Over the next day or so I will create very general posts about the subjects covered and some major points made during the Congress I am only attending this morning and the July 29th day at Georgetown Law Center. The plenary this morning, July 26th, will be covered in a separate post.
This concurrent session was Chaired by Prof. Reinhard Zimmermann of the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany; present were the national reporters and also the General Reporter, Jorge Sanchez Cordero, Director, Mexican Center of Uniform Law, Mexico.
The following rough summary was based on the General Report delivered at the session.
Is comparative law part of the problem or the solution in developing legal systems? Remarks about legal transfers or transplants were presented in the context of our global financial structure. Law may be autonomous and not really amenable to being transplanted.
Awareness of the history and traditions of a legal culture may vary, even among lawyers. Sometimes borrowing is easier than development from within the tradition. There may be hermeneutic tasks involved. Historical memories and traditions may be involved and may move between the level of legal rules. Inevitably many scholars believe that these questions must involve questions of what the law is and what it ought to be. The role of evolving traditions is important. Knowledge of law as knowledge of rules may be part of a particular ideology or tradition and there may be incompatibilities here.
Code approach was imposed, perhaps? Four periods of history
1. Discovery of Americas to French Revolution: private Roman code and Siete Partidas in the Indies via Spain may have been the first major transplant. Part of the continuous practice of evolving Roman law, generally in most of Europe.
2. French revolution to WWI: Codification does not by itself create a legal culture. Brought out positivist dogma that the state creates the law. Common law contested in Texas and partly Louisiana. Russia struggled with the east west divide. Wisdom authority justice and truth was part of their legal culture and state power seems perhaps not bound. China had followed Japanese reception of European models but in 19th c, common law comes in via Hong Kong and British control there. Imperial law does not interfere with local customs. Australia received common law simply but with principles such as title to land by registration and followed English decisions.
3. WWI to Berlin wall: US had harmonization by unification of state laws. This was the beginning of a legal culture resistant to transplants. Now there is a greater legal pluralism. Then French and German cultures begin to harmonize, and there is EU. Nordic systems have also been converging. Turkey took the Swiss Code of Obligations.
4. Berlin wall falls, to the present: discovery of new landscapes. 2008 saw a new civil code in Brazil. Replacement of East European systems begin replacing laws, and reviving codification. Israel has evolved a mixed legal system. Russia has also borrowed widely and across several western models and under the influence of various business groups. China is undertaking studies and worked on some principles of civil law and with Hong Kong, “one country with two systems.” This may be a fused legal system.
Bills of rights and human rights legislation are also spreading. Legal ideas are crossing borders and there is a need to face acculturation of the institutions, ideas, and concepts. There may be no “pure” system even though law is part of culture.
The discussion begins and will be covered in a separate post.