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CRITICAL COMPARATIVE LAW Considering Paradoxes for Legal Systems in Transition
(Electronic Journal of Comparative Law)
Vol. 4.1 June 2000
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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?
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
5. The case of English common law: Contaminated, irritated or corrected?
5.2 The Privy Council: Unity through diversity?
5.4.1 Convergence: Concepts
5.4.2 Convergence: Statutory interpretation
5.4.3 Convergence: Codification
22.214.171.124 Introduction
18.104.22.168 The Law Commission
220.127.116.11 Commercial Code
126.96.36.199 Criminal Code
188.8.131.52 Contract Code
22.214.171.124 Coexistence of common law and civil law in Codes
126.96.36.199 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
22.214.171.124 Examples of adjustment: Legislative
126.96.36.199 Examples of adjustment: Judicial
6.2 The development
6.3 The experience: Hyphenated legal system
6.3.1 Mode One: Swiss-Turkish law
18.104.22.168 In developing principles
184.108.40.206 In the unification of precedents
220.127.116.11 In dissenting opinions
6.3.2 Mode One: Turkish-Other 'source laws'
126.96.36.199 Italian-Turkish and German-Turkish law
184.108.40.206 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?
7.3 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 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 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 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, Schlesinger(22) and Monateri(23) 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 should become the handmaid of philosophy. This view should worry comparative lawyers considerably.
I do not agree with Samuel(28) 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 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.'(39)According 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 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 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 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 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) 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 inoculation(58) have 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 vocabulary(59) 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 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.
2.1 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)
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 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 rules(76) 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 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 cores(81) 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'.
'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)
3.1 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
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 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 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 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 Salter(107) 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, 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, Uzbekistan(110) (see the 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 the 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 yes, 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, Kulcsár(112) 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 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 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)
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 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.
5.1 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)
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, 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 R(133) 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.'
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 years(144) and somehow corrected later, is now 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:
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 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 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 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 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 interpretation(174) 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 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) Grief(181) 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 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)
In 1994 the Court of Appeal used the possibilities opened up by Pepper v Hart, in R v Moore(192) 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. Grief(193) 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.
5.4.3 Convergence: Codification
188.8.131.52 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.
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.
188.8.131.52 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 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.
18.104.22.168 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.
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,(204)certain 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.
188.8.131.52 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 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)
22.214.171.124 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 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.
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.
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 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 that, '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 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 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. Here not only is English law brought into line with Scots law 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 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 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 among foreign experts who assisted in the work on these proposals were two Dutch scholars, Professors Feenstra and Fokkema from the 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.
188.8.131.52 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 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, Cadoppi(270) 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 Code(272) 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 Sacco(273) 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.
188.8.131.52. 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 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 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 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, 'Whether 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 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 fear(286)on 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 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 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.'(299)Therefore, '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)
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 it 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.
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'.
6.1 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 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)
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 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 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' 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.
18.104.22.168 Examples of adjustment: Legislative
184.108.40.206.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)
220.127.116.11.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)
22.214.171.124.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.
184.108.40.206 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.
184.108.40.206.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)
184.108.40.206.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)
220.127.116.11.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.
188.8.131.52.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 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.
18.104.22.168.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 case(333) 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)
188.8.131.52.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 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 titled 'immutable provisions', stating that articles 1-3 'shall not be amended nor shall their amendment be proposed'. Articles 1 to3 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.
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
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.
184.108.40.206 In developing principles
184.108.40.206.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 one(342) 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 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)
126.96.36.199.b. In 1994 the Yargitay dealt with a case, in which sections 3 and 21 of the 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)
220.127.116.11.c. In a case(350) 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.
126.96.36.199.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)
126.96.36.199.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 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.
184.108.40.206 In the unification of precedents
188.8.131.52.a. In one unification of precedents case(354) 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 decision(359) 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.
126.96.36.199.b. In another unification of precedents case, this time in a very different area, that of natural paternity, illegitimacy and inheritance rights, the Yargitay(360) 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 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 abolished(362) 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 developments are pitched against developments in Switzerland as well as other Western legal systems.
18.104.22.168.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 case(370) 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.
18.104.22.168 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.
220.127.116.11.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 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)
220.127.116.11.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)
220.127.116.11.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)
220.127.116.11.d. Again, in a case(378) 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 whose works are among the reference books still in use today.(380)
126.96.36.199.e. In another case(381) 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'
188.8.131.52 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.
184.108.40.206.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)
220.127.116.11.b. Another case(385) 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. 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)
220.127.116.11.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 Schwartz(391) 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.
18.104.22.168.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 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.
184.108.40.206.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 review(399) 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.
184.108.40.206.f. In a recent case revolving around 'swindling', the Yargitay(400) 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 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 Yargitay(401) 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.
18.104.22.168.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)
18.104.22.168 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 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 220.127.116.11 and 18.104.22.168. 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 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 case(410) 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 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 184.108.40.206, 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 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 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, Grief(423) 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 Pool(425) 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 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 conversation(433) 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 codification(436) 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)
7.1 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 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) 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)
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 forefront(456) in the search for '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,(460)of 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".'(461)Here 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 in 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 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 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 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 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 mixité(484) are very well worth 'system-watching' by comparative lawyers.
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 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, 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, 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.
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.
1. This contribution was first published as No. 59 in the series for the 'Nederlandse Vereniging voor Rechtsvergelijking' (Deventer: Kluwer, 1999).
2. 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.
3. T. Koopmans, 'Comparative Law and the Courts', (1996) 45 ICLQ, 545, at p. 1.
4. 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.
5. B. Markesinis, 'Comparative Law: A Subject in Search of an Audience', (1990) 53 MLR, 1.
6. Ibid., at p. 21.
7. Zweigert and Kötz, op. cit., at p. 2.
8. 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.
9. See P.G. Monateri, '"Everybody's Talking": The Future of Comparative Law', (1998) 21 Hastings Int'l & Comp. L. Rev., 825.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. H. Yntema, 'Comparative Legal Research: Some Remarks on Looking out of the Cave', (1956) 54 Mich. L. R., p. 902.
16. Samuel, op. cit., at p. 827.
17. Ibid., at p. 833.
18. Ibid., at p. 836.
19. Ibid., and also see along similar lines, W.J. Kamba, 'Comparative Law: A Theoretical Framework', (1976) 23 ICLQ, 494.
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.
23. 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.
24. Ewald, op. cit., at pp. 2111-2112.
25. Ibid., at p. 2145.
26. Ibid., at p. 2115.
27. Ibid., at p. 2114, though his claim that he coined the phrase cannot be correct.
28. Samuel, op. cit., at p. 822.
29. R. Sacco, 'Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)', (1991) 39 Am. J. Comp. L., 1.
30. Ibid.
31. Ibid., at p. 4.
32. Ibid., at p. 5.
33. Ibid., at pp. 4-5.
34. Örücü (1982), op. cit.
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.
36. 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.
37. Ibid., at pp. 236-237.
38. Sacco, op. cit., at p. 26.
39. Ibid., footnote 29, at p. 26.
40. R. Sacco, `Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)', (1991) 39 Am. J. Comp. L., 343, at p. 388.
41. Ibid., at p. 389.
42. 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'.
43. 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.
44. D. Campbell and S. Picciotto, 'Exploring the Interaction between Law and Economics: The Limits of Formalism', (1998) 18 LS, 249.
45. See generally, U. Mattei, 'Efficiency in Legal Transplants: An Essay in Comparative Law and Economics', (1994) 14 Int'l Rev. L. & Econ., 3.
46. Used by Ewald, op. cit.
47. Used by Monateri, op. cit.
48. 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.
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).
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
New Divergencies', (1998) 61 MLR, 11, at p. 17.
54. Ibid., at p. 18.
55. Allison, op. cit., at p. 16.
56. 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.
57. Here we might want to talk of 'transpositions' instead. See section 7 infra.
58. Watson, op. cit., his footnote 53 at p. 30.
59. 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.
60. 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.
61. Örücü (1995), op. cit., at p. 17.
62. Below, the Turkish legal system will be considered as an example.
63. 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.
64. Schlesinger, op. cit., at p. 477.
65. Schlesinger, op. cit., at p. 481.
66. 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 Jurisprudence', (1998) 47 ICLQ, 306.
67. Zweigert and Kötz, op. cit., at p. 17.
68. 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.
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.
75. 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.
76. For the essential elements decisive for classifications, see Örücü, 'Internal Logic of Legal Cultures', (1987) 7 Legal Studies, 310.
77. 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.
78. See Müller-Graff, op. cit., p. 254.
79. 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.
80. Moccia, op. cit., at p. 618.
81. See M. Bussani, 'Current Trends in European Comparative Law: The Common Core Approach', (1998) 21 Hastings Int'l & Comp. L. Rev., 785.
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.
84. See J.M. Smits, 'Systems Mixing and in Transition: Import and Export of Legal Models – The Dutch Experience', in: Hondius, op. cit., p. 47.
85. Some of these issues will later reappear in section 7 infra.
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.
88. 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.
89. L.M. Friedman, 'Is There a Modern Legal Culture?', (1994) 7 Ratio Juris, 117.
90. T. Koopmans, 'The Birth of European Law at the Cross-roads of Legal Traditions' (1991) 39 Am. J. Comp. L., 493.
91. And, of course, the Marxist thesis.
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.
95. 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.
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.
100. 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.
101. See Müller-Graff, op. cit., at p. 239.
102. Monateri, op. cit., at pp. 86-87.
103. See Legrand (1998, MJ), op. cit., who argues that comparison must involve 'the primary and fundamental investigation of difference', at p. 124.
104. 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.
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.
107. B. Puchalska-Tych and M. Salter, 'Comparing Legal Cultures of East Europe: The Need for a Dialectic Analysis', (1996) 16 LS, 157.
108. Ibid., at p. 176. Also mentioned are Zender, Markowitz and Frankenberg.
109. Ibid., at pp. 178-179.
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.
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.
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.
123. Including 'incremental reception'.
124. 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.
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.
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.
131. Örücü (1998), op. cit., at pp. 221-224.
132. [1995] 3 All ER, 929 (PC).
133. [1994] 3 All ER, 674 (PC).
134. 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.
135. Ibid., at p. 257.
136. [1993] 3 All ER, 138 (HL).
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).
140. 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.'
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).
144. 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.
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.
147. Martin, op. cit., at p. 95.
148. 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'.
149. Martin, op. cit., at p. 101.
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.
152. 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.
153. Ibid., at p. 10.
154. Ibbetson, op. cit., at p. 228.
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.
160. N. Grief, 'The Pervasive Influence of European Community Law in the United Kingdom', in: Watkin, op. cit., 90, at p. 110.
161. At 5.5 infra.
162. [1994] 2 All ER, 540, at p. 549.
163. [1992] 2 All ER, 450.
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.
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.
177. [1988] ECR 673, at pp. 689-690.
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.
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).
191. Grief, op. cit., at p. 94.
193. Grief, op. cit., at pp. 96-97.
194. Ibid., at p. 97.
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.
198. Ibid., at p. 518.
199. 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.
200. Arden, op. cit., at p. 530.
201. A. Burrows, 'Legislative Reform of Remedies for Breach of Contract: The English Perspective', (1997) ELR, 155, at p. 156.
202. Arden, op. cit., footnote 13 at p. 521.
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.
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.
213. Ibid., at p. v.
214. Arden, op. cit., at p. 527.
215. Ibid.
216. H. McGregor, Contract Code (Milano: Giuffrè, 1993), p. xxiv.
217. Ibid., at pp. xxiv-xxv.
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.
227. McGregor, op. cit., at p. 115.
228. Section 401 'entitlement as of right'.
229. 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.
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.
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.
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.
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.
253. Ibid., at p. 21.
254. [1971] 1 Q.B. 164 (C.A.), p. 82.
257. Ibid., at p. 83.
258. Ibid., at p. 85.
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.
262. Ibid., at p. 95.
263. Ibid., at p. 174.
264. 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.
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.
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.
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.
276. 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.
277. Ibid.
278. Cadoppi, op. cit., at p. 147.
279. Zimmermann, op. cit., at p. 27.
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.
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.
290. 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.
291. M. van Hoecke and F. Ost, 'Legal Doctrine in Crisis: Towards a European Legal Science', (1998) 18 LS, 197, at pp. 211-215.
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.
295. Watson (1996), op. cit., p. 345.
296. 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.
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.
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.
307. Another question might be 'Will the English Draft Criminal Code Help a Pan-European Code?'. See Cadoppi, op. cit., at p. 48.
308. 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.
309. See E. Örücü, 'Turkey: A Survey of the Public Law Framework', (1999) 5 Euro. Pub. L., 30-41.
310. Örücü (1992), op. cit., p. 53.
311. 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.
312. 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.
313. Örücü (1996), op. cit., at p. 106.
314. 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.
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.
317. Örücü (1995), op. cit., at p. 10.
318. Ajani, op. cit., at p. 68.
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.
324. Ibid., at p. 98.
325. Ibid., at p. 99. See section 126.96.36.199.c infra.
326. 65/3; 14.6.1965.
327. Örücü (1996), op. cit., at p. 100.
328. Ibid., at pp. 101-102.
329. Ibid., at p. 102.
330. Ibid.
331. A procedure borrowed from the French procedural system, as pointed out in 1997/6-175; 1997/196; 14.10.1997; 24 YKD 1998.
334. Ibid., at p. 1786.
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.
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.
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.
346. Ibid., at p. 682.
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.
351. Ibid., at p. 1789.
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.
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.
368. Ibid., at p. 1409.
369. Ibid., at p. 1411.
371. Ibid., at p. 891.
373. Ibid., at p. 1699.
375. Ibid., at p. 179.
377. Ibid., at p. 172.
379. Ibid., at p. 185.
380. See section 6.1 supra.
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.
386. Ibid., at p. 620.
388. Ibid., at pp. 109, 113-115.
390. Ibid., at pp. 1896-1897.
391. Ibid., at pp. 1890-1893.
393. Ibid., at p. 1831.
394. Ibid., at p. 1833.
395. Ibid., at p. 1834.
399. Ibid., at pp. 1849-1851.
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.
403. 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.
404. Ibid., at p. 7.
405. Z. Bankowski and E. Christodoulidis, 'The European Union as an Essentially Contested Project', (1998) 4 European Law Journal, 341, at p. 348.
406. Ibid.
407. 79/1644; 79/14383; 21.12.1979.
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.
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.
414. 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.
415. Zweigert and Kötz, op. cit., at p. 178.
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.
423. Grief, op. cit.
424. Teubner, op. cit.
425. J. Starr and J. Pool, 'The Impact of a Legal Revolution in Rural Turkey', (1974) 8 Law and Society Review, 533.
426. E.K. Banakas, 'Some Thoughts on the Method of Comparative Law: The Concept of Law Revisited', (1981) 67 ARSP, 294.
427. Starr and Pool, op. cit.
428. Sacco, op. cit., at pp. 394, 397.
429. Watson (1996), op. cit., at p. 94.
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!
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.
443. 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.
444. Transposition as understood here is a term appropriate in analysing many instances of transplants other than only those in CEE, of course.
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.
448. Ibid., at p. 68. Also see G. Ajani, 'La circulation de modèles juridiques dans le droit post-socialiste', (1994) 4 RIDC, 1087-1105.
449. Smits (1998), op. cit., at p. 55. See, however, the Turkish example.
450. 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.
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.
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.
464. 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.
465. Monateri, op. cit., at pp. 84-85.
466. Smits (1998), op. cit., at p. 63.
467. Ibid., at pp. 47, 51, 63.
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.
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.
480. A. Evans, 'Voluntary Harmonisation in Integration between the European Community and Eastern Europe', (1997) 22 E. L. Rev., 201.
481. Ibid., footnote 10, at p. 202.
482. Ibid., at p. 220.
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. D. Tallon, 'Comparative Law: Expanding Horizons', (1968-69) 10 JSPTL, at p. 265.
489. 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.
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.
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.
502. 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 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.
504. 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.
505. 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.
506. Berry, op. cit., at p. 14.