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Comparative Legal Traditions

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Comparative Legal Traditions

1.     English Law flourished in Noble Isolation?

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It has long been maintained that the development of English Law was independent of Roman law and the contribution of Roman law to the forming of English Law was very minimal. It is also an established view that English Law flourished in ‘noble isolation’ away from the rest of Europe[1]. However there have been several authors who tried to establish that Roman law was much more important to the formation of Anglo-American law than was previously considered[2].

As a consequence many authors of contemporary period have held the view that English Law is not as different from continental law as has been once thought.

The importance of Roman law in England can be seen clearly when the attempts by the English authors to systematize the English law are observed. The first author to present a comprehensive overview of the Common Law is Bracton (13th century AD) in his work De legibus et consuetudinibus Angliae (ca.

1250). Another outstanding work can be witnessed in William Blackstone (1723 – 1780) who has contributed much in this direction in his Commentaries on the Laws of England, 1765-69. Since the Common law depended more on case laws which was not conducive to its own systematization, these authors were tempted to use the base of Roman categories in making the English law systematic. These efforts resulted in a descriptive indigenous English law, often made to borrow from Roman law terminology for its expressions.

It may be noted that the result of such an approach is the tendency to stimulate the reception of rules to a substantial extent from the system which formed the basis for the purpose of classification and denotation. Further such a method of classification as well as a substantive use of terminology would often lead to the conclusion that not only the representation of the subject matter has originated from the system used for this purpose but also that subject matter itself is derives from the system.

Civil Law and the Civilian Tradition

Civil law sometimes may be construed to mean the Roman law at large. But sometimes it is used to mean the private law. Civil law can be seen as opposed to canon law, but being a common denominator of the Continental European Legal system, can be found to be in contrast to English Common law. Civil law and Common law are considered as the two major traditions of the Western legal world. In the Civil law large areas of private law have been codified and hence are systematic.[3] Justinian’s Digest, the most important body of legal sources is the source for the civilian legal tradition to originate. The civilian legal tradition found its origin on the rediscovery and intellectual penetration of the Justinian’s digest. Quite contrastingly the English Common law developed more independently from Roman law, though it can not be said that it developed in ‘noble isolation’. In the case of Civil law a clear historical connection in the form of civil law and civil law as Continental European Law can be established based on a process usually referred to as ‘reception’. It was the ‘reception’ of Roman law that was instrumental for the development of European Civil law.

Characteristic Features of Civil Law

Civil law in the sense of Continental European private law has many distinguishing features which make it different from the laws of other cultures. The most important is that the Civil law in many complex ways has established its relationship with moral norms, religious beliefs, and political evaluations. Civil law is usually administered by a set of professionals qualified to do it. European legal science makes strong attempts to demonstrate as to how the general propositions would be able to contribute arrive at individual rules and the decisions in the individual cases. It contains a determined effort to have a rationalized approach to the application of law.

Codification is one of the fundamental elements in the history of Civil law. The codification in civil law relates more to attitude and ideology rather than to the substance. German Civil Code has been drafted in the wake of German national unification and thus can be a characteristic expression of the German national spirit. The French Code on the other hand can not be seen just a mere systematization of existing law. It was intended to be a ‘revolutionary code’ which is supposed to reflect the achievements of the French Revolution.

Common Law

Common law is the legal tradition evolved in England from the 11th century onwards. Common law bases its principles mostly on the reported judgments from the higher courts as they could be related to specific fact situations arising in similar disputes which have been settled earlier by the courts. The common law is considered as more descriptive than the civil law. Common law is the foundation of private law not only for England but for all the commonwealth nations, United States and Canada.

The common law of England presents an unusual case of presenting one part of the Roman Empire while nevertheless retaining a legal system which is somewhat independent of the continental reception. According to John Baker, one of the eminent English legal historians England was largely immunized from the influence of Roman law that swept the whole of Europe. Europe mostly was influenced first after the rediscovery of the Justinian Digest in the 12th and 13th centuries and afterwards at the close of the middle age. “Although the English jurists were not completely isolated from the Roman Reception, the legal structure in England was so different from the rest of Europe as to make wholesale borrowing unlikely:[4].

Alan Watson remarks that borrowing can be recognized as the most important factor in the evolution of Western law in most states at most times except for England[5]. According to the author the reason for such isolation may be perhaps the complex nature of the series of writs and pleading procedures which made the English lawyers to concentrate more on their study and practice than observing the jurists. Watson observes, “The need to have a writ to bring the case before the court meant that high priority was centered on that and on proof, rather than on systematic development of legal rules. (p 242) Moreover unlike in other European nations, there were no much English law schools and the lawyers got their training in professional associations rather than universities. This one as well as other factors like the resistance of the strong feudal structure of England to the ancient categories and concepts of Rome made the English law remain unique and it remained as the source of great Western rival to the civil-law tradition.

2.     Involvement of Business Communities in Approximation of Laws

There is an ongoing international debate as to whether parties to contracts usually the international parties are free to choose the law applicable to their contract. Some of them are of the view that it is the parties who make contracts implying the law follows the deal and hence the choice of the party should prevail. Some others say that it is the prerogative of the state to address the binding effect of contracts. Hence no contact can be implied to be above or beyond state law. Thus any choice expressed by the parties is only one factor in the process of objectively deciding whether state law must govern the contract[6]. However there are exceptions to this theory as in some of the countries like Germany the legal tradition has found more contribution by the business community.

German Legal Tradition

German law finds its roots in the feudal and territorial law that emerged in the 11th century. This period coincided with the development and organization of the city-states and the principalities of the Hohenstaufen Empire. This legal system developed in to a complete one during the 13the century backed by written law in statute books and unwritten customary law both complementing each other. During this period Germany witnessed the development of a general law for all of Germany shared with a continuous system of coding applicable throughout the large areas, kingdoms, small territories, and even smaller local authorities. Another parallel development of a separate and distinct sophisticated city law found its trace from the Saxonian cities from the beginning of the 14th century. “During the period of emergent German law (whether written or customary), Roman law, refined and reshaped by late medieval Italian scholarship, was also finding its way to the German lands. The eventual “reception” of Roman law was facilitated by the general application of canon law and also by the continued inability of a fragmented Germanic legal tradition to resist the true jus commune of the more sophisticated Corpus juris civilis”.

A revived interest in natural law and an intensified movement for national codification characterized the evolution of the modern German law. After a series of political transformation in Germany after the end of Napoleonic period, the development of a national identity marked the centre of national priority. This necessitated the drafting of the codes based on the national needs and culture for the next three decades. The resultant codification of German law was found to a product of German-Roman law scholarship and a reaction to the national law orientation of the French-controlled civil law tradition. Year 1900 saw the enactment of the German civil code (the Bürgerliches Gesetzbuch) The German civil code (BGB) which was considered as the foundation of German private law can not be regarded as a revolutionary document. Codes of private law in general were necessitated by the historical situation prevailed in the country. The German codes since created at the time of relative social and political stability were considered as retrospective and reflective seeking to maintain a situation favorable to the establishment.

The commercial code of 1871 was also replaced at the end of the 19th century by the new Handelsgesetzbuch. The German commercial law was developed based on an extensive study of the subject and a program of legislation in the late 19th century. During this period based on the needs of the business community several reforms and innovations have been incorporated into the development of the commercial law[7]. The modernization of the commercial legislation has become the leading force after several decades of near stagnation due to the impact of war.

The superiority of the legal system of Germany is more than configured by its understanding of the needs of the business community as well as the society. The expression business of the foundation does appear in German law and this expression is intended to denote the free will aimed at creating the distinct concept of private corporations. The entities of a corporate nature are distinguished by the name of Vereinsgründung. “The terminological diversity is due to the fact that the compilers of the German Civil Code (BGB) have established the system of private corporations in terms of two concepts: corporation (Articles 21-79 of the BGB) and foundation (Articles 80-88 of the BGB)[8].” These institutions appear systematically in German legislation which substantiates the involvement of business community in the formation of a legal system.

Austrian Legal Tradition

Allgemeines bürgerliches Gesetzbuch (ABGB) the Civil Code of Austria was established in the year 1811. The civil code of Austria is comparable to Napoleonic code based on the ideals of freedom and equality before law. Modernized during the First World War AGBG is still controlling the basic civil code in Austria. Austrian legal history and the development of a national legal system are inextricably intertwined with the origin and growth of Germanic law. This happened at least up to the mid 18th century. The predominant German codifications, tribal codes, and collections – Visigothic and Burgundian – coexisted along with the Roman Law for the two centuries. There were collections of different legislations which were in use in specific localities and supplemented by Stadtrechte of specific cities. “Finally, as the end product of a codification process begun by Maria Theresa in 1760, the General Civil Code (Allgemeines Bürgerliches Gesetzbuch or ABGB) entered into force on 1 January 1812.” [9]

AGBG was influenced heavily by both Roman law and French. It may be noted that both of these codes were the result of natural law movement of the 18th century awakening. To the maximum extent the AGBG resembled the Germanic version of jus commune of Roman law and the liberal approach of the natural lawyers.

It may be noted that the interim period during the World Wars were experiencing serious political and economic dislocations and disturbed the normal life style of the people. This period thus enabled the relook into the foundations of several social and labor legislations formed by the Hapsburgs around 1880s. In fact these legislations were studied for their fundamental characteristics and weaknesses. This helped the enlargement of the traditional social and labor legislations. Taking several radical spurts there was a considerable development in the modern social legislation and several laws were enacted. “This period, one of intermittently liberal constitutional advances, was surprisingly successful, considering the hazards and pitfalls such movements faced in the declining political and economic climate of the 1920s and 1930s”.

The AGBG had its own influence on the legal development in other parts of the Empire up to the period of 1914. However this influence has been proved transitory. With the commencement of First World War, there were revisions in the AGBG three times during 1914, 1915 and 1916, and most parts of these revisions remodeled the AGBG to resemble more of the German Civil Code BGB of 1900.

“Austrian law underwent major changes as a result of the 1938 unification with Germany. The ABGB remained in force, although marriage law was altered; however, most importantly, commercial law underwent a total revision when the general commercial code in use since 1862 was abrogated and the German commercial code of 1897 was “received” by the Austrian state in 1938”.[10]

Development of Legal Tradition in Asia

In traditional Asian societies communal temples and lineage groups have been projected as institutions of protective mechanism to counter the religious and political forces of economic activities. A complicated web of kinship, ethnicity and personal relations have therefore complicated business activities. Nevertheless the British Colonialism starting from the early 19th century had brought the application of British legal system in Asia which really threatened the material interests of the religious endowments and other institutional forms. This formed the basis for the development of legal applications on the basis of demand of the business community. Over the period of time it has become the necessity that the legal traditions are formed with a view to protect the interests of the business communities.

One of the interesting examples may be found in the context of Saudi Arabia, where the traditional legal system is notably relied on the Sharia – the traditional Islamic law. Although Sharia has provided for several business situations, since the underlying provisions are not up to date enough the complicate business situations of the modern day business the application of Sharia does not have the ability to protect the interests of the business community. The reason is that, the rules of sharia are seen as ineffective in resolving commercial disputes among the parties. This has formed the strong foundation for the development of modern laws that will quite appropriately meet the needs of the business community in the country.

The shift in this direction can be seen by some of the latest developments in the filed of law like the amendments brought in the form of Companies Act (2006) which clearly exhibits the direction of the legal tradition to go in to more protection of the interests of the business community. Another illustration to the point can be seen from the acceptance of Insurance law which was forbidden under sharia rules as gambling. With the passage of time and the urging needs of the business community, there has been the development of a modern Insurance Act which clearly paved the way for the establishment of an insurance law in Saudi Arabia which acts much to the benefit of the business community. The development of insurance law has contributed to the functioning of about 16 national and international insurance companies for the benefit of the commercial and industrial establishments in the Kingdom of Saudi Arabia. This goes more than to prove the emergence of the legal tradition according the needs of business community in Asia.

3.     Concept and Historic Context of Unequal Treaties

In the history of international law the term extraterritoriality, extrality and capitulations all underpin the diplomatic immunities secured where one state is permitted by another to exercise its jurisdiction over the former’s own nationals within the boundaries of the nation permitting the other to do so. In the present day context sum privilege can be enjoyed by only certain diplomatic agents. Under the immunity granted the agents can be exempted from both criminal and civil charges in the countries in which they are accredited. This is as per the agreement reached in the Convention on Diplomatic Relations signed in Vienna in the year 1961 (Encyclopedia Britannica 2003)[11]. However the diplomatic relations to reach this stage had to cross many milestones in form of treaties, some of which were unequal and it also has a historical background to study.

It was argued that the inadequacy of the local laws which reflected ancient familial and agricultural practices to deal with complex business situations as emerged out of the activities of the foreign merchants. Thus in the 13th century BC, Phoenicians and Greek merchants were the first to form their own laws, in Memphis and other Egyptian cities. A similar attitude was followed by some of the cities of Italy and other non-Roman citizens in the Roman Empire in the third century BC were also allowed to be subjected to their own laws. In the year 1535, the ‘Franco-Ottoman’ Treaty was entered into between Francis I of France and Suleyman I of Turkey. This Treaty granted the French consuls jurisprudence over the criminal and civil affairs of French nationals in Turkey. “Medieval Europe witnessed the establishment of permanent consulates by merchants of a particular city in other cities of the same country or in foreign countries; they settled business disputes and exercised jurisdiction over merchants sharing their nationality“(Keeton 1928)[12] According to Liu and Zeng these examples represent more a matter of  convenience or the gratuitous granting of territorial powers. They opine these treaties can not be treated as surrender of sovereignty.

The concept of modern sovereign nations, being one of the basic concepts of international law emerged in Europe in the mid-seventeenth century, which emphasized the principles of equality and reciprocity among nations. However the modern notion of sovereign supremacy and exclusivity came into conflict with the extraterritoriality present in the ancient international community. “In the 1606 treaty between England and France, the 1787 treaty between France and Russia, the 1788 treaty between France and the U.S., and a series of treaties concluded between Portugal (1696), France (1701), England (1713) and Spain, reciprocal extraterritoriality was accorded” (Liu Shishun 1925)[13].

During the period after the 18th century, the Europeans and Americans attempted to discontinue the ancient and medieval practices of capitulations among themselves. However they found it to their convenience and merry that they could impose extarlity on countries like Turkey, China, Japan, and Siam; the ironical part of this is the nationals of these countries were never given the reciprocal rights in Europe and US. The extraterritoriality of the United States in Japan was brought to an end in the year 1899, in Turkey in the year 1923 by the Treaty of Lausanne and in China in the year 1943.

Unequal Treaties are international agreements which were extorted from most of the Asian countries by the imperial powers during the heyday of colonialism. These treaties are unequal since one of the signatories entered into the treaty under the threat and force of the other. In the process, the country which was subjected to the threat had to compromise its sovereignty. There were clearly no reciprocal obligations on the powerful nation signing the treaty. The objective of unequal treaties was to gain entry forcibly into countries like China or Japan against their wishes to remain secluded. The unequal treaties were intended to provide imperial trading powers access in to the markets of these countries and use up their resources without taking up the burden of annexation.

Extraterritoriality is the condition that acts to exempt the citizens of treaty power from subjecting to the local loss. Similarly the most favored nation offers automatically grants concession to the treaty power which they enjoy with the other nations. It is to be noted that such treaties were particularly irksome to China, as the country with its Confucian system of administration, had always relied on absolute inequality even within the country’s own internal affairs. The country treated diplomatic emissaries as lowly people subject to the protection of the Chinese government.

The first unequal treaty which was forcibly entered into with the Qing dynasty, known as ‘Treaty of Nanjing’ entered in the year 1842 brought the opium war to an end. This treaty made China to accept the imports opium from Britain. China was made to code the territory of Hong Kong and made five ports available to British merchants. There were other treaties and the Tianjin treaties of 1858 enlarged the scope of the original treaty entered into in 1842 for ending the opium war. One of the last Chinese unequal treaties was master minded by Japan following the Sino-Japanese war of 1894-1895. This treaty of Shimonoseki gave Japan the rights on Taiwan, Penghu islands and Korea.

The experience of Japan in unequal treaties began in the year 1853 when by the sheer threat of force, US conceded diplomatic relations, and the opening of Hakodate and Shimoda to the US ships in 1854. In the year 1856 the same powers were granted to Britain, Russia, and The Netherlands. In the year 1858 there was the Harris treaty securing full commercial freedom for the US followed by the European powers to have the same powers. However because of the fact that this treaty has not secured the imperial approval, it led to the cancellation of all the treaties marking the end of Edo period of Japan during the Meiji Restoration in 18678.

“Thailand was coerced into its first unequal treaty by Britain in 1855, with the example of China and the first Opium War fresh in British and Thai minds, when Sir John Bowring secured free trade links, consular representation, and extraterritoriality for Britons. Other Western powers copied the Bowring Treaty, and Thailand was left with its sovereignty severely compromised.”[14]

It may be noted that in all the affected Asian states there were strong pressures to revise or abrogate the unequal treaties from the very beginning. The refusal of China to ratify the treaties of 1858 resulted in the occupation of Beijing and the torching of the summer palace in the year 1860. Japan through the strong Meiji government secured a gradual phasing of extraterritoriality in the 1894 and finally recovered from the full clutches in the year 1911. However for achieving this Japan has to yield four subject states of Malay Peninsula to Britain in 1909. Thailand too after a change in the government negotiated an end to the unequal treaties in the year 1937. The alliance of China with the victorious powers of World War II brought an end to almost all of its unequal treaties except Hong Kong and Macau as the legacies of the unequal treaties.


Alan Watson, (2001) The Evolution of Western Private Law Expanded Edition. Baltimore:  The Johns Hopkins University Press,

Arthur Taylor Von Mehren and James Russell Gordley ‘The Civil Law System’ 2nd Edition Boston and Toronto 1977 p 3

Encarta ‘Unequal Treaties’

<http://uk.encarta.msn.com/encyclopedia_781533815/unequal_treaties.html>  Accessed on 21st March 2008

Encyclopedia Britainnica (2003): “Extraterritoriality”. Encyclopedia Britainnica 2003, Encyclopedia Britannica Premium Service http://www.britannica.com/ed/artiche?=eu=34058 (April 04, 2003)

Accessed on 22nd March 2008

Gerald J Russello (2001) Review of the book ‘The Evolution of Western Private Law Expanded Edition’ Bryn Mawr Classical Review <http://ccat.sas.upenn.edu/bmcr/2001/2001-10-28.html> Accessed on 22nd March 2008

H. Patrick Glenn ‘Legal Traditions of the World’ Second Edition Oxford University Press New York p 362

J.H. Baker, An Introduction to English Legal History, London 1979 (2nd ed.), p. 28.

Keeton, George W. (1928): The Development of Extraterritoriality in China. 1969 edition ed., 2 vols New York: Howard Fertig.

Liu Shishun (1925): Extraterritoriality: Its Rise and Its Decline. In: The Faculty of Political Science of Columbia University (ed.) (1925): Studies in History, Economics, and Public Law. New York, NY: Columbia University.

M. Reimann (ed.), The Reception of Continental Ideas in the Common Law World (1820-

1920) (Comparative Studies in Continental and Anglo-American Legal History, vol. 13), Berlin 1993

Pedro Alfonso ‘Foundations in Mexican Private Law’ Mexican Law Review

<http://info8.juridicas.unam.mx/cont/8/arc/arc6.htm> Accessed on 22nd March 2008

[1]J.H. Baker, An Introduction to English Legal History, London 1979 (2nd ed.), p. 28.
[2]See e.g. M. Reimann (ed.), The Reception of Continental Ideas in the Common Law World (1820-

1920) (Comparative Studies in Continental and Anglo-American Legal History, vol. 13), Berlin 1993
[3]Arthur Taylor Von Mehren and James Russell Gordley ‘The Civil Law System’ 2nd Edition Boston and Toronto 1977 p 3
[4] Gerald J Russello (2001) Review of  the book ‘The Evolution of Western Private Law Expanded Edition’ Bryn Mawr Classical Review <http://ccat.sas.upenn.edu/bmcr/2001/2001-10-28.html>  Accessed on 22nd March 2008
[5] Alan Watson, (2001) The Evolution of Western Private Law Expanded Edition. Baltimore:  The Johns Hopkins University Press,

[6]H. Patrick Glenn ‘Legal Traditions of the World’ Second Edition Oxford University Press New York p 362
[7] <http://faculty.cua.edu/pennington/Law508/GermanLegalHistory.htm>  Accessed on 22nd March 2008
[8]Pedro Alfonso ‘Foundations in Mexican Private Law’ Mexican Law Review

<http://info8.juridicas.unam.mx/cont/8/arc/arc6.htm>  Accessed on 22nd March  2008
[9] <http://faculty.cua.edu/pennington/Law508/AustrianLegalHistory.htm>  Accessed on 22nd March 2008
[10]< http://faculty.cua.edu/pennington/Law508/AustrianLegalHistory.htm> Accessed on 22nd March 2008
[11]Encyclopedia Britainnica (2003): “Extraterritoriality”. Encyclopedia Britainnica 2003, Encyclopedia Britannica Premium Service http://www.britannica.com/ed/artiche?=eu=34058 (April 04, 2003) Accessed on 22nd March 2008
[12]Keeton, George W. (1928): The Development of Extraterritoriality in China. 1969 edition ed., 2 vols New York: Howard Fertig.
[13]Liu Shishun (1925): Extraterritoriality: Its Rise and Its Decline. In: The Faculty of Political Science of Columbia University (ed.) (1925): Studies in History, Economics, and Public Law. New York, NY: Columbia University.

[14] Encarta ‘Unequal Treaties’

<http://uk.encarta.msn.com/encyclopedia_781533815/unequal_treaties.html>  Accessed on 21st March 2008

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Comparative Legal Traditions. (2016, Sep 10). Retrieved from https://graduateway.com/comparative-legal-traditions/

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