LOOKING AT CONVERGENCE THROUGH THE EYES OF A COMPARATIVE LAWYER
Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use.
In 1982, nearly two years after my appointment to the Chair of Comparative Law in this University (Erasmus University Rotterdam), I stood in the ‘Aula’ to give my inaugural speech. Some of the faces I see here today were also present then. They do not seem to have changed much, but of course we have all changed. In our profession, as the number of one’s grey hairs increases, so does one’s gravitas and status. So, looking around I must say we are all more important now than we were then.Those who were there that day will remember how I told them that my field was considered by some to be non-existent and defied definition. Others saw it as giving me privileges and freedom, making me the envy of my colleagues. Yet the burdens I had to carry should evoke sympathy. At that time, comparative law was popular or even fashionable, though of marginal importance. As a comparatist, I was first bewildered and then exhilarated and excited. Some people say nothing much has changed in the past twenty-five years. For me, however, at Erasmus there have been quite a number of changes. For example, I moved venue eight times. I started on the 15th floor of the main building, ‘Hoogbouw’, and soon moved to another floor. Then we moved to the ‘barrakken’ and even there moved rooms twice. Later we moved into the new L Building, in which we moved up and down a number of times as well as horizontally. The courses we taught have changed too. From teaching one course, we have now, as I leave, six courses. The teaching staff has changed as well, including the number involved in comparative law teaching. Comparative law courses are also on offer now in other departments in Erasmus. I started on my own, and was soon joined by dear good old Rob Jagtenberg, as a student assistant. In our department, the number of colleagues increased from these modest beginnings, once even up to five, then reduced to three, then two - being a department in deficit - and now, with my departure, to one, at least for a couple of weeks - and then? Oblivion? I sincerely hope not, especially not at a time when comparative law and comparative law theory have taken an immense turn for the better. The future of comparative law is bright indeed. The constancy has mainly been in friendships. The Ten Raa, D’Hane and Umar families have become my life-long friends. The staunch support of Dr Rob Jagtenberg, Dr Annie de Roo and Tineke van de Pas through thick and thin has been invaluable. And I must say, we have been through more thick than thin! Fruitful friendships with colleagues from
2. The reality of convergence
2.1 ‘Original convergence’
If we take a fresh look at the classification of legal systems and reassess their positions in relation to each other according to their parentage, their constituent elements and the resulting blend, and then re-group them on the principle of predominance, we quickly see that what at first looked like individually distinctive legal systems which sometimes even appeared irreconcilable are in fact members of intertwined and overlapping family trees. Identity, difference and uniqueness all seem to fade away when viewed in this way. This perspective reflects reality and I believe that all the rhetoric to do with convergence and non-convergence can be defeated in the face of the ‘original convergence’.Deconstruction and re-construction of legal systems reveals that, although parts of the new landscape resemble the old, other parts and the whole look different. Grouping legal systems into legal families separates the members of one grouping from another. Although the significantly similar are put together, even in that similarity one is also highlighting the difference to make them distinctive. There is a definite difference and even irreconcilability between the groups, and yet, within the groups difference is still of value although there is similarity. Originality, derivation and common elements surface behind the efforts of classifications. However, in the ‘original convergence’ thesis, relationships are of the utmost importance, and yet, this is not a claim at ‘derivation’. All legal systems are related historically, and today more closely than ever. The relationship between a legal system and its socio-cultural context does not stand in the way of its relationship with other legal systems or even with other socio-cultural contexts. In addition, legal systems that may appear not to be converging in one area of law may be converging in another. Legal systems, which may be grouped together for the purposes of one subject matter, may be regrouped differently with others for the purposes of another subject matter. Legal systems, which belonged together at a certain time, may shift their positions at another time. Borders are constantly changing and legal systems remain in one position for only a limited period of time, though this time span may be quite long. All this shows, firstly, that legal systems can never be placed in fixed positions for all time and in all areas of law. Furthermore, the above, coupled with the overlaps to be exposed through the deconstruction of legal systems into their original components, can only strengthen the ‘original convergence’ thesis. When we look beyond rules, substance and structure towards legal tradition and legal culture, the interrelationships become even more obvious. This may sound like the reverse of what is usually claimed. It is said that rules and solutions may look alike but that legal cultures and traditions differ. The ‘original convergence’ thesis claims that in essence rules and structures may have developed differently over time but that the legal traditions and cultures overlap. This does not amount to claiming that there is an emerging ‘European legal family’ as a monolithic centralised model. Neither is this a suggestion that there is one ‘Western legal family’ - another centralised monolithic approach. What is being claimed here is that though one can see a picture of systems ‘united in diversity’, deconstruction of legal systems may portray yet another aspect of these so-called diverse legal systems - the overlap. If, for example, the legal systems in Europe, whose borders are ever changing, are reassessed according to the old and the new overlaps and blends and to how the existing constituent elements have mingled and are mingling with new elements entering these legal systems, we find an ‘original convergence’ as well as an ‘ongoing convergence’. Thus we see that English common law was an overlap of Roman law, civilian ideas, canon law, equity and domestic common law. Some continental systems in Europe are combinations of Roman law, French law, German law and indigenous law such as the Dutch, some of canon law, Roman law, French law and German law such as the Italian, some of customary law, neo-canon law, German law, French law, Swiss law, Greek law and Roman law (and even Ottoman law) such as the Greek and some of ancient Greek, Roman, Byzantine, Franco-Venetian, Ottoman and British laws such as the Cypriot. Roman law itself has elements of the laws of Hammurabi and ancient Greek laws. French law and German law are themselves outcomes of overlaps of different ingredients. There are new overlaps on the continent with elements of common law, British or American. English law is becoming more and more an overlapping of common law, various civilian systems and European law. All legal systems are crosses, and this is the basis of the ‘original convergence’ thesis. 2.2 ‘Past convergence’
It may be true that in
the past ius commune was mainly
private law based and was originally seen to be in the field of obligations. In
fact, it was more extensive than that. Although, when we speak of Roman law
today, we tend to think of private law, ‘this restriction dates only from the
19th century; it is not true of the ius
commune. The ius commune was
universal in the sense that it included all fields of law: criminal law,
procedure and, to a certain extent, even public law.’
The main sources of the ius commune
were Roman law in the form given to it by Justinian (in the Middle Ages dubbed
the Corpus Iuris), canon law (forming
the second Corpus, the Corpus Iuris Canonici) and some medieval
institutions such as feudal law, rules developed by jurists and commercial law
as developed during the Middle Ages. Furthermore, the moral theology of the
Middle Ages and, from the middle of the 17th century onwards, rationalistic
natural law and the ius commune were
mutually influential. ‘The ius commune
was in force in all countries west of a line drawn from
Today, the growing ius commune novum certainly includes
. . . 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 instance, the Danish law as to ‘stiltiende afkald’, the English law as to estoppel, the German law
as to ‘Rechtsverwirkung’, the Italian
law as to ‘legittimo affidamento’ and
the Scots law as to personal bar, as well as the French law as to ‘renonciation implicite’, there emerges a
general principle . . . that one who, having legal relations with another, by
his conduct misleads that other as to a material fact . . . cannot thereafter
base on that fact a claim against him if he (that other) has acted in a
relevant way in reliance on what he was led by that conduct to believe. 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
Let us continue with a more recent statement of Advocate General Geelhoed, specifically mentioning the resort to ius commune:
Regard must be had to the
changes which have occurred in the legal systems of
In the context of
What is now needed is discussion on how best to achieve the end of further convergence and on what is the right course of action.To wait for a gradual development of a ius commune may not be practical. One way forward towards uniformity would be through codifying basic principles in these fields, and thus attaining uniformity. Indeed, in 1989 and 1994 the European Parliament adopted Resolutions calling for the codification of European Private Law, the call being based on the belief that unification can be carried out in branches of private law which are highly important for the development of a Single Market, such as contract law. Since then, the study of private law has faced a new challenge. Whether at present a European Civil Code is practicable, or even desirable, is under debate, though the project has found support in some quarters. Short of a European Civil Code, however, there are other options. Firstly, a European Code of Contracts might be a slightly watered down version of a European Civil Code. Another possibility was to unify the General Principles of Contract Law and this has in fact been achieved. The Commission set up in 1980 for this purpose has completed its work, which can be seen as the first step towards the production of a future Code. Such projects on unifying General Principles which can then be used as Restatements, are being undertaken in other fields as well, thus another way forward is in American-style Restatements. The case-books approach has already produced its first fruits and ‘law and economics’ scholars suggest that when legal systems are in competition in a ‘market of solutions’, the ‘best solution’ will always win the day. In addition, an ‘evolutionary theory’ has been suggested, as a variation of the ‘law and economics’ approach, whereby gradual and organic convergence could take place based on spontaneous ‘cultural evolution’ without any compulsory principles.At worst, transnational rules could function alongside national rules and eventually become congruent with them. At the level of private law at least, legal education embracing both European and national principles should become compulsory and textbooks be produced to this end. Today, European Law Schools are being set up and new links between universities forged. All the above approaches indicate that convergence is inevitable and the end result will be a wide ius commune novum, as analysis reveals that convergence does not stop at private law. For instance, administrative law systems in
This survey shows, as would be expected, that though the problem underlying the cases such as the present is universal the response to it is not. . . . But . . . most jurisdictions would, it seems, afford a remedy to the plaintiff. Development of the law in this country cannot of course depend on a head-count of decisions and codes adopted in other countries around the world, often against a background of different rules and traditions. The law must be developed coherently, in accordance with principle, so as to serve, even-handedly, the ends of justice. If, however, a decision is given in this country which offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question. In a shrinking world (in which the employees of asbestos companies may work for those companies in any one or more of several countries) there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome.
This might be regarded as a ‘convergence of policy’, and thereby a convergence of solutions. This might also indicate that a spontaneous convergence, embracing a common intellectual framework for the consideration and resolution of current problems, is developing. Obviously, it is easier to show a convergence of solutions but more difficult to claim that there is clear convergence of reasoning. If this also develops, then we can talk of true convergence by ‘rapprochement in reasoning’. This also requires the ‘repositioning’ of comparative law. In this process, much falls on the shoulders of comparatists in persuading judges that foreign law could be better, in searching for common roots, common principles and common solutions and in bringing about rappoachment.It is true that the circle in which English law predominantly lives is the ‘unity of common law’ born of a process of colonial expansion with English common law rivalling the Roman-law-based civilian tradition in the creation of a legal Empire. English law laid the foundation stones of most of the legal systems in
. . . contribute to forming that philosophical, political and legal substratum common to the Member States from which through the case law an unwritten Community law emerges, one of the essential aims of which is precisely to ensure the respect for the fundamental rights of the individual. In that sense, the fundamental principles of the national legal systems contribute to enabling Community law to find in itself the resources necessary for ensuring, where needed, respect for the fundamental rights which form the common heritage of the Member States.
A ‘common law of human
rights’ is developing fast and this ius
commune of human rights is intended to cover all the circles mentioned
above as an outer shell. It is an all-embracing circle. There is already such a
unity within the context of
3. Concluding remarks
Returning to our Continent, one of the most important roles that comparative law plays is in the harmonisation and unification of activities, and comparative lawyers are involved in the preparation of the many projects to achieve these ends. Such activity is of ever-increasing significance. Whether the starting point be ‘common core’ studies or ‘better law’ studies, the areas prepared for harmonisation and unification are on the increase.The place of comparative law in all this is crucial. Firstly, comparative law is a fundamental source for any Europe-wide project, in fact, of European law itself. It is the main tool for working towards European integration. It aids in overcoming exclusive nationalism and shows how the ius commune novum must be based on intercultural communication while leaving room for diversity. This can be called, with William Twining, ‘rooted cosmopolitanism’. The mere existence of the European Union implies that comparative law has a serious role in the developing of principles. Secondly, the kind of comparative law that facilitates intercultural communication is the one which goes beyond juxtaposing, contrasting and comparing. This strengthens the call for comparative lawyers to be trained in interdisciplinary research problems, to have knowledge of and familiarity with different legal cultures, to have a good command of languages, knowledge of history, economics and politics, and also to receive training in methodology. Thirdly, the work of comparative lawyers in facilitating the achievement of the interrelationship between the overlapping circles to bring about intercultural understanding is vital. The fact that there are few overt references to comparative law in the judgments of the courts of the European Community in no way reflects the true position. This work is undertaken primarily by the Advocates-General, the Commission, national courts, academics and practicing lawyers. In fact, both the ECJ and the CFI are the laboratories of comparative law, and the comparative approach in the activities of the Community judge has been hailed as ‘a “quasi-compelling” method of interpretation of Community law intrinsically linked to the continuous integration process which characterises the European construction’. As stated by Koen Lenaerts, the European Union,
. . . has its own variant of E pluribus unum, that is a set of interlocking legal orders, showing mutual respect for each other based on equivalent levels of judicial protection of the rule of law. That constitutes the common platform for the legal underpinnings of European integration, a ius commune built with the bricks of the comparative law method.
Valedictory lecture, Erasmus University Rotterdam,
Professor of Comparative Law,
This author has also dealt with some of these issues elsewhere; see E. Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Leiden/Boston: Martinus Nijhoff Publishers, 2004).
For more on this, see E. Örücü, ‘Family Trees for Legal Systems:
Towards a Contemporary Approach’, Chapter 18 in M. van Hoecke (ed.), Epistemology and Methodology of Comparative
H. Coing, ‘Sources and Characteristics of the Ius Commune’, (1986)
19 Comparative and International Law
R. Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science’, (1996) 112 Law Quarterly Review, 557, at p. 602.
L. Moccia, ‘Historical Overview on the Origins and Attitudes of Comparative Law’, in B. de Witte and C. Forder (eds), The Common Law of Europe and the Future of Legal Education (Deventer, Kluwer/Metro, 1992), p. 609.
Zimmermann, above note 7.
Boizard v Commission 63+64/79  ECR 3002 (Advocate General Warner).
The Advocate General’s opinion concerns both Gonzalez Sanchez v Medicina
Asturiana SA Case C-185/00, paras 66 and 67, and Commission of the European Communities v
See P. de Cruz, ‘Legal Transplants: Principles and Pragmatism in
Comparative Family Law’, in A. Harding and E. Örücü (eds), Comparative Law in the 21st Century (
T. Koopmans, ‘Towards a New “Ius Commune” 2’, in B. de Witte and C. Forder (eds), The Common Law of Europe and the Future of Legal Education (Deventer, Kluwer/Metro, 1992), p.49.
J.M. Smits, ‘The Harmonisation of Private Law in
Joined Cases of Fairchild
v Glenhaven Funeral Services Ltd and
others; Fox v Spousal (
See G. Canivet, ‘La convergence des systèmes juridiques du point de vue du droit privé français’, 1 (2003) R.I.D.C., 7-22.
 4 All ER 989 PC.
Attorney General of New Zealand v Ortiz and other  3 All ER 432.
Community of the same religion.
G. van Niekerk, ‘The Convergence of Legal Systems in
Case 11/70 Internationale Handelsgesellschaft  ECR 1125, at 1146-1147.
W. Twining, Globalisation and Legal Theory (London, Butterworths, 2000), pp. 47, 50, 88.
K. Lenaerts, ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52 International and Comparative Law Quarterly, 873-906, at pp. 878-879.
Ibid., p. 906.
M. Bussani, ‘Current Trends in European Comparative Law: The Common
Core Approach’ (1998) 21
Cite as: Esin Örücü, Looking at Convergence through the Eyes of a Comparative Lawyer, vol 9.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (July 2005), <http://www.ejcl.org/92/art92-1.html>.
Tell a colleague about this article.