syllabus
Law 342C.001
Topics in Comparative Law:
COMPARATIVE LAW:
DIFFERENT LEGAL TRADITIONS OF THE WORLD
2011-2012
Fall Term
Tuesday 9:00 to 10:30
Thursday 9:00 to 10:30
Shigenori Matsui matsui@law.ubc.ca
3 Credits Course
Purpose of the course
This course is designed to give the students basic understanding of two leading traditions of the world: civil law tradition and common law tradition. The course will especially focus on Germany and France as representing the civil law tradition and U.K. and the U.S as representing the common law tradition. It also contrasts Canada against other common law countries.
The students can learn the similarity and difference between these two legal traditions through examinations of historical background, constitutional system, judicial review, judicial system, legal education and legal profession, interpretation and judicial process and civil procedure. The students can then learn the impact of convergence between these two traditions.
The basic understanding of two legal traditions is vital for legal practice in
Canada because lawyers will face increasing number of cases in UK, U.S. and in
Europe. Moreover, since Quebec maintains the civil law tradition with respect to civil law, the basic understanding of similarity and difference between these two different legal traditions is essential for anyone who practices in Canada. This course will be also useful for students coming from civil law background to understand the common law tradition of Canada and the differences between the civil law tradition and the common law tradition.
The course will also give the students basic understanding of comparative law methodology and brief outline of other legal traditions of the world, including Socialist law, Asian law, and Islamic law. The students can then apply this methodology to understand these other legal traditions of the world more fully.
Evaluation
The students are supposed to write at the end of the semester a paper on one aspect of comparative law. The paper should be at least fifteen-pages long with footnotes or bibliography. The evaluation of the students will be based on the class participation (20%) and the final paper (80%).
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Textbook
Mary Ann Glendon, Paolo G. Cardozza, & Colin B. Picker, Comparative
Legal Traditions: Text, Materials and Cases on Western Law (3 rd edition West
2007)(CLT)(optional)
If you do not have the textbook, please read the designated pages of the underlined articles shown in this syllabus (you can get access to the article online or in the library). Other articles are listed only for the purpose of reference.
Other useful materials
Ugo A. Mattei, Teemu Ruskola, & Antonio Gidi, Schlesinger’s Comparative
Law: Case-Text-Materials (7 th ed. New York: Foundation Press 2009)
Mathias Reimann & Reinhard Zimmermann (eds.) The Oxford Handbook of Comparative Law (Oxford; Oxford University Press 2006)
Peter de Cruz, Comparative Law in a Changing World (3 rd ed. London:
Routledge_Cavendish 2007)
Raymond Youngs, English, French & German Comparative Law (2 nd ed.
London: Routledge-Cavendish 2007)
H. Patrick Glenn, Legal Traditions of the World (3 rd ed. Oxford: Oxford
University Press 2007)
Dennis Keenan, Smith and Keenan’s English Law (15 th ed. Pearson 2007)
Howard Abadinsky, Law and Justice: An Introduction to the American
Legal System (6 th ed. Pearson 2008)
Question?
If you have any question, you can come to see me at any time without appointment. I will be in my office most of the days. If you would like to have an appointment or if you would like to ask question by e-mail, my email address is matui@law.ubc.ca.
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Outline of the lectures
(subject to change)
September 6
1 what is comparative law?
CLT 1-13
Mathias Reimann, The Progress and Failure of Comparative Law in the Second
Half of the Twentieth Century, 50 American Journal of Comparative Law 671,
673-684 (2002)
We will examine the meaning of comparative law and its significance. There is no established definition of comparative law, but comparative law mostly refers to academic attempt to compare different legal systems or legal traditions in the world. Unlike other courses, the course on comparative law focuses on foreign law and the comparison of foreign law with the domestic law and the comparison of foreign laws.
September 8
2 method of comparative law
CLT 13-23
Christopher A. Whytock, Legal Origins, Functionalism, and the Future of
Comparative Law 2009 Brigham Young University Law Review 1879, 1879-
1892 (2009)
Edward J. Eberle, The Method and Role of Comparative Law, 8 Washington
University Global Studies Law Review 451, 455-69 (2009)
David Kennedy, New Approaches to Comparative Law: Comparativism and
International Governance, 1977 Utah Law Review 545 (1977)
Anne Peters & Heiner Schwenke, Comparative Law beyond Post-Modernism, 49
Int’l Comparative Law Q 800 (2000)
We will examine the most widely used method of comparative law: functional approach. We will outline the process of comparison under the functional approach and highlight some of the things to keep in mind. We will then learn various criticisms against the functional approach and various proposals for alternatives.
September 13
3 concept of legal tradition
CLT 23-49
Franz Wieacker, Foundations of European Legal Culture, 38 American Journal of
Comparative Law 1, 4-9, 19-29 (1990)
H. Patrick Glenn, A Concept of Legal Tradition, 34 Queen's Law Journal 427, 429-
440 (2008)
H. Patrick Glenn, Western Legal Tradition?, 49 Supreme Court Law Review
(Canada). Second Series 601-19 (2010)
We will focus on the concept of legal tradition as a key concept for comparative law. We will then learn the significance of understanding two primary legal
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traditions of the world: civil law tradition and common law tradition. Why are we focusing on legal tradition in contrast to legal system or legal family? What is the significance of studying the differences between the civil law tradition and the common law tradition?
September 15
4 civil law tradition: reception of Roman law
CLT 52-79
Franz Wieacker, The Importance of Roman Law for Western Civilization and
Western Legal Thought, 4 Boston College International and Comparative Law
Review 257, 258-261, 273-78 (1981)
One of the characteristics of the civil law tradition is the acceptance or “reception” of the Roman Law. We will see the brief history of acceptance of Roman law in civil law countries. What are the characteristics of the Roman Law? Why did the
Roman Law come to have such a strong influence upon European countries?
What exactly does the “reception” mean?
September 20
5 civil law tradition: constitution
CLT 79-88
German Basic Law (https://www.btg-bestellservice.de/pdf/80201000.pdf)
The Constitution of Fifth Republic of France (http://www.assembleenationale.fr/english/8ab.asp)
Randelzhofer, German Unification: Constitutional and International Implications.
13 Michigan Journal of International Law 122-43 (1991)
Udo Steiner, The Basic Law and the Process of Reunification, 53 SMU Law
Review 461-76 (2000)
Martin Rogoff, A Comparison of Constitutionalism in France and the United
States, 49 Maine Law Review 21-83 (1997)
We will see the constitutional traditions and structures of government in civil law tradition, especially focusing on Germany and France. The German
Constitution, Basic Law, enacted after the end of the WW II has some defning characteristics: strong commitment to human dignity and declaration of fighting democracy. While it has a president and prime minister called chancellor, it is the chancellor who has a real political power in Germany. Current French
Constitution, the 5 th republic Constitution, is built on the French constitutional tradition but has some peculiar characteristics. The sovereignty of people remains the primary principle and the president has more political powers than the prime minister. The legislature can enact statute only on limited subject matters and the executive has a residual legislative power. There is no bill of rights in the Constitution but the Declaration of Rights of Men and Citizens remain an accepted source of constitutional law.
September 22
6 civil law tradition: judicial review
CLT 88-121
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Danielle E. Finck, Judicial Review: the United States Supreme Court versus the
German Constitutional Court, 29 Boston College International and Comparative
Law Review 123, 127-131, 136-138, 143-147 (1997)
Cynthia Vroom, Constitutional Protection of Individual Liberties in France: The
Conseil Constitutionnel since 1971, 63 Tulane Law Review 265, 266-277 (1988)
Quint, P. E. “The Most Extraordinarily Powerful Court of Law the World has Ever
Known”?—Judicial Review in the United States and Germany, 65 Maryland Law
Review 152-70 (2006)
Alec Sweet, Why Europe Rejected American Judicial Review and Why It May Not
Matter, 101 Michigan Law Review 2744-80 (2003)
Damle, S. V. Specialize the Judge, Not the Court: A Lesson from the German
Constitutional Court, 91Virginia Law Review 1267-311 (2005)
John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from
Europe, 82 Texas Law Review 1671 (2004)
We will examine the different system of judicial review in civil law tradition. We will see that Germany has established the Constitutional Court. It has an exclusive jurisdiction on constitutional issue and the Constitutional Court can review the constitutionality of statute enacted by the legislature based on the reference or on the constitutional petition by the general public. Its judgment has a force of law. The Constitutional Court turns out to be quite an active court and it looks like it is accepted by the general public as an essential institution. In
France, the Conseil constitutionnel, originally viewed as a political institution to check the legislature for the protection of the executive, came to function as a judicial organ to exercise the power of judicial review. While ordinary courts cannot review the constitutionality of a statute, the Administrative Court can review the constitutionality of executive action. What are the characteristics of the system of judicial review in the civil law tradition?
September 27
7 civil law tradition: judicial system
CLT 121-136
Daniel J. Meador, Appellate Subject Matter Organization: The German Design
From an American Perspective., 5 Hastings International and Comparative Law
Review 27, 31-55 (1981)
Victor Williams, A Constitutional Charge and a Comparative Vision to
Substantially Expand and Subject Matter Specialize the Federal Judiciary: A
Preliminary Blueprint for Remodeling Our National Houses of Justice and
Establishing a Separate System of Federal Criminal Courts, 37 William and Mary
Law Review 535-671 (1996)
We will learn the different judicial system in civil law tradition, focusing on
Germany and France. The judicial system in Germany is characterized by the specialization of the courts: in addition to federal Constitutional Court, there are federal Administrative Court, Finance Court, Social Court, Labor Court, and
Judicial Court, each regarded as the Supreme Court. The existence of the separate administrative court is also one of the characteristics of the German judicial system. They also have a tremendous number of judges on the appellate courts.
French judicial system is also highly specialized and there is also a separate
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administrative court. The number of judges on the appellate courts is also quite large. Why the judicial system in the civil law tradition is so different from the judicial system in the common law tradition?
September 29
8 civil law tradition: legal education
CLT 137-160
Korioth, S. Legal Education in Germany Today, 24 Wisconsin International Law
Journal 85-107 (2006)
Applebaum, D. Cogestion and Beyond: Change and Continuity in Modern French
Legal Education—A Design for U.S. Law Schools, 10 Nova Law Journal 297-318
(1986)
Brunnée, J. The Reform of Legal Education in Germany: The Never-Ending Story and European Integration, 42 Journal of Legal Education 399-426 (1992)
Ostertag, J. R. Legal Education in Germany and the United States—A Structural
Comparison, 26 Vanderbilt Journal of Transnational Law 301-40 (1993)
We will see the different legal education system in civil law tradition, especially focusing on Germany and France. German legal education system is designed to produce lawyers under uniform legal education system. But there is a strong state involvement and the legal education is rather focused on education of judges. French legal education system is divided into separate system for attorneys and for judges and prosecutors. What are the characteristics of legal education system in the civil law tradition?
October 4
9 civil law tradition: legal profession
CLT 160-184
David Clark, The Selection and Accountability of Judges in West Germany:
Implementation of a Rechtsstaat, 61 S. Cal. L. Rev. 1795, 1816-1831 (1987-88)
John Bell, Principles and Methods of Judicial Selection in France, 61 S. Cal. L. Rev.
1757, 1758-1780 (1987-1988)
Sage, Y. L. The 1990 French laws on the legal professions. The American Journal of Comparative Law v. 41 (Fall 1993) p. 649-66
Guarnieri, C. Appointment and Career of Judges in Continental Europe: The Rise of Judicial Self-government, 24 Legal Studies 169-87 (2004)
Lafon, J. L. The Judicial Career in France: Theory and Practice under the Fifth
Republic, 75 Judicature 97-106 (August/September 1991)
Hellwig, H. J. Challenges to the Legal Profession in Europe, 22 Penn State
International Law Review 655-70 (2004)
We will see the major legal professions in civil law tradition, especially focusing on Germany and France. In Germany, a small number of persons who passed the second state examination with good grade could become judges. The attorney fees are tightly regulated and attorneys are not making such huge money. In
France, there is a separate course for judges and for attorneys. The attorneys are not making such huge money either. We will see the role these judges and attorneys play in the civil law tradition.
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October 6
10 civil law tradition: procedure
CLT 185-197
Langbein, J. H. The German Advantage in Civil Procedure, 52 The University of
Chicago Law Review 823, 826-857 (1985)
Reitz, J. C. Why We Probably Cannot Adopt the German Advantage in Civil
Procedure , 75 Iowa Law Review 987-1009 (1990)
Chase, O. G. Legal Processes and National Culture, 5 Cardozo Journal of
International and Comparative Law 1-24 (1997)
We will see some characteristics of civil and criminal procedure in civil law tradition, especially focusing on Germany and France. In Germany, it is the judge who is supposed to play a major role in the civil litigation. German courts use the mixed court system allowing citizens chosen for a limited term to sit together with professional judges. With respect to criminal procedure, French system has adopted the inquisitorial model in contrast to adversarial model. What are the characteristics of civil and criminal procedure in the civil law tradition?
October 11
11 civil law tradition: sources of law
CLT 226-248
Bergel, J. L. Principal Features and Methods of Codification, 48 Louisiana Law
Review 1073-97 (1988)
Murillo, M. L. The Evolution of Codification in the Civil Law Legal Systems:
Towards Decodification and Recodification, 11 Journal of Transnational Law &
Policy 163-82 (2001)
Shoenberger, A. Change in the European Civil Law Systems: Infiltration of the
Angloamerican Case Law System of Precedent into the Civil Law System, 55
Loyola Law Review 5-21 (2009)
We will see concept of sources of law and the different role of precedents in civil law tradition. In the civil law tradition, it is the statute passed by the legislation, and especially the Code, that is a primary source of law. The precedent is not legally binding and the judges are supposed to go back to the text of the provision to extrapolate the specific meaning from the text. Why is the Code so important? What are the merits and demerits of relying upon the Code?
October 13
12 civil law tradition: interpretation and judicial process
CLT 248-293
Wells, M. L. French and American Judicial Opinions, 19 The Yale Journal of
International Law 81, 92-120 (Winter 1994) de S.-O.-I'E. Lasser, M. Judicial (self-)portraits: judicial discourse in the French legal system, 104 The Yale Law Journal 1325 (April 1995)
Germain, C. M. Approaches to Statutory Interpretation and Legislative History in
France, 13 Duke Journal of Comparative & International Law 195-206 (Summer
2003)
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Brugger, W. Legal Interpretation, Schools of Jurisprudence, and Anthropology:
Some Remarks from a German Point of View, 42 The American Journal of
Comparative Law 395-421 (1994)
We will examine the interpretive method and judicial reasoning in civil law tradition. In France, the judgment of the court is generally very brief and does not disclose any legal reasoning to justify its result. Generally, judges in the civil law tradition are regarded as neutral finders of law and not as creators of law.
We will see the peculiar judicial reasoning style adopted in the civil law tradition and inquire why civil law judges follow such a peculiar reasoning style.
October 18
13 common law tradition: creation of common law tradition
CLT 306-324
Watson, A. Roman law and English law: two patterns of legal development.
Loyola Law Review v. 36 (Summer 1990) p. 247-68
Stein, P. G. Roman law, Common law, and Civil law, 66 Tulane Law Review 1591-
603 (1992)
We will examine the historical development of common law tradition in UK and
US. England has developed a unique legal system based on common law and
England thus did not “receive” Roman Law. What are the characteristics of common law and why England did not receive Roman Law? Both U.S. and
Canada followed the common law tradition of the England. Yet, there are significant differences between the U.S. and Canada.
October 20
14 common law tradition: constitution
CLT 325-349
United States Constitution
Selway, B. M. The Constitution of the UK: A Long Distance Perspective, 30
Common Law World Review 3-35 (2001)
Eric Barendt, An Introduction to Constitutional Law (Oxford University Press
1998)
We will examine the constitutional traditions and structures of government in
UK and US. There is no written document called the Constitution in U.K. Yet, there are many conventions and most academics agree that there is constitutional rules in U.K. What are the characteristics of these constitutional rules? What happened when U.K. joined the E.U. and accepted the European
Human Rights Convention? U.S. enacted the Constitution after the independence war and build the country based on this written document. Canada also enacted the Constitution Act, 1867 but it was an imperial statute passed by the British parliament and it was only after 1982 that Canada came to have independent
Constitution. Yet, the Constitution for Canada include various constitutional documents and there is no single written document called the Constitution. What are the characteristics of structure of government in U.K., U.S. and Canada?
October 25
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15 common law tradition: judicial review
CLT 349-372
Danielle E. Finck, Judicial Review: the United States Supreme Court versus the
German Constitutional Court, 29 Boston College International and Comparative
Law Review 123, 131-136, 138-142, 147-149 (1997)
Lakin, S. How to Make Sense of the HRA 1998: The Ises and Oughts of the British
Constitution, 30 Oxford Journal of Legal Studies 399-417 (2010)
Yap, P. J. Rethinking Constitutional Review in America and the Commonwealth:
Judicial Protection of Human Rights in the Common Law World, 35 Georgia
Journal of International and Comparative Law 99-143 (2006)
Tushnet, M. Marbury v. Madison around the World, 71 Tennessee Law Review
251-74 (2004)
We will see why judicial review was not accepted in UK and why it has become such a defining characteristic of the US Constitution. The system of judicial review developed in the U.S. allows judges in ordinary courts to review the constitutionality of a statute. The U.S. Supreme Court is the highest court in the
U.S. But it does not have any power to decide state law questions and it is not also allowed to issue advisory opinion. There must be case or controversy before the federal court review the constitutionality of a statute. We will examine the characteristics of system of judicial review in the U.S. and compare it with system of judicial review accepted in Canada.
October 27
16 common law tradition: judicial system
CLT 372-429
Skold, M., The Reform Act's Supreme Court: A Missed Opportunity for Judicial
Review in the United Kingdom?, 39 Connecticut Law Review 2149-82 (July 2007)
U.S. Courts
(http://www.uscourts.gov/EducationalResources/FederalCourtBasics/CourtStr ucture.aspx)
We will see the judicial system in common law tradition. The courts in the common law tradition are not specialized and there is no separate administrative court. The number of judges on the highest court is also very limited. We will see the specific structure of judicial system in U.K., U.S., and
Canada.
November 1
17 common law tradition: legal education
CLT 431-445
Boon, A., et. al., Legal Education and Training in England and Wales: Back to the
Future?, 58 Journal of Legal Education 79-121 (2008)
Weston, C. R. Legal Education in the United States: Who's in Charge? Why Does It
Matter?, 24 Wisconsin International Law Journal 397-423 (2006)
We will learn the legal education system in U.K., U.S. and Canada. In contrast to civil law tradition, legal education is controlled by the bar or by the courts and there is no strong state involvement. In U.K., there is a separate education system
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for barristers and solicitors. In U.S., the law school system was established to provide professional legal education after college and students must pass the bar examination. Yet, if the students pass the bar examination, they can practice as attorneys. In Canada, students must graduate from law school after college but there is an articling obligation. Once the students graduate from law school and finish articling obligation, it is not so hard to pass the examination. We will see the difference even among common law tradition with respect to legal education system.
November 3
18 common law tradition: legal profession
CLT 430-490
Thurman, R. F. English Legal System Shake-up: Genuine Reform or Teapot
Tempest?, 16 Boston College International and Comparative Law Review 1-28
(1993)
Geyh, C. G. The Endless Judicial Selection Debate and Why It Matters for Judicial
Independence, 21 Georgetown Journal of Legal Ethics 1258-81 (Fall 2008)
Maute, J. L. Alice's Adventures in Wonderland: Preliminary Reflections on the
History of the Split English Legal Profession and the Fusion Debate (1000–1900
A.D.), 71 Fordham Law Review 1357-71 (2003)
Sekhon, V. The Over-education of American Lawyers: An Economic and Ethical
Analysis of the Requirements for Practicing Law in the United States, 14 George
Mason Law Review 769-98 (2007)
We will see major legal professions in U.K. , U.S. and Canada. There is huge number of lawyers in the U.S. and there is a stratification of lawyers. Depending upon the type of work, the life of lawyers is quite different. The acceptance of a case based on the contingent fee agreement is also a peculiar characteristic of the
American lawyers. Judges in the common law tradition are appointed from practicing lawyers. However, in the U.S., appointment of judges is very unique: many states uses popular election to choose state judges and political consideration plays a big role in selecting judges to the federal courts. We will explore why U.S. has adopted such a unique system.
November 8
19 common law tradition: procedure
CLT 508-532
Woolf of Barnes, H. K. W. Civil Justice in the United Kingdom, 45 The American
Journal of Comparative Law 709-36 (1997)
Jolowicz, J. A. Adversarial and Inquisitorial Models of Civil Procedure, 52 The
International & Comparative Law Quarterly 281-95 (2003)
Kötz, H. Civil Justice Systems in Europe and the United States, 13 Duke Journal of
Comparative & International Law 61-77 (2003)
We will see some of the characteristics of civil and criminal procedure in common law tradition. In the common law tradition, it is basically job of the lawyers to structure the litigation. They collect evidence through discovery and call witness and examine them, and judges are neutral adjudicators. The common law tradition also uses jury system especially in the criminal cases,
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while in U.S. the Constitution protects right to jury in civil tort cases as well. We will see the differences in litigation procedure between the civil law tradition and common law tradition.
November 10
20 common law tradition: sources of law
CLT 593-671
Note, Constitutional Stare Decisis, 103 Harvard Law Review 1344-62 (April
1990)
Harris, J. W. Towards Principles of Overruling—When Should a Final Court of
Appeal Second Guess?, 10 Oxford Journal of Legal Studies 135-99 (1990)
Paulsen, M. S. Does the Supreme Court's Current Doctrine of Stare Decisis
Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis?, 86
North Carolina Law Review 1165-212 (2008)
We will see how sources of law are viewed in common law tradition and how precedent plays such a defining role. In the common law tradition, precedent is a law to be followed. U.K. had developed the very strong binding effect of the precedent, but now the courts are more flexible. In U.S. and Canada precedents never had such a strong binding power. Why precedents are viewed as legally binding? What is the distinction between ratio decidendi and obter dicta? What are the techniques to be used to distinguish previous cases and apply new rules?
November 15
21 common law tradition: interpretation and judicial process
CLT 490-507
Markesinis, B. Judicial Style and Judicial Reasoning in England and Germany, 59
The Cambridge Law Journal 294-309 (2000)
Harding, S. K. Comparative Reasoning and Judicial Review, 28 The Yale Journal of
International Law 409, 409-423 (2003)
We will see the interpretive method and judicial reasoning in common law tradition. In contrast to French judgment, the judgment in the common law tradition is designed to explain the judicial reasoning leading to the result. Yet, in the common law tradition, judges are more creative. The realist tradition teaches us that it is a judge who is actually creating a law. We will see the different conception of judicial reasoning.
November 17
22 convergence between civil law and common law traditions
CLT 799-832
Pejovic, C. Civil law and common law: two different paths leading to the same goal, 32 Victoria University of Wellington Law Review 817-41 (2001)
Merryman, J. H. On the convergence (and divergence) of the civil law and the common law, 17 Stanford Journal of International Law 357-88 (1981)
Glendon, M. A. The Sources of Law in a Changing Legal Order, 17 Creighton Law
Review 663-98 (1983)
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Damaska, M. The Common Law / Civil Law Divide: Residual Truth of a
Misleading Distinction, 49 Supreme Court Law Review (Canada). Second Series
3-21 (2010)
We will see the convergence between civil law tradition and common law tradition. Although many agree that there are significant difference between the common law tradition and the civil law tradition, some argue that both legal traditions are converging. What are the reasons for this convergence theory? Is it really true that there are no more any significant differences? We will also see their impacts on the rest of the world. Many countries of the world inherited either the common law tradition or the civil law tradition. Yet, some countries combined them and some countries have developed quite unique legal system.
What are the impact of the common law tradition and civil law tradition to other countries in the world?
November 22
23 conclusion
We will wrap up the similarities and differences between civil law tradition and common law tradition.
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