The use of comparative law

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The use of comparative law for working out new legal rules has a long tradition. Studying foreign law had theoretical as well as practical importance from the ...
The use of comparative law in new civil law codification

Attila HARMATHY* in: Legal Problems of Transition in Hungary. ed.: Z. Péteri, Budapest, 1998. 17-29. p.

1. Codification has got a great importance in countries of Central and Eastern Europe since 1990. Fundamental changes in the political and economic system of the former socialist countries have necessitated important changes in the legal system. Many new acts have been adopted by Parliaments but drafting new single acts has not seemed to be sufficient considering the requirements. The necessity of codification has been recognised for several reasons. The most important one of the reasons is the fact that codes originating in the period from 1949 to 1989 were based on the ideology prevailing at that time and were shaped in accordance with the socialist political system. Thus the contradiction between these bases and the new system has been evident since 1990. Comparative law has a great importance at the time when the political system is being transformed and when extensive programmes of legislation are carried out.

The use of comparative law in working out new Acts of Parliament and new codes raises important theoretical and practical questions. In the present paper I shall try to give account of personal experience. Since 1990 the Hungarian Civil Code has been amended several times but no attempts have been made to start drafting a new code. Being co-chairman of the committee of civil law codification since 1990 I have been a participant of discussions on the amendments but I shall restrict myself to report on some problems of working out only one of the amendments which concerned secured transactions and raised several important theoretical questions. As the problems of the amendment concerning mortgage and pledge have been dealt with in greater detail from different points of view in other papers[1], here the comparative law aspects only will be mentioned.

The main issue of the present paper is, however, the use of comparative law in working out a new Hungarian Civil Code. A decision has recently been made by the government on starting a several year work with the aim of drafting a new Code. It seems to me that problems connected with the use of comparative law is one of the basic problems. Although I am chairman of the new codification committee the view presented in the paper is personal, it has not even been submitted to the codification committee.

2. The use of comparative law for working out new legal rules has a long tradition. Studying foreign law had theoretical as well as practical importance from the time when the law lost its international character and became a set of national rules. The topic had a particular interest from the point of view of legislative work. The first chairs at Universities for comparing legislation were established in the nineteenth century[2].

In the second part of the nineteenth century in Hungary comparative law had a great importance as this was the period of the industrialisation and modernisation of the country, consequently the whole legal system was to be transformed. Important laws were drafted on basis of studies of legislation of European countries. The first draft of the Commercial Code of 1875 was worked out by Professor Apáthy, the draft was based on detailed analysis of European commercial laws. In 1875 Professor Wenczel, who had a great respect among lawyers, declared in a lecture at the Academy of Sciences that the Civil Code to be prepared should contain all the principles enacted by the civilised European countries. The use of comparative law was a part of legislative work in the twentieth century, too and it has not completely disappeared even in the 1950s[3]. The importance of studying foreign law and make comparative analysis for the purposes of legislation has increased as a result of political changes, since 1990.

3. Although there has been a tradition of using comparative law for purposes of legislation the present situation is different from earlier periods. Changes of political system as well the transformation of the economic system underlying the new legislative process are not results of a slow, natural development of economy and society but they have taken place unexpectedly and in a sudden way. There has been no theoretical foundation. As a publication of the OECD Centre for Cooperation with European Economies in Transition put it in 1991 the transformation of these economic systems is by both its nature and scale a task and an effort without precedent in economic history and the lack of adequate body of knowledge, from which governments can draw guidance, makes the transition more difficult[4]. Units of political life (such as parties, interest representing groups) have been non-existent or not prepared to the new role, actors of the economic life have not appeared at the beginning and have presented themselves slowly. The society as a whole was surprised by the events and adaptation to the new situation takes time, the way of thinking of people changes slowly. Although there are important differences in the recent history and, consequently, in the conditions of the countries of Central and Eastern Europe, the lack of bases can be observed everywhere. The question is, therefore, what the role of the law, in general,. and that of codification, in particular, can be. As a starting point of codification comparative law is used to clarify the role of codes.

4. It can be observed that the role of codes has become mythical. Many lawyers and politicians believe that a new system can be brought about by codes. The impression is that ideas of enlightened absolute monarchs have returned who wanted to establish a better society by comprehensive and systematic regulation, meaning codification[5]. The present understanding of the social and economic relationships is similar to the period of the absolute monarchy from another aspect, too and this view is connected with the classical codes. The codes reflected the social model of the enlightenment which knew independent, isolated citizens and no other power but the state as the power of big enterprises did not exist at that time[6].

Here I would not point to the fact of the slowly appearing power of the growing enterprises which is not yet completely understood by many people but to the concept of the independent individual belonging to nowhere facing the only power, the state. It is neglected, what kind of policy existed at the time of drafting the classical codes, whether the liberal concept of the state functioning as night watchman was prevailing or not. The present understanding of the situation is willing to mix the omnipotent state of the last fifty years with the state, the only political power of the nineteenth century. It has been stressed by foreign observers that law is considered in former socialist countries an instrument of policy implementation[7] and legislation is expected to have an important role in transforming economy[8].

5. In reality, classical codes did not bring about new economic systems. It is out of question that the German BGB was not a revolutionary code, the rules implementing social policy were formulated in the framework of separate Acts[9]. The French Code civil did not create a new economic system either. It was a result of the Revolution but it was influenced mainly by Montesquieu’s legislation concept. Consequently the rules of the Code were not considered as acts of the supreme power, but they were formulated with the aim that they could be recognised by people, as Portalis put it, as their own ones[10]. Thus the rules of the Code were based on history and pre-Revolutionary experience, and the Code as a whole was characterised as a compromise between the Ancien Régime and the Revolution[11].

6. Up to now the role of classical codes has been mentioned. However, conditions have changed in many respect since the nineteenth century. It should be studied, therefore, what the aim of codification in the twentieth century was.

It is not the task of the present paper to try to give a complete list of the codes of the twentieth century, not even a list of the codes of the period since World War II. Two lines of development seem to exist side by side. That is the reason why one of the topics of the XIth International Congress of the International Academy of Comparative Law held in Caracas in 1982 was codification and decodification and it was discussed whether the main tendency is decodification although many codes were adopted in this century. Here three short remarks are made only:

a) The new Dutch Civil Code stimulated a lot of interest. It is studied in the countries in transition, too. From the point of view of the topic discussed it can be stated that the Dutch Code is not revolutionary, it has codified the existing law introducing important changes, and adapting the law to changed circumstances, but refraining, if possible, from hot political issues[12]. It is remarkable that the Code was criticised (although for other reasons) saying that such a legislation is possible only in a static society, not in one which is changing[13].

b) In the second part of the twentieth century several other civil codes were drafted. It can be stated that there is an interest in France in questions of codification. Public law is left here aside as the problems are in that field somewhat different. In 1945 a commission was organised for preparing a comprehensive revision of the Code civil. Julliot de la Morandičre, chairman of the commission underlined the importance of the reconstruction of the Code to make an order, to bring into harmony the written text and the law applied in practice, to re-establish a recognisable, stable system, and to adapt rules for changed conditions[14]. The commission stopped working without working out a draft and no comprehensive revision of the Code has taken place since that time. At present the problem is inflation of law producing[15]. The number of regulations is increasing day by day and so the traditional codification is hopeless. A possible solution is codifying general principles instead of detailed rules[16]. Under these conditions reconsidering the ideas and methods of legislation and of codification has been underlined seems to be inevitable[17].

Similar statements can be found in the literature of other countries. Some German authors have even called codification anachronism in presence of the flood of special legislation. Nevertheless, the idea of the revision of the existing code on operational and technical grounds seems to be accepted in order to keep the code up-to-date[18]. Although technical questions cannot be easily differentiated from political ones, the commission charged with working out a draft of the amendment of the BGB has restricted its activity to a limited field of the law of obligations as a general agreement on policy issues needed for a complex reform of the Code was missing[19]. A draft of the amendment of the BGB was worked out several years ago but the Code has not been amended up to now. Taking into consideration the circumstances the aim of codification was defined saying that it means arranging rules into logical order on basis of uniform principles and keeping in mind the system as a whole remaining at the level of general solution refraining from details with differences not concerning the whole system[20]. A similar view has been expressed in Italy emphasising that even the present conditions do not exclude the possibility of codification. The question is whether the theory is prepared to work out the general rules on basis of the special regulations and court decisions and to conceive them in abstraction, to put them into a systematic order[21].

c) A series of Civil Codes were adopted by the former socialist countries, aiming above all at establishing unity, certainty and not creating a system. They were not elaborated immediately after the new regime came to power and the new economic system was not brought about by the Civil Codes[22]. The rules of the Code had to express what had been achieved and foster further development.

7. In the above points the experience got in the case of classical codification and with some codes of the twentieth century, furthermore the present problems observed in some countries has been mentioned in order to control whether the aim of establishing a new economic system by means of codifying can be considered realistic. The intention was not to make an analysis here but to show that the use of comparative law can help - to define the aims of codification, - to get a better understanding of tendencies in the role of codification in other countries calling attention to study some areas of codification in our country, - to formulate questions concerning the organisation of the preparatory work of codification.

8. After having given a quick sketch how comparison can be used for clarifying codification as a work to be done it should be examined what the content of the code to be drafted will be. In the last years many articles have been written and much have been done in this field. Here I try to give only a few examples of the possible use of comparison.

After the political changes in the countries of Central and Eastern Europe some new rules were urgently needed and the preparatory work has often been done on basis of rules of other countries. Foreign law has served as model of legislation. In the field of civil and commercial law there have been important differences and the differences have been reflected by the urgency of legislation, too. In countries which could not apply any previous rules under conditions of market economy the transition needed fast legislation and foreign models, consultants have had a different role than in other countries having some rules which have made starting possible[23]. The question often has been formulated not as to comparison but as to transplants, reception of foreign law.

Circumstances in different countries in transition are different. It is possible that in different fields reception of foreign law can solve problems. Nevertheless, the probability of solving problems by means of reception is small in case of codes, particularly if the codes do not have technical character but contain rules concerning social values, traditions, structure of society and economy. It is obvious that a reception of a civil code cannot take place if we do not consider law as a simple order of a sovereign. I can fully agree with the opinion according to which before adopting a foreign solution it should be studied whether this solution will work in another country with different social, economic and legal context[24]. Thus the attempt to transplant a whole system of rules based on the political, social and economic history, conditions of a country into another country cannot have but very doubtful consequences.

9. In countries of Central and Eastern Europe far reaching changes are taking place in the political and economic structure and the legislator cannot rely on rules, solutions existing in practice, consequently, the legislator turns to the law of other countries, i. e. it is a typical case of using comparative law for purposes of legislation[25]. As a code, as a whole, can very probably not be taken for basis, it is of decisive importance what the unit of analysis will be.

10. The Europe Agreement with Hungary contains a provision according to which Hungary shall act to ensure that future legislation is compatible with Community legislation as far as possible and the Agreements with other associated members regulate the question in the same way[26]. Thus the Hungarian legislator takes Community rules into consideration at each step of new legislation. Thus, Community rules are bases of new legislation and, to the extent, Community rules exist, comparative law can be used to state how these rules have been reproduced in national laws, inserted into national legal systems by Member States.

Several Community rules have become already Hungarian rules including those on product liability and on unfair terms in consumer contracts. However, up to now, Community legislation has covered relatively smaller fields of civil law, so it has been characterised as pointillist[27]. Thus, at present, civil law codification is not concerned to such a large extent by Community rules as legislation in other fields of law. It does not mean, nevertheless, that no measures are to be taken in order to approximate Hungarian civil law rules to those of the Member States of the European Union. It means that legal development in the legal systems having a decisive importance in the Union is to be studied continuously in order to state tendencies and on basis of a comparative research to try to foresee what kind of solutions are likely emerge so that the Hungarian codification be directed towards the objectives which will be achieved, presumably, by the Union or by its Members in the foreseeable future[28]. This work is a special use of comparative law in preparing codification.

11. Since some years many European lawyers have written on a future European Civil Code and there are rather different views on the possibility of working out such a Code. The elaboration of the Code would mean that the object of efforts is unification or at least harmonisation of rules and no one doubts that it is, if possible, a very difficult task[29].

While no clear plan of the content of a future Code seems to exist, the role of common principles is growing. The Civil Law system had been characterised by the great importance of general principles of civil law which were formulated in civil codes and which influenced the whole legal system[30]. Recently the role of general principles has been widely recognised as means of harmonizing European legal rules. This is particularly so since the Principles of European Contract Law has been worked out[31] and some other commissions are also working on common European principles of other fields of law.

The research work studying general principles has similar objectives to the work which was done int the 1960s comparing legal rules of different countries in order to find their common cores[32]. A working group was established and made a comparative research in a limited area of civil law, on the formation of contracts. Although the work had a theoretical character, it was clear that the results could be used for practical purposes, too, so for codification and "perhaps to unify the law"[33]. A research work is going on in the framework of the project of the Common Core of European Private Law organised by the University of Trento.

Both the research of general principles and that of the common core is based on comparison of rules of different countries. On basis of the above- said it is evident that the results of these works are to be taken into consideration in the elaboration of codes of countries in transition. Not only the results of previous works are to be made use of but, in case international comparative research is missing, the research work to be done in the given country should be directed to studying common principles, common core for determining the content of the code. This use of comparison should focus upon the function of the rules in the different countries examined[34].

12. Marc Ancel has called attention to some tendencies menacing the development of comparative law. One of these tendencies was the specialisation of lawyers which can have the result that lawyers doing comparison do not understand but a segment of the legal system[35]. The danger is that if someones compares some small parts of a legal system without knowing its role and functioning in the system, the result got on basis of such a comparison will be very probably misleading.

The dangers of misleading comparison are well known to the best comparatists and they make efforts to avoid the undesired consequences. It means, however, that there are high requirements. It is not enough to know rules, to know how the rules are applied but the role of the rule as it is applied should be understood in a given legal system and the same should be known as far as the rule of another country is concerned to be compared with. It means that team work (including experts of other social sciences) is needed to meet these requirements[36].

13. An attempt was made to base the amendment of the Hungarian Civil Code on functional comparison. The amendment of 1966 concerned secured transactions. It was thought that it would not be sufficient to get acquainted with the rules of classical codes on mortgage and pledge but information would be needed concerning the application of the rules. A series of consultation with foreign lawyers helped the work. German, French, English, Swiss and American lawyers gave information and materials on their system, explained what other legal institutions were used as securities instead of the rules on mortgage and pledge of the codes. A close cooperation with experts of the European Bank for Reconstruction and Development was also very useful. Of course information was necessary of the Hungarian system, too. Consultation with practitioners, a study of the functioning of the Hungarian economic system was a natural part of the work. It was a team work. The result of the amendment is not yet known, it can be stated only some years later whether the new system is functioning and what kind of corrections are needed.

14. Irrespective of the functioning of the new rules, however, the experience got so far shows that - the use of comparison is a basic element of the civil law codification, - the comparison should be a functional one, - the comparison should include an analysis of the economic and legal system of the country which codifies as well that of the country compared with, - it is not sufficient to do comparative research as a foundation of codification in the given country, in addition cooperation with foreign experts is a necessary condition of the comparison of acceptable level and so of the acceptable quality of the codification.

----------------------- * Professor, Faculty of Law, Eötvös University, Budapest, Vice-President of the Hungarian Academy of Sciences [1] Reference is made here only to one of the papers as its topic is closely connected with that of the present paper, see: Sq[pic]retés réelles ed with that of the present paper, see: Sűretés réelles entre le droit réel et droit personnel, to be published in: Mélanges en l’honneur de Denis Tallon, Paris [2] R. David, Les grands systčmes de droit contemporains, 8th ed. by C. Jauffret-Spinosi, Paris 1982. p. 6, 8. [3] Z. Péteri, Die Verwertung legislativer Erfahrungen anderer Gesetzgeber in der Ungarischen Volksrepublik, in: Gesetzgebung und Rechtskultur, ed. H. Schäffer, Wien, 1987. p. 153. [4] S. Zecchini, Foreword, in: Transformation of planned economies, ed. H. Blommestein, M.Marrese, Paris 1991. p. 9. [5] F. Wieacker, Privatrechsgeschichte der Neuzeit, 2nd ed. Göttingen, 1967. p. 323, A. Dufour, L’idée de codification et sa critique dans la pensée juridique allemande des XVIIIe et XIXe sičcles, Droits 1996. N 24. p. 48-50. [6] H. Coing, Bemerkungen zum überkommenen Zivilrechtssytem, in: H. Coing, Gesammelte Aufsätze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht, Frankfurt am Main, 1982. II. p. 307. [7] G. Ajani, By Chance and Prestige: Legal Transplants in Russia and Eastern Europe, The American Journal of Comparative Law 43 (1995) p. 103. [8] T. W. Waelde, J. Gunderson, Legislative Reform in Transition Economies: Western Transplants - a Short-Cut to Social Market Economy Status? International and Comparative Law Quarterly 43 (1994) p. 348. [9] W. Schubert, Das Bürgerliche Gesetzbuch von 1896, in: Kodifikation als Mittel der Politik, ed. H. Hofmeister, Wien, Graz, Köln, 1986, p. 27-28, H. Schulte-Nölke, Die schwere Geburt des Bürgerlichen Gesetzbuchs, Neue Juristische Wochenschrift 1996. p. 1708-1709. [10] B. Oppetit, Portalis philosophe, Recueil Dalloz Sirey 1995. Chr. p. 334.. [11] J. Carbonnier, Droit civil, Introduction, 21st ed. Paris, 1992, p. 125, 132-133, it has been even denied that the truly revolutionary conceptions of property, contract and tort law were the principles of the drafters of the Code, see J. Gordley, Myths of the French Civil Code, The American Journal of Comparative Law 42 (1994) p. 459. s. [12] A. Hartkamp, Das neue niederländische Bürgerliche Gesetzbuch aus europäischer Sicht, Rabels Zeitschrift für ausländisches und internationales Privatrecht 57 (1993) p. 671, D. van Dijk, Der politische Werdegang des Niederländischen Bürgerlichen Gesetzbuchs 1992, and E. Hondius, Das neue Niederländische Zivilgesetzbuch, both in: Renaissance der Idee der Kodifikation, ed. F. Bydlinski, T. Mayer-Maly, J. W. Pichler, Wien, Köln, Weimar, 1991. p. 32, 47-48, [13] B. Wessels, Civil Code Revision in the Netherlands: System, Contents and Future, Netherlands International Law Review 41 (1994) p.166. [14] L. Julliot de la Morandičre, La réforme du Code civil, Recueil Dalloz 1948. Chr. p.117-118. [15] J. Carbonnier, Droit et passion du droit sous la Ve République, Paris, 1996, p. 107-112, [16] B. Oppetit, L’expérience française de codification en matičre commerciale, Recueil Dalloz Sirey 1990. Chr. p. 5. [17] B. Oppetit, L’avenir de la codification, Droits 1996. N 24. p. 68-81, B. Oppetit, De la codification, Recueil Dalloz Sirey 1996. Chr. p. 38. [18] H. Kötz, Taking Civil Codes less seriously, The Modern Law Review 50 (1987) p. 13-14. [19] W. Rolland, Schuldrechtsreform - Allgemeiner Teil, Neue Juristische Wochenschrift 1992. p. 2378-2380. [20] H. Kötz, Schuldrechtsüberarbeitung und Kodifikationsprinzip, in: Festschrift für Wolfram Müller-Freienfels, ed. Dieckmann, Frank, Hanisch, Simitis, Baden-Baden, p. 401. [21] R. Sacco, La codification, forme dépassée de législation? in: Rapports nationaux au XIe Congrčs International de Droit Comparé, Milano 1982. p. [22] A. Harmathy, General problems of civil law codification in the law of CMEA countries, in: A. Harmathy, Á. Németh, Questions of Civil Law Codification, Budapest, 1990. p. 52-59 [23] G. Ajani, La circulation de modčles juridiques dans le droit post- socialiste, Revue Internationale de Droit Comparé 1994. p. 1094-1103. [24] K. Zweigert, H. Kötz, Einführung in die Rechtsvergleichung, 3rd ed. Tübingen 1996.p.16. [25] H. C. Gutteridge, Comparative law, 2nd ed. Cambridge, 1949. p. 36. [26] Article 67 of the Agreement (1993 O.J. L347/2), A. Evans, Voluntary Harmonisation in Integration between the European Community and Eastern Europe, European Law Review 22 (1997) p. 203. [27] P. Hommelhoff, Zivilrecht unter dem Einfluß europäischer Rechtsangleichung, Archiv für zivilistische Praxis 192 (1992) p. 102. [28] A, Harmathy, Le rapprochement du droit civil et du droit commercial hongrois avec les droits de la Communauté Européenne, Journée de la Législation Comparée 1993. p.149-150 [29] In a cautious formulation E. Hondius, Towards a European Civil Code, General Introduction, in: Towards a European Civil Code, ed. A.S.Hartkamp, M.W.Hesselink, E.H.Hondius, C.E.du Perron, J.B.M.Vranken, Dordrecht, Boston, London, 1994. p, 12. [30] J. H. Merryman, The Civil Law Tradition, 2nd ed. Stanford, 1985. p. 148. [31] The Principles of European Contract Law, ed. O. Lando, H. Beale, Dordrecht, Boston, London, 1995, H. Beale, Towards a Law of Contract for Europe, in: National and European Law on the Threshold to the Single Market, ed. G. Weick, Frankfurt am Main 1993.p.181.s. [32] R. B. Schlesinger, The common core of legal systems, in: XXth century comparative and conflicts law, ed. K.H.Nadelmann, A.T.von Mehren, J.N.Hazard, Leyden, 1961. p. 66. [33] Formation of contracts, ed. R.B.Schlesinger, London, 1968. I. p. 3. [34] H. Kötz, Comparative Legal Research and its Function in the Development of Harmonized Law, in: Towards Universal Law, ed. N. Jareborg, Stockholm, 1995. p. 35. [35] M. Ancel, Valeur actuelle des études du droit comparé, in: XXth century comparative and conflicts law, ed. K.H.Nadelmann, A.T.von Mehren, J.N.Hazard, Leyden, 1961. p. 20. [36] Such a comparative research was done by a team of British and French experts, see: Le contrat aujourd’hui: comparaisons franco-anglaises, ed. D. Tallon, D. Harris, Paris, 1987. p. 9-10.