Comparative Law Notes 9

LAW 6250
Professor Pedro A. Malavet

Class Notes Part Nine

New Developments, 1815-1914: Nationalism Rises

Nationalism
National citizenship (as opposed to cosmopolitan or transnational citizenship), as common identifier, if not as a matter of individual empowerment
Patriotism as a cultural/political norm
Law as an Integral Part of Nationalism
But it was not only in Germany and Italy but also in the Netherlands and Switzerland, and to a lesser degree in other countries, that codification was seen as part of a wider process aimed at creating a sense of national identity and, where necessary, providing new national institutions.

Liberalism vs. Democracy
Nineteenth_century liberalism, to put it simply, aimed at extending the politically privileged classes to include professional and commercial men; it favoured constitutional monarchy and a parliament in which property, and not people as such, was represented. (17.1.4)

Democracy can be Messy
1848 is sometimes known as the Year of Revolutions; in that year there were liberal or radical uprisings in France, Italy, Austria, Hungary, Prussia, Ireland and Romania, and unrest was felt in many other countries such as Switzerland, Denmark and England. Democracy entailed equal civil and political rights; it meant universal (male, still) suffrage and, in contrast to liberalism, held that the elected representative assembly should be guided by the will of the electorate. (17.1.4)

Universal (mostly) male suffrage (17.1.5)
France & Switzerland, mid-1870s
Germany, starts in the 1870s
Belgium, for landowners only until at least 1893
Italy, early 20th century
Norway, 1898
Finland, 1906 for both males and females

Business: The Industrial Age
Mass-production, with accompanying concentration of workers and production facilities
The advent of more sophisticated steam_powered industrial plant in its turn stimulated the mining of coal to run it, and the production of iron and steel from which to make it. 17.2.1

Business and Law
New investment/stock system required new legal regulation
Limited liability corporations are developed more substantially, 17.2.5
The British and Scotts develop what we would call the corporation

France: Societé
By the beginning of the nineteenth century the concept of the société en commandite had been developed in France. This had its origins in the mediaeval commenda. Such a société retained the unlimited liability of those actively involved in running the business, but it limited the liability of the individual whose only connection with the firm was an investment of capital to the amount of that investment. 17.2.10

Later the Societé Anonyme
The Regulation of Employment
A major matter in late 19th Century and throughout the 20th Century.
French students are currently rioting because of a change in the employment law that allows employers to fire employees at will during the first two years of employment

The End of Slavery
In France in 1803
In August 1834 all slaves within the British Empire became free, and in the previous year the first Factory Act to set up an inspectorate was passed. 17.3.3

Regulation of child labor. 17.3.4
Health and Safety
Germany was in general ahead of her neighbours in this field. Although the government's motive was to take the sting out of labour agitation, German workers, before World War I, were better protected against the hazards of industrial society than those of any other nation. 17.3.7
Legislation governing conditions of work and the length of the working day was passed during the 1890s; in 1900 a maximum working day of ten hours was introduced, and in 1906 a six_day working week. 13.3.8

Trade Unions, 17.4
Note that in Europe trade unions have become essentially official as representatives of employees. So much so, that in certain countries special labor courts usually include a labor representative and an industry representative as judges.

Trade Unions
n France the Code Civil rejected the concept of organized labour. In 1791 associations both of workers and of employers had been declared illegal; the Code reiterated this, forbidding the formation of groups of twenty or more people and outlawing both striking and picketing.

Legal Harmonization, 17.5
What does it mean?
Why does it happen?
Do we do it in the United States?

Legal Harmonization, examples
Commercial law
Maritime Law
Public international law, now mostly driven by trade
The Law of the Sea

The 20th Century: War(s)!
Europe implodes twice in the 20th century. By the second time, we could blow up the planet. People decided to take a step back. Hurrah for us!
The European Convention on Human Rights, incorporated into Scots and English law (on 2 October 2000) (see para 18.3.8), has attempted to lay down a standard to which each nation should conform, enforceable ultimately at the European Court of Human Rights in Strasbourg.

Codification
First, existing codes have inspired and been drawn on as models for new codifications by states within Europe and beyond. Indeed, in the case of Turkey, the codification of 1926 represented virtually a wholesale reception of the Swiss Code of 1912.
Second, the twentieth century has also witnessed recodification __ the revision and modernization of codes promulgated in the nineteenth century. 18.2.1

Recodification
Failed miserably in France
Special legislation and court decisions have taken up the slack
Successful in Holland, which is why the Dutch code has had such influence in the 20th century
Successful in Italy, final in 1942, eliminated the commercial code.

Codification of EU Law
EW law is a bit haphazard, since it is largely administrative and legislation requires widespread political agreements

Anti-Discrimination, 18.3
Women’s rights were greatly improved in the 20th century.
The European Union directives on the rights of women, and EHRC have been major catalysts for change
Race and racism have been the subject of substantial legislation in Europe
Gender issues, such as same sex partnerships or even marriage are increasingly accepted

EHRC
The European Convention on Human Rights and Fundamental Freedoms, drawn up under the auspices of the Council of Europe and ratified by its member states in 1951, has been of prime importance. The Convention came into force in 1953. 18.3.7

Socialist Laws, 18.4
The system is of course largely gone in Europe, but it is still alive and kicking in Cuba and China (though in the latter commercial and property liberalization is significant)
The socialist countries by and large were part of the civil law tradition before communism, and have by and large returned to it, especially in private law

Socialist Systems: Property
Socialist law knows differing regimes of ownership. Personal ownership is restricted to such goods as the individual may require for his own use; it does not permit exploitation of goods for profit. Ownership of the means of production, agricultural and industrial, is vested in a socially responsible body, a co_operative, or the state. 18.4.4

Modern European Constitutionalism, the last of the Sub-Traditions that I have mentioned, represents my view of the Future of the Civil Law Tradition. It is mostly a post-Second World war constitutional phenomenon.

Sub traditions of the Civil Law (from the old Merryman casebook at page 213)
(1) Roman Civil Law
(2) Canon Law
(3) Commercial Law
(4) The Revolution
(5) Legal Science
(6) Modern Constitutionalism

Map from Hyperhistory

The Return to Universalism

The New Universalism:
Transnational Legal Institutions
Global Regime
United Nations, whose forum is the
International Court of Justice at The Hague.
General Agreement on Tariffs and Trade (GATT) andthe
World Trade Organization (WTO). 18.5.1

The New Universalism: Regional Transnational Organizations
NAFTA
CAFTA
Mercosur
The European Coal and Steel Community
The European Communities
The European Community
The European Union

The European Union: Why?
The European Coal and Steel Community, created in 1952, 18.6.2
The first is because the European Community has had a profound effect on the legal systems of its member states.
The second reason is more general[: What I, Malavet, label, the New Universalism.]

The New Universalism
The import of this book has been to show how the disintegration of law and legal culture, which accompanied the disintegration of the Roman Empire in the West, found its corrective in the mediaeval revival of legal studies and the creation of the ius commune, that supranational body of law that could be --and was-- drawn on to the profit of almost all Europe. The paradoxical result was renewed fragmentation; nation states emerged and fashioned their own distinct legal systems, even if the common origins were apparent. Now, with the advent of the European Community, the pendulum is starting to swing the other way again and, within its (ever-growing) sphere, the law of the European Community is overriding, binding on its member states and taking precedence over domestic law. 13.5.1, end.

The European Economic Community:Art. 2, Treaty of Rome
'The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote . . . a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living, and closer relations between the States belonging to it.'

Growth of the EEC
In 1960, seven European states __ Portugal, the UK, Denmark, Norway, Sweden, Austria and Switzerland _which were not at that stage prepared to surrender national autonomy to the extent required for membership of the Communities, had joined together to form the European Free Trade Association (EFTA). The motivation was economic, not political. When the UK and Denmark became members of the Communities in 1973, the remaining EFTA states, augmented by the accession of Iceland and Liechtenstein, individually negotiated free trade arrangements with the EEC. 18.7.2

The Single European Act: The Community becomes the Union
Single European Act, which was signed in 1986 and came into force the following year. This, unlike the original draft, merely amends rather than replaces the founding Treaty of Rome.
committed its signatories to the completion of the single market by the end of 1992; by and large this commitment has been honoured. Second, the Act brought new policy areas within the competence of the Treaty; among these were the environment and economic and social cohesion. 18.8.2

SEA: Increased Political Cooperation
Provision was also made for increased cooperation among member states in the field of foreign policy. Further, the Act gave formal recognition --for the practice was already well established-- to the European Council, that is, to the regular meetings of the heads of state or government of member states, who, since 1975, have come together to deliberate on matters of Community policy and, generally, to provide the Community with the necessary impetus for its development. 18.8.2

The European Parliament:
Democracy Deficit?
direct election; the first such elections were held in July 1979. From that date, the European Parliament could __and did__ claim democratically to represent the peoples of Europe, and it sought to increase its powers accordingly. These claims were acknowledged in the Single Act, when it permitted the European Parliament a more active and interventionist role in the legislative process. 18.8.3

Treaty of Maastricht
UK and Denmark had “issues” with the Union concept
Passed 1 November 1993
Voting and Parliamentary prerogatives were improved by Maastricht, 18.8.5 & 6
Common Foreign Policy and Defense, 18.8.7 (which did NOTHING in Bosnia Herzegovina)
New treaty 1999, more attempts at improvement and discussion about instutitons, especially the prerogatives of the elected Parlament vs. the appointed Council

Sources of Community Law, 18.9
The principal sources of European Community law are the Community treaties, the secondary legislation of the Community, and the jurisprudence of the European Court of Justice. 18.9.1
Council and Commission (which are not the elected groups) are empowered to 'make Regulations, issue Directives, take Decisions, make Recommendations or deliver Opinions'. The most important of these are Regulations and Directives. 18.9.2
Regulations and Directives are formally enacted by the Council. But the Council may only act on a proposal framed by, and put to it by, the Commission; this body has the power of initiation. 18.9.3

Regulations
A Regulation may be likened to a legislative act; as explained in art 249 (ex art 189) itself, it is of general application, being binding in its entirety throughout the Community.

Directives
A Directive is also binding, but although a Directive, like a Regulation, is addressed to member states, art 249 (ex art 189) clearly envisages that a Directive addressed only to one or more individual states is as valid as one addressed to all. Further, while a Directive lays down an objective which its addressees are bound to achieve, it leaves those addressees to choose how best to achieve that objective. The nature of a Directive is best understood if it is recognized that it was primarily designed as an instrument of harmonization. 18.9.2

The Court of Justice
Initially, its decisions were not really binding, but they were followed.
Now has a system of fines
There is also a trial court, since 1989

Van Gend: Supremacy for EU Law
Van Gend en Loos v Nederlandse Administratie der Belastingen Case 26/62 [1963 ECR 1.
Union law can displace incompatible national laws (supremacy!)
18.9.7

Costa v. ENEL, 18.9.8
'. . . the Community constitutes a new legal order of international law for the benefit of which the [member] states have limited their sovereign rights ... , This dictum found concrete expression in our second example, the case of Costa v ENEL

Community law and Individuals, 18.10
Defrenne v Sabena (No 2) the Court of Justice declared that art 141 (ex art 119) also had a social purpose, the improvement of living and working conditions, in the light of which it was also to be interpreted.
Defrenne V Sabena (No 2) Case 43/75 L1976] ECR 455.
Supplemented by many directives and quite effective