Comparative Law: Across Boundaries

Bridging Differences

Value of knowing other legal systems

• Model: Borrow techniques– Expand the number of “laboratories”– Utilitarian: find methods, language, exceptions

• Perspective: Appreciate own– Recognize policies, history, purposes– Like studying foreign language (even dead ones)

• Discover: universal truths– Test results of different rules – Intellectual curiosity

• Power: compelled by reciprocity, trade, empire– International trade/ relations demands– US judges traveling overseas– Prop up foreign legal regimes

Questions

• What is the difference between (many)–– Choice of law (private international law)– Comparative law– International law– Apply to: X dies and in written will leaves all

to daughter Y. Both are Ruritanians. Company Z owes X some money. Y sues in New York. Should NY court recognize notarial acts? (Erika)

Questions

• Must a US lawyer be knowledgeable about foreign law?– What are professional expectations? (Valeria)

Responsibilities? (Reid)– Does the context of situation (domestic or

foreign) affect lawyer’s duties?– Example: privilege of self-incrimination in

other countries? (Reid) in US? (Erika)– Example: “standards of decency” for judging

foreign convictions? (Erika)

Questions

• What are “laws of civilized nations”? – How is this done? Common law method, stare

decisis? (Jordan, Erika)– What are sources of law under the US

constitution – compared to ICJ Article 38? (Reid) What is ex aqueo et bono? (Erika)

– For example, prosecution of terrorists in US – claims against PLO based on Israel attacks? (Brett) OK to be in US? (Leslie)

Questions

• Do you believe in legal unification? – Why was the US late in joining the game?

What about Convention on Contracts for Sale of Goods? (Brett)

– What is happening to the EU constitution? What are political forces, pro and con? (Jordan)

– Could there be a regional unification – beyond NAFTA? (Valeria, Brett, Leslie)

Questions

• Do you believe in legal unification? – Can there be unification of criminal law –

again to get at terrorists? (Reid)– What do you think about Savigny’s point that

“law like language is peculiar to every nation”? (Valeria, Reid)

– Is there natural law that transcends or is inherent in national laws? A “legal diaspora”? (Leslie)

Questions

• Do you believe in legal unification? – What are periods of constrastive comparison

compared to integrative comparison? (Erika)

Roman Law(100AD - 300 AD)

Swiss Civil Code

(1907)

Austrian Civil Law

(1812)

Louisiana

Civil Code

(1808)

German Civil Code (1900)

French Civil Code (1804)

Turkish Civil Code

(1926)

Italian Civil Code (1942)

Japanese Civil Code

(early 1900s)

Questions

• Is it legitimate to use comparative law in interpreting one’s own texts?

• What reasons does Greenspan use for its comparative approach? Compare to Lawrence v. Texas.

• Can comparative law extract “intellectual tradition” isolated from social/political?

• Is comparative law more legitimately used by legislator compared to judge?