Institutions and Professions

This group will examine three main issues: who were the principal actors in bringing about legal change; what were the mechanisms for bringing about change; and why did certain changes stick while others did not?

So far as the first is concerned, both direct and indirect actors need to be considered. Directly, we would expect to see three channels: judges, legislators, and academics. As well as working autonomously, these groups may have influenced each other indirectly, and all may have been influenced by other groups (eg the lobbying of politicians by specific interest groups, the manipulation of the membership of law reform committees by civil servants, the use by each group of actors of models from other legal systems). And one step behind this there is the question of who it was that the lobbyists chose to lobby, and why.

The second issue flows from the first. How important are abstract frameworks, typically shaped by academics? What is the role of legislation, in terms of both specific rules and more abstract principles? What part is played by regulations and advisory standards, specific to particular activities? And how do all of these relate to each other?

The third issue, perhaps the most difficult to address, is whether it can be said why certain rules or formulations of rules survive, while others have not done so. Are the same factors at work in the original creation of the rule and in its survival? Can use be made of a conception of legal memetics?

Outcome

While it is traditional for writers to contrast the role of doctrinal writers in France and Germany with the leadership of judges in England, the research conducted for this project suggests that this analysis may not be fully accurate. For example, “moral damage” (injured feelings) was accepted by judges in France from 1833, not at the inspiration of doctrinal writers. There is an interplay between judges, academics and legislators that is more complex. Individual legal systems cannot be viewed in isolation because of the importance of external writings and legislative solutions as models for internal legal reform.

At this stage, one attractive hypothesis is the relative autonomy of law. There are leading individuals within each legal community who are open to a range of ideas, often drawn from other countries at a “more advanced” stage of economic and social development in a particular area. These people examine the foreign legal models, refine them and have available solutions in advance of the legal need. Now the legal need (at least in the perception of the legislator) is determined classically by social crisis, and this social crisis takes place against a background of economic and consequent social change.

The working hypothesis starts with the recognition that the development of the economy creates conditions in which lawmaking decisions and interpretations happen. Until there are changes in the economy you will not get cases arising for the courts to decide. It will be unusual for the legislator to be bothered to intervene and legislate unless an issue has become imperative. So the sequencing places economic change ahead of adjudication and lawmaking.

But the economy does not dictate change, it creates the conditions making change necessary. It is here that the social forces for change come into play. Among these are the legal institutions (law reform agencies and the like) and legal professions (such as judges and professors). But also the social forces of social and political actors will have an impact on the character of any change. In relation to products, one can note that there was a choice of direction after the First World War, between an open economy and a closed, autarchic economy. Social policy, not the state of the economy dictated the option chosen. In that set of social conditions, the law has to operate.

But the role of legal academics may be to identify and anticipate possible changes. For example the Spanish Products Report writes:

“From a historical point of view, it was in the decade of the 1970’s when public authorities and private companies started to worry about the possibility of taking liability insurance for defective products. It is arguable that the legal change followed changes in the social practice of insurance. As a result of this concern, in October 1970, a seminar dealing with tort liability of companies, professional liability and product liability was organised in Madrid under the auspices of Swiss Re. According to Professor Rojo Fernández del Rio, the Spanish experience in this area is parallel to the experience in other countries, something which is shown by the fact that in 1970 the European Insurance Committee (CEA) also expressed, in its plenary assembly, the concern of European insurance companies regarding coverage, as a new risk, of product liability of producers. In Spain one of the first doctrinal studies on product liability insurance policies was published in 1972, at a time when these policies were not yet sold in Spain. The author of this study, the lawyer Jesús Rodríguez Buján, explains that in his study he follows the works of the two well¬-known German experts, Werner Lorenz and Willi Schürpf.”

It seems that the doctrinal writing is the part of the legal system that is most out of phase with the economy. On the whole, case-law is functionally re-active. The legislator will on the whole want specific solutions to be seen to have been dealing with the public concerns. Delict law is usually too general. The key feature of doctrinal writing is its willingness to look outside the legal system for solutions. For example, Wagner writes in relation to products in Germany that comparative learning was helped by German emigration.

“Throughout the 1960s, a relatively high number of German-born professors continued to teach at leading American law schools, and they were happy to introduce scholars from post-war Germany to American legal thought. In addition, the German and the US governments facilitated scholarly exchange across the Atlantic, both financially and politically, in order to help re-educate German lawyers. Finally, throughout the 1950s and the early 1960s, the United States was extremely popular among the young generation of Germans. The memory of American occupation was positive, as the occupants were both humane and rich. The US was seen as a strong nation with the right values, a successful history and affluent economic means.”

“The spark which ignited the scholarly fire was an article by the comparatist Werner Lorenz, published in a Festschrift in 1961. Thereafter, an explosion of monographs and articles were published, with most of the monographs including long sections on foreign law.”

The influence of France on Italy and Spain is also clear. The dynamics of such exchanges are not determined by economics, society or culture, but are patterns related to the nature and dynamics of the legal community and even to mere chance, as in the importance of the American link with emigrés and the American interests of Winfield, one of the people feeding into Donoghue v Stevenson in 1932.

This part of the legal community, in which judges and legislators may well participate, provides an extra range of possibilities to the decision-makers. Here lawyers are talking among themselves. In addition, there are consumer groups, among other lobbies, who can also proffer ideas, often drawn from comparison with other systems. These groups may often meet internationally, like the insurers in Europe in 1970, as mentioned above.

The project has noted the importance of individual judges even in continental collegiate supreme courts, who have clearly shaped (positively or negatively) legal development.

Individuals may also serve as members of law reform commissions or by providing ideas to them. This institutional mechanism is one way in which the influence of academics in the common law system can be identified much earlier than in the explicit citation given to academic writing in recent times.