CRITICAL COMPARATIVE LAW
Considering Paradoxes for Legal Systems in Transition

Esin Örücü

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?

2.2 Harmonisation or harmony?

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

4. Intermezzo: The test bed

5. The case of English common law: Contaminated, irritated or corrected?

5.1 Past encounters abroad

5.2 The Privy Council: Unity through diversity?

5.3 Encounters at home

5.4 Present-day encounters

5.4.1 Convergence: Concepts

5.4.2 Convergence: Statutory interpretation

5.4.3 Convergence: Codification

5.4.3.1 Introduction

5.4.3.2 The Law Commission

5.4.3.3 Commercial Code

5.4.3.4 Criminal Code

5.4.3.5 Contract Code

5.4.3.6 Coexistence of common law and civil law in Codes

5.4.3.7 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

6.1.2.1 Examples of adjustment: Legislative

6.1.2.2 Examples of adjustment: Judicial

6.2 The development

6.3 The experience: Hyphenated legal system

6.3.1 Mode One: Swiss-Turkish law

6.3.1.1 In developing principles

6.3.1.2 In the unification of precedents

6.3.1.3 In dissenting opinions

6.3.2 Mode One: Turkish-Other 'source laws'

6.3.2.1 Italian-Turkish and German-Turkish law

6.3.2.2 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?

7.1 Systems in transition

7.2 Legal transpositions

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?

Notes

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.

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.

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.

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⁾

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.

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⁾

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.

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.

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'.

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⁾

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⁾

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.

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.

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'.

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.

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.

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.

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⁾

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.

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.

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⁾

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.

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.

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.

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