AHRB Research Grant on European Legal Development

Information on the Project

Research question

The 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 more general question demands serious attention. 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 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 the change. 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. 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 will involve 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.

Research methods

Case-study

The topic of the development of fault liability in the period 1850 to 2000 is both representative and informative. In eighteenth century Europe, tortious liability was widely seen as coextensive with individual responsibility, expressed in terms of fault or negligence. This was fixed in the French Civil Code of 1804, versions of which were adopted in many European nations in the nineteenth century. In addition, it became part of the 'Common law' in England and Scotland, and was firmly established in the German territories. From the middle of the nineteenth century the inadequacy of this fault standard as the single test of legal liability was becoming clear, and has become increasingly marginalised in practice since then, whilst retaining a considerable hold on the formulation of the core rules of liability within the different systems. For all its deficiencies, it still occupies a central place in the Dutch Civil Code of 1992. Although the large-scale picture is the same across Europe, the local differences are very significant; it is on the different patterns of balance between the formulation of the general core and the specific cases on the periphery that we will primarily be concentrating.

A second branch of the literature charts the history of fault liability, through doctrinal study and most of it is national rather than comparative. Alongside these, there is a good deal of comparative work on modern legal systems; an important branch of this is to be found in the writings of those comparatists involved in the identification of common European legal principles (most of the participants in the project have been involved directly or peripherally in this work). A final strand, of relatively recent importance, is the work examining the integration of EU and ECHR rules and standards into national legal systems. As yet, though, there has been no thorough-going synthesis of these different approaches. Both branches of the literature provide important raw material on which the analysis of legal development can be based.

Research method

The work will integrate comparative and historical approaches, drawing on the different methodologies developed by comparative lawyers and legal historians. Since the work focuses on the specifically legal aspects of development, the majority of the principal researchers will be lawyers. That said, the project will obviously involve scholars familiar with broader economic and social analysis in the endeavour. We would envisage their acting primarily as interlocutors and commentators, ensuring that we were not downplaying differences between the social and economic experiences in different places. The one non-legal topic which we identify as sufficiently pivotal to demand expert competence throughout the lifetime of the project is the history of insurance; we would expect to integrate a scholar with this expertise (Deakin or Fenn) into the core team of researchers. A number of established scholars have agreed in principle to participate in the project: Ernst (Bonn), Zimmermann (Max Planck), Jansen (Augsburg), Modéer (Lund), Schrage (RotterdamAmsterdam), Cafaggi (EUI, an expert in economics of law), Whittaker and Vogenauer (Oxford), Oliphant (Cardiff) and Watkin (CardiffBangor). Additional colleagues from Latin countries would be drawn particularly from Spain, since the English team has considerable expertise in French law. Younger scholars would include Giliker (Queen Mary) and Swain (Birmingham).

1) The research process would involve a first plenary meeting, based on pre-circulated papers, whose function was to refine the precise scope of the project and the distribution of topics within it. Two subsequent meetings of sub-groups, again based on the discussion of pre-circulated papers, would aim to identify and develop common themes. The rewritten sub-group papers and conclusions would be discussed in a further plenary, then revised and edited for publication. The principal authors of the papers would be well-established scholars in the UK and continental Europe, but they would normally be joined by younger UK scholars who would play an important part both in the conduct of the research and in the writing of the papers. We envisage that it will be useful for some participants to spend short visits of up to one month working with the principal investigators in Cambridge, particularly as they seek to draw together the strands of the project.

2) There would be three loose sub-groups: covering the Common law, northern Europe (Germany and Scandinavia), and "Latin" countries (the Low Countries, France, Spain, Italy). These represent the three main divisions in research on modern European legal systems. Two research students, based in Cambridge, would be attached to the project, each one working in both legal history and comparative law. We expect one would be attached to the "Latin" group, one to the northern European; they would receive both orthodox postgraduate supervision and also assistance from the scholars working within the group to which they were attached. Each student would examine a particular subject in need of further detailed research at both national level and comparatively. We anticipate the student in the northern European group would spend some time working in the Max Planck Institute for Comparative Law in Hamburg; the student in the "Latin" group would also be expected to spend some time working abroad, though exactly where would depend on the precise topic being researched. Research dissertations leading to publication and the training of young academics in a framework which will enable them to have in place a network of relationships necessary to sustain contemporary research. Given the small number of academics in the field and the limited number with doctorates, we believe that this investment will contribute to sustaining relatively small subject areas.

3) A website would be established, following similar design features to the Cambridge Law Faculty website. The Faculty will then maintain the website after the life of the project. Working papers could be posted on it with discussion and commentary invited. Such a feature is particularly appropriate to the dispersed locations of legal historians and comparative lawyers. An area of the website would be restricted to the participants, facilitating closed-group discussion. This methodology of research will be of long-term benefit to future projects in the subjects: face-to-face meetings will be more productive and the researchers will be bonded closer together.

4) Casual research assistance would be used to support the preparation and coordination of meetings, and also to assist the visiting scholars. (In Law, people do not apply for post-doctoral research assistantships.) Secretarial and office support would also be provided in Cambridge.