Contemplating a Civil Law Paradigm for a Future International Commercial Code

• Author: Wayne R. Barnes
• Position: Associate Professor, Texas Wesleyan University School of Law
• Pages: 678-774

Associate Professor, Texas Wesleyan University School of Law. Some of the ideas in this article were originally presented at the conference celebrating the 150th Anniversary of Hadley v. Baxendale: "The Common Law of Contracts as a World Force in Two Ages of Revolution," which conference was held on June 7-8, 2004, in Gloucester, England, at the University of Gloucestershire, Oxtalls Campus. I benefitted from discussions I had with many of the conference participants, including Joseph M. Perillo, Andrew Tettenborn, Dr. Florian Faust, and Joe Spurlock. I also benefitted from the input and suggestions of my colleagues Frank Snyder, Paul George, Cynthia Fountaine, and Susan Ayres, who reviewed prior drafts of this article and/or provided valuable suggestions.

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I Introduction

The international community has worked toward a global law of contracts for the last century. These efforts include the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, and the Vienna Convention for the International Sales of Goods (CISG). These texts are all tremendous achievements in their own right. The CISG, especially, is a monumental achievement, testifying to the increasing willingness of modern nations to cooperate toward a unification of commercial law.¹ However, they reflect a delicate juxtaposition of the twoPage 679 primary legal systems of the world-the civil law and the common law. A consequence of this tension has been that the texts are full of compromises between the two systems. The excessiveness of these compromises has resulted in confusion and lessened effectiveness of the resultant provisions.² The hybridized legislation is devoid of interpretational methodologies which accompany statutes in the common law and civil law systems, respectively. The international effort at a unifying law of contracts is therefore at a relative impasse because of this tension between the two systems.³ A solution is needed.

Suggesting the solution to this tension is the purpose of this article. That is, this article seeks to determine, between the two great and dominant legal systems of the world-the common law and the civil law-which of the two is more workable as the model on which any future regime of international contracts law should be based. The purpose is not to argue for the superiority of one system or another in the abstract sense, or in the sense of superiority as applied to a single nation's domestic system of laws.⁴ Rather, this article's narrow focus is to decide whether a common law or civil law model is more efficacious in implementing any future effort at such a sophisticated system of international contracts law. For reasons I shall expound, I believe that in this narrow sense, the civil law may prove a more pragmatic and politically expedient solution to this dilemma.

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Section II demonstrates that the common law and the civil law are easily the most widely practiced legal systems in the world. It will also provide a comprehensive historical overview and basic description of both the common law system and the civil law system. Particular emphasis is placed on the civil law. Section III describes the perceived need for an international law of contracts, the history of the efforts to attain such a regime, and the problem of uniform international interpretation of the current such law, the Convention for the International Sale of Goods (CISG). The effects of having participating nations from both legal systems is also discussed. Section IV asserts that a civil law model would provide a more pragmatic and efficacious solution for a future international contracts code, for the following reasons: (1) the civil law would be more distinctly unifying of the international law of contracts, (2) the civil law would minimize the surrender of nations' sovereignty to an international regime of contract law, primarily by promulgating a comprehensive code and eliminating stare decisis, (3) the characteristics of the international contract law-in excess of one thousand years old, and simultaneously a new supranational regime in the embryonic stages-are such that codification is especially appropriate for immediate implementation of any such regime, (4) common law jurisdictions have evidenced increasing amenability to codification of existing law and have also revealed an observable trend away from strict adherence to stare decisis, whereas there is no discernible converse trend in civilian jurisdictions, and (5) other considerations-including the sheer population numbers which weigh in favor of the civil law-point toward implementing a civilian international contracts code as the logical and pragmatic solution. Section V presents a brief conclusion. Section V, therefore, concludes by recommending that any future attempt at promulgation of a comprehensive international commercial code be done in the form of a civil code.

II The Two Dominant Legal Systems of the World: Common Law and Civil Law

A The Pervasive Reach of the Two Systems

Today's world is comprised of approximately 190 individual nation states.⁵ There are a host of differing legal systems in such nations. Included among these systems are very regionalized,Page 681 indigenous systems of customary law, and also various types of religious law.⁶ At first glance, it would appear that today's nations have decentralized into a veritable potpourri of legal systems, as scattered and irreconcilable as were the peoples in the aftermath of the biblical account of the Tower of Babel.⁷ In some respects this is doubtlessly true. In another important respect, however, there have really developed only two major, dominant systems of legal structure-the civil law and the common law.

That the civil law and the common law are the dominant world legal systems is immediately apparent from an observation of the statistics of the number of nations adhering to each of the respective systems. The University of Ottawa has assembled helpful information in this regard.⁸ Specifically, the jurisdictions in the world have been catalogued according to the following legal system categories: Civil law,⁹ Common law,¹⁰ Customary law,¹¹ and MuslimPage 682 law.¹² There is a fifth category, described as "Mixed," which is designed to broadly state the presence of many jurisdictions which have a combination of two or more of the four legal systems described.¹³

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Based on these categories, the University identifies the nations of the world by the appropriate category of legal system.¹⁴ The jurisdictions are divided into "pure" legal systems of only one of the categories, and also various combinations of "mixed" jurisdictions. All but three¹⁵ of the one hundred ninety-one nations of the worldPage 684 have some form of either civil law or common law. This represents 98.43% of all nations of the world.¹⁶ The population measure is even more impressive-99.56% of the population lives in a jurisdiction which utilizes a civil law system, common law system, or combination of the two, with some nations having other elements of indigenous customary law, or Muslim law, mixed into the system.¹⁷Hence, literally all corners of the earth have been touched by either the Common Law or Civil Law systems.

Common law (exclusive of any Civil Law), whether in "pure" or "mixed" form, is utilized by some fifty-one nations, or 26.7% of all nations of the world.¹⁸ These nations account for 34.81% of the world's population.¹⁹ These aggregate numbers are derived by adding together four combinations of nations: (1) Common Law (including the United States, United Kingdom, Canada, Australia, and Ireland); (2) mixed systems of...