more effectively than in the past. At least it can be said that most Western academics are concerned with the success of Western European export and want to guard against the failures of the 'law and development movement' of the 1960s. The questionnaire circulated by the General Rapporteur Prof. Reitz for Topic 1.C.2 'Systems Mixing and in Transition: Import and Export of Legal Models' at the Fifteenth International Congress of Comparative Law held in Bristol in August 1998 can be presented here as an example of this concern.(121) The present writer was a National Rapporteur for both the UK and Turkey on that occasion, and has expressed her views elsewhere.(122)
4. Intermezzo: The test bed
Each of the three case studies below is approached through a different perspective and different aims. Each is used as an example of some of the theoretical points and pointers made in the foregoing part of this study. The aim in not to compare them.
The case of the English common law will be looked at with the view of seeing reciprocal influence between the civil law and the common law at work and assessing the capability of the two legal traditions of intermingling and intertwining. This is of vital importance if pan-European Codes, if and when they come, are to have any chance of success, both in their inception and in their working. This case will also be looked at with the aim of bringing to life and testing some of the theoretical terminology such as 'seepage', 'contaminant', 'irritant', 'underlay', 'overlay' and 'cross-fertilisation'.
The case of Turkey will be assessed as the product of a unique phenomenon of 'transfrontier mobility of law' and, most importantly, as one between socio-culturally and legal-culturally diverse societies. The term 'hyphenated' legal system is to be tested here as well as the concepts of 'chance' and 'historical accident'. The problems facing the recipient of this major borrowing and its aftermath will be discussed. The present influence and the continuing relationship between the model(s) and the recipient will be assessed. At the same time, the efforts of the structures to deal with the residual problems of religion and culture will be commented upon. Here the other terms to be tested are 'reception',(123) 'irritant', 'imposed reception', 'modernisation through borrowing foreign models' and 'competing systems'.
The case of Eastern and Central Europe will present a brief inquiry into the models, the ways in which they are used, the problems these models face and their efforts in this new export market. The concept of 'competing legal systems' will also be looked at. The concepts of 'chance', 'choice', 'prestige', 'efficiency' and 'elite' will be observed within the relations of the Eastern and Central European jurisdictions with the Western European ones. The terms 'reception', 'imposed reception', 'imitation', 'concerted parallel development', 'transposition' and 'layered law' will also be assessed in this context.
5. The case of English common law: Contaminated, irritated or corrected?
5.1 Past encounters abroad
English common law has encountered the civilian tradition on many occasions and in many parts of the world; as Zimmerman states, they are 'no strangers'.(124) Some encounters took place at home as will be briefly seen below. In its travels English law has faced many socio-cultures, legal orders and legal cultures very different from its own, as have the laws of other Empires. In this case study I will first briefly look at such past encounters of English common law and indicate some of the important consequences as seen by a comparatist. Next, present encounters and mutual impacts and reciprocal influences will be discussed. This will be done while looking at both similar and dissimilar systems. Finally, the English draft Contract Code drawn up by McGregor will be surveyed and the Principles of European Contract Law and the prospects for a European Civil Code be commented upon.
As is well known, 'England has been the only rival to civilian systems based on Roman law in creating a legal Empire, in providing a model'.(125) 'Nearly one third of all the people alive today live in regions where the law has been more or less strongly marked by the Common Law. This is the legacy of the fact that Great Britain was once the greatest colonial power in the world.'(126)
Through the process of colonial expansion English settlers, administrators and merchants carried the common law to North America, Australia, New Zealand, India and to large parts of Africa and South East Asia. English law laid the foundation stones for most of the legal systems there and its contributions to those that already had different foundations, such as Scotland, Louisiana and South Africa, led to their becoming what is classically termed 'mixed jurisdictions' [achieved] not by trying to replace variants of civil law, Islamic, Hindu or unwritten African customary law then in force with the rules of English common law, but by filling the gaps.(127)
One of the consequences of the colonial policy pursued by the British has been the evolution of 'mixed jurisdictions' in 'ceded colonies'. Though most 'settled colonies' became members of the common law tradition, though some with a difference, the 'ceded colonies', where the diverse legal traditions were retained or not fundamentally tampered with, developed a fabric woven from both civilian and common law threads. The common law was always the top thread, the added model in these systems, the underlay being usually a civilian tradition and sometimes a religious one. The extent of reciprocal influence between elements from diverse backgrounds differed from system to system. Sometimes the overlay of common law camouflaged the underlay, sometimes the two elements existed side by side, the civilian element usually being in codified form. In some instances one can talk of 'layered law', the product of interaction being the law.(128) Sometimes, as each layer collided with the other or others, legal pluralism resulted. This could be a high degree or a low degree of legal pluralism. Sometimes the common law was also introduced in codified form by the British, such as was the case in India. Contract, criminal law, trusts, property, evidence, procedure and limitation, for example, were subjects of Codes for India in the nineteenth century, the work on the Codes taking around 40 years. In this way, the most important branches of English law applicable to India, with the exception of the law of torts, were codified. Many distinguished British lawyers worked on these Codes, the principal draftsman being Whitley
Stokes; and according to Pollock, these were 'the best models yet produced'.(129) 'The Indian Codes in part codified rules of English law already received in India, and in part created new law. They were adopted for India, with exclusions on certain points for certain parts of India where they would be inappropriate.'(130) The main reason for this codification was that in India a variety of different laws, including religious laws such as Hindu and Islamic applied previously, and the piecemeal introduction of common law was neither practicable nor efficient. Thus the claim of the 'contrarian view' that codification is not a part of the legal culture of English law is not altogether correct even at this early juncture.
As will be seen below, there were more fundamental 'contaminations' in the British Isles later - that is, if a code is taken as a prominent sign of the civilian tradition. The Criminal Code and the Draft Contract Code, to be discussed below, are among the outcomes of these 'contaminations'.
In the colonial period, the clash of cultures between British law and local law had very significant consequences since the export of British law was a one-way process, an imposition, with no element of choice involved. As with all impositions, the element of chance was crucial here. Each outcome has its own history and character, and needs to be analysed separately. What is traditional, what is modern, what is original and what is transplanted in these systems is not always easy to detect today. St. Lucia, Quebec, Louisiana, South Africa, Mauritius and Seychelles are examples of this.
Here a caveat is called for. In all the past encounters, common law was the second and the last legal layer to influence to varying degrees what was there already. Common law has always been in this position. However, as will be seen below, in our day, there is a new experience. Within the context of the EU, civilian concepts are entering the common law in the UK at the level of concepts, if not yet in structures and techniques, as the second layer. In Hong Kong, for example, common law is now surrounded by Chinese law, a variation of the civilian tradition, in structures if not in content, and will be sandwiched between the traditional first bottom layer and a Chinese/civilian third top layer.(131) How it will fare or behave in this new surrounding as part of a layered law, will be of great interest to comparatists. The experiences of the common laws of the United States and Canada with Louisiana and Quebec, respectively, is no different from the classical pattern with common law as the second and top layer, in spite of reciprocal influences in both, and the exceptional developments in Quebec, which is no longer the 'mixed jurisdiction' it once was, but may be a new one.
5.2 The Privy Council: Unity through diversity?
The attitude of the English common law towards these encounters can be observed most clearly in the views of the Privy Council,
which plays a crucial role in maintaining the harmony of the common law within the commonwealth world, laying down paths of cross-fertilisation. This was so in Mercedes-Benz A.G., where the Privy Council preferred the approach of the Australian courts when deciding Hong Kong law;(132) or in Vasquez v R and O'Neill v R(133) where they brought the laws of the
individual jurisdictions of the commonwealth into line with others, especially within their specific regions.(134)
Even leaving the 'mixed jurisdictions' mentioned above out of the picture, within the common law world there are socio-cultural diversities, and these different socio-cultures face the same legal culture, the common law. This is the case also for other legal traditions. However, specific to this legal tradition, there is a consciousness that common law is a whole and that this unity is a very real tie between the jurisdictions within the legal tradition. This is reflected most significantly in the citing of decisions from other common law jurisdictions by the British courts, not only for 'help' or 'comfort' but as authority. 'The feeling of oneness is so strong that in one case the judge found it difficult to refer to New Zealand law as foreign and apologised to his New Zealand friends for using the word \Lord Bridge stated in Bennett v Horseferry Road Magistrates' Court and another:(136) 'Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots.'
In the Privy Council's dealings with appeals from some jurisdictions within the commonwealth,(137) this tendency is even stronger; although, with the declining numbers within its jurisdiction, its role as the unifier of commonwealth law has lost its earlier importance. For example, in Cheali v Equiticorp Finance Group Ltd. and another,(138) Lord Browne-Wilkinson stated that '[i]t is manifestly desirable that the law on this subject should be the same in all common law jurisdictions'. Again, in Vasquez v R, the Privy Council expressed the view: 'This conclusion will bring Belize into line with other commonwealth countries of the Caribbean ...'(139) The Council expressed regret 'that there should be any divergence between English and New Zealand law on a point of fundamental principle'.(140) In these hearings, the Privy Council was concerned 'to bring commonwealth law into line with English law, even when local factors might dictate a different approach ... The Privy Council would be reluctant to decide contrary to English authority regardless of the merits of the argument.'(141) 'British courts also regard it as desirable that the law north and the south of the border should be the same or similar as far as possible.'(142)
Usually and traditionally then, the Privy Council prefers the English law's understanding of rules and regards foreign law, in this case commonwealth law, as English law. Nevertheless, in recent years, the Privy Council has given special weight to the views of judges in the lower courts in commonwealth jurisdictions 'in so far as they reflect the advantage which those judges enjoy of familiarity with prevailing local conditions, this with the proviso that the courts have used that advantage'.(143)
Currently, further developments can be perceived here. Despite the apparent uniformity, some changes in individual jurisdictions and an awareness of their specific socio-culture have necessitated allowing them to become subtraditions of common law. Already some jurisdictions within the commonwealth which form the Caribbean group are contemplating the establishment of their own West Indian High Court to replace the Privy Council as the court of last resort. The Privy Council has recently lost Hong Kong. The Council itself is also changing its approach. This
is an interesting and significant development. What Britain ignored in the early years(144) and somehow corrected later, is now becoming the prevailing view in the Privy Council.(145)
Robyn Martin calls the Privy Council 'postmodern' as she analyses the case Invercargill City Council v Hamlin,(146) where conflicting commonwealth approaches presented themselves for reconciliation.(147) Though the unification of common law in the commonwealth was once seen as important for the preservation of English law, and therefore led to the bringing into line of diverging commonwealth approaches, now the Privy Council not only recognises, but values difference:
The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root is not a weakness, but one of its strengths. Were it not so, the common law would not have flourished as it has, with all the common law countries learning from each other ... the Court of Appeal of New Zealand should not be deflected from developing the common law of New Zealand (nor the Board from affirming their decision) by the consideration that the House of Lords ... have not regarded an identical development as appropriate in the English setting. ... The particular branch of law of negligence with which the present appeal is concerned is especially unsuited for the imposition of a single monolithic solution.(148)
In this field, the commonwealth jurisdictions followed their own paths, a uniform common law was seen as unattainable and the Privy Council did not regard it proper to interfere since the differences were diagnosed as resting on different policy considerations. Martin observes that:
one further concern raised by Invercargill is the future of Privy Council appeals, at least from countries other than British-dependent territories. If it is now recognised that there is no uniform common law, that differing social conditions in the commonwealth jurisdictions have led the law to diverge, is there any longer any point in the expense, delay and effort involved in taking an appeal to the Privy Council? The Privy Council admitted to its general ignorance of New Zealand culture and relied upon the New Zealand Court of Appeal as to the expectations and needs of New Zealand society. Once it is conceded that those expectations and needs must be reflected in the law, it is the final court of appeal within New Zealand that is in the best position to determine the direction of the law.(149)
It is interesting to note that now the Privy Council recognises that the strength of the common law does not lie in its conformity but in its ability to adapt to changing circumstances. It is asserted that the common law can only benefit from this plurality of approach. This is in sharp contrast to the view expressed by the 'convergence theorists' analysing the relationship between the common law and the civil law traditions within the new ius commune in Europe. This issue has already been referred to above. While one unity, the commonwealth, moves to appreciate diversity, another diversity, the European Union, is moving towards the achievement of uniformity. This again sends us back to our concern with 'harmony within diversity' rather than 'harmonisation by eliminating differences', discussed above. Recently Teubner remarked:
Perhaps the young emerging network of European Nations may learn a lesson from the experience
临界的比较法
