law and culture, worked in Malta's civil law legal tradition and created a Draft Criminal Code. The final work, when sent to be revised to Jamieson of the Scottish Bar, was criticised in that the Italian and British legal traditions were seen to be incompatible, the main clash being between the preference for precise definitions of the British and the loose and general provisions of the Italian. Cadoppi says that '[t]his is the difference that at least since the times of Blackstone has always divided the Continental and the British approach to statutory drafting'.(266) Nevertheless, when later the Maltese Commission prepared the final Draft Criminal Code, Jamieson's Report was widely considered and the Criminal Code enacted in 1854 contains most of the amendments there suggested. This experience provides a very good illustration of how the two legal traditions of civil and common law 'were in the end successfully brought together and harmonises the Maltese Criminal Code',(267) and points to the feasibility of common law and civil law coexisting in the same enactment. The Maltese Criminal Code 'framed upon an Italian model owes much to the common law'.(268) What is also of interest is that when Maltese judges apply sections of the Code derived from Italian law, they follow the Italian interpretation and the civilian approach; when they apply sections influenced by English and Scottish law, they employ the British interpretation technique, though, 'the two approaches seem slowly to overlap'.(269)
As another example of a code of mixed traditions, Cadoppi(270) mentions the Queensland Criminal Code of 1899. Griffith drafted this Code, taking as his model the Draft Criminal Code of England of 1880, which was based on Stephen's Draft. Rather than adopting this Code with minor alterations as was done in Canada and New Zealand, Griffith, who was fluent in Italian, considered other recent codifications such as the Penal Code for the State of New York and, most importantly, the Italian Criminal Code (Zanardelli Code) of 1889. Cadoppi says that the Queensland Code 'can be considered a code based upon the English common and statutory law, as far as the description of most crimes is concerned; and a code based upon the Italian law as far as most principles and rules of responsibility are concerned: a code indebted both to the common law and to the civil law tradition'.(271) Here 'prestige' and 'chance', two of the most pronounced factors in transplants and receptions can be observed at work. Griffith was familiar with the Italian Code, and the Zanardelli Code(272) had a wide reputation having already served as a model for other Codes of Continental Europe and South America. This Code was then adopted with minor changes as the Model Criminal Code for the British colonies in Africa, the Pacific, Palestine and Australia. Thus we see here another example of the successful coexistence of civil law and common law. Yet, though at the level of concepts and principles this coexistence is successful, in the practical application of the law there are inherent problems.
The notion of 'cryptotypes' used by Sacco(273) is referred to by Cadoppi as an explanation of the practical difficulties which may be of value when considering any future pan-European codifications, whether in the field of criminal law, commercial law or of obligations. This notion refers to the state of mind and mentality of practising lawyers, judges and law teachers derived from their legal experiences as shaped by legal education, training and practice. 'These cryptotypes are sometimes stronger than the letter of the law, and they are especially important in shaping the so-called \with Legrand's 'mentalité' discussed earlier.
As analysed above, the McGregor Contract Code is another Code where civil law and common law concepts intermingle and intertwine. A considerable number of examples from that Code showing this coexistence and intertwining have already been discussed above. Clearly, the effort on the part of McGregor to bring English law into line with Scots law and with Continental jurisdictions on a number of points, does have most fundamental implications for creating a platform where common law and civil law interaction can be observed and which could imply that there are future opportunities at the level of pan-European Codes. These fundamental implications become more substantiated if we remember the views of the Scottish Law Commission referred to above. It is not difficult, therefore, to understand the enthusiastic reception of the McGregor Code by the Gandolfi project. It is more difficult to understand the total lack of interest in it on the part of the Lando Commission, the Commission on European Contract Law.
5.4.3.7. European Codes in the common law context
Professor Hugh Beale, whose work on the Commission on European Contract Law has made a considerable impact on the content of the Draft 'Principles of European Contract Law' enabling the Commission to intertwine fruitfully English, Scottish and Continental European concepts and principles, says that members of the Commission may indeed have looked at the McGregor Code as a way of seeing how English law might be formulated, but they did not make direct reference to it because it had no official status. Members of the Commission went back to the case law and statutes which lie behind the McGregor Code.(274)
One of the aims of the Lando project is to provide a source for finding principles of contract law which are accepted throughout Europe, similar to the UNIDROIT which compiled internationally accepted principles in this area. This work will not help only the member states of the EU but also benefit the European Court looking for such generally accepted principles. The other aim is to help to develop a European culture by providing harmonised provisions while at the same time preserving national laws, unification not being the aim at this point. Thus the work of the Commission is concentrated on the distillation of rules by comparing various solutions and analysing the end goals of those rules, that is their functional equivalence, and arriving at general principles which are then to be published. The UNIDROIT rules are followed to a large extent. 'The Principles of European Contract Law' prepared by the Commission on European Contract Law does not aim to unify the law as the European Civil Code would do, but rather, recognising the dichotomy of common law and civil law and the fact that cultural diversity exists in Europe, tries to create a set of rules to be used on a voluntary basis as seen in Article 1:101: Application of the Principles:
(1) These Principles are intended to be applied as general rules of contract law in the European Communities; (2) These Principles will apply when the parties have agreed to incorporate them into their contract or that their contract is to be governed by them; (3) These Principles may be applied when the parties: (a) have agreed that their contract is to be governed by 'general principles of law', the 'lex mercatoria' or the like; or (b) have not chosen any system or rules of law to govern their contracts; and (4) These Principles may provide a solution to the issue raised where the system or rules of law applicable do not do so.(275)
K?tz is of the opinion that in the past 'there has been a tendency to overrate the benefits of unification and to underrate its cost. Again, unification through codification is likely to fail or to lead merely to vague compromises whenever important matters of social or economic policy are touched upon.'(276) K?tz assesses the activities of the 'Commission of European Contract Law', the 'Commission on European Law of Civil Procedure' and the 'Principles for International Commercial Contracts' by drawing parallels with the American Restatements in that the primary objective of these projects is not to prepare Codes but to find:
a European common core of legal principles and rules [which] is more modest. It is simply to mark out areas of agreement and disagreement, to construct a European legal lingua franca that has concepts large enough to embrace legal institutions which are functionally comparable, to develop a truly common European legal literature and the beginning of a European law school curriculum, and thus to lay the basis for a free and unrestricted flow of ideas among European lawyers that is perhaps more central to the idea of a common law than that of identity on points of substance.(277)
Cadoppi observes that the general parts of most European criminal laws - common law countries included - are quite similar to one another and are getting closer as time goes on.(278) Nevertheless, he can see possible advantages in rejecting a completely unified European Criminal Code because of cultural and moral differences.
One of the most vocal and prominent seekers of the 'new ius commune', Zimmerman, does not advocate a European Civil Code either, but, referring to Markesinis' 'gradual convergence' and Gordley's 'vanishing distinction', he says that the new ius commune would not necessarily lead to or require uniformity of legal rules and results.(279)
In 1974 Kahn-Freund saw no reason even to harmonise the laws in Europe apart from those areas 'dictated by practical requirements'.(280) By 1989, however, the European Parliament expressed the view that action should be taken 'to bring into line the private law of the Member States'(281) and later asked 'that a start be made on the necessary preparatory work on drawing up a common European Code of Private Law'.(282)
Since there is no UK Code in the Continental sense as yet, what is the scope of the present English experience? This experience is a reciprocal influence and cross-fertilisation between the two legal cultures in Europe. Unless British jurists are prepared to take part in legal dialogue and communication with the other legal culture more extensively, the English contribution into the 'to be melting pot' will remain minimal. It can be said that the English experience with the EU and with pan-European codification, if and when they come, will be in the shape of acquiring new sources of law and the methods of handling these sources which reflect civil law techniques, yet with eclectic content. The technique will be import, but the values reflected will partially represent the national spirit and partially, the so-called 'shared common heritage of Europe'. In the balance of form and content then, the Continental input into English common law is mostly at the level of content, but if codification were to come to pass, then form would also be influenced. With the
increasing importance attributed to case law on the Continent today it is possible to see a reverse seepage from the common law to the civilian tradition in the area of form. If anti-codification views of the 'law and economics movement', for example, were to take root on the Continent, then there might be more of a convergence towards the common law forms.
A classical code is a Continental civilian approach to exposing the law in a specific field. It could be regarded as a method of law-making and as such it is a structural encounter for English common law. It could also be regarded as a symbol of a mentality, a way of expressing the law; then, for the English common law, it is a legal-cultural encounter.
According to the 'convergence theories' or the 'convergence debate',(283) English law can live with codification of the law. There are historical examples of efforts at codification in England and by English lawyers in the colonies. The Law Commission has been actively involved in this exercise since 1965, and many rules of English common law are now expressed in more general terms. The newer Codes both on the Continent, such as the Dutch, and in Quebec and Louisiana are allowing greater flexibility, the lack of which is one of the objections to codification in England, and they are accepting that judges should have a greater part to play.
The 'divergence theories', on the other hand, are totally opposed to any involvement of the UK in any pan-European Code. Legrand appears as a representative voice for this approach. According to him, 'Whether as cause or effect, the absence of a civil code in England, for example, is not unrelated to sociological findings that the English \rigid rules\that the English \In a head-on attack on a European Civil Code, Legrand says: 'Should the idea of a European Civil Code be supported? My answer is, emphatically: no, it should not.'(285) His main arguments are based on the facts that Europe is plurijural, that this plurijurality is under threat and that it must survive. According to Legrand, 'the idea of a European Civil Code is principally the product of two phenomena, both of which must be resisted', administrative convenience and fear(286)on the part of civilians. He further criticises the proposal in favour of a European Civil Code on four grounds: arrogance, fallaciousness, backwardness and impracticability. Legrand blames the civilians in that 'it is a curious fact that Europe should apparently want to do to itself what it did to much of the world through colonisation, that is \the effective denial of sites of contestation within itself. But simple formulas will not solve complex situations today any more than they did in the past.'(287) For him,
However, the specificity of Europe - and this is where legal history can be adduced as compelling evidence - lies not in the abolition of difference, but in the deft management of it, in the assumption of pluralism, in the acceptance of a coexistence of non-harmonised rationalities on its territory, in the willingness to enlarge the possibility of intelligible discourse between legal traditions, and in the steady practice of a politics of inclusion ensuring an equal presence for the two legal traditions represented in its midst. In short, difference must be understood and the temptation to reduce it resisted.(288)
Therefore, to insist on codifying law in Europe in an effort to integrate Europe further appears to Legrand as arrogant 'for it suggests that the civilian representation of the world is more worthy than its alternative and is, in short, so superior that it deserves to supersede the common law's world view'.(289)
This type of analysis and the understanding of codification as top-down centralist legalism has also led 'law and economics' scholars to propose competition of legal systems in a free legal market as opposed to both codification, which is in effect unification, and direct harmonisation. The elements of choice and efficiency here remain the main criteria.(290) Some advocates of the 'new ius commune', stressing the need for resystematisation of the law and the development of a European legal doctrine, also claim that this could be done without necessarily a final synthesis and unification.(291)
It is not one of the aims of this study to speculate on the virtues and costs of unification of law through codification. Neither is it the aim to discuss or assess the desirability, viability or the contents of pan-European codes, or to enter into the 'codification (legislation) or harmonisation or competing systems' debate, though these options have been mentioned in the course of the 'reciprocal influences and transfrontier of law' analysis. The reason for including comments here on pan-European codes is associated with the discussion on the 'divergence or convergence' debate. In this context, therefore, pan-European codes are regarded from the perspective of the intermingling of the civil law and common law and the position of English law alone. In doing this, various stances have been highlighted though not assessed, agreed with or disagreed with. It is not the aim to take a stand on the question.
5.5 Civil law and common law: Contaminants, irritants or correctives?
Both 'contaminant' and 'irritant', two terms already used, are very welcome additions to the vocabulary of analysis of reciprocal influences. However, in its everyday usage, the word 'contaminant' is not a neutral word. One would be forgiven for thinking that anyone using the word for the first time in this context might be a common law lawyer who does not regard it as good that civilian concepts and structures should seep into the English legal soil. They seep and contaminate. They do not purify or correct. Neither does the word 'seepage' create a positive image. One would surely be advised, therefore, to stand clear of the source of contamination. 'Contaminant' has the connotation of spoiling the thing it comes into contact with. However, it is a fact that English law had already been contaminated, therefore purity is not of the essence here. As discussed earlier, when Grief says that Community law is exerting a pervasive influence on common law and is reshaping the English legal order, he points out that some would use the word 'insidiously' rather than 'pervasively'.(292) He then suggests that one should assess this influence critically to determine whether it is a corrective or a 'contaminant'. He sees it rather as a 'habit forming factor' whereby a practice enters into judicial consciousness, judges appreciate its value as they employ it and then find other uses for it.(293) This could be a 'healthy infusion'. Does not the term 'infusion' indicate a more subtle, positive and deeply penetrating infiltration than the term 'contaminant'? Of course, it is also a fact that one could regard common law itself as the 'contaminant' of Continental civil law, since some English common law concepts and institutions
临界的比较法
