Methodology and Innovation in Mixed Legal Systems

The World Society of Mixed Jurisdiction Jurists organised its third international congress from 20 -23 June 2011 at the Hebrew University in Jerusalem. The leading theme was “Methodology and Innovation in Mixed Legal Systems”. Several keynote speeches were held. Justice Eliezer Rivlin, (Deputy President of the Supreme Court of Israel) spoke about Israel as a mixed jurisdiction, Vernon Palmer (Tulane Law School, New Orleans, USA) addressed the topic of double reasoning in mixed legal systems: code and case law as simultaneous methods, Thomas Bennett (University of Cape Town, South Africa) examined the concept of “Ubuntu” as a new doctrine of equity in South African law and Mauro Bussani (University of Trieste, Italy) spoke about mixed approaches to mixed jurisdictions.

The leading theme was discussed during various parallel sessions in which subtopics were analysed, looking at different areas of law (public law and private law) and different regions (Africa, Asia, Europe, more particularly the Mediterranean, Louisiana and Québec.

From a more European perspective it is interesting to note that the European Union now has several more traditional mixed jurisdictions (Cyprus, Malta and Scotland) and jurisdictions in Central and Eastern Europe which, due to influence from the Québec Civil Code, now de facto have become mixed with regard to their private law. A striking example is Rumania. The new Rumanian Civil Code is for about 70% the same as the Québec Civil Code and Rumanian lawyers now look at Québec legal scholarship and case law for inspiration.

It is also generally accepted that European law as such belongs to the mixed jurisdictions. At a European level the law is developed autonomously, independent from the laws of the Member States, to avoid that one or more Member States might be seen as imposing their law on other Member States. The result is that European law (both in legislative and in case law format) is prepared by conducting thorough comparative legal research, but, at the end of the day, is based on what is required given the economic constitution upon which the European treaties are built: the creation of an internal market rooted in the freedom of goods, persons, services and capital. European law is therefore the result of a mixture of legal traditions, modes of thought and legal cultures: Common Law, Civil Law with all its variations (French and German subtraditions), and Scandinavian law (civil law systems, but with a Common Law pragmatic approach to law) and, of course, the mixed legal systems.

As part of the session on innovation: concepts and contexts Sjef van Erp presented a paper on the changing structure  of European property law, looking at the basic building blocks of all European property law traditions: subjects, objects and relations.

A paper which should be mentioned specifically concerned comparative law teaching. Stephen Smith from McGill University, Montreal, Canada discussed comparative legal scholarship as ordinary legal scholarship. His main thesis is that every lawyer is a comparative lawyer, not just when legal systems are compared. Any lawyer analyses a fact pattern from the perspective of various legal areas (e.g. contract and tort). By analysing case law, lawyers compare fact situations and legal reasoning. Lawyers, in other words, are comparativists by nature. It is, furthermore, this comparative attitude that makes studying law an academic exercise and not just a “how to do” study: law students are tained to be lawyers, not plumbers, so Stephen Smith. Teaching law on a comparative and European basis, it can be concluded, is therefore not fundamentally different from teaching law on a strictly national basis. Fear of law curricula based on the transsystemic teaching method of the McGill law faculty or the European Law School of Maastricht University, with its trans- and suprasystemic teaching method, is therefore unjustified. On the Maastricht teaching method see Sjef van Erp, Teaching Law in Europe: From an Intra-Systemic, Via a Trans-Systemic to a Supra-Systemic Approach.

The proceedings of the second international congress can be found electronically on the website of the Electronic Journal of Comparative Law. EJCL will also publish the proceedings of this conference, which will also be published in print.

~ Sjef van Erp
read more

From the American Law Institute to the European Law Institute

From May 16 until May 18 the American Law Institute (abbreviated: ALI) held its 88th (2011) annual meeting. The opening keynote speech was by Lord Phillips of Worth Matravers, who gave a brief (historical) overview of how the House of Lords lost its role as the highest court of the United Kingdom and a new UK Supreme Court was established.  Lord Phillips is the first President of this new Supreme Court. Then Stephen Zack, President of the American Bar Association spoke. He worried about how funds are being taken away from the judiciary and, more general, from the judicial system as a whole, resulting from budget cuts. It seems, he argued, as if the legislative branch, with the support of the executive branch, is marginalizing the judicial branch of government. He warned against the risks: a rule by law is not the same as a rule under the law. Minorities – and this is enshrined in the 10th Federalist Paper – should be protected against majorities, although majorities make the law.

Discussed were several projects, ranging from “principles” (on election law) to “restatements” (tort, restitution, employment law, non-profit organizations and trust) and model codes (Uniform Commercial Code and Model Penal Code). Also a very interesting session concerned possible new projects.  With regard to restitution a “guide” was discussed. The trust part concerned the last step towards finalizing the Restatement on Trusts 3rd. The whole project took about 25 years.  Interesting was the discussion about the nature of “principles”, a “restatement” and “model code”. Principles are meant as guidance for legislators and courts to solve problems encountered in practice, a restatement is guidance based upon an analysis of the laws of the states and federal law; a model code can be innovative and go against the existing laws of the states or federal law. In this setting “black letter law” is nothing to be ashamed of, as some comparative lawyers might make you believe. The black letters are the basis for the guidance to practitioners and this is precisely what these projects are all about.

Remarkable was the motion to withdraw the 2003 Amendments to Uniform Commercial Code (UCC) Articles 2 (Sales) and 2A (leases). These amendments have not been adopted by any of the states and it was accepted that no state would adopt them. Therefore – and this is unique in the history of the UCC – the Amendments were seen as rejected by the states and should therefore be withdrawn. The motion carried unanimously.

To integrate the work of the ALI more in research done by younger academics the ALI for the first time awarded a Young Scholars Medal to Oren Bar-Gill (New York University) and Jeanne C. Fromer (Fordham University). Prof. Oren Bar-Gill gave a presentation of his research on consumer psychology and consumer protection, focusing on credit cards and mortgages. Part of the prize both have won is the opportunity to organize a seminar with experts in the field of their research.

Modeled after the American Law Institute and after several years of preparation a European Law Institute (abbreviated: ELI)  has been established. The ELI was created as a legal person a few weeks ago during a meeting of the founding members in Athens. At a conference in Paris on 1 June the ELI will be presented to the legal community. A major purpose of the ELI, like of the ALI, is to give the initiative with regard to the development of the law (for the ALI: American law generally, for the ELI: European law) to practitioners (judges, advocates, barristers, solicitors and notaries). The role of academics is to provide expertise and guidance, but the impetus and practical input will have to come from these practitioners.

As one of the co-founders of the ELI and having been involved in the process from the very beginning it was a fascinating experience to attend the ALI’s general meeting and see how its European counterpart could develop itself!

~ Sjef van Erp

read more