The Future Practice of Law
Edited by William van Caenegem and Mary Hiscock
Chapter 7: Ignoring the civil law/common law divide in an integrated legal world
The debate about the harmonisation and unification of law is prosecuted with particular vigour in Europe, but is also relevant to other parts of the world including Asia. A well-rehearsed topic in this debate concerns the particular difficulties of harmonising common law and civil law systems. As the ‘divide’ between common law and civil law systems has been exported to many other regions, this topic is not only relevant in Europe. Profound differences of doctrine and legal culture between civil and common law systems are advanced as serious obstacles to harmonisation and unification. The traditional position of comparative law as the engine of harmonisation is said to be undermined by the existence of fundamental disparities between common lawyers and civil lawyers. However, consider two reasons why our ambition to bring about harmonisation of laws between jurisdictions may be misplaced anyway: first, because it is an ambition to achieve something that does not even exist at the national level in many states; and secondly, because it diverts our attention from the more significant and relentless process of integration between legal systems in the current era. This integration is a matter of fact, an exogenous phenomenon that impacts upon the global legal system rather than an internal policy choice. From this perspective, our debates should focus on how to deal with and derive advantage from the factual integration of legal systems, rather than on attempting to harmonise the law across jurisdictions.
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