syllabus
Law 342C.001
Topics in Comparative Law:
COMPARATIVE LAW:
DIFFERENT LEGAL TRADITIONS OF THE WORLD
2011-2012
Fall Term
Tuesday 9:00 to 10:30
Thursday 9:00 to 10:30
Shigenori Matsui
3 Credits Course
Purpose of the course
This course is designed to give the students basic understanding of two leading traditions of the world: civil law tradition and common law tradition. The course will especially focus on Germany and France as representing the civil law tradition and U.K. and the U.S as representing the common law tradition. It also contrasts Canada against other common law countries.
The students can learn the similarity and difference between these two legal traditions through examinations of historical background, constitutional system, judicial review, judicial system, legal education and legal profession, interpretation and judicial process and civil procedure. The students can then learn the impact of convergence between these two traditions.
The basic understanding of two legal traditions is vital for legal practice in Canada because lawyers will face increasing number of cases in UK, U.S. and in Europe. Moreover, since Quebec maintains the civil law tradition with respect to civil law, the basic understanding of similarity and difference between these two different legal traditions is essential for anyone who practices in Canada. This course will be also useful for students coming from civil law background to understand the common law tradition of Canada and the differences between the civil law tradition and the common law tradition.
The course will also give the students basic understanding of comparative law methodology and brief outline of other legal traditions of the world, including Socialist law, Asian law, and Islamic law. The students can then apply this methodology to understand these other legal traditions of the world more fully.
Evaluation
The students are supposed to write at the end of the semester a paper on one aspect of comparative law. The paper should be at least fifteen-pages long with footnotes or bibliography. The evaluation of the students will be based on the class participation (20%) and the final paper (80%).
Textbook
Mary Ann Glendon, Paolo G. Cardozza, & Colin B. Picker, Comparative Legal Traditions: Text, Materials and Cases on Western Law (3rd edition West 2007)(CLT)(optional)
If you do not have the textbook, please read the designated pages of the underlined articles shown in this syllabus (you can get access to the article on-line or in the library). Other articles are listed only for the purpose of reference.
Other useful materials
Ugo A. Mattei, Teemu Ruskola, & Antonio Gidi, Schlesinger’s Comparative Law: Case-Text-Materials (7th ed. New York: Foundation Press 2009)
Mathias Reimann & Reinhard Zimmermann (eds.) The Oxford Handbook of Comparative Law (Oxford; Oxford University Press 2006)
Peter de Cruz, Comparative Law in a Changing World (3rd ed. London: Routledge_Cavendish 2007)
Raymond Youngs, English, French & German Comparative Law (2nd ed. London: Routledge-Cavendish 2007)
H. Patrick Glenn, Legal Traditions of the World (3rd ed. Oxford: Oxford University Press 2007)
Dennis Keenan, Smith and Keenan’s English Law (15th ed. Pearson 2007)
Howard Abadinsky, Law and Justice: An Introduction to the American Legal System (6th ed. Pearson 2008)
Question?
If you have any question, you can come to see me at any time without appointment. I will be in my office most of the days. If you would like to have an appointment or if you would like to ask question by e-mail, my email address is .
Outline of the lectures
(subject to change)
September 6
1 what is comparative law?
CLT 1-13
Mathias Reimann, The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century, 50 American Journal of Comparative Law 671, 673-684 (2002)
We will examine the meaning of comparative law and its significance. There is no established definition of comparative law, but comparative law mostly refers to academic attempt to compare different legal systems or legal traditions in the world. Unlike other courses, the course on comparative law focuses on foreign law and the comparison of foreign law with the domestic law and the comparison of foreign laws.
September 8
2 method of comparative law
CLT 13-23
Christopher A. Whytock, Legal Origins, Functionalism, and the Future of Comparative Law 2009 Brigham Young University Law Review 1879, 1879-1892 (2009)
Edward J. Eberle, The Method and Role of Comparative Law, 8 Washington University Global Studies Law Review 451, 455-69 (2009)
David Kennedy, New Approaches to Comparative Law: Comparativism and International Governance, 1977 Utah Law Review 545 (1977)
Anne Peters & Heiner Schwenke, Comparative Law beyond Post-Modernism, 49 Int’l Comparative Law Q 800 (2000)
We will examine the most widely used method of comparative law: functional approach. We will outline the process of comparison under the functional approach and highlight some of the things to keep in mind. We will then learn various criticisms against the functional approach and various proposals for alternatives.
September 13
3 concept of legal tradition
CLT 23-49
Franz Wieacker, Foundations of European Legal Culture, 38 American Journal of Comparative Law 1, 4-9, 19-29 (1990)
H. Patrick Glenn, A Concept of Legal Tradition, 34 Queen's Law Journal 427, 429-440 (2008)
H. Patrick Glenn, Western Legal Tradition?, 49 Supreme Court Law Review (Canada). Second Series 601-19 (2010)
We will focus on the concept of legal tradition as a key concept for comparative law. We will then learn the significance of understanding two primary legal traditions of the world: civil law tradition and common law tradition. Why are we focusing on legal tradition in contrast to legal system or legal family? What is the significance of studying the differences between the civil law tradition and the common law tradition?
September 15
4 civil law tradition: reception of Roman law
CLT 52-79
Franz Wieacker, The Importance of Roman Law for Western Civilization and Western Legal Thought, 4 Boston College International and Comparative Law Review 257, 258-261, 273-78 (1981)
One of the characteristics of the civil law tradition is the acceptance or “reception” of the Roman Law. We will see the brief history of acceptance of Roman law in civil law countries. What are the characteristics of the Roman Law? Why did the Roman Law come to have such a strong influence upon European countries? What exactly does the “reception” mean?
September 20
5 civil law tradition: constitution
CLT 79-88
German Basic Law (https://www.btg-bestellservice.de/pdf/80201000.pdf)
The Constitution of Fifth Republic of France (http://www.assemblee-nationale.fr/english/8ab.asp)
Randelzhofer, German Unification: Constitutional and International Implications. 13 Michigan Journal of International Law 122-43 (1991)
Udo Steiner, The Basic Law and the Process of Reunification, 53 SMU Law Review 461-76 (2000)
Martin Rogoff, A Comparison of Constitutionalism in France and the United States, 49 Maine Law Review 21-83 (1997)
We will see the constitutional traditions and structures of government in civil law tradition, especially focusing on Germany and France. The German Constitution, Basic Law, enacted after the end of the WW II has some defning characteristics: strong commitment to human dignity and declaration of fighting democracy. While it has a president and prime minister called chancellor, it is the chancellor who has a real political power in Germany. Current French Constitution, the 5th republic Constitution, is built on the French constitutional tradition but has some peculiar characteristics. The sovereignty of people remains the primary principle and the president has more political powers than the prime minister. The legislature can enact statute only on limited subject matters and the executive has a residual legislative power. There is no bill of rights in the Constitution but the Declaration of Rights of Men and Citizens remain an accepted source of constitutional law.
September 22
6 civil law tradition: judicial review
CLT 88-121
Danielle E. Finck, Judicial Review: the United States Supreme Court versus the German Constitutional Court, 29 Boston College International and Comparative Law Review 123, 127-131, 136-138, 143-147 (1997)
Cynthia Vroom, Constitutional Protection of Individual Liberties in France: The Conseil Constitutionnel since 1971, 63 Tulane Law Review 265, 266-277 (1988)
Quint, P. E. “The Most Extraordinarily Powerful Court of Law the World has Ever Known”?—Judicial Review in the United States and Germany, 65 Maryland Law Review 152-70 (2006)
Alec Sweet, Why Europe Rejected American Judicial Review and Why It May Not Matter, 101 Michigan Law Review 2744-80 (2003)
Damle, S. V. Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court, 91Virginia Law Review 1267-311 (2005)
John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, 82 Texas Law Review 1671 (2004)
We will examine the different system of judicial review in civil law tradition. We will see that Germany has established the Constitutional Court. It has an exclusive jurisdiction on constitutional issue and the Constitutional Court can review the constitutionality of statute enacted by the legislature based on the reference or on the constitutional petition by the general public. Its judgment has a force of law. The Constitutional Court turns out to be quite an active court and it looks like it is accepted by the general public as an essential institution. In France, the Conseil constitutionnel, originally viewed as a political institution to check the legislature for the protection of the executive, came to function as a judicial organ to exercise the power of judicial review. While ordinary courts cannot review the constitutionality of a statute, the Administrative Court can review the constitutionality of executive action. What are the characteristics of the system of judicial review in the civil law tradition?
September 27
7 civil law tradition: judicial system
CLT 121-136
Daniel J. Meador, Appellate Subject Matter Organization: The German Design From an American Perspective., 5 Hastings International and Comparative Law Review 27, 31-55 (1981)
Victor Williams, A Constitutional Charge and a Comparative Vision to Substantially Expand and Subject Matter Specialize the Federal Judiciary: A Preliminary Blueprint for Remodeling Our National Houses of Justice and Establishing a Separate System of Federal Criminal Courts, 37 William and Mary Law Review 535-671 (1996)
We will learn the different judicial system in civil law tradition, focusing on Germany and France. The judicial system in Germany is characterized by the specialization of the courts: in addition to federal Constitutional Court, there are federal Administrative Court, Finance Court, Social Court, Labor Court, and Judicial Court, each regarded as the Supreme Court. The existence of the separate administrative court is also one of the characteristics of the German judicial system. They also have a tremendous number of judges on the appellate courts. French judicial system is also highly specialized and there is also a separate administrative court. The number of judges on the appellate courts is also quite large. Why the judicial system in the civil law tradition is so different from the judicial system in the common law tradition?
September 29
8 civil law tradition: legal education
CLT 137-160
Korioth, S. Legal Education in Germany Today, 24 Wisconsin International Law Journal 85-107 (2006)
Applebaum, D. Cogestion and Beyond: Change and Continuity in Modern French Legal Education—A Design for U.S. Law Schools, 10 Nova Law Journal 297-318 (1986)
Brunnée, J. The Reform of Legal Education in Germany: The Never-Ending Story and European Integration, 42 Journal of Legal Education 399-426 (1992)
Ostertag, J. R. Legal Education in Germany and the United States—A Structural Comparison, 26 Vanderbilt Journal of Transnational Law 301-40 (1993)
We will see the different legal education system in civil law tradition, especially focusing on Germany and France. German legal education system is designed to produce lawyers under uniform legal education system. But there is a strong state involvement and the legal education is rather focused on education of judges. French legal education system is divided into separate system for attorneys and for judges and prosecutors. What are the characteristics of legal education system in the civil law tradition?
October 4
9 civil law tradition: legal profession
CLT 160-184
David Clark, The Selection and Accountability of Judges in West Germany: Implementation of a Rechtsstaat, 61 S. Cal. L. Rev. 1795, 1816-1831 (1987-88)
John Bell, Principles and Methods of Judicial Selection in France, 61 S. Cal. L. Rev. 1757, 1758-1780 (1987-1988)
Sage, Y. L. The 1990 French laws on the legal professions. The American Journal of Comparative Law v. 41 (Fall 1993) p. 649-66
Guarnieri, C. Appointment and Career of Judges in Continental Europe: The Rise of Judicial Self-government, 24 Legal Studies 169-87 (2004)
Lafon, J. L. The Judicial Career in France: Theory and Practice under the Fifth Republic, 75 Judicature 97-106 (August/September 1991)
Hellwig, H. J. Challenges to the Legal Profession in Europe, 22 Penn State International Law Review 655-70 (2004)
We will see the major legal professions in civil law tradition, especially focusing on Germany and France. In Germany, a small number of persons who passed the second state examination with good grade could become judges. The attorney fees are tightly regulated and attorneys are not making such huge money. In France, there is a separate course for judges and for attorneys. The attorneys are not making such huge money either. We will see the role these judges and attorneys play in the civil law tradition.
October 6
10 civil law tradition: procedure
CLT 185-197
Langbein, J. H. The German Advantage in Civil Procedure, 52 The University of Chicago Law Review 823, 826-857 (1985)
Reitz, J. C. Why We Probably Cannot Adopt the German Advantage in Civil Procedure , 75 Iowa Law Review 987-1009 (1990)
Chase, O. G. Legal Processes and National Culture, 5 Cardozo Journal of International and Comparative Law 1-24 (1997)
We will see some characteristics of civil and criminal procedure in civil law tradition, especially focusing on Germany and France. In Germany, it is the judge who is supposed to play a major role in the civil litigation. German courts use the mixed court system allowing citizens chosen for a limited term to sit together with professional judges. With respect to criminal procedure, French system has adopted the inquisitorial model in contrast to adversarial model. What are the characteristics of civil and criminal procedure in the civil law tradition?
October 11
11 civil law tradition: sources of law
CLT 226-248
Bergel, J. L. Principal Features and Methods of Codification, 48 Louisiana Law Review 1073-97 (1988)
Murillo, M. L. The Evolution of Codification in the Civil Law Legal Systems: Towards Decodification and Recodification, 11 Journal of Transnational Law & Policy 163-82 (2001)
Shoenberger, A. Change in the European Civil Law Systems: Infiltration of the Angloamerican Case Law System of Precedent into the Civil Law System, 55 Loyola Law Review 5-21 (2009)