of another, a bit older, federation of nations, the Commonwealth. Recently the Privy Council allowed for the possibility that a House of Lords decision about the general clause of negligence need not be adapted throughout the Commonwealth if this were not warranted by the 'general pattern of socio-economic behaviour'. This sounds a bit like the diversity of production regimes: a general legal principle allows for diversity of concrete decisions once it is respecified in different social and economic cultural contexts. This is not a question of Euro-philia or Euro-phobia, rather a question of Euro-paradoxia, the paradox of the unitas multiplex which requests the integrating law against all the rhetoric of an 'ever closer union' to pay utmost respect to the autonomy and diversity of European cultures.(150)
5.3 Encounters at home
Having seen English common law's encounters with civilian and other legal traditions abroad, we can now turn to encounters at home. The main encounters the common law tradition had with the Continental civilian tradition were through the Chancellor's Court (Equity), the Court of Admiralty, the Church, judges such as Sir Hale and Lord Holt, and legal writers such as Bracton and Blackstone. Through the courts mentioned, there has been an infiltration of civilian concepts and also of structures, institutions and methodology into the English common law. As for concepts we can cite 'debitor speciei liberatur casuali interitu rei', 'frustration of contract', which is similar to 'clausula rebus sic standibus', and as to structures, institutions and methodology, that there is no jury, that there is investigatory procedure and lack of orality in the Chancellor's Court. The emergent law of unjust enrichment was described in terms of quasi-contract in the seventeenth and eighteenth centuries. In the nineteenth century, Pothier's analysis of contracts helped shape the classical English contract doctrine. For example, in Funabaski Sycamore Steamship Co. Ltd. v Owners of the Steamship White Mountain and others, Dunn J at the Queen's Bench, said that the Admiralty Court always awarded interest on a limitation fund and then quoted from Lord Denning: 'Court of Admiralty did not apply common law. It followed the civil law and gave interest on damages whenever the non-payment was due to the wrongful delay of the defendant. Ex mora the obligor; ex mora means \
Watson refutes the inherent similarity of Roman law and English law put forth by some writers, and especially by 'new ius commune seekers' by analysing a number of areas such as Roman courts and English courts, the 'formula' and the 'writ' and the role of the jurist and the cases. He shows that even in similarities, such as in the area of 'recovery' and the existence of fictions in both laws, there are concealed differences.(152) Quoting from McNair : 'It may be a paradox, but it seems to be the truth that there is more affinity between the Roman jurist and the common law lawyer than there is between the Roman jurist and his modern civilian successor', Watson says that such an approach is fundamentally misplaced.(153)
Ibbetson calls the receptions from civil law and Roman law 'sporadic receptions', and instances of 'civil law based reasoning filtering into common law'.(154) He states that 'the amalgam of these factors ensured that English law was repeatedly, if not constantly, enriched by ideas drawn from the civilian tradition, so that the caricature of the Common Law developing in total isolation from the civil law has to be seen as an over-crude generalisation. Nonetheless, we must beware of going
too far in the opposite direction in characterising English law as just another emanation of the Western European legal tradition based on the ius commune.'(155) Any rules based on Roman law or the later ius commune 'were immediately cut off from their roots'. English law received 'injections' of Roman law. However, these were 'immediately assimilated into the specifically English framework and given life outside their original context'. The resultant new law 'did not remain in dialogue with the old law from which it derived'; and 'once the borrowings are cut off their roots they cease to be part of the same culture'.(156)
Moreover, there was, and is, the constant encounter with the Scottish law and legal system, which is itself a 'mixed jurisdiction' with an underlay of Roman, Dutch and French law, and a partial overlay of common law. The word 'partial' is used advisedly here, since the Scottish legal system is protected by the Act of Union of 1707. Nevertheless, a strong and continuous seepage occurs from English law into Scots law, thus, English common law and the laws of other common law jurisdictions, such as those of Australia, New Zealand and Canada, create the partial overlay. This state of coexistence within the UK has also led, as would be expected, to some reverse seepage. The influence is reciprocal. One well-known example of this reverse seepage is forum non convenience, another is 'unjust enrichment'. Further, Scots law has always accepted that a lease may be frustrated though this point was unresolved in English law; however, this view changed towards the Scottish one in National Carriers v Panalpina.(157) Although references to Scots law are not extensive in England as far as the English courts are concerned, we can still find Lord Justice Bingham saying:
Eventually, as we know - in no small part due to the work of Lord Goff, both as advocate and judge, and the wisdom of Lord Diplock - the Scottish rule was adopted in England. But it took three appeals to the House of Lords to put the law where, one feels, it should always have been and might have been had English lawyers of the time been willing to look north of the border and acknowledge that acceptance of jurisdiction by the English court is not necessarily an unmixed blessing for all concerned.(158)
The McGregor Contract Code, which will be considered below, marks another serious inroad into English law by Scottish/civilian legal concepts and solutions, although, of course, it never saw the light of day in the manner intended.
Common law and the civilian traditions do share sources such as Roman law, canon law and custom, and many civilian solutions were transplanted into English common law. Nevertheless, these influences were neither systematic nor did the solutions remain the same once imported. These solutions, concepts and institutions were developed and modified by English lawyers. Similar to Ibbetson quoted above, Lewis states that, 'once the continental ideas were imported into England, the umbilical cord was cut'.(159) The Continental civilian concepts were either like fugitive colours then, or became 'irritants' or themselves became 'contaminated' by common law.
5.4 Present-day encounters
Having looked briefly at the English common law's encounters with the civilian tradition in
historical terms, abroad and at home, and before we look at the McGregor Contract Code and any relations it may have with the European Contract Code, it would be wise to consider the present-day encounters of English common law within the European Union. Should European Law be regarded as a 'corrective' or a 'contaminant' of the common law?(160) This question is worthy of further comment, especially in view of its theoretical importance, and will be considered later.(161) However, should one not assess the consequences of the encounters within the European Union as instances of 'reciprocal influence' or 'cross-fertilisation', rather than only consider the contamination of common law by the civilian input into EC law? Though the answer I would give to this second question is positive, this study will only concentrate on the changes in English law and legal system under the impact of these reciprocal influences. Yet, this is one of the questions that must be dealt with by 'Critical Comparative Law' within the framework of Europe.
5.4.1 Convergence: Concepts
Encounters occur at the level of ideas, concepts and solutions and at the level of structures, institutions and methods. The impact of the civilian tradition on the English common law at the level of ideas and solutions is inevitable and cannot be resisted as some of these ideas and solutions enter English law when European Directives are being implemented. This is also true in view of the International Conventions. One can see, for example in Continental Bank NA v Aeokos Cia Naviera SA, Steyn J saying:
In construing the 1968 Convention, it is important to put aside preconceptions based on traditional English rules. The convention is a radical new regime governing the international legal relationships of the contracting states. ... The genesis of the convention is the jurisprudence of civil law rather than the common law. Since the original states were all civil law countries ... The idea that a national court has discretion in the exercise of its jurisdiction does not generally exist in the civilian systems. ... Article 17 follows the civilian approach. Article 17 has mandatory effect.(162)
Bingham LJ, in Dresser UK Ltd. and others v Falcongate Management Ltd. and others, The Duke of Yare,(163) opined in the Court of Appeal a very significant view when a previous case indicating that procedure on the Continent varied from country to country was being defended as the precedent to be followed:
Mr Leggatt urged that it would be contrary to the ratio of Zelger v Salinitri to force English procedure into a straight jacket of European design. I agree. But procedural idiosyncrasy is not (like national costume or regional cuisine) to be nurtured for its own sake and in answering the question before us we must have regard to the realities of litigation in this country and the purpose of the convention, not to tradition, nomenclature or rules developed for other purposes.
'There seems no doubt that, while national laws of contract differ, there is a general sense in which the word contract is understood by the signatories to the convention. English notions of consideration and privity must be discarded. But at its irreducible minimum a contract is a consensual arrangement intended to create legal relations and to be legally enforceable.'(164) Here
the Court of Appeal is manifesting 'internationalism' indeed, though again in relation to a convention only.
When a civil law maxim is already part of a common law jurisdiction, such as was the case when a Quebec solution was preferred by the Supreme Court of Canada and then used by the English Court of Appeal, we read: '[I]t would be open to the English courts to apply the civil law maxim directly to the solution we have in these two appeals, and treat the two plaintiffs as lives in being at the time of the events which injured them as they were later born alive, but it is not necessary to do so directly in view of the effect which the Montreal Tramways case has already had in the development of the common law in this field in other common law jurisdictions.'(165) This case is an interesting example of how an early encounter with civil law in another common law jurisdiction can indirectly bring the English common law closer to civil law concepts.
The impact of the decisions of the European Court of Justice is of great importance in the infiltration of civilian concepts like proportionality, legitimate expectations, the acte claire doctrine and fundamental rights such as right to privacy, right to family life, freedom of religion, freedom of expression and the right to pursue a trade into English law. Much has been written on this topic.(166)
Grief asks whether in this regard Community law, which he sees as 'habit forming', is 'a corrective (like equity to the common law?) or a contaminant'.(167) Other serious concerns are also voiced at this level of encounters. As an example, the recent discussion on the concept of 'good faith' by Teubner can be mentioned.(168) Teubner regards 'good faith', transplanted into the body of British contract law by the 1994 European Consumer Protection Directive, as an irritant. A 'legal irritant' is defined by the author as an alternative to legal transplants, in that 'when a foreign rule is imposed on a domestic culture ... something else is happening. It is not transplanted into another organism, rather it works as a fundamental irritation which triggers a whole series of new and unexpected events ... it irritates law's \arrangements\Documents such as the Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts extend good faith into other fields. Some, as Teubner, are worried about this development, while others regard it as a 'healthy infusion'.(170)
Teubner does not ask whether the British contract doctrine will reject or integrate good faith, but rather 'What kind of transformation of meaning will the term undergo, how will its role differ, once it is reconstructed anew under British law?'(171) He is of the opinion that, 'not only globalising tendencies but also the efforts of Europeanisation of national legal orders produce new divergences as their unintended consequences'.(172) This view is worthy of further analysis and will be reconsidered later.(173)
5.4.2 Convergence: Statutory interpretation
At the level of structures, institutions and methods, two areas are worth looking at: statutory interpretation and codification. Statutory interpretation(174) has been fundamentally influenced by the contact between common law and civil law traditions within the European Union. Here is an
obvious continuing convergence on the part of the common law towards the Continental civilian tradition.
Traditionally, British courts look at the words as they appear in legislative enactments and give the words their ordinary or technical meanings in context. The intention of the legislature, apart from what is overt in the specific legislation, will not be sought out by the courts. The relative freedom courts enjoy while dealing with prior cases does not exist when dealing with statutes, as here the use of analogy or argumentum a contrario is not acceptable. Furthermore, filing in the lacunae is regarded as 'usurping the role of the legislator'. The sequence of methods of interpretation used while construing a statute is literal interpretation, the 'golden rule' and the 'mischief rule', the teleological or purposive approach not being among the classical British tools for interpretation.
As pointed out by Lewis,(175) the 'contrast between the traditional common law approach to interpretation and the teleological method employed in Community law is shown up in a dramatic way in Case 156/86 Murphy v An Bord Telecom Eireann, the Irish telephone company'.(176) When the case was referred to the Court of Justice, that Court held that:
It is true that Article 119 expressly requires the application of the principle of equal pay for men and women solely in the case of equal work or, according to a consistent line of decisions of the Court, in the case of work of equal value, and not in the case of work of unequal value. Nevertheless, if the principle forbids workers of one sex engaged in work of equal value to that of workers of the opposite sex to be paid a lower wage than the latter on grounds of sex, it a fortiori prohibits such a difference in pay where the lower paid category of workers is engaged in work of higher value. To adopt a contrary interpretation would be tantamount to rendering the principle of equal pay ineffective and nugatory.(177)
Advocate-General Lenz stressed that: 'The social purpose of the provision would be negated if Article 119 were not applied to the circumstances of this case. Even the respondent in the main proceedings has admitted that it is unjust for lower pay to be received for work of higher value. Such inequality of treatment based on sex is hardly reconcilable with the social progress which is one of the aims of the EEC Treaty.'
Judicial adjustment to teleological interpretation was difficult to start with, proving to be a stumbling block especially in the Court of Appeal. Lord Diplock in the House of Lords pointed this out: 'In the Court of Appeal considerable doubt was expressed by that court whether an absolute prohibition on the import of a particular description of goods could mount to a quantitative restriction or a measure having equivalent effect, so as to fall within the ambit of Article 30 at all. That such doubt could be expressed shows the danger of an English court applying English canons of statutory construction to the interpretation of the EEC Treaty or, for that matter, of regulations or directives.'(178) Lord Diplock then said: 'The European court, in contrast to English courts, applies teleological rather than historical methods to the interpretation of the treaties and other Community legislation. It seeks to give effect to what it considers to be the spirit rather than the letter of the treaties; sometimes, indeed, to an English judge, it may seem to the exclusion of the letter.' The British courts were also warned by Lord Diplock that, when
临界的比较法
