Reading Vranken’s Western Legal Traditions’s chaper 1: ‘System Building in Law’ on the train the other day, two things became immediately obvious:
- the state of comparative law now is the same as what the state of linguistics was in mediæval times a thousand years ago
- the study of comparative law requires an anthropologist
The first point is from having dipped into Rita Copeland and Ineke Sluiter (eds.), Medieval Grammar and Rhetoric: Language art and literary theory, AD 300–1475 (Oxford University Press, 2009), where the conceptual constructs used back then are similar to the ones Comparative Law uses now, mapping other systems to one’s (ideal) own, and proceeding from there.
The second point has already started, it turns out. For example, ‘Recognition of the social construction of facts and taxonomies would be a good start.’ – Günter Frankenberg, ‘Critical Histories of Comparative Law’, in Markus D Dubber and Christopher Tomlins (eds.), The Oxford Handbook of Legal History (Oxford University Press, 2018), 43–62, p 55.
Setting up binary opposites as a comparison method doesn’t really get anyone any further. Especially as both systems, Civil and Common, are somewhere in the middle, not at the poles.
It’s like saying a practitioner will never need or use theory, and a theoretician will never need to think about practical matters.
(A) (B) inquistorial adversarial written→‘on the papers’ verbal→‘day in court’ deductive inductive applied principle derived principle abstract & abstruse→panel case-based & facts→jury intellectual pragmatic theoreticians practitioners university trained inns-of-court pupillage codified→cassation incremental→precedent
How will we compare ball sports?
Tennis, football, baseball, cricket, basketball, volley ball, lacrosse, polo, croquet, pool and snooker. Golf. Handball.
They need a round(ish) object, and two teams of one or more players.
Activities involving hands and feet only; involving a hand-held implement.
Single-player on a side; multiple players.
Darts could count as an honorary ball-sport, being individual player(-at-a-time) or team play (one at a time), with hand involvement, although the object being manipulated isn’t round. Not entirely.
Another analogy is comparing alphabets:
А Б В Г Д Е Ж З И К Л М Н О П Р С Т У Ф Х Ц Ч Ш Щ Ъ Ы Ь Э Ю Я
A user of the ABC: What to make of Cyrillic?
Some letters are the same shape as Roman letters (АЕОТ), others similar (ИЯ), and others not (ЖШЧ). Physicists and mathematicians would recognise that some are Greek-shaped (ГДПФ). Greek heritage explains why some letters look the same as Roman ones, but are pronounced differently (Р = R, С = S). And so on. So the STOP sign says СТОП.
Α Β Γ Δ Ε Ζ Η Θ Ι Κ Λ Μ Ν Ξ Ο Π Ρ Σ Τ Υ Φ Χ Ψ Ω
Mapping horizontally, letter to letter, or system component to system component, does nor make things simpler or easier to understand. In fact, it adds in an extra layer of mental effort, an emulation-transformation step, which loses/adds information as the boundary is crossed.
Is Common Law IOR, and Civil Law ЮЯ?
Thoughts from reading
Martin Vranken, Western Legal Traditions: A Comparison of Civil Law and Common Law (The Federation Press, 2015).