The Emergence of world legal cultures to create laws.

“To truly know a man, you must walk a mile in his shoes.” Charles H. Koch, Jr.1


World co-operation has generated a variety of supranational organizations, with responsibilities ranging from trade to crimes against humanity.2 These organizations often include judicial-like tribunals and these tribunals have and will increasingly create law. Together they are evolving a global legal culture.3 This legal culture will initially derive from national legal cultures and yet, over time, will transform national legal

1 Dudley W. Woodbridge Professor of Law, William and Mary School of Law. B.A. University of Maryland, 1966

2 The term “supranational organization” is used for a particular type of international organization that is “empowered to exercise directly some of the functions otherwise reserved to states.” Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Efective Supranational Adjudication, 107 YALE L.J. 273, 287 (1997).

3 “Legal culture” is used here to encompass the panoply of societal elements associated with a legal system. Lawrence Friedman, a United States legal sociologist, has focused on that concept. While he noted that other scholars have used the term differently, his use of the term “refers to ideas, values, expectations and attitudes towards law and legal institutions, which some public or some part of the public holds.” Lawrence M. Friedman, The Concept of Legal Culture: A Reply, COMPARING LEGAL CULTURES 34 (David Nelken ed., 1997). He intended that what falls within this term is “living law.” Id. at 36. The term is criticized for lack of rigor and coherence: “The imprecision of these formulations makes it hard to see what exactly the concept covers and what the relationship is between the various elements said to be included within its scope.” Id. at 13, 15. Catarrhal conceded that it is useful “for its emphasis on the sheer complexity and diversity of the social matrix in which contemporary state legal systems exist.” Id. at 29. In this article’s discussion breadth is much preferred to precision and hence the term seems appropriate.

cultures. The legal principles that will guide this emerging global legal culture must now be analyzed in order to gain some understanding of the future. This article offers a framework for thinking about the future development of global legal systems.

The twin pillars of the immediate iteration of this global legal culture will be the civil law and the common law systems. This prediction is not mere transatlantic chauvinism. These legal systems have, for good and bad reasons, migrated around the world. At present, 33.8% percentage of the world’s jurisdictions, encompassing 55.6% of the world’s population, are covered by the civil law model or civil law systems mixed with others (for example indigenous or religious legal ideologies). The common law model along with systems mixed with it include 28.24% of the jurisdictions, and 14.68% of the world’s population. Hence, combined civil law and common law based legal cultures cover over 70% of the world’s population in over 62% of the jurisdictions.4 Moreover, the two currently dominant governments are the United States (US) and the

European Union (EU).5 The US, with due respect to its country of origin, England,

4 University of Ottawa, at http://www.droitcivil.uottawa.ca/world-legal¬systems/eng-monde.html.

5 The term “EU law” in this article is a concession to popular usage. Technically,

it is a misnomer. Hanlon provided one brief description of the correct nomenclature: The TEU (Treaty of European Union or Maastricht Treaty) created the ‘European Union’. It consists of three ‘Pillars’. In the middle are three existing communities, (i.e. ECSC (European Coal and Steel Community), Eurotom and the E.C. (European Community)). These three communities will be known collectively as the European Communities. It will be noted that the TEU officially changed the name of E.C. dropping the “Economic” from the title. On either side of this central “Pillar” is the Common Foreign and Security Policy (CFSP) and Cooperation in Justice and Home Affairs (JHA). These three “Pillars” support the over-arching constitutional order of the Union. However, only the central Pillar, the E.C., is governed by Community law. The CFSP Pillar and the JHA Pillar are governed by intergovernmental cooperation. This means they are outside the jurisdiction of the Community institutions, particularly the Court of Justice. Neither will any of the Articles of the outside Pillars be enforceable, or challengeable, in National Courts. Thus, although the Union is wider than the European Community it has its roots in the Community.

JAMES HANLON, EUROPEAN COMMUNITY LAW 9 (2d ed. 2000). Another justification for

an inclusive sense of “EU law” is that the future will almost surely see a body of law covering all three pillars, although many of the aspects of the two “outside” pillars will

represents the common law system, albeit its own version. The EU has largely adopted civil law concepts, again with due respect to England’s and Ireland’s common law presence in the EU, and hence will add strength to consideration of civil law principles. For these reasons, the first steps toward a global legal culture will be dominated by some blending of civil law and common law.

Of course, analysis based on the merger of these systems can only provide a plausible beginning in envisioning the global legal culture because, as recognized below, other customary and indigenous legal cultures, many of which have mixed with the two transatlantic systems, will certainly have increasing impact on the global legal culture. Any prediction of global culture in any regard faces claims of overwhelming diversity but we have seen an unprecedented merging of cultures in recent times in the face of such cultural diversity. The development of supranational organizations such as the EU demonstrate the development of an integrated legal culture in the face of seemingly incompatible and even belligerent histories. In sum, it is plausible to conceive of a global legal culture even in the face of great diversity and to forecast that the early stages of that legal culture will borrow a good deal from civil law and common law experiences.

Careful consideration of this emerging legal culture has become an imperative. As a US legal scholar, I feel a particular sense of urgency in that enterprise. Other legal regimes, both supranational and national, have increasing impact on US legal practice and US laws. Yet, few US lawyers have little more than superficial knowledge of other legal systems. While legal systems are generally local and nationalistic, the US legal culture has remained even more isolated than most. On the other hand, lawyers from other legal systems have been studying the US system, often from the inside (obtaining US law degrees and participating in US firms), for generations. To a large extent, the health of the US legal culture and effectiveness of US practitioners depend on how quickly its practitioners and scholars can catch up.

To encourage all, but particular US, lawyers to think about transformation of the law, this article will attempt to envision a global legal regime. The purpose is more reflective than predictive. Nominally, the article has three parts. The first part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next part will outline civil law legal concepts and provide background for common law readers. To further the goal of this article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal system. The last part will move to the article’s major goal of setting a framework

be ruled more by politics than law as in the US.

for contemplating the evolution of a global legal culture as it might be based, to some extent, on the merger of this globalized version of civil law thinking with US/common law thinking. Some effort is made to suggest how other major legal cultures may impact on this system but with the recognition that thinking about the interaction of the two major transatlantic systems is sufficiently ambitious for one article.

Actually, the analysis is a unit presented in three stages: institutions, civil law overview and then the blending of the civil law and common law legal cultures. The first stage of the analysis looks to the experience and development of four centralizing regimes with global impact: the US, Europe, the United Nations (UN), and the World Trade Organization (WTO). Since the work is about legal culture the concentration is on the adjudicative institutions of these four organizations. Largely for background, the piece looks to the experience of the US federal courts and the European trade and human rights regimes. The US provides the prediction with some 200 years of experience and Europe provides it with about 50 years. The latter experience is more on point because it is a recent uniting of a number of national legal cultures. As useful to this analysis is that Europe has taken some steps in melding civil law and common law legal cultures. The UN engages in human rights creation, promotion and enforcement. Its International Court of Justice (ICJ) presents a plausible and in fact working global tribunal for those purposes. It will also provide some experience in unifying a legal culture. Like Europe, the global regime has a trade regime separate from its human rights regime. The trade regime now has the WTO to promote and protect trade values. The WTO has its own court like bodies. Again the WTO adjudicative apparatus is presented more as a plausible vehicle for developing global law but it also provides centralizing experience. The European experience demonstrates that this putative trade regime will ultimate affect almost every aspect of national law, indeed society in general. Like Europe, both the UN’s rights tribunal and the WTO’s trade tribunal have been and must continue to deal with the tension between civil law and common law ideologies. So, we have plausible nascent world tribunals and we can engage in at least some preliminary thoughts about evolution of a global legal culture recognizing that these tribunals might be the vehicles for carrying it forward.

Now we can begin the job of contemplating what this global legal culture will look like. As stated, about half the world’s population is living under some form of civil law system. Thus, it is imperative that common law lawyers and scholars understand some of the basic tenets of a civil law legal system in order to engage in predictions about a global legal culture. Underneath this discussion and continued into the next stage is the observation that there are subtle but fundamental ideological differences between civil law legal thinking and common law legal thinking despite some appearance of convergence between the two great transatlantic systems and that our task

requires sufficient understanding of the civil law model in order to form some thoughts about the melding of that model with the common law model. While these two legal system have common cultural as well as legal sources, a person from a civil law system will have different intuitive understanding of law than one from a common law system. The task here is to gain enough understanding to contemplate how a civil law legal mind will think about an issue on the world stage. Thus, this part also projects the civil law ideology into the global legal culture in order to move the analysis forward as well as offer some common understanding of the civil law model.

Finally we can blend in the common law. A separate discussion of the common law ideology does not seem necessary because I anticipate that most of the readers will come from a common law legal culture, more precisely the US. An understanding of the basic tenets of the common law model are presented in the discussion of the interaction of the two models. The primary goal of this stage of the analysis is to identify areas of tension between common law and the civil law ideologies. Nonetheless, I suggest potential resolutions of those areas of tension. More ambitiously, I identify certain aspects of these models which might best be adapted to the global legal culture. These suggestions will be set up by the efforts in the second stage to suggest how a given aspect of the civil law system might emerge in the global legal culture. Some much more cautious attempts are made to identify aspects of other legal cultures, e.g. Islamic or Asian, that might have impact on the current development of the global legal culture. I recognize that a variety of potential legal ideas may be adapted from other legal cultures or develop from the creative energies of future generations but contemplating those is simply too much at this point.

Hopefully, these three analytical stages come together in the readers mind to present a framework for analysis. Some effort is made to engage in future gazing. That was simply irresistible but the real goal of this piece is to lay some groundwork and encourage thinking about the dimensions of a global legal culture. Although I encourage US lawyers and legal scholars especially to become engaged, all the citizens of the world must be active in the design of the global legal culture.

I. Emerging Global Institutions and the Forces That Will Shape Their Laws

This part examines the judicial-like tribunals that will contribute to the global legal culture. It focuses on the two major global adjudicative institutions, the World Trade Organization’s (WTO) dispute settlement apparatus and the United Nation’s (UN) human rights adjudications. In order to suggest the impact these tribunals may have and how they may contribute to the evolution of a global legal regime, it looks at the evolution of the European legal regime and to a lesser extent the centralization of US law

over its history.

A. Present and future world judicial regimes

Two parallel nascent global judicial regimes are evolving in a world-wide legal culture: the trade adjudicators and rights adjudicators. Trade adjudicators began to evolve when the WTO’s “dispute settlement bodies” (DSB) were constituted. An ultimate rights adjudicator machinery have evolved from the UN’s International Court of Justice (ICJ) (sometimes this tribunal has been referred to as the “World Court”).6 Mostly, the assertion is that these two already important world tribunals will fill the adjudicative vacuum created by the globalization of society in general.

There are 18 international tribunals that are composed of permanent, independent judges with authority to issue binding decisions on cases between two or more parties.7 Some 96 bodies “in the international system that are charged by States with the job of interpreting international law” might also be seen as part of a global judicial regime.8 The US participates in a large number of such adjudicative mechanisms.9 Most of these bodies are relatively new.10 Still, the WTO dispute settlement machinery and the ICJ seem most likely to gain some dominance among the world’s tribunals. Therefore, we can profitably reflect on a global legal system radiating from these two adjudicative

6 Helfer & Slaughter, supra note 2, at 285. In particular, they observe that the “Committee” is becoming increasingly court-like. Id. at 338, 344, 365. Even though Helfer and Slaughter assert that the United Nations Human Rights Committee (UNHRC) is a much more important human rights body than many recognized, the UNHRC is not likely to take this role. Helfer & Slaughter, id. at 279.

7 Shane Spelliscy, The Proliferation of International Tribunals: A Chink in the

Armor, 40 COLUM. J. TRANSNAT’L L. 143, 147 (2001).

8 Id. at 146.

9 Although debatable, US participation and hence delegation of “judicial power” seems constitutional. Brian Havel, The Constitution in an Era of Supranational Adjudication, 78 N.C. L. REV. 257 (2000) (Supranational tribunals may, along with state courts and legislative courts, “share” in the exercise of the Constitution’s judicial power.).

10 Spelliscy, supra note 7, at 148 (“Only two out of the eighteen have been in existence for over thirty years and only four for more than twenty years”).


The WTO was established by the Uruguay Round of the General Agreement on Tariffs and Trade (“GATT”) embodied in the Agreement Establishing the World Trade Organization (hereinafter the “WTO Agreement”). GATT began in 1947 and has since served as framework for several global free trade negotiations or “rounds.” In its current iteration, the WTO has considerable power. The WTO has already given evidence of its potential for reviewing a wide range of national law and practices.11 McGinnis and Movsesian, for example, in a recent law review article, observed: “The possibility of covert protectionism thus necessarily forces the WTO to address environmental, health, and safety issues.”12 They offer two models for the future of WTO development: the antidiscrimination model and the regulatory model. The former is much less intrusive on national law than the latter. The latter results in the WTO making global social policy regulations to replace national regulations rejected as inconsistent with a world market. These two pro-free trade commentators warned: “[I]n light of its academic and political support, the regulatory model will likely compete with the antidiscrimination model in shaping the WTO of the future.”13 While both models presage significant shifts in sovereignty, the “regulatory model” suggests a more aggressive imposition of a global social policy on WTO member nations.

George and Takis Tridimas observed, based on empirical evidence, that the

growth of economic activity covered by supranational government necessarily results in a corresponding growth in “the formal procedure of the law to resolve disputes.”14

11 “One of the WTO’s more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states.” Mark L. Movsesian, Sovereignty, Compliance, and the World Trade Organization: Lessons from the History of Supreme Court Review, 20 MICH. L. REV. 775, 777 (1999) (citing the massive literature that has already emerged).

12 John O. McGinnis & Mark L. Movsesian, The World Trade Constitution, 114

HARV. L. REV. 511, 550 (2000).

13 Id. at 552.

14 George Tridimas & Takis Tridimas, National Courts and the European Court of Justice: A Public Choice Analysis of the Preliminary Reference Procedure, 9 (2002) (working paper on file with the author) (citing seminal study of the EU. Alec Stone Sweet & Thomas L. Brunell, Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community, 92 AM. POL. SCI. REV. 63

Originally, GATT made no provision for formal, judicial dispute resolution but the Uruguay Round resulted in an agreement on dispute settlement procedures.15 GATT provides: “The WTO shall administer the Understanding of Rules and Procedures Governing the Settlement of Disputes . . . in Annex 2 to this Agreement.”16 The WTO provides for the resolution of disputes among member states in the “Dispute Settlement Understanding” (DSU).17 DSU provides a panel of experts, but not necessarily legal experts, to hear complaints from nations and decide whether a member’s laws violate GATT trade principles. The complaining party may seek compensation if the offending country fails to implement the final decision.18 The only sanction at present, however, authorizes the unsatisfied complaining country to retaliate against the offending party.

Parallel to trade but moving more cautiously is the global rights legal culture and the judicial regimes supporting it. Several specialized rights adjudicative bodies have developed over the years.19 The general human rights adjudicative institution which has begun to evolve into a global right enforcing body is the International Court of Justice (ICJ) or “World Court”. The ICJ’s jurisdiction is very broad and it may be engaged to



INTERNATIONAL TRADE 51-53 (2d ed. 1999).

16 One source of the WTO Agreement and related documents is the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 5, 1994, General Agreement on Tariffs and Trade, Multilateral Trade Negotiations Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, 33 I.L.M. 1125 (1994).

17 Agreement Establishing the World Trade Organization, Annex 2, Understanding on Rules and Procedures Governing the Settlement of Disputes, arts 6, 8, 33 I.L.M. 1226.


19 E.g. International Court Inter-America Court of Human Rights. Helfer & Slaughter, supra note 2 at 376.

decide any types of “disputes” as defined by the treaty.20 Statehood is the only necessary qualification to be a party.21 Although not necessarily confined to rights, the ICJ is the prime candidate to become a comprehensive global rights tribunal and is most likely to evolve into rights adjudicative regime.22 Clearly, it will and already has begun to develop a universal legal culture for rights.23

ICJ has had a much longer history than the WTO and has over that time established principles supporting its judicial authority.24 Franck identified the ICJ’s early 90’s decision in Lybia’s case against the US and the UK to block extradition of those responsible for the Lockerbie airline bombing with Marbury v. Madison.25 The US Supreme Court in Marbury v. Madison laid claim to judicial review power in a manner that prevented its claim from being resisted.26 Similarly the ICJ established its authority


1920-1996 519 (3d ed. 1997) (“[T]he classic definition of dispute is that given by the Permanent Court . . . : ‘A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interest between two persons. ‘”).

21 Id. at 605.

22 The US has agreed to over 70 multilateral treaties and 30 bilateral treaties that contain special declarations of acceptance of ICJ jurisdiction without reserving the right to refuse consent in a specific case. Jordan J. Paust, Domestic Influence of the International Court of Justice, 26 DENV. J. INT’L L. & POL’Y 787, 789 (1998).

23 Criminal law is another area where an international legal culture may develop. For a discussion of how civil and common law legal cultures may clash in the International Criminal Court, see Robert Christensen, Getting to Peace by Reconciling Notions of Justice: The Importance of Considering Discrepancies Between Civil and Common Legal Systems in the Formation of the International Criminal Court, 6 UCLA J. INT’L L & FOREIGN AFF. 391 (2002). Christensen notes that elements of both civil and common-law procedures will be utilized in the ICC. Id. at 398.

24 Geoffrey R. Watson, Constitutionalism, Judicial Review and the World Court, 34 HARV. INT’L L.J. 1 (1993).

25 Thomas M. Franck, The “Power of Appreciation “: Who is the Ultimate Guardian of UN Legality?, 86 AM. J. INT’L L. 519 (1992).

26 Marbury v. Madison, 5 U.S. 137 (1803). Marbury is well known to US lawyers. William Marbury was appointed justice of the peace by outgoing President John Adams.

in the Lockerbie case to review the UN Security Council but avoided direct confrontation with the political UN’s institutions.27 Lockerbie, like Marbury, however, is noteworthy for its assertion of review authority, not its cleverness in avoiding direct institutional confrontation.28

On December 21, 1988, a bomb planted on Pam Am flight 103 exploded over Lockerbie, Scotland. Two Lybian intelligence agents were accused. The US and the UK indicted these agents and requested extradition. Lybia refused. The UN Security Council adopted a resolution urging Lybia to comply. Lybia then instituted proceedings in the ICJ against the US and UK asking the Court to rule that it had complied with the relevant international convention, that the US and UK had violated that convention and to order the US and UK to desist threats against Lybia. Three days after close of the oral hearing the Security Council adopted a resolution ordering members to take coercive action against Lybia. The ICJ then ruled that Lybia was not entitled to relief. While several judges felt that the Security Council resolution was controlling, others asserted the power to review such resolutions under certain circumstances.29 Watson summarized the totality of the case: “The decision implies that the international community is moving toward a broader acceptance of judicial review than the framers of the U.N. Charter perhaps envisioned–that subsequent practice under the Charter may have altered its

He did not receive his commission before the new President, Thomas Jefferson, took office. At that point his commission was rescinded and he sued James Madison, the new Secretary of State. John Marshall, Chief Justice of the Supreme Court, ruled that the Court did not have original jurisdiction to provide the remedy requested, mandamus. In doing so, he asserted a very strong sense of judicial review but, since he did not order the issuance of the commission, this assertion could not be resisted. The foundation for strong judicial review was established but the actual extent of the exercise of that authority has ebbed and flowed over the Court’s history.

27 Libya v. United States, 1992 I.C.J. 114.

28 Franck, supra note 25, at 520. (“The similarities of the Libyan case to Marbury extend beyond judicial tactics.”).

29 US lawyers might relate this ruling to the “political question” limitations on judicial review. See Vera Gowlland-Debbas, The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie case, 88 AM. J. INT’L L. 643 (1994).


Despite its constitutional significance, the Lockerbie case, like Marbury, resolved private, individual rights, in Marbury, the right to an office, and in Libya, protection from hostile criminal prosecution. The Lockerbie case had the added constitutional dimension of establishing judicial review of rights disputes among states. Clearly, the foundation for serious judicial review authority in the ICJ has been set. Whether it will be this adjudicative body, or some new one, it is inevitable that some human rights judicial regime will become prominent on the world stage.

In sum, it is easy to make the case that the DSB apparatus in trade and the ICJ in rights will continue to evolve into dominant supranational tribunals. It is equally likely that these two adjudicative systems will generate law increasingly affecting the world’s population and impacting on national legal cultures. More mature examples of similar

developments, however, are needed to conjure up a vision of the future of this global legal culture.

B. The EU/US experience as a guide to the future of a global judicial regime

To envision the evolution of a global legal culture, we turn to the European and US experiences. Both have developed adjudicative bodies to further trade and human rights goals. US courts have contributed to the constitutional goal to “form a more perfect union.” Europeans seek “an ever-closer union” and have established adjudicative bodies that further that goal.31 Both demonstrate how a cooperative enterprise can result in unified trade and rights regimes.32 Both also demonstrate the symbiotic relationship

30 Watson, supra. note 24 at 27.

31 The EU has always been understood as a work in progress and its members have agreed to “an ever closer union.” Preamble, Consolidated Version of the Treaty Establishing the European Community, Oct. 2, 1997, O.J. at 340) 1. Recently, the German government has proposed a true federal government much like its own but the other members are not ready for formalization of that degree of unification. The German state itself resulted from the progression asserted here. The several Germanic entities began to coalesce in 1833 with the establishment of the Zollerein, a German customs



32 Mark Tushnet, Federalism and Liberalism, 4 CARDOZO J. INT’L & COMP. L. 329 (1996) (observing a natural tendency toward centralization).

between the central legal authority and their constituent states. The European and US rights and trade adjudicative bodies then offer some basis for predictions about the evolution of global rights and trade regimes.

Like its European counterparts, the US Supreme Court with the lower federal courts exercises power over both the federal governmental institutions and its states. Article III vests “judicial power” in the Supreme Court and potential “inferior courts.”33 Judicial power “shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties. . . .”34 The US Constitution unites judicial power over the various rights and commerce powers and hence US central courts are different from European judicial bodies discussed below in that they combine both trade and rights enforcement.

Movsesian notes the similarities between the emerging WTO dispute settlement authority and the early years of the US Supreme Court:

The history of Supreme Court review has interesting implications for today’s debate on the WTO. While there are significant differences between the two institutions … the Court and the WTO are alike in one essential aspect. Both are centralized tribunals that purport to decide whether constituents’ laws conform to external standards. And, just as the antebellum Court had to establish its authority to determine whether state laws conformed to federal norms, the WTO must establish its authority to determine whether national laws conform to international norms. Indeed, . . ., the arguments made in today’s debate on the WTO greatly resemble those made earlier in the context of Supreme Court review.35

The US has experienced a continuous tension between federalism and nationalism and between the courts and political institutions. Still, the power of the federal courts in both rights and trade have grown since its founding and provide some justification for predicting similar tension and evolution in world government.

Although US lawyers have some 200 years of historical experience, the recent EU experience might better serve to form an understanding of centralization generated by

33 U.S. CONST. art. III, § 1.

34 U.S. CONST. art. III, § 2.

35 Movsesian, supra note 11, at 813.

supranational government.36 For some fifty years, the EU has sought a “single market” in Europe.37 The European experience predicts that the WTO trade regime and, more to the point, its adjudicative institutions can only get stronger.38 The nominal goal of the EU was economic cooperation but the EU has become comprehensive.39 The EU’s well

36 Thijmen Koopmans, The Birth of European Law at the CrossRoads of Legal Tradition, 39 AM. J. COMP. L. 493, 505 (1991) (“Personally, I am tempted to think that the Court of Justice has become one of the major sources of legal innovation in Europe not only because of its position as the Community’s judicial institution, but also because of the intellectual strength of its comparative methods.”).

37 The European Economic Community, known popularly as the “Common Market,” was established in 1957 by the Treaty of Rome. A second Treaty of Rome created the European Atomic Energy Community (Euratom), separated to accommodate the French. A previous treaty, the European Coal and Steel Community, created the first of three communities and was in some senses the prototype. Together these treaties created the three “communities” united in 1992 by the Treaty of European Union (Maastricht). This initial treaty has been amended on occasion to form a constitution or “basic law.” Each iteration resulted in more centralization of authority, memorialized by the name change to the “European Union.” Article references below are to the renumbered consolidated treaty and will be designated as “EU Treaty Article . . .”. Consolidated Version of the Treaty Establishing the European Community, Oct. 2, 1997.

38 While member states such as Germany, Italy, and the United Kingdom originally felt resistant to give up a certain amount of sovereignty to the EU, all now seem to have accepted the superiority of EU law. See IN RE Application of Wünsche Handelsgessellschaft, 73 BverfGE 339, [1987] 3 CMLR 225 (Germany)

39 George Bermann observed: “Difficult as it may now be to believe, the founders of the Community appear to have expected the Community institutions to intervene only in very specific ways in the Member State economies.” George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 COLUM. L. REV. 331, 355 (1994). The evolutionary process from this narrow vision, now so “[d]ifficult . . . to believe,” to the EU’s robust and broad authority provides valuable insights forces at work in a global trade regime.

defined and aggressive legislative structure has played a crucial role in centralization.40 But it is the role of judicial review of national or “member state” actions that provides the relevant experience for predicting the impact of global tribunals.41

The judicial authority of the EU is delegated to the European Court of Justice (ECJ). The ECJ has jurisdiction to enforce the basic law against both EU institutions and member states.42 EU Treaty Article 220 provides simply: “The Court of Justice shall

40 EU Treaty Article 4 establishes five institutions: the European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors. The first three are the political institutions. The allocation of authority among these three institutions may be startling to US lawyers unfamiliar with the EU’s legislative process whereas it may not seem extraordinary to those familiar with parliamentary governments. Some may be surprised by the European parliament’s passive role in the legislative process. The Commission, which also administers the laws, has sole authority to initiate legislation and the Council has final enactment authority. These two institutions are constituted so as to represent the member states. The Parliament, which is directly elected by EU citizens, has various types of review and/or approval authority. In general, parliament has the power to stop or at least make legislation more difficult but the Council, with the advice of the Commission, has the final say. The latter two institutions may be comparable in a parliamentary system to the “government,” the leadership of the dominant party or parties, which controls legislation as well as the executive and hence Europeans may be more comfortable with this allocation of power. Still, each major treaty has given parliament more power in response to claims of a “democracy deficit” and this trend is likely to continue.

41 For a description of the evolution of integration in the EU see Karen J. Alter, The European Court ‘s Political Power, 7/1/96 W. EUR. POL. 458 (1996) (“The ECJ has become an important and influential actor in Europe and courts have become political actors in all sorts of policy areas. Given that lower national judiciaries in Europe have historically played a much less significant role in policy-making than they have in the United States, this transition is especially significant.” Id. at circa note 72).

42 The basic law does not contain a supremacy clause as does the US Constitution. However, the EU Court, in an early display of its activism, recognized the supremacy of EU law within its area of interest. Costa v. Ente Nazionale Per L’Engergia Elettrica (ENEL), in 1964, firmly established that principle and has not been seriously challenged.

The transfer, by member-States, from their national order, in favour of the Community order of the rights and obligations arising from the Treaty, carries

ensure that in the interpretation and application of this Treaty the law is observed.” The Court may void an act of an EU institution under EU Treaty Article 231. More to the point here, the Court, under EU Treaty Article 228, may review actions by the member states to determine if they have “failed to fulfil an obligation” under the treaty.43 Both the treaties, as the basic laws, and legislation and regulation implementing them may be enforced through member actions. But EU laws may also have “direct effect,” giving them force in private litigation.44

Like the US Supreme Court, the ECJ has been extremely activist and the law it

with it a clear limitation of their sovereign right upon which a subsequent unilateral law, incompatible with the aims of the Community, cannot prevail. As a consequence, Article 177 [reference from a national court to the EU Court] should be applied regardless of any national law in those cases where a question of interpretation of the Treaty arises.

Case No. 6/64, 1964 E.C.R. 585, [1964] C.M.L.R. 425, 456 (1964). Currently, EU Treaty Article 10 (former the Article 5 applied in Costa) provides that “[m]ember States shall take all appropriate measures . . . to ensure fulfilment of the obligations arising out of this Treaty and resulting from actions taken by the institutions of the Community.” Further, its second paragraph: “They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.” Combined with the Court’s enforcement jurisdiction, it becomes quite easy for an activist court to assert the supremacy of EU law, even without a supremacy clause as such.

43 Article 228 provides that a state must take necessary action to comply with the Court’s judgment and, if it fails to do so, the Court may impose a “penalty payment.”

44 EU issues may be raised before national courts and the national court may refer such questions to the EU Court. The EU founders took the alternative approach to a “federal” court system in contrast to the drafters of the US Constitution. They created only one central court and relied on national courts to a large degree. Moreover, unlike the US federal system, the EU Court may directly obtain a case from any national tribunal, from the highest national court to the lowest, even tribunals outside the judicial system. EU Treaty Article 234 authorizes “preliminary rulings” from “any court or tribunal of a member state” on treaty interpretations, validity of EU acts, and interpretation of “statutes of bodies established” by the Council.

created in the EU’s formative stage forms the bedrock of a strong central authority.45 Bermann summarized its role: “The Court of Justice has thus taken virtually every opportunity that presented itself to enhance the normative supremacy and effectiveness of Community law in the national legal order.”46 Even though it has recently been more cautious, as discussed below, legal doctrines it created are still a major centralizing force in Europe.47 Alter found: “The European Union’s legal system has become the most effective international legal system in existence. . . .”48

The “Solange” series of cases involving conflict between the German Constitutional Court and the ECJ demonstrates the natural movement toward acceptance of supranational judicial power.49 The first case arose in the late 1960s from a grievance involving a licence application by an import-export company, Internationale Handlelsgesellschaft. The German administrative court referred the case to the ECJ on

45 Koopman, supra note 36 at 502 (“As the Court slowly started to act as the Community’s constitutional court, reviewing Community legislation and declaring national laws incomparable with Community law, the most obvious model was the federal constitutional court in Karlsruhe: France has no comparable tradition.”)

46 Bermann, supra note 16, at 353.

47 Koopman, supra note 36, at 495 (“Experience of the last thirty years shows that legal integration is actually proceeding well, albeit at a slow pace.”).


49 Mark Killian Brewer, Note: The European Union and Legitimacy: Time for a European Constitution, 34 CORNELL INT’L L.J. 555 (2001) (and the cases and authorities cited therein.).

the question of whether the EU regulation violated German “basic law.”50 The ECJ responded: “[T]he validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure.”51 It argued that even violations of fundamental human rights protected by a national constitution cannot stand against EU law.52 The German Constitutional Court, however, ruled that EU law could not take precedence over fundamental rights guaranteed by Germany’s basic law.53 In the second Solange case in 1974, the German Constitutional Court soften its insistence on German sovereignty in the face of EU law.54 Still, the German Court made it clear that it retained the authority to determine whether rights guaranteed by its constitution were adequately protected by EU law.55 In the third case, based on the new Treaty for European Union, the German Court adopted a new spirit of cooperation and moved closer to acceptance of a European legal order.56

The European Court of Human Rights (ECHR) provides experience in the

50Article 234 (ex Article 177) of the Consolidated EU treaty, supra note 31, authorizes any “court or tribunal of a member state” to request that the ECJ “give preliminary rulings” on interpretations of EU law and on the validity of acts of EU institutions. Its purpose is to foster cooperation between the national courts and the ECJ.

Koen Lenaerts et al., PROCEDURAL LAW OF THE EUROPEAN UNION 18-19 (1999).

Indeed, it has made the national courts active partners in the European law regime.

51 Internationale Handelsgesellschaft, 1970 E.C.R. 1125, 1135 (1970).

52 Id. at 1133-1139.



CONTEXT, 89-90 (Anne-Marie Slaughter et al. eds., 1998).

55 Brewer supra note 49, at 572.

56 However, true federalization of Europe is still a work in progress: “Solange III again proved that the European Community essentially remain an inter-governmental institution in which the Member States retain ultimate control over the European Court of Justice. Brewer supra note 49, at 574.

evolution of supranational tribunals dealing with rights.57 The process begins by an individual alleging a violation of their human rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedom (Convention)58 to a quasi-judicial tribunal, the European Commission on Human Rights. If negotiations fail, the Commission issues a decision determining whether the state party violated the Convention. The ECHR reviews the evidence and legal arguments de novo and renders a final judgement.59 The ECHR acquires jurisdiction if either the Commission or the defending state party appeals (an individual may not appeal).60 States undertake in the treaty to abide by the decision but the legal effect they give the Court’s judgment varies considerably. The rate of compliance by states is nonetheless extremely high.61

The ECHR’s road to effectiveness should guide a global rights tribunal.62 The first factor that has increased its influence is the Court’s willingness to find for individual litigants against their state and its ability to broadcast its performance in that regard. The second factor has been its ability to mobilize its users and consumers, individuals and their lawyers, voluntary associations and nongovernmental organizations.63 A third crucial factor is demonstrable neutrality.64

Nonetheless, the relationship between the ECHR and its member states has made it somewhat less of a force than the ECJ. In recognition of which, the ECJ has been required since the Amsterdam Treaty to apply human rights standards as set out in the

57 Helfer & Slaughter, supra note 2, at 294.

58 Nov 4. 1950, 213 U.N.T.S. 222.


60 Id. at 229-230 (But the Court endeavors “that the Court should have knowledge of and, if need be, take into consideration, the Applicant’s point of view.”).

61 Helfer & Slaughter, supra note 2, at 296.

62 Helfer & Slaughter, supra note 2, at 311.

63 Id. at 312.

64 Helfer & Slaughter list several other factors that might contribute to empowering a global rights court.

Convention to the EU institutions and member states.65 The ECJ has not found itself bound by ECHR decisions but it refers to them in reaching its own rights related judgments.66 In addition to ECHR rulings, the ECJ looks to the constitutions and principles of the member states for human rights standards.67 In short, the ECJ, despite its trade portfolio, has become an active rights enforcer.

Both the US and the EU demonstrate the interaction between a centralizing legal regimes and that of their constituent parts. These experiences are instructive because the global judicial regime will force national legal cultures to deal with a complex matrix in which various existing national and global legal principles interact. The ECJ has served as a battle ground for competing national laws of its member states. In AM & S Europe v. Commission, a British company refused to provide certain documents ordered by the Commission, citing legal privilege, an absolute privilege under English common law.68 EU regulations involved in the Commission’s order made no mention of legal professional privilege, but it did provide detailed provisions on investigation procedures. When the case came to the ECJ, British legal professionals gave support to the company, while the French government, which was not otherwise involved in the case, offered support to the Commission.69 The French government argued that a member state’s criminal law principle could not be extended into administrative law. After hearing multiple arguments, the ECJ ultimately decided to recognize the principle of protection of confidentiality. This is a clear example of the interaction of national laws in the formation of a broadly applicable law developed by supranational judicial bodies.

Slaughter observed both the “vertical” relations and “horizontal” relations among

65 Elizabeth F. Defeis, Human Rights and the European Union: Who Decides? Possible Conflicts Between the European Court of Justice and the European Court of Human Rights, 19 DICK. J. INT’L L. 301, 306 (2001).

66 Case 2/94, Re: The Accession of the Community to the European Human Rights Convention, 2 C.M.L.R. 265 (1996).

67 Defeis, supra note 65, at 317.

68 AM & S Europe Limited v. Commission of the European Communities, [ 1982] E.C.R. 1575, 1616.

69 Thijmen Koopmans, supra note 36, at 498-99.

national and supranational courts.70 That is, supranational tribunals necessarily look to the law of its members and the law of its members is ultimately affected by the law devised by the supranational tribunals. The legal development moves “up” and “down” the supranational legal regime, as it has in both the US and the EU. In addition, however, the practical legal interaction required by participation in a supranational regime leads to borrowing and revision among national legal cultures. Even the US Supreme Court, “regarded by many foreign judges and lawyers as resolutely parochial,” has increasingly observed foreign principles.71 This supranational interaction introduces a new complexity into national law.

Against the US/EU experience as a basis for forming a future global legal culture is the undeniable fact that there is much greater diversity among the world players, even just the substantial players, than faced the US goal of a “more perfect union” or the European goal of “an ever closer union.” The WTO encompasses a plethora of trade related legal cultures. Perhaps even more daunting is the emotional and philosophical melange of rights thinking that face a global rights judicial regime.72 Remember, however, that Europeans came together within about a decade of having been killing each other in record numbers with the two of the major combatants, in fact, forming the

70 See generally, Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT’L L. 1103, 1112 (2000) (leading to an emerging “judicial comity”).

71 Id. at 1118 (led by Justices Breyer, O’Connor and Chief Justice Rehnquist). The acceptance of international law into US domestic law is growing. Paust, supra note 22, at 791. The acceptance of EU review principles into the English, i.e. common law, legal culture might presage an increasing impact of globalization on US national review law. The change in judicial attitude in England attributed to the duty to enforce EU law is


15 (7th ed. 1994). Continental review principles themselves are also finding their way


may create an osmotic or ‘spill-over’ effect of European law, whereby principles which need only be applied by the national court when it is concerned with community law may nevertheless filter through into the court’s elaboration of domestic law.” Id. at 39. Whether borrowing is conscious or not, the general continental usage of the principle no doubt provides legitimacy to arguments for its adoption in England.

72 Disparate constituencies. Helfer & Slaughter, supra note 2, at 363.

founding core. Nor are Europeans so homogeneous.73 Religious and ethnic wars are a constant in European history. Its legal cultures are far from homogeneous.74 The US encompasses an even greater ethnic and cultural mix, although few of these can claim dominance over any geographic or political unit, and it found unification an advantage in both trade and rights over time.

On the other hand, considerable commonality exists in the world, at least the legal world.75 While the world offers more diversity than either the EU or the US, their experience predicts that unified judicial regimes will generates a common legal culture in trade and rights.76 The experience in the US and Europe provides some confidence that a

73 Mark Killian Brewer, supra, note 49, at 563-64 (2001) (asserting that Europeans are not a cohesive group bound together by culture, language and other factors.).

74 Koopman, supra note 36, at 493 (Contrasting the relative cohesion of the US with Europe: “In the European Community, the legal systems of the Member States are not only quite dissimilar, but some of them have even given origin to legal traditions which belong to the great legal traditions of the world.”).

75 A global legal culture ultimately must fold in other legal cultures. At present. some 1.2 billion Muslims seem particularly antagonistic to transatlantic culture in general

ENCYCLOPEDIA BRITANNICA BOOK OF THE YEAR , and they are covered by Islamic law,

“Sharia,” in some form, and for many it is the dominant or sole legal system. This antagonism might seem an obvious counterexample to a commonality claim but Bernard Lewis argued that the conflict between Islam and the transatlantic society is not due to lack of common understanding. He observed: “Islam and Christendom had a great shared inheritance, which drew on common sources: the science and philosophy of Greece, the law and government of Rome, the ethical monotheism of Judaea, beyond all of them, the deeply rooted cultures of the ancient Middle East. . . . True, they denounce each other as infidels, but in so doing, they reveal their essential similarity, even kinship.” BERNARD


DISCOVERY 14-15 (1995). On the other hand, De Seif observed: “Great cultural differences exist among various areas inhabited by Muslims. . . . The fact is that, despite this idealized concept [of solidarity], relations between Muslims differs little from relations between Christians, as shown by the internecine struggles. . . .” RODOLPHE J.A.


76 That a culture might adopt useful legal system of a historically antagonistic culture is convincingly confirmed by the fact that Israel adopted German civil law.

global judicial regime will be able to adjust in both trade and rights. A global legal culture in both areas is possible and judicial body or bodies will be effective in confronting and evolving the necessary legal cultures. The key will be identifying foundational principles acceptable most member nations and their citizens.

C. Major aspects of the EU/US impact on a global legal culture

As observed above, the global legal culture will be based on an amalgam of the world’s legal and governmental cultures. For the foreseeable future legal development will be dominated by US concepts, representing the common law world and the presidential governmental model, and the EU, representing the civil law tradition and the parliamentary governmental system. This foundation is predictable not only because these two transatlantic authorities, and the legal and governmental cultures they represent, will dominate at least this early stage but because these cultures have migrated around the world, forming in some ways two fundamental models for legal and governmental institutions. Combined civil law and common law based legal cultures cover over 70% of the world’s population in over 62% of the jurisdictions.77 Similarly, most modern governments follow either the presidential or parliamentary models, or some hybrid and, as will be discussed, these governmental models will affect the emerging legal culture. In sum, global legal culture will reflect a merger of civil and common law principles as transmuted in these two legal and governmental cultures.

The EU legal principles, despite UK membership, is founded on the civil law model.78 As would be expected, it relied largely on the laws of France and Germany.79 The precursor of Germany law was the Prussian civil code, the first civil code.80 The


77 University of Ottawa, supra note 3.





LAW 132-133 (1999) (While the Prussian code, sponsored by Frederick the Great, is considered the first modern code, the code concept reaches back to Roman law.)


original French code, however, is considered the model for civil law systems.81 In short, EU law is only one step removed from the bedrock of the civil law system and hence represents on the world stage that system.

The civil law model has spread throughout the world and now covers over half of the worlds population.82 It’s reception by other cultures is well-documented. Generally, it has been a device, as it was in France, for breaking with traditional law and government.83 However, it is not inherently revolutionary and the German adoption, as discussed below, actually sought to enshrine traditional laws.84 Each system that has adopted the civil law model has added its own character.85 Nonetheless, the French version serves as the prototypical model.86 Its design had the most influence on the EU treaties.87 For that reason, it is used here to explore the global ramifications of an extension of the civil law model.

Less often the result of a reform movement and perhaps more because once “the sun never set on the British empire,” the common law model has been adopted around the world, in over a quarter of the jurisdictions.88 Glenn observed:

The common law expanded throughout much of the world as a result of the British empire. . . . The result . . . was a kind of embedding of common law thinking in a large number of diverse societies around the world. . . . What

81 THOMAS GLYN WATKIN, supra note 80, at 146 (“The codification of Napoleon has . . . had the most widespread impact upon the world at large.”). But see id. at 146.


109 (Tony Wier trans., 3d ed. 1998)

83 Id. at 143. Pin cite needed.

84 Id. at 143.

85 Id. at chapter 8.

86 However, in the particulars, the German version has been most often adopted because it attempts detail whereas the French code aims only at framework. Id. at 144-45, 147, 154.

87 VRANKEN, supra note 78, at 49.

88 University of Ottawa, supra note 3. 23

has happened, generally, is the marriage of the idea of a common law with that of multiple nation-states, and the marriage has been at times a difficult



Perhaps then, the formal adoption of the common law model significantly understates the impact of common law thinking.

EU and US experience also differ in the allocation of judicial power over trade and rights. The two have followed divergent tracks consistent with the US and Continental European judicial structures. The US rights enforcing judicial regime was combined with its trade unification judicial regime in the US Supreme Court and the lower federal courts. Europe has a separate rights enforcing judicial regime, the ECHR. The trade issues are adjudicated by the ECJ.90 The unification of the trade and the rights judicial regime in a single global tribunal is clearly possible, but the European experience, at present, predicts against the unification of the trade and rights judicial systems. The informal coordination between the European trade adjudicator, the ECJ, and the European rights adjudicator, the ECHR, suggests that the two global judicial regime will increasingly work in tandem. So that, at the very least, they will evolve an increasingly coordinated global legal culture with both fundamental components. On the other hand, US lawyers are likely to instinctively at least favor unification because they are accustom to a single federal court system handling both. Our reflection does not require a clear commitment to either development.

These two models and the entire supranational legal enterprise assumes a commitment to liberal democracy. Helfer and Slaughter observed: “The European experience of supranational adjudication is the experience of two supranational tribunals [ECJ and ECHR] operating within a community of liberal democracies with strong domestic commitment to the rule of law.”91 They go on to demonstrate that a commitment to liberal democracy is necessary for the commitment to (peaceful) supranational adjudication. A general global commitment to liberal democracy seems


DIVERSITY IN LAW 228-229 (2000).

90 In 1989, the Court of First Instance was established to take on some of the workload. This Court has limited potential jurisdiction under EU Treaty Article 225, and even less actual jurisdiction as it is currently empowered. The ECJ has appellate authority over the Court of First Instance and retains much of its original jurisdiction.

91 Helfer & Slaughter, supra note 2, at 331.

plausible at this point and hence that condition should be met.

The political models that form the foundation of liberal democracy will also affect the development of a global judicial regime. Of course, the EU and US also represent the two dominant types of democratic government: parliamentary and presidential. These two governmental models incorporate the courts in quite different ways. That difference will also have to be “negotiated” in evolving global judicial regime. The overarching difference with the most impact on the courts is the different sense of proper “separation of powers” The presidential model separates the two political functions, legislative and executive, and the judiciary is a coordinate branch. The parliamentary model separates the judiciary from the unified political functions. The US government, of course, is presidential and represents that view of the role of the courts in government. The EU combines parliamentary governments and its instincts and its citizens’ governmental understanding starts with the parliamentary model and its vision of the courts.92 The separation of the judiciary from social policy decisions in parliamentary government reenforces a similar civil law philosophy. As will be discussed, the judicial place in government in the presidential system as opposed to the parliamentary system will be a source of ideological more than structural tension in the global regime.

The EU and the US are constantly dealing with the tension between nationalism and centralization. Alter summed up the evolution of the European shift in sovereignty:

The transformation of the European legal system is no longer seen as controversial. The incredible success of the ECJ makes it hard to imagine a European Union where European law is not supreme over national law. But . . . member states intended to create a limited legal system so as to protect national sovereignty.93

Still, the EU, despite the pressure for an ever-closer union, has not been immune from

92 Although it may embody more of a presidential model sense of separation of powers. Francesca E. Bignami, The Democratic Deficit in European Community Rulemaking: A Call for Notice and Comment in Comitology, 40 HARV. INT’L L. J. 451, 468-69 (1999) (“Methods of holding administration accountable in parliamentary systems offer little guidance for the Community. In Brussels, unlike national systems, the legislative principle is divided. . . . United States institutions can contribute to the Community administrative reform debate because in the United States as well a divided lawmaking principal must hold the administration accountable.” (emphasis added)).

93 ALTER, supra note 48, at 183.

the devolution movement. The EU has embodied its notion of this conflict in the doctrine of “subsidiarity.” The doctrine of subsidiarity expresses a growing sense that the EU was detracting from members’ authority beyond that intended or wished by the members and their citizens.94 In short, it expresses a preference for social policy decision making at the level nearest those who will be affected while still achieving the desired shared goal. EU Treaty Article 5 now expressly provides:

In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore . . . be better achieved by the Community.

The EU “federalism” controversy is very familiar to US lawyers. In US constitutional law, the poles in this allocation are termed “nationalist,” strong federal authority, and “federalist,” considerable retention of authority by the states.95 This conflict has raged since the constitutional convention.96 As in the EU, unification and localism ebb and flow.97

US federalism and subsidiarity contrast in ways that might inform any predictions

94 The doctrine began to emerge from several different venues in the early 1980s. The 1992 “Maastricht Treaty,” formally the Treaty on European Union (TEU), incorporated the concept into the basic law. For a discussion of the Amsterdam Treaty’s treatment of subsidiary and the experience with that principle between the TEU and the Amsterdam Treaty, see Christian Timmermans, Subsidiarity and Transparency, 22 FORDHAM INT’L L.J. 106 (1999) (concluding: “Judge Pescatore . . . feared that subsidiarity would set us back into the dark times of anarchy of the nation states. I am happy to say now in 1998 that after five years of subsidiarity, the Community is still very much alive”). Pin cite needed.

95 See Richard H. Fallon, Jr., The Ideologies of Federal Courts Law, 74 VA. L. REV. 1141 (1988).


97 Recently, the U.S. Supreme Court has tipped the law towards regionalism. e.g. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

about the future of shared authority between global authority and its national members. Bermann distinguished the two concepts: “U.S. federalism places greater emphasis on the presence of an overall balance of power between the federal government and the states than on respect for any single rule for allocating competences among the different levels of government.”98 US federalism principles may look to an array of justifications for centralized decision making in a particular area of public policy. The federal government may decide that a solution should be sought at the national level without having to formally justify that choice. Subsidiarity focuses only on: “the relative capacities of federal and state government to deal effectively or adequately with the problem or policy at hand.”99 Subsidiarity is a formal restraint in which the central government may take action only if it can demonstrate that it is the best actor. Otherwise, the solution to a perceived problem must be left to the local authority. Therefore, EU subsidiarity places the burden on the EU institutions, including the EU Court, to demonstrate that centralization is superior whereas US federalism allows the political institutions to make the choice. EU subsidiarity then both empowers a reviewing court to restrain central authority and restrains the central adjudicative bodies from themselves asserting power. US federalism inhibits judicial interference in centralization of a solution but only if it attempts to circumvent legitimate political judgments.

All this identifies issues from the EU/US governmental experiences which assist in developing a framework for envisioning the future of a global legal culture. Their experiences show the process toward some degree of centralization and the legal relationships between central authorities and their sovereign units. They show the role likely played by the adjudicating tribunals of the central authority and the tensions that role creates. These sources help us envision similar evolution in global government and the role of global tribunals. We move then to laying the foundation for contemplating that future.

II. Civil Law Thinking in a Global Perspective

This part has two interrelated goals. First, I expect that most of the readers of this work will have only limited knowledge of basic civil law principles. This section then tries to provide an overview of civil law thinking. Second, in order to do so in a way that moves the inquiry forward, it also attempts to identify some major issues that might arise as those concepts are projected into a global legal culture. These observations anticipate the discussion in Part III in which the civil law meets common law thinking on the

98 Bermann, supra note 39, at 450.

99 Id. at 451.

world’s legal stage. While a common law scholar might seem a curious person to attempt these objectives, I might claim both an advantage in explaining civil law concepts to common law readers and in anticipating outsiders’ reaction to those concepts as they might be brought forward into the global arena.

A. The concept of a “code”

It is well recognized that the keystone of the civil law system is “the code.” The concept of the code, however, is much more ideological than common lawyers recognize. In approaching the civil law, common lawyers must dismiss the popular distinction that civil law is statutory law as opposed to judge-made common law. As Merryman in his famous guide to the civil law for US lawyers wrote:

The distinction between legislative and judicial production of law can be misleading. There is probably at least as much legislation in force in a typical American state as there is in a typical European or Latin American nation. . . . The authority of legislation [in the US] is superior to that of judicial decisions


The first step then is to explore the ideology expressed by the code oriented strategy.

The need for this understanding is particularly acute because supranational legal principles will necessarily evolve from multinational agreements. Civil lawyers will approach both the drafting and interpretation of those basic agreements as they might a code.101 The EU treaties support this conclusion.102 As Vranken observed: “Similarities


101 There may also be added pressure for more code-like legislation in the common law member states of organizations such as the EU. For example, there has been a great deal of debate over the possibility of criminal and commercial codes in England, though many English legal scholars are opposed to such ideas. See Lord Goff of Chieveley, The Future of the Common Law, 46 INT’L & COMP. L. Q. 745, 750 (1997). ( “Since English commercial law seems to be so widely used and English commercial lawyers seem to be

exist between the 1957 Treaty of Rome . . . and the 19th Century codes, in particular the French Code Civil. The Treaty is a framework treaty (traite cadre): it lays down a grand design only. Yet somehow the treaty can make the same claim to comprehensiveness as a civil code.”103 This similarity is far from a surprise because civil law drafters instinctively conceived of their mission as creating a European code. More to the point, civil lawyers in the global context can be expected to seek to fashion global agreements with the same instincts and they will view the final product as a code. What does this mean?

1. Objective in resort to a code system

The civil law ideology grew out of an experience that taught that courts may be the most dangerous branch and certainly not inherently the least dangerous.104 Starting with the French ancien regime in which the parliaments, regional courts, were oppressive and corrupt instruments of bourgeois authority as well as often the instrument for royal repression. Constraining judicial abuses was the goal of the code and that goal runs through civil law thinking.105 It is how the courts are constrained, however, that is the key to understanding the civil law ideology.

Because of this experience, the separation of powers between majoritarian government, the legislative process, and the judicial function is a bedrock objective.106

so widely consulted, why worry about a commercial code?”).

102 The current iteration of the EU treaties is at least as much constitutional in nature. Indeed, the EU treaties are now generally considered a de facto constitution. Brewer, supra note 49, at 559 n. 21, 29. Also, EU members are committed to developing an actual constitution in the near future. Laeken Declaration – The Future of European Union (Dec. 15, 2001). Still, they retain a code like nature as well.

103 VRANKEN, supra note 78, at 49.


105 ANDREW WEST ET. AL., THE FRENCH LEGAL SYSTEM 142 (2d ed. 1998) (“The

Republic has traditionally been wary of the power of the judiciary. This distrust is rooted in the way the Parliaments of the Ancient Regime abused their position and interfered in politics.”).

106 Bernard Rudden, Courts and Codes in England, France and Soviet Russia, 48 TUL. L. REV. 1010, 1012 (1974) (“The courts, however, may not make law. This

While recognizing three functions, law making, law implementing and law interpreting, it strives to insulate the legislative, law making, function from the judicial.107 This governmental objective conforms to the parliamentary model in which civil law systems reside. That model combines the executive and legislative because the legislative forms the executive leadership and is ultimately controlled by it. Thus, both the civil law model and the parliamentary model seek protection of democratic law making and implementing functions from an elite judiciary.

In their seminal comparative law explanation, David and Brierley attribute this division in some degree to all the systems in the entire “Romano-Germanic family.” The tendency is both traditional and natural:

Given the present unfailing tendency of jurists in all countries to look for support in a text of law, the creative role of judicial decisions is always, or nearly always, hidden behind the screen of an ‘interpretation’ of legislation. It is exceptional for jurists to abandon this habit or for judges to admit frankly that they have the power of creating rules. They persist in their attitude of obedience to enacted law, even when the legislature itself has recognized that they may be gaps in the legislation. . . .

Whatever the contribution of the courts to the evolution of the law, it certainly differs, therefore, from that of the legislators in countries of the Romano-Germanic family. Legislators, who nowadays are called upon to establish the framework of the legal order, do so by formulating commands and creating rules of law. Very rarely are courts authorised to use this method. . . . The few possible exceptions which may exist, while undoubtedly interesting, leave the principle nevertheless intact.108

Thus, the civil law actors adhere to this separation of functions but the impact on the legal culture is subtle.

prohibition stems from the doctrine of separation of powers . . .”).





This civil law/parliamentary vision of separation of powers is likely to guide the global judiciary. First, the civil law nations dominate the global arena and civil law public law principles do not seem to give way to common law principles.109 Second and perhaps more important, the global participants will not trust an activist and free wheeling judiciary. Third, most nations have some form of parliamentary system with strong legislative concept. Although the ECJ has been activist despite the fact that most of the EU members have a civil law legal culture and all have a parliamentary form of government (although some have a “hybrid”), it is unlikely that such activism will be acceptable on the global stage. The WTO ‘s Appellate Body’s decision in EC–Measures Afecting Livestock and Meat Products (Hormones),110 illustrates this concern. In EC–Measures Afecting Livestock, the Appellate Body admonished the Panel for imposing procedures on the parties that did not have a foundation in the treaty’s text. It was very concerned over the Panel’s lack of respect for an agreement that WTO Members consented to as a framework for guidance.

2. Natural law

The place of natural law is historically significant and hence important to understand the instincts of civil law. Zweigert and Kötz observed:

As a matter of intellectual history it is clear that the Code as whole would never have existed but for the idea of codification which comes from natural law. Furthermore the [French] Code Civil is based on the tenet of natural law that there are autonomous principles of nature, quite independent of religious belief, from which one can infer a system of legal rules which, if given intellectual form according to a plan, can act as the basis for an orderly, reasonable, and moral life in society.111

Civil law then is founded on what is called “secular natural law.”112

109 In mixed systems, public law is where the mix happens, PALMER, supra note 76, at 10 (“One searches in vain for a system where continental law predominates in the public sphere while Anglo-American law dominates in private.”).

110 WT/DS26/48AB/R para. 181 (Feb. 13, 1998),

111 ZWEIGERT & KÖTZ, supra note 82, at 88.

112 MERRYMAN, supra note 100, at 18-19.

Understanding the civil law ideology requires a recognition that somewhere in the subconscious, at least, of the civil law is the ghost of natural law. Yet, modern jurisprudence worldwide have much less respect for the concept of natural law even as a legitimate evolutionary root. Even civilians have questioned a natural law foundation, although perhaps they cannot totally distance themselves from some visceral imperative.113 Nonetheless, whatever civilians now believe about universal principles, civil law is imbued with natural law type of thinking.

Natural law orientation will affect the civil law’s impact in the global stage because other cultures will cling to their own set of universal principles.114 It will be hard to negotiate these differences in global tribunals because they are based on cultural experience and tradition. Thus, the more civilians seem attached to a natural law the more controversy will revolve around fundamental principles. It is well accepted that negotiation is most likely to breakdown when fundamental principles are at stake. In short, the natural law root can be expected to be one source of tension in the global adaption of the civil law model.

Indeed, even the secularism will be questioned in many legal cultures. What is known as the jus commune, the sources of civil law, includes canon, i.e. catholic, law along with Roman and local law.115 Although to a large extent the code approach was intended to free the legal culture from religious principles, the resulting code is imbued with those principles. The potential religious undertones of any tension between the principles of civil law and other legal cultures cannot be ignored.

3. Rationalizing the law

The philosophical context from which the civil code emerges justified a scientific approach to law making and development. Indeed, Merryman observed that “[Civil law scholars] deliberately and conscientiously sought to emulate natural scientists.”116 The codes are the product of the “Age of Reason.” “The civil codes are premised on the

113 See WATKIN, supra note 80, at 139.

114 Indeed US law incorporates natural law principles as much as we would deny it such as the rights of man. Id. at 16-17.

115 Id. at 11-12.

116 Id. at 62.

belief that life is not full of random events, but rather that there is order.”117 The instinct then of the civil law is that the law is subject to scientific study and formulation.118 Starting with that conception of the law, it seemed quite reasonable that a small body of experts, “jurist,” should lay the foundation of the legal culture.119

A substantial difference exists, however, between the French approach and the German approach.120 The French code was revolutionary in that it sought to wipe away prior law and establish a new legal order

Just as it is not fruitful to assert universal principles today, the world may be skeptical of neutral, scientific approach to the legal system.121 First, agreement on best principles is extremely difficult. While the search might be for some sort of principled consensus, that consensus will result from a “negotiation” of legal traditions rather than a scientific distillation of immutable axioms. Second, much of the science in the civil law system was historical, the derivation of law from ancient “wise” cultures. History and social traditions are not universal and non-transatlantic cultures will look to their own “wise” cultures. Moreover, the “wise” cultures have lost much of their gloss, particularly the wise cultures upon which the code is founded.

Still, the objectivity sought in the civil law drive for rationality may find acceptance in the global legal culture. Legal consensus cannot be developed from a

117 VRANKEN, supra note 78, at 35.


119 “Jurist” means an “academic lawyer.” VRANKEN, supra note 78, at 44 (“Both the French and German civil codes were the product of a small team of people”).

120 MERRYMAN, supra note 100, at 28-33.

121 For an English perspective, see Goff, supra note 101 at 760 (“Let us therefore continue to worship at the shrine of the working hypothesis, and continue too to contemplate the great idea with all the caution bred of common sense and our long experience”).

“town meeting” even of representatives of legal cultures. Hence, the global “legislation” will necessarily be the work of a body of persons charged with developing a framework. Many of these individuals will be jurist and will attempt to find the “best” ideas. The structured adaptation and creativity of the civil law system may be compatible with the evolution of the law in the global arena.

4. A code is a framework

Whatever its philosophical roots, the overarching strategy of a code is to create a framework for society. The framework seeks the smallest possible number of elements

Given the philosophical difference, it is not surprising that the French code and the German code differ in this respect. The French code was to be so simple and straightforward that lawyers would be unnecessary. Its precursor, the Prussian Ladrecht of 1794, attempted, in contrast, to be so detailed as to govern every fact situation. Even after the failure of this attempt, the drafters of the German code sought a much more detailed and technical document. Its code strategy incorporated a role for legal professionals. Still, the two code models aim at a framework around which the total legal system can be built.

5. Symbol of change and unity

Despite their different philosophies, the German and French models share

fundamental code related goals that have recommended them around the world.125 They

122 LAWSON, supra note 118, at 67.

123 For an common law perspective, see Goff, supra note 101, at 753

(“Continental lawyers love to proclaim some great principle, and then knock it into shape afterwards. Instead the boring British want to find out first whether and, if so, how these great ideas are going to work in practice”).

124 Id. at 79

125 MERRYMAN, supra note 100, at 32.

incorporate a sharp separation of powers in which the legislature makes the law and the judges are prevented from doing so. Thus codes represent an affirmation of majoritarian government. They performed and continue to perform a unifying function, creating one law for an entire nation because they are necessarily the product an nationalism. It may be these characteristics that recommend the civil model to emerging states around the

world. For these people, the code offers tangible commitment to democratic government, rather than government by an elite, and the expression of nationhood.

And it might be these characteristics that makes civil law ideology particularly attractive to the global legal culture. Globalization will instinctively drive to unification and a code has been a technique for centralization. The code-like use of the treaties forming the EU demonstrates this unifying nature.126 The role of the “code” will no doubt be played by multinational agreement which will form somewhat a French style, or generalized, code.127

6. Anticipated interpretative method as a guide to drafting

The civil law system has developed sophisticated interpretative methods and the anticipation of the application of these techniques will affect the drafting instincts of the participants from civil law systems. For one thing, the civilian approach to language is consistent with general international law commitment to text.128 The WTO Appellate Body’s decision in India–Quantitative Restrictions on Imports of Agricultural, Textile

126The ambiguous nature of the treaties have generated a call for an actual

European code. Ugo Mattei, Hard Code Now!, 2 GLOBAL JURIST FRONTIERS 1 (2002).

127 The founding treaties of supranational organizations naturally take on the characteristics of a code. Undeniably, these agreements also have constitutional aspects. See McGinnis & Movsesian, supra, note 11. A code may be said to be much more operational than a constitution. Nonetheless, as discussed below, constitutional interpretation and code interpretation may have much in common.

128 Article 31 of the Vienna Convention on the Law of Treaties provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its obj ect and purpose.” Vienna Convention on the Law of Treaties, May 23, 1969 art. 31, 1155 U.N.T.S. 331, 340. But the Convention also allows modification by “subsequent practice.” Id. at art. 32.

and Industrial Products, demonstrates this instinct.129 In India–Quantitative Restrictions, the Appellate Body expends much effort in interpreting the correct meaning of “thereupon.” This illustrates the supranational organization’s concern, reflected in their judiciary’s decisions, of remaining within the treaty text.

The agreements and the implementing multinational governments will embellish these agreements in much the same way as the codes have been embellished, and thus, at least civil law participants will think in those terms. The civil law incorporates a hierarchy of legislation. In civil law countries there are both code provisions and statutes, and each has its own style.130 So statutes tend to cover very specific subjects and are drafted very specifically. Merryman calls these “microsystems” that revolve around the Code.131 These microsystems are created by legislative action decidedly political and not the work of an impartial team of legal experts. Within the microsystem is the executive actions and decrees. These administrative actions are important to implementation of the code framework.132 The code provisions tend to be more general in nature and more stable than these embellishments. “Thus new legislation should employ the concepts and institutions and follow the organization established by the scholars and embodied in earlier systematic legislation.”133

A civilian will work with global legislation as frameworks in the nature of a code. Even among civil law nations, however, the same provision has been given different meaning, evidencing, even among systems of some initial agreement, the pull of forces such as customary law or national experience.134 Thus, it is important to remember that civilians will bring to the global arena, not agreement on specifics, but a common legal philosophy, an ideology that will deeply affect the global legal culture. Civil law trained

129 India–Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, Sept. 22, 1999, WT/DS90/AB/R paras. 11-24.

130 The statues represent the influence of common law countries on modern civil law countries and particularly that of the United States.

131 MERRYMAN, supra note 100, at 151-52.

132 See Id. at 154-55. The overshadowing of legislative policymaking by administrative action in modern society seems to be universally lamented but inevitable.

133 Id. at 81.

134 Id. at 142 (variety in rules).

global judges may resist efforts to use sources other than the language of agreements to establish general principles. They may accept reference to other sources, including other judicial opinions, but that acceptance must be carefully understood in the civil law context.

Because of the objectives of resort to a code system, judicial interpretations are overshadowed by the interpretations of scholars and academic lawyers, “jurists.” Scholars are a crucial source of interpretation.135 Lawson observed: “Civil law is inconceivable without the jurist.”136 Civilians will instinctively expect drafting by teams of experts and will anticipate major contribution from jurists in future interpretations.137 However, not only will global judges themselves often not reflect the civil law model but the civil law’s reliance on academic decisionmakers will meet resistence among world participants. The extent to which learned individuals receive deference will be a point of tension.

B. Legal dynamics in the civil law system

A perception of the civil law system is that code interpretation is prohibited or, at least, closely constrained. True, at first, the French code drafting project thought to prohibit judicial interpretation and leave to the legislation, as the democratic institution, the sole authority to evolve the law from the code. But change and interpretation are inevitable and code afficionados have no illusions that it could be otherwise.138 Napoleon, himself, lamented shortly after the Code Civil came into effect: “The Code had hardly appeared when it was followed almost immediately, and as a supplement, by

135 Id. at 66.

136 LAWSON, supra note 118, at 69.

137 Examples of this instinct translated into supranational regimes are European Convention on Human Rights, P. VAN DIJK & G.J.H. HOFF, supra note 59 (Once the decision to proceed was made, the participants appointed a “Committee of Government Experts.”) and Belgian’s efforts to empower the ICJ. Geoffrey R. Watson, supra note 24, at 11-12.

138 JEAN-LOUIS HALPERIN, THE CIVIL CODE 1 5 (2001) (“The Code’s redactors

were . . . persuaded that such detail must remain the work of judges and commentators (jurisconsultes), and left a wide berth for judicial interpretation. Of course, article 5 of the Code forbids judicial decisions that aspire to legislative character (arrets de reglements).”).

commentaries, explanations, developments, interpretations, and what not.”139 Indeed, the original French code itself recognized the need for interpretation.140 “Consequently there is general agreement in civil law jurisdictions that judges do have the power to interpret evolutively.”141 Still, as Zweigert and Puttfarken observed: “Conspicuously lacking in

civil law jurisprudence is a methodology of the judicial development of the law, a methodology which would analyze, rationalize, and systematize the specific role of the judge in the process of find and making law.”142 The nature of the interpretative and evolutionary process itself distinguishes a code system.

It starts with a literal or structured approach. This expresses an atmosphere or attitude: a real commitment to language, often called a “grammatical” approach.143 The courts pay more than lip service to the idea that if the language is clear they must apply the language. Even when the statute is ambiguous, a judges must stick to the statute. Of course, the language does not often compel an outcome. Indeed, a French type code, particularly, is rarely so specific. Under those circumstances, the court is to engage in “logical interpretation.” De Cruz described the approach: “If application of the grammatical meaning approach suggests more than one possible interpretation, the text may be construed in accordance with the ‘logical interpretation’ approach.”144 Applying the logical interpretation approach, a judge may “construe the legislative provision not just on its stated terms, but with the context of the entire body of rules comprising the legal system, derived from the same statute, in other laws or from recognized general principles of law.”145

139 C. J. Friedrich, The Ideological and Philosophical Background, in THE CODE NAPOLEON AND THE COMMON LAW WORLD 1 (Bernard Schwartz ed., 1954).

140 ZWEIGERT & KÖTZ, supra note 82, at 120.

141 MERRYMAN, supra note 100, at 46.

142 Konrad Zweigert & Hans-Jurgen Puttfarken, Statutory Interpretation – Civilian Style, 44 TUL. L. REV. 704, 715 (1970) (“From a common law point of view this must be the most astounding feature of civil law.”).



144 Id. at 268.

145 Mitchel de S.-O.-l’E. Lasser, “Lit. Theory” Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse, 111 HARV.

The overarching goal of the civil law system is legal certainty.146 The German system serves this goal better in a way because its code is more precise than the French code. The French system may be moving in that direction.147 The balance between predictability and the process of change in the civil law system is important to understanding the operation of that system.

Certainty is guaranteed by clear concepts. Clear concepts and principles provide elements of innumerable combination which fit all individual situations.148 The concepts move decision making ahead as in chess according to clear and definite rules.149 Civil law aims for stability of the platform or framework but not total prohibition of change. As Merryman observed: “[Certainty] is an abstract legal value. Like a queen in chess, it can move in any direction.”150

The drive for certainty emphasizes systemic values which concentrated on definitions and classifications. Categorization may be seen as a kind of applied formalism.151 But unlike an extreme formalism which ultimately generates strict rules, categorization disciplines but does not inhibit development. Indeed, categorization can be extremely creative.152 Developing law that serves society is an important aspect of the civil law system, more important in theory than individual justice.153 It attempts,

L. REV. 689 (1998).

146 VRANKEN, supra note 78, at 37.

147 Id. at 60.

148 LAWSON, supra note 118, at 66.

149 Id. pin cite needed

150 MERRYMAN, supra note 100, at 48.

151 “[L]egal theories that stress the importance of rationally uncontroversial reasoning in legal decision, whether from highly particular rules or quite abstract principles.” Thomas Grey, Langdell’s Orthodoxy, 45 U. PITT. L. REV. 1, 9 (1983).


NATURE OF HISTORY, 98 (1989) (Observing the Taxonomy can lead to very creative scientific development.).

153 LAWSON, supra note 118, at 85.

however, to direct the mental process by which one evaluates or evolves ideas and its mental discipline has a natural tendency towards ordering.

Categorization structures experience and experimentation. The French jurist Tunc sought to explain this aspect of the civil law system:

If there is a sentence which a French lawyer has great difficulty in understanding, it is Holmes’ famous saying ‘The life of the law has not been logic: it has been experience.’ It is questionable whether the opposition between logic and experience has any justification. Exact sciences are equally based on experience and logic.154

Indeed, categorization demands reworking of classification with each new “sample” dispute resolution which adds to the experience of the law. Categorization recognizes that theory without application is empty and that application without order creates systemic chaos. Experience and theory are necessary partners in any progressive evolution of both practice and ideas. The categorization process does not slowly withdraw issues from reality as the rules become more wooden with use as might be seen in formalism.155 Rather, categorization orders a creative decision making process.

Categorization is dynamic as well as creative. It is quite useful for adapting to new circumstances and new social problems. United States Jurist Duncan Kennedy described the reciprocal nature of its developmental strategy whereby practice influences the system of premises and the system of premises influences practice.156 As to its operational strategy, he observed: “The basic mode of this influence of theory on results is that the ordering of myriad practices into a systematization occurs through simplifying

154Andre Tunc, Methodology of the Civil Law in France, 50 TUL. L. REV. 459, 468 (1976).

155 See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 1001 (1987) (“A nonbalancing approach . . . does not require a court to be blind to the consequences of constitutional rules or the social context in which constitutional rule or the social context in which constitutional questions arise”).

156 Duncan Kennedy, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. LAW & SOC. 3, 8 (1980) (“[Classical legal thought] is designed to tell us about the theoretical atmosphere within which practices occurred, and to tell us about the manner in which the theoretical atmosphere influenced particular results”).

and generalizing categories, abstractions that become the tools available when the practitioner (judge or advocate) approaches a new problem.”157 Categorization is a decisional tool that can incorporate all relevant values in the face of new circumstances. The dynamic and adaptive, yet necessarily applied, aspects of categorization form of bounded creativity of the civil law model.

The subtlety of this stable but dynamic approach to language may baffle non-civil lawyers on the global stage.158 Civil law participants in the global arena will seek to create and perceive the language as creating concepts. In individual application, they will expect the concepts in the international agreements to remain constant and applied in a principled way dictated by that language.159 Thus, tension over the manipulation of language, not disagreement over its flexibility, is likely between civilians and non¬civilians.

Civilians refer to the “teleological approach,” interpretation according to the design and purpose of the code.160 The theory is that every code provision is to be considered as a thread in one whole cloth. The significance of this strategy is that where there is an ambiguity in a code provision, the first place one looks is at other code provisions. Thus, judges in the civil law tradition can sometimes “read into” a code provision something which is taken from another provision which might, on its face, not

157 Id. (emphasis added).

158 In an early case where English courts had to interpret and apply European

Community regulations, Lord Denning described the problems English judges face. What a task is thus set before us! The Treaty is quite unlike any of the enactments to which we have become accustomed. The draftsmen of our statutes have striven to express themselves with the utmost exactness..they have sacrificed style and simplicity. . . How different is this treaty! It lays down general principles. It expresses its aims and purposes . . . but it lacks precision. . . . An English lawyer would look for an interpretation clause, but he would look in vain.

(Bulmer Ltd. v. Bollinger S.A., All. E.R. 1226, 1236 (1974).

159 Indeed, Palmer found that civilians may prefer the common law approach because it shows the adoption of common law principles. PALMER, supra note 76, at 46. (“Stare decisis may seem to be a needed check on judicial activism and provide safeguards against future erosion [of the civil law character].”).

160 DE CRUZ, supra note 143, at 270.

seem terribly relevant. The result may not, however, be directly contrary to a conclusion derived directly from a grammatical or logical interpretation. It does not preclude contradiction by reference to legislative history but original intent and legislative history are considered only after there is a determination that no answer can be found in the code. As Kötz put it: “As regards the civil law, it is an overstatement to say that a code is always completely self-contained and therefore excludes all reference to any source of law other than itself.” (emphasis added).161 Global tribunals may also follow the teleological approach.162

The goal of individual interpretation in the civil law system is not so much to decide individual disputes but to anticipate broader solutions.163 “[A]t no time can individual cases be allowed to blur the broader picture.”164 The code provides a stable platform from which to make these leaps into the future. This grants the courts a broad sort of discretion. Civil law decisions are expected to anticipate the future itself outside the context of the individual controversy. Predictability of legal implications for others in the same position is more important than the implications of the result for a particular individual, even if the rule is harsh in a specific case.165 Within this design is accommodation for equity in individual application. Consistent with the overarching strategy, the power to consider individual fairness must be delegated but the delegation may be implicit.166 And individual fairness must give way to legal certainty.167 Civil

161 Hein Kötz, Taking Civil Codes Less Seriously, 50 MODERN L. REV. 1, 11 (1987).

162 For example, in EC–Measures Afecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (April 5, 2001), the WTO’s Appellate Body was forced to interpret the Agreement’s numerous enunciations of “like products.” See id. at 96-98. In determining the correct definition, the Appellate Body noted that “the term ‘like product’ in Article III:4 must be interpreted to give proper scope and meaning to this principle. In short, there must be consonance between the objective pursued by Article III, as enunciated in the ‘general principle’ articulated in Article III:1.” Id. at 98.

163 LAWSON, supra note 118, at 80.

164 VRANKEN, supra note 78, at 216.

165 MERRYMAN, supra note 100, at 82.

166 Id. at 52-53.

167 Id. at 71.

lawyers then will expect supranational tribunals to individualize according to these priorities.

C. Courts and judges

Civil law courts tend to be specialized and hierarchical.168 Their proceedings are directed by the judges. Their structure expresses a commitment to expertise and intellectualization. The civil law depends on the intellectual capacity of its judges. German judges, in particular, are likely to seek learnedness in their opinions.169

Civil law judges are part of the civil service.170 Judges enter a career of judging and advance through the judicial hierarchy.171 They are educated and trained to be judges. In particular, their education and training equips them to work with language and to engage in the rational and scientific finding of the law. They then gain experience as judges. The judicial hierarchy allows the judicial authorities considerable control over lower level judges.172 Opinions are anonymous and collegial.173 They rarely become known outside the legal profession and even there they do not attain a special status.174 Their training and experience creates an elite, if anonymous, corps of adjudicators.

The same elite civil servants are not assured in the global judicial regime. Global judges will come forward from national regimes. The international community will hope that judges will be experienced, professional judges but that is not now certain. Surely, they will not always have the training and experience that may be necessary to make it work as a civil law system.

168 VRANKEN, supra note 78, at 58.

169 ZWEIGERT & KÖTZ, supra note 82, at 130.

170 VRANKEN, supra note 78, at 58.

171 ZWEIGERT & KÖTZ, supra note 82, at 124.

172 See J. Mark Ramseyer & Minoru Nakazato, JAPANESE LAW: AN ECONOMIC

APPROACH 17 (1999) (“This institutional structure radically shapes the incentives judges face: fundamentally it gives judges an incentive to act in those ways that the people deciding their transfers consider appropriate.”).

173 VRANKEN, supra note 78, at 62.

174 ZWEIGERT & KÖTZ, supra note 82, at 124.

Civil law decision making compels its own kind of fact-finding and record. Civil law judicial decision making is supported by the “inquisitorial” procedures. The basic strategy of this procedural model is judge control in contrast to the lawyer control provided by the “adversary” model. At first blush, a judge control process seems inconsistent with the basic distrust of courts. However, given the demands on civil law judges, they have a justifiable need for a record adequate to perform those functions and for a broad range of advice, including expert legal advice.

The ECJ provides a supranational adaption of the judicial management and expertise orientation of the civil law process. After the pleading stage, the parties’ control virtually ends and the court takes over. One of the judges is assigned the case and serves as a “judge-rapporteur,” responsible for building the record. The rapporteur’s report will serve as the basis for a decision. The case is then considered by an independent judicial officer, the “Advocate General.” The advocate general is part of the court and prepares an opinion to “assist” the Court.175 Although the extent to which the court adopts the advocate general’s opinion may vary, it is invariably extremely important.176 As Arnull observed: “[M]ost students of the Court would probably say that it is fairly unusual–although by no means unheard of–for the Court to depart from the Opinion of its Advocate General and there are reasons for believing that, whether or not an Opinion is followed, the judges find it helpful.”177

175 EU Treaty Article 222.

176 Advocates-general seem to borrow from common-law reasoning a bit in their opinions, citing prior decisions as binding authority. This is not limited to advocates¬general trained in common-law member-states, and striking examples can found in decisions of German advocates-general. T. Koopmans, Stare decisis in European Law,

in ESSAYS IN EUROPEAN LAW AND INTEGRATION 11, 21 (David O’Keefe et al. Eds.,

1982). It is also interesting to note that German barristers “try occasionally to convince the court that it should overrule an earlier decision.” Id. at 21. Perhaps the German legal professional are more comfortable using case law in this way because case law is significantly important in Germany, even though it is not considered an actual source of law. An accepted view is that judicial opinion in Germany is an important authority in the development and application of new legal questions. See DR. ANKE FRECKMAN AND




The global tribunals might do well to borrow both the preparatory judge and the advocate general function from the ECJ. The preparatory judges, as they do in the civil law process, balance out the inequality of representation and assure that the court has the record it needs. The ECJ-style advocate general would provide expert support for global judges of varying training and ability. Such a permanent and impartial advisor to a global tribunal could also assure some certainty and uniformity among tribunals representing diverse judicial characteristics.178

In the civil law system, appellate courts review the lower court judgments de novo.179 Civil lawyers will expect global review level tribunals to engage in the same type of review. However, global judges may fall short of the civil law’s juridical ideal. These tribunals will be more political and their disagreement with lower tribunals will be suspect.180 A pattern of disagreement will certainly affect the perception of any emerging global review authority.

The civil law uses specialized tribunals. Some of the instinct for this choice is the desire for expertise and the societal role of courts. However, the specialized tribunals also grew out of the need for court-like bodies that were not part of the “judiciary.” Thus, certain categories of litigation, for example administrative disputes, proceeded through a special court system. Judges in these courts were not selected under strict professional standards of the judiciary, permitting selection for subject-matter expertise and social policy perspective. More importantly, these courts might take on functions that appear

178 Several other elements from this model might also recommend it in global adjudications over and above civil law’s predominance in the national legal cultures around the world. Much of the preceding is in writing and the court has much more discretion to seek expert advice. Considerable resistence can be expected because, as discussed below, this process challenges common lawyers’ sense of fair procedure, even though many of these elements can be found in US administrative adjudications.

179 VRANKEN, supra note 78, at 59. The Supreme Court of Cassation, the highest French court, is not strictly a court of appeals because it only reexamines points of law and it may not revise decisions as a court of appeals would. CHRISTIAN DADOMO & SUSAN FARRAN, THE FRENCH LEGAL SYSTEM 189 (2d ed. 1996). Interestingly, the

Article III of the US Constitution expressly grants the US Supreme Court appellate jurisdiction over facts as well as law.

180 The same weakness is observed in US administrative law when the review tribunal disagrees with the lower level.

legislative.181 Much the same development may be seen in the US but perhaps for different reasons so that currently many federal tribunals are not part of the judiciary as created by Article III of the US Constitution.182

III. Blending Transatlantic Legal Cultures into a Global Judiciary

Having laid out some of the basic notions of the civil law model and suggested how those notions might play out in global perspective, the next step is to think about how the common law and civil law legal cultures may interact in the global arena.183 Some observe a convergence of these two systems.184 Surface similarities should not obscure the fundamental ideological difference in the way each system conceptualizes the law. Reimann recently observed:

[T]here are important divergencies between continental civil law and (English, Irish, and to some extent Scottish) common law in the fabric of private law itself. Even if one were to accept that the substantive discrepancies between the civil and common law have been overrated and that the systems have been converging, there remain indisputable disparities regarding the respective conceptual tools and general

structures. 185

Because the differences are so deep seated, surface convergence will not likely relieve the basic tension between the two legal cultures as they vie for place in the global arena.

181 MERRYMAN, supra note 100, at 134.

182 The Article I courts and administrative agencies. See Judith Resnik, Rereading “The Federal Courts “: Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 VAND. L. REV. 1021 (1994).

183 National systems that mixed common law and civil law cover about 150 million people. PALMER, supra note 76, at 3. Reimann argued that mixed common law and civil law system can teach civilians about integration with modern legal cultures. Mathias Reimann, Towards a European Civil Code: Why Continental Jurists Should Consult Their Transatlantic Colleagues, 73 TUL. L. REV. 1337 (1999).

184 DE CRUZ, supra note 143, at 290. (summary of convergence).

185 Reimann, supra note 183, at 1342. 46

Fundamental principles and instincts lead lawyers and scholars to approach the legal questions quite differently. Lawyers and officials from the two regimes will approach drafting and interpretation of the framework documents in quite distinct ways. When a civil lawyer contests against or works with a common lawyer the two will have a fundamentally different native sense of “law.” Thus, it is useful to now turn to the risky prediction as to how the two regimes will be accommodated in a global legal system. Again for emphasis, this framework anticipates the contribution of other legal systems but finds a civil law and common law base a very useful place to start for the reasons given above.

A. Approach to established and foundational legislation

The core distinction between civil law and common law is their approaches to authoritative documents. Because of this difference, each will expect founding agreements, global legislation and pronouncements from supranational governments to be drafted and interpreted with their own approaches in mind.186 Therefore, the merger will generate tension and perhaps misunderstanding in both drafting and interpretative principles.

A simple distinction that the civil law follows statutes whereas the common law leaves judges considerable freedom is belied by history. Statutory interpretation has always been crucial to common law legal reasoning.187 Indeed, it seems that a weak commitment to statutory interpretation and the exultation of judicial opinion was created by Justice Coke and that view never really dominated English legal thought. Indeed, Bonham ‘s case,188 which established judicial dominance, is remarkable in fact as an exception to the dominance of statutory language, an exception that did not hold over time.189 Even Coke recognized that courts must follow the statute and exercise discretion

186 Civil lawyers draft with interpretative principles in mind. VRANKEN, supra note 78, at 38. Pin cite needed.


CONCEPTION 61-62 (2000).

188 Dr. Bonham’s Case, 77 Eng. Rep. 638 (K.B. 1610).

189 In commenting on Coke’s audacity in declaring an act of Parliament void, Wade and Forsyth observed: “No modern judge could repeat this exploit, for to hold an Act of Parliament void is to blaspheme against the doctrine of parliamentary sovereignty.” WADE & FORSYTH, supra note 71, at 467-67.

only when the language did not answer in a particular case.190 This approach has not been completely lost in modern common law practice.191 Undeniably, however, US jurisprudence has accepted a cavalier judicial approach to legislative language.

In both systems, judges are bound in some degree by the language of authoritative documents and must engage in interpretation. As discussed above, the civil law is dominated by scholars and academic lawyers whereas the common law is dominated by practitioners turned judges. Thus, one area of tension is the relative weight of judicial interpretation versus that of jurists. Merryman, for example, observed that the common law is the law of judges and the civil law is the law of law professors.192 That is, the common law is dominated by judges who are the pinnacle of the law development process whereas the civil law exults jurists and scholarly development. Islamic law is also built on the work of scholars.193 Another one billion or so members of the world


ENGLAND § 21, at 24.b (Philadelphia, Robert H. Small 1853) (1628). MERRYMAN, supra note 100, at 26-27. MERRYMAN, supra note 100, at 59-60.

193 Islamic law represents an extreme case of a ‘jurists law’

JOSEPH SCHACHT, AN INTRODUCTION TO ISLAMIC LAW 209-21 0 (1964). This “classical”

view is challenged to the extent of whether the formative scholars engaged in interpretation or creation.

The dominant paradigm in modern Western scholarship . . . although basically accepting the early origin of the Qur’an, sees the vast majority of the [text from the Prophet] as apocryphal, having been back-projected as sayings of the Prophet only at a much later date. This, it is said, was done in order to invest what was originally the local practice of individual centres of learning in the Muslim world with the authority of the Prophet himself in an attempt to accord legitimacy to their own views.


‘AMAL 2 (1999) (Offering a “third view”).

community are likely to specially value scholarly interpretation.

Nonetheless, it is the nature of the foundational written law, the concept of a “code,”and the ideology derived from a system founded on written base that distinguishes the two legal cultures.194 The nature of the language itself is likely to be different. The code, as discussed above, is a framework, creating at once a stable platform and a guide to adaptation. Because the code is drafted by experts, it constitutes an effort to rationalize the basic laws (thereby channeling statutory and administrative laws). The code concept requires faithfulness to language and a commitment to find the law in the authoritative documents.

It is then not so much the code itself but the legal philosophy that the code instills in the civil law mind that separates the two legal cultures. Statutory language for modern common law, at least as manifest in the US, is organic, a living creature. The US

194 This is not to say that the civil code has not been without its proponents in common law countries. Jeremy Bentham and David Dudley Field, from the UK and the US respectively, were early proponents of civil law concepts. Jeremy Bentham’s push for a ‘compleat body’ of law stretched across the Atlantic, going so far as to solicit then U.S. President James Madison’s permission to codify U.S. common law. See THE COLLECTED


CODIFICATION, LAW AND EDUCATION 5 (Philip Schofield & Jonathan Harris eds.

1998)(letter from Jeremy Bentham to James Madison). Early in US history, the civil law vied with common law.

Throughout [the period between the revolution to the civil war], but especially in the middle decades, a determined effort was made by a succession of zealots to introduce into the United States the institution and methods of the civil law, if not as a substitute for, at least as a supplement to, those of the common law. . . . This propaganda campaign failed to achieve its objects and is now largely overlooked.

Peter Stein, The Attraction of the Civil Law in Post-Revolutionary America, THE


David Dudely Field was Bentham’s North American counterpart, working as the “pre¬eminent figure in American law reform.” See CHARLES M. COOK, THE AMERICAN


drew up his “Field Code” to replace New York common law, covering almost every aspect of the law – including criminal law, civil law, government organization, and court procedure. See Andrew P. Morriss et al., Debating the Field Civil Code 105 Years Later, 61 MONT. L. REV. 371, 373 (2000).

approach easily recognizes the need for judicial adaptation and has not committed itself to a stable approach to statutory interpretation. Judicial authority in the civil system, as discussed above, is limited. The strong judicial role of the common law system permits “soft” statutory language

Civil law-like ideological constraints are evident in international tribunals. A somewhat extreme example can be observed when an international tribunal observes a non liquet and does not resolve the claims in a case. A non liquet occurs when a judicial body decides not to decide a case because there is a “gap” in the law.196 The tribunal, in such a case, is unwilling to go beyond textual language to decide disputes not foreseen by treaty and statutory creators. GATT and WTO examples of non liquets are the unadopted panel report in EEC Wheat Flour Export Subsidies and the Coconuts case.197 This approach to international adjudication is also seen in ICJ jurisprudence. In South West Africa (Ethiopia v. South Africa

Predicting the interaction between the two interpretative tendencies begins with identification of the points of potential tension in the treatment of statutory language. As discussed above, civil law lawyers see interpretation as a scientific exercise.200 So the real working difference between the two approaches to interpretation is the more structured approach of the civil law legal culture. Civil law interpretation proceeds according to rules. Commentators aptly describes the core concept as like chess.201 The civil law

195 Mattei, supra note 126, at 17-18.

196See William J. Davey, Has the WTO Dispute Settlement System Exceeded its Authority?, 4 J. INT’L ECON. L. 79 (2001).

197Id. pin cite needed.

198 Name of parties needed. 1966 I.C.J. 6 (July 18).

199 Patricial Isela Hansen, Antitrust in the Global Market: Rethinking “Reasonable Expectations, ” 72 S. CAL. L. REV. 1601, 1638 (1999).

200 VRANKEN, supra note 78, at 61-62.

201 MERRYMAN, supra note 100, at 48. LAWSON, supra note 118, at 66. In some

sense, however, this may be a universal character of law itself existing in the common


judges move but according to well established rules whereas the common law judges often see statutory language as providing a mere springboard from which they create the law for a specific case. Language in civil law interpretation provides a stable platform, a framework, with which the civil law judge must work.202 This sense of stability may unsettle US lawyers and they may not readily understand the moves civil law insist on, especially as US jurisprudence has become imbued with realism and post-modernism.203 While judges in each system must apply clear language, a civil law judge actually takes serious their duty to find the meaning of the language, to honestly engage in interpretation.204 That approach is often termed “grammatical” and is, in reality, quite different from “interpretation” engaged in by US judges.205

ETHICS AND POLITICS, 42 (1998) (“There is a sense in which [Stanley] Fish’s conception of law as a self-contained practice is unexceptional. Indeed, to the extent that law is given structure by, and functions in accord with, a particular combination of certain rules, norms, standards, and conventions, it seems clear that it is a unique and self¬contained practice. In this sense, law is a self-contained practice just as is a game like chess or checkers.”).

202 DE CRUZ, supra note 143, at 270.

203 3 ENCYCLOPEDIA OF ETHICS 1352 (Lawrence C. Becker & Charlotte B. Becker

eds., 2001) “[A]ll [post-modernists] agree that moral responsiveness is neither a product of deliberation or argument, or something that a theoretical justification would secure.” Mattei advocates a “hard” European code in this environment because the weak postmodern sense of the law works to the advantage of the economically and politically strong. Mattei, supra note 126, at 13.

204 DE CRUZ, supra note 143, at 267.

205 Lasser described the difference in terms of two modes: grammatical and policy hermeneutics “Unlike the French judicial system, which offers two relatively segregated modes of discourse (the official/grammatical and the unofficial/hermeneutic), the American judicial system tends to combine the grammatical and hermeneutic discourse in a single space–the judicial opinion.” Lasser, supra note 145, at 702. He goes on to demonstrate in these terms how in the US the judicial text displaces the primary text:

The shift to purposive discourse and effect orientation represents a shift

away from grammatical reading

‘literalist’–or, in current legal terms, ‘formalist’–mode of reading in favor

of an explicitly hermeneutic approach. This new approach seeks to generate

the meaning of the controlling legal text by reading the language of the text

US jurist might see the difference in the two visions of judicial conduct as between formalism and realism.206 A US lawyer views the civil law approach as formalistic, although that jargon fails to capture the subtleties of the civil law approach. De Cruz has observed, for example, that the French approach is formalistic and the US approach is instrumental and English law is somewhere in between.207 In US jurisprudence, realism as to what judges do has been converted into what they ought to do. Its philosophy sets the judiciary free not just to interpret but to “legislate” restrained only by the context of the individual dispute. US interpretation contemplates judges balancing the interests embodied in the legislation rather than merely finding meaning in the language.208 It is not in its insistence on the binding force of language but on the style of judicial development that civil law will contest with common law.

As discussed in section IIA, the scientific method supporting the civil law approach parallels what in US jurisprudence is termed “categorization.”209 Categorization has been an important, and often dominant, strategy in the US.210 Yet, categorization is often criticized by modern US commentators as insensitive and static. As discussed, both the civil law system and categorization are adaptive and creative but their progressive principles require a special kind of manipulation. Categorization creates a structured creativity in the law so that logic and experience moves the law according to certain established concept.

in terms of something else: its purpose and practical effect. Id. at 703.

206 Barry Cushman, Formalism and Realism in Commerce Clause Jurisprudence, 67 U. CHI. L. REV. 1089 (2000). For the impact in civil law, see MERRYMAN, supra note 100, at 46.

207 DE CRUZ, supra note 143, at 289.

208 See Cass Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).

209 MERRYMAN, supra note 100, at 63, 66-67.

210 Kennedy, supra note 156, at 3. Kennedy’s “classical legal thought” seems the equivalent of what is termed here “categorization”: “Classical legal thought was an ordering, in the sense that it took a very large number of actual processes and events and asserted that they could be reduced to a much smaller number with a definite pattern. Id. at 8.

In modern US jurisprudence, categorization often gives way to balancing. “Balancing requires the explicit articulation and comparison of rights or structural provisions, modes of infringement, and government interests.”211 One might argue that balancing is inherently consonant with common law in much the same way categorization is with the civil law.212 Balancing presents some methodological opportunities that suggest it to the common law mind. Balancing offers an opportunity for a judge to tailor the law for a particular litigation

The adaptability of balancing to judge dominated policymaking is another aspect of balancing that fits the modern US instinct for judicial activism but may offend civil law instincts. Balancing permits judges to justify policymaking on the circumstances of the individual case before them. Yet, the very focus on the individual case recommends against balancing for broad policymaking. Through balancing, judicial policymaking may be opportunistic in disregarding and modifying past approaches but they are also

211 Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106

HARV. L. REV. 22, 61 (1992).

212 Aleinikoff, supra note 155, 961 (arguing that balancing approaches mimic common law approaches, thereby permitting flexibility and providing a strategy for legal development).

213 Id.

214 Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 970 (1994) (asserting that a balancing method can be employed for honest or dishonest purposes, depending on the intent of the person employing the method).

215 Sullivan, supra note 211, at 62.

limited in their policy choices by the context of the case presented. On the other hand, as discussed in part II, civil judges are not to allowed individual disputes to cloud their vision of societal values. In short, civil lawyers may find that balancing fails policymaking because of its tendency to narrow perspective as well as its weakness in incorporating past learning.

Balancing, however, is not a necessary aspect of the common law approach to interpretation. Not only is judicial resort to balancing a fairly new development in US judicial justification but US courts still engage in categorization. Balancing was not prevalent in Supreme Court opinions until the second quarter of 20th century.216

Although the modern US legal mind seems most comfortable with justifications based on balancing, judges today are as apt to rely on categorization.217 As Sheppard observed: “The Court balances, and the Court categorizes. Not only are both methods compatible, but both are now sufficiently entrenched as judicial tools of adjudication that the Court is unlikely to rewrite so much precedent merely because of a mode of interpretation.”218 Today, however, categorization is seen as doctrinaire and stifling, i.e. inherently conservative, and hence balancing has come to be seen as the progressive approach to law.219

216 Aleinikoff, supra note 155, at 949 (“The great constitutional opinions of the nineteenth and early twentieth century did not employ balancing as a method of constitutional argument or justification”).

217 For example, Kathleen Sullivan observed that Supreme Court justices divided over the choice between “rules” (a categorization based approach) and “standards” (a balancing based approach) in the 1991 term. Sullivan, supra note 211, at 69.

218 Sheppard, supra note 214, at 975.

219 But see, Id. at 975:”[T]he discussion about whether the balancing or the categorical approach is better . . . reflects a false dichotomy.” Stephen E. Gottlieb, The Paradox of Balancing Significant Interests, 45 HASTINGS L.J. 825, 838 (1994) (“The dispute over categorization and balancing is miscast for three reasons. First, the methods are not often determinative. Second, the methods can often be translated into one another. Third, . . . the dispute is miscast because the decision between balancing and not balancing is illusory.”). In fact, balancing often, especially in application, evolves into categories. Categories are in some sense established, justified and adjusted through “global balancing” Aleinikoff, supra note 155, at 978. “Categoric balancing” may in reality be seen as either balancing or categorization

Balancing in the context of diverse cultures may be particularly difficult. Balancing on the global stage raises the specter of all sorts of cultural, racial, regional and ethnic conflicts. Balancing necessarily sets values often fundamental values against each other. Balancing then will generate tension independent of the freedom of judges. Even in the context of US culture, some doubt that values are sufficiently commensurate to validate balancing in many cases.220 It may be deceptive to attempt to denominate rights in a single currency and weigh their relative worth.221 The, often subconscious, realization that the interests involved are not actually comparable leads courts to camouflage the “intuitive” nature of their decisions with balancing justifications.222 Even if Schauer is right that rights decisions based on imperfect commensurability in values accepted in US culture may be preferable, still the complexity of commensurability in the global community dictates against judicial balancing as an interpretative device.223

well as classification. Jeremy Waldron, Fake Incommensurability: A Response to Professor Schauer, 45 813, 819-820 (1994). Even ad hoc balancing would be too burdensome to decisionmakers without certain standards or limits on the range of issues for which balancing actually is to be employed. Gottlieb, supra note 219, at 855-856. Sullivan concluded: “These distinctions between rules and standards, categorization and balancing, mark a continuum, not a divide.” Sullivan, supra note 211, at 61.

220 E.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 786 (1994). The incommensurability debate informs but is generally beyond the scope of this article. See Symposium: Law and Incommensurability, 146 U. PA. L. REV. 1169 (1998).

221 Aleinikoff, supra note 155, at 973 (“The problem for constitutional balancing is the derivation of the scale needed to translate the value of interests into a common currency for comparison”).

222 Id. at 975-976 (He identifies several techniques courts “adopt to strike the unstrikeable balance.” They resort to: a vocabulary that creates the appearance of comparison, depreciation of one of the interests, and statements of the problem in balancing terms but actually decide the case otherwise).

223 Frederick Schauer, Commensurability and Its Constitutional Consequences, 45 Hastings L.J. 785, 806 (1994) (arguing that decisionmaking that holds rights commensurable to the greatest extent possible may still be valuable). Schauer propounds a kind of second-best argument whereby shutting down the analysis in the absence of perfect commensurability is inferior to found a decision on even imperfect

In sum, both ideologies accommodate growth and adjustment in the treatment of authoritative documents. General principles of international law might support both. Whereas the Vienna Convention requires a strong commitment to text and then its history, it also recognizes modification by “subsequent practice.224 Yet, the more structured civil law system’s approach to adaption and creativity may be more defensible in the global arena.

B. Disagreement over fundamental principles

Fundamental principles become important to interpretation under any legal regime. While civil law and common law legal cultures have some basic disagreements regarding interpretation, they share many fundamental principles. These philosophies and principles are not shared throughout the global community.225 Disagreements at fundamental levels are very difficult to negotiate and compromise.226 Thus, in the global arena, legal notions derived from fundamental principles may be the focus of the most difficult to resolve legal conflicts.

The underlying aspect of a natural law foundation inherent in the civil code noted in the prior part might be difficult for other cultures. Even US lawyers, who might share some of the civil law’s fundamental principles, might not accept their natural law source. Pound observed that both civil law and common law moved away from natural law in the

commensurability. Id. at 799.

224 Vienna Convention on the Law of Treaties, Art. 31(3)(b) (“any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”).

225 For example, some cultures might choose societal values over the dominance of the individual upon which modern transatlantic culture. JOHN OWEN HALEY,


criticism of the adoption of the civil law system because “intrinsic to Western private law was a radical individualism that could only erode Japan’s historical orientations and understandings involving the family, authority, and the state.”). See also VICKI C.


Chinese constitutions assume that the purpose of rights is to enable citizens to support the broader interests of the community.”).


YES (2d ed. 1991).

19th Century.227 The two cultures diverge as to the implications of that movement. US legal philosophy has little regard, even disdain, for natural law whereas, as discussed in the prior part, natural law is still respected in the civil law world, at least as one source of codification. Arguments with a natural law feel in the global context might have more currency for civilians than common lawyers.228

Similarly, the evolution of the civil law relied on secular natural law. Many of the world’s legal systems, which include a large portion of the world’s population, have strong or dominant religious aspects.229 Legal systems consciously religious, such as those nations whose laws are Islamic and Hindu elements, will resist even the secularization goal. More to the point, they can be expected to inject religious elements into the global legal dialogue.

On the other hand, the sources of fundamental principles in transatlantic legal culture are in fact religious. Religious base of transatlantic law will be a source of tension in the global arena. Canon or Catholic law is one of the three jus commune, or sources of civil law.230 Although the code attempted to secularize the law, its religious genesis cannot be ignored. One need look at any of its founding documents to see that basic US principles also have a religious base. Like the civil law, the US legal culture has

227 ROSCOE POUND, THE SPIRIT OF THE COMMON LAW 145-147 (1963) (“Although

eighteenth-century natural law had led to codification and had become an absolute system it was not equal to the philosophical problems of nineteenth-century law.”).

228Interestingly, the Code concept is based on an acceptance of natural law (ZWEIGERT & KÖTZ, supra note 82, at 88 and infra). US legal thought is not just hostile to natural law but denies the existence of any essential principles. Nonetheless, much of the balancing analysis engaged in by US courts has the feel of natural law analysis.

229 See Marc Galanter & Jayanth Krishman, Personal Law and Human Rights in India and Israel, 34 ISRAEL L. REV. 101, 103 (2000) (noting the “distinctive religious legacy” of these countries’ legal systems). Hindu law covers about 450 million people. ZWEIGERT & KÖTZ, supra note 82, at 313. Islamic law covers in some way all 1.2 billion

Muslims, ENCYCLOPEDIA BRITANNICA 2002 BOOK OF THE YEAR 302. Approximately, a

billion Muslims live in Islamic legal systems or a system in which Islamic law is mixed with other systems, usually either civil law or common law. Compiled by Jennifer Sekula, research librarian William and Mary Law School, from the CIA WORLD

FACTBOOK (2001).

230 MERRYMAN, supra note 100, at 10-11.

attempted to secularize these principles but their origins cannot be denied. Those from non-Christian legal cultures will find the inherent validity of these principles debatable. Indeed, the religious background of the principles by itself will make them suspect. Many will prefer their own religiously based legal principles. Again, these are the types of disagreements that are difficult to work out.

International agreements, rather than judicial decisions, will mediate many of these fundamental conflicts. To the extent that agreements establishing supranational governments are constitutional in nature, they will confront some fundamental principles.231 Their constitutional stature will take issues off the table and hence dictate fundamental values to future generations.232 Thus tension will grow between the vision of the founding generation and that of any current generation. Moreover, many non¬transatlantic participants will not be able to affect the basic agreements and those unable to participate will resent particularly the embedding of fundamental principles in basic documents of supranational governments.

On the other hand, international participants finesse rather than confront many of these issues in the basic agreements. The very emotional explosiveness of fundamental principle, especially religious ones, will lead negotiators to duck those controversies and leave many of them to be resolved in adjudicative context. Many have observed that the concession of authority by political institutions often results from the desire to avoid difficult decisions.233 Global tribunals will need to defuse tensions by adjusting even foundational language and resolving residual fundamental issues.

231 Undeniably, the basic supranational agreements have constitutional aspects. See McGinnis & Movsesian, supra, note 12.

232 Constitutions freeze fundamental values. MERRYMAN, supra note 100, at 24. A constitution might be seen as resolving in some specially stable way certain fundamental societal issues and thereby permitting society to operate without (constantly) revisiting those issues. Cass Sunstein, Constitutionalism and Secession, 58 U. CHI L. REV. 633, 639 (1991) (“Constitutional provisions may be facilitative in quite another sense: a decision to take certain issues off the ordinary political agenda may be indispensable to the political process.”). In a sense, a code does just the opposite



Constitutional and Political Theory in Administrative Law, 64 Texas L. Rev. 469, 499-500 (1985).

In short, global tribunals will have to accommodate a wide range of foundational principles. The comparative law’s identification of “families” of legal cultures may help rationalize these fundamental conflicts.234 Zweigert & Kötz in their leading comparative work recommends that the world’s legal cultures can be distinguished according to their “styles” much like different categories of literature or fine arts.235 They use five factors to classify legal families:

(1) its historical background and development, (2) its predominant and characteristic mode of thought in legal matters, (3) especially distinctive institutions, (4) the kind of legal sources it acknowledges and the way it handles them, and (5) its ideology.236

Based on these factors, they identify six groupings, Romanistic, Germanic, Anglo-American, Nordic, Far East, and Religious and provide careful analysis of their distinctive features. However, although academically predominant, the strong transatlantic bias in this classifications raises questions that may require contributions from other societies as the global legal culture evolves. Here, it is sufficient to view this approach and the sophisticated work done by these and other comparative scholars to find commonality among categories of legal cultures as a useful device for melding the world’s legal cultures, even in terms of fundamental principles.

C. Use of case law

The function and status of case law is the generally understood difference between the two systems. However, as with the popular view of the difference regarding statutory interpretation, the difference here is subtle. First, as is generally recognized, the approach to judicial decisions do differ both in kind and degree but civil law opinions are not without effect. Nonetheless, a sense of convergence in attention to the work of other

234 DAVID & BRIERLEY, supra note 108, at 18 (“In law, as in other sciences, one

can detect the existence of a limited number of types or categories within which this diversity can be organized. . . . [T]he comparatist can classify laws by reducing them to a limited number of families”).

235 ZWIEGERT & KÖTZ, supra note 82, at 67-68.

236 Id. at 68. But categorization requires sophisticated analysis: “These are the stylistic factors which enable us to identify the families of the legal systems and to attribute individual systems to them, but the weight to be given to each of these factors varies according to the circumstances.” Id. at 72.

judges does not affect the ideological distinction between judicial authority and judicial law making in the two systems. Second, the civil law doctrine has its own commitment to consistency, but that doctrine aims at overall consistency, not just consistency in dispute resolution. Third, the reputed distinction between the common law’s inductive approach and the civil law’s deductive approach masks the real difference in the logic in deciding cases and hence the impact of case law. Fourth, it is generally perceived that common law judges have more authority over legal questions than civil law judges but they do not have more authority over their own cases. That is, the concept of judicial authority is different but in deciding cases the difference may not be the degree of judicial power but the nature of judicial power. All of these must be worked over in order to envision the melding of the two systems in a global regime.

First, while there is a difference in the weight of prior decisions, that difference only partially describes the difference prior decisions make in judging. Civil law judges are not unaffected by prior decisions. Indeed, Merryman observed: “A lawyer preparing a case searches for cases in point, uses them in his argument

Nonetheless, because the instincts of the two systems are fundamentally different, the convergence some observe confuses form with substance. The difference is not refusal to note precedent but the ideology of stare decisis.238 That is, the common law holds onto the idea that prior decisions are binding on subsequent judges so that judges and everyone else must consider case decisions to be “law.” True the relevant law is not fundamentally derived from judicial decisions in common law systems and hence common law judges must interpret and apply statutory language. True common law judges seem less inclined to observe stare decisis than common law doctrine would dictate. On the other hand, civil law judges can be observed paying more attention to their colleagues decisions. Lawyers in civil law systems certainly refer to prior decisions. As translated into EU law, civil law judges are assuming more authority and more actively make law. Still, in the end, judging individual cases is fundamentally different. There remains a great gap in the goals of that judging. And there remains a fundamental

237 Id. at 47

238 LAWSON, supra note 118, at 83.

difference in impact of those decisions.239

In global decisions, global judges will attend to the opinions of their colleagues and hence tend towards a system of precedent. Renowned expert, Shabtai Rosenne, observed that while the ICJ’s charter “contains an apparent limitation on the Court’s freedom to employ judicial decisions as a subsidiary means for the determination of the rules of law. This, however, is not the interpretation placed upon that provision by the Court, which habitually refers to its own decisions and those of the [predecessor] Permanent Court.”240 Therefore, global legal culture may already be accustomed to treating case law with some force. But global tribunals may still use precedent more as the civil law does because its limits on judicial law development may be more appropriate to the international arena. Governments, including common law jurisdictions, will want more control, especially “statutory” control, over the global judiciary than afforded by the common law approach. The authority of case law in global arena will be a matter of acquiescence rather than imposition of a common law sense of stare decisis.

To some extent, the supranational tribunals themselves hold the key to their assertion of authority to develop the law. While the code concept itself grew from and has largely been adopted around the world because of a distrust of courts, growing respect for courts is now present. US experience demonstrates the advantages of strong courts. The status of courts has changed in European civil law countries. More to the point, their civil law progeny, the ECJ, has been a very activist court, with the trust of EU citizens.241 Any distrust of courts can then be overcome by the global judiciary. To the extent they do, they, like the ECJ, will find their opinions having considerable, maybe

239 Francisco Ramos, Judicial Cooperation in the European Courts: Testing Three Models of Judicial Behavior, 2 GLOBAL JURIST FRONTIERS 1, 16 (2002) (While European

courts use other courts’ decision, “The fact that there is no obligation make courts less aware and less use to the usage of decisions of other courts. This will certainly result in divergence among and within countries.”).

240 ROSENNE, supra note 20, at 1609.

241 “Legal scholars have explained national government acceptance of ECJ’s supremacy declaration based on the compelling nature of legal reasoning, the authority of the legal process itself, and the respect and reverence accorded to the decisions of high judicial bodies.” Alter, supra note 48, at 184 (But noting that others see it as a mere power grab.).

approaching binding, force outside the adoption of a formal sense of stare decisis.242

The increasing weight given precedent by the ECJ demonstrates natural evolution in supranational law, even one based on civil law principles. The EU treaty clearly envisions courts, both EU courts and national courts, being prominent players in European affairs and not being subjugated to the other EU or national institutions.243 Ramos found that the very act of “law finding” in EU quasi-civil law system naturally creates weight for precedent.244 In fact, judge-made law is apparent in the ECJ.245 In a preliminary ruling requested by a German court, for example, the ECJ noted that because the protection of legitimate expectations exists as a general principle of law in the EU’s member states, then it must be protected as a principle of Community law.246 However, in a later case, the ECJ applied the principle of legitimate expectations in a way which seemed contrary to the laws of most, if not all, member-states.247 Akehurst described what occurred in this case: “Each successive judgment of the Court slightly alters the content of the principle, so that the Court can end up by applying a principle in a manner which is contrary to the laws of all the member states.”248 In short, the growing

242 The ECJ’s ability to definitively interpret EU law gives its opinions force, creating a culture of attention to case law even in civil law countries. Tridimas & Tridimas, supra note 14, at 6 (“[A]lthough the judgment does not form binding precedent in the way understood in the Anglo-Saxon legal systems, it has normative value in that it settles a point of interpretation or validity.”).

243 VRANKEN, supra note 78, at 67.

244 Ramos, supra note 239 at 12 (“[A]djudicating in European context has become more like a team enterprise.” id at 16).

245 Michael Akehurst, The Application of General Principles of Law by the Court of Justice of the European Communities, 52 BRIT. Y.B. INT’L L. 29, 39-40 (1982).

246 Westzucher GmbH v. Einfuhr- und Vorratsstelle für Zucher, [1973] E.C.R. 723, 739.

247 Commission v. Council, [1973] E.C.R. 575, 584, 592-5. The court here applies legitimate expectations in a general way, but the laws of the member states allowed the principle to be applicable only to individual decisions.

248 Akehurst, supra note 245, at 40. Akehurst went on to state, “what the Court is really doing is creating law . . . there is no reason to believe that the law created by the Court of Justice of the European Communities will be any less satisfactory than the

legitimacy and record of competence allow the ECJ to apply its own law with some force.

The use of case law in the global arena is complicated by the absence of a structured global judicial system. Precedent has both horizontal and vertical effects.249 The horizontal effect of precedent defines how strongly a court feels bound by its own prior decisions. No matter the dominant legal ideology, courts tend to use their own decisions to inform the decision before them. In the global arena, however, the vertical impact is ambiguous and ad hoc. Common lawyers are accustomed to great weight being given higher court precedent in lower courts. In contrast, as describe in section II.C, civil law incorporates control over lower courts but that control in specific cases is not nearly as strong as that in common law systems. In addition, the hierarchy of global judicial systems are not clearly established. In short, the lack of vertical authority in the global legal regime will continue to be most frustrating to common lawyers, more frustrating to them than to civilians. The tangle of both trade and rights supranational adjudicative structures will prevent a cure to this frustration, until a firm judicial hierarchy is agreed upon whatever theoretical weight is assigned to precedent.

A second subtly in distinguishing the use of case law in the two systems derives from the civil law’s own doctrines compelling consistency, the overarching concept of “legal certainty”. Both philosophies attempt to provide certainty to those covered by the law. The civil law system requires the judges to be faithful to statutory schemes and the common law system requires commitment to prior like decisions. The civil law judges must assure certainty within the whole society and not just consistency in dispute resolution. Civil law judges decide individual cases in the context of broad fabric of the law.250 The common law judge is charged with applying the “law” in order to render individual fairness but is also committed to treating like cases alike. Legal certainty requires the civil law judge to be sensitive to societal factors.251

English common law. . .” (emphasis in original).

249 PALMER, supra note 76, at 51-53.

250 VRANKEN, supra note 78, at 43

251 The doctrine of legal certainty itself has its own law making capacity. For example, the ECJ in Nakajima All Precision Co Ltd., [ 1991 ] ECR I-2060, constructed the estoppel rule, which has no equivalent in Europe, out of the legal certainty and legitimate expectations principles. In doing so, “[t]he Court . . . promote[d] an adequate standard of civil rights’ protection and procedural guarantees in Community law.” Jurgen

For this reason civil law judges are more constrained than the common law judges by specific statutory language. Nonetheless, US jurisprudence also struggles with the overall confusion created by judicial law making. Justice Scalia of the United States Supreme Court has been a strong advocate for judicial faithfulness to language. For example, in his concurring opinion in Conroy v. Aniskof,252 he criticized the Court for not adhering to the literal language of the statute. He argued that free wheeling interpretation “undermines the clarity of law.”253 Many common law jurists over the years have argued that the law should be predictable. Treating like case alike can do this but perhaps not on as broad a scale as the civil law doctrine of legal certainty. Tension between the two legal ideologies in the global arena then may be better characterized as disagreement over the choice of doctrines for providing predictability in the law.

Third, a difference in the logic for deciding cases has been expressed in too formal terms. Civil law reasoning is said to be deductive (conclusions following from broad premises)

a difference in intellectual approach, in the quest and ordering of knowledge. Each approach reflects one of the modes of functioning of the human intellect, that is, on the one hand, the empirical mode based on specific instances from which one may eventually draw rules and even identify principles and, on the other, the theoretical approach based on established principles from which concrete consequences and applications are drawn.254

This traditional distinction may not, however, express the true difference. As Lawson observed:

I have my doubts [that civil law reasoning is deductive whereas common law reasoning is inductive]. . . . In both cases the general principle has to be

Schwarze, Judicial Review in EC Law–Some Reflections on the Origins and the Actual Legal Situation, 51 INT’L & COMPAR. L.Q. 17, 21 (2002).

252 Conray v. Aniskoff, 507 U.S. 511, 518-19.

253 Id. at 518-19.

254 VRANKEN, supra note 78, at 215-16 (quoting Charles D. Gonthier).

found, in typical Common Law reasoning by grouping together a number of decisions and constructing equations explaining them, in the Civil Law by grouping together a number of texts. . . . A more important difference is probably to be found in the fact that whereas the materials from which the common lawyer has to find his general principles are constantly added to, and their general shape and balance altered by new decisions, . . . [the civilian’s] ultimate mass of materials remains unchanged.255

Actually, there probably is some sense in which civil law instinctively reasons from larger principles, judges and lawyers start with the code framework, and common law instinctive starts with specific decisions and must put them together to divine large principles. That is what common law lawyers learns to do starting with law school. But this difference in “logic” is probably the result of the sources and stability of the sources rather than a conscious commitment to a particular logical methodology.

A fourth subtly must be recognized based on the difference between the authority of judicial opinions and the authority of judges. The theoretical power to make law is not the same as the power to decide the law in an individual case. In a particular case, civil law judges have more discretion than common law judges because they may decide how much weight to give the opinions of other judges.256 Theoretically, common law judges are bound by like cases whether they agree or not.

So, civil law judges in a sense might have more authority to think in broader terms in their cases than common law judges because they have more discretion about the weight of prior opinions. Common law judges concentrate on applying the law to the individual dispute and thereby the law evolves interstitially as a result of deciding individual cases. Civil law judges are expected to decide their cases as part of a broader fabric. They are more interested in getting that right, assuring aggregate fairness, than in assuring fairness in the individual case before them. Thus, the freedom from binding precedent is the freedom to assure that the case at hand conforms to the scheme of authoritative documents and the “law” in general rather than agree with colleague’s judgements of equally narrow scope.

In sum, added together these subtle differences in legal philosophy will affect the

255 LAWSON, supra note 118, at 65.

256 Mitchell de S.O.L’E Lasser, Judicial (Self-)Portraits: Judicial Recourse in the French Legal System, 104 YALE L. J. 1325, 1332 (1995) (“He is left entirely to his own devises.”).

use of case law in the global arena. US jurists will argue for strong even binding effect for precedent.257 Civil law jurists will not resist the use of prior cases in argument and decisionmaking but they will expect global judges to exercise the freedom to find the law in individual cases consistent with their system. Global law will no doubt evolve through case law but it is doubtful that case law will ever attain stare decisis effect.

D. Nature of the judicial decisionmakers

Much of the division between the civil law and common law results from different perceptions of the courts and the relationship between courts and the “democratic” institutions of government. The diverse historical experience with courts will affect how the systems are adapted in the global arena. Simply the common law grew out of distrust of majorities in democratic government and the civil law reflects a distrust of elitist courts.258 Although not universal, civil law jurisprudence grew out of experience that suggests that courts can do at least as much damage as any other institution of government.

Such experiences are rare in US history and the courts have more often been the vehicle of progress and protection of individual rights. In the early English experience of the common law, judges were allies of parliament in the struggle against royal (executive) authority. In the US, judicial independence from majoritarianism begins with Article III of the constitution and carries forward in essential concepts evolved over some

257 Bhala argued for stare decisis in supranational tribunals. Raj Bhala, The Power of the Past: Towards De Jure Stare Decisis in WTO Adjudication, 33 GEO. WASH. INT’L REV. 873 (2001),

258 VRANKEN, supra note 78, at 63. Perhaps, it is significant that Montesquieu, the godfather of US separation of powers theory, served as a president of a parlement at a time when those courts were fighting to retain their traditional powers and privileges.


one contemporary commentator admonished: “O Montesquieu, you are a Magistrate, a Gentleman, a rich man

200 years.259 The US experience may justify a special commitment to the courts as the “least dangerous” branch as the contrary experience in civil law nations justified distrust of courts.260

Many emerging democracies come from a revolutionary experience similar to France’s, however. This experience provides much of the real world impetus behind the choice of the civil law system.261 Constraining judicial abuse runs through the civil law judicial thinking. This reality resonates around the world because emerging democracies also have reason to distrust the judiciaries. Indeed, the revolutionary communist constitutions subjugate the judiciary to the legislature so that those coming out from under those regimes are aware of the potential for judicial abuse.262

Because the ideologies emerged from conflicting realities, the two visions of the courts may be hard to reconcile. Even in Continental Europe, however, courts are increasingly called upon to vindicate individual rights and societal values. The ECJ, the EU court created and accepted by civil law EU members, has not been put under strong restraints.263 The EU treaties themselves authorize the Court to review and overturn legislation as well as discipline member governments. ECJ has found that power similar to the US judiciary

259 Actually long tradition rather than the US Constitution insulates the courts from the democratic institutions because it is generally conceded that Art. III, if read literally, provides for significant legislative control of the judiciary.

260 Brickle’s famous and perhaps elitist characterization which incorporates the notion that they are also dangerous but somewhat more trustworthy than the democratic


261 VRANKEN, supra note 78, at 63 (discussed above).

262 For example, the Chinese Constitution provides: Article 128 “The Supreme People’s Court is responsible to the National People’s Congress and its Standing Committee.” and Article 67 “The Standing Committee of the National People’s Congress exercises the following functions and powers: 1. to interpret the Constitution and supervise its enforcement. . . 4. to interpret statutes.” People’s Republic of China,

CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Blaustein & Flanz ed. 1982 version).

263 Id. at 67.

For whatever reason, not only is the ECJ a much more activist court, more closely aligned with US courts, but it has made other European courts much more aggressive. Thus, we might predict that the attitude of the US courts over the last few generations, that of the ECJ and its effect on member’s courts, have combined to create an emerging global judicial attitude in which courts do not shrink from challenging legislative and executive action either by its own supranational government or by member state governments.264 This attitude contrasts with the traditional civil law attitude but has been increasingly accepted in civil law legal cultures.

Both the WTO and the ICJ can be expected to be reasonably aggressive in carrying forward the global missions within their respective spheres. The ICJ has already been characterized as activist.265 Those familiar with the history of the US federal courts and the ECJ will predict that, in this era at least, supranational tribunals will accept broad authority and members will ultimately concede the necessity that they do so. For example, a former ICJ Registrar noted that Court’s development in this direction:

The impression I had initially when I came to the Court was that it appeared as if the intellectual effort was being made to dismiss cases on the ground of lack of jurisdiction in the period before 1984, and that this effort had turned, rather, to try to find ways to assert the jurisdiction, and the Court went to some lengths to do that.266

264 An extreme example of judicial activism is Indian Supreme Court’s decision striking down a properly enacted constitutional amendment because the amendment violated fundamental rights. Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible, 37 AM. J. COMP. L. 495, 510 (1989). “[I]nconvenient Supreme Court decisions in constitutionality of state action were simply overturned by amending the constitution until the ‘basic structure’ of the constitution was declared unalterable.” On the other hand: “The notion that the constitution has an unalterable basic structure remains a highly problematic and controversial element of Indian constitutional law.” Id. at 501n.34.

265 American Society of International Law, International Law in Ferment and the World Court: A Discussion on the Role and Record of the International Court of Justice, 94 AM. SOC’Y INT’L L. PROC. 172, 174 (2000) (A former judge as well as practitioners recognized the justice of such a characterization.).

266 Id. At 175. Those unfamiliar with the ICJ should understand that the Registrar is an extremely important official. They head a staff that prepares the case for trial, drafts judgments, advisory opinions, or orders, and check these documents before they are

The WTO adjudicative bodies are likewise asserting themselves as discussed in part I. Given the evolution of their own courts, lawyers from both sides of the Atlantic will be comfortable with this trend. Indeed, those in tune with the global goals will be happy.

Another aspect of the civil law system that will assuage the civil law mind if confronted with activist global tribunals is the civil law’s own use of courts technically outside the judiciary for tasks that require broader discretion. The French Council of State was created to review legislative and other government action. Since the Council was not part of the judiciary, it could engage in aggressive policy oriented review267 Most civil law nations have separate administrative courts to insulate regular courts from involvement with government.268 Civil law systems have also established constitutional courts rather than authorize the “judiciary” to review legislation.269 These courts are not considered part of the judiciary and hence may engage in review of legislation consistent with civil law ideology. Through these courts the civil law culture has become accustom to judicial review and those from civil law cultures will have less problem with global “courts” exercising functions traditionally prohibited of the civil law judiciary.

There remains a distinction between the judicial role in society. The common law judges are law makers and hence it is natural to conceive that common law judges have greater authority. It is certainly true that in the aggregate judges are expected to evolve the law and hence as an institution a common law judiciary seems to have a more important social role than a civil law judge. In that sense, the common law judiciary as a group has more status in the system. This status is enhanced in the legal community by the fact that common law judges come to the bench as successful members of the practicing bar. It is not difficult to see why both judges and the bar constantly pressure for a common law conception of the judicial role. Experience with mixed systems, those combining common law and civil law elements, suggests that global tribunals and their bars will attempt to assert the authority for their law making recognized in the common

issued by the Court as well as assisting the judges (much as law clerks assist US judges).

See ROSENNE, supra note 20, at 442.


WORLD 11 (1954) (“[The Council of State’s] decisions were swayed just as much by policy as by law.”). Many civil law systems borrowed the council of state model but have now removed the adjudicative function.

268 WATKIN, supra note 80, at 370-371.


law legal culture.270

The source of the authority in individual cases also will raise questions as those from the two cultures conceive of a global judiciary. Civil law judges have discretion in deciding their cases but the source of that discretion differs. In the civil law system, a court must find some delegation, sometimes implied, to do equity.271 Whereas in a common law judge has inherent authority derived from the separate equity tradition.272 Since the civil law judges interprets the authority to do equity, they might seem to have similar authority but the nature of the distinction between the two cannot be ignored. On the world stage, civil law and common law lawyers and judges will be skeptical of each’s approach to equity authorization. Civil law judges and lawyers will argue from some delegation whereas common law judges and lawyers will anticipate that global judges will have inherent authority to consider individual fairness where they see fit. Both because civil law lawyers predominate and because assumptions of discretion, even to do individual fairness, are suspect, global legal culture will probably more closely approximate the civil law approach. Nonetheless, US lawyers are not unarmed. Their administrative and constitutional law is rich with delegation jurisprudence.

The two transatlantic legals cultures may differ on the operation of the judicial hierarchy. While there is no established global hierarchy, law of the ICJ is usually given great deference by the other supranational tribunals. However, a similar tendency is not apparent regarding trade. The WTO appellate bodies pronouncements seem to have no particular weight in the other supranational trade tribunals. And even rights tribunals in no way feel bound by ICJ law.273 This situation not only affects the nature of precedent as describe above but it weakens the overall concept of a global judiciary. US lawyers will favor a unified hierarchical judicial regime. They are accustom to one supreme court of

270 PALMER, supra note 76, at 35-36.

271 MERRYMAN, supra note 100, at 52-53.

272 Id. at 51-52.

273 “There is no hierarchy of courts with predetermined jurisdiction. Instead there exists a more complex and haphazard multiplicity of courts, with no pretense of schematic hierarchy between them.” ROSENNE, supra note 20, at 529. On the other hand: “While there is no formal hierarchy of international courts and tribunals, the pre¬eminence of . . . the present International Court is today generally accepted. Any other international adjudicatory body which ignored relevant dicta and decisions of the International Court would jeopardize its credibility.” Id. at 1609.

ultimate authority. More basically, the common law system of judicial law making requires an ultimate judicial authority but the civil law system does not need such a final judicial authority.

US lawyers are likely to move the system to a unified global judicial regime.274 Europeans, on the other hand, are more accustom to separate court systems than US lawyers and might not be as anxious to unify the court systems.275 The several global tribunals might have and could still form into a unified judicial regime but civilians will not have the instinct to do so that may well drive US lawyers.276 They will see the WTO judiciary and the ICJ as founded on two very distinct governmental institutions and whose “competences” should be kept separate. The need for different expertise is one of the forces that have separate supranational tribunals.277

Europeans and Americans differ on the use of specialized court systems. Europeans are accustom to separate court systems. The French have the Cassation, the final court for general law, and Council of State, the final court for administrative law, with a constitutional council.278 The Germans have five separate court systems and a Constitutional Court. A constitutional court separate from those courts handling regular

274 Spelliscy, supra note 7, at 171 (“Given the disastrous consequences that incoherence could have on the international judicial system, it is time to abandon the orthodoxy and insist on the formalization of the relationships between tribunals”).

275 Id. At 153-54.

276 Jackson observed that the precursor to the WTO, the International Trade Organization, would have had appeals to the “world court,” the ICJ. John H. Jackson, Dispute Settlement and the WTO: Emerging Problems, in FROM GATT TO THE WTO:


277 Spelliscy, supra note 7, at 149.

278 Had the “star chamber” survived it might have evolved into something like the French Council of State and the common law world might have as well become accustom to a dual judicial system. Though vilified in history, that review body was a casualty of

politics, not principles. LAWRENCE BAXTER, ADMINISTRATIVE LAW 20-21 (1984) (The

Star Chamber was “fairly popular with the public” but “[c]ommon lawyers considered the court a threat to the jurisdiction of King’s Bench.”).

legal issues is the norm in civil law countries.279 In the supranational regime, Europe has the ECJ with jurisdiction over trade and the ECHR with jurisdiction over rights enforcement. The CFI provides another EU example of the continental European tendency to create specialist courts.280

Still, a unified system would no doubt provide coherence in the development of global law and coherence is essential to legitimacy. Indeed, the EU could be used as a counter example of the civil law tendency to specialist courts. The ECJ, in the exercise of its trade jurisdiction, has taken on many rights enforcement questions and it would take little technically to shift rights into that court and create a supreme court of Europe. International law has never had a unified system.281 Nonetheless, the proliferation of global and supranational tribunals is increasingly creating incoherent and sometimes contradictory principles.282 Consistency and certainty suffer, so that in the end the US legal view may have the strongest practical case.

E. Procedure

Much of the tension in the emerging global legal culture will revolve around procedural principles. Tension will arise at the theoretical level because procedural principles express a legal culture’s understanding of fundamental fairness, making alien

279 WATKIN, supra note at 6 (“Another hallmark of civil law systems therefore is their possession of a constitutional court or some such body to hear and determine [whether a particular piece of legislation offends against the fundamental law of the state].”).

280 Tridimas & Tridimas, supra note 14, at 6. (“The rationale behind the establishment of the CFI was to set up a court which would be better placed to hear complicated cases in technical areas of law . . . .”).

281 Jonathan Charney, Comment, The Implications of Expanding International Dispute Settlement Systems: the 1982 Convention on the Law of the Sea, 90 AM. J. INT’L L. 69, 74 (1996)

282 Spelliscy, supra note 7, at 159-69 (discussing the conflicting views of state responsibility for acts of its officials between the ICJ and the International Criminal Tribunal for the Former Yugoslavia). While the ICTY trial level court applied the ICJ precedent, the appellate body explicitly refused to apply ICJ law. Id. at 168.

ideas about process inherently suspect. Practicalities fuel this tension because practical lawyers will feel disadvantages by unfamiliar procedural designs.

A significant gulf exists between the common law “adversarial” model and the civil law “inquisitorial” model. The common law lawyer has been traumatized by the “star chamber” horror story since the English judges helped parliament to triumph over the monarch/executive. The very term “inquisitorial” calls up these horribles. On the other hand, much about the adversarial model offends fundamental instinct among civil lawyers. In fact, these terms do not capture the true difference between the two models. The overarching contrast is the relative positions of the lawyers and the judges. Civil processes are adversarial in their own way and one would hope that the common law process aims at inquiring into the truth. They differ in the techniques for assuring participation and searching for the truth.

The judge-managed process of the civil law has advantages in assuring equality of opportunity. As described above, after the parties get the case to court, the court assumes responsibility for the effective handling of the case.283In contrast, common law pleading merely gets the plaintiff in the court house. The lawyers must then develop the case and build the record with the judges remaining more like referees. The information that becomes the record will be validated in the trial.284 The role of the trial itself is quite different. Common law trial is the end product

283 Issues and evidence, however, are controlled by parties. MERRYMAN, supra note 100, at 115.

284 Thibaut and Walker, in their empirical study of the two, found that the

adversarial process and its rival from the continental system affected the facts presented


PSYCHOLOGICAL ANALYSIS, 39-40 (1975). They demonstrated that the “inquisitorial” process used on the continent has disadvantages in confronting sampling error. “However, this study has identified a major, and heretofore unsuspected, effect of adversary decisionmaking: the model introduces a systematic evidentiary bias in favor of the party disadvantaged by the discovered facts.”Id. at 40. That is, the adversary process creates an incorrect view of the balance of information where the weight of the evidence clearly rest on one side of the controversy. On the other hand, another process may create other accuracy bias as does the “inquisitorial” model. The fundamental procedural choice is actually based on the “brand” of inaccuracy preferred in the legal culture. In general, our system of procedural design is committed to the adversarial process because it focuses on the quality rather than the quantity of the evidence.

trial some part of that process but not usually the dominant part, except it is where the decision is made. The civil law depends much more on writing. The common law distrusts written proceedings.285 Its oral orientation requires writing to be converted essentially into testimony and validated by admission at the trial under specific rules of admissibility. In short, the relative competence of the parties’ lawyers determines the effectiveness and equality of opportunity in the process in the common law process whereas the civil law process depends on the sense of fairness and the sensitivity of the judges.

The civil law’s judge control might well make many aspects of the inquisitorial model more appropriate to the global tribunals. Judicial control will mean that the court itself can assure an adequate record. Civil law procedures allow the court to consult experts, including legal experts, more readily whereas the adversarial process would require most of these to appear as witnesses and hence limit their usefulness to the court. Section II.C. describes the ECJ’s incorporation of the preparatory judge and the judicial advisor. In that court, the case is assigned to “judge-reporter” who prepares the docket and the court have the legal advice of an “advocate general” who prepares a thorough legal analysis.286 The Court may order expert reports under the supervision of the judge reporter.287

These aspects of the inquisitorial model will offend common lawyers who will feel themselves losing control of their case. Understandably lawyers would prefer the common law procedure in which they are dominant. Empirical evidences suggest that the judge controlled process is less satisfactory to ordinary citizens as well.288 Yet, the great

285 Increased use of written materials may be making its way into English courts. See T.H. Bingham, “There is a world elsewhere? “: The Changing Perspectives of English Law, 41 INT’L & COMP. L. Q. (1992) 513, 526 (“If a judge of (say) the immediate post-war period were to return to the courts today, whether at first instance or on appeal, he would feel himself to be in an environment that would feel quite strange and, as he might think, un-English”).



287 Rules of Procedure of the Court of Justice of the European Communities Article 49.

288 However, Thibaut and Walker, in their empirical study of the two process models, provided an indepth empirical examination into the factors that foster

diversity in the judges will argue for helper judges. And the unequal quality of representation among participants in global litigation will be mitigated by the ability of the court to control the record. Given the even greater likely disparity in the resources available to litigants in global adjudications, the civil law technique of using the court’s experts, rather than the common law’s insistence on experts appearing for the litigants as witnesses, surely will enhance the technical competence and equality of the decision¬making.289

Process in the two systems may also conflict at the appellate level. In contrast to

satisfaction in a legal process. THIBAUT & WALKER, supra note 284. See Paul Verkuil, A Study of Informal Adjudication Procedures, 43 U. CHI. L. REV. 739, 752 (1976). They compared the so-called “adversary” process, the passive decision-maker model, with its continental rival, the unfortunately termed “inquisitory” process, the active decision¬maker model. They found: “One of the most intriguing findings for participant subjects was the linear increase in satisfaction with the procedure, perceived fairness of the procedure, and opportunity for evidence presentation as the procedural mode moved along the continuum from the inquisitorial to the choice adversary method.” THIBAUT & WALKER, supra note 284, at 94. Others studies have confirmed in this finding in various


JUSTICE 211-14 (1988). Uninvolved observers and continental subjects (those not habituated to the adversarial process) showed a similar preference for the adversary process. THIBAUT & WALKER, supra note 284, at 77-80. This satisfaction emanates from leveling even though it distorts the true balance of factual support for one of the positions. Id. at 77. Also they observed: “[S]ubjects are more willing to trust an adversary system than an inquisitorial attorney to produce accurate, unbiased judgments.” Id. (emphasis in the original). That is, participants and observers were impressed by the adversarial model’s restraints on the conduct of the decisionmakers.

289 The limitation of certain types of expert evidence in WTO panels has caused some controversy. While statutes confirm that the panels have a broad authority to investigate and evaluate the facts in each case, WTO appellate body decisions indicate that some evidence is now limited to the explanations and evaluations of the evidence provided by the parties. Joost Pauwelyn, The Use of Experts in WTO Dispute Settlements, 51 INT’L & COMP. L. Q. 325, 354 (2002). (“It unduly restricts the inquisitorial role of WTO panels as international tribunals and constitutes an unwarranted transplantation of common law principles into the WTO process”(emphasis added).

the US inclination, civil law empowers appellate courts to engage in de novo review.290 This may be a natural extension of the choice of judicial control versus lawyer control. Since the parties are responsible for the common law record, it is natural that “their” record should be accepted by the courts. Whereas, since the judiciary is responsible for the civil law record, it is natural that each level of the court system should check on the record as well as the application of the law to the record. Regardless, civil law and common law practitioners will have very different expectations at the appellate level as well as the “trial” level. Perhaps because of US influence, global tribunals with appellate authority are limited to questions of law.291 Because of the complexity of factfinding in global disputes, this common law type appellate review might be best.

Lawyers and jurists from the two systems might disagree about the function of reviewing courts in any global judicial hierarchy. Based on the French model, the highest courts in civil law systems are likely to be courts of “cassation.” Cassation means that the reviewing court may “quash” a lower court decision it finds to be incorrect but may not substitute its judgment for that of the lower court.292 The reviewing court is limited to returning the case for reconsideration. Common law practitioners will expect global courts to conduct appeals. Experience with mixed civil law/common law systems shows a natural tendency for courts to evolve into courts of appeal.293

The procedures for supervision of state courts by a central judiciary will be another source of tension. US lawyers are likely to be shocked by some ideas that might come out of the EU procedures particularly. In the US, only the highest state court may be reviewed on federal issues. The EU has a “preliminary ruling mechanism” that allows any member tribunal, no matter how lowly, to refer EU questions directly to the ECJ. 294 An ICJ president has recommended that a similar mechanism be available so that

290 VRANKEN, supra note 78, at 50.

291 For example the WTO. Debra P. Stegar & Susan M. Hainsworth, New Direction in International Trade Law: WTO Dispute Settlement, DISPUTE RESOLUTION IN THE WORLD TRADE ORGANIZATION (James Cameron & Karen Campbell ed. 1998)



293 PALMER, supra note 76, at 39.

294 EU Treaty, Article 177.

national courts may refer international questions to the ICJ.295 US lawyers will be very uncomfortable with that approach.

Of course, questions of procedural design have already been addressed in the global arena. Where the US participates, the US has had its way on procedural issues. The US has been able to insist on adversarial type hearings. As more and more “regular,” non-international practitioners find themselves engaged in these global tribunals the tension will go up. Civil law lawyers may be less accepting of common law processes. And common law practitioners may begin to recognize that nonpractitioners have been willing to trade substantive principles for process. In short, the current detente on procedure, such as it is, may not be as stable as it seems.296

F. Impact of nonjudicial institutions

Not directly related to conflict between the civil law and common law systems as such but nonetheless equally important to anticipating global judicial regimes is the contrast in the judiciary’s overall position in government in a parliamentary system and a presidential system. Differences in the principles surrounding the judiciary in these two governmental models will reach into the global legal culture. Here, the US will diverge from even its common law partners.

US brand separation of powers structurally divides the two political functions into the legislative and executive governmental branches. Whereas in the parliamentary system, the executive or “government” is the leadership of the legislative. An informal separation exists between the ins and the outs rather than an institutional separation between legislative and executive actors as in the presidential system. Not only will the

295 American Society of International Law, supra note 265, at 181.

296 Jackson criticizes the WTO/GATT dispute settlement structure for its ossification of procedure. As many as 80 changes, most involving “fine tuning,” have been proposed. The Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes calls for review of procedures. Jackson notes: “One of the geniuses of GATT . . . was its ability to evolve through trial and error and practice.” Jackson, supra note 276, at 77. In contrast, he observed constraints on a similar evolutionary process regarding procedures. Surely, there is value in stabilizing procedures because of the number and diversity participants with various resources. Still, creating a judicial regime for the whole world should justify a good deal of new thinking and experimentation. But maybe that is a mere expression of an US lawyer’s obsession with procedure.

outs include the minority parties in the legislature but also the nonleadership, “backbenchers,” of the controlling party or parties. The key separation in the parliamentary system then is between the democratic institutions of government and the judiciary. The parliamentary system reinforces the civil law conception of the role of the courts in which the courts have a specially defined function regarding litigation with the government, often to guarantee that courts do not interfere in the business of government But, even common law parliamentary systems have the separation between the political branches and the judiciary. The font of the common law, England, evidences the long struggle between the elite judiciary and the representative parliament which has justified “parliamentary sovereignty.”297

On the other hand, the presidential model empowers the judiciary. Separation of the executive from the legislative branches in the presidential system puts the courts in the position of arbiters between the two political branch. Thus, the presidential model enhances judicial authority because the judiciary is the ultimate institution to mediate between the executive and the legislature. Because most parliamentary systems combine control of the two political functions, the judiciary is weakened by its position of second¬guessing the majoritarian institutions of government.

It is difficult to predict how separation of powers theory will play out in the global community. The EU has evolved, even though representing parliamentary systems, as more nearly a US separation of powers system.298 Perhaps, there is a natural tendency in that direction that will play out in the global arena. One useful global experience is the Lockerbie case discussed above.299 The case involved Lybia’s resistence to US and UK efforts to extradite those who planted the bomb that caused the crash over Lockerbie Scotland. Lybia filed a case with the ICJ in conflict with a decision by the UN Security Council. The ICJ’s resolution of the conflict established that both the Council and the

297 WADE & FORSYTH, supra note 71, at 29 (“The sovereignty of Parliament is a

peculiar feature of the British constitution which exerts a constant and powerful influence. In particular, it is an ever-present threat to the position of the courts

298 Bignami, supra note 92, at 468-469.

299 Libya v. United States, 1992 I.C.J. 114. 78

Court have certain quasi -judicial functions.300 Nonetheless, the Court made it clear that, while it is bound to cooperate with the other “principle organs,” the ICJ is equally bound by considerations of international law.301 On the other hand, its decisionmaking may not be confined to such considerations.302 While the ICJ ducked a direct confrontation with the Council by applying a separation of powers related concept similar to the US “political question,” it asserted its own authority to review the nonjudicial institutions.

Distinction in governmental models also affects judicial authority over administrative acts. Legislative and administrative acts are more clearly distinguished in the presidential model and hence courts have been able to assume significant authority. Similar action in parliamentary systems are another type of legislation making judicial assertion of authority antidemocratic rather than protective of the citizenry.303 The very terms used express the great gulf between the treatment in the two systems. In the US, it is called rulemaking and in the parliamentary systems is called delegated legislation or subordinate legislation. As delegated legislation, delegated to the government part of the legislature, these administrative pronouncements properly take on the aspects of legislation. From a judicial review perspective, they are much the same as legislation. Whereas in the US, such administrative pronouncements are conceptually distinct from the legislation which they are intended to implement.304 While pronouncements made

300 Vera Gowlland-Debbas, The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case, 88 AM. J. INT’L L.643, 661 (1994).

301Id. at 674.


1920-1996: VOLUME I THE COURT AND THE UNITED NATIONS 118 (1997) (“[W]hile the

Court’s task is limited to functions of a legal character, its power of action and decision is subject to no limitation deriving from the fact that the dispute before it might also be part of a dispute which is within the competence of some other organ.”).

303 It seems consistent that administrative interpretations have more force in civil law systems than in the US brand common law system. DE CRUZ, supra note 143, at 269.

304 Another manifestation of the separation between the judicial and political institutions in civil law is the careful distinction between public law and private law. US law is not without this system but it is not so grounded as it is under the civil law. Indeed, these categories go back to Roman law. In the US, the government is not “protected” by separate courts. Not only is the government subjected to oversight by generalist courts

pursuant to delegated authority, “legislative rules,” have special force, even those not classified as actual legislation.305

The EU experience, tending more to separation of powers than its parliamentary members, suggests administrative “legislation” more in the US mode.306 The EU, however, is more of middle ground between the presidential and parliamentary models. The US will view administrative pronouncements as lacking legislative-like weight but the EU adherents might see it as “secondary legislation.” The former will carry the authority of an executive interpretation of a statute and the latter, to some extent, will carry the authority of the legislature itself. These characterizations will substantially

but US thinking is that such a system is necessary. Remember, the US thinks the judiciary is the least dangerous branch. However, review of government decisions by generalist judges is suspect and hence limited by several doctrines, e.g., political question, administrative law.

305 In our system Harmonized Tariff Schedules of the United States (HTSUS) must be characterized as legislative rules. HTSUS are “recommended” by the International Trade Commission and issued by presidential decree. 19 U.S.C. § 3004-3006 (2002). They are incorporated by reference into the statute itself. 19 U.S.C. § 1202 (Year). It is most nearly our system’s equivalent to “delegated legislation” in a parliamentary system. Delegated legislation is literally legislation made by the executive, which is part of the legislature. See e.g., WADE & FORSYTH, supra note 71 at 859. In our system, however, where the legislative and the executive are constitutionally separate, Congress cannot delegate actual legislative authority and hence rulemaking may not be considered “legislation.” Thus, the HTSUS must be seen as legislative rules made pursuant to delegated authority. See Chrysler v. Brown, 441 U.S. 281, 304-306 (1979) (where the Court inquired into whether an executive order represents sufficient delegation to be “law.”)

306 The dominant procedural requirements for EU “secondary legislation” or rulemaking was established by its “cosmitology” decisions. The Commission may adopt rules under the indirect control of the Council. Control is indirect because a committee of member state experts is charge with day-to-day supervision of Commission rulemaking. The second cosmitology decision gave parliament something like a legislative veto. Council Decision 1999/468/EC, 1999 O.J. (L 184) 23. See Christoph Demmke et al., The

History of Cosmitology, in SHAPING EUROPEAN LAW AND POLICY 61 (Robin H. Pedler &

Guenther F. Schaefer eds., 1996)

affect the judicial freedom in the face of such pronouncements.

Different separation of powers ideologies also affect judicial participation in the legislative process itself. Advisory judicial opinions are more readily accepted in continental European systems than in the US.307 Europeans are likely to push for an advisory role for global tribunals or for tribunals designed for that purpose, replicating the constitutional courts. French President Jacques Chirac advocated that the ICJ be invested with a “regulatory role, advising international organizations with advisory opinions requested to reconcile in cases where the international law of environment, trade and labor standards conflict.”308 US courts are constitutionally prohibited from issuing advisory opinions.309 In contrast, the constitutional courts of many nations regularly engage in advisory opinions.310 Legislators are often specifically authorized to take legislation to the constitutional court. Legislative standing in the US, in contrast, is not permitted.311 The ECJ has expressed jurisdiction over parliamentary actions against the other EU institutions. The two approaches to judicial advice might be hard to reconcile but the US might accept the continental approach because its prohibition is based on the constitutional language and not the rationality of the concept.

G. Qualification and selection of global judges

Another sensitive aspect of the global judicial regime will be the mundane question of judicial selection and qualification. The tension between the common law view of the nature of the judiciary and that of the civil law goes deeper than conflict over representation and professional qualification. Common law judges are amateur judges. That is, they are not trained or apprenticed as judges and are selected from among

307 HELFER & SLAUGHTER, supra note 2, at 314.

308 American Society of International Law, supra note 265, at 180.


§2.12(b) (2000).

310 LOUIS FAVOREU, CONSTITUTIONAL COURTS 22-23 (2001) (Noting, however,

that the extent to which constitutional courts engage in a priori review is decreasing.).

311 Raines v. Byrd, 521 U.S. 811, 828 (1997) (“There would be nothing irrational about a system which granted standing in these cases

practicing lawyers. As discussed above, civil law judges are trained as judges and they move up a hierarchy as they prove themselves at lower levels. They are products of a judicial bureaucracy, “faceless bureaucrats.”312 Common lawyers are likely to be appalled by such judges and civil law lawyers are likely to be appalled by the lack of training and experience of common law judges.313

The two selection regimes no doubt change the actual judicial decisionmaking. For one thing, common law judges coming from same fraternity find practitioner judges more acceptable. Studies show that practicing lawyers, not surprisingly, bring their practice perspective with them to the bench.314 Civil lawyers might find this tendency to detract from the integrity and impartiality of the judicial decision making. Common

312 Civil law opinions are collegial

313 Lord Goff discusses the quality of common law judges, stating that it is experience, rather than knowledge, that counts the most, and an essential quality of the judge is wisdom. Goff, supra note 101, at 755. Mixed common/civil law jurisdictions suggest a natural tendency toward selecting experienced practitioners where the civil law tradition of specialized training is not in place, choosing experience over education.

PALMER, supra note 76, at 37.

314 Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Charting the Influences of the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. 1377, 1470 (1998) (“Although we initially shared [skepticism about the impact of prior employment], our study found nearly every prior employment variable of these judges, with the exception of law professors and political experience (and perhaps prosecutorial experience), to be significant in some manner.”).

lawyers may find the civil law judges lack the touch of reality and over conceptualize. Yet, civil law judges have their own brand of experience, experience at being judges. Representatives of those systems may be forgiven for believing that that experience is superior and less likely to create bias.

The European judicial selection was made flexible in order to accommodate its common law members’ judicial traditions. With UK and Ireland prominent members of the European community, qualification of European judges had to accommodate the difference between common law and civil law judicial selection. Thus candidates for both the ECJ and ECHR satisfy alternative qualifications.315 Candidates qualify under the agreements either as qualified for judicial appointment in the national court or as those “who are jurisconsults of recognized competence.”316 These criteria recognize scholarship as a qualification for judges in accord with civil law respect for jurists as well as the common law insistence on practical legal experience and reputation.

A similar divide can be expected as the global tribunals become more court like. Qualification for membership on the ICJ offers a similar compromise. Judges are qualified if they have “qualification required in their respective countries for appointment to the highest judicial office, or are jurisconsults of recognized competence in international law.”317 Indeed, it might be expected that other alternatives might be contemplated to satisfy other legal cultures.

Characteristics of the adjudicators functioning in the WTO dispute process reflect more the political/negotiation character of the process than a true adjudicative character. The initial or “trial” level proceeding is conducted by “Dispute Panels” the qualification for which is prior service on a panel, representative under GATT, Secretariat expert,

scholarly record in international trade or law, or member’s senior policy official.318


EUROPEAN COMMUNITIES 49 (5th ed. 2000).

316 Treaty Establishing the European Community, Mar. 25, 1997, art. 223.

317 Statute of the International Court of Justice, art. 2


ORGANIZATION 61-62 (1997 ).

Members of the Appellate body must have recognized standing in international law or trade. To some extent the acceptance of scholarly background leans more towards the civil law approach. But in the end, the WTO bodies are not currently necessarily peopled by judicial types under either legal culture. Thus, if these bodies become more court-like in operation the question of selection and qualification of real judicial officials will have to satisfy those from both legal cultures. Again, the “judicial” nature of the adjudicators may be a characteristic that must satisfy diverse legal cultures.

Perceptions of the necessary characteristics for independence are also likely areas of tension. US is strongly committed to the value of life tenure. Whereas the EU, true to its civil law roots, believes that a term of years is in fact the best way to assure independence.319 It is very unlikely that global tribunals will ever have life tenure judges for reasons that are political more than choice of legal system. The best chance for judicial independence will be prohibition against reappointment.

Another independence issue, although not necessarily to pit transatlantic participants against each other, is national representation in supranational judicial bodies. Because of congressional participation in the selection of federal judges, US federal courts generally have local representation. In the EU, all its institutions, parliament, commission, council and the courts, explicitly incorporate member state identity. The ECJ as a practical matter assures representation from each member.320 The EU itself, however, recognizes that it must change in light of expansion.321

At present and in any foreseeable future, global tribunals will be sensitive to

national or regional representation. However, real equality of representation is impossible

because of the size of the world community. What must replace national representation is

319 EU Treaty, Article 223 (formerly Article 167) (“The Judges … shall be appointed by common accord of the governments of the member states for a term of six years.”).

320 Brown & Kennedy, supra note 315, at 48 (not required but since each member must agree on an appointment states will insist on representation).

321 Alan Dashwood, The Constitution of the European Union After Nice: Law-Making Procedures, 2001 EUR. L. REV. 215, 216

unfairly, Nice Intergovernmental Conference for not contemplating reforms beyond those needed for expansion.).

sensitivity to representation from various legal cultures. The ICJ has adopted this approach. Article 9 provides:

At every election, the electors [UN members] shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.322

This must certainly be a difficult judgment but a necessary spirit.323 H. Legal representation before global tribunals

In the end, the practice of law gives substance and reality to the rule of law. The successful merger of principles and theory which separate legal representation around the world will determine the success of the rule of law. Until recently, the practice of law has been largely a local or, at most, a national enterprise and implementation of the rule of law has struggled within many isolated venues. In our emerging global society, a coherent vision of the rule of law becomes an imperative and hence insulated legal practices are no longer acceptable.

The practice of law in the world’s legal systems can be quite different. Indeed, culture may have more to do with the practice of law than legal theory. Global practice will witness diversity among the various cultures of the world, even those adopting one of the transatlantic models. Whereas this article notes some major ideological distinctions between two major legal cultures, the practice of law among common law systems varies greatly as does the practice of law among civil law systems. Even at their base, civil law systems differ among themselves. For example, French civil law was intended to make lawyers unnecessary and, even though it does not accomplish that, its legal culture is influenced by that philosophy


54 (5th ed. 1995).

323 One possibility are the well-recognized comparative law groups called “legal families.” DAVID & BRIERLEY, supra note 108, at 18. As discussed in section III.F., these legal families may offer a device whereby the global legal culture may coordinate the various world legal cultures. ZWEIGERT & KÖTZ, supra note 82, at chap 5.

a faithfulness with the past.324 Law as practiced in the US differs substantially from practice in England and Ireland. In short, the style and nature of representation in the global arena will experience clashes of multiple cultures, even within the larger categories of civil and common law.

Faithfulness to language in authoritative documents is a major area of tension. The degree of attention to language can be expected to differ among common law and civil law representatives. As discussed, statutory language can no more be ignored in the common law systems, even in the US, than in the civil law systems. In the end, a court must obey statutory language in both systems. Nonetheless, US representatives must be prepared to argue from authoritative language in a way that seems somewhat literal and repressed to them. On the other hand, civil law advocates may find themselves somewhat freed by association with common law representatives. They might find themselves plumbing new approaches to language. Indeed, this experience might support the movements in the civil law away from the grammatical approach and it may give more credence to a certain degree of formalism in US jurisprudence.

The treatment of case law is the second major area of tension that will affect representation. Most likely, as justified above, precedent will have force in the global legal culture but will never attain the binding effect it has in common law jurisprudence. As discussed, precedent influences civil law so that the difference is one of degree. Supranational tribunals seem inclined to value precedent and the dynamics of creating a global legal culture itself demands reference to prior judicial treatment. Legal historians explain that case authority depended historically on the availability of judicial opinions in England.325 Having the cases available, common law lawyers and judges naturally picked them to support their position, especially in the power grab of the formative years.326 This experience suggests that the readily available reports of the decisions of global tribunals will necessarily lead to a more precedent oriented advocacy in the global legal culture. Rosenne observed regarding the ICJ: “The constant accretion of judicial precedents is

324 MERRYMAN, supra note 100, at 28-31.


TIMES OF SIR EDWARD COKE (1552-1634) 507 (1956) (“Even Francis Bacon acknowledged it. ‘Had it not been for Sir Edward Coke’s Reports . . . the law by this time had been almost like a ship without ballast, for that the case of modern experience are fled from those that are adjudged and ruled in former times. ‘”).

326 COKE, supra note 190.

creating what is now a substantial body of international case-law.”327 Representatives will naturally refer to prior decisions in support of their positions even if those decisions have no formal stare decisis effect. It will be hard for lower level tribunals to ignore related decisions by appeals tribunals. Appeals tribunals will find it difficult to avoid their own prior decisions. Add the common law practitioners’ inclination to use prior authority and it can be predicted that a case oriented representation and judging will become part of the global legal culture.

The common law glorifies lawyers and gives them ultimate control over the law. Judges are practitioners and see legal representation from the perspective of practicing lawyers. Legal analysis then will also differ depending on which will be recognized as the best authority. Civilians can be expected to advocate from scholarly works with more force than common law advocates. As noted above, in the civil law, scholars actually propound the law whereas, in common law, scholarship seeks to explain and influence the law made by judges.328 In practice, however, jurists are rarely cited by lawyers in lower courts in even the civil law systems.329 The real tension will come when civil lawyers expect their jurists to have compelling force at the “appellate,” or law developing, stage. They will expect scholars to have significant practical impact and representatives from other cultures, e.g Islamic legal culture, will also give special weight to the work of legal scholars. Even in the common law, scholars have considerable weight in appellate decisions. Again, the difference is one of degree and form

Each group of representatives will rely on familiar techniques and incorporate familiar strategies. On the other hand, representative will make the best arguments they can and hence global practice will find common law advocates arguing from authoritative language and jurists’ comments and civil law advocates arguing from judicial opinions and balancing of interests. Global judges will likely find themselves justifying their decision in similar flexible ways. In short, the global practice of law will borrow from all cultures. That does not diminish the overarching premise of this article that the subtle differences among legal cultures must be understood as their representatives engage in the process of fashioning a global legal culture.

327 ROSENNE, supra note 20, at 1609.

328 GLENN, supra note 89, at 227 n.69.

329 LAWSON, supra note 118, at 84.

IV Conclusion

Globalization will necessarily lead to an ever stronger union of constituent states under increasingly empowered supranational government. Judicial institutions will develop in this government. Global tribunals will become more court-like over the years. This prediction is relatively easy because the evolutionary process is already well along. The exact contours of the judicial institution are still to be determined but WTO dispute settlement body combined with the human rights adjudicators of the IJC provide very viable first generation antecedents.

Envisioning the legal culture that will emerge from these supranational tribunals is more problematical. This article has attempted to provide the framework for projecting the evolution of the global legal culture. Its major subtext is the practical necessity for US readers to learn about the world’s legal cultures, starting with the often quite unfamiliar ideologies and practices of the continental European systems. It observes that the two dominant legal cultures in the world are now the civil law system and the common law system. Together they form at least a significant component of 62% of the world’s jurisdictions, covering 70% of its population. To add some coherence, the US is cast as the major common law system and the EU represents a manifestation of civil law jurisprudence. A look to these two transatlantic systems is justified by the fact that both are federal in the sense that they represent a union of several sovereigns and hence their experience with legal unification will serve the global legal culture. Their dominance in the global legal culture might be supported by their current influence on both the world culture and the world’s economy.

The vision of this article can be no more than a look at the first generation. Strong and influential alternatives to these transatlantic legal cultures will no doubt cause continual reworking of the global legal culture. Islamic law, for example, covers in some way perhaps a billion people, nearly 19% of the world’s population or the same as the coverage of the common law. It has shown a resilience and adaptability that guarantees that it will be a major factor in the final design of the worlds legal culture. The Hindus legal family is said to cover 450 million people, i.e. larger than the US or the combined EU countries. A variety of indigenous legal cultures may emerge from under superficial acceptance of European legal systems. Non-transatlantic instincts, such as the Chinese and Japan exultation of cooperative values over individuality, will also increasingly vie for place in the world’s legal philosophy. And history and humility tells us that there are influences, philosophies and value systems that could not now be identified which will someday change, perhaps radically, the make up of the legal system.

This article then presents only a framework for contemplating the future of the

worlds legal culture. It launches from the known dominant legal regimes to offer only one of a large, perhaps infinite, variety of extensions of those into the world. And it has largely ignored the assured influence of any number of alternatives and it has not attempted to predict the impact of human imagination and creative on the emerging global legal culture. Still, I hope it is a fair start in envisioning a global legal culture.