Chapter 13 is a closing epilogue that summarizes the book’s thesis, namely, that the German legal system is the site of encounters amongst a variety of legal traditions. To animate and illustrate that argument a final time, an article discussing the Common Law and Civil Law characteristics of German constitutional law is presented for discussion.

The chapter presents an overview of the procedural arrangements adopted at the international criminal jurisdictions, namely the UN ad hoc tribunals for the former Yugoslavia and Rwanda and the International Criminal Court (ICC), covering the main milestones from the initiation of the investigation to trial phase to appeals against the judgment and sentence and review. Before delving into the trajectories of an criminal case before international criminal courts and tribunals, the chapter highlights the origins of international criminal procedure in the common law (Anglo-American, or ‘adversarial’) and civil law (Continental, or ‘inquisitorial’) approaches, resulting in its legal nature as a hybrid scheme where the balance between the domestic influences varies by tribunal and over time due to reforms pursued by judge-legislators (ICTY and ICTR) or by states and, to a lesser extent, judges (ICC). The chapter reviews the role and functions of the main actors in international criminal proceedings, including repeat or professional players (judges, prosecutors, and defence) and other participants such as victims and witnesses and states and international organisations. It also highlights the normative importance of human rights to international criminal process and the imperative of complying with the principles of public, fair and expeditious proceedings.

This chapter describes the legal topics treated in the biblical collections – topics that legal historians would use in their work. They include personal status, family law, property, contract, and harms.

In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

This chapter explores the current landscape of Latin American legal systems from a private law and public law perspective. The aim is to show the influences that have shaped each of these fields and their current state of development. The focus is on countries which are leading jurisdictions within the region, or that represent a particular trend or characteristic. Within the private law analysis, after a historical overview of the milestones in its formation process, some select topics are addressed. First, we consider how Latin American legal systems fit into the traditional categories of legal families; then, whether they can form a unique legal family; and, finally, current efforts to harmonise private law. The public law section centres on constitutional law and, in particular, on the New Latin American Constitutionalism (NLAC) movement. We identify the main features of the original NLAC Constitutions and then test them against the recent Chilean experience. The chapter concludes that interesting trends have developed within private and public law in the region but questions their distinctiveness and success.

Does the applicable law have an impact on the legal effects of contract terms? Is there a convergence between the common law and the civil law? To what extent does the principle of good faith influence the effects of a contract? Does arbitration ensure a uniform interpretation of contracts?

The laws of the countries that emerged on the territory of the former Soviet Union show profound similarities due to a number of shared historical experiences. They have all been parts of the Russian Empire and the Soviet Union and have all gone, simultaneously albeit not uniformly, down the thorny path of post-socialist transition. The resulting common legacies concern deep-lying features of legal method as well as central structures of substantive law. The codification movement, institutional design, way of functioning and the role of the judiciary, and the extent of the professionalisation of law and the flaws of legal academia as well as the current state of property law and the law of legal persons provide prime examples. Disregarding these continuities results in distorted images based, in particular, on overemphasised formal similarities to the civil law family. Therefore, joint consideration of the formerly Soviet, but also formerly tsarist and formerly post-Soviet countries, remains an indispensable tool of legal comparison.

This chapter develops along three lines. First, following a historical approach, it describes the birth and development of the civil law tradition – from the rediscovery of Roman law in the High Middle Ages to the enactment of the German Civil Code. The second part presents two cases where the civil law model has been transplanted outside of Europe: Latin America and Japan. The final part offers a critical outlook on what the civil law tradition means today.

For a variety of reasons, countries in Sub-Saharan Africa have retained the legal systems that had been imposed on them during the colonial period. The question that this chapter tries to respond to is whether, after six decades of independence, particularly after the fairly fundamental constitutional reforms that started in the 1990s, there have been any significant changes made to these legal systems. In other words, have the recent legal reforms resulted in the emergence of laws that are distinct and better suited to meeting the peculiar challenges of the sub-continent and have a distinct identity within or without the legal traditions they inherited? The chapter, among other things, examines the main trends in legal reforms, and highlights the nature and scope of legal changes in certain key areas. It is against this background that a comparative analysis is undertaken to assess the impact of the different legal reforms on the quality of justice and respect for the rule of law. The chapter concludes by pointing out that although there remains a clear common law/civil law divide on the continent and that no Sub-Saharan African legal system is emerging, there are some distinct sub-regional features, such as a special mix of Roman-Dutch/English common law in operation in southern Africa.

Globalisation has brought the world closer and urged nations to consider the differences between their various legal systems. Comparative law is vital to facilitating this. There are many reasons for the discipline to consider the legal systems of the Middle East and North Africa (MENA) region. The MENA population does not only represent a large part of the world, but the MENA region also has attractive markets with active investment opportunities. Recent studies indicate a remarkable move towards foreign investment in the MENA region business market. This chapter provides an overview of the fundamentals of the MENA region’s legal systems. What is new about this study is that it does not adopt the classical approach of examining Islamic law as the legal cornerstone in this area of the world. Rather, the chapter provides a comparison between the impact of Western laws – founded initially on either the Napoleonic Code or common law doctrines – versus the impact of Islamic law ‘Shari‘a’ on building the legal systems of the MENA countries. The chapter also gives examples of the role of comparative law in shaping some contemporary issues in the MENA countries today, such as migration and women’s rights.

This chapter examines encounters around mental health illness that played out within mandate Palestine’s hybrid legal system. Issues of mental competency and legal responsibility were debated across civil and religious courts, but this chapter focuses on the criminal courtroom and criminal insanity defences. Criminal insanity defences forced mandate judges, medical experts, and lay witnesses to debate what forms of behaviour and thought were evidence of mental health illness, and what should, by contrast, be considered normal, ‘rational’, and therefore punishable for a given defendant. Through a close reading of two exemplary cases, this chapter moves beyond the historiography’s focus on cultural difference to highlight how different bodies of knowledge – psychiatric, social, and folkloric – were put to work to define the ‘normal’ in relation to other axes of identity like age, class, and gender. A third case, which played out against the backdrop of the Palestinian great revolt, meanwhile reveals how understandings of the ‘normal’ could be warped by wider political circumstances, with life-or-death consequences for defendants.

Property law is increasingly confronted with limits and modifications arising from environmental and social contexts. The objective of this chapter is to highlight how property law can provide answers to environmental challenges, by adapting several of its fundamental concepts to the polymorphism of environmental and social issues. Starting with a study of the theoretical movement of Earth jurisprudence, the chapter suggests that it is possible to consider Nature as a subject of legal interests, allowing it to acquire legal standing. It also suggests that it is necessary to reconceptualise property and its narrative to develop, in both civil and common law, a more limited, relational and functional conception of property. In addition, the polymorphic heritage of property law makes it possible to call upon the civilian concept of patrimony, in its symbolic or technical function, to protect the environment.

The chapter explores what it calls the ‘Romanist’ or ‘contractual’ liberal current that was to dominate nineteenth-century Greek jurisprudence from the mid-1840s onwards. After exploring the intellectual sources (the historical school of jurisprudence, the French Doctrinaires, as well as the Idéologues) upon which the civil jurists (the ‘Romanists’ as the chapter calls them) drew, and their massive impact on legal thought and civil law, it discusses what the jurists tried to achieve and why they turned to Romanist jurisprudence. As the chapter shows, property reforms had central importance in this current and were strongly related to the transition from a pluralistic legal order (which centuries of Ottoman rule had imposed) to that of a modern and ‘civilised’ state. The chapter also shows that the emphasis on property makes sense only if the issue of the ‘national lands’ (i.e. former Turkish property that had been transformed into Greek state domain) is taken into consideration. It then discusses how, for reasons both economic and cultural/political, the Romanists subscribed to a subversive legislative agenda, conceptualised in the theory of the Rechtsstaat that had significant differences with that envisioned by the monarchical authorities.

In this chapter, I examine how voluntas helps the young lawyer Cicero craft arguments and structure relationships with Roman clients, witnesses, and juries. In the De inventione and forensic speeches, we see his struggle to reconcile tradition with new intellectual tools. As he seeks to bring ratio more fully into Roman legal culture, voluntas plays a plural and ambiguous role. It is an instrument of rational inquiry, as in the competing schemata of criminal responsibility he examines in the De inventione. As it has always been in Roman law, voluntas is the desire of a legally relevant individual, emanating from and attributable to him alone – the marker of his agency and responsibility. So, too, however, is it used to signify the collective goodwill of an audience, which Cicero makes clear is the expert orator’s plaything. The “goodwill” sense of voluntas adds greatly to its durability in moral philosophy. While a sententia or iudicium pertain to a specific question, voluntas marks an ongoing choice or disposition, such as the will of a legislator, to be conserved. Cicero’s objectives for the law go largely unachieved in his time, but they expand Rome’s intellectual field of vision.

Molière’s depiction of marriage and the struggle between parents and children over the choice of a spouse uses the framework of civil law to shape his treatment of the comedy in these quarrels. While Molière explores human folly to drive the action in plays such as Le Bourgeois gentilhomme and L’École des femmes, legal requirements for arranging a valid marriage in early modern France also form part of these stories. Only the Catholic Church could declare a marriage valid, but the French monarchy promulgated laws giving fathers the right to punish disobedient children with penalties ranging from disinheritance to criminal charges. However, Moliere’s works mock the men entrusted with this power, showing them to be vain and superficial patriarchs who seek partners that will elevate family status rather than providing for the happiness of their children. Mothers and servants step in to undermine these foolish plans and help children marry for love and happiness rather than social concerns. Despite their subordinate roles in their families and in French society, these figures understand how to get round the requirements of French law and the wishes of men to conclude happy partnerships for the young people in their midst.

The chapter analyses Pufendorf’s comprehensive account of the civil condition that arises through the institution of new civil personae that replace those of the natural condition and are governed by sui generis principles and values. The basic principles for civic life are laid down through discussions of civil law (denying Hobbes’s identification of it with natural law), punishment, social value (“esteem”), and public power over property, all of which are treated in terms of the transition from the natural to the civil condition and founded in civic purposes, not in nature. This transition is not considered as a transfer of natural morality into the civil sphere, but rather in terms of the requirements of a civil order grounded in civil sovereignty and the civil state as an imposed status or condition. The same argument applies to “the right of war which accompanies a natural state <but> is taken away from individuals in a state”. Once the right of war is considered a matter for the sovereign alone, it must be part of Pufendorf’s account of civil society, an arrangement that underlines his insistence that there is no law of nations distinct from natural law, as discussed in ch. 10.

Chapter IV examines the withdrawal remedy in Germany, arguably the earliest major jurisdiction to introduce a close corporation legal form – the GmbH. The history of German GmbH law, especially the law of member withdrawal, belies Germany’s image and reputation as a ‘civilian’ jurisdiction. Despite the GmbH’s beginnings as a revolutionary invention of the German legislator, GmbH law is since little touched by major legislative reform, and heavily shaped then and now through German judicial precedent and academic literature. Member withdrawal for ‘good cause’ (Austritt aus wichtigem Grund), developed in the absence of express statutory provision, is an example of this par excellence. The flexible core concept of ‘wichtiger Grund’, which supports withdrawal in a wide variety of circumstances, powerfully demonstrates withdrawal’s value in the close corporation context. Germany’s experience illuminates the path for jurists of any jurisdiction interested in developing a functioning withdrawal regime of its own – even if politician-legislators accomplish and contribute nothing.