1. Introduction
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
Leiden and Utrecht have added to the enjoyment of my work. These
friendships will go on.
For me, yet another constant factor
is my enthusiasm for what I am doing – research and teaching. As the saying
goes, ‘old professors never retire, they only lose their faculties’. Only time
will tell!
Some still say that nothing much has
changed in comparative law in the past one hundred years. In fact, there have
been some very important changes resulting in comparative law now being
referred to as the science of the 21st century. For example, the legal systems
in
Europe are getting progressively closer together
within the ambit of the EU and, as time passes, the number of EU members
increases, and thus comparative law is more and more seen as indispensable. The
role of comparative law is now acknowledged in understanding diversities and
commonalities; in transpositions from system to system and from systems to the
EC and from the EC to the systems, and in harmonisation. Today, comparatists
are sought-after members of academia. Comparatists of all kinds work in Commissions set up in various fields of law to prepare general
principles, common core studies and even European Codes.
Most ‘theoretical comparativism’
today is dominated by the ‘sameness and difference’ debate. It may even be
legitimately questioned whether comparative law has indeed become just an
instrument of integration. Comparative lawyers are seen by many not as neutral
observers, but as workers for convergence.
Obviously, some stress cultural
identity, mentality, difference and ‘living apart together’ as important tenets
of nation states within which cultural pluralism and even legal pluralism are
discussed. Although they would not deny the existence of a historic
ius commune in continental Europe, they
do not acknowledge the existence of a
ius
commune involving both the common law and the civil law in the past and are
totally opposed to attempts at the creation of one now, even for the members of
the civilian tradition, considering this to be impossible. For example, a
researcher involved in the Scottish nationalist movement might prefer to stress
differences between the English and the Scottish legal systems – and there are
many – in order to prove that they are insurmountable, even for a
partial harmonisation of the two legal
systems. Whereas a Scottish researcher believing in the unity of the UK and perhaps
also wanting to pave the way for European unity might focus on the similarities
between the English and the Scottish legal systems – and again there are many –
in the hope of generating a unification movement at home as a first step in the
direction of a harmonisation movement within Europe. Thus it is possible to
claim, according to this type of political choice, that the Dutch and the
English legal systems, for example, are quite different in their approaches to
and their use of law, and ‘never the twain shall meet’. However, it is also
possible to stress the similarities between the two if there is the will to
facilitate European co-operation within the European Union. These are all
legitimate research strategies as long as the strategy is clearly laid down at
the start of the project. Which strategy is chosen depends on the political and
theoretical orientation of the researcher.
Thus, comparativism can be seen as a
threat or as a panacea depending on the stance taken. For me, it is a panacea,
although I do recognise that nothing seems to be able to cure all the ills of
our times. The best on offer is to have a conviction and work towards one’s
goals.
The most striking development over
the years has been in the rhetoric of ‘convergence’. Here, I would like to look
at the reality of convergence. I want to do this by dealing with two separate
but interlinked issues under four subtitles. The first issue involves looking
again at legal systems to illustrate the thesis of ‘original convergence’ and make
a case for the overlaps of legal systems within and across the classically
accepted legal families. This is an area in which I am actively engaged. The
second issue involves looking at the reality of convergence itself, occurring
in front of our very eyes. This will be dealt with as ‘ongoing convergence’,
within the context of an ever-enlarging
Europe. Of course, I have a certain personal interest
in this field as I watch the enlargement of the EU towards Turkey. ‘Ongoing convergence’ can be assessed at a
number of levels. We should also look at ‘past convergence’ and, finally,
consider ‘future convergence’.[3]
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,
[4]
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.’[5]
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 Venice to the Baltic sea, including Hungary and Poland.’[6]
So, in the past, there was a
ius commune and
England was part of it, as part of ‘European culture’.[7]
As pointed out by Luigi Moccia, whose working hypothesis is that ‘Continental
(Civil) law and English (Common) law stood together in past centuries as
component parts of a same cultural context not yet affected by legal
nationalism and positivism’,[8]
these are two traditions on a path of convergence. In many parts of the world,
as well as at home, English law met the civilian tradition and happily lived
with it: the two have never been strangers.[9]
English law borrowed from the civilian tradition, internalised various Roman
law concepts into equity and common law, and thus enriched its common law. It
had no problems with Codes, and indeed it introduced common law to some of its
colonies in an already codified form. In addition, in the fields of contract
law, commercial law and criminal law there were attempts at home to codify the
law in the 19th and 20th centuries. So it is clear that, common law and
codification can coexist. Examples can be found in other common law
jurisdictions such as the United States where there is a variety of Codes such as the
Uniform Commercial Code and the Californian Civil Code and in Australia, where one speaks of Code States with codified
Criminal Law.
In the early part of the previous
century, the utopian idea of ‘one law for the civilised nations’ if not ‘one
law for the world’ was expressed from time to time. Feelings of fairness and
justice were seen to demand uniform laws for all. That this was a dream was
soon realised, but still there were many who aspired to it. In times of peace
it is commonplace to wish to get closer together and the reverse is true in
times of conflict. Variations of this dream came to life in certain regions
such as in the Nordic Union and the
Benelux
countries in harmonising the laws. Convention law, model laws and the like were
all attempts to create uniform standards, maybe for the sake of convenience and
to ease the way for economic integration, and also as part of a political
agenda.
Let us now move to ‘ongoing convergence’.
2.3 ‘Ongoing convergence’
Today, the growing ius commune novum certainly includes England. The path leads towards an integrated Europe. Integration will be in many fields. It will
extend far beyond the limited number of fields of private law. Therefore, to
speak of a ius commune only in
private law is inappropriate and does not do justice to the vision. Integration
will surely extend beyond private law, commercial law and procedural law. To
start with, the mere existence of the European Union itself implies an active
role for comparative lawyers in the development of general principles. The number
of ‘common core’ projects and Commissions set up to prepare European Codes,
General European Principles, European Case Books, Restatements and to develop
theories of ‘competing legal systems’, in addition to regulations, directives
and conventions of the European Union and the Council of Europe, and the
European Convention of Human Rights bear witness to a plethora of activity in
building the groundwork for convergence. We see also the development of a communis opinion doctorum novum, to
supply answers to shared problems from this new pool of ‘rule of reason’.
Starting with a quotation from the
Opinion of Advocate General Warner of the European Court of Justice, indicating
the existence of a common ‘legal heritage’, we read:
. . . 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 Member State.
The principle exists also in public international law where, although it is
generally given its English name of ‘estoppel’, it is considered to have its
origin in Roman law.[10]
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 Western
Europe over the last 50 years. Those changes are
characterised by the almost continual attention which legislatures have paid to
protecting interests which in social terms have been shown to be vulnerable . .
. Individuals and interests not included in the scope of the legislation may
not rely on the special protection provided by it. Therefore, they must rely on
general rules of private law, such as ius
commune.[11]
In the context of Europe today, there is an effort to create an ‘ever
closer union’, and although some see this only as a means of facilitating
economic ties, others regard legal and cultural integration as the ultimate
goal. World-wide unification is no longer discussed and, at a time when there
is even talk of a ‘clash of cultures’, it is not the dream of our century. The
‘new ius commune seekers’ are mainly
interested in private law, but the boundaries of private law have been widened.
Now, in the search for a closer
integration in
Europe a number of hitherto neglected areas are being
looked at. For instance, although as yet there is no uniform family law for
Europe, efforts are being made to create standardisation in some aspects of
family law through European law and Conventions related to respect for family
life, the equal treatment of men and women, the equal treatment of legitimate
and illegitimate children and the recognition of divorce, maintenance and
custody judgments. There is lively comparative law research activity in this
field. The belief that family law, being culture bound, does not lend itself to
comparison, let alone harmonisation, has long been refuted.[12]
Obviously, some of these efforts are academic but European norms enunciated
through the European Convention on Human Rights in relation to Article 8 on the
right to family life, for example, have had a substantial impact on the
legislation of countries such as the UK, France and the Netherlands. This is apparent in areas such as parental
authority in marriage and after divorce. A number of Council of Europe
Conventions such as the 1967 Convention on adoption and the 1975 Convention on
the legal status of illegitimate children are among other harmonising agents.
In addition, the rights of the child and the protection of minors have been
specifically targeted at the European level.
Today, an increasing number of areas
of law are designated as ‘European’, including areas such as European
competition law, European contract law, European tort law and European family
law with European Commissions of academics working to produce general
principles in these fields either using the ‘common core’ or the ‘better law’
approach. Treaty law also brings together rules in various branches of
substantive law and private international law.
To date, many areas such as
commercial law, trade and labour law, transport by rail, sea and air, copyright
and industrial law and procedural law have been brought closer together and in
some cases been unified. Moreover, there are moves to create a ‘common law of
human rights’ as well as a criminal law for
Europe, particularly for crimes that extend beyond
the borders of a single nation State. Such entities as the European Union and
the Council of Europe are regarded as facilitators for the realisation of such
aspirations. ‘I submit’, says Thijmen Koopmans, ‘that a new ius commune for Europe is taking shape before our eyes.’[13]
Now that so many harmonisation and
unification projects have been successfully completed and a European private
law is being developed, the questions of necessity, feasibility or even desirability
do not need further discussion.
2.4 ‘Future convergence’
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.
[14]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
Europe are also converging and common rules, common
principles and a common mentality are emerging. However, we have not yet
reached the stage where we can talk of a ius
commune of public law.
Let us now widen our field of vision. The
UK straddles two worlds. It has one foot in the ius commune novum with the legal systems
of Continental Europe and the other in the ‘unity of common law’ with the legal
systems in the Commonwealth and the USA. The UK, which also comprises Scotland, a mixed jurisdiction, can be regarded as a
point of confluence. This position can best be illustrated by recent cases. In
the Fairchild case,[15]
for example, inspiration was drawn from other common law jurisdictions such as
those of Australia, New Zealand, Canada and the USA, from Scotland, a mixed jurisdiction, from civilian
jurisdictions such as France, Germany, the Netherlands, Greece, Spain and Norway, as well as from Roman law. Lord Bingham,
delivering his Opinion in Fairchild,
made this most pertinent observation:
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.[16]
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.[17]
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’.[18]
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
North America, Australia, New Zealand, India and large parts of Africa and South East Asia.
English common law also played a crucial role as the basis of harmony in the
common law world maintaining this harmony by laying down paths of
cross-fertilisation, the Privy Council
on many occasions bringing the laws of the individual jurisdictions of
the Commonwealth into line with others within their specific regions. For
instance, in Cheali v Equiticorp Finance Group Ltd and another,
Lord Browne-Wilkinson stated: ‘It is manifestly desirable that the law on this
subject should be the same in all common law jurisdictions.’[19]
The different socio-cultures within
this circle face the same legal culture – the common law. Specific to this
circle, there is still a consciousness that common law is a whole and provides
a real tie between the several jurisdictions within the ‘unity of common law’.
‘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.’
[20]
Judges use cases from other jurisdictions within this unity, attributing to
them persuasive effect and sometimes preferring one such decision over the
domestic one: the citing being sometimes for ‘help’ or ‘comfort’ but at times
as authority. It is most striking that ‘the feeling of oneness is so strong
that in one case the [British] judge found it difficult to refer to New Zealand
as foreign and apologised to his New Zealand friends for using the word “foreign”.’
[21]
Now, beyond these two circles there
are of course other worlds some of which also live in unity. For instance, such
a ‘commonality’ exists in the Islamic world, where Moslems living in many of
the jurisdictions in the Islamic world are first and foremost members of ‘
ummet’(
ummah)
[22]
rather than ‘nationals’ or ‘citizens’ of their respective States since Islam
has no national boundaries. Though Islamic law has never been applied as a
uniform code of law and does not aim at uniformity in spite of its being comprehensive,
similar to the unity of the common law, there is a ‘unity of Islamic law’. The
reception of Islamic law was the spreading of a global doctrine which, in
historical terms, had a wider catchment area than that of Roman law in
Europe.
It follows from the foregoing that
this unity of the Islamic world is another circle in overlapping relationship
with the ‘
ius commune’ and the ‘unity
of common law’ in the Western world and, more poignantly, in those parts of the
world where the post-colonial independent States with inherent cultural and
religious pluralism have accepted legal pluralism.
It has also been suggested that it
is possible to talk of an emerging convergence in African law. Maybe what we
see here is more a possibility of convergence of laws, a natural and
spontaneous process, rather than the harmonisation of the law, which is a plan
and an applied technique. As Gardiol van Niekerk points out,
Africa presents a more complex case than Europe in this regard.[23]
The first obstacle is that legal pluralism prevails in most of the African
continent and therefore the achievement of convergence is much more difficult.
The second obstacle is that in some countries such as Cameroon, Mauretania and
Somalia, the colonial heritage has meant that there was
not one single overarching colonial legal system but there were two: a complex
and multifaceted indigenous underlay with two overlays conjoined. Nevertheless,
in Southern Africa there is convergence with regard to private
law, the focus so far being ‘on the unification of the imposed Western law and
the indigenous laws within individual African countries’. Two groups of
countries have been considered by Gardiol van Niekerk: countries belonging to
the South African Law Association and the States belonging to the Southern
African Development Community (SADC). His analysis of developments reveals that
the focus is ‘not only on economic integration and the facilitation of free
trade in the region’. Programmes are sectorial and include ‘environment and
wildlife, energy, illicit drug trafficking, transport, education and training,
health care, law enforcement and legal affairs, and matters pertaining to
“gender and development”.’[24]
What is striking here is that there is room for both convergence and
divergence, thus hope for congruous development. Natural convergence must be
the ultimate aim. A loosely connected unity may be developing in Africa, which may lead to the formation of another
circle.
The ultimate vision may be
represented as a number of overlapping circles of various sizes sitting within
an all-encompassing circle of human rights. Human rights is yet another area
where a ‘common law’ is forming. Many concepts developed on the basis of the
European Convention of Human Rights have seeped into domestic legal systems in
Europe either directly or by way of European
Community law. Mentalities, cultures and legal constructions are mixing to
bring about such a common law. This is extremely significant. For example,
within the European Union, both the European Court of Justice (ECJ) and the
Court of First Instance (CFI) have jurisdiction – limited though it may be – to
ensure respect for fundamental rights arising ‘from the constitutional
traditions common to the Member States, as general principles of Community law’.
Human rights or fundamental rights are constitutive elements of European
integration, part of a pre-existing ‘common heritage’. These general principles
now extend to the relevant rights arising under the European Convention on
Human Rights. According to Advocate General De Lamothe, these principles:
. . . 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.[25]
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 Europe between
both the Member States of the European Union and the jurisdictions subject to the Council of
Europe Conventions. However, the repercussions are wider. Today it is
commonplace to talk of the ‘globalisation’ of human rights.
In addition, as part of
globalisation another outer circle has formed created by international
corporate power. This development is even drawing systems as far apart as
Chinese and the
USA closer together.
Overlapping circles of four or more
worlds living in interrelationship, congruous with each other if not
interlocking and surrounded by an outer circle of human rights and the
off-shoot of a globalised economy, is the ideal to be worked towards in this
globalising world of ours, in which people are constantly on the move.
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’.
[26] 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’.
[27]
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.[28]
Within Europe today, ‘common core’ projects regard legal
systems as being multi-level and consider comparative law as an ‘integrative’
enterprise.[29] Regarding
cultural diversity in law as an asset while not taking a preservationist
approach for its own sake, the aim must be to build European culture on a map
of multi-level legal systems. This building of a common culture puts strong
emphasis on legal education – education that recognises the crucial place of
comparative law teaching.
One important such project at the level
of university education aims to forge links between European universities in
order to integrate qualifications, and to create a European Higher Education
Area (EHEA) by 2010. This project is supported by thirty-eight countries, which
have agreed to adopt a common pattern distinguishing undergraduate and
postgraduate courses, systems of credits and credit transfer, diploma
supplements that enable each qualification to be ‘readable’ in all parts of the
EHEA, a structure for quality assurance, joint degrees and integrated
programmes for training and research. This movement is obviously not exclusive
to law but has the potential for having an impact on the education of future
lawyers. The project which started in
Bologna in 1998 covers the greater Europe of the EHEA comprising the European Union
countries, the remaining European Free Trade Area countries, the European Union
accession States and the Balkan nations. The overall theme is convergence in
research and quality assessment. The most remarkable aspect of this development
is that, despite the entrenched autonomy and traditions of disparate
universities and national sensitivities, the universities have arrived at the
principled acceptance of convergence and persuaded governments and the European
Commission to back them. The challenge is to collaborate so as to match and
surpass the quality of American universities and play as effective a role in
the international arena. The European Commission, through its Erasmus Mundus
programme is poised to spread its Erasmus programme model worldwide, while at
the same time developing ‘Knowledge Europe’, working towards the European
Union’s European Research Area (ERA) in parallel with the EHEA. These are most
welcome developments.
Let me reiterate. Any ‘unification’
project is integrationist and based on the search for ‘common cores’, that is,
common roots, common principles, common solutions and even common reasoning.
The drive should be towards a common ‘European identity’, which is achievable
by massive cross-border import and export of ideas and collaboration to create
a
ius commune novum in the widest
sense.
However, such a
ius commune cannot materialise if Europeanisation is restricted to
new legislation and scholarly works only. Can we go so far as to say that the
rules of national legal systems should be regarded as local variations of
uniform European subject matter? If not, as all comparative lawyers know, when
the point of departure is national legal systems and national rules, the
outcome is always biased. The European nation States can only be rescued from
decline by further integration in
Europe.
Erasmus University, by expanding its
Master’s and LL.M. programmes and widening teaching and research in comparative
law, as well as in European law, international law and the law of human rights,
will be in the forefront of such movements. I will be here in spirit to
celebrate such developments in this University.
Notes
