Project Objectives

Research Question

The broad research question of this project is, "How do western legal systems develop?” Its focus is not so much on what the law is in any particular place at any particular time - something on which much work has been done - as on the dynamics of legal change in different systems. This broad general question demands serious attention. A number of theories exist suggesting that either the law changes principally in step with the state of the economy or of society at large, or that it responds mainly to its own internal dynamics of change. The current endeavours to harmonise different areas of law in Europe by the codification of common rules presuppose that, once the code is enacted, the legal systems of different states operating within a broadly homogeneous economy and society will inevitably work in parallel; it is not at all clear that this presupposition is true.


Our hypothesis is that there are important differences in the way different legal systems develop, even where there are strong similarities between the social and economic factors that are fuelling changes in the law within them all. Though obviously of great importance, these external factors are not in themselves sufficient to explain the dynamics of legal change.

Aims and Objectives

Our aim is to refine and test this hypothesis. The broad research question is too large. So we have proposed to tackle it through the lens of a particular branch of law that will illustrate legal change over the period 1850-2000. Our objectives are first to look in detail at an area of law which has developed substantially independently in several different countries - so as to minimise the extent to which similar developments might reflect conscious borrowings - but where the patterns of social and economic change or broadly similar. Secondly, this study will enable us to draw out the features of legal development which are distinctive to the legal environment: the institutional, structural and ideological features of the legal systems which have shaped their distinct histories. The approach involves a combination of the methodologies of legal history and comparative law, the former looking at the way in which legal rules change through time, the latter looking at the manner in which the law differs from place to place. Thirdly, we will draw conclusions on the processes of legal development in the contemporary European situation.

Research Context

Current approaches to comparative legal development tend to be either historical or theoretical. The former tend to focus on medieval and early modern law. Although they rich in data, they are frequently under-theorised. Both the incommensurability of the legal information discoverable from different systems before the eighteenth century and the lack of adequate information on social and economic similarities and dissimilarities make it difficult usefully to draw general conclusions about the patterns of legal change. Furthermore, we cannot assume that forms of internal legal development in these early periods are necessarily reflected in the present day. Comparative law, by contrast, though sophisticated in modes of analysis, is commonly supported by insufficient historical or contemporary data.

The modern literature suggests a number of ways of analysing legal systems, based on particular focal features of law, and these offer hypotheses about the character of legal development.

• Theories that see law as a system of ideas and values concentrate on how it conveys ideals of conduct or realises social objectives. On this model, legal development is the movement of ideas - how ideas take hold and are transmitted both within a single legal system or between legal systems. Some (e.g. Watson and Mattei) argue that the ideas can be treated in their own terms and independently of individual legal systems, on the basis that their meaning is to be located in the practice of legal professionals whose culture is, to a substantial extent, transnational; for these scholars the transmission of legal ideas between systems is an essentially frictionless process. Others (most notably Legrand) argue that legal ideas cannot be examined in isolation, but that their meaning can only be gathered in their broader social context, often specific to a particular country. These contrasting views are hotly debated, though the empirical evidence marshalled to support or rebut them is very limited.
  
• Law can be analysed as a set of conceptual maps which are superimposed on reality (Samuel). Development is seen as a series of "revolutions" in ways of seeing legal relations, rather than just the movement of ideas. The primary motive force for these revolutions is to be found in the practice of legal professionals. In this perspective, research looks both at the changes in ideas and at the way in which such professionals (Van Caenegem suggests judges, doctrinal writers and legislators) identify changes to be introduced.
  
• Law can be viewed in terms of the achievement of specific social outcomes. For the most influential contemporary exponents of Comparative Law (Markesinis, Zweigert and Kötz) what is important is the solution reached in concrete situations, whatever their doctrinal justification. Other scholars point to other functions of law, such as the reinforcement of social values, where far greater weight has to be placed on the form of legal coding than on its operation in the resolution of disputes.

These approaches offer valuable starting points for examining the question, though the lack of detailed evidence in the supporting literature makes it impossible to put too much weight on any one of them. An underlying question is the relative weight to be given to abstract rules or ideas and the institutional setting within which they operate. Institutions establish connections and barriers between potential sources of ideas and create particular kinds of pressure for development. The roles and relationships of legal professions and lawmakers give rise to dynamics of influence on the creation and operation of the law. Bell has developed a model of legal culture which seeks to combine the features of law as ideas and legal systems as institutions, which would be taken as the starting-point for the proposed study, though it would undergo considerable refinement as it came to be applied to different European systems.