Comparative Private Law

• Comparative Private Law - what for? 


  Informal relationships (reports by jurisdiction)
• Comparative Law on the legal map

  National Law --> Conflict of Laws --> Comparative Law
• Different branches of comparative law


  Comparative private law, comparative public law, comparative criminal law
• The three dimension


  areas of law, legal regimes, methods
• Quadrat height


  areas of law: company law, constitutional law, tort law, contract law, etc.
• Quadrat Width

  differences between legal regimes (national, supranational, international, transnational): England, Canada, US, GER, EU, etc.
• Quadrat Depth


  approaches to legal knowledge: culture, economics, history, legal rules, etc.
• Purpose of comparative law

  1. further knowledge and understanding of foreign law, domestic law, the plurality of valid legal concepts
  2. practical use: inspiration for the legislator, tool for lawyers when choosing the applicable law
  3. informing ideas of unification or harmonization of the law
• Traditional Comparative Method

  1. starting point: social problem (observation of a real problem ≠ observation of legal rule)
  2. descriptive sections (presenting how different jurisdictions deal with the problem)
  3. final section: summary assessment (critical evaluation of the legal systems)
• Theoretical underpinnings: legal functionalism

  analyzes the law based on the functions that law and legal rules serve for society, focuses on the law's operative role in society, perceives law as a means to an end, often works with case scenarios, offers a link for comparison (tertium comparationis)
• Theoretical underpinnings: Universalism


  assuming that certain legal concepts are common to all humans, humanist ideas of one global law, comparison to search for commonalities, presumption of similarity (praesumptio similitudinis), proximity to exercises of legal unification
• Work plan: 1. Planning


  searching for a possible research question using the functional approach (focus on law, actors, styles of decision-making, ...), reflecting on a reasonable choice of countries to be examined: "How similar do the countries have to be? What influences the choice of countries?"
• Work plan: 2. Describing the different laws


  preferable approach: neutrality, in a collective analysis: description from an interior POV, problem: translation of foreign legal concepts and ways to go about it - paraphrasing, original terms in brackets
• Work plan: 3. Actual comparison


  spotting commonalities, spotting differences, explaining the commonalities and the differences (Why-question): "What are the potential explanation for the variation?"
• Work plan: 4. Critical Policy Evaluation (disputed)


  assessment of the different legal solutions to the portrayed problem, problem: standard setting - better/worse, effective/less effective, recommendations of appropriate
• Projects: Draft Common Frame of Reference


  authors: Study Group on a European Civil Code and Aquis Group, intended to serve as a draft for a "political" common frame of reference, academic preparatory works for the harmonization of European private law, DCFR lists provisions on contracts/mandate/liability arising out of damage
• Projects: United Nations Convention on Contracts for the International Sale of Goods (CISG)


  uniform law governing the international sale of goods, preparatory works by the UN commission on International Trade law and working groups, 97 signature sheets/ in force since January 1988
• Projects: Common Core


  seeking the commonalities in European private law, intent: cartographic drafting, no desire for uniformity, often working with exemplary cases: asking to the solution to a specific case ("pros/cons?")
• Projects: Historical comparative law


  comparing different legal systems not just in their current form but also over time, exploring legal family trees ("merits/challenges?")
• Civil Law


  law heavily influences by the Continental European tradition, civil law as opposed to criminal law or public law
• Common Law


  law heavily influenced by the English tradition, common law as a shared law, common law vs. equity (common law: common law of the free people under the jurisdiction of one royal court - equity: a body of legal principles that supplements the common law when the strict rules of this application would limit or prevent a just outcome)
• Civil law


  Relies heavily on statutory interpretation
• Common law


  Case oriented
• Differences in codification style


  • Civil law with systematic and abstract codification (learned low)
  • Common law with consolidation of previous case low
• Differences in statutory interpretation


  • Civil law with wider interpretation (reliance on text, legislative history and purpose)
  • Common law with narrower interpretation (focus on the literal meaning)
• Actor's perspective: Role of the Courts


  different styles of reasoning (civil law judges with rather systematic reasoning; importance of subsumption - common law with less restraints on reasoning), different court structure
• Civil law


  Relies heavily on statutory interpretation
• Common law


  Case oriented
• Civil law and common law


  • Importance of cases in civil law (constitutional adjudication, judicial development of the law)
  • Statutory interpretation in common law (US Uniform Commercial Code)
• Civil law and common law


  • Differences in codification style
  • Civil law with systemic and abstract codification (learned law)
  • Common law with consolidation of previous case law
• Civil law and common law


  • Differences in statutory interpretation
  • Civil law with wider interpretation → reliance on text, legislative history and purpose
  • Common law with narrower interpretation → focus on the literal meaning
• Civil law and common law


  • Policy orientation of civil law
  • Individual rights orientation of common law
• Civil law judges and common law judges


  • Different styles of reasoning
  • Civil law judges with rather systematic reasoning; importance of subsumption
  • Common law with less restraints on reasoning
• Civil law and common law


  • Different court structure
• Taxonomies are part of science, both in the natural sciences and in the social sciences
• Purpose of taxonomies


  Ordering in order to give systematized accounts
• Taxonomies are essential to scientific self-understanding
• Legal systems can be classified like political systems and economic systems
• There are different ways to classify legal systems
• Classification of legal systems


  • Real types (looking at actual legal systems)
  • Ideal types (working with conceptions of ideal types of legal systems)