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.
Part A: Building Blocks
1. System Building in Law
Structure of this Book
Comparativism and the Legacy of Kahn-Freund
System Building: Pioneering Role of Zweigert and Kötz and David and Brierley
2. Codes and Codification in the Civil Law
Formal and Substantive Codes Distinguished
Substantive Codes: Features
Life Beyond the Code
3. Judges and Precedent in the Common law
Contrast with the Civil Law
Blame the French?
Part B: Law in Action
4. The Blame Game: Who Should Bear the Cost of Accidents?
How to Prove Fault?
Judicial Move Away from Fault in France
Role of the Legislature in the Common Law
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
6. Law and Morality: Where is the Harm?
Harm: The Broader Context
Harm: The (Legal) Concept
Harm: Special Problems
7. Industrial Democracy: In Search of Utopia?
The Broader Context
Approaches to Employee Protection
European Forms of Workplace Participation
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)
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?
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?
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
Appendix: Charter of Fundamental Rights of the European Union