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Western Legal Traditions

Western Legal Traditions

A Comparison of Civil Law and Common Law

By Martin Vranken

CONTENTSREVIEWS

The rule of law constitutes the hallmark of contemporary Western society. However, public perceptions and attitudes to the law can vary in space and time. This book explores legal solutions to selected problem scenarios in their broader historical, economic, political and societal context. The focus is on the legal traditions of civil law and common law.

The book is premised on the assumption – indeed, the conviction – that use of the comparative method both facilitates and promotes a deeper understanding of the society in which we live and the rules by which it is shaped. Major ‘threads’ that run through the book are the relationship between law and morality, the role of the state in regulating human interaction, as well as the relationship between the state and the individual.

As a practical matter, the text is divided into 3 Parts. A first Part provides various building blocks for a discussion of ‘the law in action’ in the second and main Part of the book. A final Part addresses the issue of regional globalisation and its impact on the traditional divide between civil law and common law. An Appendix contains the full text of the Charter of Fundamental Rights of the European Union.


CONTENTS

Preface
Abbreviations

Part A: Building Blocks

1. System Building in Law
            Introductory Observations
            Structure of this Book
            Comparativism and the Legacy of Kahn-Freund
            System Building: Pioneering Role of Zweigert and Kötz and David and Brierley
            Further Reading

2. Codes and Codification in the Civil Law
            Formal and Substantive Codes Distinguished
            Substantive Codes: Features
            Life Beyond the Code
            Further Reading

3. Judges and Precedent in the Common law
            Contrast with the Civil Law
            Blame the French?
            Precedent
            Further Reading

Part B: Law in Action

4. The Blame Game: Who Should Bear the Cost of Accidents?
           Basic Terminology
           How to Prove Fault?
           Judicial Move Away from Fault in France
           Role of the Legislature in the Common Law
           In Conclusion
           Further Reading

5. Duty to Rescue: To Act or Not to Act? (That's the – Legal – Question!)
           Beyond the Blame Game?
           Position at Common Law
           Position at Civil Law
           Rejoinder: Role of the Legislature in the Common Law
           Further Reading

6. Law and Morality: Where is the Harm?
           Harm: The Broader Context
           Harm: The (Legal) Concept
           Harm: Special Problems
           Further Reading

7. Industrial Democracy: In Search of Utopia?
           The Broader Context
           Approaches to Employee Protection
           European Forms of Workplace Participation
           Further Reading

8. Court Procedure
           May the Best Man Win?
           The Traditional Adversarial/Inquisitorial Dichotomy
           The Damaska Alternative: Models of Authority
           May the Best Man Win (After All)?
           Excursus: Procedural Law in Germany (by Anne Kallies)
           Further Reading

9. Good Faith in Contract Law
           Setting the Scene
           Good Faith and the Common Law
           Good Faith and the Civil Law
           Rejoinder: Does Good Faith in Contract Law Make Economic Sense?
           Further Reading

Part C: Globalisation and the Law

10. Legal Order of the European Union
           Setting the Scene
           From Historical Accident to Globalisation in Action?
           Institutional Make-up of the European Union
           Law Making in the European Union
           One Big Melting Pot?
           Further Reading

11. Theories of Convergence and Divergence
           A Common Law of Europe?
           Are European Legal Systems Converging or Diverging?
           Europe and Beyond
           Case Study: Fundamental Human Rights
           Further Reading

Appendix: Charter of Fundamental Rights of the European Union

Index


REVIEWS

This book is highly recommended for legal practitioners seeking to understand how two somewhat different legal systems operate. It is also of value for law students (both undergraduate and postgraduate) embarking upon the study of comparative law. The level of analysis contained in Western Legal Traditions: A Comparison of Civil Law and Common Law only comes about after many years of thought and reflection. Vranken is to be applauded for providing such an easy to read (and carry) book. Read review...

Christopher Brien, InPrint, Law Institute Journal Victoria, August 2016

The utility in comparative legal analysis is skilfully highlighted in this brief but, where relevant, detailed treatment of a number of controversial issues that continue to be relevant to practice in Australia.
         Western Legal Traditions – A Comparison of Civil Law & Common Law conveniently commences with a refresher of the theoretical underpinnings of legal systems generally, as well as the common law and civil methods. The book then considers the solutions which have been adopted by various common and civil law to issues such as the imposition of a duty to rescue, wrongful life and birth suits, and a requirement for good faith in the performance of contracts.
         Whilst not proposing a solution to all of the issues which it addresses, nor providing a theoretical justification to overcome the reticence that has been shown to the utilisation of top-down legal reasoning in Australia (in order perhaps to justify the adoption of civil law theories), the author evidently does not set out to achieve those aims. Rather, the author succeeds in his stated goal of providing a thought-provoking treatment of the selected issues in order “to promote a deeper understanding of the society in which we live, and the rules by which it is shaped”, but also successfully demonstrates how the solutions which different legal systems have adopted to controversial issues are thoroughly shaped by the system in which they are resolved.
         This work is published by The Federation Press which continues to lead all other Australian legal publishers in the promotion of quality legal works.

Queensland Law Reporter 06 May 2016 [2016] 17 QLR

   

Published 11 August 2015
Publisher The Federation Press
Paperback/192pp
ISBN 9781760020293
Australian RRP $89.95
International Price $85.00
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