Appunti Comparative Private Law (General Part)

Comparative Private Law

GENERAL PART

The functions of law

Ch. 1 para. 1

Law and society →

Ubi societas, ibi (et) ius : law exists because and insofar as a society does a lawless

● society could not exist and, conversely, law would be devoid of any real sense outside social

intercourse

Thomas Hobbes traces society’s origin back to the exist of mankind from a “state of nature”,

● → social contract

characterized by the “war of all against all” the marked the foundation of

society, where men agreed to exchange a degree of freedom for the advantages of mutual

collaboration

Functions of law

no law without society

On the other hand, : the reason why law exist is to be identified in its social

functions :

Negative function of law

: law serves to prevent and to solve conflict among the members of

● →

a group law is aimed at impeding the disruption of society

Positive function of law

: law provides guidelines of behaviors deemed beneficial to the

● →

survival or rise of a group law is aimed at enhancing the unity of society

Rationalization of law : law - once it is rationalized in a set of precepts and tenant to make

● future settlements predictable and consistent - may solve not only concrete (individual)

→ framework society as a

conflict but also abstract (general) ones it can contributes to

whole Max Weber depicted the process of rationalization as based on two processes:

generalization and systematization 1

Lawless society hardly stand as a better

A lawless society is not actually conceivable and, even if it were, it would

alternative to the loneliness of individuals acting on their own: at best, it would be doomed to a low

degree of development, due to the lack of cooperation among its members and guidance for their

behavior.

Law and religion

At the historical outset of law there is often the authority of religion

: it’s a god that stipulates

what is good and what is evi and mandates its ministers to interpret and apply it.

This setup has started to be replaced in Europe from the Enlightenment: it marked a pervasive

● secularization (the action or process of converting something from religious to secular

possession or use) of society and replaced religion with the state’s legislature and jurisdiction.

Ex. during the French revolution, marriage was turned into a civil contract

Still nowadays, some institution of law are similar to concepts and norms of religion

● From a comparative point of view, it’s interesting to compare legal systems and their

● relationship with religion: some are very much connected to religion, other are completely

→

separate this distinction can characterized a legal family

Some countries even have religion with legal rules

○ Normally, what is more touched by religion is family law and succession law ; for

○ contract law

, legal systems tend to be very receptive of what happens in the world

rule of law

The process of replacement of religion with a state based on the commenced a large

juridification

process of (process of increasing legal intervention) of Western societies: this favored

the intervention of the state in areas of social life which had been previously be left to the freedom of

single individuals and groups law has enforced social stereotypes

By expanding the realm of societal control,

● other systems of private ordering

Still, law had to compete with to hold a grip on such societies,

which therefore gained and maintained a considerable degree of pluralistic attitude 2

Law and technology

Every country faces problems with technology: privacy, liability for the use of tools implemented with

AI, cybersecurity, blockchain, etc.

Code is law: some people believes that in certain environments, the only rules that need to be

● followed are the one set with coding

Comparative law is, in this case, involved at a regional level: we could compare the European

● Law with the American Law about privacy and data collection

Law and language

It can be very difficult to explain a legal concept to a language from another (ex. “negozio

● →

giuridico” is difficult to translate in English) a branch of law concentrate on how to translate

concepts without losing their meaning

Mute law

: it’s the unspoken law. It’s also important to analyze a legal system concentrating

● on customary law and on the way in which people behave

How the law work is different from how people react

○

Definition of law

Statism and nationalism connected to the idea of State →

Comparative law is deeply birth of the Modern National

● States at the beginning of the 18th century

nationalism of legal tradition

The is strongly affected by legal positivism , since it sees

● private law national and state-made

as (since each state creates its own law, any discourse

about law is possible only if it refers to national law)

expression of a strong national state codification of private law

As an , the (and other

● areas of law) took rapidly root in Europe as a response to the need of defining the shape of a

state and how the citizen should behave

Code Napolèon in France

It culminated with the

○ The Civil Codes were also used as tools during countries’ expansion and conquest of

○ territories: there was the belief that, for the integrations of the new lands, also the

country’s private law had to be exported 3

The legal nationalism has also influenced the possibility of creating a EU Civil Code:

○ each country wants to maintain its own private law to regulate itself and its citizen

Peace of Westphalia (1648)

The peace of Westphalia ended the idea that religion must have a role in society

● The universality of the Empire was replaced by the emergence of national states

● The law was no more attached to the rationality of legal reasoning, but on the state’s political

● →

will and sovereign power ( legal positivism)

The need to have different and independents sets of rule for each state emerged after the war

●

Westphalian paradigm

The Peace of Westphalia led to the establishment of the Westphalian paradigm, characterized

● separation between domestic law and international law

by the Domestic law

: it’s the law of the state, that can bind its own citizen by enforcing legal

○ →

rules domestic law is a product of nation states (and therefore linked to an

autonomous system of sources)

International law

: it’s the law that regulates the relationship between different states

○ self-limiting

The state’s sovereign, by accepting international law, is voluntarily

■ →

itself by agreements with other states each contracting states has the duty to

change accordingly its domestic law

Comparative Law

Definition

A branch of legal science that specifically investigates the comparison between a national law and

another linked to legal nationalism

It’s : since each State creates its own law, any discourse about

● law is possible only with regard to a national law, which depends upon the acts enacted by

each State (only exception: international law) 4

History International Congress

Conventionally, we identify the birth of comparative law during the

● for Comparative Law (World Exposition, 1900, in Paris) and the idea was proposed by

Lambert and Saleilles droit commun de

During this world exposition it was also presented the idea of creating the

● common law of humanity

l’humanitè

: the harmonization of the law

Now, we say that one of the aim of comparative law is

○

Aims of comparative law

During the World Exhibition, the idea of comparative law was motivated by the intent to create

● common law of humanity

droit commun de l’humanité

a ( ): nowadays, it’s considered utopian

gain knowledge

Today , the primary task of comparative law is to on a specific subject matter

● indirect benefits

However, there are also some of comparative law, that may serve as:

● aid to the legislator

a. An (ex. For legal transplants)

tool of construction of national and international law

b. A subject

c. A to be taught in universities

incentive and guide to uniform existing laws harmonization of the law

d. An ( )

driver of a European law

e. A

Approaches to comparative law

method chosen to approach CL

The is very important, because the analysis needs to take

● into consideration different elements

Based on the approach, certain considerations may be more important than other

○ two main theories

There are about the approach to comparative law: functionalism and the

● historical approach

The structuralist approach looks more at the structure of the legal systems

○

Tertium Comparationis

In comparative law, it’s fundamental to find a criterion by which to measure similarities and

differences between legal systems.

A comparison is useful only if it takes place on the basis of a common denominator between

● the legal system under consideration 5

Functionalism

Exposed by the German professors Zweigert

● It’s the most adopted technique because it’s usually easier to apply

● purpose of a law

tertium comparationis

The should be the : that is the function on which

● practical problems are resolved (independently of the conceptual or dogmatic structure of

such solutions) factual problem compare the different solutions

You have to identify a and then

➢ provided by legal systems

Ex. The problem (= the tertium in comparationis) is the resolution of a contract). If you want to

compare England and Italy’s legal system, you’ll have to research the Italian Civil Code and find the

precedents in England it consents to group different units

The main advantage of a functionalist approach is that

● of analysis into meaningful categories : you can compare common law and civil law

systems tertium comparationis

It’s fundamental to identify the in order to define usefully the area of

● research

It’s also important to take into consideration other aspects

:

● not taking into consideration the context

Functionalism often makes the mistake of

○ (religion, culture, social aspects, etc.)

Not everything can be usefully compared

: some situations are too different in fact

○ and in context →

It starts from the presumption that all legal systems are similar the role of the

○ scholars becomes that of understanding how to expose the similarities

Historical approach

Presented by Zimmerman

● It analyzes a problem by going back in history and identifying the moment in time in which

● there is a separation between legal systems

tertium comparationis

The (or the starting point) is, in this case, the common root of systems

● Roman Law

in 6

→

Western legal systems are considered as an overall “legal transplant” of Roman law

○ a comparison would need to be in terms of history of law

historical comparison

It also deals with : ex. Roman law vs. Modern law

● It requires a lot of background knowledge (way more than functionalism)

● The research questions are usually broader (ex. Institutes of law, like marriage)

● effective when the legal systems have a common root

The historical approach is

●

Structuralism

Presented by the italian Rodolfo Sacco

● fate of a legal transplant

Used mostly in order to determinate the

● legal transplant

A occurs when a piece of legislation of one country is implemented

○ more or less uncritically in another

dissociation of legal formants

Structuralism is based on the theory of : it states that there

● disharmony between the three sources of the law

could be a (legislature, judiciary and

doctrine)

It states that it’s not possible to rely only on the statutory law

➢ Ex. a legislative text does not correspond to the operational rule applied bu

○ jurisprudence because judges interpret it from the perspective of Roman law

Regarding the problem of legal transplant

, using the structuralist approach could

○ illuminate the contrast between the transplant and the assumption of legal scholars or

of the judges (reducing, in this way, the possibilities of legal irritants)

It’s not a positivistic approach, because it states that positive law is not enough

● It’s important in a comparison because the relationship between legal formants can change

● between legal systems

It was criticized mostly because consider too obvious

●

Micro and macro comparison

micro-comparison focus

All three methods rely on a : the analysis is made on the base of a

● specific problem

macro-comparison

The focus on comparing national laws on the basis of their different

● →

constitutional and institutional feature it considers the entirety of the legal system 7

Public law

○ Election laws

○ Form of government

○

Legal families group of legal systems created on the base of a number of

A family of legal systems is a

● common features

It was an idea presented by René David, who gathered national laws on the base of

○ similar concepts and historical roots

It’s a concept used mostly to understand which are the legal systems that share

● commonalities Romanistic legal systems

Zimmerman distinguished between (Italy, France, Belgium) and

● Germanic legal systems (Germany, Austria, Switzerland)

common law systems and civil law

Another important distinction is the one between

● systems

Private International Law

Definition deals with cross-border cases

It’s a branch of law international in its content because it

● It’s the result of the fact that, because there are a plurality of jurisdiction, there are

○ conflicts of laws regarding the application of national law (ex. Contract concluded in

Italy between a German and a French: which country’s rules are to be applied?)

conflict rules

This conflicts are resolved of , provided by each jurisdiction, and have

➢ conflict rules are contained in

the role to decide between conflicting national laws:

private international law

It’s divided in two parts:

● a. Procedural

: states which court is competent to hear the case and which law governs

the proceedings 8

b. Substantial

: which law rules are to be applied

national law conflicts between private

Because it depends on , there is the problem of

● international laws uniform private international law by means of treaties

This brought the tendency to

○ between nations

Ex. in the EU, the private international law is uniform

■

Uniform law when many states have identical rules in their own legal systems and

There is a uniform law

each of them enacts the same legislative provisions

Uniform legislation doesn’t necessarily results in uniform law: the application and

● interpretation of the same law is carried out by national judicature and therefore can change

An effective uniformity of law can be achieved only if the uniform legislation is

➢ on the basis of a comparative analysis

interpreted of the legal systems involved

Sources

sources

The of uniform law are:

International conventions

1. : regarding specific sectors of the law (ex. UNIDROIT, UNCITRAL)

2. Model laws

: not binding, but commanding a wide consensus and therefore are voluntarily

mirrored by legislators legal transplants

Another source of convergence among legal systems are the : in this case,

● there are no agreements between nations, but it’s a spontaneous act of one country to

incorporate in its legal systems an element from another

Civil law and common law jurisdiction

Roman law influence Roman classical law

The foundation of the Western legal tradition rests on (even though

● Roman law existed only as an unhistorical mixture of legal concepts) 9

What remains of Roman law was transmitted to us mainly by the compilation of law-related

● Corpus iuris civilis of Justinian

document (compiled from 529 to 534)

Corpus iuris civili

It is composed by:

● Codex leges

: collection of emanated since that moment

○ Digesta/Pandectae iura;

: collection of it’s considered the most important because it

○ contained the rule of private law

Novellae : Justinian’s laws

○ Institutiones

: for students

○

The fragments collected in the compilation represent a shred of the overall corpus of Roman

● legal literature not always genuine

It is likely that the works used by Justinian were and, if they were, there

● modernization and adaptation

was also an operation of to the new social needs

Renaissance of Roman law

The beginning of the tradition may be traced back to the renaissance of Roman law between

● 11th and the beginning of the 12th century

the end of the

Irnerius

In bologna, rediscovered a copy of the Corpus Iuris Civilis: he started to comment it

● and to teach it; student from Europe gathered around him University of Bologna

studium alma mater studiorum

A school ( ) was founded: the , the

● Irnerius’s students copied the texts and started to move in Europe, spreading the Roman

● tradition and contributing to it

Ius commune

The spread of the text brought to the adoption of Roman law itself in most parts of

● → ius commune

Continental Europe it became the based on the texts of the Corpus Iuris

Civilis with the addiction made by the jurist who studied it

Jurist played a fundamental role in the creation and adoption of the ius commune: they

○ understand the language knew about law

were the one that could and 10

It can be important to note that at the time there was the general idea that law must be

○ written: because of this, it was necessary to work on the texts

Civil law statutory law as a source of law

Civil law is characterized by the prevalence of , thus

● explaining the central role of the Codes in civil law systems

doctrine of sep