Katja Funken "The Trend Towards Converge S804151001 LA732 Comparative Legal Ess Outline Introduction I. Classification of Common Law and Civil Law System IL. The Pros and Cons of Convergence IV. The Effects of Convergence 1. The trend Towards codification 2. Gap Filling 3. Stare decisis a) horizontal Stare Decisis b) Vertical Stare Decisis 4. Judicial Activism vS Mechanical Decision-making 5. Role of judges 6. Legal scholars Current Mechanisms of Convergence 1. The Importance of American Law 2. The Unification of Europe 3. The unification of law VI The Best of Both Worlds- Where should the legal Evolution Take Us? VIL. CONCLUSION
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 1 Outline I. Introduction II. Classification of Common Law and Civil Law Systems III. The Pros and Cons of Convergence IV. The Effects of Convergence 1. The Trend Towards Codification 2. Gap Filling 3. Stare Decisis a) Horizontal Stare Decisis b) Vertical Stare Decisis 4. Judicial Activism vs. Mechanical Decision-making 5. Role of Judges 6. Legal Scholars V. Current Mechanisms of Convergence 1. The Importance of American Law 2. The Unification of Europe 3. The Unification of Law VI. The Best of Both Worlds - Where Should the Legal Evolution Take Us? VII. CONCLUSION
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay The best of both Worlds-The Trend Towards Convergence of the Civil Law and the Common Law System I Introduction Increasing commercial and cultural internationalisation and amalgamation have had and will continue to have their consequences in the law of all legal systems. In particular the two great Western legal traditions, the Common Law and the Civil Law system, have become closer to each other during the last decades This paper will analyse the impact, mechanisms and future developments of the convergence of the two systems. It is divided into seven parts After some introductory remarks on the distinction between Common law and civil Law systems, this paper will briefly contrast the pros and cons of convergence. The next section examines how some of the previously visible differences between Common Law and civil law systems have already been diminished or are about to decrease. The analysis will focus on the trend towards codification in many Common Law countries, the approaches towards the filling of gaps in statutory provisions, judicial activism, the doctrine of stare decisis and the roles of judges and legal scholars It then looks into the various mechanisms and factors that contribute to the process of convergence, such as the importance of American law, the unification of Europe and the unification of legal rules by means of conventions and model laws For this categorisation see Clark Ds, The Idea of the Civil Law Tradition, in Comparative and Private International Law, Essays in Honor of John Henry Merryman on His Seventieth Birthday 11 Clark ed.. Duncker humblot. Berlin 1991 at 21
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 2 "The Best of Both Worlds" - The Trend Towards Convergence of the Civil Law and the Common Law System I. Introduction Increasing commercial and cultural internationalisation and amalgamation have had and will continue to have their consequences in the law of all legal systems. In particular the two great Western legal traditions, the Common Law and the Civil Law system1 , have become closer to each other during the last decades. This paper will analyse the impact, mechanisms and future developments of the convergence of the two systems. It is divided into seven parts. After some introductory remarks on the distinction between Common Law and Civil Law systems, this paper will briefly contrast the pros and cons of convergence. The next section examines how some of the previously visible differences between Common Law and Civil Law systems have already been diminished or are about to decrease. The analysis will focus on the trend towards codification in many Common Law countries, the approaches towards the filling of gaps in statutory provisions, judicial activism, the doctrine of stare decisis and the roles of judges and legal scholars. It then looks into the various mechanisms and factors that contribute to the process of convergence, such as the importance of American law, the unification of Europe and the unification of legal rules by means of conventions and model laws. 1 For this categorisation see Clark DS, 'The Idea of the Civil Law Tradition', in Comparative and Private International Law; Essays in Honor of John Henry Merryman on His Seventieth Birthday 11, Clark ed., Duncker & Humblot, Berlin, 1991 at 21
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay The final part will examine which elements of both systems should prevail in the egal evolution"of convergence, in order to make the newly emerging system more efficient. It will be argued that the Civil law, due to its economy and ability to quickly react to changing societal parameters, is better equipped to meet the challenges of today's fast-paced world I. Classification of Common and civil Law Systems As an introductory remark, one should keep in mind that the distinction between Civil Law systems and Common Law systems tends to blur the fact that there is no such thing as a uniform system of Civil Law. when australian british or US scholars use the expression "Civil Law system", as contrasted to a " Common Law system", they usually refer to the whole body of private law within the countries of the European continent as well as the laws of latin america. The characteristic common feature of these laws is that they are contained in so-called civil codes. Classic European comparative literature, however, usually does not mention the concept of the Civil Law as such, but distinguishes between the codes of single legal communities, such as the romanic, Germanic or the Nordic family. Under this system of classification, the Common Law is just one of the legal communities, which would be qualified as the Anglo-Saxon family". In fact, there are some arguments in favour of this classification, as there are considerable substantial divergences as to methods of interpreting the law or judicial style between, for example, the romanic and the 2 See Lawson, FH, A Common Lawyer Looks at the Civil Law, University of Michigan, Ann Arbor 1953at3
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 3 The final part will examine which elements of both systems should prevail in the "legal evolution" of convergence, in order to make the newly emerging system more efficient. It will be argued that the Civil Law, due to its economy and ability to quickly react to changing societal parameters, is better equipped to meet the challenges of today's fast-paced world. II. Classification of Common and Civil Law Systems As an introductory remark, one should keep in mind that the distinction between Civil Law systems and Common Law systems tends to blur the fact that there is no such thing as a uniform system of Civil Law. When Australian, British or US scholars use the expression "Civil Law system", as contrasted to a "Common Law system", they usually refer to the whole body of private law within the countries of the European continent as well as the laws of Latin America. The characteristic common feature of these laws is that they are contained in so-called civil codes. Classic European comparative literature, however, usually does not mention the concept of the Civil Law as such, but distinguishes between the codes of single legal communities, such as the Romanic, Germanic or the Nordic family.2 Under this system of classification, the Common Law is just one of the legal communities, which would be qualified as the "Anglo-Saxon family". In fact, there are some arguments in favour of this classification, as there are considerable substantial divergences as to methods of interpreting the law or judicial style between, for example, the Romanic and the 2 See Lawson, FH, A Common Lawyer Looks at the Civil Law, University of Michigan, Ann Arbor, 1953 at 3
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay Germanic family. Therefore, one must bear in mind that there is, in reality, no coherent system of Civil Law. Similarly, the assumption that there is a homogeneous Common Law in all so-called Common Law countries cannot withstand closer scrutiny. For instance, the American concept of judicial review does not exist in the British system. Established by Justice John Marshall in the landmark decision Marbury v. Madison, the doctrine of judicial review confers upon the US Supreme Court and on the highest court of every US state the power to decide the constitutionality of acts of the legislative and executive branches of their jurisdictions. However, for the purpose of this macro-comparative discussion, it is appropriate to employ the distinction between Common Law and civil Law in a broader sense IlL. The Pros and Cons of Convergence Globalisation"and"Internationalisation"have become catchwords that now quasi- automatically arouse positive feelings of progress, mutual understanding and new opportunities. As to the convergence of legal systems, however, it might be useful to step back and reflect on the pros and cons, before rashly celebrating its unrestricted desirability The values of convergence in modern society are at hand: it facilitates international transactions, increases the general welfare promotes the diffusion of culture, and leads to international understanding. 4 35Us.(1 Cranch)137(1803) Merryman JH, On the Convergence(and Divergence)of the Civil Law and the Common Law,(1981) 17 Stanford Journal of International Law 357, reprinted in: Merryman JH, The Civil Law Tradition Europe, Latin America and East Asia, The Michie Company, Charlottesville/VA, 1994 at 19
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 4 Germanic family. Therefore, one must bear in mind that there is, in reality, no coherent system of Civil Law. Similarly, the assumption that there is a homogeneous Common Law in all so-called Common Law countries cannot withstand closer scrutiny. For instance, the American concept of judicial review does not exist in the British system. Established by Justice John Marshall in the landmark decision Marbury v. Madison3 , the doctrine of judicial review confers upon the US Supreme Court and on the highest court of every US state the power to decide the constitutionality of acts of the legislative and executive branches of their jurisdictions. However, for the purpose of this macro-comparative discussion, it is appropriate to employ the distinction between Common Law and Civil Law in a broader sense. III. The Pros and Cons of Convergence "Globalisation" and "Internationalisation" have become catchwords that now quasiautomatically arouse positive feelings of progress, mutual understanding and new opportunities. As to the convergence of legal systems, however, it might be useful to step back and reflect on the pros and cons, before rashly celebrating its unrestricted desirability. The values of convergence in modern society are at hand: it facilitates international transactions, increases the general welfare, promotes the diffusion of culture, and leads to international understanding.4 3 5 U.S. (1 Cranch) 137 (1803). 4 Merryman JH, 'On the Convergence (and Divergence) of the Civil Law and the Common Law', (1981) 17 Stanford Journal of International Law 357, reprinted in: Merryman JH, The Civil Law Tradition: Europe, Latin America and East Asia, The Michie Company, Charlottesville/VA, 1994 at 19
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay From the economic point of view, uniformity and simplicity may reduce the transaction costs and significantly avoid uncertainties connected with the use of conflict of laws rules The fact that a mixed body of case law and statutes-such as the law of the European Community-is successfully dealt with by the Civil Law courts of the Continent and by the Common Law courts in the United Kingdom and Ireland proves that convergence works. The hybrid systems of Louisiana, Quebec, Puerto Rico and south Africa provide some more examples However, one should not overemphasise the significance and desirability of convergence. It is important to keep in mind that uniformity should never become an end in itself, unrelated to identifiable mutual benefits, but merely striving for simplicity. This is also important as to the preservation of cultural authenticity, variety and richness. When the forces of convergence threaten what gives a people its cultural identity, the mark is clearly overstepped and it is time to draw back and reconside Nevertheless, the convergence between Civil and Common Law Systems is progressing fast and its effects are obvious in todays legal reality, as the following paragraph will demonstrate IV. The Effects of Convergence This section will show how the convergence of the Common Law and the Civil Law has already diminished some of the previously visible differences between the two
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 5 From the economic point of view, uniformity and simplicity may reduce the transaction costs and significantly avoid uncertainties connected with the use of conflict of laws rules. The fact that a mixed body of case law and statutes - such as the law of the European Community - is successfully dealt with by the Civil Law courts of the Continent and by the Common Law courts in the United Kingdom and Ireland proves that convergence works. The hybrid systems of Louisiana, Quebec, Puerto Rico and South Africa provide some more examples. However, one should not overemphasise the significance and desirability of convergence. It is important to keep in mind that uniformity should never become an end in itself, unrelated to identifiable mutual benefits, but merely striving for simplicity. This is also important as to the preservation of cultural authenticity, variety and richness. When the forces of convergence threaten what gives a people its cultural identity, the mark is clearly overstepped and it is time to draw back and reconsider. Nevertheless, the convergence between Civil and Common Law Systems is progressing fast and its effects are obvious in today’s legal reality, as the following paragraph will demonstrate. IV. The Effects of Convergence This section will show how the convergence of the Common Law and the Civil Law has already diminished some of the previously visible differences between the two systems