18th International Congress of Comparative Law-morning breakout session on Legal Transplants
Legal History and Ethnology, Legal Culture and Legal Transplants
This session was chaired by Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany, and the opening General Report was delivered by Jorge Sanchez Cordero, Director, Mexican Center of Uniform Law.
Use of term "transplant" will govern the discussion. Professor Zimmermann suggested that we define transplants and law and legal system receptions between legal cultures and by that we mean different ones, so we exclude those within one (federal) jurisdiction or in the old ius commune. These are not considered intercultural.
Legal families are broad and there can be different national legal cultures, such as between France and Germany even within civil law and that is why the Congress has national reports!
Nation and culture may be exclusivist, per Prof. Zimmermann.
Six questions were put out for discussion:
1. In your legal system has there been a change of legal culture and how?
2. What are the most important features defining a legal culture is it education, sources, supreme court?
3. What role in the development of your legal system have legal transplants played? what factors in your system may have increased that role?
4.What are the criteria for successful transplants?
5.Do we have legal transplants in all areas? some say they are easy in commercial law and it is international or are there areas so embedded in culture like family law that transplant very difficult.
6. Does it still make sense to speak of national cultures? There are divided states with new cultural minorities. U.S. did this too for community property areas, in Texas, Louisiana, and California.
U.S. reporter: The U.S. was at a crossroads in 1830s and 1840s when interest in France and codes was high. Common law won by virtue of intellectuals not knowing French, the roles of Blackstone and Storey, Kent- and they had English reference sources which could be used easily. Commissioners on Uniform state law in 1890s received little influence from foreign law. Then UCC (1940s and 50s)had some foreign legal system influence. However, most scholars believe it was limited. Interesting to watch will be the continuing impact of supremacy clause of U.S. constitution. The CISG has a big impact on state law. Areas of difficulty were statute of frauds and parol evidence.
An Istanbul delegate spoke re the Turkish experience. They speak of voluntary or involuntary adoption of foreign law. He thinks transplant refers to the entire legal system. There was French influence on the Ottoman Empire and Russian influence until Turkey adopted Swiss Code of Obligations and procedure code of Swiss canton of Neufchatel. Islamic law may apply now in family law. They are still trying to develop the transplanted laws from before and also within the EU framework, if they be admitted.
Czech Republic reporter: the Czech history is full of many voluntary and involuntary transplants. Early 90s question was this: should they return to civil code of 1811? The problem was that Slovakia was not using it. They are still working on their new civil code. Re EU- Is the Lisbon Treaty a legal transplant?
U.S. co reporter Alain Levasseur for civil law: He cited the example of the law of succession and forced heirship In 1993 the LA supreme court had elevated 1991 this principle to one that was of constitutional import re children. In 1995 the constitution was amended to limit it to children up to 23, or beyond it if that person was disabled. Prof. Cathy Lorio was quoted as naming the factors such the weakening of family ties and rise of dependence on government for this change. An increased portion goes to the surviving spouse. The change also brought in freedom of testation as supreme over social considerations.
Peru-the postcolonial experience now deals with imposed transplants. Is legal culture just the official law? What about indigenous peoples? They have a legal system within the system. New constitutions have incorporated this notion. It is a form of customary law but with some adjudicatory powers.
Italy- the European states also were constituted by transplants. Language at all levels is important; this reporter joked that when one's own Parliament enacts a law it does not understand, it may as well be a foreign law!
France- raised question of Africa and the transplants of Tunisia. He told the story of when a code was written for the Muslim merchants. This even got merged into a Moroccan code.
Russia- submission of contracts to foreign business people may be a form of soft transplant.
Uruguay- legal transplants- do they go in front of cultural or the other way? Problem of translation and distinctions in language such that ideology cannot distort it.
Quebec - points out Canadian history of Quebec and aboriginal peoples. Canada is now also multicultural. Private law was to be French and the criminal law, common law,especially as it is federal. But Quebec had no forced heirship, in opposition to France from the beginning. However, use of precedents in the courts was rejected, however; this particular English influence was one and they fought against. Aboriginal peoples have rejected the use of culture to define rights.
The parade of speakers and reporters provided a fascinating panorama. I apologize in advance for any factual errors in this report, as it is being shared while or shortly after the sessions transpire. I welcome corrections, and I also was unable in each case to record the speakers' names and titles, except in come cases, and for that I also apologize
My next post about the Congress will be on Thursday, July 29th, when the meeting is held at Georgetown Law Center.
This session was chaired by Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany, and the opening General Report was delivered by Jorge Sanchez Cordero, Director, Mexican Center of Uniform Law.
Use of term "transplant" will govern the discussion. Professor Zimmermann suggested that we define transplants and law and legal system receptions between legal cultures and by that we mean different ones, so we exclude those within one (federal) jurisdiction or in the old ius commune. These are not considered intercultural.
Legal families are broad and there can be different national legal cultures, such as between France and Germany even within civil law and that is why the Congress has national reports!
Nation and culture may be exclusivist, per Prof. Zimmermann.
Six questions were put out for discussion:
1. In your legal system has there been a change of legal culture and how?
2. What are the most important features defining a legal culture is it education, sources, supreme court?
3. What role in the development of your legal system have legal transplants played? what factors in your system may have increased that role?
4.What are the criteria for successful transplants?
5.Do we have legal transplants in all areas? some say they are easy in commercial law and it is international or are there areas so embedded in culture like family law that transplant very difficult.
6. Does it still make sense to speak of national cultures? There are divided states with new cultural minorities. U.S. did this too for community property areas, in Texas, Louisiana, and California.
U.S. reporter: The U.S. was at a crossroads in 1830s and 1840s when interest in France and codes was high. Common law won by virtue of intellectuals not knowing French, the roles of Blackstone and Storey, Kent- and they had English reference sources which could be used easily. Commissioners on Uniform state law in 1890s received little influence from foreign law. Then UCC (1940s and 50s)had some foreign legal system influence. However, most scholars believe it was limited. Interesting to watch will be the continuing impact of supremacy clause of U.S. constitution. The CISG has a big impact on state law. Areas of difficulty were statute of frauds and parol evidence.
An Istanbul delegate spoke re the Turkish experience. They speak of voluntary or involuntary adoption of foreign law. He thinks transplant refers to the entire legal system. There was French influence on the Ottoman Empire and Russian influence until Turkey adopted Swiss Code of Obligations and procedure code of Swiss canton of Neufchatel. Islamic law may apply now in family law. They are still trying to develop the transplanted laws from before and also within the EU framework, if they be admitted.
Czech Republic reporter: the Czech history is full of many voluntary and involuntary transplants. Early 90s question was this: should they return to civil code of 1811? The problem was that Slovakia was not using it. They are still working on their new civil code. Re EU- Is the Lisbon Treaty a legal transplant?
U.S. co reporter Alain Levasseur for civil law: He cited the example of the law of succession and forced heirship In 1993 the LA supreme court had elevated 1991 this principle to one that was of constitutional import re children. In 1995 the constitution was amended to limit it to children up to 23, or beyond it if that person was disabled. Prof. Cathy Lorio was quoted as naming the factors such the weakening of family ties and rise of dependence on government for this change. An increased portion goes to the surviving spouse. The change also brought in freedom of testation as supreme over social considerations.
Peru-the postcolonial experience now deals with imposed transplants. Is legal culture just the official law? What about indigenous peoples? They have a legal system within the system. New constitutions have incorporated this notion. It is a form of customary law but with some adjudicatory powers.
Italy- the European states also were constituted by transplants. Language at all levels is important; this reporter joked that when one's own Parliament enacts a law it does not understand, it may as well be a foreign law!
France- raised question of Africa and the transplants of Tunisia. He told the story of when a code was written for the Muslim merchants. This even got merged into a Moroccan code.
Russia- submission of contracts to foreign business people may be a form of soft transplant.
Uruguay- legal transplants- do they go in front of cultural or the other way? Problem of translation and distinctions in language such that ideology cannot distort it.
Quebec - points out Canadian history of Quebec and aboriginal peoples. Canada is now also multicultural. Private law was to be French and the criminal law, common law,especially as it is federal. But Quebec had no forced heirship, in opposition to France from the beginning. However, use of precedents in the courts was rejected, however; this particular English influence was one and they fought against. Aboriginal peoples have rejected the use of culture to define rights.
The parade of speakers and reporters provided a fascinating panorama. I apologize in advance for any factual errors in this report, as it is being shared while or shortly after the sessions transpire. I welcome corrections, and I also was unable in each case to record the speakers' names and titles, except in come cases, and for that I also apologize
My next post about the Congress will be on Thursday, July 29th, when the meeting is held at Georgetown Law Center.
posted by Marylin Johnson Raisch at 2:16 PM
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