Comparative Law Spring 2002Professor Susanna Fischer

CLASS TWOCOMPARATIVE LAW AS AN ACADEMIC SUBJECT

WRAP-UP OF CLASS ONE: SOME PURPOSES OF STUDYING COMPARATIVE LAW

Professional Purpose – help lawyers to work in a global village Cultural Purpose – broaden perspectives, give comparative insights into our own legal system Scientific Purpose – universal legal truths, harmonization of legal rules Reform Purpose – helps us to make changes to our own legal system

Comparative Law as an Academic Subject

Sir Otto Kahn-Freund’s Inaugural Lecture at the University of Oxford on “Comparative Law as an Academic Subject”, delivered on May 12, 1965 and published in (1966) 82 LQR 41.Kahn-Freund (1900-1979), who emigrated from Germany to Britain, was Professor of Comparative Law at the University of Oxford. He also taught at the London School of Economics. He was an eminent labor lawyer and was interested in law’s social context.

Comparative Law as an Academic Subject

To what extent does Sir Otto Kahn-Freund think Comparative Law is an academic subject?

Comparative Law as an Academic Subject

Comparative law can help to understand the teleological and deductive elements of the law. What are some examples of this?Comparative law can also help to find the structure and locus of power in a given society.

Kahn-Freund’s Warnings

What does Kahn-Freund warn us against?

Kahn-Freund’s Warnings

Don’t be lured by homonyms Don’t be afraid of synonyms

Kahn-Freund on Legal Transplants

Famous 1974 dispute with another comparativist, Alan Watson based on different view of relationship between law and societyWatson thought that no inherent relationship between law and society – law is autonomous and develops by transplanting, not because it is inevitable consequence of social structureKahn-Freud disagreed. He believed law can’t be separated from purpose or circumstances in which they are made.

Kahn-Freund on Legal Transplants

Kahn-Freund set out a 2 step process to determine if a legal transplant was viable.STEP ONE: Look at the relationship between the legal rule that you want to transplant, and the socio-political structure of the donor state.STEP TWO: Compare the socio-political structure of donor and receiving states.

Required Reading for Wednesday

Basil Markesinis, Comparative Law – A Subject in Search of an Audience, 53 Modern Law Review 1-21 (Jan. 1990)

Basil Markesinis QCProfessor of Common and Civil Law, University College, LondonJamail Regents Chair in Law, University of Texas School of LawLeading English-language authority on European private law

Basil Markesinis has stated:

Comparative law “is still searching for an audience even where it has found a place of sorts in the university curriculum.”What does Markesinis mean? Do you agree? Why or why not?

Markesinis: Using Comparative Law in Practice

Wants English judges to use foreign material in their decision makingIndeed, Markesinis believes that if judges in both common law and civil law systems use foreign authorities to provide guidance, they will be better equipped to find solutions to difficult legal problems

Markesinis: Convergence of Civil and Common Law Systems?

Markesinis believes that civil and common law systems are moving closer together.He thinks that civil lawyers are increasingly relying on case law and English judges are relying more on scholarship and foreign law.He thinks this has been brought about by human rights treaties and the European Union.IMPORTANT THEME: How different are the civil and common law traditions? Are they converging?

Is it acceptable for American judges to be monolingual?

Markesinis (who speaks excellent German, French, Italian, English and Greek) believes that English judges should learn languages so that they effectively take a comparative approach to the legal problems they confront.What do you think?