different’,32 then,
there is no restriction on what is to be done with the knowledge gained on similarities and
differences. In fact, this is the moment when the whole enterprise starts to get exciting. The
initial thesis of the Trento group is to be fully endorsed: ‘Comparative law, understood as a
science, necessarily aims at the better understanding of legal data. Ulterior tasks such as the
improvement of law or interpretation are worthy of the greatest consideration but
nevertheless are only secondary ends of comparative research.’33 The present writer’s
inaugural speech at Erasmus University Rotterdam was entitled ‘Symbiosis between
Comparative Law and Theory of Law’,34 but it did not deny at any point the uses to which
the knowledge gained by comparative legal research can be put. To regard comparative law
as intertwined with legal theory or jurisprudence is one thing, to utilise comparative legal
research exclusively to test theories and see it simply as a helping hand to legal theory is
another; because in that second sense, comparative law is still not a subject in itself.
Ironically therefore, this approach which culminates in the school of ‘comparative
jurisprudence’ is not in any way different to the other three trends mentioned above and to be
seen below, as in them, it is the legal historians, economists and anthropologists and
27
Ibid., at p. 2114, though his claim that he coined the phrase cannot be correct.
28
Samuel, op. cit., at p. 822.
R. Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)’, (1991) 39 Am. J.
Comp. L., 1.
29
30
Ibid.
31
Ibid., at p. 4.
32
Ibid., at p. 5.
33
Ibid., at pp. 4-5.
34
Örücü (1982), op. cit.
sociologists rather than the legal theorists who are looking for a marriage between their
discipline and comparative law to avail themselves of the body of information and insight
provided by comparative legal studies.35 Between the last three trends, however, there is a
further similarity, an underlying belief that systems reciprocally influence and cross-fertilise
each other.
1.2.2 Comparative law: Legal history
Legal historians are looking at past legal transplants or transfrontier mobility of ideas and
institutions, both in an effort to offer an understanding of and an explanation for, the
development of the law and to help justify future legal development utilising law reform
through the use of foreign models and, in the context of Europe, to rediscover a ius commune,
old or new. However, Ibbetson points to what he calls the ‘real difficulties of comparative
legal historians’.36 He notes, in reply to Zimmermann and as an anti-ius commune statement,
that:
... in an ideal world, of course, comparative legal historians, if they were to do their job properly,
would gain expertise in the histories of the different legal systems about which they are writing and
examine the primary sources for themselves; but the world may not be ideal. This, in its turn, carries
the risk that the comparative legal historian will succumb to the pressure to pick and choose those
histories of foreign systems which either look most familiar or best fit in a preconceived notion of the
relationship between different systems. It is a pressure which has to be resisted, unless we are
completely to subvert Savigny’s enterprise.37
Sacco talks of comparative perspective as ‘historical par excellence’, and says ‘comparison is
a historical science concerned with what is real’.38 The third thesis of the Trento Manifesto is:
‘Comparison turns its attention to various phenomena of legal life operating in the past or the
present, considers legal prepositions as historical facts including those formulated by
legislators, judges and scholars, and so verifies what genuinely occurred. In this sense,
comparative law is an historical science.’39According to Sacco, ‘[c]omparative law examines
the way in which legal institutions are connected, diversified and transplanted from one
country to another’.40 ‘Comparative law not only enables one to know domestic law better
but to check hypotheses formulated in the sociological analysis of law. Comparative law thus
becomes a go-between [between] legal scholarship and history, and between legal
35
However, Bell claims that legal theory has something to learn from comparative law. See, J. Bell,
‘Comparative Law and Legal Theory’, in: W. Krawietz, N. MacCormick and G. Henrik von Wright (eds.),
Prescriptive Formality and Normative Rationality in Modern Legal Systems: Festschrift for Robert Summers
(Berlin: Duncker & Humblot, 1995), pp. 23-31. On the other hand, Ward is worried as he sees
macro-comparativism being pursued as an alternative to jurisprudence. See I. Ward, ‘The Limits of
Comparativism: Lessons from UK-EC Integration’, (1995) 2 MJ, 23, at p. 31.
D.J. Ibbetson, ‘A Reply to Professor Zimmermann’, in: T.G. Watkin (ed.), The Europeanisation of Law
(London: UKNCCL, 1998; UKNCCL Series 18), p. 224, at p. 236.
36
37
Ibid., at pp. 236-237.
38
Sacco, op. cit., at p. 26.
39
Ibid., footnote 29, at p. 26.
R. Sacco, `Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)’, (1991) 39 Am. J.
Comp. L., 343, at p. 388.
40
scholarship and general theory of law.’41
1.2.3 Comparative law: Culture
Anthropologists and sociologists are querying the kinds of complexities and problems arising
from the mismatch between legal and social cultures which arose in the past and which may
arise again from the legal transplants of today. There is growing and impressive literature
here.
It is among scholars interested in culture that we find the majority of the so-called
‘contrarian challenge’ supporters. It is they who are most concerned with the clash of cultures
surviving under monolithic value systems imposed by legislatures.42 The role of comparative
law in culture studies and the role of culture in comparative law studies is difficult and
delicate. The ‘comparative law and cultures’ approach emphasises the mismatch of recipients
and models, especially in one-way trajectories of mobility of law and the ensuing problems of
rejection of transplanted norms, specifically values and standards. The terms layered law and
hyphenated law become part of the resultant vocabulary of this approach.
Comparative law studies point, on the one hand, to the failures and weaknesses of
transplants as a means of law reform and modernisation while disregarding socio-cultural
diversities, by stressing unsuccessful examples, especially those related to colonial
experiences. On the other hand, comparative law studies show that legal transplants are the
best way of modernisation and do not cause instability in the existing legal or socio-culture,
by providing examples of successful transplants where the recipient, through its own creative
modernisation efforts, has used the import to its own overall benefit without alienating the
socio-culture. The role of comparative law here appears to be to offer examples and
explanations. What is of significance is that research encountered in this field is not always
neutral but value laden.
1.2.4 Comparative law: Economics
Economists are trying to establish a blueprint by which systems can choose the most efficient
solution from the pool of solutions offered by competing systems. Here there is also the hope
that a new ius commune in European private law can develop through the competition of
legal rules and an eventual choice of the most efficient or ‘best’ rule.43 Thus the prerequisites
for achieving harmony will not be necessarily similarity or regularity, but difference and
diversity.
The law and economics movement seems to be in the process of establishing an
‘intellectual imperialism’, and we see a ‘colonisation by law and economics’44 of a number of
41
Ibid., at p. 389.
See here, L.A. Obiora, ‘Toward an Auspicious Reconciliation of International and Comparative Analyses’,
(1998) 46 Am. J. Comp. L., 669, emphasising the need to reflect and respect social and cultural diversity while
maintaining a universalist claim. Also see G.P. Fletcher, ‘Comparative Law as a Subversive Discipline’, (1998)
46 Am. J. Comp. L., 683, who assesses Comparative Law as a form of ‘cultural criticism’.
42
See for an interesting variation, J. Smits, ‘A European Private Law as a Mixed System’, (1998) 5 MJ, 328.
Also see J. Smits, ‘How to Take the Road Untravelled? European Private Law in the Making: A Review Essay’,
(1999) 6 MJ, 25, especially at pp. 40-41. Also assess the views presented by A. Ogus, ‘Competition between
National Legal Systems: A Contribution of Economic Analysis to Comparative Law’, (1999) 48 ICLQ, 405.
43
D. Campbell and S. Picciotto, ‘Exploring the Interaction between Law and Economics: The Limits of
Formalism’, (1998) 18 LS, 249.
44
legal disciplines. Comparative law has become the special prey for this colonist. However, as
long as comparative law maintains its distinctiveness and this relationship can move beyond
‘colonisation’ into one of co-partners, then comparative law can only gain in popularity and
be seen as indispensable for understanding the role of law in economics and of economics in
law.
The comparative law and economics approach aims at building a model for an
efficient legal institution and then comparing it with the actual world alternatives offered by
different legal systems. It becomes important here to be able to offer explanations for the
reasons and the mode of the departure.45
1.2.5 Critical comparative law: A different name or a new approach?
I suggest that under the title ‘Critical Comparative Law’ the comparative lawyer understands
comparative law to be a subject in its own right, as the only reliable way of accumulating
knowledge of the reality of law and then assesses the problems that may arise out of the
proposed marriages discussed above, giving warning signals where need be. So with the
knowledge gained, the task is to analyse fully the underlying phenomena that the three last
trends are addressing, the transfrontier mobility of ideas and institutions and reciprocal
influences. Most of the current concerns of comparatists on convergence versus divergence,
mismatch in borrowings, problems for the importer and the exporter of legal ideas and
institutions can be constructively approached under the name ‘Critical Comparative Law’.
This title can also be regarded as the antithesis to the term ‘traditional comparative law’46 or
‘conventional comparative law’.47 However, this choice of terminology is in no way to be
construed to mean that ‘Critical Comparative Law’ is a branch of the Critical Legal Studies
movement.
Today, comparative law in Europe is first and foremost used within the European
Union and is involved in giving rise to inter-European consequences. The first task it is put to
in Europe is in the ‘new ius commune’ studies where it is asked to facilitate integration and
make a case for the success of legal transplants as the basis for convergence, whether
supported or not by the ‘law and economics school’. Its second task is to find ways of
reconciling civil law and common law. The third and related task given to comparative legal
studies concerns the creation of European Codes. A fourth and more general task is to act as a
tool for construction in the courts, national and European.
In its relations with the extra-European scene Europe is interested in the function of
comparative law in the export of legal ideas and institutions and aiding law reform by
providing a convincing display of competing models to form a pool of models presented by
Western European legal systems.
When looking at comparative law solely in the common law world, we see the same
four trends mentioned above. The tasks comparative law is put to also resemble the ones we
considered above. However, five further points must be mentioned here. One is the
competition of the US with European systems to sell her legal export in preference to any
European model, especially in Central and Eastern European States. Another is the changing
attitude of the Privy Council in Britain to legal systems and legal cultures in the
See generally, U. Mattei, ‘Efficiency in Legal Transplants: An Essay in Comparative Law and Economics’,
(1994) 14 Int’l Rev. L. & Econ., 3.
45
46
Used by Ewald, op. cit.
47
Used by Monateri, op. cit.
Commonwealth and the unity of the common law. The third is a strong desire to keep English
law intact within the EU by stressing the view that legal systems of our day should remain
flexible and realistic and, therefore, uncodified. Accepting a degree of adjustment is one
thing, but accepting European Codes, based predominantly on civilian concepts and legal
science, is another. The fourth point is the renewed interest in research and teaching in
comparative common law. Finally, and specifically in the USA, there is additional concern
that comparative law has grown in the shadow of Europe and that it must develop its own
agenda if it is to be taken seriously.48 We will be looking at some of these in more detail in
the section on ‘The Case of English Common Law’ below.
At the end of one century, poised to enter the next, comparative law must take stock
of some of the most important problematic issues that arise from the above picture. The
shifting and changing horizons for comparative law must be analysed through a critical
stance. The problems cannot be exhaustive. Nevertheless, some are more pressing than
others. In this study entitled ‘Critical Comparative Law’, the most important role and purpose
of comparative law for our day and the next century with some of the ensuing problems will
be discussed.
The comparative law enterprise in the twenty-first century will be paying more
attention to general, public, private and criminal comparative law as well as comparative law
in the EU, comparative law in the common law world, comparative law in the Far East and
reciprocal influences. The future of comparative law will be tied theoretically and practically
to an enhanced legal science, convergence and integration as well as an appreciation of
diversity, the use of foreign models in law reform and law and culture studies. The trends we
see developing will continue to centre around the role for comparative law as a means of
theory testing; new approaches to harmonisation; new receptions, mixed and mixing systems
and redesigning systems; a new European ius commune; redefining legal culture; and an
emphasis on regional comparative law such as European, Central and Eastern European,
common law, African and Far Eastern. Many concepts and institutions are already being
looked at through the spectacles of critical comparatists. Some of the recent doctoral theses
display this development.49
Comparative law will also become even more important as an indispensable tool of
construction for the European Court of Justice of the Communities and for national courts
and law reform bodies.
1.3 The link: Reciprocal influences
In all this, however, reciprocal influences, even though not necessarily direct legal
transplants, will dominate the twenty-first century as already alluded to above. These
reciprocal influences have to be examined in ways other than those of the past, where the
main emphasis has been on historical transplants.
Today, the emphasis, the consequences of these movements and the means are
different. The most prominent ‘reciprocal influence’ today is that which is taking place
within the EU. The transplants from the Western legal traditions to the Eastern and Central
M. Reimann, ‘Stepping out of the European Shadow: Why Comparative Law in the United States Must
Develop Its Own Agenda’, (1998) 46 Am. J. Comp. L., 637. Also see, U. Mattei and M. Reimann,
‘Introduction’, (1998) 66 Am. J. Comp. L., 597-606.
48
49
For example, See, J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and
Comparative Perspective on English Public Law (Oxford: Clarendon Press, 1996); F.A.N.J. Goudappel, Powers
and Control Mechanisms in European Federal Systems (Deventer: Gouda Quint, 1997); A. de Roo and R.
Jagtenberg, Settling Labour Disputes in Europe (Deventer: Kluwer Law and Taxation Publishers, 1994).
European legal systems are of equal importance to comparative law scholars. The emphasis,
therefore, is on the present and the future. The consequences are the birth of systems in
transition and mixing systems, 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, though, of course, imposed receptions are
more prominent in some instances, and in the case of Central and Eastern European legal
systems, the term ‘collective colonisation by the EU’ is used. Nevertheless, there are distinct
differences in the character of the new movements. Some of these issues will be touched
upon in the three ‘Cases’ to be looked at below.
As Sacco claims, original innovation in law is very small and borrowing and imitation
is of central importance in understanding the course of legal change.50 Teubner, however,
claims that the transplant theory needs some conceptual refinement. Apart from challenging
the ‘convergence theses’ and ‘functional equivalence’, Teubner does not go down the path
followed by Legrand that ‘legal transplants are impossible’.51 Neither is he supportive of
Watson.52 Instead, he claims that the conceptual refinement needed would ‘allow us to
analyse institutional transfer in terms different from the simple alternative context versus
autonomy’.53 New Divergencies’, (1998) 61 MLR, 11, at p. 17. Teubner puts forward four theses,
that:
law’s contemporary ties to society are no longer comprehensive, but are highly selective and vary from
loose coupling to tight interwovenness; they are no longer connected to the totality of the social, but to
diverse fragments of society; where, formerly, law was tied to society by its identity with it, ties are
now established via difference; and, they no longer evolve in a joint historical development but in the
conflictual interrelation of two or more independent evolutionary trajectories. 54
Allison, on the other hand, is more suspicious of legal transplants and Watson’s suppositions,
and points to the need ‘to consider both the present and proposed contexts of a transplant’.55
He comes to the conclusion, in relation to English and French law and the public/private law
divide, that ‘because of the coherence of legal and political system, transplantation is
hazardous’.56 Obviously, there are serious dangers in ill-considered transplantations.57
The terminology used in classical statements of legal transplants such as transplant,
reception, imposed reception, solicited imposition, crypto-reception and inoculation58 have
50
Sacco (1991), op. cit., at p. 395.
51
P. Legrand, ‘The Impossibility of Legal Transplants’, (1998) 4 MJ, 111.
52
A. Watson, Legal Transplants: An Approach to Comparative Law (Edinburgh: Scottish Academic Press,
1974).
53
G. Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in
54
Ibid., at p. 18.
55
Allison, op. cit., at p. 16.
Ibid., at p. 236. Also see on Allison’s position the book review by C. Harlow of J. Beatson and T. Tridimas
(eds.), New Directions in European Public Law (Oxford: Hart Publishing, 1998), (1998) 18 LS, 558.
56
57
Here we might want to talk of ‘transpositions’ instead. See section 7 infra.
58
Watson, op. cit., his footnote 53 at p. 30.
been superseded, and a colourful vocabulary has been created highlighting nuances in
individual instances of such mobility and influence, such as grafting, implantation, repotting,
cross-fertilisation, cross-pollination, engulfment, emulation, infiltration, infusion, digestion,
salad bowl, melting pot and transposition, and new notions and bases for analysis are being
developed such as collective colonisation, contaminants, legal irritants, layered law,
hyphenated law and competition of legal systems. Some of this vocabulary59 will be used in
this study when the occasion arises.
The worries related to European integration, the reconciliation or the rapproachment
of common law and civil law and that of socialist and civil law, the future of developing legal
systems in transition, the problems of the recipient or importer of legal export are all tied up
with the reality of reciprocal influences and thereby cross-fertilisation. These influences are
not just between legal systems but also between socio-cultures and legal systems, and legal
culture and legal systems. In addition, they are the significant underpinning of
multiculturalism and legal pluralism.
‘Critical Comparative Law’ approaches systems in transition and reciprocal
influences, the results of transfrontier mobility of law, primarily under four headings. The
first is ‘the paths that this migration follows’, that is colonisation, resettlement, occupation,
expansion, the interrelationship of the member states of the EU and the external relations of
the EU.60 Researchers working on the paths of migration using a system-oriented approach,
are usually legal historians, political historians and European lawyers. Here the wider
phenomenon is analysed and a political and historical approach is necessary. However,
futuristic hypotheses are also needed. Scholarship in comparative law and legal theory grow
together here.
The second heading is ‘the method and specific techniques in migration’, that is - as
simplified - imposition, reception (voluntary borrowing), imposed reception, co-ordinated
parallel development, infiltration, imitation and variations and combinations of these. An
empirical case study method is essential for a true understanding of these concepts.
The third heading is ‘consequences’, the outcomes of such migration, that is, systems
in transition and mixing, mixed jurisdictions, interrelated systems, evolving systems,
continuous state, layered law, hyphenated legal system, redesigning a state, harmonisation,
unification and standardisation. Here, of particular contemporary interest are cultural
pluralism and the clash of diverse cultures, legal pluralism and the consequences for the
recipient legal system.
The last heading is ‘the conceptual and future implications of migration’, that is,
redefinition of law, legal concepts, legal rules and legal system, clashes between culture and
law (legal cultures in diversity, legal cultures in affinity), top-down and bottom-up
explanation of law-making, law reform and legal systems in transition. The stress must be on
conceptual development and redefinition assessing contemporary transfrontier mobility of
legal thought and legal institutions, and the impact this has on existing institutions and
concepts.61
The plethora of problems to be tackled seems endless. I propose to deal with some of
these here. This study will now consider ‘convergence versus divergence’, ‘paradoxes for
See for a more complete list, E. Örücü, ‘A Theoretical Framework for Transfrontier Mobility of Law’, in: R.
Jagtenberg, E. Örücü and A. De Roo (eds.), Transfrontier Mobility of Law (The Hague: Kluwer Law
International, 1995), at p. 5.
59
See N. Burrows, ‘European Community: The Mega Mix’, in: E. Örücü, E. Attwooll and S. Coyle (eds.),
Studies in Legal Systems: Mixed and Mixing (London: Kluwer Law International, 1996), pp. 297-312.
60
61
Örücü (1995), op. cit., at p. 17.
recipients in transfrontier mobility of law’ and ‘models for law reform and mismatches’. To
illustrate some of the points I make, the Turkish experience with the Swiss Civil Code and
the English position, specifically the McGregor Contract Code will be used and reference
will be made to some developments in the Central and East European systems. Finally, the
question whether comparative legal studies can offer the panacea will be addressed.
2. Convergence versus divergence: Must it be either-or?
2.1 The two approaches: Are they mutually exclusive?
An important fact must be mentioned at the outset. There is a division of belief among
comparatists. One belief is that only convergent or similar systems can benefit from each
others’ experience; hence the attempts to enlarge the catchment area of systems covered by
the ‘new ius commune’ within the context of a wider Europe. However, in actuality, many
systems in transition look at and are inspired by systems which are socio-culturally or
legal-culturally different from their own. How can this be explained? Can such diverse
models really help?62 What about the ensuing mismatch between model and recipient? Of
course, we could rely on Watson, the guru of ‘transplants’. He claims that legal rules are
equally at home in many places; that, ‘whatever their historical origins may have been, rules
of private law can survive without any close connection to any particular people, any
particular period of time or any particular place’.63 So, it is said, in the end all will be well.
The other belief, however, is that it is only differences that teach us lessons. In this
camp it is the differences that are stressed for their value in enhancing our understanding of
law in society.
Schlesinger, pointing that ‘to compare means to observe and to explain similarities as
well as differences’, says that the emphasis is sometimes on differences and at other times on
similarities. He talks of periods of ‘contractive’, which he also calls ‘contrastive’, comparison
with the emphasis on differences, alternating with periods of what might be called
‘integrative’ comparison, i.e., comparison placing the main accents on similarities.64 Thus
Schlesinger contrasts ‘integrative comparative law’ with ‘contractive or contrastive
comparative law’. His conclusion is that the future belongs to ‘integrative comparative law’.65
Within Europe, the ‘ius commune seekers’ trying to integrate legal systems, are
looking at a legal world which includes differents, i.e. the UK and Ireland, and interfere in
this state of affairs in the name of a purpose. Is this an imposition? Does it work? In the
common law world, the unity of common law is made up of similars, as far as legal systems
are concerned. Now it appears, as will be seen below, that it is generally accepted that this
unity will be enhanced by diversity and the Privy Council has loosened its hold on the
Commonwealth jurisdictions.66
62
Below, the Turkish legal system will be considered as an example.
A. Watson, ‘Legal Transplants and Law Reform’, (1976) 92 Law Q. Rev, 79, at p. 81. For a thorough analysis
of Watson’s work see W. Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’, (1995) 43
Am. J. Comp. L., 489.
63
64
Schlesinger, op. cit., at p. 477.
65
Schlesinger, op. cit., at p. 481.
See R. Martin, ‘Diverging Common Law: Invercargill Goes to the Privy Council’, (1997) 60 MLR, 94, and
J.M.M. Chan, ‘Hong Kong’s Bill of Rights: Its Reception of and Contribution to International and Comparative
66
Zweigert and Kötz point out that Rudolf Jhering gave the conclusive answer to those
who object to the foreignness of importations when he said: ‘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.’67 So, reduced to the common
law/civil law divergence question and claims as to the futility of integration, it must be
assumed that the real questions cannot be about refusing quinine, but how one takes it. With
water? With another juice? In a thimble? A cup? Chewed? Swallowed whole? Thus the
obstacle of mentalité must be to the structure of what is accepted and the technique of how it
is accepted, rather than to the principle of the acceptance of a rule or solution on which, on
the whole, there is no room for negotiation, such as in the case of putting into practice an EU
directive.
Can comparative law be seen today as an instrument of integration and is it true that
‘the last thing we need is “distinctiveness for its own sake”’.68 Do such strong views defy the
virtues of ‘distinction’ or ‘diversity’ as such?69
It is suggested by Ward that the ‘same-ness and difference debate’ dominates most of
‘theoretical comparativism’ with the question: ‘Are we identifying difference, and cherishing
it, or are we trying to suppress it, by effective same-ness?’70 He believes that within Europe
comparative law is used at present ‘as a means of effecting same-ness and suppressing
difference’.71 and that comparative lawyers are not ‘neutral observers’ but ‘powerful
players’.72 He further states that ‘we assume difference, which, as good instrumental
comparatists, we then try to mediate and compromise’.73 According to Ward, there is ‘a
Europe of differents’ that forbids meaningful comparison. He then brings two traditions to
the forefront. Referring to Derrida, Ward repeats that Europe ‘will continue to try to both
deny difference, but in its very definition, cherish it’ and therefore ‘comparativism’ threatens
the differences that characterise post-modern society. So that, in this sense, comparative law
is a threat. Referring to Kant, however, Ward suggests that ‘comparativism’ is in fact too
inclined to identify differences, instead of bringing into focus the core-principles within every
legal system, jurisprudentially every legal system being at root the same.74 So that, in the
Kantian sense, comparative law has a limited role to play. These are debates about judgment.
Differences in legal cultures can be as to sources of law, methods of legal reasoning
or legal institutions. The more fundamental differences underlying these are those related to
socio-cultures. It has been claimed that in the first decades of the twentieth century the
Jurisprudence’, (1998) 47 ICLQ, 306.
67
Zweigert and Kötz, op. cit., at p. 17.
E.M. Clive, ‘Scottish Family Law’, in: J. Grant (ed.) Independence and Devolution: The Legal Implications
for Scotland (Edinburgh: Green, 1976), 162, at p. 173.
68
69
This discussion should be read in conjunction with sections 3.2, 3.2.1 and 3.2.2 infra.
70
Ward, op. cit., at p. 31.
71
Ibid.
72
Ibid., at p. 32.
73
Ibid., at p. 31.
74
Ibid., at p. 32.
differences between common law and civil law traditions were emphasised, whereas today, at
least from the point of view of private law within the EU, the common elements are sought.
rather than differences stressed.75
Three questions must be posed here. The first is: Is it true that, traditionally,
comparative law has emphasised the differences in institutions, legal structures and
substantive rules rather than the common cores, that is, were divergences overstated in the
past? The second question is: Can it be said that showing the similarity of some selected
single rules76 in detail, whether as to their substance or as to their function, is enough to
negate the ‘differences approach’ and confirm the ‘convergences approach’?77 The third
question is: When ‘culture’ and ‘difference’ as facts are the central concerns, should the
function of comparative law be the building of bridges, that is to say, should it become
‘bridging comparative law’, coupled with the acceptance that legal systems and cultural
systems can ‘live apart together’?78
The claim that the grouping of legal systems or the ‘legal families approach’ arose
from emphasising the differences may be one way of looking at things, since from the point
of view of the legal systems put into the same or related groups, this exercise can be
presented as arising from recognising similarities. The study of legal transplants is also an
indication that scholars have been looking at relationships between legal systems and
detecting common features. It is not therefore altogether true that comparative law only
emphasised the differences until recently.79 As Moccia points out, between the sixteenth to
the nineteenth centuries comparative legal history, the comparative law of the time, was
interested in the similarities and not the differences and it is only with rising nationalism and
positivism that comparative law discourse started stressing the differences, especially
between the civil law and the common law.80
Four points have to be made here. One is that even a cursory definition of
comparative law tells us that comparative lawyers are looking both at differences and at
similarities. The second is that the similarities or common-cores81 that are sought today are
limited to the Western world alone. The third point is that the real help we can derive from
comparative law is the insight gained by studying and analysing both differences between the
similars and similarities between differents. Finally, the future lies in ‘unity in diversity’
rather than ‘unity through uniformity and standardisation’.
See L. Moccia, ‘Historical Overview on the Origins and Attitudes of Comparative Law’, in: B. De Witte and
C. Forder (eds.), The Common Law of Europe and the Future of Legal Education (Deventer: Metro/Kluwer,
1992), 609, at p. 619.
75
For the essential elements decisive for classifications, see Örücü, ‘Internal Logic of Legal Cultures’, (1987) 7
Legal Studies, 310.
76
See P.C. Müller-Graff, ‘Common Private Law in the European Community’, in : De Witte and Forder, op. cit.,
239, at p. 251. Also see the editorial by B. De Witte, ‘The Convergence Debate’, (1996) 3 MJ, 105.
77
78
See Müller-Graff, op. cit., p. 254.
See G. Steenhoff, ‘The Place of Legal History in the Teaching of Law and in Comparatists Formation’, in:
E.H. Hondius, Netherlands Reports to the Fifteenth International Congress of Comparative Law,
(Antwerpen/Groningen, Intersentis Rechtswetenschappen, 1998), 1, at p. 11.
79
80
Moccia, op. cit., at p. 618.
See M. Bussani, ‘Current Trends in European Comparative Law: The Common Core Approach’, (1998) 21
Hastings Int’l & Comp. L. Rev., 785.
81
‘Cultural diversity’ reflecting on legal systems must be appreciated since ‘diversity’
and ‘flexibility’, being related to freedom of choice, are part of democracy, the one
fundamental value upheld by all in at least the Western world. Aims such as ‘harmonisation,
‘integration’ and ‘globalisation’ show acceptance of the existence of differences but,
nevertheless, aspire to produce sameness. Yet the distinctiveness and mutuality should also
be emphasised within the concept of ‘harmony’.
2.2 Harmonisation or harmony?
There is a place for divergence even in a scheme of convergence, as harmony of differents is
more fruitful and beneficial to the world of legal learning than efforts to standardise.
What is the meaning of integration? Does harmony mean similarity? Is there a
dichotomy between harmonisation and harmony?82 Harmony is both an objective and an
inherent characteristic of any system. Law subsumes harmonisation. The notion of
harmonisation of laws in the context of comparative law is, however, obscure. Harmonisation
as a concept is a process of bringing about harmony, analogous to that in music. As a method,
harmonisation becomes a goal for law reform. However, harmony presupposes and preserves
diversity. In the analogy to music, components retain their individuality but form a new and
more complex sound. Consonance as the opposite of discord is a pleasurable combination.
Harmony is a relative concept which can also include dissonance. We can achieve harmony
not only by eliminating diversity but also within diversity.83
3. Paradoxes for recipients: Modernisation and borrowing
3.1 Pool of models and possible mismatch: Which model? Which recipient?
In our pool of models today we see Western legal systems competing to become the ones
selected for foreign import. This is taking place as the Western legal systems themselves are
trying to modernise and therefore themselves are not static. In this they are also reciprocally
influenced by each other. As for Central and Eastern Europe, this process of import can
become an acute problem. For example, how will the Dutch model fare in Russia? Can it be
claimed that a jurisdiction with a ‘mixture’ is a better model? Would it be more acceptable to
the recipient?84
There can never be a tailor-made model. A degree of mismatch is inevitable. The
major question remains: How do we deal with this mismatch? Can it be corrected through the
‘power of the reception on the imagination and creativity’ of the recipient? Are successful
transplants ‘transpositions’ and adaptations?85
3.2 The first paradox: Similarity and difference
82
See S. Weatherill, Law and Integration in the European Union (Oxford: Clarendon Press, 1995) and its review
by S. King (1997) 60 MLR, 133.
83
This discussion should be read in conjunction with section 3 and in particular with 3.4 infra.
See J.M. Smits, ‘Systems Mixing and in Transition: Import and Export of Legal Models - The Dutch
Experience’, in: Hondius, op. cit., p. 47.
84
85
Some of these issues will later reappear under section 7 infra.
Now to some of the paradoxes of comparative law faced by a recipient.86 Following on from
the convergence versus divergence discussion, it must be pointed out that the split in belief
referred to above is reflected in the first paradox. The first paradox is: How can one find it
more beneficial to stress the convergences in order to convince the rule formulators of the
benefits of using foreign models, on the one hand, and yet, on the other hand, feel the need to
stress the divergencies or differences between legal systems to achieve the maximum from
comparative legal studies, that is, increase the general understanding of law and society, the
true role of comparative law? How can this paradox be resolved, especially when it appears
that comparatists are divided on which of their findings they choose to highlight?
Comparison involves juxtaposing the hitherto unknown to the known, or the known to
another known. Juxtaposing involved a series of actions of contrasting and comparing. The
hitherto unknown may be found to be similar to the known. This similarity can be
socio-cultural and legal-cultural, or legal-cultural only. If there is socio-cultural similarity but
legal-cultural diversity between the two systems under review, then comparatists seek refuge
in historical explanations or ‘historical accidents’. In cases of similarity, the task of the
comparatist is reduced to first finding the reasons for the similarity and then using them for
his/her own purposes. Here it is assumed that the similar ‘other’ can provide a model for use
in law reform or open up possibilities of harmonisation as, for example, within the context of
the EU. One of the dominant trends in Europe today, as noted earlier, is to find such
similarities between the legal systems to pave the way for the ‘new ius commune’ in stressing
‘the shared heritage’ of Europe (Corpus iuris Europarum). For example, in the Opinion of
Advocate-General Warner we read: ‘Moreover, this Court, in developing the general
principles of Community law, draws on what has been termed “the legal heritage” of all the
Member States. It seems to me that, if one considers, for example, [and here he cites
institutions from a number of such jurisdictions] ... there emerges a general principle ... What
matters here, of course, is the existence of the principle, not the scope or mode of its
application in the law of any particular Member State.’87 This trend also extends to efforts to
create a European Civil Code, a European Criminal Code and so on.88
Historian comparatists are also very active in this area. Good examples of active ‘ius
commune seekers’ are Zimmerman, Watson, Friedman,89 Koopmans,90 Xavier, Levitsky and
Markesinis. Together with the ‘European convergence theories’, there are, of course, ‘global
convergence’ theories stressing not only a return to the ‘ius commune’ but issues such as
legal evolution and natural law,91 referring to a natural convergence.
It is worthwhile remembering, however, that between any two things there are always
both differences and similarities, unless they are identical. In law we know that there are no
identicals, since even after very successful transplants, an evolutionary dynamism emerges
86
In this study three of the paradoxes are addressed.
87
Boizard v Commission 63, 64/79 [1980] ECR 3002, Advocate-General Mr Warner. Also see Schlesinger, op.
cit., pp. 480-481.
Strongly opposed by Legrand. See P. Legrand, ‘Against a European Civil Code’, (1997) 60 MLR, 44, ‘Sens et
non-sens d’un code civil européen’ (1996) 4 RIDC, 779. Also see his ‘Comparer’, (1996) 2 RIDC, 279, his
‘How to Compare Now’ (1996) 16 LS, 232 and ‘Are Civilians Educable?’, (1998) 18 LS, 216.
88
89
L.M. Friedman, ‘Is There a Modern Legal Culture?’, (1994) 7 Ratio Juris, 117.
T. Koopmans, ‘The Birth of European Law at the Cross-roads of Legal Traditions’ (1991) 39 Am. J. Comp. L.,
493.
90
91
And, of course, the Marxist thesis.
and systems go their own way. The incoming concepts or institutions now living in a
different environment begin to change; an internal ‘contamination’ occurs. Two things either
both belong to a previously established category, or one belongs to it and the other does not.
A comparatist has to note both the similarities and the differences and try to explain the
reasons for the findings. This is the most important and rewarding task of comparative law.
3.2.1 Which to stress?
As already pointed out, when comparing closely related systems it is usually more interesting
to explain the differences, while in two entirely unrelated systems it is more interesting to
explain the similarities.92 Yet, it seems a matter of preference, and therefore policy, whether
the comparatist highlights the differences or the similarities found. The ‘ius commune
seekers’ agenda is to overrate the similarities and belittle the differences, not only between
the civil law and the common law traditions, but especially between the civilian and
post-socialist systems within the context of Europe. Some common law comparatists looking
for closer ties with the continent are also of this ilk. Seeking for and stressing the similarities
certainly aids further convergence and increases the chances for comparative legal studies
becoming the main tool in law reform. Thus any comparatist who wishes his/her subject to
play a pivotal role in the twenty-first century might want to become firmly established in this
camp.
Yet, in times of animosity, insularity or ‘negative nationalism’, the choice lies with
stressing the differences. This I find to be similar in some ways to the position of a common
law court distinguishing between two sets of cases, having already made up its mind on
policy grounds as to the direction it wants to take. But the era of stressing differences alone,
especially differences between civil law and common law and between civil law and socialist
law, seems to be ending, though the nineteenth and the twentieth centuries have seen
fluctuations between one camp and the other. Now the stress is on the dichotomy between the
integrated Western legal culture and the Islamic. The differences are highlighted and the
similarities often ignored.93
If the result of the comparison is, however, that the hitherto unknown is totally
different from the known, then, what can the comparatist do beyond explaining the reasons
for the difference or divergence? This difference can again be both socio-cultural and
legal-cultural, or socio-cultural, or legal-cultural only. When the divergence is socio-cultural
and yet there is legal-cultural similarity, again it is called a historical development or the term
‘historical accident’ is resorted to, to explain this anomaly.94
In areas where law is developing fast, or new areas of law are opening up, the British
courts, for example, look at other common law jurisdictions where socio- and legal-cultural
affinity is deemed to exist.95 But, even then, occasionally, one can come across cases where
New Zealand or Australia are found to be ‘too progressive’ or to rely on ‘other philosophical
92
See M. Bogdan, Comparative Law (Deventer: Kluwer/Stockholm: Norstedts Juridik/Oslo: TANO, 1994), p.
18.
93
See, for example, ‘Islamaphobia’, Report of the Runnymede Commission, 1997.
94
Again, the Turkish experience will be looked at as an example of this in section 6 infra.
For such cases see E. Örücü, ‘The United Kingdom as an Importer and Exporter of Legal Models in the
Context of Reciprocal Influences and Evolving Legal Systems’, in: UK Law for the Millennium (London:
UKNCCL, 1998), 206.
95
and social premises’.96 If even systems from the same legal tradition have problems when
borrowing from each other, when legal systems from other traditions, such as the socialist,
look at civilian or common law systems for models, are there not many more problems?
These may be acute for legal systems which have never been part of the civilian tradition,
such as those of Uzbekistan or Turkmenistan. What is the true function of comparative legal
studies in these types of cases?
The American comparatist Hazard says that he uses comparative law to broaden the
minds of his students by providing examples that shock them in their difference.97 He surely
is trying to avoid the complacency one may fall into by seeking and stressing similarities, a
complacency which may dull one’s intellect in the search to further the true function of legal
knowledge and enhance one’s understanding of legal and social cultures and their continuous
interaction. Frankenberg also hopes that comparative legal studies may inspire students to
learn more about and rethink the bias in their own culture and education.98 This is not
precisely the same as the ‘contrarian challenge’ propagated by Legrand,99 who seems to think
that because of the ‘irreducible differences in mentalité’, the ‘summa differentia’, a foreign
lawyer or a comparatist is incapable of really understanding the true meaning of different
legal institutions or different legal cultures.100
As advanced above, I do not support the view that until recently comparative lawyers
have been exclusively, or mainly, interested in differences.101 It has been stated that ‘culture’
and ‘difference’ have always been central concerns of comparative law and the first step in
the conventional approach has been to divide the legal world into legal families.102 Actually,
the reverse is the case, unless one is looking at periods of total isolation of legal systems. For
a very long period of time the ‘convergence thesis’ has prevailed, at least within the Western
legal tradition, and still does today. It is only very recently that there has been debate on
valuing ‘unity or harmony in diversity’. Divergences as to socio-culture and legal culture
must be understood and appreciated, and they must live in harmony.103 The conspectus is that
what to stress may be a matter of policy or choice, but this does not change the fact that both
differences and similarities, divergences and convergences are here, and are here to stay.
3.2.2 The value of the different
Comparative legal studies would itself benefit and therefore benefit scholars looking at the
outcome of comparative legal research if it were to interest itself seriously in searching for
96
Ibid.
97
J.N. Hazard, Communists and Their Law (Chicago: University of Chicago Press, 1969).
98
G. Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’, (1985) 26 Harv. Int’l L. J., 412.
99
Legrand (1996, LS), op. cit., his footnote 32.
P. Legrand, ‘Legal Traditions in Western Europe: The Limits of Commonality’, in: R. Jagtenberg et al., op.
cit., 63; and also Legrand (1997, MLR ), op. cit., 44.
100
101
See Müller-Graff, op. cit., at p. 239.
102
Monateri, op. cit., at pp. 86-87.
See Legrand (1998, MJ), op. cit., who argues that comparison must involve ‘the primary and fundamental
investigation of difference’, at p. 124.
103
and explaining divergencies, especially between the similars.104 This, however, should not be
done with the ‘negative’ attitude of stressing ‘irreducible differences in mentalité’ or ‘summa
differentia’ within the context of a ‘contrarian challenge’. It should be done with a
constructive attitude in order to develop further a ‘critical comparative law’. The findings of
such research would enhance our understanding of law and legal and social cultures. Though
the word ‘comparable’ in many languages is often used to mean ‘approximately similar’ and
‘not too different’, a comparatist surely means by ‘comparable’, that it would be meaningful
or possible to compare.105 Thus to accept comparability is not the same as accepting
similarity, since a comparison can demonstrate great fundamental differences.106
Puchalska-Tych and Salter107 complain that comparative legal studies have failed to
develop an understanding of the legal cultures of Eastern Europe and point to the need for a
‘dialectical analysis’. They claim that the mainstream literature comparing ‘socialist legal
culture’ with Western cultures usually takes a formalistic, unreflexive type of positivistic
standpoint, reductionist in its operation, involving a process of uncritical description. This
they condemn. A second and more contextually oriented tendency, they claim, is to
instrumentalise sociological realities by adopting an unrefined functionalist type of analysis.
This too they condemn as a top-down form of analysis that remains essentially ‘a priori’ in
nature. They further claim that both approaches are incapable of transcending the failure of
reductionism. These authors believe that living legal culture reflects the evolution of society
effected by social interaction. However, they agree that as an alternative to the positivist and
functionalist approaches, a third tendency is emerging, a reflexive trend in comparative law,
such as in the works of Bell, Butler and Legrand.108 Reductionism loses sight of cultural
diversity, distinctiveness and complexity. The new trend is a reflexive countertradition of
comparative scholarship. Without going into its details, I cite here the steps in this approach:
analysing internal contradictions, cultural mediation, social constructivism,
phenomenological exposition, methodological reflectivity and immanent critique.109 It is a
truism that this reflexive countertradition is essential in the comparison of any ‘differents’.
3.3 The second paradox: Can the mismatch be corrected?
This leads us to a second paradox. This paradox centres around how to correct the mismatch
between models and recipients. Many states in transition, poised for law reform and
modernisation, look for models from other states which are socio-culturally and/or
legal-culturally diverse from their own. Can such models really help? If we find problems
even when a common law system borrows from a civilian model or vice versa, are there not
even more problems when legal systems from more diverse traditions such as the socialist,
Also see in this context, V.G. Curran, ‘Dealing in Difference: Comparative Law’s Potential for Broadening
Legal Perspective’, (1998) 46 Am. J. Comp. L., 657; and N.V. Demleitner, ‘Challenge, Opportunity and Risk:
An Era of Change in Comparative Law’, (1998) 46 Am. J. Comp. L., 647.
104
105
Bogdan, op. cit., at p. 67.
106
Sacco, op. cit., at pp. 6-7. Here also note the claims that Soviet law could not be compared with the Western
legal traditions because it was so different.
B. Puchalska-Tych and M. Salter, ‘Comparing Legal Cultures of East Europe: The Need for a Dialectic
Analysis’, (1996) 16 LS, 157.
107
108
Ibid., at p. 176. Also mentioned are Zender, Markowitz and Frankenberg.
109
Ibid., at pp. 178-179.
look at civilian or common law systems? As stated earlier, this must be of acute concern for
legal systems which have never been part of the civilian tradition or the ‘ius commune’, such
as those of Albania, Bulgaria, Uzbekistan110 (see discussion of formal and substantive in the
article on Uzbek in French) or Tajikistan. How are they to deal with the ensuing mismatch
between the model and the recipient? Consider, for example, the US Uniform Commercial
Code in Uzbekistan, or the German Code of Bankruptcy in Kyrgyzstan. These issues are, of
course, general problems of comparative law, but they are of particular interest to the East
European and the ex-USSR legal and social systems, which are at the receiving end of
movements from the civilian and the common law models while trying to reshape their
societies and their law. What is the role of comparative law and the extent of this role in the
development of new or changing legal and social systems? Can comparative legal studies
unravel this paradox? If so, how?111
It must be remembered, of course, that not all advocates of modernisation see it as
relying on foreign models, thus, comparative legal research. For example, Kulcsár112 not only
doubts the value of comparisons between societies as diverse as Ethiopia and Hungary, but
also says: ‘I see the most important characteristic of modernity in whether a society is
capable of continuous social change by utilising its own, internal conditions.’113 So, we can
say that competing visions of modernity are on offer for the States of Central and Eastern
European Region, ranging from emulating the West in the construction of a modern,
market-oriented society to altogether different visions. This Region offers unparalleled
opportunities for comparatists as a laboratory for the testing of socio-legal hypotheses about
the use of law in effecting social transition, as pointed out by Pogany in his review of
Kulcsár’s book.
History tells us that when there is a mismatch between model and recipient, the result
is usually a ‘mixed jurisdiction’, a ‘mixed jurisdiction’ in the classical sense being the
outcome of an encounter between legal systems of diverse socio- and/or legal cultures.114 In
the resultant legal system, the diverse elements coexist. Any intermingling that might take
place depends on a number of factors. It may be that there is no socio-cultural diversity but
only a legal-cultural one, so that in time the diverse elements are blended, or one of the
elements becomes the dominant element because of political factors, or again, from the very
beginning one of the elements may be systematically erased by the use of the authority of
power in its various forms.
So, problems arise as a consequence of the transfrontier mobility of law and create
paradoxes for the recipient legal and social systems. Systems in this situation are either
evolving and in transition, are interrelated or become mixed systems. The special issues are
problems of divergence and convergence between both legal systems and social systems.
Particular attention must be paid to legal-cultural convergence, which may come about as a
result of import and the ensuing socio-cultural divergence. As stated earlier, in this context
cultural pluralism and the clash of diverse cultures and the consequences for the importing
legal system are of particular contemporary interest. Legal pluralism is another significant
110
A. Saidov, ‘Le droit comparé et le droit ouzbek’, (1996) 2 RIDC, 481.
111
See section 7 infra.
112
K. Kulcsár, Modernisation and Law, tr. V. Gáthy (Budapest: Akadémiai Kiadó, 1992). Also reviewed by I.
Pogany in (1994) 43 ICLQ, 483.
113
Ibid., at p. 18.
114
E. Örücü, ‘Mixed and Mixing Systems: A Conceptual Search’, in: Örücü et al., op. cit., 334, at pp. 344-345.
concern.
A serious question to be asked here is: ‘Is legal integration helped or hindered by the
harmony or discord of the systems of law of the component legal systems?’115 Will there be
syncopation and thereby harmony, though not integration? Will this do? Are these systems,
apart from being regarded as comparatists’ laboratories, the ideal systems of the future, as
was claimed to be the position of Scots law by Levy-Ullmann?116 Is it essential for the
recipient to understand the social, political and cultural background of the model? Watson’s
view is that one need not know much about the background of either the donor or the
recipient, one just has to find an ‘idea’ capable of importation.117 At the level of ideas this
may be so, but can one expand this view to cover the entirety of a component coming into the
recipient, especially from a socio-culturally divergent background? Do we need to understand
at least the background of this component?
What actually happens in such movements, however, is often not a matter of choice
but a matter of chance, if not necessity and urgency. The Eastern European systems, some
poised to join the EU, must somehow prepare themselves to undergo change in ‘the desired
direction’, this desire not necessarily being one of the bottom but of the top, the elite, in any
of its connotations, and of outside forces. As Burrows points out:
It is undoubtedly true that the countries of Central and Eastern Europe desire to participate in the
Community framework. In order to do so, they have shown themselves to be willing to change their
laws to adapt to the demands of the Community. In doing so they are undergoing a major reception of
laws in order to allow the development of their economies. In truth, they have no choice in this matter.
The European Agreements were negotiated between parties of unequal power and influence. ...
Whether this can be termed a ‘voluntary reception’ depends on the level of subordination perceived by
the Eastern European partners. ... On the surface it appears that there is a voluntary reception of
Community law in states which are not parties to the Community Treaty regime. However, it is clear
that Community law is not negotiable. It is a take it or leave it choice for would-be partners.118
Moving further afield matters can become even more complicated. As pointed out by
Grossfeld, as soon as we leave the European legal area for Africa or Asia, a whole Pandora’s
box of problems opens up.119
The second paradox will remain the paradox of the twenty-first century. This paradox
has a number of conceptual and future implications. As already pointed out, the redefinition
of law, legal concepts, legal rules and legal system; clashes between culture and law;
surmounting the problems created by diversity and affinity; top-down and bottom-up
explanation of law-making; law reform; new definitions of modernisation or modernity; legal
systems in transition and legal pluralism, are among the topics for discussion. A whole new
world of research possibilities is opening up as newly emerging democracies look to the pool
115
See Koopmans, op. cit., (1991).
116
H. Levy-Ullmann, ‘The Law of Scotland’ (1925) 37 Jurid. Rev., 370.
117
Watson (1974), op. cit., at p. 79.
118
Burrows, op. cit., at p. 311. For example, a precondition for joining the EU is the full implementation of the
whole body of EU legislation, the so-called acquis communautaire. This covers all EU requirements in such
fields as the internal market acquis, the environment acquis, the acquis in the field of agriculture, the justice and
home affairs acquis, the human rights provisions of International Conventions and other obligations entered into
by the EU member states.
119
B. Grossfeld, The Strength and Weakness of Comparative Law, tr. T. Weir (Oxford: Clarendon Press, 1990),
at p. 47.
of competing models available in Western Europe and America with the purpose of
redesigning and modernising their legal, economic and social systems. There will be valuable
export, the models competing to sell their legal products in order to put a foot in the door of
the new markets. For example, there will be ample scope to study the impact of the new
Dutch Civil Code, which is already becoming a valuable export product.120 The success or
otherwise of these new mixing systems, both overt and covert, may help in finding an answer
to the second paradox.
3.4 The third paradox: Contemporary character of import/export
A third paradox lies in the characteristics of the current import and export of legal ideas and
institutions. Today, one of the major differences from the previous periods of receptions is
that the exporter is now in the market packaging his model as the most efficient, the one to be
preferred over others. It is both a buyers’ and a sellers’ market. It is a buyers’ market since
there is such a number of models to choose from. It is a sellers’ market since for the
importers there is no real choice or freedom to go down any particular path, as market forces
tie them to certain of the models only. Those that want to join the EU, for example, cannot
but follow Community models, replicate the directives and so on.
The other difference from the past is that, although this is not a period of imposition,
as we no longer encounter colonial relationships, neither is it one of voluntary reception. The
time is one of imposed reception, that is, a voluntary activity of import under circumstances
where exporters hold all the cards.
The last difference is that there is still a tendency to assess the whole process from the
point of view of the exporter rather than the importer, though the process appears to involve
the importers more effectively than in the past. At least it can be said that most Western
academics are concerned with the success of Western European export and want to guard
against the failures of the ‘law and development movement’ of the 1960s. The questionnaire
circulated by the General Rapporteur Prof. Reitz for Topic 1.C.2 ‘Systems Mixing and in
Transition: Import and Export of Legal Models’ at the Fifteenth International Congress of
Comparative Law held in Bristol in August 1998, can be presented here as an example of this
concern.121 The present writer was a National Rapporteur for both the UK and Turkey on that
occasion, and has expressed her views elsewhere.122
4. Intermezzo: The test bed
Each of the three case studies below is approached through a different perspective and
different aims. Each is used as an example of some of the theoretical points and pointers
made in the foregoing part of this study. The aim in not to compare them.
The case of the English common law will be looked at with the view of seeing
reciprocal influence between the civil law and the common law at work and assessing the
capability of the two legal traditions of intermingling and intertwining. This is of vital
importance if pan-European Codes, if and when they come, are to have any chance of
success, both in their inception and in their working. This case will also be looked at with the
120
See section 7 infra.
121
See Örücü (1998), op. cit., at pp. 244-247 for a copy of the questions attached to my UK Report.
122
Ibid.
aim of bringing to life and testing some of the theoretical terminology such as ‘seepage’,
‘contaminant’, ‘irritant’, ‘underlay’, ‘overlay’ and ‘cross-fertilisation’.
The case of Turkey will be assessed as the product of a unique phenomenon of
‘transfrontier mobility of law’ and, most importantly, as one between socio-culturally and
legal-culturally diverse societies. The term ‘hyphenated’ legal system is to be tested here as
well as the concepts of ‘chance’ and ‘historical accident’. The problems facing the recipient
of this major borrowing and its aftermath will be discussed. The present influence and the
continuing relationship between the model(s) and the recipient will be assessed. At the same
time, the efforts of the structures to deal with the residual problems of religion and culture
will be commented upon. Here the other terms to be tested are ‘reception’,123 ‘irritant’,
‘imposed reception’, ‘modernisation through borrowing foreign models’ and ‘competing
systems’.
The case of Eastern and Central Europe will present a brief inquiry into the models,
the ways in which they are used, the problems these models face and their efforts in this new
export market. The concept of ‘competing legal systems’ will also be looked at. The concepts
of ‘chance’, ‘choice’, ‘prestige’, ‘efficiency’ and ‘elite’ will be observed within the relations
of the Eastern and Central European jurisdictions with the Western European ones. The terms
‘reception’, ‘imposed reception’, ‘imitation’, ‘concerted parallel development’,
‘transposition’ and ‘layered law’ will also be assessed in this context.
5. The case of English common law: Contaminated, irritated or corrected?
5.1 Past encounters abroad
English common law has encountered the civilian tradition on many occasions and in many
parts of the world; as Zimmerman states, they are ‘no strangers’.124 Some encounters took
place at home as will be briefly seen below. In its travels English law has faced many
socio-cultures, legal orders and legal cultures very different from its own, as have the laws of
other Empires. In this case study I will first briefly look at such past encounters of English
common law and indicate some of the important consequences as seen by a comparatist.
Next, present encounters and mutual impacts and reciprocal influences will be discussed.
This will be done while looking at both similar and dissimilar systems. Finally, the English
draft Contract Code drawn up by McGregor will be surveyed and the Principles of European
Contract Law and the prospects for a European Civil Code be commented upon.
As is well known, ‘England has been the only rival to civilian systems based on
Roman law in creating a legal Empire, in providing a model’.125 ‘Nearly one third of all the
people alive today live in regions where the law has been more or less strongly marked by the
Common Law. This is the legacy of the fact that Great Britain was once the greatest colonial
power in the world.’126
123
Including ‘incremental reception’.
See R. Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European
Legal Science’, in: Watkin, op. cit., pp. 1-38; also in (1996) 112 Law Q. Rev., 576.
124
125
O.F. Robinson, T.D. Fergus and W.M. Gordon, European Legal History, 2nd edn. (London: Butterworths,
1994), p. 124, and generally see pp. 123-152.
126
Zweigert, op. cit., at p. 219.
Through the process of colonial expansion English settlers, administrators and merchants carried the
common law to North America, Australia, New Zealand, India and to large parts of Africa and South
East Asia. English law laid the foundation stones for most of the legal systems there and its
contributions to those that already had different foundations, such as Scotland, Louisiana and South
Africa, led to their becoming what is classically termed ‘mixed jurisdictions’ [achieved] not by trying
to replace variants of civil law, Islamic, Hindu or unwritten African customary law then in force with
the rules of English common law, but by filling the gaps. 127
One of the consequences of the colonial policy pursued by the British has been the evolution
of ‘mixed jurisdictions’ in ‘ceded colonies’. Though most ‘settled colonies’ became members
of the common law tradition, though some with a difference, the ‘ceded colonies’, where the
diverse legal traditions were retained or not fundamentally tampered with, developed a fabric
woven from both civilian and common law threads. The common law was always the top
thread, the added model in these systems, the underlay being usually a civilian tradition and
sometimes a religious one. The extent of reciprocal influence between elements from diverse
backgrounds differed from system to system. Sometimes the overlay of common law
camouflaged the underlay, sometimes the two elements existed side by side, the civilian
element usually being in codified form. In some instances one can talk of ‘layered law’, the
product of interaction being the law.128 Sometimes, as each layer collided with the other or
others, legal pluralism resulted. This could be a high degree or a low degree of legal
pluralism. Sometimes the common law was also introduced in codified form by the British,
such as was the case in India. Contract, criminal law, trusts, property, evidence, procedure
and limitation, for example, were subjects of Codes for India in the nineteenth century, the
work on the Codes taking around 40 years. In this way, the most important branches of
English law applicable to India, with the exception of the law of torts, were codified. Many
distinguished British lawyers worked on these Codes, the principal draftsman being Whitley
Stokes; and according to Pollock, these were ‘the best models yet produced’.129 ‘The Indian
Codes in part codified rules of English law already received in India, and in part created new
law. They were adopted for India, with exclusions on certain points for certain parts of India
where they would be inappropriate.’130 The main reason for this codification was that in India
a variety of different laws, including religious laws such as Hindu and Islamic applied
previously, and the piecemeal introduction of common law was neither practicable nor
efficient. Thus the claim of the ‘contrarian view’ that codification is not a part of the legal
culture of English law is not altogether correct even at this early juncture.
As will be seen below, there were more fundamental ‘contaminations’ in the British
Isles later - that is, if a code is taken as a prominent sign of the civilian tradition. The
Criminal Code and the Draft Contract Code, to be discussed below, are among the outcomes
of these ‘contaminations’.
In the colonial period, the clash of cultures between British law and local law had
very significant consequences since the export of British law was a one-way process, an
imposition, with no element of choice involved. As with all impositions, the element of
chance was crucial here. Each outcome has its own history and character, and needs to be
analysed separately. What is traditional, what is modern, what is original and what is
transplanted in these systems is not always easy to detect today. St. Lucia, Quebec,
127
Örücü (1998), op. cit., at p. 206.
128
It can, of course, be said that all modern law is only a superficial layer of the legal system.
129
See M. Arden, ‘Time for an English Commercial Law’, (1997) 56 CLJ, 516, at p. 522.
130
Ibid.
Louisiana, South Africa, Mauritius and Seychelles are examples of this.
Here a caveat is called for. In all the past encounters, common law was the second
and the last legal layer to influence to varying degrees what was there already. Common law
has always been in this position. However, as will be seen below, in our day, there is a new
experience. Within the context of the EU, civilian concepts are entering the common law in
the UK at the level of concepts, if not yet in structures and techniques, as the second layer. In
Hong Kong, for example, common law is now surrounded by Chinese law, a variation of the
civilian tradition, in structures if not in content, and will be sandwiched between the
traditional first bottom layer and a Chinese/civilian third top layer.131 How it will fare or
behave in this new surrounding as part of a layered law, will be of great interest to
comparatists. The experiences of the common laws of the United States and Canada with
Louisiana and Quebec, respectively, is no different from the classical pattern with common
law as the second and top layer, in spite of reciprocal influences in both, and the exceptional
developments in Quebec, which is no longer the ‘mixed jurisdiction’ it once was, but may be
a new one.
5.2 The Privy Council: Unity through diversity?
The attitude of the English common law towards these encounters can be observed most
clearly in the views of the Privy Council,
which plays a crucial role in maintaining the harmony of the common law within the commonwealth
world, laying down paths of cross-fertilisation. This was so in Mercedes-Benz A.G., where the Privy
Council preferred the approach of the Australian courts when deciding Hong Kong law; 132 or in
Vasquez v R and O’Neill v R133 where they brought the laws of the individual jurisdictions of the
commonwealth into line with others, especially within their specific regions. 134
Even leaving the ‘mixed jurisdictions’ mentioned above out of the picture, within the
common law world there are socio-cultural diversities, and these different socio-cultures face
the same legal culture, the common law. This is the case also for other legal traditions.
However, specific to this legal tradition, there is a consciousness that common law is a whole
and that this unity is a very real tie between the jurisdictions within the legal tradition. This is
reflected most significantly in the citing of decisions from other common law jurisdictions by
the British courts, not only for ‘help’ or ‘comfort’ but as authority. ‘The feeling of oneness is
so strong that in one case the judge found it difficult to refer to New Zealand law as foreign
and apologised to his New Zealand friends for using the word “foreign”.’135 Lord Bridge
stated in Bennett v Horseferry Road Magistrates’ Court and another:136 ‘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.’
131
Örücü (1998), op. cit., at pp. 221-224.
132
[1995] 3 All ER, 929 (PC).
133
[1994] 3 All ER, 674 (PC).
E. Örücü, ‘Comparative Law in British Courts’, in: U. Drobnig and S. van Erp (eds.), The Use of
Comparative Law by Courts (London: Kluwer Law International, 1999), 253, at p. 273.
134
135
Ibid., at p. 257.
136
[1993] 3 All ER, 138 (HL).
In the Privy Council’s dealings with appeals from some jurisdictions within the
commonwealth,137 this tendency is even stronger; although, with the declining numbers
within its jurisdiction, its role as the unifier of commonwealth law has lost its earlier
importance. For example, in Cheali v Equiticorp Finance Group Ltd. and another,138 Lord
Browne-Wilkinson stated that ‘[i]t is manifestly desirable that the law on this subject should
be the same in all common law jurisdictions’. Again, in Vasquez v R, the Privy Council
expressed the view: ‘This conclusion will bring Belize into line with other commonwealth
countries of the Caribbean ...’139 The Council expressed regret ‘that there should be any
divergence between English and New Zealand law on a point of fundamental principle’.140 In
these hearings, the Privy Council was concerned ‘to bring commonwealth law into line with
English law, even when local factors might dictate a different approach ... The Privy Council
would be reluctant to decide contrary to English authority regardless of the merits of the
argument.’141 ‘British courts also regard it as desirable that the law north and the south of the
border should be the same or similar as far as possible.’142
Usually and traditionally then, the Privy Council prefers the English law’s
understanding of rules and regards foreign law, in this case commonwealth law, as English
law. Nevertheless, in recent years, the Privy Council has given special weight to the views of
judges in the lower courts in commonwealth jurisdictions ‘in so far as they reflect the
advantage which those judges enjoy of familiarity with prevailing local conditions, this with
the proviso that the courts have used that advantage’.143
Currently, further developments can be perceived here. Despite the apparent
uniformity, some changes in individual jurisdictions and an awareness of their specific
socio-culture have necessitated allowing them to become subtraditions of common law.
Already some jurisdictions within the commonwealth which form the Caribbean group are
contemplating the establishment of their own West Indian High Court to replace the Privy
Council as the court of last resort. The Privy Council has recently lost Hong Kong. The
Council itself is also changing its approach. This is an interesting and significant
development. What Britain ignored in the early years144 and somehow corrected later, is now
137
Now only New Zealand, Brunei, Mauritius, the Gambia, several West Indian Islands and the remaining
overseas territories.
138
[1991] 4 All ER, 989 (PC).
139
[1994] 3 All ER, 674 (PC).
Lord Lloyd at 773 in Invercargill City Council v Hamlin [1996] 1 All ER, 773 (PC). He goes on, ‘whether
Pirelli should still be regarded as good law in England is not for their Lordships to say. What is clear is that it is
not good law in New Zealand.’
140
141
Martin, op. cit., at p. 95.
142
Örücü (1999), op. cit., at p. 257. See, for example, Larner v British Streel plc [1993] 4 All ER, 102 (CA)
where at 113: ‘I recognise the importance of construing statutory provisions applicable both sides of the border
in a consistent fashion, but ...’. Also see cases cited and the point made by Lord Bingham, ‘“There is a World
Elsewhere”: The Changing Perspectives of English Law’, (1992) 41 ICLQ, 517.
143
Örücü (1999), op. cit., at p. 273. See also Hector v Attorney General of Antigua and Barbuda and others
[1990] 2 All ER, 303 (PC).
See C. Mubirimusoke, ‘Application of the Received Law of Torts in East Africa and the Problem of
Transplanting Legal Norms’, in: T.W. Bechtler (ed.), Law in a Social Context: Liber Amicorum Honouring
Prof. Lon L. Fuller (Deventer: Kluwer, 1978), pp. 127-188.
144
becoming the prevailing view in the Privy Council.145
Robyn Martin calls the Privy Council ‘postmodern’ as she analyses the case
Invercargill City Council v Hamlin,146 where conflicting commonwealth approaches
presented themselves for reconciliation.147 Though the unification of common law in the
commonwealth was once seen as important for the preservation of English law, and therefore
led to the bringing into line of diverging commonwealth approaches, now the Privy Council
not only recognises, but values difference:
The ability of the common law to adapt itself to the differing circumstances of the countries in which it
has taken root is not a weakness, but one of its strengths. Were it not so, the common law would not
have flourished as it has, with all the common law countries learning from each other ... the Court of
Appeal of New Zealand should not be deflected from developing the common law of New Zealand
(nor the Board from affirming their decision) by the consideration that the House of Lords ... have not
regarded an identical development as appropriate in the English setting. ... The particular branch of law
of negligence with which the present appeal is concerned is especially unsuited for the imposition of a
single monolithic solution.148
In this field, the commonwealth jurisdictions followed their own paths, a uniform common
law was seen as unattainable and the Privy Council did not regard it proper to interfere since
the differences were diagnosed as resting on different policy considerations. Martin observes
that:
one further concern raised by Invercargill is the future of Privy Council appeals, at least from countries
other than British-dependent territories. If it is now recognised that there is no uniform common law,
that differing social conditions in the commonwealth jurisdictions have led the law to diverge, is there
any longer any point in the expense, delay and effort involved in taking an appeal to the Privy Council?
The Privy Council admitted to its general ignorance of New Zealand culture and relied upon the New
Zealand Court of Appeal as to the expectations and needs of New Zealand society. Once it is conceded
that those expectations and needs must be reflected in the law, it is the final court of appeal within New
Zealand that is in the best position to determine the direction of the law. 149
It is interesting to note that now the Privy Council recognises that the strength of the common
law does not lie in its conformity but in its ability to adapt to changing circumstances. It is
asserted that the common law can only benefit from this plurality of approach. This is in
sharp contrast to the view expressed by the ‘convergence theorists’ analysing the relationship
between the common law and the civil law traditions within the new ius commune in Europe.
This issue has already been referred to above. While one unity, the commonwealth, moves to
appreciate diversity, another diversity, the European Union, is moving towards the
achievement of uniformity. This again sends us back to our concern with ‘harmony within
diversity’ rather than ‘harmonisation by eliminating differences’, discussed above. Recently
Teubner remarked:
145
For earlier and very different views see Tai Hing Cotton Mills v Liu Chong Hing Bank [1985] 3 WLR 317
and Edward Wong Finance Co. Ltd. v Johnson, Stokes and Master [1984] 2 WLR, 1.
146
[1996] 2 WLR, 367.
147
Martin, op. cit., at p. 95.
Per Lord Lloyd Berwick, at p. 376, [1996] 2 WLR, 367. It is further stated that ‘a monolithic uniformity
might be destructive of the individual development of a distinct common law system’.
148
149
Martin, op. cit., at p. 101.
Perhaps the young emerging network of European Nations may learn a lesson from the experience of
another, a bit older, federation of nations, the Commonwealth. Recently the Privy Council allowed for
the possibility that a House of Lords decision about the general clause of negligence need not be
adapted throughout the Commonwealth if this were not warranted by the ‘general pattern of
socio-economic behaviour’. This sounds a bit like the diversity of production regimes: a general legal
principle allows for diversity of concrete decisions once it is respecified in different social and
economic cultural contexts. This is not a question of Euro-philia or Euro-phobia, rather a question of
Euro-paradoxia, the paradox of the unitas multiplex which requests the integrating law against all the
rhetoric of an ‘ever closer union’ to pay utmost respect to the autonomy and diversity of European
cultures.150
5.3 Encounters at home
Having seen English common law’s encounters with civilian and other legal traditions
abroad, we can now turn to encounters at home. The main encounters the common law
tradition had with the Continental civilian tradition were through the Chancellor’s Court
(Equity), the Court of Admiralty, the Church, judges such as Sir Hale and Lord Holt, and
legal writers such as Bracton and Blackstone. Through the courts mentioned, there has been
an infiltration of civilian concepts and also of structures, institutions and methodology into
the English common law. As for concepts we can cite ‘debitor speciei liberatur casuali
interitu rei’, ‘frustration of contract’, which is similar to ‘clausula rebus sic standibus’, and
as to structures, institutions and methodology, that there is no jury, that there is investigatory
procedure and lack of orality in the Chancellor’s Court. The emergent law of unjust
enrichment was described in terms of quasi-contract in the seventeenth and eighteenth
centuries. In the nineteenth century, Pothier’s analysis of contracts helped shape the classical
English contract doctrine. For example, in Funabaski Sycamore Steamship Co. Ltd. v Owners
of the Steamship White Mountain and others, Dunn J at the Queen’s Bench, 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).’151
Watson refutes the inherent similarity of Roman law and English law put forth by
some writers, and especially by ‘new ius commune seekers’ by analysing a number of areas
such as Roman courts and English courts, the ‘formula’ and the ‘writ’ and the role of the
jurist and the cases. He shows that even in similarities, such as in the area of ‘recovery’ and
the existence of fictions in both laws, there are concealed differences.152 Quoting from
McNair : ‘It may be a paradox, but it seems to be the truth that there is more affinity between
the Roman jurist and the common law lawyer than there is between the Roman jurist and his
modern civilian successor’, Watson says that such an approach is fundamentally misplaced.153
Ibbetson calls the receptions from civil law and Roman law ‘sporadic receptions’, and
instances of ‘civil law based reasoning filtering into common law’.154 He states that ‘the
150
Teubner, op. cit., at p. 31. We have discussed this issue earlier and will return to it later.
151
[1972] 2 All ER, 181.
A. Watson, ‘Roman Law and English Law: Two Patterns of Legal Development’, in: L. Moccia (ed.), Il
diritto privato europeo: Problemi e prospettive, (Milano: Giuffrè, 1993), 9.
152
153
Ibid., at p. 10.
154
Ibbetson, op. cit., at p. 228.
amalgam of these factors ensured that English law was repeatedly, if not constantly, enriched
by ideas drawn from the civilian tradition, so that the caricature of the Common Law
developing in total isolation from the civil law has to be seen as an over-crude generalisation.
Nonetheless, we must beware of going too far in the opposite direction in characterising
English law as just another emanation of the Western European legal tradition based on the
ius commune.’155 Any rules based on Roman law or the later ius commune ‘were immediately
cut off from their roots’. English law received ‘injections’ of Roman law. However, these
were ‘immediately assimilated 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 their roots they cease to be part
of the same culture’.156
Moreover, there was, and is, the constant encounter with the Scottish law and legal
system, which is itself a ‘mixed jurisdiction’ with an underlay of Roman, Dutch and French
law, and a partial overlay of common law. The word ‘partial’ is used advisedly here, since the
Scottish legal system is protected by the Act of Union of 1707. Nevertheless, a strong and
continuous seepage occurs from English law into Scots law, thus, English common law and
the laws of other common law jurisdictions, such as those of Australia, New Zealand and
Canada, create the partial overlay. This state of coexistence within the UK has also led, as
would be expected, to some reverse seepage. The influence is reciprocal. One well-known
example of this reverse seepage is forum non convenience, another is ‘unjust enrichment’.
Further, Scots law has always accepted that a lease may be frustrated though this point was
unresolved in English law; however, this view changed towards the Scottish one in National
Carriers v Panalpina.157 Although references to Scots law are not extensive in England as far
as the English courts are concerned, we can still find Lord Justice Bingham saying:
Eventually, as we know - in no small part due to the work of Lord Goff, both as advocate and judge,
and the wisdom of Lord Diplock - the Scottish rule was adopted in England. But it took three appeals
to the House of Lords to put the law where, one feels, it should always have been and might have been
had English lawyers of the time been willing to look north of the border and acknowledge that
acceptance of jurisdiction by the English court is not necessarily an unmixed blessing for all
concerned.158
The McGregor Contract Code, which will be considered below, marks another serious inroad
into English law by Scottish/civilian legal concepts and solutions, although, of course, it
never saw the light of day in the manner intended.
Common law and the civilian traditions do share sources such as Roman law, canon
law and custom, and many civilian solutions were transplanted into English common law.
Nevertheless, these influences were neither systematic nor did the solutions remain the same
once imported. These solutions, concepts and institutions were developed and modified by
English lawyers. Similar to Ibbetson quoted above, Lewis states that, ‘once the continental
ideas were imported into England, the umbilical cord was cut’.159 The Continental civilian
155
Ibid., at p. 229.
156
Ibid., at pp. 229-230.
157
[1981] A.C., 675. For the influence of Scots law on English law in the field of conflict of laws see A. Watson,
‘Aspects of Reception of Law’, (1996) 44 Am. J. Comp. L., 335, at p. 341.
158
Bingham, op. cit., at p. 517.
159
X. Lewis, ‘Europeanisation of the Common Law’, in: R. Jagtenberg et al., op. cit., 47, at p. 50.
concepts were either like fugitive colours then, or became ‘irritants’ or themselves became
‘contaminated’ by common law.
5.4 Present-day encounters
Having looked briefly at the English common law’s encounters with the civilian tradition in
historical terms, abroad and at home, and before we look at the McGregor Contract Code and
any relations it may have with the European Contract Code, it would be wise to consider the
present-day encounters of English common law within the European Union. Should
European Law be regarded as a ‘corrective’ or a ‘contaminant’ of the common law?160 This
question is worthy of further comment, especially in view of its theoretical importance, and
will be considered later.161 However, should one not assess the consequences of the
encounters within the European Union as instances of ‘reciprocal influence’ or
‘cross-fertilisation’, rather than only consider the contamination of common law by the
civilian input into EC law? Though the answer I would give to this second question is
positive, this study will only concentrate on the changes in English law and legal system
under the impact of these reciprocal influences. Yet, this is one of the questions that must be
dealt with by ‘Critical Comparative Law’ within the framework of Europe.
5.4.1 Convergence: Concepts
Encounters occur at the level of ideas, concepts and solutions and at the level of structures,
institutions and methods. The impact of the civilian tradition on the English common law at
the level of ideas and solutions is inevitable and cannot be resisted as some of these ideas and
solutions enter English law when European Directives are being implemented. This is also
true in view of the International Conventions. One can see, for example in Continental Bank
NA v Aeokos Cia Naviera SA, Steyn J saying:
In construing the 1968 Convention, it is important to put aside preconceptions based on traditional
English rules. The convention is a radical new regime governing the international legal relationships of
the contracting states. ... The genesis of the convention is the jurisprudence of civil law rather than the
common law. Since the original states were all civil law countries ... The idea that a national court has
discretion in the exercise of its jurisdiction does not generally exist in the civilian systems. ... Article 17
follows the civilian approach. Article 17 has mandatory effect. 162
Bingham LJ, in Dresser UK Ltd. and others v Falcongate Management Ltd. and others, The
Duke of Yare,163 opined in the Court of Appeal a very significant view when a previous case
indicating that procedure on the Continent varied from country to country was being
defended as the precedent to be followed:
Mr Leggatt urged that it would be contrary to the ratio of Zelger v Salinitri to force English procedure
into a straight jacket of European design. I agree. 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
N. Grief, ‘The Pervasive Influence of European Community Law in the United Kingdom’, in: Watkin, op.
cit., 90, at p. 110.
160
161
At 5.5 infra.
162
[1994] 2 All ER, 540, at p. 549.
163
[1992] 2 All ER, 450.
tradition, nomenclature or rules developed for other purposes.
‘There 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. But at its irreducible minimum a contract is a
consensual arrangement intended to create legal relations and to be legally enforceable.’164
Here the Court of Appeal is manifesting ‘internationalism’ indeed, though again in relation to
a convention only.
When a civil law maxim is already part of a common law jurisdiction, such as was the
case when a Quebec solution was preferred by the Supreme Court of Canada and then used
by the English Court of Appeal, we read: ‘[I]t would be open to the English courts to apply
the civil law maxim directly to the solution we have in these two appeals, and treat the two
plaintiffs as lives in being at the time of the events which injured them as they were later born
alive, but it is not necessary to do so directly in view of the effect which the Montreal
Tramways case has already had in the development of the common law in this field in other
common law jurisdictions.’165 This case is an interesting example of how an early encounter
with civil law in another common law jurisdiction can indirectly bring the English common
law closer to civil law concepts.
The impact of the decisions of the European Court of Justice is of great importance in
the infiltration of civilian concepts like proportionality, legitimate expectations, the acte
claire doctrine and fundamental rights such as right to privacy, right to family life, freedom
of religion, freedom of expression and the right to pursue a trade into English law. Much has
been written on this topic.166
Grief asks whether in this regard Community law, which he sees as ‘habit forming’, is
‘a corrective (like equity to the common law?) or a contaminant’.167 Other serious concerns
are also voiced at this level of encounters. As an example, the recent discussion on the
concept of ‘good faith’ by Teubner can be mentioned.168 Teubner regards ‘good faith’,
transplanted into the body of British contract law by the 1994 European Consumer Protection
Directive, as an irritant. A ‘legal irritant’ is defined by the author as an alternative to legal
transplants, in that ‘when a foreign rule is imposed on a domestic culture ... something else is
happening. It is not transplanted into another organism, rather it works as a fundamental
irritation which triggers a whole series of new and unexpected events ... it irritates law’s
“binding arrangements”’.169 Documents such as the Principles of European Contract Law and
the UNIDROIT Principles of International Commercial Contracts extend good faith into
other fields. Some, as Teubner, are worried about this development, while others regard it as
a ‘healthy infusion’.170
Teubner does not ask whether the British contract doctrine will reject or integrate
164
Kleinwort Benson Ltd. v Glasgow City Council [1996] 2 All ER, 257, at p. 273.
165
[1992] 3 All ER, 833 per Dillon J.
166
See, for example, Burrows, Lewis, Bell and Grief already referred to.
167
Grief, op. cit., at p. 110. To be discussed further under 5.5. infra.
168
Teubner, op. cit., at p. 11.
169
Ibid., at p. 12, and to be further discussed under 5.5. infra.
170
Ibid., at p. 11.
good faith, but rather ‘What kind of transformation of meaning will the term undergo, how
will its role differ, once it is reconstructed anew under British law?’171 He is of the opinion
that, ‘not only globalising tendencies but also the efforts of Europeanisation of national legal
orders produce new divergences as their unintended consequences’.172 This view is worthy of
further analysis and will be reconsidered later.173
5.4.2 Convergence: Statutory interpretation
At the level of structures, institutions and methods, two areas are worth looking at: statutory
interpretation and codification. Statutory interpretation174 has been fundamentally influenced
by the contact between common law and civil law traditions within the European Union.
Here is an obvious, continuing convergence on the part of the common law towards the
Continental civilian tradition.
Traditionally, British courts look at the words as they appear in legislative enactments
and give the words their ordinary or technical meanings in context. The intention of the
legislature, apart from what is overt in the specific legislation, will not be sought out by the
courts. The relative freedom courts enjoy while dealing with prior cases does not exist when
dealing with statutes, as here the use of analogy or argumentum a contrario is not acceptable.
Furthermore, filing in the lacunae is regarded as ‘usurping the role of the legislator’. The
sequence of methods of interpretation used while construing a statute is literal interpretation,
the ‘golden rule’ and the ‘mischief rule’, the teleological or purposive approach not being
among the classical British tools for interpretation.
As pointed out by Lewis,175 the ‘contrast between the traditional common law
approach to interpretation and the teleological method employed in Community law is shown
up in a dramatic way in Case 156/86 Murphy v An Bord Telecom Eireann, the Irish telephone
company’.176 When the case was referred to the Court of Justice, that Court held that:
It is true that Article 119 expressly requires the application of the principle of equal pay for men and
women solely in the case of equal work or, according to a consistent line of decisions of the Court, in
the case of work of equal value, and not in the case of work of unequal value. Nevertheless, if the
principle forbids workers of one sex engaged in work of equal value to that of workers of the opposite
sex to be paid a lower wage than the latter on grounds of sex, it a fortiori prohibits such a difference in
pay where the lower paid category of workers is engaged in work of higher value. To adopt a contrary
interpretation would be tantamount to rendering the principle of equal pay ineffective and nugatory. 177
Advocate-General Lenz stressed that: ‘The social purpose of the provision would be negated
if Article 119 were not applied to the circumstances of this case. Even the respondent in the
main proceedings has admitted that it is unjust for lower pay to be received for work of
171
Ibid., at p. 12.
172
Ibid., at. p. 13.
173
Under 5.5. and in a different context in section 7 infra, as part of ‘transpositions’.
174
See on this subject, Grief, op. cit., Lewis, op. cit. and Burrows, op. cit.
175
Lewis, op. cit., at p. 52.
176
[1988] ECR 673.
177
[1988] ECR 673, at pp. 689-690.
higher value. Such inequality of treatment based on sex is hardly reconcilable with the social
progress which is one of the aims of the EEC Treaty.’
Judicial adjustment to teleological interpretation was difficult to start with, proving to
be a stumbling block especially in the Court of Appeal. Lord Diplock in the House of Lords
pointed this out: ‘In the Court of Appeal considerable doubt was expressed by that court
whether an absolute prohibition on the import of a particular description of goods could
mount to a quantitative restriction or a measure having equivalent effect, so as to fall within
the ambit of Article 30 at all. That such doubt could be expressed shows the danger of an
English court applying English canons of statutory construction to the interpretation of the
EEC Treaty or, for that matter, of regulations or directives.’178 Lord Diplock then said: ‘The
European court, in contrast to English courts, applies teleological rather than historical
methods to the interpretation of the treaties and other Community legislation. It seeks to give
effect to what it considers to be the spirit rather than the letter of the treaties; sometimes,
indeed, to an English judge, it may seem to the exclusion of the letter.’ The British courts
were also warned by Lord Diplock that, when considering the EC Treaty, the traditional
English methods of interpretation should not be used, and that the Treaty should be
interpreted according to its spirit even when such an approach does not accord with the literal
meaning of the words used.179 Again in 1983 we read: ‘The interpretation of Community
instruments involves very often not the process familiar to common lawyers of laboriously
extracting the meaning from words used but the more creative process of supplying flesh to a
spare and loosely constructed skeleton. The choice between submissions may not turn on
purely legal considerations, but on a broader view of what the orderly development of the
Community requires.’180 Grief181 points to the case Litsler v Forth Dry Dock and Engineering
Co. Ltd.,182 to show the distance which British judges have travelled since the early years of
Community membership, where Lord Oliver stated: ‘If the legislation can reasonably be
construed so as to conform with [Community] obligations - obligations which are to be
ascertained not only from the wording of the relevant Directive but from the interpretation
placed upon it by the European Court of Justice at Luxembourg - such a purposive
interpretation will be applied even though, perhaps, it may involve some departure from the
strict and literal application of the words which the legislature has elected to use.’ Though
this appears as remarkable and alien to the traditions of common law, it relates only to how
British courts should approach Community law and conventions. In relation to Community
law, the national courts, inspired by the Directives and in implementing them, must fill in the
gaps of national legislation, and thus take up the role of the legislator to reach the results
aimed at by Community law.183
What is of extreme importance, however, is how and when this approach becomes
embedded in the consciousness of British judges and used as one of the tools while deciding
cases related purely to domestic law. This development is even more significant as
traditionally it is regarded by the judiciary as taking part in the political process and therefore
178
R v Henn and Darvy [1978] 3 All ER 1190.
179
Henn v Director of Public Prosecutions [1981] A.C. 850 (HL), 904.
180
Customs and Excise Commissioners v Spa Amex [1983] 1 All ER, 1042 (QB), 1056.
181
Grief, op. cit., at p. 93.
182
[1989] 1 All ER, 1134.
183
For some House of Lords cases illustrating the point see Lewis, op. cit., p. 56.
avoided. Though seldom used as yet, and then as a last resort, there are examples of the use
of the teleological approach in purely domestic cases, such as in R v Registrar General ex
parte Smith: ‘This is consistent with the growing tendency perhaps encouraged by Europe,
towards a purposive construction of statutes, at all events if they do not deal with penal or
revenue matters.’184 Judges do now adopt the purposive approach to the interpretation of
statutes outside the Community context. Obviously, some judges are more prepared to go
down this path than others.185
Another and related aspect of statutory interpretation is the consultation of travaux
préparatoires while searching for the true intention of the legislator. As already pointed out,
the traditional common law approach does not allow for such consultation as an aid to
statutory interpretation, since only the expressed will of the legislature is binding. However,
this rule has been somewhat softened. Already in 1977,186 travaux préparatoires were
referred to in order to interpret an English statute teleologically and the principle was further
applied by the House of Lords in 1989.187 The most famous case in this respect is Pepper
(Inspector of Taxes) v Hart in 1993. While relaxing the rules on interpretation and looking to
commonwealth jurisdictions such as Australia and New Zealand for support, Lord
Browne-Wilkinson said in the House of Lords: ‘We have heard no suggestion that recourse to
parliamentary history has significantly increased the cost of litigation in Australia and New
Zealand and I do not believe that it will do so in this country ... other common law
jurisdictions have abandoned the rule without adverse consequences.’188 Judges can now refer
to parliamentary debates and related documents, though this can only be done under certain
conditions.189 Here, the impetus to relax the rule has not come directly from the
‘contaminants’ such as European law and the civilian approach and we can still observe that
the guidance and support for this move is sought from other common law jurisdictions.
Nevertheless, the civilian encounter did play its role and the judicial experience with
Community law must have been a significant contributing factor. In Pepper, the House of
Lords relaxed a judge-made rule, in effect since 1769. However, as pointed out above,
inroads had already been made into this exclusionary rule, for example, in Pickstone v
Freemans plc.190 where, ‘in interpreting a statutory instrument designed to implement the
Equal Pay Directive as construed by the ECJ, the House of Lords had regard to what had
been said by the Minister who initiated the debate on the regulations in question’.191
184
[1991] 2 All ER, 88, at p. 95 (CA).
185
See, for example, Sir Louis Blom-Cooper QC, in R v Newham London Borough Council, Ex parte Dada
[1994] T.L.R. 438 and in R v Bristol City Council, Ex parte Bradic [1995] T.L.R. 57. Also see R v Moore
[1994] T.L.R. 666.
186
Lord Denning in James Buchanan & Co. v Babco Forwarding and Shipping (UK) Ltd., [1977] 1 All ER, 518
(CA).
187
Litsler v Forth Dry Dock & Engineering Co., [1989] 2 WLR, 634 (HL).
188
[1993] 1 All ER 42.
189
Where legislation is ambiguous or obscure, or leads to an absurdity, the material relied on consists of one or
more statements by a Minister or other promoter of the Bill, together with such other parliamentary material as
is necessary to understand such statements and their effect; and the statements relied on are clear. See ibid., at p.
69 (Lord Browne-Wilkinson).
190
[1989] A.C. 66.
191
Grief, op. cit., at p. 94.
In 1994 the Court of Appeal used the possibilities opened up by Pepper v Hart, in R v
Moore in considering the underlying policy of the Criminal Justice Act of 1991. Rather
than adopting a literal reading which would have frustrated the legislative intent, the Court
construed the Act so as not to frustrate that intention, though the 1991 Act was neither
ambiguous nor obscure. Thus 5. 1C(lXa), which read ‘under the following provisions of the
Act’, was construed as ‘under the preceding provisions of this Act’.
The legislator also takes advantage of the teleological approach. Grief193 gives some
examples of this development, such as the Civil Jurisdictions and Judgments Act of 1982,
which provides for its own modification by Order in Council as occasioned by the agreed
revision of the 1968 Brussels Convention (s. 14 of the Act) or the decisions of the ECJ (s. 47
of the Act). The Civil Jurisdictions and Judgments Act 1991 extended this power to enable
statutory modifications to be made to give effect to future revisions of the 1988 Lugano
Convention. Another example, again provided by Grief,194 is the Courts and Legal Services
Act 1990. Section 17(1) defines the objective of Part II of the Act: ‘The general objective of
this Part is the development of legal services in England and Wales (and in particular the
development of advocacy, litigation, conveyancing and probate services) by making
provision for new or better ways of providing such services and a wider choice of persons
providing them, while maintaining the proper and efficient administration of justice.’ Section
18 imposes a duty on any person exercising any function therein, to act in accordance with
the general principle to further the statutory objective as far as is possible and not to act in
any way incompatible with the statutory objective. This example is all the more significant as
the area has no connection with Community law.
These changes in the classical English approach to statutory drafting and construction
may bode well for future pan-European codifications. As is well known, codifications in the
Continental sense need to express rules in more general terms, to use general principles
laying down policies and to employ the purposive, teleological approach in their
interpretation to give continuing life to code provisions. The recent developments in England
related to statutory drafting and interpretation may well be the preliminaries towards
codification in England in the Continental sense. This leads us into the next section.
192
5.4.3 Convergence: Codification
5.4.3.1 Introduction
If a civil code, or codification generally, is taken as a prominent sign of the civilian tradition,
then it might be enlightening to look at codification activities in the common law world and
in England in particular, and specifically at the McGregor Contract Code and its relation, if
any, to a future European Contract Code. Convergence and divergence theorists are busy in
this field, making out, on the one hand, that codification is perfectly feasible in England and
on the other, that Continental type Codes cannot work in common law surroundings. Then, of
course, there are the opponents of codification per se, who see it as unsuitable for our swiftly
evolving and changing socio-cultural world by pointing to problems of monolithism, fluidity
and flexibility, and advocating other methods than the legislative to create convergence, if
desired.
192
[1994] T.L.R. 666.
193
Grief, op. cit., at pp. 96-97.
194
Ibid., at p. 97.
In this section, codifications in England and in systems where English law played a
role will be considered first. Next, the McGregor Contract Code will be assessed and then the
feasibility or success of the coexistence of common law and civil law within a code will be
commented upon. Lastly, the Principles of European Contract Law will be considered from
the point of view of the English position and the future of European Codes looked at from the
same perspective.
As noted earlier, in its colonial relationships, not only did English common law live
alongside pre-existing Codes such as in Seychelles or St. Lucia, but it was itself codified as it
was introduced, for example, in India.
5.4.3.2 The Law Commission
In 1965 the Law Commission for England and Wales was given the duty of reviewing the
law ‘with a view of its systematic development and reform, including in particular the
codification of the law ... and generally the simplification and modernisation of the law’.195
From this statement we can glean that Parliament sees codification as relating to
simplification and modernisation of the law. If the Law Commission considers codification
appropriate, then it can make a recommendation to the Lord Chancellor. The Law
Commission itself need not be the body to carry out the recommendation. Dame Mary Arden,
the former Chairman of the Law Commission for England and Wales, said that ‘Parliament
has not, however, vouchsafed us a definition of codification, and English law is not exactly
replete with examples of written law called “codes”’.196 In answering the question ‘What is
codification?’, she gave this definition, which portrays the English understanding of the
process:
In its most extreme form, codification is the process of expressing the whole of the law on a particular
topic so that any development of that law has in general to be by way of interpretation of it or
deduction from it. The principal difference between a code and, for example, the Unfair Contract Term
Act 1977 is that the whole of the law on a recognisable division of law, such as obligations or contract
law, is put into a code. The French Code civil or the German Commercial Code are examples of codes
of this kind. So far as I am aware, there are no codes of this kind in English law. Even if all the
companies legislation was to be consolidated into a single statute, there would still not be a
comprehensive companies code because there are substantial areas of the law, such as the duties of
directors, which have not been put into the legislation and which are not simply a matter of deduction
from it. Then there are the less comprehensive codes - the consumer credit legislation, the Sale of
Goods Act 1893, the Bill of Exchange Act 1882, the Married Women’s Property Act 1882 and the
Marine Insurance Act 1906. These codes satisfy the dictionary definition of code (a systematic
collection of statutes, a body of laws so arranged as to avoid inconsistency and overlapping: a set of
rules on any subject ... Concise Oxford Dictionary 8th edn. 1990) even though they cover a relatively
limited area because they nonetheless constitute a set of systematic rules on a particular subject. The
Children Act 1989, which, inter alia, implemented a Law Commission report, brings together all the
law on children apart from adoption, and is therefore a form of code. An Act which is the principal
source of law on a particular topic is a code in this wider sense. 197
She went on to say that ‘Codes can be classified not only according to their status and
coverage, but also according to the type of law reform they seek to achieve. It is often
thought that a code has to be a piece of substantially new law but there is no reason why that
195
Law Commission Act 1965 section 3 (l). The same applies to the Law Commission for Scotland.
196
Arden, op. cit., at p. 516.
197
Ibid., at pp. 516-517.
need be so.’198
Though there has always been and there still is strong hostility to codification in the
common law world,199 it cannot be claimed that there were no codifications, albeit not
typically Continental in character, in the history of the common law. Neither can it be said
that there are no proponents of it. Arden says:
No one doubts of course the genius of the common law. It is an invaluable method of developing law to
meet proven need and it has the advantage that it is tested against real life situations. But there are
limits on its ability to develop the law. For instance, common law process is restricted by the doctrine
of precedent and by the unwritten limits on judicial legislation. The limitations on the common law
method is one of the reasons why a developed modern society like ours needs a Law Commission
which can undertake extensive reviews of large areas of outdated law. ... It is important to emphasise
that it is not being suggested that codification should be attempted where the law on a particular topic
is still in a fluid form to a significant extent. 200
Many members of the Law Commission have fears about the effect of codification as
expressed by Andrew Burrows:
I should explain that, perhaps oddly for a Law Commissioner, I am not a great fan of legislative reform
of the non-criminal common law. I have too much faith in the judiciary, and too much love of the
deductive technique of the common law development to wish to see the law frozen by widespread
legislative intervention. In my view legislative reform of the law of obligations ought normally to be
confined to situations where the law is either already based on statute, or where the common law has
plainly taken a wrong turn so that, short of waiting for the enlightened decision of the House of Lords,
there is no other way of getting the law back on the right track. 201
In the USA, a variety of Codes exists such as the Uniform Commercial Code, which is a
model law, first produced in 1951, the Louisiana Civil Code, the Californian Civil Code and
in Australia, it is possible to talk of Code States where, for example, the Criminal Law is
codified. A detailed evaluation of all the codification activities in the common law world is
beyond the scope of this study. Here I will mention the three areas in English law,
commercial law, criminal law and contract law where the debate on codification is centred.
These areas also have implications for pan-European codifications.
5.4.3.3 Commercial Code
As far as commercial law is concerned, the first attempts at codifying date back to 1882 to
the Bills of Exchange Act, the Sale of Goods Act 1893 and the Marine Insurance Act 1906,
all prepared by Sir Mackenzie Chalmers. The aims were to create greater certainty and to
simplify the process of legal reasoning. Arden says: ‘As far as I have been able to ascertain,
the Acts drafted by Chalmers are the only three English Acts of Parliament which include the
words “to codify” in their long title.’202 Another codifier was Sir Frederick Pollock, who
prepared the Partnership Act of 1890.
198
Ibid., at p. 518.
H.R. Hahlo, ‘... And Save Us from Codification’, (1960) 77 South African Law Journal, 432- 437; H.R.
Hahlo, ‘Here Lies Common Law: Rest in Peace’, (1967) 30 MLR, 241; H.R. Hahlo, ‘Codifying the Common
Law: Protracted Gestation’, (1975) 38 MLR.
199
200
Arden, op. cit., at p. 530.
A. Burrows, ‘Legislative Reform of Remedies for Breach of Contract: The English Perspective’, (1997) ELR,
155, at p. 156.
201
202
Arden, op. cit., footnote 13 at p. 521.
Although the Law Commission has been working on codifications generally, no new
Commercial Code has been produced. However, a very important development has recently
come to fruition; the production of the Arbitration Act 1996 means that another area of
common law has been codified. This Act, expressed in clear terms, restates existing statute
law, resolves uncertainties in case law reversing it on some questions, and alters the law by
introducing some of the provisions of the UNCITRAL Model Law. ‘The purpose of the Act
was to update and modernise arbitration law and at the same time make London an attractive
venue for international arbitration.’203
Through piecemeal codifications then, some areas of commercial law have been
codified. These Parliamentary interventions have not been counter-productive as feared by
those who adhere to the view that only the genius of the common law method provides
flexibility and response to needs without stifling the ability of judges to develop the law.
Whether one day all will be gathered under the title of a Commercial Code in the Continental
sense is, however, very dubious. According to Arden,204certain requirements have to be met if
codification is to be successfully achieved: the area of codification must be identified by the
commercial community; experts must undertake the basic work; proposals must be developed
with consultation with the relevant Government Department; Parliamentary Counsel putting
the proposal in legislative form, with clear language and permitting creative interpretation,
must work with the experts; there should be extensive public consultation; appropriate
drafting conventions must be used; the Committee of the House of Parliament must be able to
receive oral and written evidence from experts; and finally, there must be some means of
monitoring the operation of the code with a method for introducing amendments whenever
new situations arise or to reflect case law built around the code.
5.4.3.4 Criminal Code
As to the Criminal Code, the picture is rather bleak. English criminal law is fragmented,
unclear and inconsistent, some offences being governed by common law and others by
statute. In 1878 James Fitzjames Stephen drafted a Criminal Code for England. A Royal
Commission recommended the adoption of this as the Criminal Code in 1879 but it did not
materialise. As pointed out by Cadoppi, Stephen was well aware of the different approaches
to statutory drafting in existence on the Continent and in Britain, and deliberately avoided
choosing the French Code pénal as his model while framing his Draft Criminal Code.205
Another Draft Criminal Code was published by the Law Commission in 1985 and was
revised and extended in 1989. This was not a complete code and did not deal with all
offences at this time, though it contained general principles on liability as well as a number of
substantive offences. The Code restated existing law with some changes to resolve the
inconsistencies. It also modernised the language. As Parliament was not interested in the
codification of criminal law, the Law Commission decided to deal with specific offences
only, while at the same time working on general principles. However, according to Arden, ‘it
remains the view of the Commission that in the interests of fairness, certainty, accessibility,
coherence and consistency there is an urgent need for a Criminal Code. That can only be
achieved by codification. It cannot be done by the courts alone.’206 In this, there is support
203
Ibid., at p. 530.
204
Ibid., at p. 535.
205
A. Cadoppi, ‘Towards a European Criminal Code’, in: Watkin, op. cit., 143, at p. 157.
206
Arden, op. cit., at p. 524.
from even the members who do not appreciate legislative intervention into common law, as
seen earlier. Cadoppi says that ‘the existence of the English Draft Criminal Code of 1989 will
make the future codification of European criminal law much easier.’207
English and Scottish criminal laws prove to be the exceptions rather than the rule in
the common law world in the area of criminal law, as most other common law jurisdictions
have Criminal Codes. However, in Australia also, there are some common law states
following the English system as opposed to the Code states where criminal law is codified.208
Here criminal law relies on common law and statutes dealing with specific offences. The
Criminal Codes of the Code states are ‘in some ways comparable to a Continental Criminal
Code’.209 There is a difference between common law states and Code states in the field of
criminal law, with English criminal law penetrating much more easily into the common law
states. The ensuing anomaly has been dealt with at the Federal level. A Model Criminal Code
is being prepared and its general part has now become the Criminal Code Bill 1994. Whether
individual states will embrace this development is yet to be seen. At least, the different
criminal laws may be harmonised.
While looking at the feasibility of a European Criminal Code, Cadoppi considers the
Canadian example where the provinces have delegated their competence in this field to the
Federal Government, themselves only being able to create quasi-criminal offences.
According to Cadoppi, the Canadian system works better than the Australian and the
American because the Canadian Supreme Court operates more smoothly as the result of the
unity of the system.
Cadoppi also draws attention to the reasons for the failure of the attempts at the
codification of criminal law in the UK and says that the Criminal Code drafted by Stephen
and revised in 1879 by a Commission never came into force because of the laziness and
conservatism of practising lawyers and judges, as ‘lawyers tend to be conservative about their
systems even in the face of the superior needs of society’.210
5.4.3.5 Contract Code
In his preface to the published version of McGregor’s Contract Code in 1993, Gandolfi
states, ‘as recently as two or three years ago, only a few experts - on the Continent at least knew that this project for a contract code existed’,211 and he compares it to the landing of the
Apollo 11 team on the moon. He sees it as an event ‘that seemed beyond the imagination just
a few decades ago’. The existence and the contents of this Contract Code was revealed on the
Continent at a meeting ‘The Future European Code of Contract’ in Pavia in 1990. Gandolfi
states that the jurists ‘realised that a kind of fruitful osmosis between those different systems
that had come to maturity on either side of the Channel and had remained in opposition for
centuries was at last feasible’.212
Can this project really be compared to ‘the fall of the Berlin wall which is a symbol of
207
Cadoppi, op. cit., at p. 163.
208
Victoria, North South Wales and South Australia.
209
Cadoppi, op. cit., at p. 145.
210
Ibid., at p. 151. Also see J.C. Smith, ‘Codification of the Criminal Law’, (1987) Denning L.J., 137-150.
211
G. Gandolfi, ‘Prefazione’, in: H. McGregor, Contract Code (Milano: Giuffrè, 1993), p. vi.
212
Ibid.
the end of the political opposition of national blocks’213 when in Britain this Code is even less
well known than on the Continent, since it was never published in Britain and the Law
Commission gave up the project in 1972, and the Lando Committee did not use it even as a
source of inspiration for the Principles of European Contract Law?
Codification of the law of contract was in the first programme of law reform of the
Law Commission, the intention being to carry out the project jointly with the Scottish Law
Commission and to produce a Contract Code to apply to Scotland as well as England and
Wales. McGregor QC became the consultant for the project in 1966 and produced a number
of drafts with commentary. According to Arden, the purpose of these drafts was to reform the
law rather than to restate it and had serious implications for the Sale of Goods Act 1893 now the Sale of Goods Act 1979. ‘The McGregor Code was only a draft. Current Law
Commission methodology involves extensive public consultation. ... It may very well be that
the draft Code would have been amended after consultation.’214
Moreover, there were fundamental differences of opinion between the two
Commissions and in 1971 the Scottish Law Commission withdrew from the project. As a
result, the Law Commission first reassessed its plan to produce a Code, suspended the work
in 1972 and then adopted a topic-by-topic approach exposed in its Eighth Annual Report.
Consultation papers on more limited areas such as exemption clauses, minors’ contracts, the
sale and supply of goods, sale of goods and contracts for the benefit of third parties were
published over a period of twenty years. A number of these projects came to fruition through
individual Acts such as Supply of Goods (Implied Terms) Act 1973, Unfair Contract Terms
Act 1977, Minors’ Contracts Act 1987, Sale and Supply of Goods Act 1994 and Sale of
Goods (Amendment Act) 1995. This development fits in with the traditional casuistic
character of statutory drafting in Britain. Arden says that ‘the Law Commission never
reached the stage when it could publish the [McGregor] Contract Code although
Parliamentary Counsel at the Commission spent a considerable time casting it into a form
that might ultimately be suitable for a Bill’.215
The facts that both the Law Commission in England and the Scottish Law
Commission initially considered contract law a priority area for codification, an idea later
abandoned, and that they asked a single jurist to draft the Code, choosing McGregor, a
scholar, practitioner and the Head of Legal Chambers in London, may be regarded as
important signs that this could be the beginning of a constructive dialogue between common
law and civil law. Of course, it must be remembered that historically the law of obligations in
England was overtly influenced by French law, especially by Poitier. This was much more
the case in Scotland. It must also be remembered, however, that statutory law, specifically
codifications of large areas of law, never fitted in with the mentalité of common lawyers. So
it is not the substantive reform itself that is of most significance here but the technique and
method in which it was envisaged. This points to the osmosis that is referred to by Gandolfi.
Nevertheless, it must further be remembered that nothing has changed in spite of the
existence of this unofficial Code, although it has been suggested, as seen above, that the
presence of the Code may create an easier and smoother passage into a European Contract
Code when and if it comes. Continental jurists are looking for a significant common law
contribution to this project. The common law contribution into the Lando Code will be
touched upon below.
213
Ibid., at p. v.
214
Arden, op. cit., at p. 527.
215
Ibid.
McGregor was asked to prepare a draft Code, based on, but not restricted by, current
English law and later also by Scottish law. For over six years McGregor prepared drafts
which were discussed with Commissioners and an advisory panel of outside experts. As will
be seen below, the draft moved English law substantially in the direction of Scots law by, for
example, recognising the rights of third parties and abolishing the doctrine of consideration.
This Code puts rules inferred from decision, which make up a large part of English law of
contract, into a comprehensive, cohesive and systematic whole. In this it is a Code, but it is
not complete as compared to a Continental Civil Code, and has thus far 193 sections!
According to McGregor, in its published form it should be regarded as a ‘period
piece’ since, apart from indicating in footnotes any changes to English and Scots law in the
ensuing years, the Code is a product of 1972.216 He also states that his intension was ‘to deal,
first and separately, with the contract between two parties, which represents the norm in
contractual relationships - the contract in which there are no defects, initial or supervening,
other than breach itself, and in which there are no third parties involved. Defective
agreements and third-party situations are given independent treatment.’217
The Code has an introductory part, where contract is defined and agreements which
are contracts are indicated. Part I, Valid Contracts, deals with Formation (agreement,
certainty, form), Content, Performance, Breach and Remedies (specific enforcement, restraint
of breach, damages, restitution, declarations, interrelation of remedies). Part II, Defective
Contracts, covers an Introductory, Contracts affected by public policy (illegal contracts, other
contracts affected by public policy), Contracts lacking formalities, Contracts lacking capacity
(minors, persons mentally affected), Contracts lacking free consent, Contracts lacking full
consent, Contracts initially affected by common mistake and Contracts subsequently
frustrated. Part III, Three Party Situations, deals with Multiple party contracts, Contracts
concluded through agents, Creation of rights and duties in third parties by contract and
Transfer of contractual rights and duties. The Introductory Part has 2 sections, Part I 103, Part
II 55 and Part III 33. Thus, although the gaps in the numbering suggest that there is scope for
many more additions to make up an impressive 673 sections, there are actually only 193
sections, as already noted.
Let us now turn to an in-depth analysis of the contents of this Code from the point of
view of the interests of this study.
McGregor takes inspiration from two Conventions, the Uniform Law on the
Formation of Contracts for the International Sale of Goods and the Uniform Law on the
International Sale of Goods, both given effect by the Uniform Laws of International Sales
Act 1967 by Schedule 2 and 1 respectively. Other sources of inspiration are the Uniform
Commercial Code of the United States and the American Restatement of Contract. Section 25
of the Code on ‘late and imperfect acceptance’ somewhat expands article 9(1) of Schedule 2.
Section 303 on ‘anticipation of non-performance’ adopts this doctrine also put forward by the
Convention. In the area of ‘general rules as to the assessment of damages’, section 434 ‘basic
measure: loss of bargain’ is again thus inspired. Section 13 ‘agreement without offer and
acceptance’, section 304 ‘failure to give assurance of performance’, section 401 ‘entitlement
as of right’ and section 408 ‘hardship out of proportion to benefit of performance’ use the
Uniform Commercial Code of the United States as support. In dealing with ‘persons mentally
affected’, section 551 ‘general rule where no court control’ discards the conventional test in
favour of the test put forward in this section, in conformity with that propounded by the
American Restatement of Contract (Second) section 18 C.
216
H. McGregor, Contract Code (Milano: Giuffrè, 1993), p. xxiv.
217
Ibid., at pp. xxiv-xxv.
The Code is intended to create greater harmony with the Continental systems and to
this end proposes fundamental change. For example, section 19 ‘revocation’ introduces two
exceptions to the current English rule that all offers are revocable up to the time of
acceptance. Subsection (1), which requires that to be effective a communication of
acceptance must have reached the offeror, brings the law into ‘greater harmony with
Continental systems and expresses, we believe, a result of which the businessman would
approve’.218 Again, the conventional English rule that performance must be made according
to the method agreed by the contracting parties is preserved but there is a superimposed
requirement by the Code of ‘good faith’ in performance.219
Sometimes McGregor departs both from Scots law and from English law, such as
when in section 23 ‘time when acceptance takes effect’, a simple and straightforward rule
that a communication of assent is necessary for an effective acceptance is adopted abolishing
‘the postal rule’ whereby an acceptance by post or by telegram is complete when the letter is
posted and when the telegram is handed in or telephoned in to the Post Office.220 Another
example of such departure is when section 110 ‘oral evidence that contract inaccurately
reduced to writing’, does not attempt to deal with the procedural differences between the two
systems on rectification but instead proposes a solution which goes beyond either.221
Sometimes a doctrine such as the ‘doctrine of anticipatory breach’, part of the English
law of contract for over a century which also appears to be accepted by Scotland, is kept,
though reformed, in spite of existing criticism and incompatibility with other legal systems
such as the French. The commentary states that, ‘Although the doctrine has met with
criticism at the theoretical level, it is retained by the Code because of its practical merit in
allowing the aggrieved party to resolve the matter speedily and so minimise his loss.’222
Some changes indicate that existing legislation should be revised. This is the case in
‘substantial breach’ where it is proposed to effect a drastic amalgamation of all the variations
in the remedies available and to totally discard the concepts of ‘dependent promises’ and
‘entire contracts’ unknown in many legal systems.223 In the same vein, ‘repudiation’, the
common law term, and ‘rescission’, the term of equity, and ‘rejected’, a term of the sale of
goods, are eliminated from the Code. The commentary states that ‘if this approach is adopted
it will clearly be desirable to revise existing statutes such as the Sale of Goods Act 1893 [now
of 1979] and the Hire Purchase Act 1965 and the Hire Purchase (Scotland) Act 1965’.224
Some provisions have to be repealed, such as section 6 of the Sale of Goods Act 1893 [now
1979], since under the Code, the contract is not void for initial impossibility of performance
where the goods have physically perished before the contract was made.225
Occasionally, rules whose existence is found to be due to historical accidents are
removed, such as the English rule that a claimant is not entitled to damages for the loss of his
218
Ibid., at p. 15.
219
Section 201 ‘method of performance’, ibid., at p. 50.
220
Ibid., at pp. 22-23.
221
Ibid., at p. 47.
222
Ibid., at p.74.
223
Ibid., at pp. 80-82, section 306.
224
Ibid., at p. 82.
225
Ibid., at p. 239, section 582.
bargain in the area of ‘basic measure: loss of bargain’ (section 434). This limitation was
imposed by a rule in Bain v Fothergill,226 which allows a buyer or lessee of land to claim
only his expenditures against the seller or lessor unable to complete through a defect in title.
The commentary states: ‘It is considered that this exceptional rule should no longer be the
law. In large measure the rule owes its present existence to the historical accident that it was
established long before the general rules of contract damages.’227
Further, the Code puts an end to the discretionary character of the remedy of ‘specific
enforcement’, a name introduced by McGregor, to replace the terms ‘specific performance’
in England and ‘specific implement’ in Scotland.228 This remedy is no more to have a
secondary and supplementary character as in English law, thus bringing English law into line
with that of Scotland.229
English law is also brought into line with Scots law when the Code prefers the Scots
law term ‘minor’ over the former English term ‘infant’ - ‘minor’ now being adopted in other
English Statutes such as the Family Law Reform Act 1969. However, the Scots distinction of
‘minor’ and ‘pupil’ also disappears.230 In the area of ‘contracts lacking capacity’, McGregor
says:
The Code’s basic approach is to jettison the distinctions currently drawn by both legal systems.
Distinctions between types of contract appear to have little to justify them and add only an unnecessary
complexity to the law: it is significant that Scotland has managed without them. Conversely, the fact
that England has dispensed with distinctions based upon age groups and adult participation rather
indicates that they too savour of unnecessary complexity: indeed that Scots law allows reduction of
nearly all contracts on the ground of lesion during the quadriennium utile rather suggests a lack of
conviction in the real utility of these distinctions. 231
Another substitution is ‘restraint of breach’ to replace ‘injunction’ in English law and
‘interdict’ in Scots law. McGregor says that neither term very clearly expresses the real
function of the remedy and at the same time covers instances outside contracts.232 Again, the
term ‘homologation of contracts’ in Scots law and ‘ratification of the contract’ in English law
are replaced by the term ‘affirmation’, thought to be more easily understandable to both
lawyers and laymen.233
The Code prefers the basic Scots approach which requires ‘any minor who is lucratus
to pay for the benefit conferred upon him’.234 Indeed, on some occasions a Scots solution
226
(1874) L.R. 7 H.L. 158.
227
McGregor, op. cit., at p. 115.
228
Section 401 ‘entitlement as of right’.
Ibid., at p. 87. For interesting developments see the supermarket cases analysed in E. Örücü, ‘Courts in
Contract Law under Economic Pressure: A Comparatist’s View’ in: G. von Wangenheim (ed.) Discussion
Papers on Law and Economics, Vol. I (Hamburg: ERASMUS Programme in Law and Economics, 1997), pp.
67-82.
229
230
McGregor, op. cit., at p. 197.
231
Ibid., at p. 200.
232
Section 421 ‘general rule as to availability of restraint of breach, ibid., at pp. 105-106.
233
Section 545 ‘enforceability of affirmation’, ibid., at p. 209.
234
Section 543 ‘rights of restitution’, ibid., at pp. 206-207.
regarded as ‘eminently preferable’, appears in the Code, such as in the case of ‘joint
promisors as well as joint and several promisors’ under section 604 ‘consequences of
promises of the same performance’. Current English law, where two or more promisors are
jointly liable, requires action to be brought against all together. English law also regards the
release of one promisor as effective on the release of the others, whether the promise is ‘joint’
or ‘joint and several’. The Code removes the English distinction between ‘joint promises’ and
‘joint and several promises’ as the English rule is seen to be impractical particularly in
contracts between businessmen.235
As noted earlier, in many instances the aim is to harmonise English and Scots law
such as in section 106 ‘gradation of promises and obligations’. Here it is done ‘by removing
from English law the tendency to categorise obligations at the formation stage, as opposed to
the stage of performance, and to distinguish between “conditions”, “warranties” and
“fundamental terms”’.236
Sometimes English law is not only brought into line with Scots law, but also with
methods to be found in Continental codes such as, for example, section 402 ‘terms,
conditions and enforcement order’, also to be found in German law.237
As to the rules on agreed damages ‘greater than loss’, McGregor considers German
and South African laws extensively and suggests that England and Scotland should adopt a
similar rule; a case, Robophone Facilities v Blank [1966] 3 All ER 128 (C.A.) at 143 already
indicating that this may be the law in England.238 This is section 445 ‘agreed damages greater
than loss’ where, when there is an agreed sum, the legitimate and rightful interests of the
victim of the breach are to be taken into account in determining the extent of the loss.
McGregor often suggests useful simplification of the present English law, such as in
section 515 ‘enforcement and restitution where one party innocent of the illegality’. Under
current English law, ‘a contracting party who is innocent of the illegality is sometimes and is
sometimes not debarred from suing the other party who is aware of the illegality. ... All these
distinctions are technical and appear to be devoid of intrinsic merit ...’239 The Code adopts the
basic rule that the innocent party is entitled to sue and then introduces qualifications. Another
example to such simplification is, as already discussed above, the rule abolishing the ‘postal
rule’ and introducing the concept of ‘communication’.240
At times, some comfort is offered by reiterating that other common law jurisdictions
have statutorily adopted a solution along similar lines to the one suggested by the Code. An
example of this is the reference to New Zealand, where a solution along similar lines
proposed by section 519 ‘enforcement of part of illegal contract’, was adopted in relation to
contracts containing covenants in restraint of trade.241 At times another common law
jurisdiction offers a replacement, such as when the American rule on persons mentally
affected is preferred: ‘Accordingly, the conventional test has been discarded in favour of the
235
This has been legislatively abolished by the Civil Liability (Contribution) Act 1978, sections 3 and 7 (1).
236
McGregor, op. cit., at p. 43.
237
The German Code of Civil Procedure, article 887.
238
McGregor, op. cit., at p. 136.
239
Ibid., at p. 180.
240
Ibid., at pp. 22-23, section 23.
241
Section 8 of the Illegal Contracts Act 1970.
test put forward in this section, which test is in conformity with that recently propounded by
the Restatement of Contract (Second) section 18C and applied by the New York Court of
Appeals in Ortelere v Teachers’ Retirement Board 25 N.Y. 2nd 196, 250 N.E. 2nd 460
(1969).’242
Discussing ‘contracts lacking free consent’ (section 561), however, McGregor says:
‘Current English law says that the contract is voidable, current Scots law that it is void in the
case of force or fear though accepting that it is voidable - reducible in Scots terminology - in
the case of undue influence; of the two the Code adopts, in effect, the English solution
although discarding the terminology.’243
Sometimes there is clear departure from settled common law. ‘It would appear to
follow that the guarantor of a minor should remain liable even if the minor can plead his
minority as a defence, and this result is reached in Scotland: see Stevenson v Adair (1872) 10
M. 919. The contrary English decision in Coutts v Browne-Lecky [1947] K.B. 104 is
accordingly expressly departed from in the Code.’244 Furthermore, ‘the technical rule of
English law that the principal whose agent makes a contract under seal does not himself
contract - a rule already made inapplicable to powers of attorney by section 123 (1) of the
Law of Property Act 1925 and finding no place in Scots law - is abandoned by the Code.’245
Privity of contract is abolished by section 641 ‘creation of rights in third parties’. This
can be regarded as revolutionary. Not only is English law brought into line with Scots law
here, but the law of Scotland is also amended. The commentary states:
English law, unlike Scots law, has stubbornly clung to the general principle that ... if a person is not a
party to a contract he can acquire no rights under it. ... The inconvenience of such a restrictive rule has
led both to attempts to bypass it, particularly by resort to the concept of trust, and to the introduction of
wide-ranging statutory exceptions. Other major legal systems have found no need for the rule. In the
civil law the stipulation pour autrui is fully recognised; thus this issue marks one of the main
differences between the Scottish and the English law of contract. Some systems derived from the
English common law have also thrown off the English yoke here; thus in the U.S.A. the rights of third
parties have been recognised since ...246
The commentary goes on to say that: ‘Current English law is clearly out of step both with
modern practice and with good sense, and in this section the Code seeks to remedy this and to
bring English law into line with Scottish, while at the same time clarifying and amending the
law of Scotland in certain respects.’247
So, in many ways, had the McGregor Code become a Contract Code for England and
Scotland, it would have meant that an enormous upheaval had taken place in one of the most
important areas of English private law, one which is predominantly based on common law.
English law would have abandoned some of its peculiarities altogether. In some areas, it
would have been harmonised with Scots law deserting its own settled position. In other areas,
it would have been infiltrated by International Conventions and foreign jurisdictions, not only
those of the U.S.A., a common law jurisdiction, or South Africa, a mixed jurisdiction, but
242
McGregor, op. cit., at p. 214.
243
Ibid., at p. 219.
244
Section 604 ‘consequences of promises of the same performance’, ibid., at pp. 266-269.
245
Section 621 ‘agent with authority to contract’, ibid., at p. 275.
246
Ibid., at pp. 285-286.
247
Ibid.
also those of Germany and France. This, however, is one of the ‘ifs and buts’ situations.248
Not only was this Code abandoned by the Law Commission but it did not introduce any
changes into English law whatsoever.
Nevertheless, the fact that the codification of contract law was considered to be a
desirable objective and appeared a priority activity for both Law Commissions from 1965 to
1973, must indicate something significant. This makes McGregor’s Code important. It is also
important in that it demonstrates how common law and Continental civil law concepts can
live not only side by side but in fruitful interrelationship. Granted it does not read like a
Continental Code and is far too long by that comparison, yet it does fulfil some of the
conditions of codification, such as simplification, cohesiveness and systematisation. Anyone
familiar with English and Scottish contract law must appreciate that this was a mammoth task
dexterously performed. A third reason for its importance is the impact it made on some
Continental lawyers who could now reapproach English contract law as a more familiar and
user-friendly topic than ever before.
What is significant here is not so much the content of the Code, though in places that
too is important as it indicates a movement towards civilian solutions and concepts, but the
methodology and the structural approach employed. It is for this that the Code is of interest.
Yet, this Code did not serve as a basis for the Principles of European Contract Law, nor was
it ever referred to by the Lando Commission, although it was hailed with considerable
enthusiasm by the Gandolfi project.
As to later developments, the English Law Commission and the legislator introduced
some changes into contract law along the lines of the proposals of this Code soon after
abandoning the project, such as in the Unfair Contract Terms Act 1977, which transformed
the law in the area of exemption clauses and contracting out, by a general and far-reaching
legislative enactment replacing the ‘particular and spasmodic legislative interventions’.249
Another example of this is in the Law Reform (Miscellaneous Provisions) Act 1978, section
1, which makes plain that a breach of a contract to marry cannot give rise to any legal
remedy. This is similar to what was suggested by section 407 of the McGregor Code.250 This
development also makes section 433 irrelevant since actions for breach of promise of
marriage were abolished by the same Act. Yet another example is related to ‘improper
economic advantage’, which was envisaged in the Code to go beyond the law as it stood;
now, this section ‘is more than justified by the manner in which English law soon afterwards
developed. ... a doctrine of economic duress allowing contracts to be set aside has now firmly
arrived on the scene’.251 The last example here is where McGregor remarks in a footnote to
his section 641 rejecting the privity doctrine, ‘indeed intimations have since come from the
House of Lords, especially in Woodar Investment Development v Wimpey Construction U.K.
[1980] I W.L.R. 277 (H.L.), that the time has come to reconsider and reject the privity
doctrine’.252
However, some later developments also indicate solutions along different lines. Some
of the legislation and cases underlying the Code have now been changed, either abolished by
legislation or overruled by the courts, making some of the law stated in the Code
248
See section 1 supra of this study.
249
McGregor, op. cit., at p. 45.
250
Ibid., at p. 96.
251
Ibid., at p. 224.
252
Ibid., at p. 286.
unrepresentative of English law. One example of this category of developments is that,
whereas previously, for a person to give as a gift an ornament sent to him which was
unsolicited, constituted an agreement of sale, now, since the Unsolicited Goods and Services
Act 1971, the position is different.253 In the area of ‘substantial breach’, the solution
suggested by section 306 has not developed along the suggested lines starting with The
Mihalis Angelos.254 Also, the suggestion in the next section emanating from the case
Harbutt’s ‘Plasticine’ v Wayne Tank and Pump Co.255 has not been accepted by the House of
Lords in Photo Production v Securicor Transport,256 the issue being overruled.257 The same
overruling also affects section 310 ‘effect of breach on provisions excluding or limiting
liability’, where McGregor says that the relevant sections of the Code ‘may now be removed
from the Code as now otiose; indeed it had ceased to represent the law’.258 Another rule
representing current English law which found its place in the Code, that damages have to be
paid in pounds sterling, was overruled by Miliangos v George Frank (Textiles),259 which
accepted that both debt and damages may be awarded in foreign currencies.260
Some of the rules relied upon in the Code as current English law have also been
superseded or abolished by the legislator. Examples of such Acts are Law Reform
(Miscellaneous Provisions) Act 1970, Law Reform (Miscellaneous Provisions) Act 1989,
Consumer Credit Act 1974, The Industrial Relations Act 1971, Trade Union and Labour
Relations Act 1974, Sale of Goods Act 1979, Minors’ Contracts Act 1987 and Mental Health
Act 1983.
When we turn to the Scottish Law Commission, we observe that Memorandum No.
42 ‘Defective Consent and Consequential Matters’ of June 1978 starts out by stating that:
In our First Programme of Law Reform we recommended that the law of obligations be examined by
this Commission with a view to reform. ... Between 1966 and 1972 we participated in a joint venture
with the [English] Law Commission for the codification of the law of contract. For reasons we have
stated in our Seventh Annual Report we withdrew from that project in 1972, and work on it was later
suspended by the Law Commission as regards the law in England and Wales as well, without prejudice
to the possibility of codifying at some future date after the law had been clarified or reformed. Progress
on our programme subject of Obligations was ‘very seriously interrupted’ during this period by the
concentration of our resources on the joint exercise. We have recently, however, been able to turn our
attention again to this area of law, and in 1977 we published a number of Memoranda containing
provisional proposals for reform of certain aspects of the law relating to voluntary obligations. 261
One of the intriguing aspects of the work of the Scottish Law Commission in this field is that
253
Ibid., at p. 21.
254
[1971] 1 Q.B. 164 (C.A.), p. 82.
255
[1970] 1 Q.B. 447 (C.A.).
256
[1980] A.C. 827.
257
Ibid., at p. 83.
258
Ibid., at p. 85.
259
[1976] A.C. 443.
260
Ibid., at pp. 90, 112.
261
Scottish Law Commission, Memorandum No. 42, Defective Consent and Consequential Matters, Vol. I
(Edinburgh: Scottish Law Commission, 1978), p. 1.
among foreign experts who assisted in the work on these proposals were two Dutch scholars,
Professors Feenstra and Fokkema from Leiden University. In Memorandum No. 42, Volume
I, there are frequent and extensive references to the laws of other jurisdictions such as those
of the United States, England, ‘most continental European systems’ or ‘legal systems derived
from Roman Law’. Israeli Contracts (General Part) law, the then Draft Dutch Civil Code,
UNIDROIT draft law, American Restatement (Second) of Contract law, Roman Law, the
then Revision of Quebec Civil Code and the United States Uniform Commercial Code are
referred to for help. In Volume II, sections on the comparative context include references to
German, Swiss, Austrian, French, Dutch, Italian, Israeli, Quebec, American, English, New
Zealand, South African and UNIDROIT laws. Also, reference is often made to ‘legal systems
on the European Continent’, ‘all modern systems participating in the civilian tradition’,
‘European systems’, ‘Continental developments’, Poitier, Grotius, Pufendorf and Barbeyrac.
In the section on fraud, for example, it is stated that:
Erskine’s definition of fraud as a ‘machination or contrivance to deceive’ we would accept as probably
the most serviceable which could be devised. It reflects the same civilian tradition exemplified in
French, Italian, Dutch and Spanish law. While the ‘Germanic’ systems stress the causing of ‘error’ by
fraud, the systems with which Scots law has closer affinity stress the type of ‘conduct causing’ error
(or, of course, founding delictual liability). Thus the French Code Civil refers in art. 1116, to
‘manoeuvres’; the Dutch Burgerlijk Wetboek in art. 1364 to ‘kunstgrepen’; and the Spanish Codigo
Civil in art 1629 to ‘maquinaciones insidiosas’. However, those different approaches to definition do
not produce differences of result. 262
Whereas, as regards English solutions in the Misrepresentations Act and New Zealand
reactions, for example, they say: ‘We have, however, fundamental difficulties regarding the
whole conceptual approach to the legislation - at least as a possible model for a system such
as Scots law which is not primarily “remedy-based” and which, in this branch of the law, did
not develop through the interaction of Law and Equity. ... Scots law, broadly speaking, shares
a conceptual framework with the civil law systems of the world.’263
These views clearly indicate that were English law to be brought into line with Scots
law, there would be conceptual difficulties if not difficulties simply in the encounter between
two systems of socio-cultural affinity but legal-cultural diversity. Add to this the fact that
codification, in whatever sense, is not part of either culture within the UK, it is not difficult to
understand why the McGregor Contract Code never saw the light of day at home.
5.4.3.6 Coexistence of common law and civil law in Codes
A first point to note is that when English common law coexists with a jurisdiction that is not
codified, it can seep into that other. This was and is the case in Scotland and in the common
law States of Australia mentioned above. Common law finds it harder to penetrate into Codes
where judges tend to adhere to the wording of a Code itself when deciding cases.264
A second observation is that, looking at the history of codification in the common law
world, we see that help was derived from Continental Codes. For example, Livington’s Draft
Criminal Code of 1826 for Louisiana and Macaulay’s Indian Penal Code, the draft dating
back to 1838, have a lot in common with Continental Codes and markedly with the French
262
Ibid., at p. 95.
263
Ibid., at p. 174.
Although there is the interesting case of ‘grafting’ common law concepts into the St. Lucia Civil Code. See
D. White, ‘Some Problems of a Hybrid Legal System: A Case Study of St. Lucia’ (1981) 30 ICLQ, 879.
264
Code pénal of 1810. Cadoppi says that now ‘the French flavour remains somewhat a distant
hint, a sprinkle of French wine on a roast beef which is English in taste’.265 Stephen’s Draft
Criminal Code for England of 1878 and Wright’s Draft Criminal Code for Jamaica were also
influenced, though to a lesser degree, by Continental Criminal Codes. The Louisiana Civil
Code and the Louisiana Commercial Codes, both old and new, are also good examples.
Cadoppi provides insight into the Criminal Code for Malta of 1854. The first mixed
Commission of English, Scottish and Maltese lawyers in this then British colony with Italian
as the language of law and culture, worked in Malta’s civil law legal tradition and created a
Draft Criminal Code. The final work, when sent to be revised to Jamieson of the Scottish Bar,
was criticised in that the Italian and British legal traditions were seen to be incompatible, the
main clash being between the preference for precise definitions of the British and the loose
and general provisions of the Italian. Cadoppi says that ‘[t]his is the difference that at least
since the times of Blackstone has always divided the Continental and the British approach to
statutory drafting’.266 Nevertheless, when later the Maltese Commission prepared the final
Draft Criminal Code, Jamieson’s Report was widely considered and the Criminal Code
enacted in 1854 contains most of the amendments there suggested. This experience provides
a very good illustration of how the two legal traditions of civil and common law ‘were in the
end successfully brought together and harmonises the Maltese Criminal Code’,267 and points
to the feasibility of common law and civil law coexisting in the same enactment. The Maltese
Criminal Code ‘framed upon an Italian model owes much to the common law’.268 What is
also of interest is that when Maltese judges apply sections of the Code derived from Italian
law, they follow the Italian interpretation and the civilian approach; when they apply sections
influenced by English and Scottish law, they employ the British interpretation technique,
though, ‘the two approaches seem slowly to overlap’.269
As another example of a code of mixed traditions, Cadoppi270 mentions the
Queensland Criminal Code of 1899. Griffith drafted this Code, taking as his model the Draft
Criminal Code of England of 1880, which was based on Stephen’s Draft. Rather than
adopting this Code with minor alterations as was done in Canada and New Zealand, Griffith,
who was fluent in Italian, considered other recent codifications such as the Penal Code for the
State of New York and, most importantly, the Italian Criminal Code (Zanardelli Code) of
1889. Cadoppi says that the Queensland Code ‘can be considered a code based upon the
English common and statutory law, as far as the description of most crimes is concerned; and
a code based upon the Italian law as far as most principles and rules of responsibility are
concerned: a code indebted both to the common law and to the civil law tradition’.271 Here
‘prestige’ and ‘chance’, two of the most pronounced factors in transplants and receptions can
be observed at work. Griffith was familiar with the Italian Code, and the Zanardelli Code272
265
Cadoppi, op. cit., at p. 155.
266
Ibid., at p. 157.
267
Ibid.
268
Ibid.
269
Ibid.
270
Ibid.
271
Ibid., at p. 159.
272
See for this Code section 6 on Turkey infra.
had a wide reputation having already served as a model for other Codes of Continental
Europe and South America. This Code was then adopted with minor changes as the Model
Criminal Code for the British colonies in Africa, the Pacific, Palestine and Australia. Thus we
see here another example of the successful coexistence of civil law and common law. Yet,
though at the level of concepts and principles this coexistence is successful, in the practical
application of the law there are inherent problems.
The notion of ‘cryptotypes’ used by Sacco273 is referred to by Cadoppi as an
explanation of the practical difficulties which may be of value when considering any future
pan-European codifications, whether in the field of criminal law, commercial law or of
obligations. This notion refers to the state of mind and mentality of practising lawyers, judges
and law teachers derived from their legal experiences as shaped by legal education, training
and practice. ‘These cryptotypes are sometimes stronger than the letter of the law, and they
are especially important in shaping the so-called “law in action” as opposed to the “law in the
books”.’ This notion also ties in with Legrand’s ‘mentalité’ discussed earlier.
As analysed above, the McGregor Contract Code is another Code where civil law and
common law concepts intermingle and intertwine. A considerable number of examples from
that Code showing this coexistence and intertwining have already been discussed above.
Clearly, the effort on the part of McGregor to bring English law into line with Scots law and
with Continental jurisdictions on a number of points, does have most fundamental
implications for creating a platform where common law and civil law interaction can be
observed and which could imply that there are future opportunities at the level of
pan-European Codes. These fundamental implications become more substantiated if we
remember the views of the Scottish Law Commission referred to above. It is not difficult,
therefore, to understand the enthusiastic reception of the McGregor Code by the Gandolfi
project. It is more difficult to understand the total lack of interest in it on the part of the
Lando Commission, the Commission on European Contract Law.
5.4.3.7. European Codes in the common law context
Professor Hugh Beale, whose work on the Commission on European Contract Law has made
a considerable impact on the content of the Draft ‘Principles of European Contract Law’
enabling the Commission to intertwine fruitfully English, Scottish and Continental European
concepts and principles, says that members of the Commission may indeed have looked at the
McGregor Code as a way of seeing how English law might be formulated, but they did not
make direct reference to it because it had no official status. Members of the Commission
went back to the case law and statutes which lie behind the McGregor Code.274
One of the aims of the Lando project is to provide a source for finding principles of
contract law which are accepted throughout Europe, similar to the UNIDROIT which
compiled internationally accepted principles in this area. This work will not help only the
member states of the EU but also benefit the European Court looking for such generally
accepted principles. The other aim is to help to develop a European culture by providing
harmonised provisions while at the same time preserving national laws, unification not being
the aim at this point. Thus the work of the Commission is concentrated on the distillation of
rules by comparing various solutions and analysing the end goals of those rules, that is their
273
Ibid., at p. 160. Cadoppi says that Sacco borrowed this term from B.L. Whorf, Language, Thought and
Reality (Cambridge, Mass.: Technology Press of Massachusetts/New York: John Wiley/London: Chapman &
Hall, 1956), see footnote 56 on p. 160.
274
From private correspondence.
functional equivalence, and arriving at general principles which are then to be published. The
UNIDROIT rules are followed to a large extent. ‘The Principles of European Contract Law’
prepared by the Commission on European Contract Law does not aim to unify the law as the
European Civil Code would do, but rather, recognising the dichotomy of common law and
civil law and the fact that cultural diversity exists in Europe, tries to create a set of rules to be
used on a voluntary basis as seen in Article 1:101: Application of the Principles:
(1) These Principles are intended to be applied as general rules of contract law in the European
Communities; (2) These Principles will apply when the parties have agreed to incorporate them into
their contract or that their contract is to be governed by them; (3) These Principles may be applied
when the parties: (a) have agreed that their contract is to be governed by ‘general principles of law’, the
‘lex mercatoria’ or the like; or (b) have not chosen any system or rules of law to govern their contracts;
and (4) These Principles may provide a solution to the issue raised where the system or rules of law
applicable do not do so.275
Kötz is of the opinion that in the past ‘there has been a tendency to overrate the benefits of
unification and to underrate its cost. Again, unification through codification is likely to fail or
to lead merely to vague compromises whenever important matters of social or economic
policy are touched upon.’276 Kötz assesses the activities of the ‘Commission of European
Contract Law’, the ‘Commission on European Law of Civil Procedure’ and the ‘Principles
for International Commercial Contracts’ by drawing parallels with the American
Restatements in that the primary objective of these projects is not to prepare Codes but to
find:
a European common core of legal principles and rules [which] is more modest. It is simply to mark out
areas of agreement and disagreement, to construct a European legal lingua franca that has concepts
large enough to embrace legal institutions which are functionally comparable, to develop a truly
common European legal literature and the beginning of a European law school curriculum, and thus to
lay the basis for a free and unrestricted flow of ideas among European lawyers that is perhaps more
central to the idea of a common law than that of identity on points of substance. 277
Cadoppi observes that the general parts of most European criminal laws - common law
countries included - are quite similar to one another and are getting closer as time goes on.278
Nevertheless, he can see possible advantages in rejecting a completely unified European
Criminal Code because of cultural and moral differences.
One of the most vocal and prominent seekers of the ‘new ius commune’, Zimmerman,
does not advocate a European Civil Code either, but, referring to Markesinis’ ‘gradual
convergence’ and Gordley’s ‘vanishing distinction’, he says that the new ius commune would
not necessarily lead to or require uniformity of legal rules and results.279
In 1974 Kahn-Freund saw no reason even to harmonise the laws in Europe apart
275
The texts of the new version of the Principles of European Contract Law in English and French were
generously provided by Professor Hugh Beale in January 1999.
H. Kötz, ‘A Common Private Law for Europe: Perspectives for the Reform of European Legal Education’, in:
De Witte and Forder, op. cit., 31, at p. 41.
276
277
Ibid.
278
Cadoppi, op. cit., at p. 147.
279
Zimmermann, op. cit., at p. 27.
from those areas ‘dictated by practical requirements’.280 By 1989, however, the European
Parliament expressed the view that action should be taken ‘to bring into line the private law
of the Member States’281 and later asked ‘that a start be made on the necessary preparatory
work on drawing up a common European Code of Private Law’.282
Since there is no UK Code in the Continental sense as yet, what is the scope of the
present English experience? This experience is a reciprocal influence and cross-fertilisation
between the two legal cultures in Europe. Unless British jurists are prepared to take part in
legal dialogue and communication with the other legal culture more extensively, the English
contribution into the ‘to be melting pot’ will remain minimal. It can be said that the English
experience with the EU and with pan-European codification, if and when they come, will be
in the shape of acquiring new sources of law and the methods of handling these sources
which reflect civil law techniques, yet with eclectic content. The technique will be import,
but the values reflected will partially represent the national spirit and partially, the so-called
‘shared common heritage of Europe’. In the balance of form and content then, the
Continental input into English common law is mostly at the level of the content, but if
codification were to come to pass, then form would also be influenced. With the increasing
importance attributed to case law on the Continent today it is possible to see a reverse
seepage from the common law to the civilian tradition in the area of form. If anti-codification
views of the ‘law and economics movement’, for example, were to take root on the
Continent, then there might be more of a convergence towards the common law forms.
A classical code is a Continental civilian approach to exposing the law in a specific
field. It could be regarded as a method of law-making and as such it is a structural encounter
for English common law. It could also be regarded as a symbol of a mentality, a way of
expressing the law; then, for the English common law, it is a legal-cultural encounter.
According to the ‘convergence theories’ or the ‘convergence debate’,283 English law
can live with codification of the law. There are historical examples of efforts at codification
in England and by English lawyers in the colonies. The Law Commission has been actively
involved in this exercise since 1965, and many rules of English common law are now
expressed in more general terms. The newer Codes both on the Continent, such as the Dutch,
and in Quebec and Louisiana are allowing greater flexibility, the lack of which is one of the
objections to codification in England, and they are accepting that judges should have a
greater part to play.
The ‘divergence theories’, on the other hand, are totally opposed to any involvement
of the UK in any pan-European Code. Legrand appears as a representative voice for this
approach. According to him, ‘[w]hether as cause or effect, the absence of a civil code in
England, for example, is not unrelated to sociological findings that the English “feel
definitely uncomfortable with systems of rigid rules”, that there is even to be found in
England “an emotional horror of formal rules” and that the English “pride themselves that
many problems can be solved without formal rules”.’284 In a head-on attack on a European
Civil Code, Legrand says: ‘Should the idea of a European Civil Code be supported? My
280
O. Kahn-Freund, ‘On Uses and Misuses of Comparative Law’, (1974) 37 MLR, 1-27.
281
Off. J. EC 1989 C158/400 (26 May 1989).
282
Off. J. EC 1994 C205/518 (6 May 1994).
283
De Witte, op. cit., at p 105.
284
Legrand (1997, MLR), op. cit., p. 47.
answer is, emphatically: no, it should not.’285 His main arguments are based on the facts that
Europe is plurijural, that this plurijurality is under threat and that it must survive. According
to Legrand, ‘the idea of a European Civil Code is principally the product of two phenomena,
both of which must be resisted’, administrative convenience and fear286on the part of
civilians. He further criticises the proposal in favour of a European Civil Code on four
grounds: arrogance, fallaciousness, backwardness and impracticability. Legrand blames the
civilians in that ‘it is a curious fact that Europe should apparently want to do to itself what it
did to much of the world through colonisation, that is “extirpate” “the root of diversity”, by
engaging in the effective denial of sites of contestation within itself. But simple formulas will
not solve complex situations today any more than they did in the past.’287 For him,
However, the specificity of Europe - and this is where legal history can be adduced as compelling
evidence - lies not in the abolition of difference, but in the deft management of it, in the assumption of
pluralism, in the acceptance of a coexistence of non-harmonised rationalities on its territory, in the
willingness to enlarge the possibility of intelligible discourse between legal traditions, and in the steady
practice of a politics of inclusion ensuring an equal presence for the two legal traditions represented in
its midst. In short, difference must be understood and the temptation to reduce it resisted. 288
Therefore, to insist on codifying law in Europe in an effort to integrate Europe further
appears to Legrand as arrogant ‘for it suggests that the civilian representation of the world is
more worthy than its alternative and is, in short, so superior that it deserves to supersede the
common law’s world view’.289
This type of analysis and the understanding of codification as top-down centralist
legalism has also led ‘law and economics’ scholars to propose competition of legal systems
in a free legal market as opposed to both codification, which is in effect unification, and
direct harmonisation. The elements of choice and efficiency here remain the main criteria.290
Some advocates of the ‘new ius commune’, stressing the need for resystematisation of the law
and the development of a European legal doctrine, also claim that this could be done without
necessarily a final synthesis and unification.291
It is not one of the aims of this study to speculate on the virtues and costs of
unification of law through codification. Neither is it the aim to discuss or assess the
desirability, viability or the contents of pan-European codes, or to enter into the ‘codification
(legislation) or harmonisation or competing systems’ debate, though these options have been
mentioned in the course of the ‘reciprocal influences and transfrontier of law’ analysis. The
285
Ibid., at p. 44.
286
Ibid., at pp. 51-52.
287
Ibid., at p. 61.
288
Ibid.
289
Ibid., at p. 56. Also see Legrand (1998, LS), op. cit., where he points to the major differences between the two
traditions and claims that the ‘universalisation of the civilian interest in European integration is a variation to the
theme of cultural imperialism’; at p. 226. Further, referring to Pollock, he says that if all legal systems were the
same there would be no possibility of comparative jurisprudence; at p. 230.
See Kötz, op. cit.; Mattei (1994), op. cit.; However, also see J. Bell, ‘Book review of U. Mattei, Comparative
Law and Economics, 1997', (1998) 47 Am. J. Comp. L., 969. See also Ogus, op. cit.
290
M. van Hoecke and F. Ost, ‘Legal Doctrine in Crisis: Towards a European Legal Science’, (1998) 18 LS, 197,
at pp. 211-215.
291
reason for including comments here on pan-European codes is associated with the discussion
on the ‘divergence or convergence’ debate. In this context, therefore, pan-European codes are
regarded from the perspective of the intermingling of the civil law and common law and the
position of English law alone. In doing this, various stances have been highlighted though not
assessed, agreed with or disagreed with. It is not the aim to take a stand on the question.
5.5 Civil law and common law: Contaminants, irritants or correctives?
Both ‘contaminant’ and ‘irritant’, two terms already used, are very welcome additions to the
vocabulary of analysis of reciprocal influences. However, in its everyday usage, the word
‘contaminant’ is not a neutral word. One would be forgiven for thinking that anyone using
the word for the first time in this context might be a common law lawyer who does not regard
it as good that civilian concepts and structures should seep into the English legal soil. They
seep and contaminate. They do not purify or correct. Neither does the word ‘seepage’ create a
positive image. One would surely be advised, therefore, to stand clear of the source of
contamination. ‘Contaminant’ has the connotation of spoiling the thing it comes into contact
with. However, it is a fact that English law had already been contaminated, therefore purity is
not of the essence here. As discussed earlier, when Grief says that Community law is exerting
a pervasive influence on common law and is reshaping the English legal order, he points out
that some would use the word ‘insidiously’ rather than ‘pervasively’.292 He then suggests that
one should assess this influence critically to determine whether it is a corrective or a
‘contaminant’. He sees it rather as a ‘habit forming factor’ whereby a practice enters into
judicial consciousness, judges appreciate its value as they employ it and then find other uses
for it.293 This could be a ‘healthy infusion’. Does not the term ‘infusion’ indicate a more
subtle, positive and deeply penetrating infiltration than the term ‘contaminant’? Of course, it
is also a fact that one could regard common law itself as the ‘contaminant’ of Continental
civil law, since some English common law concepts and institutions have already infiltrated
the laws of the member states of the EU and EU law itself.294 I submit that how one assesses
the process is entirely related to one’s stance in these matters, sending us back to the
everyday image of calling half a glass of water either ‘half full’ or ‘half empty’. In the
plethora of activities and examples one can always choose illustrations to support one’s own
stance.
Nevertheless, as an expression abstracted from its literal meaning, the term
‘contaminant’ could be used neutrally as ‘leaving a mark’, like the dyeing process that takes
place when two materials of different colours are washed together. Even then, one of the
materials may be regarded as the culprit, unless the dyeing is reciprocal, in which case we
have a new colour for both! Of course, one could also think of fugitive colours, which
gradually grow fainter and finally disappear! This can happen even before there is time for it
to become an ‘irritant’.
The word ‘irritant’ is not neutral either. However, the way ‘legal irritant’ has been
presented and defined implies ‘a production of new and unexpected reactions’, which may be
a side effect of the first ‘contamination’. In this sense, it accords with Watson’s beliefs in the
292
Grief, op. cit., at p. 110.
293
Ibid.
294
In historical terms, English common law also contaminated ex-colonies such as St. Lucia with already
existing civilian-based codes.
power of reception on the imagination and the fact that, ‘borrowing is often creative’.295 As
seen earlier, Teubner uses the concept of ‘legal irritants’ in relation to the transplanting of the
continental principle of bona fide (good faith) directly into the body of British contract law
by the European Consumer Protection Directive 1994, though ‘the infecting virus had already
found inroads into the common law of contracts, especially in the United States ...’.296
Teubner says that though some academics are deeply worried, others see it as a ‘healthy
infusion’ of communitarian values. He claims that this phenomenon should not be assessed in
terms of ‘legal transplants’, not as a matter of repulsion and rejection or interaction and
integration - that is, the question of whether ‘good faith’ once transplanted will ‘be rejected
by an immune reaction of the corpus iuris britannium’ or will succeed and interact
productively ‘with other elements in the legal organism’.297 Rather it should be regarded not
as a ‘transplant’ but as an ‘irritant’ which can ‘trigger whole series of new and unexpected
events’.298
Here the term ‘legal irritant’ will be considered and the concept of ‘good faith’ will be
treated as an example. ‘Legal irritants’, Teubner says, ‘cannot be domesticated’, ‘rather they
will unleash an evolutionary dynamic in which the external rule’s meaning will be
reconstructed and the internal context will undergo fundamental change.’299Therefore, ‘good
faith’ will be reconstructed anew under British law, and its meaning will be transformed.
Even if the transfer is formal and direct rather than through infiltration or seepage, the rule,
according to Teubner, ‘may look the same but actually it has changed with its assimilation
into the new network of legal distinctions’.300 Teubner also puts forward the argument that
new divergences will be produced as unintended consequences of the Europeanisation of
national legal orders. Going back to ‘good faith’, it follows that it will not be transplanted but
irritate British law and create remarkably different understandings, ‘new dissonances from
harmonisation!’301 The development of a concept in a specific historical and cultural
‘constellation’ determines its final shape, so even if the starting point is the same,
divergences occur. We know that there are no identicals in law. Teubner’s guess is that in
Britain, ‘good faith’, together with ‘legitimate expectations’, ‘proportionality’ and other
‘continental noise’,
will trigger deep, long-term changes from highly formal rule focused decision making in contract law
toward a more discretionary principle-based judicial reasoning. But it will probably move into a
direction quite different from German-style dogmatisation. Given the distinctive British mode of
episode linkages, good faith will be developed rather in the forms of judicial activism similar to those
other common law countries have adopted, combining close fact-oriented case analysis with loosely
arranged arguments from broad principles and policies. ... The predictable result will be a judicial
doctrine of good faith that is much more ‘situational’ in character.302
295
Watson (1996), op. cit., p. 345.
Teubner, op. cit., at p. 11. ‘Good faith’ also appears in Article 1.106 of the Principles of European Contract
Law and international commercial law.
296
297
Ibid., at p. 12.
298
Ibid.
299
Ibid.
300
Ibid., at p. 19. Later a comparison can be drawn with ‘transposition’ in section 7.
301
Ibid., at p. 20.
302
Ibid., at p. 21.
He then goes on to make a general observation that a transfer will always be ‘confronted with
the idiosyncrasies of the new legal culture’303 and will face resistance external to the law, a
variety of social expectations of highly diverse social environments.304
Is it correct then, that the implantation into British soil of a ‘living law’, fed and
fertilised by the specific nutrients and conditions of a foreign soil, cannot take root or grow
new roots in this new economic culture?305 We have already observed, however, that British
imports have indeed survived even with their roots cut, thanks to the ‘rooting powder’
provided by British ‘gardeners’. So this should be the case here, rather than that British soil is
infertile and the continental bona fide cannot grow and blossom in it. Teubner expects
‘repulsion’, not ‘interaction’. But his metaphor ‘irritant’, taken in its positive sense, should
actually bring about the desired result. Is not this development what is desirable? This takes
us back to the earlier discussion on harmony rather than harmonisation; the concept of
‘diversity in convergence’. To converge does not mean to attempt to create sameness, but to
accept diversity. It is only when diversity is accepted that there is a ‘healthy infusion’. Only
then can the transferred norms become ‘internalised’ and thereby work. Interlocking
diversities lead to convergence. If legal relationships are regarded within a framework of
‘reciprocal influences’, that is as a series of cross-currents rather than as one-way movements
of ‘contaminants’ or ‘irritants’, then on the ‘reverse seepage’ the legal world at large may
benefit and be enhanced by the divergences created in different soils. Such transplants,
especially when they take place under some type of ‘imposed reception’, such as is the case
under European Directives, cannot be rejected outright. The existing plants will blossom
under this ‘irritation’ to produce a workable new subcategory which can then, in the course of
the intermingling that takes place, for example, between the member states of the EU,
interlock to enrich the market of legal systems. The fact that the identity is fundamentally
altered is of no matter if the new species is expertly and creatively handled. Grafts can
produce plants bearing delicious fruit!
Harmony is, after all, a possibility of communication and conversation. In
value-neutral terms both ‘contaminant’ and ‘irritant’ can be used to explain what is taking
place between the legal systems and the social systems of the member states of the EU be
they common law, civil law or ‘mixed’ jurisdictions. Contamination can give rise to an
irritation. An ‘irritant’ can also serve as a ‘corrective’ by inspiring a new development to
correct, for example, a ‘historical accident’. Seen in this light, all ‘reciprocal influences’ are
‘healthy infusions’. This infusion might be extracted from the most efficient solution
presented by the competing legal systems. If all legal systems engaged in this enterprise were
to serve as contaminants and produce irritants for each other, law could be enriched and
social cultures could benefit. This needs proactive systems and ‘good faith’!
Codification is not part of the British legal culture. It may become a ‘contaminant’
and, if this were to happen, then it could become an ‘irritant’.306 It is highly unlikely that
there will be pan-European Codes in the near future, and even if there were, the British
approach, implementation and interpretation would not be identical to the German one, but
then, neither are the Dutch or the French ones identical.
303
Ibid. Also refer to ‘cryptotypes’ and ‘transposition’.
304
Among these external forces, Teubner cites markets, organisations, the professions, the health sector, social
security, family, culture and religion.
305
See ibid., at p. 26.
306
Ibid., at p. 26.
We saw that the McGregor Contract Code does not have a direct bearing on the
Principles of European Contract Law. However, if there were to be a European Contract
Code through efforts other than those of the Lando Commission, then it might have a strong
impact. The possibility of this materialising is rather remote, however.307
‘Harmony through diversity’ or ‘harmonisation by eliminating diversity’ already
discussed in section 2 and ‘transposition’ to be discussed again in section 7 are relevant here
as in all instances of ‘reciprocal influences’.
6. The case of Turkey: A hyphenated legal system?
6.1 The formation
It is not my intention here to look in detail into the historical background of the present legal
system of Turkey. This is a topic extensively covered elsewhere by this writer.308 Suffice it to
say that both the private and public law of this jurisdiction are either directly borrowed from,
or significantly influenced, by foreign models; that the models are Continental European,
with the exception of some recent American influence;309 and that none of the models
represent an Eastern or religious viewpoint. The present legal framework of Turkey, a
product of law moving across frontiers from societies and laws socio- and legal-culturally
diverse from her own, has been constructed through ‘imposed receptions’, voluntary
‘receptions’, ‘imitations’ and ‘adjustments’. Legal evolution has been through a succession of
imports from abroad rather than being home grown. The roles of ‘chance’, ‘choice’,
‘historical accident’, ‘prestige’ and ‘competing legal systems’ can be well assessed in the
experience of this recipient. The term ‘hyphenated’ will also be analysed below in the context
of this case study.
The Turkish Republic is young. She has just celebrated her 75th birthday; but, being
the descendant of the Ottoman Empire, she has been through a number of phases of
development: between 1299 and 1839, an Islamic state, from 1839 to the fall of the Empire in
1920 a mixed jurisdiction with considerable French influence, and since 1923 a modern,
Western, secular and civilian democracy. Today, the legal culture is an amalgam of
predominantly Swiss, German, Italian and French legal cultures, and the legal system is
based totally on large-scale eclectic receptions from Western models. When the decision was
made in 1924 to move outside the framework of the indigenous system of laws rather than to
integrate the existing systems, and to receive foreign codes and use the tool of reception as
the sole method of law reform, a commission of twenty-six members was given the task of
translating first the Swiss Civil Code from the French version. Subsequently, most of the
important commentaries on various branches of law were translated into Turkish by a number
of special committees. The completed task amazed foreign observers. Within the year 1926
Turkish legal experts produced four entirely new codes, and there were more to follow. The
main purpose behind the receptions was to tear up the foundations of the old legal system by
creating completely new laws, and ‘to regulate and legislate the ... relationships of the people
Another question might be ‘Will the English Draft Criminal Code Help a Pan-European Code?’. See
Cadoppi, op. cit., at p. 48.
307
E. Örücü, ‘Turkey: Change under Pressure’, in: E. Örücü et al., op. cit., pp. 89-111; E. Örücü, ‘The Impact of
European Law on the Ottoman Empire and Turkey’, in: W.J. Mommsen and J.A. de Moor (eds.), European
Expansion and Law (Oxford: Berg Publishers, 1992), pp. 39-58.
308
309
See E. Örücü, ‘Turkey: A Survey of the Public Law Framework’, (1999) 5 Euro. Pub. L., 30-41.
according to what was thought these relationships ought to be, and not according to existing
customs, usages, and religious mores. This ... was revolutionary and radically reformist, and
can be summed up as a prime example of “social engineering through law”.’310 The Turkish
Republic had vision, and her systems including the political, legal and social were geared
towards the achievement of this vision and it is fair to assess the various developments over
the years in the light of this vision. From a purely theoretical point of view, this experience
provides much food for thought with a wealth of vocabulary of analysis and interesting
examples to illustrate theoretical points. The Turkish experience was used by Watson and a
number of other scholars as the most extreme and important example when discussing ‘legal
transplants’.
What is regarded today as the theory of ‘competing legal systems’, albeit used mainly
in the rhetoric of ‘law and economics’ analysis, was the basis of the reception of laws that
formed the Turkish legal system in the years 1924-1930. The various Codes were chosen
from what were seen to be ‘the best’ in their field for various reasons. No single legal system
served as the model. The choice was driven in some cases by the perceived prestige of the
model, in some by efficiency and in others by chance. Choosing a number of different models
may have given the borrowings ‘cultural legitimacy’ as the desire to modernise and
westernise was not beholden to any one dominant culture.311 It would have been possible to
choose Switzerland or Germany and borrow solely from one of these jurisdictions. It was
instead the civil law, the law of obligations and civil procedure from Switzerland,
commercial law, maritime law and criminal procedure from Germany, criminal law from
Italy and administrative law from France that were chosen, translated, adapted and adjusted
to solve the social and legal problems of Turkey and to fit together. Choice means taking one
option as opposed to another, and the existence of choice is what differentiates a reception
from an imposition. Thus, the difference between reception and imposition is related to the
existence or absence of choice.312 On this criterion alone, the Turkish experience is a
substantial and thorough experience in ‘reception’.
As well as this selective approach to Continental Codes, the Yargitay (the Court of
Last Instance) was enabled to make adjustments by the flexible rules present in the Civil
Code sections 1, 2 and 4, which correspond verbatim to sections 1, 2 and 4 of the Swiss Civil
Code. These are rules on justice and equity, objective good faith and the principles of the rule
of law. Of these, the importance of section 1 for the development of the Turkish law and legal
system cannot be overstated: ‘The law must be applied in all cases which come within the
letter and the spirit of its provisions. If no relevant provision can be found in the statute, the
judge must decide in accordance with the customary law and, in its absence, in accordance
with the rule which he would lay down, were he the legislator. In so doing, he must be guided
by accepted legal doctrine and case law.’ Also, one type of judicial decision, the unification
of precedents (Ictihadi Birlestirme Karari) of the Yargitay, was set up as binding on other
courts, so a greater role was attributed to the Yargitay than the classical civilian tradition
foresees. ‘In a legal system in which the source of law is determined by the formal legal
framework, custom and tradition become a source of law only when recognised by courts.’313
310
Örücü (1992), op. cit., p. 53.
See G. Ajani, ‘The Role of Comparative Law in the Adoption of New Codifications’, in: Italian National
Reports, op. cit., p. 65, at pp. 68-69 and 80.
311
If ‘competing systems’ were not comparative alternatives, then there could be no justification, or reasonable
ground for choice of the most efficient system or solution or rule. See, R. Chang, ‘Comparison and the
Justification of Choice’, (1998) 146 U. Pa. L. Rev., 1569, at p. 1573.
312
313
Örücü (1996), op. cit., at p. 106.
Today the theory of ‘competing legal systems’ still prevails in the evolution of the
Turkish legal system. When problems arise, models are sought by the doctrine according to
the ‘prestige’ and/or the ‘efficiency’ of the model, always within the framework of a
democratic, liberal market economy, human rights and the overall requirements of the
‘immutable articles’ of the Constitution which will be looked into below. For example, the
area of administrative law, born from the French model, has been influenced recently by
Anglo-American institutions; the ‘independent regulatory agency model’ is becoming
increasingly important as a model for Turkish administrative institutions, such as in the case
of the Supreme Board of Radio and Television and the Board for the Protection of
Competition, two public corporate bodies, both established in 1994. Nevertheless, recently
there has been a ‘growing tendency to create an independent Turkish administrative law
based on a balanced merger of universal, modern institutions - including the French model with local realities, needs and concepts’.314
The present laws of the historic reception models, the so-called ‘source laws’ (kaynak
kanunlar), are scrutinised by Turkish legal scholars when Turkish courts look for new ways
of dealing with emerging problems and difficult cases where matters of principle are to be
settled. Foreign law always provides inspiration and stimulus. Under the heading ‘hyphenated
legal system’, some examples of this will be looked at.
To sum up then, the early efforts of reform rested solely on import from the major
continental jurisdictions as Turkey went through a process of total and global modernisation,
westernisation, secularisation, democratisation and constitutionalism. She thereby reshaped
her private law, administrative law, the constitution, criminal law, civil and criminal
procedures, commercial law, maritime law and the law of bankruptcy. Later, other laws such
as labour law and social security law were passed, again based on foreign models. Later still,
significant developments in the fields of democracy and fundamental rights and freedoms and
review of constitutionality found their way into Turkish law, the last by the 1961
Constitution. In the preparation of this Constitution wide use was made of the West German
and the Italian models, the provisions on economic development being inspired by the Indian
model of 1949. The present 1982 Constitution, which considerably increased the powers of
the President, was inspired by the 1958 French Constitution and the American Constitution.
The impact of the early reforms of the Republic was not just on the legal system but also on
the social system since they were accompanied and complemented by a series of social
reform laws aimed at changing people. These laws are still protected by the 1982
Constitution. ‘Modernity’ was imported on a major scale.
Historically, Turkish academics had most of their training in universities in the
countries from where the receptions came. The fitting of all models to the Turkish situation
was indeed undertaken by academics so trained. Language training and translations were
extensive. In the early years of the Republic, Swiss, Austrian and German academics also
contributed to the new legal system as a consequence of historical accident and thus greatly
helped the imported system to take root. Professors such as Schwartz, König, Neumark and
Hirsch were given sanctuary in Turkey before the Second World War and held posts in
Turkish universities. Many of their Turkish assistant lecturer translators later became
influential professors in their own right.
While Turkish is the main teaching medium, in a number of universities today
English is the language used as the teaching medium. Recently, a French language university
was set up and a German language university is at present being established. An Italian
language university is also planned. It is interesting to note that the Agreement establishing
S. Güran, ‘Administrative Law’, in: T. Ansay and D. Wallace (eds.), Introduction to Turkish Law, 4th edn.
(The Hague: Kluwer Law International, 1996), 50-60, at p. 50.
314
the new University teaching in German envisages a comprehensive system of education with
basic primary, secondary and university levels, all as boarding schools. At the university
level, a quarter of the places will be allocated to graduates of German secondary schools.
6.1.1 Turkish import and the EU
During the last decade, the Turkish policy on integration and globalisation has regarded
regional integration as a step towards the creation of an international free-trade zone. To this
end, efforts have been made to integrate with the EU, the EFTA countries, Islamic countries,
the Black Sea Economic Co-operation and the Economic Co-operation Organisation, the
OECD countries and the Turkic states. If, for example, one looks at the 1998 Development
Programme of the Turkish Government, one can see legislation either already amended or to
be amended for approximation purposes in an effort to integrate with EU legislation in many
areas.315 A new Law on Customs came into effect in keeping with the Agreement on Customs
Union with the EU, which materialised in 1995 and came into effect in 1996. Legislation on
foodstuffs has already been harmonised with the standards of the World Trade Organisation
and the EU. Turkish legislation on the environment is now being harmonised with
Community environmental legislation.
Also, the first of the European Law Institutes were established in the 1970s after the
1964 Ankara Agreement and in advance of the desired membership of the EC. In the 15 law
faculties of the 71 universities today, centres have been set up for research into and study of
the implementation of EC law and EU institutions.
Privatisation has been high on the agenda during the preparations for the framework
of a successful free market economy, and the preferred Turkish formula can be translated as
‘build-operate-transfer’. It is attracting both domestic and foreign capital. This model is used
mainly in energy and other infrastructure projects. With no significant public support,
however, the movement of privatisation has not been a complete success. Privatisation was
not part of the existing economic infrastructure, which relied more on State Economic
Enterprises as part of the Planned Economy subscribed to and supported by the Constitution.
However, it is seen now as a sine qua non of the free-market economy model. In other fields
where the government wants to realise the integration process with the West, a number of
draft Bills have also been introduced.316 Changes have also been brought into the Commercial
Code dealing with Companies. In 1995 a Consumer Protection Act was passed and new
consumer courts are to be created.
Turkey has acceded to international conventions such as those of Bern, Paris, Vienna,
Rome, Strasbourg, Budapest and Lucarno, as it has been agreed that any of the international
conventions to which the member states of the EU are members but Turkey is not, will be
adhered to by Turkey. The organisation and structure of the security services is also to be
315
Such as Law on Customs, Law on Mining, Law on Petroleum and Oil, Law on the Prevention of Unfair
Competition in Imports, Law on the Protection of Competition, Law on the Protection of the Consumer, Law on
Private Consumption Tax, Law on Intellectual and Industrial Property, Law on the Cinema, Video and Musical
Products, Law on State Procurement and Laws on State Subventions.
316
Such as the Law on the Establishment and Duties of Courts, the Law on Civil Procedure, the Amendment to
Criminal Procedure, the Law on Labour Courts, the Amendment to the Law of Prosecution and Bankruptcy, the
Law on New Conciliation Councils, the Amendment to the Law Protecting Cheque Bearers, the Amendment to
the Law on Regional Administrative Courts and Tax Courts, the Amendment to the Law on Rents, the
Amendment to the Law on Flat Property, the Amendment to certain Laws to facilitate the substitution of fines
for prison sentences, the Amendment to the Law on Solicitors, the Law on Judicial Policing and the Amendment
to the Laws on the Press.
amended by looking into examples from the member states of the EU. Again, as all member
states were obliged to accede to the European Patent Law Convention as part of their duties,
the new Turkish patent law introduced in 1995 and amended in the same year now departs
entirely from the principles of the former Act of 1879. However, it is not an exact replica of
the Convention, and it is still influenced by German law.
Some of these developments can be designated as ‘concerted parallel developments’,
the general aim being the creation of the right market conditions for eventual globalisation
and integration with the European Union. Today’s ‘receptions’ in Turkey vis-à-vis EC law
should, however, be assessed as examples of weak ‘imposed receptions’, when compared to
the stronger version of ‘imposed receptions’ of the Central and Eastern European States
poised to enter the EU, to be discussed below. The qualifier ‘weak’ is attached to this
analysis because the element of choice is still there. Turkey need not aspire to EU
membership, and other possibilities are being looked into as alternatives. However,
‘concerted parallel development’ and ‘reception’ would be more appropriate vocabulary of
analysis for some of the import, depending on whether the import is a requirement of the
Association Agreement or the Agreement on Customs Union, or not.
6.1.2 Internal implications
Internally, however, domestic integration and the centralised system are seen as sine qua non
of each other, and the unification of diverse socio- and legal cultures through centrally
imposed laws and integration are seen to go hand in hand. The legal system is still legalistic
and positivist, that is, top-down. The Turkish experience is an ahistorical episode. While
trying to build a theoretical framework for ‘transfrontier mobility of law’ elsewhere, the
present writer designated the Turkish legal system as a ‘purée’, pointing out the remarkable
overriding forces such as elite dominance, the desire on the part of this élite dirigeante to
westernise and modernise the society and to eliminate custom, and legalism, which moved
the existing diverse elements into a compound, a legal system in the civilian tradition,
making the Turkish experience an exception to the rule.317 A new legal system was
legislatively created and history was made irrelevant to the law. Not only were the old
institutions destroyed but the new ones were erected in their place mainly by legislative
enactments. No enactment, however, became a piece of unapplied written legislation and the
documents were linked to the Turkish reality in time. This top-down model with such a
strong vision not only created an exception to the general rule that the legal system should
become a ‘mixed jurisdiction’, but it also undertook to create a new people. One might have
expected the system to become a ‘mixed jurisdiction’ because the elements of the present
compound, all from the same legal-cultural tradition, are legal-culturally divergent from what
was already there, and the incoming socio-cultures are also different from what was there.
The discord between the official formal legal system and the existing socio-cultural systems
was bound to create problems. ‘Optimistic normativism’, that is using law as an instrument of
‘social engineering’, was the ‘political belief’318 and this allowed no scope for ‘bottom-up’
law making. The absence of ‘bottom-up’ law making in Turkey is compensated, however, by
the role allocated to the High Courts at the level of civil (Yargitay), administrative (Danistay)
and constitutional (Anayasa Mahkemesi) matters. Although the legal order cannot be said to
have been nationally and organically grown at the outset, the external ‘viruses’ that were
injected and therefore infected Turkish law may be said to have worked as positive ‘irritants’
317
Örücü (1995), op. cit., at p. 10.
318
Ajani, op. cit., at p. 68.
helping in the production of ‘antibodies’ to create a healthier body than one left to its own
devices.
As to socio-culture, ninety-eight per cent of the population of Turkey is of the Islamic
faith, and the majority rural and traditional in outlook, even when they move to an urban
setting. A minority of the population, living mainly in urban areas, is Western in outlook and
mentality. Then there are those who, having started with a traditional rural existence, have
worked abroad for some time and having returned, fit neither into the first category, nor the
second. The inherent problems are not difficult to contemplate. Yet the official legal system
is well established and extensively used and relied upon to solve disputes of everyday life,
finding ways to approach delicate problems, examples of which will be seen in the next
subsection. These examples are mostly, though not exclusively, judicial. ‘In a highly
centralised legal system of the top-down model such as that in Turkey, which upholds a
peculiar legalism presenting itself as statutory positivism, the legislature and the executive,
and especially the courts, ordinary, administrative and constitutional, have a crucial role in
moulding the diversities into a unity’,319 and adjusting and homogenising the ‘layers’ of
systems. To see how far Turkey has succeeded in creating ‘unity in diversity’, let us now turn
to examples of adjustment.
6.1.2.1 Examples of adjustment: Legislative
6.1.2.1.a. After the introduction of the Swiss Civil Code in 1926, the most important
problems arose, as would be expected, in the field of family law. The policy being to
secularise the whole field and especially marriage, answers had to be found to the question of
imam marriages,320 performed without the prior formal secular marriage foreseen by the Code
and the ensuing phenomenon, that of illegitimate children. Instead of choosing the option of
regarding these marriages as alternatives, the legislature preferred to introduce Amnesty Acts
from time to time, the last being in 1991, both to regularise such illegal marriages and to
allow for the registration of the children born into them.321 Thus, ‘in spite of the refusal by
both the legislature and the courts to take de iure notice of extra-legal cohabitation, it was felt
socially necessary to legalise such relationships’322 by extraordinary means. The intention
was not to tamper with and not to harm the new system and the purpose of the Civil Code.
So, since the Civil Code has always been regarded by the intelligentsia and a large part of the
urban population as a monument of fundamental legal and social reform, the preferred choice
was to provide the possibility of transforming extra-legal relationships into legal unions
outside the framework of the Code. Nevertheless, together with this there has always been a
reluctance to enforce the available criminal sanctions against unions formed solely by imam
nikahi.323
319
Örücü (1996), op. cit., at p. 95.
320
An imam nikahi is performed by an imam in a religious ceremony as opposed to a civil marriage. A civil
marriage is a legal contract and since 1926 has been the only possible foundation of a legally recognised family.
If a religious marriage is desired, it must take place subsequent to the civil marriage. Yet, especially in villages,
consensual marriages are still commonly performed by the imam without prior civil marriage, though this is a
punishable offence (Civil Code section 110 and Criminal Code section 237/III).
321
See for more information, Örücü (1996), op. cit., at pp. 95-98.
322
Ibid., at p. 97.
323
See for figures, ibid., at p. 98.
6.1.2.1.b. At the inception of the Civil Code, the minimum legal age for marriage was 18 for
both sexes, the minimum age for women being reducible to 17 with the consent of the
parents. In 1938, while the minimum age of marriage remained 18, the ages for marriage with
the consent of the parents were reduced by the legislature to 17 for men and 15 for women.
However, in exceptional circumstances or ‘for very important reasons’, permission to marry
might be given to a man of 15 and a woman of 14 by the competent court, again with the
consent of the parents or the guardian. These amendments became necessary as the number
of cases in the courts for ‘correction’ of the recorded date of birth to attain the legal age for
marriage increased. Historically, there had been no minimum age limits for marriage and the
tradition of early marriage still prevails.324
6.1.2.1.c. As for equality of the sexes, however, not totally achieved by the Civil Code, the
legislature has not responded to modernist demands for change in spite of the Constitutional
provisions on equality introduced by the 1961 Constitution and repeated in that of 1982.
There are a number of provisions in the Civil Code, taken from the Swiss model, but now
eliminated there, related to the superiority of the husband, such as ‘the husband is the head of
the family’, ‘in which capacity he choses the place of abode’, ‘he has the final word on
children’s education’ and ‘he represents the family’. The reason for the legislature ignoring
the presence of these inequalities ‘could either be that Parliament is occupied with more
important issues or that it does not feel that there is any real demand for such a change from
the people, the majority of whom are of a rather traditional ilk. Thus, by taking no action the
legislature ignores the calls for modernist and progressive measures and appeases the
traditionalists by keeping the husband as the superior partner’325 as long as it can.
6.1.2.2 Examples of adjustment: Judicial
Some of the issues facing the legislature also face the courts. The courts, even more than the
legislature, have to respond and to be flexible in adapting the formal legal framework in order
to facilitate the smooth working and homogenisation of the system. A few cases will be used
here to demonstrate how the courts adjust the various elements of the system. Although on
the whole courts protect the wording and the spirit of the formal legal system, they are also
able to cater for the diverse interests that present themselves through the cases reaching the
courts. The courts serve as ‘melting pots’ and, considering the vast amount of case loads in
Turkey, a large variety of interests are melting together. What is also melting is the model
systems and the layers of law.
6.1.2.2.a. In view of the fact that the principle of civil marriage is not in keeping with the
traditions of the people, the Yargitay in one case tried to show the relevance of civil marriage
and persuade people to accept the norms of the formal system by saying: ‘[C]onsent of the
parties is in keeping with both Islamic and Canonical laws. In both these, as in the Swiss
Civil Code, the marriage contract is completed by the declaration of the will of the parties,
not by an act of a religious person.’326
324
Ibid., at p. 98.
325
Ibid., at p. 99. See section 6.1.2.2.c infra.
326
65/3; 14.6.1965.
6.1.2.2.b. The Yargitay also tried to resolve the problem of the inheritance rights of
illegitimate children born into extra-legal relationships by way of a broad interpretation of
section 249 of the Civil Code. This was before the passing of the first Amnesty Act in 1933.
The Yargitay attempted to solve this problem by regarding those born into informal marriages
as legitimate by analogy, since section 249 said that children of couples who have made
promises to marry each other but are then unable to marry owing to the death or incapacity of
one of the parties could be declared legitimate by the court upon the application of the other
party or the child. This analogy amounted to regarding the imam nikahi as equivalent to
engagement. In this way, the Yargitay ‘accommodated the de facto situation and a social
problem needing a solution absent in the formal legal system.’327
6.1.2.2.c. The publication of the decision of the Anayasa Mahkemesi (the Constitutional
Court) annulling section 159 of the Civil Code, which stated that a wife needs her husband’s
permission to work outside the home, was delayed for two years. The decision reached in
1990 was only published in 1992, though the maximum period before publication of a
reasoned decision is laid down as six months from the date of the decision. The hold-back
was due to the difficulty in composing the reasoning through which the Court tried to satisfy
all sides, and perhaps to delay the introduction of the change. What is worthy of note in
relation to our study here is that ‘the Constitutional Court, though finding this section
unconstitutional and drawing Parliament’s attention to other such sections in the Civil Code
in need of removal, has been very careful not to be misunderstood’.328 After a very thorough
and progressive comparative survey and with full reference to contemporary foreign and
international developments, the Anayasa Mahkemesi nevertheless felt that it should end its
opinion by a statement reflecting a very traditional view. It said that this decision should not
be taken to mean that the Court condoned a new life style for the family in which a working
wife could neglect her family duties towards her husband and children; if she intended to
work, the Court would like to see her making arrangements for these domestic duties to be
performed by someone else.
6.1.2.2.d. The Yargitay is extremely cautious in the application of section 134 of the Civil
Code, which was amended in 1988 introducing divorce by mutual consent. ‘Divorces
apparently based upon mutual consent may not be so; women who are the weaker partners in
Turkish marriages, may be forced by their husbands to accept divorce under threat of, for
example, taking the children from them.’329 The Yargitay judges try to ensure that the
conditions of section 134 are strictly met, that is, the marriage must have lasted for at least a
year, the judge must hear both parties himself, be convinced that they are expressing their
wills freely, and endorse as acceptable the arrangements made by the parties for the financial
consequences of the divorce and the children. ‘These are regarded as so important that in
divorces obtained abroad, the High Court refrains from recognising a divorce decree if the
foreign judge has not ensured the existence of these conditions.’330 The Yargitay Public
Prosecutor of the Republic is extremely sensitive in this area and raises such issues using his
power of ex officio objection.331 Here we see the Court acting as the protector of women and
327
Örücü (1996), op. cit., at p. 100.
328
Ibid., at pp. 101-102.
329
Ibid., at p. 102.
330
Ibid.
the children. This is an indication that the Yargitay is taking into consideration the realities of
Turkish society rather than, for example, religious feelings which demand that divorce should
be as easy as possible for men.
6.1.2.2.e. In a different area, that of compensation for death in work-related accidents,
however, the Yargitay has extended the right to compensation to the unmarried cohabiting
woman (nikahsiz es), but on a different basis from the married woman. In fact, neither the
legal framework nor the Yargitay accept the fact that couples living out of wedlock can be
regarded as in a relationship to be protected by law. Therefore, decisions of courts in this area
are of the utmost importance for couples living together without an official secular marriage.
In one case,332 the childless surviving partner of an imam nihaki union asked for material and
moral compensation arising from the death of her partner from a work-related accident. The
lower court agreed but the insurance company objected. The Yargitay regarding her chance
of getting remarried to be much higher than that of a married woman decided on a percentage
lower than that which would be the due of the married wife. Again, in a later case333 the
insured died in a work-related accident. The partner, who was this time referred to by the
Yargitay as the ‘cohabiting partner’, was eighteen and had a child and, according to the
Yargitay, had more than a 35 per cent chance of getting remarried, which is the accepted
percentage for an official widow. The Court was of the opinion that, ‘her age, social status,
position and family ties mean that she is not in the same position as a married woman who
expects to live in the family home for an indefinite period and can expect support throughout
her life. The compensation arising from section 43 of the Code of Obligations therefore
should be reduced in keeping with fairness and equity.’ This time there was a telling
dissenting opinion by a female judge attached to this decision, critical of the differentiation
drawn between the two women. The dissenting judge stated that:
here ‘cohabiting couple’ (nikahsiz es) refers to a traditional Anatolian relationship where couples have
the intention of living together as husband and wife, with close family ties and children. Therefore, the
presence or absence of official wedlock should not be the criterion on which to treat the two women
differently. The Social Security Council will only give a pension to the officially married wife, and this
for life. This should be the only extra gain for the married woman. The Anatolian woman is already
oppressed and faces the risk of being officially unmarried since she cannot get married owing to
tradition, and therefore should not be further weakened when facing the law. This situation would only
lead to mistrust of justice. The present circumstance is the outcome of the social structure, and social
order cannot be changed by making a weak person even weaker. She also should be given equal
compensation.334
6.1.2.2.f. In another case, a life insurance policy was taken out for the benefit of a ‘blood
brother’. The law makes no reference to this customary relationship. However, the Yargitay
said that according to Turkish folklore and customs this institution is valued, that it is a
‘private pact’ which creates a relationship like brotherhood or bosom friendship, and that
since the ‘blood brother’ should be considered to have a moral interest in the continuation of
331
A procedure borrowed from the French procedural system, as pointed out in 1997/6-175; 1997/196;
14.10.1997; 24 YKD 1998.
332
96/1606; 96/1661; 21.3.1996; 22 YKD 1996, 1291.
333
97/3331; 97/4819; 8.7.1997; 23 YKD 1997, 1785.
334
Ibid., at p. 1786.
the life of the other, he therefore should be accepted as the beneficiary.335
6.2 The development
‘Most developments in Turkish [law] ... have been and still are in reaction to immediate past
events and problems, with structures and documents being blamed for failures and exchanged
for other models when facing problems which might better be described as consequences of a
failing “human factor” ... It is difficult to disentangle ... [legal] developments from Turkish
political and social history and to assess them independently.’336
These observations are well substantiated. For example, the 1961 Constitution, which
followed the 1960 military takeover, was a reaction to past events and the majoritarian form
of democracy of the 1924 Constitution. It introduced extensive innovations including a
Constitutional Court, based on the German and Italian models and a liberal model of
democracy instead of the majoritarian one. However, it was amended seven times during the
nineteen years it was in force, in response to various political and social events such as
political polarisation, violence and terrorism. When in 1980 there was a second military
takeover, a new Constitution was prepared to solve the current problems mostly blamed on
the 1961 Constitution. Since its inception, the 1982 Constitution has been amended three
times, most extensively in 1995. Again the amendments were in response to political and
social events. Examples of this are easily found in the Preambles of the Constitutions. For
example, the Preamble of the 1982 Constitution refers to the events leading to the 1980
military intervention and explains the underlying aims and philosophy of the Constitution.
This Preamble was duly rewritten in 1995 following other events. It stresses once more the
importance of Atatürk nationalism and the fact that no one can depart from the legal order set
out by the Constitution.
Turkey and her political and legal systems are ‘captive to past and present political
and social problems and therefore live in the restraints imposed by these’.337 Some of these
restraints find their place in the constitutional framework. A good example is the extensive
rights and liberties afforded to citizens, though these rights can be enjoyed only within certain
restraints imposed by Constitutions, and which are amended from time to time depending on
the political climate. Then there are the most important limitations set in articles 1 to 3 of the
Constitution, protected by article 4 entitled ‘immutable provisions’, stating that articles 1-3
‘shall not be amended nor shall their amendment be proposed’. Articles 1 to 3 set the form of
the State as a Republic, pose the characteristics of the Republic as democratic, secular, social,
governed by the rule of law, respecting human rights within the concepts of public peace,
national solidarity and justice, loyal to Atatürk nationalism and based on the fundamental
tenets set forth in the Preamble, and that the State is an indivisible whole with its territory,
nation and language. In addition to these limitations, there is the protection afforded by
article 174 of the Constitution to certain Laws passed at the time of the formation of the
Republic, the Inkilap Kanunlari (Laws of Radical Reform) ‘regarded as a sine qua non of
modernisation, westernisation and secularisation - the major aims of the Republic’.338 Two
important consequences arising from the above are the strict control of political parties and
the use of freedoms such as those of expression, the press, association and religion.
335
95/3856; 95/4829; 9.6.1995; 21 YKD 1995, 1412, at p. 1414.
336
Örücü (1999), op. cit., at p. 35.
337
Ibid., at p. 36.
338
Ibid., at p. 37.
After the 1980s, in the search for a strong state and a strong executive, again in
reaction to the events of the 1970s, the role of the President was enhanced, inspired by the
French and American models. There is, at present, a further search for a Presidential system
which might replace the Parliamentary democracy. Political instability is now blamed on the
parliamentary system.339
When looking at reactions to the process of ‘import’, we see that because of the desire
to modernise, westernise and Europeanise the country and because the import of foreign
models was voluntary, there was little negative reaction to most of the import. However, for
the fundamentalist Islamic sector, anything Western represents unwanted cultural elements
and, therefore, there has always been a negative reaction from that camp. Today, there are
also those who challenge the lack of democratic consultation on the part of the elite, who
decided on the models chosen then. This dual reaction has always been present in Turkey.
There is also sometimes a reaction to Turkish import from EC law made with the purpose of
joining the EU. This reaction arises mostly from thwarted aspirations.
6.3 The experience: Hyphenated legal system
The Turkish experience as to the form and content of the law underlines the fact that both the
technique and the content, that is, the values reflected, are ‘import’. The technique is
codification and the hierarchy of the norms, with the accompanying elements derived from
the West. The official content reflects values borrowed from the West with some
modifications rather than reflecting the values of the past traditional national spirit. The
content is in many ways foreign to the Turkish mentalité, yet this is intentional as the
mentalité was to be changed. The type, frequency and content of the modifications, therefore,
deserve scrutiny by those who are watching legal and social developments in Turkey. As
observed above, a heavy burden for adjustment falls upon the shoulders of the Turkish courts.
On the whole, the Yargitay, the Danistay and the Anayasa Mahkemesi cope with this burden
well and in spite of the fact that ‘at present there is widespread mistrust of all official bodies,
people actively and increasingly use the courts to protect their rights’.340
If continuity is needed in systems in transition, then the Turkish experience defies this
rule since the country made a clear cut with the past. Yet, if continuity is understood as
continuity from ‘the source law’ (kaynak kanun), that is, a continued relationship with the
models, then the answer is quite different.341 The view expressed earlier when assessing civil
law receptions into common law, that is, that once transplanted the umbilical cord is cut,
applies in reverse to Turkey. The cord with the national past was cut at the time of receptions
and then reattached. The new attachment was then reinforced. Although it has been said that
generally speaking once a borrowing is cut off from its roots it ceases to be part of the same
culture, this has not happened in the Turkish experience. As observed below, these
attachments are still being strengthened, contributing to the ‘hyphenated’ nature of the legal
system.
6.3.1 Mode One: Swiss-Turkish law
339
See ibid., at p. 39.
340
Ibid., (1999), at p. 41.
341
For this section all the published decisions of the Yargitay over the five-year period 1994-99 have been
surveyed. Throughout this study, the translations of cases, legislation and other material from Turkish are by the
author.
In the early years following the receptions, Turkish private law was referred to as
Isviçre-Türk Hukuku (Swiss-Turkish law). This alone justifies the designation ‘hyphenated
legal system’ to be applied to Turkey. This type of reference continued over the years. There
are also many recent references to Swiss-Turkish law, thus indicating that the ‘hyphenated’
legal system is still in existence even after more than 75 years of the first import. The
relationship between the historic models and the present Turkish law is interesting to trace.
Obviously, today the ties are not as strong as they were, but as will be seen below, especially
in times of developing principles, changing general policy or introducing a far-reaching
change into Turkish law, and notably in ‘unification of precedents’, the judiciary use such
references either for justification or for comfort. Such references are frequent also in the
usage of sections 1, 2 and 4 of the Civil Code. Reference to ‘the source law’ is often made
also in dissenting opinions in support of views for opposing a majority decision. In doctrinal
works the references have always been there. Both the doctrine and the judges refer
repeatedly to von Tuhr, Merz, Andrew Schwartz, Karl Larenz, J.W. Hedemann, Egger,
Escher, the ZGB and the BGB. Nevertheless, over the years a Turkish civil law, a Turkish
Commercial law, a Turkish Criminal Law and other laws have developed, sometimes slowly
diverging from ‘the source laws’. However, the higher courts still make use of the models
when reaching decisions, but never base a decision solely on ‘the source law’. ‘The source
law’ is still seen as an aid to further modernisation, a stimulus. We will now look at some
examples to justify our use of the term ‘hyphenated’ legal system, the vocabulary of our
analysis. This is only one mode of ‘hyphenated’ systems in Turkey. There is a second mode,
the ‘hyphenated’ existence, which will be considered later under 6.4.3.
6.3.1.1 In developing principles
6.3.1.1.a. One of the areas where reference to Swiss-Turkish law is made today is in
developing the principle of ‘adapting contractual terms to changing circumstances’ in private
law contracts. Faced with extreme inflation and economic difficulties, the Yargitay has
developed and now has settled the view that judges should have the power to interfere in
contractual relationships and apply clausula rebus sic standibus or the imprévision theory,
used normally in administrative contracts, to private law contracts. There have been many
such cases since 1988. The Court typically pronounces that if the balance between the parties
is disrupted because of extraordinary circumstances and this becomes unbearable for one of
the parties, then to bind them to the contractual obligations absolutely is not in keeping with
notions of fairness, justice and objective good faith. Burdens brought about by unexpected
and unforeseeable circumstances must be shared by all, even though this might be in different
proportions. This view is especially applicable to long-term contracts.
One of the most interesting of these cases is the one dealing with ‘force majeure’, ‘the
collapse of the foundation of contract’, ‘the intervention of the judge into the contract’ and
‘adapting the contract to changing circumstances’ in ‘real property sales contracts by
instalments’ with payments to be made in DM. In this case, a rather long one342 by Turkish
standards, the Yargitay discussed the above concepts extensively, reiterated the basis of
contract law, that is, pacta sunt servanda, and the freedom of contract, and then pointed to
the necessity that there should be equality between the parties. The defendant claimed in this
case that the sales contract had been signed by free will, that the principle of pacta sunt
servanda should apply, that the adaptation of the contract is only possible for continuous and
long-term contracts, that sales contracts come to an end upon performance, and that, since the
342
95/145;95/3339; 6.4.1995, 21 YKD 1995, 911.
title was registered, this contract had come to an end. The Court indicated that pacta sunt
servanda is limited by other principles of private law, the most important arising when the
equilibrium of interests is distorted by supervening events, whereupon the courts have to
resort to clausula rebus sic standibus and adapt the contract to the changed circumstances
even when there is an ‘adaptation clause’ in the contract itself indicating another path of
action which may lead to an extreme imbalance between the obligations. The Court referred
to legal writers to justify its position and views on the doctrine of ‘contractual adaptation’.
The Yargitay stated that an insistence on performance may lead to a violation of section 2/2
of the Code, and thereby would be regarded as bad faith. When gaps appear in the contract as
a result of the change, these must be filled by the courts through interpretation in keeping
with the aim of the contract and the intention of the parties. The judge uses his powers arising
from section 1/1, thus creating rules for the facts before him to fill the gaps, although this
possibility is exceptional and secondary. The Yargitay in this case referred to a Swiss Federal
Court decision, pointing out that this principle could also apply to contracts which would
have future results and contracts which do not terminate by performance. So in this case the
instalments could be regarded as links in a chain covering a period of 72 months, so that the
contract does not terminate by a single performance.343 Using expert evidence, the Yargitay
then declared that the courts must determine the normal value the foreign currency should
have reached, taking into consideration the country’s economic conditions, accept this value
in the interest of the seller, then determine the shock increase in the foreign currency
resulting from extraordinary levels of inflation, calculate the difference between the two
values and measure this against the gain in value of the real property in the same period. Here
justification was sought from ‘the source law’ and the Federal Court of that source when
sections 1, 2 and 4 of the Civil Code were put into action and developments in the principle
of adaptation were suggested.344
In a more recent case,345 the rules of ‘contractual adaptation’ and thereby the
imprévision theory was applied to bank credits indexed to foreign currency. The Yargitay
again reiterated that freedom of contract and pacta sunt servanda are the bases of Turkish
contract law. However, it went on to say that, as the State has the Constitutional duty to
protect the consumer and ensure the orderly and sound functioning of the money, credit,
capital, goods and services market; in cases where bank credits indexed to foreign currency
are obtained, if the price of the vehicle bought with foreign currency did not change in the
foreign market, the bank must adapt the debt taking all economic conditions into
consideration. Again, section 4 of the Civil Code was called in to help, and the Yargitay, after
referring to works by eight Turkish scholars and three previous Yargitay decisions of 1988,
1992 and 1995, said: ‘In order to alleviate injustice, section 2/2 is normally used in
Swiss-Turkish law. Here sections 1, 2 and 4 should be employed. This is supported by
doctrine and judicial practice. When the foundation of the contract collapses, “the source
law” allows the judge to intervene. Nevertheless “adaptation” is a supplementary aid and
expert evidence must be used.’346
6.3.1.1.b. In 1994 the Yargitay dealt with a case, in which sections 3 and 21 of the
343
For further discussion see Örücü (1997), op. cit., at pp. 75-77.
344
The Federal Court accepted the doctrine of ‘adaptation’ on 4.5.1952, at p. 916.
345
1996/11-762; 97/77; 12.2.1997; 23 YKD 1997, 679.
346
Ibid., at p. 682.
Commercial Code were applied, and had to determine what was a commercial act and
whether delictual activities could be considered commercial acts in relation to insurance
policies.347 The Yargitay said: ‘Both in Turkish law and German and Swiss laws, in order to
consider the possibility of drawback interest for delictual acts, this delictual act should be
regulated by the Commercial Code or be regarded as a commercial act both in view of the
victim and the perpetrator.’348 There was also some discussion of German ‘source law’ and
doctrine on this issue in the dissenting opinions in this case.349
6.3.1.1.c. In a case350 revolving around letters of guarantee, bills of lading and ‘clear on
board’, and the resolution of the question as to whether the carrier is free of liability when the
sender enters wrong information into the bill of lading, the Yargitay indicated that the topic
has been widely discussed in international law and then referred to letters of guarantee (clean
on board) in the French and the German Commercial Codes, showing that there is no
agreement on the point. There was also mention of the Hamburg Convention on Carriage of
Goods by Sea to which Turkey is not a party and which does not accord with Turkish law.
The dissenting opinion referred to German, Italian and French doctrine and English doctrine
and cases on misrepresentation. It was then suggested that, ‘since the applicable provision,
section 1064/11 of the Turkish Commercial Code, does not exist in “the source German law”
(HGB) and neither was it in the Turkish Government Draft Bill when it went to Parliament,
then this must mean that the Judicial Committee added this in haste and it went through
Parliament without discussion. It is obvious that the provision was written hurriedly.’351 If
regarded in this light, the Hamburg rules could apply and ‘section 1064/11 should be thus
interpreted’. This would also be in accordance with legal opinion given by Turkish Maritime
law experts.
6.3.1.1.d. On the issue of the conditions necessary in order to decide on compensation for
intangible damages, the Yargitay considered ‘Swiss-Turkish doctrine’ and determined that
the problem is viewed there in the context of ‘neighbourhood law’. It then looked at some
decisions of the Swiss Federal Court and expressed the opinion that intangible damages is the
objective reduction in personal values and that this objective reduction also refers to other
members of society.352
6.3.1.1.e. We see reference to Swiss law even in the area of family law. In a recent case, 353
the Yargitay looked at Professor Tuor’s textbook and the decisions of the Swiss Federal
Court as well as Turkish doctrine, in determining what is an ‘engagement’ in order to decide
on whether gifts beyond the ordinary should be returned upon the breaking of the
347
94/2242; 94/7490; 10.11.1994; 21 YKD 1995, 425.
348
Ibid., at p. 428.
349
In another Yargitay case determining a ten-year delay in claiming delictual damages, a Swiss decision in a
similar case and Swiss doctrine (Deschenaux and Tercier) were cited in the dissenting opinion: 93/6410;
94/1301; 21.2.1994; 20 YKD 1994, 1101.
350
93/565; 94/3295; 21.4.1994; 20 YKD 1994, 1782.
351
Ibid., at p. 1789.
352
96/3713; 96/4111; 8.4.1996; 22 YKD 1996, 1548.
353
98/10173; 98/12105; 24.11.1998; 25 YKD 1999, 170.
engagement, The Court was careful to differentiate between the breaking up of an
‘engagement’, that is a promise to marry, in which case gifts beyond the ordinary should be
returned, and of ‘living together without a valid marriage act’, in which case they need not. In
the last instance, since both parties act outside legality, the law protects the possessor.
6.3.1.2 In the unification of precedents
6.3.1.2.a. In one unification of precedents case354 dealing with arbitration agreements, the
Yargitay first surveyed comparative law and doctrine. Having determined that various
systems are accepted in the laws of the jurisdictions surveyed, that is the Swiss, German,
Austrian and French, the Court said that arbitrators normally decide by looking first at the
rules of the black letter law; however, if the parties have a contract, they decide according to
the rules stipulated by the parties.355 The Court then said that:
Section 533 of the Turkish Code of Civil Procedure is differently arranged to ‘the source law’, the
Neuchatel Code of Civil Procedure section 488. Somehow, the words ‘unless otherwise contracted’ in
section 488/1 have not been incorporated into section 533. The translation leaves a gap. Neither does
section 533 have any indication as to what would lead to an appeal. We therefore think that section 533
should be interpreted anew, as the existing interpretations and practices do not give satisfactory
results.356
The various decisions emanating from the Yargitay were unified in the following way:
‘During the discussions some judges have said that the means of appeal against arbitration
awards is limited, that a statutory amendment is needed in order to change the existing
practices, and that we cannot follow “the source law”. The majority, however, is of the view
that we can. An arbitration award not in accordance with the law can be appealed against.’357
There were six dissenting opinions attached to this decision. Some dissenting judges took the
view that this is not a gap in translation but that it indicates a different approach and that
there is a difference in the systems adopted.358 They suggested that any change can only be
introduced by legislation. One of the dissenting opinions looked through all the comparative
material discussed in the body of the decision359 in even more detail, saying that a
comparative survey is absolutely necessary in order to understand this problem which has
been discussed in Turkish law since 1939, and to come to a conclusion.
6.3.1.2.b. In another unification of precedents case, this time in a very different area, that of
natural paternity, illegitimacy and inheritance rights, the Yargitay360 unified the decisions of
various of its chambers to the effect that when a natural child’s paternity is determined by a
court decision, that child becomes an illegitimate child and can inherit from the father
according to the amended section 443 of the Civil Code. This area of family law has become
354
93/4; 94/1; 28.1.1994; 20 YKD 1994, 519.
355
Ibid., at pp. 521-522.
356
Ibid., at p. 526.
357
Ibid., at p. 528.
358
Ibid., at pp. 531, 533.
359
Ibid., at pp. 538-543.
360
96/1; 97/1; 22.2.1997; 23 YKD 1997, 853.
an area of fundamental controversy both in the courts and among scholars. In the Yargitay,
the major controversy was between its two chambers and its General Assembly. A decision
of the Anayasa Mahkemesi in 1987 also contributed to this controversy. The Yargitay, after a
comparative discussion of the position of natural, illegitimate and legitimate children in
systems as far apart as Norway, Russia, France and England, looked specifically to
Switzerland. The Court discussed the developments that have taken place in Switzerland, ‘the
jurisdiction from where we took our Civil Code’,361 pointed to the reforms there in 1976 and
stated that the two types of suits for paternity have been abolished362 and that no difference
now exists between children who are acknowledged and those whose paternity has been
determined by a court decision. The Yargitay then held: ‘This is the path to be followed.
Turkish law should be evaluated in keeping with contemporary and comparative
developments and the spirit of the law should be followed.363 No interpretation should create
different treatment of children as far as their inheritance rights are concerned.’364 The Court
also looked at International Conventions.
Very emotive though well-researched dissenting opinions written by seven judges in
all followed, opposing this conclusion. Most were based on differing understandings of the
decision of the Anayasa Mahkemesi, the reasoning in Parliament and the views of Turkish
scholars. One dissenting opinion referring to Turkish authority and Egger’s Family Law
Annotations on the Civil Code (in translation) pointed out that in Swiss-Turkish teaching,
there is agreement that a court decision establishing paternity with financial consequences
only does not establish a legitimacy tie between the child and the natural father and the child
does not become the heir to the father. This argument therefore suggested consultation of the
Swiss doctrine before 1976. Another dissenting opinion pointed to the fact that such
fundamental changes were introduced in Switzerland by legislative intervention and not by
the court’s interpretation.365 This opinion also referred to Egger and the Law before the 1976
amendments in Switzerland, stating that both the Swiss Federal Court and the Yargitay and
the doctrine saw the matter in this light. It then said that the decision of the Anayasa
Mahkemesi could not be understood to introduce such wide-ranging consequences into
Turkish Family law and the understanding was consistent until 1994 when the General
Assembly of the Yargitay introduced this new understanding towards which the Yargitay now
unified its precedents. It is most interesting to note that one judge in addition to Western
sources, referred to Islamic law in his dissenting opinion and said that, ‘Even in Islamic law,
where there is a parallel institution to acknowledgement (nesep ikrari), there is a possibility
for the child or the mother, who might object to recognition by an immoral man, to use the
right to raise an objection.’366
The fact that Swiss law and its developments were referred to so extensively in this
decision and its dissenting opinions is significant. It shows not only that the ties with ‘the
source law’ have not been cut but that even in the area of family law, which is the most
sensitive to domestic mores, the ‘hyphenated’ nature of Turkish civil law still prevails. The
361
Ibid., at p. 856.
362
ZGB, sections 252, 261.
363
TCC, section 1 and ZGB, section 1.
364
Ibid., at p. 858.
365
Ibid., at p. 896.
366
Ibid., at p. 878.
developments are pitched against developments in Switzerland as well as other Western legal
systems.
6.3.1.2.c. According to doctrine, in the ‘hierarchy of the norms’, if there is a gap between the
Statute and a contract, parties can fill this by their free will. If there are imperative rules, then
they cannot fill this gap. After being amended, sections 1404-1406 of the Turkish
Commercial Code have become suppletive rules and are no longer imperative. According to
the Yargitay, parties can insert special rules into a contract which rules must then be applied
before the general rules in the Code.367 The Court observed that sections 1404-1406 were
amended in 1983 in order to adjust Turkish law to international and foreign practice and
enable parties to insert the ‘deductible’ system into maritime insurance policies and thereby
create an equitable result by suppletive rules. It pointed out that in ‘the source Commercial
Code’ these provisions were suppletive and yet were received by Turkey at the time with
adaptations to make them imperative thus making it impossible to change them by contract,
and that there is no reasoning to be found to explain this departure.368 The Court also made
references to the Italian and the German systems and stated that the system of the
Swiss-Turkish Law of Obligations is different to these in that there are no general or special
rules on this matter.369 The will of the parties should be accepted.
Again in relation to the ‘hierarchy of the norms’, this time in dissenting opinions to an
important unification of precedents case370 establishing the competence of the Scrubland
Differentiation Committee of the Forestry Commission to decide on private ownership on
such lands, we come across references to German, French, Spanish and Italian laws where, it
was pointed out, there is a division of administrative, ordinary and constitutional
jurisdictions. The Turkish Code of Criminal Procedure (section 255) was compared with the
French (section 384) and the 1988 Italian Code (sections 2 and 3) of Criminal Procedure and
the French Criminal Code of 1993 (section 11-5). There were references to decisions of the
cour de conflit as well as references to doctrine such as Lachaume, Rivero-Waline, Chapus,
Vedel-Dolvole, Foschini, Merle-Vitu, Habscheid, Grophe, Mimim and Perrot.371 The
dissenting judges were of the opinion that this Committee had no competence to determine
where forest land ends and scrubland begins, and that therefore the title deeds given based on
the decisions of the Committee should have no validity.
6.3.1.3 In dissenting opinions
We will now look at examples of the third category of reference, that is, where dissenting
opinions seek support from ‘the source law’ in opposing the majority decisions.
6.3.1.3.a. In a case revolving around whether the invalidation of the inheritance rights of a
father could have an impact on the rights of his heir,372 the dissenting opinion discussed
367
95/1993; 95/3369; 14.4.1995; 21 YKD 1995, 1407.
368
Ibid., at p. 1409.
369
Ibid., at p. 1411.
370
93/5; 96/1; 22.3.1996; 22 YKD 1996, 882.
371
Ibid., at p. 891.
372
96/2-888; 97/306; 9.4.1997; 23 YKD 1997, 1687.
Swiss law although the decision itself did not. In this opinion reference was made to the work
of Professor Escher of Zürich University (from a translation dated 1949) ‘lending support to
our view’.373
6.3.1.3.b. In another case, this time a unification of precedents case, we find extensive
reference to Swiss law in the dissenting opinions related to the fixed portions in the law of
succession in times of high inflation, although no such reference appears in the decision
itself.374 After viewing the Turkish doctrine, the dissenting opinion looked at Escher, Steck
and Piotel in Switzerland (in translated form) and queried why the developments in French
and Swiss law as represented in Turkish doctrine and the amendments to the French Code
civil had not been consulted. The opinion claimed that the first question to be settled is
whether these developments should influence Turkish law and if so, then these views should
be thoroughly investigated.375
6.3.1.3.c. In yet another case, again a unification of precedents case,376 the dissenting opinion
used Swiss and Turkish doctrine, Swiss and German laws and the decisions of the Swiss
Federal Court for support. The case was related to the determination of rent and interest. The
dissenting judges tried to limit the extensive use of section 2/2 of the Civil Code by the
Yargitay, saying that analogy and a claim of abuse of rights cannot obstruct the use of the
applicable provisions of the Code, since section 2/2 should have only a secondary and
corrective role. ‘This view is supported by the BGB and ZGB as well as Swiss-Turkish
law.’377
6.3.1.3.d. Again, in a case378 revolving around the right to ask for interest in late payment for
the expropriation price, in reference to Turkish doctrine writing on Swiss and German laws
and to a translation of von Tuhr, dissenting opinions claimed that the issue should be
regulated according to the understanding in ‘the source law’. Citing principles of liability law
(neminem zoedere) from Swiss and German laws, reference was made to the BGB when
looking for a basis for additional damages as a result of devaluation. Further reference was
made to Swiss Federal Court decisions: ‘Swiss-Turkish law accepts that if inflation is higher
than the rate of “moratory interest”, then “additional damages” can be demanded.’379 As to
proof, a decision of the Neuchatel Court of Appeal was cited, as translated by a Turkish
Professor of Civil Procedure. There is also reference to the ECHR. This opinion indicates that
in the area of property, expropriation, monetary debts, inflation and additional damages,
section 2 of the Civil Code should be applied as supported by Professor Schwartz, who was
one of the most influential and important of the foreign professors in Turkey in the years
following the receptions, teaching in the Istanbul and Ankara University Law Faculties, and
373
Ibid., at p. 1699.
374
94/4; 94/4; 11.11.1994; 21 YKD 1995, 165.
375
Ibid., at p. 179.
376
94/2;95/2; 24.11 1995; 22 YKD 1996, 165.
377
Ibid., at p. 172.
378
96/5-144; 96/503; 19.6.1996; 23 YKD 1997, 168.
379
Ibid., at p. 185.
whose works are among the reference books still in use today.380
6.3.1.3.e. In another case381 dealing with the upper limit of strict liability, the dissenting
opinion criticising the Yargitay’s view, asked the question: ‘When can analogy be used in
law?’ The question was then answered with reference to foreign doctrine discussing the
conditions of applying analogy such as Meier Hayoz, Karl Larenz, Reinhold Zippelius,
Jurgen Baumann, Ernest Hirsch and Egger.382
6.3.2 Mode One: Turkish-Other ‘source laws’
6.3.2.1 Italian-Turkish and German-Turkish law
In the area of criminal law and criminal procedure, there are also references to ‘the source
law’, as will be remembered, this time Italian and German laws. We can thus talk of
Italian-Turkish and German-Turkish laws as other ‘hyphenated’ designations. As would be
expected, here there are fewer references. These references are in dissenting opinions rather
than in the decisions themselves and are resorted to in order to challenge mistaken
interpretations of the Turkish Criminal Code and the Code of Criminal Procedure. Many
point to mistakes in translation at the time of reception and try to persuade the Yargitay to
search for the true meanings in the original versions. Some point out how International
Conventions and Western European countries are moving in directions which should be
followed.
Let us now turn our attention to some illustrative cases.
6.3.2.1.a. In a case concerning ‘murder to facilitate the committing of another crime’, the
dissenting opinion said that the term ‘crime’ in sections 135, 150 and 163 of the Code of
Criminal Procedure was a mistaken translation of the term ‘act’ in ‘the source law’, whereas
the term ‘action’ used in section 257 was the correct translation.383 It was indicated that when
section 135 was amended in 1992, this mistake should have been corrected. After pointing to
some other discrepancies, the dissenting judge said, ‘as can be seen, as a result of giving
wrong meanings to terms and concepts, the Turkish practice has become divorced from the
laws of the legal systems that inspired it’.384
6.3.2.1.b. Another case385 is related to causing bodily harm to and the maltreatment of
members of the family. Again, there were no references to foreign sources in the decision but
in the dissenting opinion, the dissenting judge referred to mistakes in translation and
interpretation. The dissenting judge criticised the established view of the Yargitay that
regards the term ‘a number of persons’ as more than three, and ‘a few persons’ as three.
380
See section 6.1 supra.
381
95/10-856; 95/1073; 6.12.1995; 22 YKD 1996, 351.
382
Ibid., at p. 365.
383
97/1-76; 97/114; 13.5.1997; 23 YKD 1997, 1608 at p. 1615.
384
Ibid., at p. 1616.
385
96/8022; 96/9095; 3.12.1996; 23 YKD 1997, 617.
According to him, these variations do not exist in the Italian ‘source law’. There the term plu
persone is used to indicate more than two persons. The Turkish Code and the ‘Majno’
Annotations use sometimes one and sometimes another word to translate this term and
therefore there is some confusion. When sections 480 and 482 were being amended, the
legislature followed the mistaken decisions of the Yargitay and changed the term ‘a number
of persons’ to ‘three’. The dissenting judge said:
While the law was being interpreted, ‘the source law’ should have been consulted. It should not have
been forgotten that the Turkish Criminal Code is the outcome of a reception and translation. Therefore,
it is necessary to correct mistakes in translation by ‘corrective interpretation’. The only acceptable
departure from ‘the source laws’ is where the legislature has shown reasons for this departure in debate
in Parliament. Therefore, whenever necessary the Italian Code and reasoning must be used. 386
6.3.2.1.c. In another case,387 the Yargitay was of the opinion that where the right to defence of
the suspect is being determined, reminding the suspect that he has the right to employ a
lawyer and that he has the right to silence are essential elements of procedure, otherwise the
right to defence is to be regarded as limited. Two dissenting opinions, after stating that laws
of all democratic states point in the same direction, referred to ‘the source German Code of
Criminal Procedure’, sections 243 and 130, which have the same text as the Turkish sections
236 and 135. Both opinions extensively discussed decisions of the German Federal Court
(BGH) and a decision of the Federal Court of Kern Roxin,388 as well as referring to an
American case (Quarles case). Further references to foreign doctrine on criminal procedure
such as Lowe Otto Schwarts, also received attention. The Yargitay was criticised for not
applying the aforementioned sections in line with the German Federal Court practice and for
not using its discretion in determining the value of such procedural niceties and taking them
as absolutes.
On the issue of a non-guilty verdict,389 dissenting opinions again referred to ‘the
source German Code of Criminal Procedure’390 and doctrine such as Lowe Otto Schwartz391
pointing to sections 236 and 135 of the Turkish Code of Criminal Procedure, which had been
amended to introduce a ban on the use of evidence acquired by illegal means, and to ‘the
source law’, and then put forward views along the same lines as in the above case and cited
the same doctrine and the same foreign cases.
6.3.2.1.d. In a case dealing with ‘premeditated murder’,392 the dissenting opinion compared
the Turkish Yargitay to its French, German and Italian counterparts.393 It then pointed out that
the word ‘premeditated’ was not defined in the Turkish Criminal Code and that because in
386
Ibid., at p. 620.
387
95/7; 95/302; 24.10.1995; 22 YKD 1996, 103.
388
Ibid., at pp. 109, 113-115.
389
95/6;95/305; 24.10.95; 21 YKD 1995, 1884.
390
Ibid., at pp. 1896-1897.
391
Ibid., at pp. 1890-1893.
392
94/1-167; 94/188; 27.6.1994; 20 YKD 1994, 1829
393
Ibid., at p. 1831.
the early years of the Republic it was the practice to interpret this Code according to the
French Criminal Code rather than the Italian ‘source law’ - a linguistically easy but mistaken
option - a number of problems were created. The Zanardelli Code had a different system
from the French. It was not possible to transfer the interpretation of one to the other. The
1810 French Criminal Code was no longer in effect and the new Code had yet a different
system and defined cases of premeditation as ‘assassination’. The Italian Criminal system left
this determination to the judge.394 According to the dissenting judge, the Turkish system
seemed to sway between the French and the Italian systems by sometimes using the French
conceptual structure ‘calmness’ (cool-headedness) and thus had internal inconsistencies. The
Yargitay should give a final definition of ‘premeditation’ and then use this definition as a
criterion when viewing the decisions of the lower courts. The dissenting judge then referred
to Spanish teaching and practice which had also been influenced by the Italian, German and
French laws, to show that they did follow this suggested path.395
In an earlier case,396 the same dissenting judge made similar observations on
‘premeditation’, again suggesting the following of the Spanish synthesis after having looked
first at French, Swiss and Italian positions. The same judge in another case involving
‘provocation’,397 suggested in his dissenting opinion that in keeping with the practice in the
West, the Yargitay should consider human nature and the laws of nature in determining the
consequences of provocation. ‘Just to determine the facts is not sufficient’, he said.
6.3.2.1.e. The above dissenting judge also suggested that the Yargitay should develop the
concept of rape in marriage.398 In the instant case, a husband having anal intercourse with his
wife against her will was considered to be guilty of ‘maltreatment of family members’ by the
Yargitay. According to the dissenting judge this should be regarded as rape in marriage since
it is against both sexual freedom and public morals. After an extensive comparative review399
determining three types of solution, ranging from Canadian to Latin American systems and
the doctrine and cases therein, he said ‘the source law’, the Italian Criminal Code, was
amended in 1981 and that now in Turkish law, section 478 should be applied to anal
intercourse, section 188/2 to normal or anal intercourse by force and section 416/1 to
intercourse by threats. He also surveyed developments in Italian, French and Swiss laws.
6.3.2.1.f. In a recent case revolving around ‘swindling’, the Yargitay400 pointed out that the
Turkish Criminal Code does not define ‘grafts, tricks and dishonesty’ which are the formal
conditions for the proof of ‘swindling’. The Court then considered comparative law
discerning two trends there. It then decided the case in the system of the Turkish Criminal
Code. The aforementioned judge in his dissenting opinion again looked at a number of legal
systems and specifically at ‘the source law’. He said that the Italian Criminal Code gives
394
Ibid., at p. 1833.
395
Ibid., at p. 1834.
396
93/1118; 93/1530; 10.8.1993; 20 YKD, 1994, 125.
397
93/1453; 93/1552; 23.8.1993; 20 YKD 1994, 129.
398
94/2788; 94/6217; 7.7.1994; 20 YKD 1994, 1847.
399
Ibid., at pp. 1849-1851.
400
98/6-280; 98/359; 24.11.1998; 25 YKD 1999, 238.
weight to the subjective element, ‘the decision to commit an offence’. He claimed that by
adding a condition not foreseen by the Code, the Yargitay narrowed the scope of section 80
which can only be done by the legislature. This is accepted not only in Italian but also in
Swiss, Belgian and French laws, the judge summarised the position in the Italian ‘source law’
by reference to legal writers such as Battaglini, Pannain, Ranieri, Antolesei, Nuvo Lone,
Fiandaca, Mantovani, Musco, Padovani and Cavallo. He then claimed that there was a
translation error in section 80 and that a Turkish unification of precedents decision in 1929
had unfortunately further established this error. In 1941 the section was amended. As before,
the judge blamed this unhappy development on the interpretation of the Italian-Turkish
Criminal Code in the light of the French Criminal Code, which is incompatible with the
Italian one. According to him, ‘decision to act’ and ‘criminal intention’ are not equivalent. In
an earlier decision, the General Council of Criminal Law of the Yargitay401 compared the
Turkish Code with ‘the source law’ and pointed to the fact that section 80 had been amended
and the terms ‘the same intention to commit an offence’ was now replaced by ‘the same
decision to commit an offence’. The decision then discussed other Yargitay decisions and the
doctrine on this point, making reference to Antolisei-Maggiore and Manzini.
6.3.2.1.g. In a dissenting opinion attached to a case related to ‘provoking animosity by
discrimination on religious and racial grounds’, section 312/2 of the Turkish Criminal Code
was compared to its Italian counterpart, section 414 of the Italian Criminal Code, in the
course of determining the meaning of ‘danger’ and ‘openly provocative and discriminatory’,
and an Italian High Court decision of 1991 and Italian doctrine were referred to.402
6.3.2.2 French-Turkish law
Another area worth mention is administrative law. The source French administrative law and
the decisions of the Conseil d’État are part and parcel of administrative law scholarship and
teaching in the Turkish Law Faculties. Young administrative law academics joining the law
faculties are expected to know or to learn French, if they aim to be good and creative
researchers. From time to time, Danistay decisions also make reference to French doctrine
and occasionally to French cases, though the frequency of these references has gone down
over the years. As observed earlier, there has been some American influence in this field but,
more importantly, a strong local administrative law scholarship has developed. The Danistay
is a very active court, which adjusts the techniques of judicial review to local problems
effectively and, in the last decade, without reference to domestic and foreign doctrine or
foreign judicial decisions.
6.3.3 Mode Two: Layered and hyphenated existence
This mode, ‘the hyphenated existence’, is the product of the transformation of the ‘layered
law’ into a ‘hyphenated law’ through the efforts of the courts to smooth out differences and
weld various layers together. We will now look at examples of this mode always
remembering that the product of the interaction, that is the behaviour of each layer when a
law collides with those that precede it or follow it, is the law.403 The ‘modern layer’ of the
401
98/11-205; 98/304; 13.10.1998; 24 YKD 1998, at p. 1809.
402
98/10296; 98/11672; 23/9/1998; 24 YKD 1998, at p. 1732.
See E. Grande, ‘Preface’, in: E. Grande (ed.), Transplants Innovation and Legal Tradition in the Horn of
Africa (Trento: L’Harmattan Italia, 1995), 5-16, at p. 14.
403
Turkish legal system is the predominant layer and reflects both the ‘hyphenated’ nature of the
law and embodies the mixing layers of the system. The mixed nature of the modern layer has
been kept alive, the examples of which we have already seen. We can in fact talk of ‘modern
layers’ rather than ‘modern layer’ of law borrowed from various sources. Their interaction is
of the utmost importance, maybe as important as the one between the modern layer and the
underlying layers, such as the traditional and the religious. The ‘hyphenated’ nature of the
legal system is also important in not allowing the received legal institutions to be profoundly
transformed upon transfer. Pluralism, in any of its senses, is enveloped in the monolithic legal
system. This system reflects various legal cultures married to each other, blending the
socio-cultures reflected in these with the local socio-culture. No one of the layers is in
competition.
If we ‘approach law as the outcome of a rather complex competitive relationship
between different layers of law’,404 or even between different layers of systems, be they legal,
sociological, cultural or religious, what do we see in Turkey? We know that the legal
evolution has been through a succession of imports from abroad. We also know that the
Turkish legislature is intent on keeping the legal and the social fabric under centralised
control. So, are the various systems successfully interlocking? ‘Law and other such systems
exist in a world where they are each the background or environment of each other.’405 Is this
so for Turkey, or have ‘they become increasingly isolated from each other as they become
more and more self-referential’?406 Although the Turkish legal system is self-referential in the
sense that it is only concerned with the law as envisaged by the formal legal system and does
not enrich itself beyond necessity by discourse with other systems in society, it is at the same
time not self-referential, in the sense that it still consults ‘the source laws’, thus taking
advantage of and strengthening its ‘hyphenated’ nature. Some examples of interlocking
between the social and the legal culture have already been observed above under 6.1.2.1 and
6.1.2.2. Now we turn to some other examples in keeping with the ‘hyphenated’ nature of the
experience.
6.3.3.a. A most remarkable case will serve as our first example. This is a decision of the
Yargitay reached in 1979.407 The case revolved around the sexual involvement of an
under-age village boy with a neighbour’s cow. The owner of the cow, rather than suing for
bestiality under the Criminal Code, sued to recover damages from the father of the boy. He
claimed that his cow could not be sold or its meat and milk consumed, since, according to
religious sources which he cited, it had become untouchable. The case was dismissed by the
lower court for lack of legal grounds as religious law is not a recognised source of Turkish
law. The owner appealed. The Yargitay rendered its decision making use of section 1 of the
Civil Code mentioned above and overturned the decision of the lower court.
Although religious rules or sentiments could not of course form the basis of any claim, if the
complainant could prove by expert evidence that there were local religious or moral beliefs or customs
from time immemorial to the effect that the meat and the milk of such an animal could not be
consumed, then the animal would be considered to have lost its market value, in which case, by the
404
Ibid., at p. 7.
Z. Bankowski and E. Christodoulidis, ‘The European Union as an Essentially Contested Project’, (1998) 4
European Law Journal, 341, at p. 348.
405
406
Ibid.
407
79/1644; 79/14383; 21.12.1979.
application of the ‘noxal’ rule of Roman law, the cow should be given to the father of the boy and the
claimant should be given the market value of the cow by the father. 408
The formula is not only a fine example of how the Yargitay avoids openly facing religious
issues and yet resolves disputes within the formal legal system, but also how the ‘layers’ of
systems are turned into a ‘hyphenated’ interlocking.
The same issue was dealt with in a very recent case where the lower court decided
that the pursuer had no case as there was no ‘medical objection’ to the utilisation of the meat
and the milk of such an animal. The Yargitay, overturning the decision of the lower court,
declared that when there is no codal provision applicable to a matter then, according to
section 1 of the Civil Code, tradition and custom are to be resorted to: ‘Since facts are not in
dispute in this case, tradition and custom have to be investigated in line with the claim and if
custom, tradition, religious and moral beliefs and conceptions are in line with the claim, then
the existence of damages cannot be questioned. The pursuer should be asked whether he
wishes to surrender the animal to the defendant in return for price, and if not, then a
reasonable compensation must be decided upon.’409
6.3.3.b. Another case410 demonstrates how the Yargitay protects custom and yet stays within
the framework of the formal law, accepting, be it with distaste, the power of the legislature to
interfere with custom but not that of the executive. When a local administration banned the
paying of the dowry, which the Court defined as ‘an amount of money paid by the family of
the groom to the family of the bride to cover necessary expenses, a tradition and custom
established over the centuries; it is a fact to be accepted, whether good or bad’, the Court held
that a person who refuses to conform to such an administrative act cannot be regarded as an
offender and be punished. The Yargitay said:
the question is, can the local administration erase such a tradition or can it issue such an order and
thereby convert a tradition into an offence. ... If the giving and taking of dowry is against public policy
or is conducive to committing an offence (abduction), only the legislature can ban it. ... however, we
also believe that such matters should not be regulated even by the legislature. This is a matter of
education not of law. ... The decision of the local administration is also in violation of the Constitution.
... Law No. 55 on the Ban on Excessive Expenses in Weddings concerning clothes, gifts etc., at
weddings was likewise annulled by the Constitutional Court.411
6.3.3.c. However revolutionary the formal legal system may have been in cutting ties with the
past, vested rights established at the time of the Ottoman Empire are respected by the courts
especially in implementing rights over land. For example, in a case where the dispute was
related to rights over a pasture, two villages both regarded as ‘ancient’ and both having been
established before 1782 by ferman of the Sultan (Imperial Decree), claimed rights based on
their respective decrees. The Yargitay stated that an administrative decree issued at the time
of the Ottoman Empire has no status as a source of law in Turkey today, unless it is an
‘absolute decree’ establishing ownership as pronounced by the Sultan, this status being
gained by being based on a court decision or registration, or being supported by a muvella
408
Ibid., at p. 103.
409
98/2632; 98/3249; 24.3.1998; 24 YKD, 1998, at p. 834.
410
86/2-584; 86/299; 26.5.1986.
411
66/156; 66/34; 20.9.1966.
ilami.412 Though both villages could produce such decrees, only one was able to produce such
a proof which had already been used in resolving another dispute in a court, so this was relied
upon by the Yargitay.
6.3.3.d. Obviously, some of the examples seen under 6.2.2.2, such as those under (d), (e) and
(f) are equally pertinent under this heading.
6.4 Assessment
Gessner says: ‘Empirical evidence in history and from contemporary reception processes
[shows] that a legal culture is rooted very deeply in society and cannot easily and quickly be
changed by top-down measures.’413 Does the Turkish experience successfully challenge this
observation? Can we speak not only of a ‘hyphenated legal system’ but of a ‘hyphenated
socio-culture’?
I am indebted to Caglar,414 for the term ‘hyphenated’, which I have used as part of my
vocabulary of analysis. In the form used in Caglar’s contribution, the term ‘hyphenated’ can
be moved into my ‘mode two’ above. In the manner I analysed it, however, it fits well with
the character of the Turkish legal system. In Caglar’s discourse ‘hybrid’, ‘creolised’ or
‘hyphenated’ can be used interchangeably, but for my purposes only ‘hyphenated’ is
appropriate. The term ‘hybrid’ is used in relation to ‘mixed jurisdictions’ in comparative law
discourse. As already observed, the ‘hyphenated’ character of the law in modern Turkey and
the hyphenated nature of the existence and identity of her people pertains to her ‘second
generation’ laws and peoples as well as the first generation. From its inception onwards the
Turkish legal system mixed with, and yet at the same time tried to transform, other systems,
be they social, political, ideological, religious or economic. Turkish law is not internally
homogenous and its roots lie wide both at home and abroad. The interlocking between the
systems of Turkey is not yet complete. Whether it will ever be so is open to question. If the
notion of ‘unity in diversity’ is adhered to, then do ‘hyphenated’ systems have a special place
in this?
The twentieth century has seen the full impact on Turkey of laws of European origin,
themselves the product of centuries long interreceptions. This blend gave Turkish law its
civilian secular character. Zweigert and Kötz find this experience remarkable, since ‘nowhere
else in the world can one so well study how in the reception of a foreign law there is a natural
interaction between the interpretation of the foreign text and the actual tradition and usages of
the country which adopted it, with the consequent gradual development of a new law of an
independent nature’.415 Law developed after 1930 in Turkey is the continuation of the trend
that was established between 1926-1930. Developments today with the aim of further
integration with Western Europe and the EU can be regarded as related to this steady line of
development and may be termed ‘incremental reception’.
Turkey has never been a colony. This fact obviously attaches less stigma to incoming
412
A judicial decree from one in charge of a thing.
413
V. Gessner, ‘Global Legal Interaction and Legal Cultures’, (1994) 7 Ratio Juris, 132, at p. 136.
A.S. Caglar, ‘Hyphenated Identities and the Limits of “Culture”’, in: T. Madood and P. Werbner (eds.), The
Politics of Multiculturalism in the New Europe (London: Zed Books, 1997; Postcolonial Encounters Series), pp.
169-185.
414
415
Zweigert and Kötz, op. cit., at p. 178.
models.416 That Turkey was never a colony is, therefore, the first factor to be mentioned as a
peculiar feature of this experience.
The second factor is that what was introduced was not just a set of legal rules or even
a legal system but a way of life. ‘Colonialists, with the probable exception of France, who
introduced ‘acculturisation’, may have seen no benefit in modernising the way of life of their
colonised people. ... The Turkish ruling elite definitely was interested in modernisation and
national integration.’417 What was borrowed was a means of modernity. The aim was to
become European, legally, socially and culturally. This goal has a symbolic value in Turkey
and is still very much alive.
The third factor is an overarching historical accident. The Republic was established
after the war of independence and the collapse of the Ottoman Empire. This opened various
paths for the future, the ground was cleared. A firm decision was made for an independent,
modern, viable Turkey. National unity was the driving force. The charismatic leader, Atatürk,
had an exceptional vision. He was greatly admired. This phenomenon can be called a
‘paternalistic imposition of purpose’. The country was reduced in size inside compact borders
with ten million people and an eighty percent illiteracy rate.418 All these elements together
with incentives, simplifications and education contributed to the success of the experience.
The fourth factor is that the official programme was geared to eliminate personal
choice of any kind not regarded as desirable by the formal legal system and to this end
cultural and legal pluralism was not acceptable. This ‘non-socio- and non-legal culture
bound’ approach was indifferent to legal history. It is claimed that an emphasis on ‘legal
cultures’ and their role in framing national laws eventually ‘prevents’ or ‘distorts’
borrowing.419 ‘From time to time, fluctuations from this position for vote-catching purposes
can be seen, but overall, there has been no significant change over the years.’420
Fifthly, the borrowing took place while the legal system was evolving and still
incomplete and one could even query whether a fully developed legal culture existed prior to
these borrowings. The legal tradition was certainly ‘weak’ and widely open to foreign
cultural intrusion.421 In fact, some of the existing traditional institutions were themselves the
object of transplant. Also, since what was imported was not only content but also structure,
the legal system displayed strong similarity to the Western legal systems. This experience
proves the point that, ‘between two totally different systems, an overall reception is easier
than wide-ranging imitation of particular rules and institutions’.422
Yet, as there was no direct contact between the models and the recipient, the culture
416
Although Mattei says for Ethiopia that a strong and long-lasting colonisation by one single power means that
the flavour of the legal system has not changed after colonisation. See U. Mattei, ‘The New Ethiopian
Constitution: First Thoughts on Ethnical Federalism and the Reception of Western Institutions’, in: Grande, op.
cit., 111-129, at p. 125.
417
Örücü (1992), op. cit., at p. 57.
418
Although the inclusion of the high rate of illiteracy among the factors contributing to the success of social
reforms may sound bizarre, it actually helped in the process of change from the old Arabic script to the Latin
alphabet and the Roman numerals, since many would have to learn to read and write from scratch.
419
Monateri, op. cit., at p. 84.
420
Örücü (1992), op. cit., at p. 558.
421
See Monateri, op. cit., at p. 85.
422
Sacco, op. cit., at p. 400.
of the masses, though changed, remained on the whole unrelated to the models and this in
spite of domestic efforts to change the people. In colonial relationships, such as those in
Indonesia, India or Hong Kong, direct exposure to the model contributed to the social system.
In Turkey, at the level of law, the success of the import is not questionable; the mixed layers
of modern law from various sources have been successfully adapted to the conditions of the
recipient. Whether the import made the desired impact on the whole of the population is,
however, questionable. It is a truism that for such a reception to be successful it must be
backed up by education, pro-active judges and creative academics. Times of reception are
also times for domestic creativity. The ‘viruses’ which then become ‘irritants’ and create
their ‘antibodies’ must be carefully and creatively nurtured. As already pointed out in section
5 above, Grief423 discussed the concepts of ‘habit forming’ and ‘contaminant’ and Teubner,424
‘legal irritants’ and ‘healthy infusion’. The evolutionary dynamic that ensues from these
phenomena has been observed through the above examples of Turkish law and how it is
adjusted and homogenised. The divergences and the unintended consequences of these
phenomena have also been touched upon. These developments would be worth looking into
more deeply, in a different context.
In a case such as that of Turkey, there are always fears that the social and cultural
systems and the legal system will not easily accord. However, the results of a number of
surveys show that the transplanted legal system has indeed influenced even the rural areas of
Turkey. Starr and Pool425 report that their data ‘suggest that planned legal change over time
does indeed affect populations and institutions at the local level’. They give support to the
view that a legal system of the modern type ‘may be sufficiently independent of other social
and cultural systems, that it may exist for long periods while maintaining a degree of
dissonance with central cultural values’. Banakas points out that, ‘Transplanted on a massive
scale it [the law] can, of course, change completely the socio-economic identity of the
recipient socio-political system. ... the determination of Turkish leaders to succeed in their
objective, finally caused the desired alteration of the existing socio-economic structure, by
the imported legal system.’426 Again, Starr and Pool submit, ‘our data ... suggest that the
Turkish revolution is a revolution in more than form. ... The use of the courts by citizens
extends to areas formerly within the sphere of religious law alone - to such an extent that
these are now among the most common kinds of cases.’427
According to Sacco, ‘Borrowing and imitation is ... of central importance to
understanding the course of legal change’ and ‘... the birth of a rule or institution is a rarer
phenomenon than its imitation’.428 This view also accords with Watson’s, who says, ‘the
moving of a rule or a system of law from one country to another has now been shown to be
the most fertile source of legal development since most changes in most systems are the
result of borrowing’.429 Monateri goes even further and says that practically every system has
423
Grief, op. cit.
424
Teubner, op. cit.
J. Starr and J. Pool, ‘The Impact of a Legal Revolution in Rural Turkey’, (1974) 8 Law and Society Review,
533.
425
E.K. Banakas, ‘Some Thoughts on the Method of Comparative Law: The Concept of Law Revisited’, (1981)
67 ARSP, 294.
426
427
Starr and Pool, op. cit.
428
Sacco, op. cit., at pp. 394, 397.
429
Watson (1996), op. cit., at p. 94.
grown from ‘contaminations’ and the actual legal world is more to be seen as a world of
‘contaminations’ than a world split into different families.430 Moreover, it can be said that the
Turkish case provides additional evidence that there is not much that is original in law.431 The
originality is in the peculiar selectivity in the borrowing, in the ensuing mix and the
homogenisation process in the courts.432
Nevertheless, if continuity and harmony are in the essence of well-functioning
systems, then, internalisation of norms and standards by the people in the recipient system is
crucial. Internalisation is also crucial if there are to be fruitful developments. Today it is
generally granted that harmony as a possibility of conversation433 can be achieved through
appreciating diversity as well as by eliminating diversity. Yet, in Turkey, if this were to mean
the abandoning of ‘the vision’, then it is fair to say that the purée of Turkish law and its
‘hyphenated’ nature together with the ‘hyphenated’ nature of her socio-culture are here to
stay. As stated by this writer elsewhere,434 the formal legal system in Turkey performs a
balancing act. At times it tries to maintain a firm stance, at other times it allows the
traditionalist views to be heard. Yet, it survives against all odds. The overall picture is quite
static. The pressure the formal system faces ‘is daunting, especially in view of the narrow
economic straits in which Turkey finds itself. Old mixtures, mixtures seemingly blended
having the appearance of the purée referred to earlier may curdle. Components not yet sour
may become so and separate. Then one may have to talk of a new mix.’435 Whatever the
mixture, however, both the legal and the socio-cultural systems will always remain
‘hyphenated’.
One could, of course, always conjecture that such a legal system with not much
earlier experience with codification436 might have become a totally different creature had
there been a prior established legal tradition, a uniform socio-culture, no elite, no desire on
the part of that elite with a preference for cultural alignment with the West to modernise in
the direction of Western civilian legal and social traditions, no incentives and no internal or
external pressure.437
7. The case of Central and Eastern Europe: Choice, chance or necessity?
7.1 Systems in transition
At present, Central and Eastern European legal systems are experiencing a fundamental
upheaval. With the help of outside models chosen from competing systems, they are
reshaping themselves. This is so in social, economic and legal terms. They are systems in
430
Monateri, op. cit., at p. 107.
431
Grande, op. cit., at p. 14.
432
The borrowing system realises a unique mixture of diverse patterns. See Monateri, op. cit., at p. 106.
433
As earlier discussed under 5.5 supra.
434
Örücü (1996), op. cit., at pp. 110-111.
435
Ibid., at p. 111.
436
The received codes of the Tanzimat period and the Medjelle discounted.
437
Yet another ‘ifs’ and ‘buts’ situation!
transition. Some of the issues specific to the Case of Central and East Europe have already
been highlighted in sections 2, 3 and 4 above.
Central and Eastern European systems are usually grouped together. For our purposes,
however, it is important to note a fundamental difference between the two components in this
group. On the one hand, there are the Central European systems that face fewer problematics,
in that they already had considerable civilian characteristics before they were subject of
massive impositions and imposed receptions from the socialist socio-cultural and legal
cultural tradition. The socialist tradition itself was partly a derivative of the civilian tradition.
The legal systems in this group can now be thought of as returning to the Western legal
tradition.438 Yet, the Western legal tradition is itself no longer solely civilian in character
since, within it, new encounters are taking place either directly between socialist law and
common law,439 or between civil law and common law as part of EC law.
On the other hand, the Eastern European group is more problematic. This group has
two subgroups and the two subgroups each face different problems. Members of one
subgroup had no substantial previous legal contact with the civilian or common law systems
which are now offered to them as the competing models for law reform. They already faced
socio-cultural clashes when the socialist tradition was imposed on them. As Saidov points
out,440 in Uzbekistan, for example, the principal elements of Romano-Germanic law as to
form was introduced when the Russians occupied Central Asia and then again during the time
of Soviet law.441 Saidov states that it is only now that not just the form but also the content
conforms to Continental law.442
In this first subgroup, considerable ‘transposition’, a process to be addressed shortly,
must take place to resolve the new clashes between traditional/socialist, socialist/civilian,
socialist/common law and common law/civilian combinations. Systems in the second
subgroup, however, are similar in many ways to the Central European legal systems which
have had previous contact with the civilian tradition.
7.2 Legal transpositions
Concepts such as ‘contamination’, ‘inoculation’ and ‘infiltration’ are all appropriate terms to
describe encounters that are taking place in these regions, and ‘transposition’, ‘imposed and
voluntary reception’ and ‘concerted parallel development’, the activities.
Although the term ‘legal transplant’443 is generally used to describe the main means
of law reform, the term ‘transposition’, used as in music, may be more apt in these
instances,444 in that, here ‘the pitch’ is changing. That is, each note (legal institution or rule)
438
See the diagrams in Örücü (1995), op. cit., at pp. 14-16.
439
As a result of which ‘trust’ has entered the Russian Civil Code, for example.
440
Saidov, op. cit.
441
Ibid., at p. 483. We know that Russian law prior to the socialist era was not totally civilian either.
442
Ibid., at p. 484.
Monateri claims that the term ‘legal transplant’ utilised by Watson for ‘scholarly purposes’ is today taken
over by ‘purposive practical lawyers’ involved in projects of ‘exporting their own legal systems’. See op. cit., at
p. 83.
443
444
Transposition as understood here is a term appropriate in analysing many instances of transplants other than
only those in CEE, of course.
is sung (introduced and used) at the same place in the scale of the new key (of the recipient)
as it did in the original key (of the model); the ‘transposition’ occurring to suit the particular
voice range (socio-legal culture and needs) of the singer (the recipient). In fact, a series of
‘transpositions’ can be observed since no one model is used in any one of the recipients.
Ajani highlights the question whether the current needs of the post-socialist
economies are met by ‘new legal models’. He stresses the fact that for importation to be
successful there is a need for adaptation, or what I would call ‘transposition’, to the
conditions of the recipient countries. Ajani looks at the borrowings in the three Baltic States
and says that a civil code is regarded as a ‘symbolic document’.445 Latvia went back to a
re-enactment of a pre-Socialist Code which she had had. Lithuania followed Hungarian and
Polish examples and gradually renewed the original texts it had had, preserving the general
outline of the old code. Estonia opted for the adoption of a new text, largely borrowed from
German models. Ajani shows here the extensive role of comparative law in the Baltic States,
with the possible exception of Latvia, by ‘comparative analysis of competing models’.446 He
then deals with the Russian Code which came into force in 1995. This 1995 Code has been
legitimised in the following words:
The Civil Code is based on the deep-lying traditions of Russia’s codified civil law, which has a history
of almost two centuries. ... At the same time the draft of Part I ... has absorbed, like a sponge, many
new statutes of foreign legislation and progressive civil law thought. Great assistance in the recognition
of the essence of these new statutes and ideas has been rendered by Dutch, Italian, American and
German jurists, who have co-operated to great effect with Russian jurists engaged in the preparation of
the draft civil code of Russia. But there is in the Code not a single article that is the result of a direct
importation of the corresponding provisions from foreign legislation. The ideas of our foreign
colleagues that were deemed acceptable were embodied in specific articles by the Russian lawyers with
the observance of all the traditions of codified Russian civil law. 447
Ajani observes that in this part of the world, new legal models are looked for even though
they may be transitional texts and therefore incorporate existing conditions; the old models
are abandoned with a strong sense of ‘optimistic normativism’.448 However, Smits warns us
that care must be taken since ‘a transplanted legal system that is not compatible with the
[legal] culture in the receiving country only creates a virtual reality. In other words,
importing a Western legal model does not automatically lead to economic activity.’449 It has
also been noted that, in order for the transpositions to succeed here, the movement of
codification and constitutionalisation must be accompanied by ‘training of a new generation
of judges and advocates, a reordering of the procedures and practices of the courts, the
establishment of an impartial, civilian and strong police-force, and a concerted effort to
subject the decisions of the administration to the scrutiny of independent judges’.450
445
Ajani (1998), op. cit., at p. 70.
446
Ibid. The bottom-up concept in comparative law may also coincide with the competition of rules suggested by
Smits (1998), op. cit.
447
Ibid., footnote 12, at p. 72.
Ibid., at p. 68. Also see G. Ajani, ‘La circulation de modèles juridiques dans le droit post-socialiste’, (1994)
4 RIDC, 1087-1105.
448
449
Smits (1998), op. cit., at p. 55. See, however, the Turkish example.
R. Scruton, ‘The Reform of Law in Eastern Europe’, (1991) 1 Tilburg Foreign Law Review, Journal of
Foreign and Comparative Law, 7, at p. 8.
450
7.3 The elements of the present experience
7.3.1 Form and content
When we survey the present experience of Central and Eastern Europe as to form and
content, we observe that the experience as to form indicates that the technique employed,
predominantly codification, is national and not imported since most of the legal systems
already had codified their laws prior to becoming members of the socialist tradition. These
Codes were, however, mostly based on foreign models at that time, that is, the classical
continental models. Later, codification was a landmark of the socialist tradition also.
Nevertheless, the new codifications are a sign of a rupture with the immediate past and there
is an urgency which prevents enough time being spent in the production of these Codes.
Politicians look for quick answers. In spite of this, though, there is not a general tendency just
to ‘graft’ new concepts onto existing frameworks. It appears that there is a weariness to
perform a ‘cut and paste’451 job here, though carrying out a ‘cut and paste’ job rather than
aiming at a deeper seepage may be the sign of our age.
The experience as to content shows that it is eclectic, though predominantly civilian,
most provisions being free market economy facilitating provisions. In earlier sections we
have seen some American input also as to content if not to form. For example, in Russia
Continental and Anglo-American experts work together first to help in the preparation and
then in the installation of a model fashioned to fit the needs of the Russian socio-cultural soil.
What is provided is legal advice, not just in the abstract, but practically during the process of
drafting.452 It is worth reiterating that the new models are not just the classic ones either, but
the EU, uniform laws, International Conventions, Anglo-American experience and the newly
modernised models such as those of the Netherlands and Quebec.
7.3.2 Chance
We know that ‘borrowing is the most fruitful source of legal change’ and ‘practical utility is
the basis for much of reception of law’.453 However, the element of ‘chance’ has also always
been extremely important; ‘a particular book may be present in a particular library at a
particular time’.454 Watson says that chance is ‘something that could not be predicted’.455 In
the present ‘transpositions’, however, the element of ‘chance’ has been superseded by
‘prestige’ and the respective ‘power profiles’ of competing legal systems as well as
‘economic efficiency’.
7.3.3 Prestige and efficiency
Mattei rightly points to ‘prestige’ as the element at the forefront456 in the search for
451
For the term, my thanks go to Michael Anderson, Director of Studies, BIICL.
452
Smits (1998), op. cit., at p. 64.
453
Watson (1996), op. cit., at p. 335.
454
Ibid., at p. 339.
455
Ibid., at p. 340.
456
Mattei (1994), op. cit., pp. 6-7.
‘economic efficiency’457 and stresses the phenomenon of ‘transplant by competition’. The
search for ‘efficiency’ encourages ‘transplants’ and this presents itself as a choice from a
pool of models of competing legal systems.458 A convergence by ‘economic efficiency’ is
also inevitable. Ajani also discusses the role of ‘prestige’ and ‘political opportunity’. He
further comments on commercial law and says that most commercial legislation of Central
and Eastern Europe shows the influence of the German model, the choice being ‘driven by
the prestige of the model’.459 According to Sacco,460of the two fundamental causes of
imitation: ‘imposition’ is one and ‘prestige’ the other. He states that comparative law has no
definition of ‘prestige’ and yet that ‘Usually, reception takes place because of the desire to
appropriate the work of others. The desire arises because this work has quality one can only
describe as “prestige”.’461Here the final question must be: Does the ‘efficient’ model have to
be the ‘prestigious’ model?462 Is ‘synergy’ the answer? Monateri, however, is scathing of the
whole movement when he says that it all depends on a prestigious presentation of the model
‘sometimes with reference to “efficiency” as a magic keyword in the rhetoric of borrowing
elites’.463
7.3.4 Elites
The crucial role played by elites and ‘intellectuals’ is another element to be stressed.
Monateri states that the logic of the transplant is directed by competing elite in search of
legitimation.464 The text legitimating the 1995 Russian Civil Code, quoted above, is pertinent
also in this context. In addition, the Turkish case discussed under section 6 provides a
far-reaching example for the role of the elite in the reshaping of the system.
7.3.5 Choice
The element of ‘choice’, however, seems to be more or less lacking here and is more
problematic. At the time of the initial break-down of these systems, a decade ago, a crucial
choice was made to move outside the existing legal tradition. Thereafter, the element of
‘choice’ was replaced by ‘necessity’. The new desire and vision preclude real choice now.
That is why the term ‘imposed reception’ is more appropriate than ‘reception’ to depict what
is taking place. However, it is true that there is an element of limited choice as to which
models to follow or be influenced by. As has been pointed out by a number of scholars, there
is a diffuse influence of foreign models here since there is foreign inspiration and suggestion
457
Ibid., at p. 8. Economic efficiency could be seen in our day as conterminous with ‘practical utility’.
458
Ibid., at pp. 8-9.
459
Ajani (1998), op. cit., at p. 80.
460
See Sacco, op. cit., at pp. 398-400.
461
Ibid., at p. 398.
462
See infra Smits’s observations of the success of the Dutch model.
463
Monateri, op. cit., at p. 95.
Ibid., at p. 94. See G. Ajani, ‘By Chance and Prestige: Legal Transplants in Russia and Eastern Europe’,
(1995) 43 Am. J. Comp. L., 93. See also U. Mattei, ‘Why the Wind Changed: Intellectual Leadership in Western
Law, (1994) 42 Am. J. Comp. L., 195.
464
but national choice and imports have only persuasive authority as no one legal model has
been imported wholesale. Nevertheless, though overall there is some choice, this choice is
limited by a desire on the part of these systems in transition to become part of the Western
world. Economic factors here have a predominant part, although Western fundamentalism as
to democracy, rule of law and human rights give an added impetus to the Western export.
7.3.6 Culture, structure and substance
As always, the incoming legal tide is made up of legal culture, legal structure and legal
substance. The structure and substance can be transposed with less difficulty than legal
culture which is itself part of socio-culture. Not only transpositions but distortions that will
occur here in order to fit the existing traditions are surely going to have a serious impact on
how the structure and substance work. What the transposed ‘irritants’ produce as
‘anti-bodies’ and the health of the systems in transition will have to be assessed in the
twenty-first century. The difficulties are not in the transference of techniques and forms but
of values and contents, which in turn themselves ‘contaminate’ the forms in action. Monateri
comments on the ‘commodification’ of legal rules which is also suggested by the use of the
concept ‘import and export of legal rules’. According to him this is especially so in relation to
former Socialist countries where legal rules are regarded as ‘commodities’ not tied to legal
history or to legal culture.465
7.4 Models
As already observed, today in reciprocal influences, models are competing to sell their
export. In Central and Eastern European countries the competing systems are the USA, the
EC and the individual member states of the EU, in a gradation according to their ‘power
profile’ and their previous contacts with these systems now in transition. We know that the
new Dutch Civil Code has won the competition as one of the competing models in Russia in
the preparation of the Russian Civil Code. However, Smits makes additional and revealing
observations. Today, according to him, smaller countries such as the Netherlands are in a
much better position to export their law than countries who play the ‘politics of power’.
Smits says that the Russian drafting team were well aware that the Dutch experts had no
other goal but to improve the quality of law reform in Russia. He suggests that the
superpowers are more readily accused of legal chauvinism.466 Secondly, Smits makes the
point that Dutch law is able to fulfill its exporting task because in her past the Netherlands
was itself an importing country. Thirdly, the new Dutch Civil Code of 1992 is influenced by
German, French and English laws and is the outcome of thorough comparative studies.
Added to this is the fact that the Dutch Code offers a mixture of a market economy and the
idea of a social Rechtsstaat. These factors are part of its attraction as an ideal model,
especially as a source of inspiration.467 As a consequence, Dutch legal advice is playing an
important role in the former Communist countries of Central and Eastern Europe.
Nevertheless, Smits states that, compared to the advice given by American, German and
Italian experts, the Dutch influence was considerable, though it is not possible to trace it back
to specific provisions in the Russian Civil Code, for example.468 Nonetheless, the Dutch Civil
465
Monateri, op. cit., at pp. 84-85.
466
Smits (1998), op. cit., at p. 63.
467
Ibid., at pp. 47, 51, 63.
Code ‘seems to have an attraction for countries in need of a new legal infrastructure for a
market economy’, since private law is used ‘as a conscious and deliberate vehicle of social
change’ in transforming the economic system.469
In this context, Albania can also be mentioned as an example. As Ajani points out, the
Albanian Civil Code of 1994 is influenced by some of the elements of the old Albanian Code
of 1928, which was mainly based on the French model and the 1942 Italian Civil Code. The
Code also retained some of the structure of the 1981 Albanian Code. The pervasive Italian
influence is thoroughly discussed by Ajani.470 In the area of Commercial Code, the Albanian
Code of 1992 was influenced by French, German and Italian models. Ajani says that here the
need to harmonise with the legislation passed by the EU simplifies matters.471 The final aim
is future adhesion to the EU. He also observes that the 1989 Italian Code of Criminal
Procedure with its strong commitment to the Anglo-American accusatory system has become
a ‘tempting model for some post-socialist law-makers’.472
For a detailed introduction to Dutch export through the central body co-ordinating
law reform assistance, the Centre for International Legal Co-operation in Leiden, to Central
and East Europe over the past years, Smits’ account is extremely helpful.473 It shows that the
bulk of activities consisted of co-operation with the countries of the former Soviet Union,
Dutch experts participating in the drafting of a Model Civil Code as well as Codes on
Criminal law and Criminal Procedure for the CIS countries. Those involved are Russia,
Belarus, Kazakhstan, Kyrgyzstan, the Ukraine, Mongolia, Georgia, Armenia, Moldova,
Azerbaijan and Uzbekistan. What is of great interest is that the project relied on a
consultation process involving close co-operation with the American Rule of Law
Consortium established by two major American commercial consultancy firms. In Armenia
for instance, Armenian, American and Dutch experts were involved in the drafting of a new
Penal Code and Code of Criminal Procedure in co-operation with the Council of Europe.474
The Dutch Ministry of Justice also funded drafting consultancies to modernise Polish
legislation.475 Another interesting development was the collecting of Western study material
prior to codification to facilitate the study of the Russian Penal Code of 1996 containing a
number of Western legal concepts, with Russian lecturers preparing textbooks in the
Netherlands.476
7.5 Assessment
The resultant legal systems of Central and Eastern Europe can be dubbed as ‘layered
468
Ibid., at p. 63.
469
Ibid., at p. 65.
470
Ajani (1998), op. cit., at pp. 74-80.
471
Ibid., at p. 77.
472
See ibid., at p. 74, footnote 17.
473
Smits (1998), op. cit.
474
Ibid., at p. 57.
475
Ibid., at p. 58.
476
Ibid.
systems’ or ‘hyphenated systems’, if not simply ‘mixed systems’, depending on the
pervasiveness of the seepage and the degree of resolution of internal contradictions between
layers of law and culture. The use made of law in effecting legal and social transition will be
tested anew here in the coming decades.477
It is worth noting at this point an observation made by Scruton:
... it is not enough to draw up constitutions, or to establish constitutional courts. Not does it help to pass
law after law, in the hope of filling the gaps that have opened over the years of legal twilight. On the
contrary, the Eastern European countries do not need more laws but less. Or rather less pseudo-law;
less codes, regulations, permissions, protocols, and more real law. And above all they need to adhere to
the ruling principle of legality, which is that everything is permitted, unless a law says otherwise. 478
Then there is an important development, that is, the changes taking place in view of the
harmonisation and approximation needed for membership of the EU. For example, Tatham
writes on the European Community Law harmonisation in Hungary and analyses the process
of Hungarian harmonisation to meet the EC legal standards. He looks at the EU-Hungarian
relations and the legal and policy framework on which this harmonisation rests. The fields of
Hungarian law requiring approximation to EC law and the impact of this process on these
fields are discussed. As the legal system in the front of the line of CEE legal systems to join
the EU and as the model for trade agreements with other CSS countries, Hungary is
significant in any analysis of this type and therefore this study is very helpful.479
In a similar vein, Evans assesses voluntary harmonisation in integration between the
European Community and Eastern Europe, mainly concentrating on Poland, the runner-up to
membership of the EU.480 Here also the term ‘voluntary harmonisation’ is analysed and the
conclusion is reached that such a process is not able to take into account the structural
economic problems in these countries. By reference to Majone, Evans says, ‘force exerted by
a foreign model on domestic policy can be of two types: push and pull. ... In the context of
relations between the Community and third states in Europe, the force seems to be of both
kinds. The third state is pulled by its desire for closer relations with the Community and is
pushed by its own traders who see voluntary harmonisation as essential for easing their
access to the Community market.’481 Again the role of the Europe Agreements for the CEE
countries, and the assumption therein that these countries will shape their legal foundations
for their economic systems on the Community model as an ‘irreversible legal framework for
integration’, are looked at. It is stressed that what is important is to give serious consideration
to reform the legal framework within which such harmonisation takes place.482
One important question for comparative lawyers is: ‘What will be the implications of
these new developments for the ‘new ius commune’ for Europe? ‘Unity or harmony in
477
It is suggested that in order to understand the CEE systems we should consider them with a bottom-up and
source-oriented approach rather than a top-down, target-oriented approach. Any comparisons between common
law, civil law and socialist law also demonstrate the ‘translation dilemma’. See N. Jamieson, ‘Source and
Target-Oriented Comparative Law’, (1996) 44 Am. J. Comp. L., 121.
478
Scruton, op. cit., at p. 13.
479
A. Tatham, ‘European Community Law Harmonisation in Hungary’, (1997) 4 MJ, 249.
A. Evans, ‘Voluntary Harmonisation in Integration between the European Community and Eastern Europe’,
(1997) 22 E. L. Rev., 201.
480
481
Ibid., footnote 10, at p. 202.
482
Ibid., at p. 220.
diversity’ may be easier to achieve than ‘convergence and integration by eliminating
diversity’. Can the ‘new ius commune’ be achieved through appreciating differences and
‘transpositions’ rather than looking for ‘similars’? Could it be built upon a more limited and
realistic vision, that is, upon the ‘similars’ between ‘differents’, and by accommodating
‘differents’ in harmony?
There is yet a further question: Can one agree with Merryman,483 who observed in
retrospect that ‘socialist legal principles were a sort of temporary superstructure erected on a
legal base that was largely Western in character. ... the Western legal body appears to have
rejected the socialist transplant. ... The attempt to build a socialist legal order looks more like
a temporary deviation than a new direction’? Whether this is a simplistic view or not will be
determined in time when the new borrowings and transpositions start to work. It may well be
that the new ‘irritants’ will stimulate the old answers in transposed syncopations.
Obviously, these new genres of mixité484 are very well worth ‘system-watching’ by
comparative lawyers.
8. Can comparative legal studies offer the panacea? Where do we go from here?
We have been told that comparative lawyers enjoy privileges to the envy of other colleagues
and yet the burdens they bear ‘should invoke sympathy’.485 In addition to this, we were told
in 1966 that the subject had ‘by common consent the somewhat unusual characteristic that it
does not exist’.486 In 1949, we were warned that ‘legal definitions are notoriously
unsatisfactory and apt to lead to controversies which are often barren of result. This, in
particular, is the case when any attempt is made to define comparative law, since the
subject-matter, being non-existent, is one which defies definition.’487 Nearly half a century
later it is astonishing to discover that we have not moved very much further. However, what
is also interesting is that comparative law has been popular for a long time and ‘even
fashionable’.488 Now it is becoming more so.489 Since one of the functions of the comparative
legal enterprise is to extract new knowledge which can have diverse applications, its use has
never been denied. It must be pointed out immediately, that one thing comparative law is not,
is simply a way of contrasting and comparing civil law and common law in an effort to
resolve the dichotomy between them. Another thing it is not, is that it is merely a
sophisticated tool for private lawyers. However, attempts to answer the question ‘What is
comparative law?’ have received a startling range of replies throughout time. Comparative
483
J.H. Merryman, ‘The French Deviation’, (1996) 44 Am. J. Comp. L., 109, at p. 109.
484
E. Örücü, ‘Mixed and Mixing Systems: A Conceptual Search’, in: Örücü et al., op. cit., at p. 351.
485
O. Kahn-Freund, ‘Comparative Law as an Academic Subject’, (1966) 82 Law Q. Rev., pp. 40-41.
486
Ibid.
487
H.C. Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study and
Research, 2nd edn. (Cambridge: Cambridge University Press, 1949), at p. 2.
488
489
D. Tallon, ‘Comparative Law: Expanding Horizons’, (1968-69) 10 JSPTL, at p. 265.
See the recent issues of two prestigious journals of comparative law published in 1999, devoted entirely to
articles discussing all aspects of comparative law: (1998) 46 (4) Am. J. Comp. L. (Symposium ‘New Directions
in Comparative Law’) and (1998) 21 (4) Hastings Int’l & Comp. L. Rev.
law is an essentially ‘contested project’.490 The present writer said in 1982 that the
combination of all the above observations made her feel ‘bewildered’, ‘interested’, ‘glad’,
‘exhilarated’, and also ‘excited’ and ‘confident’.491 Her sentiments are even more pronounced
on the verge of the twenty-first century. Embarras de richesses ...
Lord Goff observed in a recent article: ‘Comparative law may have been the hobby of
yesterday, but it is destined to become the science of tomorrow. We must welcome, rather
than fear, its influence.’492 Koopmans, in a similar vein, said:
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.493
At the conclusion of his article Koopmans made the following apt observation:
In the nineteenth century, history was very much the fashion: in particular on the Continent, history of
the codes, pre-existing Roman law tradition, Poitier on obligations etc. Our own century discovered
society; it wondered how the law works, what its economic context is and how legal decisions can be
adjusted to social needs; and it saw the judge as a kind of decision maker, or even a ‘social engineer’.
The twenty first century may become the era of comparative methods. ... Our problems in society
increase as our certainties in religious, moral and political matters dwindle; and more and more
problems are common problems. The search for common solutions is only slowly beginning. 494
Legrand made similar claims for comparative law in Europe:
It is apt to say that Europe, or at least the Europe of the European Union, is currently experiencing a
comparative moment. To quote from Nietzsche, ours is the ‘age of comparison’. ...One can be forgiven
for thinking that Europe has become a comparatist’s paradise. ... The importance of comparative legal
studies extends far beyond matters of theory, cardinal as they are, and raises salient practical issues.
Comparatists who care about their subject, who value the contribution it can make to the European
legal order, should rejoice.495
So the twenty-first century has been heralded as the era of comparative law. And this, in spite
of the view that, ‘Comparative law has a role to play, but it is a limited role which should not
seek to express itself as a panacea for the jurisprudential inadequacies which presently seem
to afflict the new European legal order.’496 Ward, talking of the limits of comparativism, is of
the opinion that, when viewed from the standpoints of ‘necessity’ and ‘desire’, there is a
distortion of the function of comparative law. He sees a pro-active comparativism at work,
490
A calque from W.B. Gallie. See, Bankowski and Christodoulidis, op. cit., at p. 347.
491
Örücü (1982), op. cit., at p. 2.
492
Lord Goff, ‘The Future of the Common Law’ (1997) 46 ICLQ, 745, at p. 748.
493
Koopmans (1996), op. cit., 545, at p. 545.
494
Ibid., at p. 555.
495
Legrand (1996, LS), op. cit., at p. 232.
496
Ward, op. cit., at p. 33.
especially within the EU, and queries whether there is any real help offered by it: ‘At a micro
level, as a means of making the EU tick, comparativism is methodologically viable, even
useful. ... I would suggest, however, that doubts continue with regard to the value of
comparativism at the macro-level. ... Comparativism may have a practical bite, but
constitutionally, ideologically, philosophically, it is potentially either useless or dangerous, or
both.’497
In the present study it is suggested that comparative law should be renamed ‘Critical
Comparative Law’. Contrary to the above view, comparative law must now be accepted as
having an intellectual agenda broader than before. It is about communication and it allows
legal scholars to enter into holistic communication as it is the language of that
communication.498 Comparative law is the only part of legal science which enables scholars
to communicate in this way, notwithstanding the claim that legal historians also provide a
language.499
As considered earlier, in our day many legal systems are in transition and to differing
extents. More will be so in the coming decades. The majority of these systems are and will be
looking into reshaping their social as well as their legal systems. To achieve this they will
need to employ the services of comparative law. Comparative law will not only be the major
tool for law reform by providing models but it will be pressed to create blueprints for the
importer of models and to provide better understanding of changing concepts of nationhood,
sovereignty, legal system, law and identity. It will also aid the courts in resolving disputes as
one of the methods of construction and interpretation. Thus comparative law, by providing
models and modes of legal reasoning will supply systems in transition with the possibility of
structured change. Its role in this field, which seems accepted and already well established,
will strengthen. Above all it will provide answers. Comparative law cannot, however, be
regarded solely as an instrument of integration or an instrument of construction and statutory
interpretation, though the knowledge gained through comparative legal studies may be put to
such uses. It is an essential instrument of legal understanding and communication.500 As
comparative law examines the way in which legal institutions are connected, diversified and
transplanted,501 comparative lawyers must extend their subject beyond the traditional areas,
both geographic and substantive. They will have to reassess legal systems and legal families.
They must also place comparative law in a much wider context.
Comparative lawyers, having decided on the meaning of their subject, should not
begrudge the use of its services by others. The four trends discussed earlier, which are
developing on the verge of the new century should be encouraged as they will not only
produce tangible results but also allow for intellectual vigour which will take comparative
discourse further.502 The market value of comparative lawyers’ work will increase. Yet,
497
Ibid., at p. 30.
498
See also Ewald (1995, Penn. L. Rev.), op. cit., at p. 2149.
499
To see how to save it from becoming a dead language see G. Steenhoff, op. cit.
500
See Gordley (1998), op. cit., who claims that comparative law should not be a separate discipline, that all
lawyers must work comparatively all the time. See also P.J. Kozyris, ‘Comparative Law for the 21st Century:
New Horizons and New Technologies’, (1994) 69 Tul. L. Rev., 165, who, in spite of seeing comparative law as
purely a method, believes that its use and utility will expand and must be taken seriously.
501
Sacco, op. cit., at p. 388.
Mattei says that ‘Comparative law has matured from the common core approach to legal transplants, from
legal formants to the idea of legal traditions as a phenomenon of path dependency, and on to the notion of the
mute dimension of the law.’ U. Mattei, ‘An Opportunity Not to Be Missed: The Future of Comparative Law in
502
comparative law must maintain its independent character and not be swallowed up by new
relationships. It should not be replaced by ‘comparative jurisprudence’, ‘historical
comparative law’, ‘comparative cultural studies’, ‘comparative law and economics’, or any
other kind of ‘comparative law and ...’ that may evolve. In the titles of these perspectives
‘comparative law’ must retain a separateness and distinctiveness. ‘Critical Comparative Law’
should assess these trends through distinctive comparative legal analysis since all these trends
are concerned with transfrontier mobility of law and reciprocal influence between systems,
similar or different, and the ways in which these influences can be enhanced or diminished.
A major question and one which will continue to occupy comparatists, is: ‘Is
similarity a necessity for successful transplantability and fruitful cross-fertilisation?’ Watson
claims that even the misunderstood can be transplanted. Differences between national rules
do not seem to restrict the importation of them,503 though, legal cultural difference is the most
serious cause of the mismatches considered earlier. However, ‘when elements from two
different interpretive communities combine’, ‘one drawing its understanding from culture and
the other from law’ for instance, they may be able to tap into each other and mesh, bringing
‘cultural conversation’ into a broader narrative.504 This is the factor of ‘fit’. To realise this
‘fit’, ‘transpositions’ at the time of transplants can be invaluable. Dworkin understands law as
interpretation.505 This interpretation, that is law, is added to ‘cultural conversation’.
Competition, unlike contradiction does not entail anarchy; instead of ‘divergent’ we can
substitute the word ‘competing’, in which case there can still be harmony even for the most
discerning.
What if the concept to be introduced is incompatible with the host system and the
deeper values and purposes of the two are seemingly irreconcilable?506 One answer might be
that if a universal purpose were to be established and all societies understood its key
meaning, there could be a bridge between traditional cultures and Western style expressions
of norms and standards. In this case, comparative lawyers would be the bridge builders.
Better still, if reciprocity and mutuality were to be achieved between legal and cultural
systems, then all would become ‘contaminants’ and ‘irritants’ of each other. Shifting
horizons may reveal ways of appreciating the resultant divergences and harmony may be
achieved not only through ‘integrative’ comparative legal studies, but also through
‘contrastive’ comparative legal studies. The aim must be to keep the communication and
conversation going and allow cross-fertilisation. ‘Traditional’ or ‘conventional’ comparative
law has slipped down to either side of the viewpoint, critical comparative law sits at the
vantage point, commanding all views. Comparative lawyers must analyse and emphasise
what is actually there. This could be similarities or differences, or apparent convergence or
divergence. The comparative enterprise entails both recognition and appreciation of diversity
and search for commonality.
the United States’, (1998) 46 Am. J. Comp. L., 709, at p. 715. Also see Ogus, op. cit., at pp. 405-406, 418.
503
Compare with Gessner, op. cit., who says that universal harmonisation abstracts completely from the cultural
dimension of law and yet this is a major problem for European integration.
D.S. Berry, ‘Interpreting Rights and Culture: Extending Law’s Empire’, (1998) IV Res Publica - A Journal of
Legal and Social Philosophy, 1, at p. 10.
504
R. Dworkin, ‘Is Law a System of Rules?’, in: R.M. Dworkin (ed.) The Philosophy of Law, (Oxford: Oxford
University Press, 1977), 37-65; R. Dworkin, Law’s Empire, (Cambridge, Mass.: Belknap Press, 1986), at pp.
49-53.
505
506
Berry, op. cit., at p. 14.
This study ends by submitting that ‘Critical Comparative Law’ can perform the
function of an anamorphosis, by providing the angle from which distorted images can be
corrected and the distortion in perspective can be clarified.