ENGAGING WITH FOREIGN LAW FEDTKE J. MARKESINS B. Księgarnia

This book presents a developed theory of how national lawyers can approach, understand, and make use of foreign law. Its theme is pursued through a set of detailed essays which look at the courts as well as business practice and, with the help of statistics, demonstrate what type of academic work has any impact on the ‘real’ world. Engaging with Foreign Law thus aims to carve out a new niche for comparative law in this era of globalisation, and may also be the only book which deals in some depth with both private and public law in countries such as England, Germany, France, South Africa, and the United States.

Sir Basil Markesinis QC is a Fellow of the British Academy, a Foreign Fellow of the Accademia dei Lincei of Rome, the Royal Belgian Academy of Arts and Sciences in Brussels, the Royal Netherlands Academy of Arts and Sciences in Amsterdam, and a Correspondng Fellow of the Academy of Athens and the Academie des Sciences Morales et Politques in France. He is a Bencher of Gray’s Inn.

Professor Jörg Fedtke studied law and political science at the University of Hamburg in Germany. He held the Chair for Comparative Law at University College London, where he was also Director of the Institute of Global Law. He is now AN Yiannopoulos Professor in Comparative Law at Tulane University Law School in the United States.

Table of Contents

Preface to the Second Edition v

Acknowledgements 000

About the Authors ix

List of Abbreviations 000

Table of Cases 000

1. Reflections on the State of Comparative Law I: The Twilight of the Heroes 1

1. Of Ghettoes and Smart Neighbourhoods 1

2. Decline 4

(a) The Absence of a Defining Treatise, an Inspiring Thesis, or a New

Methodology 4

(i) France 4

(ii) The Germanic World 7

(iii) England 8

(b) The Human Factor 11

(i) The Continued Utility of Studying Roman Law 13

(ii) How the Continued Study of Roman Law has Harmed both its

High Priests and their Work 15

(iii) Modern Attempts to Salvage Parts of Roman Law 18

(iv) Other English Reasons for the Decline of Comparative Law 20

(d) The Practitioner Comparatist: An Untapped Gold Mine 28

3. Not Leaving a Working Method 29

4. An Epilogue to the Idea of Decline 32

2. Reflections on the State of Comparative Law II: The Era of Societal Needs 35

1. The Emergence of a Strategy 35

2. The Rabel Method Over Time 37

(a) Particularism 37

(b) Statics 38

(d) Neglect of Public Law 41

3. Functional Specificity: More of the Same Medicine 42

4. Old (Bad) Habits and New (Silly) Threats 45

(a) Eurocentrism—Is it a Vice? 46

(b) Why Focus on Some Systems Only? 48

(d) Law and Philosophy, and How to Use the Latter in Conjunction with

Comparative Law 58

(e) Comparative Law and Sociology 61

(f) Comparative Law and Anthropology—A Suffocating Embrace? 65

(g) The Shared Error of the Old and New Schools 66

5. From Heroes to Movements of Contemporary Globalisation 70

3. Spreading the Gospel (and the Name of the Evangelist) 77

1. Aims to be Pursued 77

(a) The Importance of Language 78

(b) Where One is Cited 79

2. Warnings and Caveats 81

3. Some Raw Data 86

4. Drawing the First Lessons 90

(a) Lesson One—Citations Need to be Adjusted Downwards; Each Author

Needs to be Given Individual Attention 90

(b) Lesson Two—Reputation and Legacy in Comparative Law 99

5. First Conclusions 108

6. Reputology for the Years 2001 to 2005 110

7. Citation Figures of British Comparatists and Non-Comparatists 111

8. The Comparatists During the Years 2001 to 2005 114

9. Commentary: Showing in Literature 117

10. Commentary (bis): Showing in the Courts 123

11. A Postscript 125

4. South Africa 127

1. Legal Transplants 127

2. Constitutional Transition and Foreign Influence 130

3. The ‘Constitutional State Principle’ or Rechtsstaatsprinzip 132

4. Human Rights Protection 134

(a) The Essential Content Clause 134

(b) Horizontal Effect or Drittwirkung 136

(d) Juristic Persons 152

(e) Allgemeine Handlungsfreiheit—a General Right to Freedom? 154

5. Federalism 157

6. Lessons from the South African Experience 159

5. The Situation in Germany 163

1. The Limited Radiating Effect of German Law 163

2. Judicial Recourse to Foreign Law in Germany 164

3. Judicial Recourse to Comparative Literature 174

(a) Positivistic Tradition 176

(b) The Prevailing Methods of Interpretation 176

4. Comparative Law in the Field of Legislative Law Reform 177

5. ‘Applied’ Comparative Law in Germany—Some Tentative Conclusions 182

6. The Reluctance to Borrow Ideas from Abroad: Two Strange Bedfellows—

The United States and France 187

1. Opening Remarks 187

2. The United States—The Open Society 188

3. The United States—Constitutional Law and Statutory Interpretation 190

4. The Divided (Supreme) Court 193

5. Consistency in Opposing Foreign Law on the Grounds that it is Irrelevant 195

6. Strongly Phrased Rejection of Relevance of Foreign Law 198

7. The Stimulating Side of ‘Negativism’ 201

8. Wider Reasons which may Help the Current Climate of Insularity

Spread Further 203

9. Comparison with other World Courts 206

10. Comparisons with France 206

(a) General Remarks 206

(b) Issues to be Resolved 212

(i) Comparative Law in France: Its Present State 212

(ii) Who is Able to Take the Lead in Promoting the Use of Foreign

Law in France? 215

(iii) How to Make the Use of Foreign Law More Attractive 220

11. Comparative Postscript 225

7. The Focused Approach in Public Law: A Look at English and French Law 229

1. Introduction: The General and the Particular 229

2. A Study in Parallel 231

3. The Reasoning of the Courts 235

4. In Search of a Rapprochement 237

(a) Policy Reasons and Concepts in Decisions Involving the Liability of

Public Bodies 237

(b) A Divergence in Fundamental (Political) Philosophy? 242

5. Wider Conclusions 248

8. Another Lesson on Packaging: The Grey Zone where Tort Law Overlaps with

Administrative Law 253

1. Introductory Observations 253

2. The Non-Liability Rule for Omissions in the ‘Highway’ Cases 258

(a) Unclear Judgments or Conclusionary Justifications 261

(b) Citing Lower Courts which are in Agreement 263

(d) A Missed Point? 266

3. Further Doubts about Lord Hoffmann’s Reasoning in Gorringe 266

4. The Structural Approach to the Breach of Statutory Duties and its

Justification in Germany 272

5. Recent German Case Law 276

(a) Social Services 276

(b) Highway Authorities 278

6. The Economical Consequences of ‘State Liability’ (Staatshaftung) in

Germany 281

(a) How Successful are Plaintiffs and how much Compensation is Paid by

Public Bodies? 283

(b) The Overall Amount of Compensation Paid out by German Public

Authorities Each Year 284

(i) Compensation on the Basis of the NATO Statute 284

(ii) Public Traffic (Verkehrsteilnahme) 284

(iii) Medical Liability 285

(iv) Compensation on the Basis of Community Law 285

(v) Other Factors 286

Subsequent Litigation 287

(i) The Number of Claims, the Average Single Demand, and the

Average Single Payment 287

(ii) Cases which Reach the Courts 289

(iii) Chances of Success in Court and Reasons for Failure 291

7. Some Tentative Conclusions 294

8. Postscript 303

9. Foreign Law Inspiring National Law: Lessons from Greatorex v Greatorex 305

1. Introduction 305

2. The German Model 308

3. The Application of the German Ideas to Greatorex 310

4. Unresolved Questions 311

5. The American Dimension 314

6. Some Tentative Conclusions 317

10. Comparative Law in Commercial Practice 323

1. Commercial Interests in a Globalised Environment 323

(a) Standardisation 325

(b) Forum Shopping 327

2. Uniform Law and Comparative Methodology 331

(a) Unification 331

(b) The European Union as a special case of regional unification 333

3. Some Selected Examples 337

(a) Standardisation and the Local Pitfalls of the ‘World Wide’ Web 338

(b) Forum Shopping 340

(i) Private Limited Companies 341

(ii) Cross-Border Insolvency Strategies 342

(iii) Outsourcing 343

4. Lessons for Comparative Law as a Discipline 347

11. Reflecting on the Future: The Subject and its Teachers 351

1. Opening Remarks 351

(a) Speaking One’s Mind 351

(b) Specialised Knowledge and Wider Culture 352

(d) Political and Economic Structures and Comparative Law: A Postscript

to the Previous Sub-Heading 362

2. Growing Interaction in a Shrinking World—Will it Help or Stunt

Comparative Law? 364

(a) Globalisation—A Multi-Polar Source of Converging Law 364

(b) Will the Increase of Available Information Make Comparison

Superfluous? 369

3. What Should We be Doing? 370

4. Prophesying the Future—A World of Different Speeds 372

(a) Shades of Internationalism 372

(b) Introspection or Arrogant Self-Sufficiency? 376

Appendix I: Correspondence between Lord Atkin and Professor HC Gutteridge 383

Appendix II: The Law Commission and Comparative Law During the last 10 Years 387

Appendix III: Description of Databases Searched 397

Appendix IV: Journals Included in Westlaw’s JLR Database: 825 Journals 403

Bibliography 427

Index 441

442 pages, Paperback

Po otrzymaniu zamówienia poinformujemy,
czy wybrany tytuł polskojęzyczny lub anglojęzyczny jest aktualnie na półce księgarni.