OBLIGATIONS AND COMPARATIVE LEGAL METHOD

In fact, some would argue (see Chapter 14) that rigidly to distinguish between theory and practice and between the comparative and the analytical is misleading, particularly with respect to a work on the law of obligations. It is misleading because, as we have already seen, this is an area of private law that is common to the whole of Europe and has a history going back to the earliest days of Roman law. Consequently it is simply unrealistic to think of the various analytical structures and ideas as belonging to a single nation state or single intellectual tradition. The modern law of obligations has been a melting pot of ideas coming from a variety of directions – from commerce and the lex mercatoria,101from academic traditions ranging from scholasticism to the mos geometricus102 and from social facts embracing almost everything from bear pits to dangerous underpants.103And while the common law may well have been isolated from some of this, it would be very wrong to think that scholasticism, commerce and social fact have not injected into the common law ideas and methods which, when mixed with its own particular history, make it of relevance to anyone wishing to have knowledge of Western law.104 Indeed the importance of the common law’s own contribution to legal methodology is increasingly being recognised by civil lawyers. The New Dutch Civil Code (Nieuw

Nederlands Burgerlijk Wetboek), for example, has specifically moved away

from a mos geometricus view of law105towards one that is more in line with the English approach. It recognises the importance of judge made law and reasoning by analogy and it sees legal development as being an interaction between legislator, judge and law professor.106

English law thus has its own contribution to make in any European law of obligations. But the comparative method goes much further than this: it reaches into legal method itself in that all legal analysis is to an extent an exercise in comparison. When lawyers argue, for example, over different tests of causation (Chapter 7 § 4) they are offering different models for the categorisation of a factual situation and the role of the judge is to compare and to choose between competing models.

101 Hilaire, J, Introduction historique au droit commercial, 1986, PUF.

102 Jones, JW, Historical Introduction to the Theory of Law, 1940, OUP, pp 1–78; and, for the medieval period, see Berman, H, Law and Revolution: The Formation of the

Western Legal Tradition, 1983, Harvard. See, generally, Wieacker, F, A History of Private Law in Europe, Weir, T (trans), 1995; OUP.

103 Op cit, Lawson, fn 36. 104 Zimmermann, p xi.

105 On which see Zweigert and Kötz, p 140; Samuel, Foundations, pp 52–53.

106 Hartkamp, AS, ‘Civil code revision in the Netherlands 1947–1992’, in Haanappel, P and Mackaay, E (eds), New Netherlands Civil Code, 1990, Deventer.

What are the goals of legal comparison as a science? According to one leading comparative lawyer they are ‘to know the differences existing between legal models and to contribute to knowledge of these models’; and it is only this comparative method which ‘reveals to us certain details of the different models under consideration’.107 _{Legal analysis}

and legal comparison of competing models are often one and the same exercise.

There is a further point that can be made with respect to tradition and methods. A comparison of the various approaches to problem- solving can often be revealing in respect of the specific categories used by lawyers within a generic classification and this is particularly true when it comes to the law of obligations. In English law a court cannot normally intervene, as Lord Diplock pointed out, unless there exists a ‘cause of action’. Now, as we shall see (Chapter 3 § 4(d)), a ‘cause of action’ has been defined as a factual situation giving rise to a remedy. But just what kind of ‘factual situation’ will disclose a cause of action raises a question of method. Is it a matter of matching the facts in issue with a set of model factual situations; of identifying ‘rights’ and ‘duties’; or of drawing out of the case law or statutes a rule and to apply this rule to the factual situation? The view associated with the school of legal positivism – a school that sees law as a system of rules posited directly or indirectly by a ruler or ruling body – is that law is a matter of rule application. Yet how does the lawyer actually get from ‘rule’ to ‘factual situation’ to decision? And are ‘rights’ and ‘duties’ simply defined in terms of rules?

These questions become important in the law of obligations not only because areas like the law of tort, seemingly in contrast to the law of contract, appear devoid of many rules. They are important also because many of the actual rules turn out, in themselves, to be empty of content. It is easy enough to write down as a proposition that, in order to succeed in the tort of negligence (cf Chapter 12 § 3), a claimant must establish that the defendant owed a duty of care to him, was in breach of the duty and that the breach caused foreseeable damage. But what does any of this mean? The rule is devoid of meaning if taken on its own and will begin to assume some substance only when placed in the context of the facts of cases.108_{So is it the facts and decision of cases that become}

the basis of the law of obligations? Is knowledge of law a matter of knowing a mass of cases? No doubt within these cases there are ‘rules’, but are these rules the same as those said to be the formal rules of the tort of negligence or are they more specific? And if they are more

107 Sacco, S, La comparaison juridique au service de la connaissance du droit, 1991, Economica, pp 8, 10.

Chapter 1: General Introduction

specific – for example, if the duty and foreseeability question are to be determined by a ‘proximity’ test – what is the relationship between the specific and the general rules?

In fact, there are rules and rules. Some rules are capable of containing enough information in themselves to determine at least a provisional decision. Thus a rule banning from a certain road motor vehicles with more than a certain engine capacity is relatively easy to apply since the rule as a proposition contains in itself most of the required information and, in addition, much of the information is mathematical. The rule can thus be applied by means of formal logic.109 Other rules like the negligence rule are merely rhetorical devices designed to locate the information needed for a reasoning process elsewhere than in the rule itself.110 Perhaps the information will be found in a more detailed sub-rule; and so for example there used to be a very clear rule in the tort of negligence that no duty of care was owed in respect of pure economic loss (Chapter 13 § 7(a)). Equally, the information might be located in a mass of case law out of which it is not easy, or even possible, to draw a single rule; in these circumstances legal reasoning is no longer a matter of rule application as such. It is more a matter of making analogies between factual situations (Chapter 3 § 2). Even some apparently quite detailed rules can contain less information than might at first seem the case. Accordingly, the moment when a contract is concluded, although governed by quite detailed rules about offer and acceptance, can often depend upon a detailed examination of the factual circumstances.111