Classics in Comparative Law : An Introduction

University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 14-09

Classics in Comparative Law: An Introduction Tom Ginsburg Pier Giuseppe Monateri Francesco Parisi

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Tom Ginsburg* – Pier Giuseppe Monateri† – Francesco Parisi‡ Classics in Comparative Law: An Introduction§ ABSTRACT: Legal scholars often criticize comparative law for being an overreaching discipline, lacking a coherent methodology and a well‐defined domain. Nevertheless, there remains something exciting and potentially enlightening about comparative law. In these 3 volumes, we present a selection of 76 articles and essays that in our view illustrates the importance of comparative legal analysis. We survey, in a necessarily selective and incomplete way, the modern era of comparative law, beginning in the late 19th century. In this introduction, we summarize many of the themes in the collection, with special attention to three enduring questions in the field: how do law and legal systems develop? How do we understand variation? And why should we care? KEYWORDS: legal families, comparative legal systems, legal evolution JEL CODES: K00, K1

Comparative law is a discipline of both grand scope and fuzzy boundaries. It

is concerned sometimes with the institutional framework of whole legal systems, while at other times with particular legal problems of exceptional geographic and historical specificity. It is sometimes the study of substantive law, while at other times the study of procedure, institutions, or legal culture. It sometimes employs the tools of doctrinal law scholarship, but other times anthropology, philosophy, sociology, political science, economics, and history, with most recent examples of multi‐disciplinary comparative analysis. * University of Chicago, Law School. † University of Torino, Faculty of Law. ‡ University of Minnesota, School of Law and University of Bologna, Department of Economics. § Forthcoming in Tom Ginsburg, Pier Giuseppe Monateri and Francesco Parisi (eds.), Classics in Comparative Law (3 volumes), Edward Elgar (2014). We are grateful to Daniel Pi, who helped weave together bits and pieces of our ideas into a coherent whole. Suzanne Thorpe and the reference librarians at the University of Minnesota Law School greatly facilitated our search of the material collected in these volumes.

1 Electronic copy available at: http://ssrn.com/abstract=2390695



Owing to this range, many legal scholars have taken a critical attitude toward

the field. Although “comparative law” has existed since Montesquieu in the eighteenth century (and informally, its roots may be traced as far back as Aristotle), even practitioners of comparative law must concede that, perhaps due to the vastness of its subject matter, as an academic discipline, it presently remains at an inchoate state of development. One of the present authors (Pigi Monateri), bemoaning the stagnation of the field, ironically complained that when reading comparative law articles, he could hardly distinguish without being told whether any one was written in the 1900s, 1950s, and the 2000s, so little has the field progressed in the past century. British legal scholars have long argued that comparative law is dead (or should be put to death). And still others have lamented the comparative lawyers’ preoccupation with the common law vs. civil law dichotomy, and the relative lack of attention given to non‐Western legal traditions (though this has lately been less true than it had been historically).

We believe these complaints should be taken seriously. Nevertheless, there

remains something exciting and potentially enlightening about comparative law. Though it may be accused of being a diffuse and overreaching field, the breadth of its subject matter draws our attention to macro‐level legal issues, which deserve investigation, and which might otherwise be neglected. It informs our understanding of transnational law, providing the bases for analyzing the interface between disparate legal traditions. It furnishes the tools to explain and predict the evolution of particular domestic legal systems. And it helps us to understand more



2 Electronic copy available at: http://ssrn.com/abstract=2390695

generally what is essential to all legal systems, what is necessary, what is the product of geography, and what is the product of historical accident.

In these four volumes, we have collected 76 foundational essays, which have

helped to define and advance the study of comparative law in the twentieth and twenty‐first centuries. We freely admit that no such compilation could be exhaustive, and from the very outset we embarked in this project abandoning any aspiration of completeness. Instead, we aim only to illustrate the methodology and substantive legal analysis of some representative comparative legal scholars, providing readers with a point of entry to further explorations in the field. The selections should be taken as exemplars of how comparative law scholarship touches various and divergent subject areas, though obviously we could not represent fully the panoply of positions that various authors have taken on these topics, nor the variety of methodologies employed, nor the multitude of specific questions that have driven research. In addition to identifying some introductory readings for individuals approaching the field for the first time, we hope that our selection of “classics” will also provide some guidance on the structure of the discipline moving forward, identifying critical pieces that can give shape to this amorphous subject area. Our approach in this has been to look back reflexively at the existing literature to identify a “canon,” which regrettably limits us from pointing out new directions that we hope to be areas of future growth. In particular, we are sensitive to the criticism that comparative lawyers have until now given too little attention to non‐Western legal systems. However, in offering this collection of classics, we have elected not to



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impose an agenda of where we feel the future research should go, but rather simply to identify the foundations of the field as it stands today. Having said this, we cannot emphasize strongly enough that this collection ought not to be regarded as the final product of a mature field of research, but rather as an intermediate point in the development of the field, as we take stock of past successes, upon which future work should build.

This collection is organized into four volumes. The progression is roughly

from general and abstract to specific and concrete topics. The first volume covers methodological issues, the evolution of legal systems, and convergence. The second volume covers institutions: the origins and types of legal systems, the comparison of and contrast between common law and civil law traditions, and courts. The third and fourth volumes deal with particular areas of law: Volume III contains works on comparative private law, including property law, contract law, and tort law; and Volume IV contains selections on comparative public law, along with criminal and civil procedure. Given the large number of selections included in this collection, we will eschew the editorial convention of commenting on each of the items in this introduction. Instead, we will use this introduction to present the topics considered in broad strokes, highlighting particular articles only as they fit into our narrative. We should add as the caveat that our choices to comment on a particular piece rather than another in this introduction should not be interpreted as an indication of their relative importance to the field. Rather, we mention only those articles, which given limited space, we can conveniently weave into our discussion.



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Volume I

The comparative study of laws of different nations has existed for nearly as

long as the study of law itself. The interactions between nations have, for multifarious reasons, required lawyers to contemplate the relationships between disparate legal traditions wherever they came into contact. However, it was not until the eighteenth century that comparative law became a topic of serious and sustained scholarly inquiry. By the twentieth century, it had become a field of truly international significance. The First International Conference of Comparative Law convened in Paris in 1901, symbolically marking the ascension of comparative law in the legal academy. It is ironic therefore that our first selection, written only two years later, should be entitled, “The History of Comparative Jurisprudence” (Pollock 1903). Implicit in Pollock’s title, we see already the polemic of perspective, for the “history” that Pollock considers, the reader will not be surprised to discover, does not concern developments during the two years since the Paris conference, and the use of the term “jurisprudence,” implies that comparative law’s function be in the realm of legal theory and not the empirical comparison of bottom‐level rules in different legal systems.

Contrasting with Pollock’s conception of comparative law as a way of doing

legal theory, Watson’s (2000) piece urges comparative lawyers to take seriously the particularities of a system of law qua law. In contrast to the Langdellian tradition, Watson rejects the identification of law with the law library, instead asking us to consider the “law in action,” and to understand the internal history of legal traditions as distinct from politics, social trends, and economic forces.



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We also include selections by Freund (1974) and Gutteridge (1971), which

present complementary perspectives on “formalism” and “functionalism,” a distinction that drove much historical debate on the methodology of comparative law.

A major theme in comparative law has been the circulation of legal ideas and

the movement of these ideas across disparate legal systems. Thus, in the second part of Volume I, we consider the concept of “legal transplants,” a term coined by Alan Watson. Early work in this area traced the history of particular rules as they moved across borders through borrowing and imposition. We begin with selections from Watson’s (1993) classic book, Legal Transplants: An Approach to Comparative Law, wherein he argues that transplants from one legal system to another – e.g., the Egyptian code established after World War II being modeled upon the French Civil Code of 1804 – is the norm rather than the exception in the development of most legal systems. Consistent with his earlier entry, Watson implores us to take law qua law seriously, understanding the dispersion of legal rules in legal rather than sociological or economic terms.

Arguing against Watson, we include a piece by Legrand (1997), who

contends that the law is deeply rooted in the culture of the society it governs, and that it must be understood in terms of exogenous, contextual elements. This more recent argument, informed by postmodernist theory, challenges the very possibility of legal transplants, contending that rules and institutions are so deeply contextual that a new environment completely transforms the identity of the law. In arguing for a holistic approach to understanding transplants, Legrand channels



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Montesquieu, who in the eighteenth century famously identified “climate” as a possible source of variation between the laws of different nations. Montesquieu used climate in both a literal and figurative sense, arguing that law reflected underlying social and environmental conditions. Thus the claim of Legrand, in opposition to Watson, is that laws evolve to fit their particular context, and so to understand variation, we must understand context as well.

Closely related to legal transplants is the concept of the “legal hybrid,” the

result of what may be regarded as a great accumulation of transplantation – at least from a Watsonian perspective. The idea of legal hybrids assumes that there are relatively pure traditions, the common law. Some jurisdictions, as a result of historical forces, have been sites of influence by both of these. Legal hybrids bring into sharp focus the interplay between elements of different legal traditions, as in MacDonald’s (1985) analysis of Quebec, and Yiannopoulos’s (1980) piece on Louisiana.

Following the lead of Montesquieu, cultural variation continues to be a major

element in explaining differences in the law across jurisdictions. We begin the third part of Volume I with Hoebel’s (1954) foundational albeit somewhat dated piece, approaching the question from an anthropological perspective. We then offer a contrasting perspective on the mechanism for the evolution of legal rules in Posner’s (1980) economic analysis of the law in primitive societies and Parisi’s (2001) historical analysis of the evolution of the ancient law of wrongs, from which criminal and tort remedies derived.



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We conclude Volume I with an essay by Geertz (1983), which looks at law not

from the viewpoint of a scholar contemplating it abstractly, but instead from an internal perspective, viewing laws through the eyes of participants in social interaction. Such efforts in the realm of social science – and in anthropology particularly – has borne much fruitful research, approaching the question from a novel orientation, and demonstrating the variety of useful ways that issues in comparative law may be addressed. Volume II

Having offered a taste of the methodological and theoretical issues

underlying the field, we move in Volume II to the literature concerning actual legal systems, their taxonomic organization, and their institutions.

An important branch of comparative law has focused on the concept of “legal

families,” tracing the historical developments that led to divergent approaches to law in different parts of the world. We have included in this section several polemical works, which exemplify how comparative law can challenge our preconceptions about the law. We introduce this topic with Stein’s (1992) wonderful article, “Roman Law, Common Law, and Civil Law,” analyzing the origins of modern legal systems. Stein challenges the received view that the civil law is a continuation of the Roman legal tradition, pointing out the ambiguity of identifying “Roman law” as a monolithic entity, and pointing out similarities between the development of the common law and classical Roman law. Code‐based systems, Stein points out, share greater similarities with the law of the late Roman Empire and Justinian than classical Roman law.



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Challenging another orthodoxy, Lawson’s (1982) piece raises the question of

objectivity in the comparative scientism of scholars, who try to measure similarities and differences in a taxonomy of legal systems. Indeed, the very existence of a “Western legal tradition,” and “Roman tradition,” are questioned in Monateri’s (2000) “Black Gaius,” (an allusion to Bernal’s Black Athena) which argues that legal traditions arise from conflicting narratives, competing packages of factual elements and rhetorical devices used to construct a history intended to legitimate present practices. Ruskola (2002) article on legal orientalism further confronts the Euro‐ American mistaken conception of non‐Western legal traditions (and Chinese law in particular) as the external boundary of what constitutes the domain of proper legal systems in a comparative perspective.

We conclude the section on legal families with a well‐known and

controversial piece by La Porta et al. (2008) in the area of law and finance, focusing on the long‐term consequences of legal traditions for the economy and the structure of finance over the span of centuries. Working within a social science methodology, this article offers a fresh perspective on the role of law and the impact of legal traditions, from scholars working outside the legal academy.

The second topic we consider in this volume is the distinction between the

two grand traditions. The definitional distinction between common law and civil law has often been identified with the role of judges in the two traditions; the historical dominance of the judiciary in forming the common law led to the stereotype that Anglo‐American systems were dominated by judge‐made rules, whereas judges in the civil law tradition operated more automatically (though also more



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industriously). Like all stereotypes, there is a kernel of truth to it, however comparative law scholars have enriched this clichéd view, adding nuance and refinement to the crude dichotomy of the stereotype.

For instance, the role of precedent and the principle of stare decisis,

ordinarily regarded as a unique feature of the common law system, is shown in Cappelletti (1981) to exist, albeit informally, in the interpretation of code based law as well. Goodhart’s (1934) article from the early part of the twentieth century similarly offers an analysis of the role of precedent in both common law and civil law systems. Indeed, even when considering the common law tradition in isolation, we discover in the selections by Radin (1964), Stone (1959), and Allen (1951) that the role of precedent is far from straightforward.

This topic leads us naturally into the third part of this volume, dedicated to

Courts. Ramseyer (1994) investigates the question of judicial independence from a comparative perspective, proposing a view that is rooted not in cultural factors, but in the organization of political systems. Judicial independence, he argues, is likely to emerge as a result of specific political configurations in which party systems are competitive. This contribution helps us not only to understand variation in the levels of judicial power around the world, but to make predictions about when judicial power will emerge.

The selections by Sweet (1999) and Shapiro (1981) follow the spirit of this

line of inquiry, probing the institutional and political factors that shape the role of the judiciary. Garlicki (2007) takes a more direct approach, comparing and contrasting the function of high courts and the division of jurisdictional disputes in



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his recent paper, “Constitutional Courts versus Supreme Courts,” while Ginsburg approaches the institutional question from the perspective of law and economics. Volume III In Volumes III and IV, we have collected articles, which investigate the substantive laws of different legal systems. Of these, Volume III is concerned with private law: the law of property, contracts, and torts. We begin the section on property law with two articles on the origins of property. Rose’s (1985) article explores the transition from communal property to individual property, identifying possession and past use of the common property as the basis of property claims. Rose’s account of the origins of property is instrumental to the understanding of the concept of functional property, as we find in Banner’s (1999) piece, which describes a regime where multiple functional property rights could coexist on the same land – as was the case, e.g., in nineteenth century New Zealand. Demsetz’s (1967) paper, “Toward a Theory of Property Rights ,” is a seminal work both in the comparative law literature and in the law and economics literature. Demsetz looks at the establishment of property rights in North America and the resulting transition from a regime of open access property to a regime of private property. Demsetz’s observations shed light on the factors that lead to the emergence of private property, which he identifies as scarcity and increased externalities arising from conflicting uses of land.



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We include also a very recent and important paper by Gordley (2011) on the

external boundaries of property rights in the presence of other conflicting rights and interests, as exemplified by the civil law doctrine of “abuse of rights.”

Heller (1998) gives an important account of the establishment of private

property rights during the recent transition from socialist economies to market economies in post‐Soviet countries. This paper has become a pillar of the comparative law and economics literature, and the concept that Heller introduces – the “anti‐commons” – has become one of the most important concepts in the economic analysis of property rights.

We move from property to contracts with an excerpt from Atiyah’s (1989)

influential book, An Introduction to the Law of Contract, which discusses the forces, which historically guided the development of contract law. Von Mehren’s (1959) article seeks to identify analogues in the development of contract law in the civil law tradition generally. Offering a more specific comparison, we offer three contrasting papers comparing the common law doctrine of “consideration” with the civil law requirement of causa. In Lorenzen’s (1919) article from the first decades of the twentieth century, we see one of the first sustained investigations of how hybrid legal systems have dealt with the apparently similar requirements. These ideas are further developed in Fuller (1941) and Markesinis’ (1978) papers. We conclude with a seminal article by Farnsworth (1962), which demonstrates how comparative law can inform actual lawmaking practices, by



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investigating the development of international contract standards through an investigation of the domestic contract law of particular nations.

Finally, Part III of this volume covers the law of torts. We begin with Parisi’s

(1994) historical analysis of the intellectual history and theoretical development of civil liability, followed by Levmore’s (1986) article, using the tools of law and economics to analyze various ancient systems of tort law, and in the process, to propose a general hypothesis about variation. When alternative rules have great economic consequences, we are likely to see pressures for convergence, or the adoption of the same rule in very different contexts. On the other hand, when there is little economic consequence to the choice of alternative rule, we should see greater variety persist.

Contrasting with the theoretical approach of Parisi and Levmore, White

(2003) presents a legalistic history of tort law in the United States, while Watson (1988) discusses the development of tort law in the French Civil Code. These selections highlight the diversity of methodological approaches in the study of private law. Volume IV

The final volume of this collection consists of selections on public law and

procedure. We begin this volume with a piece by Elster (1995), which engages in a comparative study of the different ways of making a constitution to suggest that constitutional design processes should seek to minimize the role of self‐interest and “passion,” which often crowds out the role of reason and rational design.



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Following upon Elster, we include a pair of papers by Horowitz (2002) and

Garbaum (2001), which likewise approach the question of institutional design in an abstract and generalized way. We contrast this theoretical approach with the inclusion of nation‐specific studies by Kommers (1991), discussing German constitutionalism and Theodore de Bary (1995), discussing the evolution of the Chinese constitution. Considering the question from the viewpoint of political science, Ferejohn (1997) discusses the consequences of politics for different rates of constitutional amendment.

We next consider judicial review, a topic which partly overlaps with the

issues discussed in Part III of Volume II. Kelsen’s (1942) contribution compares the institution of judicial review in the United States and Austria. In addition to illuminating readers on the differing conceptions of the role of judicial review in these two legal systems, Kelsen’s article also highlights the usefulness of comparative studies in establishing generalizable results in legal theory through a careful investigation of particular legal systems. The following two papers by Rosenn (1974) and Weiler (1991) consider more particularly the role of judicial review in Latin America and Europe respectively.

Part III and Part IV of this volume concern procedure. Part III contains

selections on civil procedure and legal process generally. Much of the work on this topic has been published relatively recently, including the selections we have chosen to include. From the legal historian’s viewpoint, Metzger (2004) investigates the origins of procedural principles in the law of Rome, while Chase (2002) looks at



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the development of legal procedure in the United States, contrasting it with developments throughout the rest of the world.

We begin the final section with an article by Damaška (1975), comparing and

contrasting criminal procedure in different legal systems. Langer (2004) analyzes the role of plea bargaining in the American criminal law system, and its influence via legal transplant upon other systems. Finally, we conclude the series with a paper by Langbein and Weinreb (1978), which clarifies many misconceptions about criminal procedure in civil law jurisdictions. * * *

We hope that the reader will observe through these readings how

multifaceted the law can be in its many manifestations, and how rewarding a comparative perspective can be for innumerable tangential fields of legal scholarship, from legal theory to law and economics to critical theory to international law. More than this, we hope that readers will find the selections in these volumes fascinating in their own right.

As we indicated earlier, we consider compilations such as this to be, by their

very nature, unrealistically ambitious and necessarily incomplete. Nevertheless, we are hopeful that the essays we have selected underscore the relevance and importance of the comparative approach to the theory and practice of law. As comparative law engages with an ever more complex world, and as the scope of this already expansive discipline inevitably branches out further yet, it is worthwhile to look back to the classics, which serve as milestones in its growth.



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All of the items that we have included in this collection have had a strong

influence on the field. Prior to compiling them here, they could be found dispersed in law reviews, books, scholarly journals, and translated into many languages. By aggregating them into an anthology, we hope to leave readers with a path through the wilderness of comparative law and to mark the “end of the beginning” of an exciting approach to the study of law with boundless potential and a wealth of insights yet to uncover. References Sir Carleton Kent Allen (1951), ’Precedent: Nature and History’, in Law in the Making, Chapter III, 5th edition, Oxford, UK: Clarendon Press, 154-227 P.S. Atiyah (1989), ‘The Development of the Modern Law of Contract’, in An Introduction to the Law of Contract, Chapter 1, 4th Edition, Oxford, UK and New York, NY: Oxford University Press, 1-39 Stuart Banner (1999), ‘Two Properties, One Land: Law and Space in NineteenthCentury New Zealand’, Law and Social Inquiry, 24 (4), Autumn, 807-52 Wm. Theodore de Bary (1995), ‘The “Constitutional Tradition” in China’, Columbia Journal of Asian Law, 9 (1), Spring, 7-34 Guido Calabresi (1982), ‘Interpretation’, in A Common Law for the Age of Statutes, Chapter IV, Cambridge, MA and London, UK: Harvard University Press, 31-42, 203-17 Mauro Cappelletti (1981), ‘The Doctrine of Stare Decisis and the Civil Law: A Fundamental Difference – or no Difference at All?’, in Herbert Bernstein, Ulrich Drobnig and Hein Kötz (eds), Festschrift für Konrad Zweigert zum 70. Geburtstag, Tübingen, Germany: J.C.B. Mohr (Paul Siebeck), 381-93 Oscar G. Chase (2002), ‘American “Exceptionalism” and Comparative Procedure’, American Journal of Comparative Law, 50 (2), Spring, 277-301



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Cristiana Costantini (2010), ‘The Keepers of Traditions: The English Common Lawyers and the Presence of Law’, Comparative Law Review, 1 (2), 1-12 Mirjan Damaška (1975), ‘Structures of Authority and Comparative Criminal Procedure’, Yale Law Journal, 84 (3), January, 480-544 Harold Demsetz (1967), ‘Toward a Theory of Property Rights’, American Economic Review, 57 (2), May, 347-59 Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer (2003), ‘Courts’, Quarterly Journal of Economics, 118 (2), May, 453-517 Jon Elster (1995), ‘Forces and Mechanisms in the Constitution-Making Process’, Duke Law Journal, 45 (2), November, 364-96 E. Allan Farnsworth (1962), ‘Formation of International Sales Contracts: Three Attempts at Unification’, University of Pennsylvania Law Review, 110 (3), January, 305-29 John Ferejohn (1997), ‘The Politics of Imperfection: The Amendment of Constitutions’, Law and Social Inquiry, 22 (2), Spring, 501-30 David Friedman (1979), ‘Private Creation and Enforcement of Law: A Historical Case’, Journal of Legal Studies, 8 (2), March, 399-415 Lon L. Fuller (1941), ‘Consideration and Form’, Columbia Law Review, 41 (5), May, 799-824 Stephen Gardbaum (2001), ‘The New Commonwealth Model of Constitutionalism’, American Journal of Comparative Law, 49 (4), Autumn, 707-60 Roberto Gargarella (2005), ‘The Constitution of Inequality: Constitutionalism in the Americas, 1776-1860’, International Journal of Constitutional Law, 3 (1), January, 1-23 Lech Garlicki (2007), ‘Constitutional Courts versus Supreme Courts’, International Journal of Constitutional Law, 5 (1), 44-68 Clifford Geertz (1983), ‘Local Knowledge: Fact and Law in Comparative Perspective’, in Local Knowledge: Further Essays In Interpretive Anthropology by Clifford Geertz, Chapter 8, New York, NY: Basic Books, Inc., 167–236



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Grant Gilmore (1974), ‘Decline and Fall’, in The Death of Contract, Chapter III, Columbus, OH: Ohio State University Press, 61-93, references Tom Ginsburg (2002), ‘Economic Analysis and the Design of Constitutional Courts’, Theoretical Inquiries in Law, 3 (1), January, 49-85 A.L. Goodhart (1934), ‘Precedent in English and Continental Law’, Law Quarterly Review, CXCVII, January, 40-65 James Gordley (1981), ‘Equality in Exchange’, California Law Review, 69 (6), December, 1587-656 James Gordley (2011), ‘The Abuse of Rights in the Civil Law Tradition’, in Rita de la Feria and Stefan Vogenauer (eds), Prohibition of Abuse of Law: A New General Principle of EU Law?, Chapter 4, Oxford, UK and Portland, OR: Hart Publishing, 33-46 H.C. Gutteridge (1971 [1949]), ‘The Process of Comparison’, in Comparative Law: An Introduction to the Comparative Method of Legal Study and Research, Chapter VI, Cambridge, UK: Cambridge University Press, 72-87 Michael A. Heller (1998), ‘The Tragedy of the Anticommons: Property in the Transition from Marx to Markets’, Harvard Law Review, 111 (3), January, 621-88 E. Adamson Hoebel (1954), ‘The Cultural Background Law’, in The Law of Primitive Man: A Study in Comparative Legal Dynamics, Chapter 1, Cambridge, MA: Harvard University Press, 3-17, references Donald L. Horowitz (2002) ‘Constitutional Design: Proposals Versus Processes’, in Andrew Reynolds (ed.), The Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy, Chapter 1, Oxford, UK and New York, NY: Oxford University Press, 15-36, references O. Kahn-Freund (1974), ‘On Uses and Misuses of Comparative Law’, Modern Law Review, 37 (1), January, 1-27 Hans Kelsen (1942), ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’, Journal of Politics, 4 (2), May, 183-200 Duncan Kennedy (2006), ‘Three Globalizations of Law and Legal Thought: 1850– 2000’, in David Trubek and Alvaro Santos (eds), The New Law and Economic Development: A Critical Appraisal, Chapter 2, Cambridge, UK: Cambridge University Press, 19-73

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Donald P. Kommers (1991), ‘German Constitutionalism: A Prolegomenon’ Emory Law Journal, 40, 837-74 John H. Langbein and Lloyd L. Weinreb (1978), ‘Continental Criminal Procedure: “Myth” and Reality’, Yale Law Journal, 87 (8), July, 1549-69 Máximo Langer (2004), ‘From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’, Harvard International Law Journal, 45 (1), Winter, 1-64 Craig M. Lawson (1982), ‘The Family Affinities of Common-Law and Civil-Law Legal Systems’, Hastings International and Comparative Law Review, 6, 85-131 Pierre Legrand (1996), ‘European Systems Are Not Converging’, International and Comparative Law Quarterly, 45 (1), January, 52-81 Pierre Legrand (1997), ‘The Impossibility of “Legal Transplants”’, Maastricht Journal of European and Comparative Law, 4, 111-24 Saul Levmore (1986), ‘Rethinking Comparative Law: Variety and Uniformity in Ancient and Modern Tort Law’, Tulane Law Review, 61 (2), December, 235-87 Karl N. Llewellyn (1931), ‘What Price Contract? – An Essay in Perspective’, Yale Law Journal, 40 (5), March, 704-51 Ernest G. Lorenzen (1919), ‘Causa and Consideration in the Law of Contracts’, Yale Law Journal, XXVIII (7), May, 621-46 Roderick A. MacDonald (1985), ‘Understanding Civil Law Scholarship in Quebec’, Osgoode Hall Law Journal, 23 (4), 573-608 Åke Malmström (1969), ‘The System of Legal Systems: Notes on a Problem of Classification in Comparative Law’, Scandinavian Studies in Law, 13, 127, 130-49 B.S. Markesinis (1978), ‘Cause and Consideration: A Study in Parallel’, Cambridge Law Journal, 37 (1), April, 53-75 Arthur T. von Mehren (1959), ‘Civil-Law Analogues to Consideration: An Exercise in Comparative Analysis’, Harvard Law Review, 72 (6), April, 1009-78 Ernest Metzger (2004), ‘Roman Judges, Case Law, and Principles of Procedure’, Law and History Review, 22 (2), Summer, 243-75

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Pier Giuseppe Monateri (2000), ‘Black Gaius: A Quest for the Multicultural Origins of the “Western Legal Tradition”’, Hastings Law Journal, 51, 479-555 Francesco Parisi (1994), ‘Alterum non Laedere: An Intellectual History of Civil Liability’, American Journal of Jurisprudence, 39, 317-51 Francesco Parisi (2001), ‘The Genesis of Liability in Ancient Law’, American Law and Economics Review, 3 (1), 82-124 Frederick Pollock (1903), ‘The History of Comparative Jurisprudence’, Journal of the Society of Comparative Legislation, 5 (1), 74-89 Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer (2008), ‘The Economic Consequences of Legal Origins’, Journal of Economic Literature, 46 (2), June, 285-332 Richard A. Posner (1980), ‘A Theory of Primitive Society, with Special Reference to Law’, Journal of Law and Economics, XXIII (1), April, 1-53 Roscoe Pound (1955), ‘Comparative Law in Space and Time’, American Journal of Comparative Law, 4 (1), Winter, 70-84 Roscoe Pound (1964), ‘Justice According to Law’, in Essays on Jurisprudence from the Columbia Law Review, New York, NY and London, UK: Columbia University Press, 217-79 Max Radin (1964), ‘Case Law and Stare Decisis: Concerning Präjudizienrecht in Amerika’, in Essays on Jurisprudence from the Columbia Law Review, New York, NY and London, UK: Columbia University Press, 3-16 J. Mark Ramseyer (1994), ‘The Puzzling (In)Dependence of Courts: A Comparative Approach’, Journal of Legal Studies, 23 (2), June, 721-47 Charles A. Reich (1964), ‘The New Property’, Yale Law Journal, 73 (5), April, 73387 Carol M. Rose (1985), ‘Possession as the Origin of Property’, University of Chicago Law Review, 52 (1), Winter, 73-88 Keith S. Rosenn (1974), ‘Judicial Review in Latin America’, Ohio State Law Journal, 35, 785-819



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