When Is the Use of Foreign Law Possible? A Hard Case: The Protection of Privacy in Europe and the United States
| Author | James Gordley |
| Position | W.R. Irby Distinguished University Professor, Tulane University School of Law |
| Pages | 1073-1102 |
W.R. Irby Distinguished University Professor, Tulane University School of Law; Shannon Cecil Turner Professor of Jurisprudence Emeritus, School of Law, University of California at Berkeley.
No one thinks it odd that a Minnesota court should be guided by a decision in Wisconsin. The reason, some might say, is that Minnesota and Wisconsin are both applying the same system of legal rules: the common law. The meaning of a rule is shaped by its place in the larger system of rules and by the traditions that formed that system. If that is so, one might expect little guidance by looking to the rules of a foreign legal system.
Instead, however, one might think a Minnesota court should consult a Wisconsin decision simply because both courts are facing the same problem. History and tradition might explain why the problem happens to be the same, but so long as it is, Minnesota judges should care about what those in Wisconsin do for the same reason that engineers at Boeing should care about what engineers at Airbus do. There is no one right way to design an airplane. Each design may have advantages and disadvantages. In the end, the engineers at Boeing may make a different trade-off between fuel economy and speed, or capacity and comfort, than those at Airbus, but they are still facing a common problem and will understand the trade-offs better if they know what each other is doing.
Elsewhere, I have argued that even when one compares the private law of common and civil law systems, most of the problems are similar.1 The differences in laws represent a range of possible solutions. When that is so, it seems clear that jurists in one country should be guided by what those in other countries do. That is so even when, as in the building of airplanes, there is no single right solution, and when there are different possible ways to trade off advantages and disadvantages.
In this article, I would like to show why jurists in different legal systems should seek each other's guidance even when Page 1074 discrepancies in their law are glaring. The most glaring of all, perhaps, is the protection granted to honor, dignity, and reputation. The French protected this right since the nineteenth century, the Germans since 1954-and only then, their courts claimed, because their new democratic Constitution spoke of the "worth" of a human being. The English have protected such rights only recently and then, supposedly, because of a "breach of confidence." American courts have reached results unthinkable in France or Germany. For example, the U.S. Supreme Court has held that a magazine has a constitutional right to ridicule a public figure grossly and obscenely,2 and to release the name of a rape victim while her assailant is still at large.3 In France, in contrast, a journalist was held liable for writing an article that called a television commentator a "kosher pork butcher."4 A newspaper was held liable for revealing that a judge had taken a vacation for "nervous depression."5 In Germany, the German army and its soldiers recovered when a journalist called the army a "murder machine."
We will consider three reasons why the law in these countries might simply not be comparable, in which event one country could not learn from or be guided by the law of another. First, rules protecting honor, dignity, and reputation might have meaning only in relation to other rules of the same national legal system. If that is so, even jurists in civil law countries such as France and Germany could not seek guidance from each other's law since each has a different system of law embodied in its own national code.
A second reason is that one could not compare common law rules protecting honor, dignity, and reputation with those of civil law jurisdictions such as France and Germany. The traditions are too different; consequently, the jurists of one system could not seek guidance from those of the other.
A third reason is that the United States is different. Because of its unique traditions, it faces problems different from those of other nations. A look at other nations' laws would not be helpful.
Any one of these reasons could explain why the protection of honor, dignity, and reputation is different in the United States than it is elsewhere. Moreover, any one of them could explain why Page 1075 jurists in some nations could not learn from the law of others. Their problems would be so different that it would not be like Boeing learning from Airbus. It would be like Boeing trying to learn from Yamaha.
My claim is that if we examine each of these possibilities in turn, we will see that most often, the problems are the same. That does not mean the answers should be. It does mean we can learn from foreign law. Moreover, we will see why we can learn from foreign law even when the problems are different.
In the mid-twentieth century, the idea that each nation's law formed a "system" was widely accepted among comparative lawyers, although they were unclear as to what a "system'" meant: Did it mean rules that were logically coherent, or rules that reflected a "national spirit" or common ideals, or rules that reflected common methods and values? Many have dated the emergence of comparative law to the work of these twentieth century scholars who defined their task as the comparison of legal "systems."8 The archetypal work was by René David: Les Grands Systèmes de Droit Contemporains.9 According to David, "[e]ach law constitutes in fact a system: it employs a certain vocabulary, corresponding to certain legal concepts; it uses certain methods to interpret them; it is tied to a certain conception of social order which determines the means of application and the function of law."10
A kindred idea was that these systems were embodied in civil codes. The code supposedly represented, not merely an enactment of the legislature, but a logical and coherent response to whatever legal problems had to be answered. This view prevailed in France even though, as I have shown elsewhere, it was a nineteenth century innovation very different from the view of the drafters.
Page 1076
I am skeptical of this whole approach. The contents of the German or French codes seem to me a collage of solutions, some more coherent, some less, produced over the centuries and cobbled together by committees of drafters subject to their own idiosyncracies. As I said earlier, most of them address common problems.
In any event, there is no way one can explain the protection of honor, dignity, and reputation in France and Germany as elements of a system enshrined in their codes.
The French Civil Code never mentions them. The Code simply says, in articles 1382 and 1383, that anyone who causes another a dommage-a harm-must pay if (as French commentators rightly interpret these provisions) he has done so intentionally or negligently. Admittedly, the drafters were familiar with the Roman law of iniuria, which protected dignity. Yet, they never discussed it so far as one can tell from Fenet's compilation of their deliberations. Toullier12 and Duranton,13 the first commentators on the Code, do not mention the protection of honor, dignity, or reputation. They simply say that anyone who is at fault for actions which are injurious or harmful to another must pay damages. In their leading treatise, Aubry and Rau explained that "any right can be the matter of a delict-it matters little that this right concerns an external object, or one which is bound up (se confonde) with the existence of the person to whom it belongs."14 In a footnote, they added: "Consequently, for example, the honor and reputation of a person can be the matter of a delict."15 Without much argument, their position became standard among French commentators and courts.
Baudry-Lacantinerie and Barde dissented later in the century, although by then, as they acknowledged, the weight of authority was against them. In part, they directed their attack, not only against compensation for loss of dignity or reputation in particular, but also against any compensation for dommage simplement morale, or harm that was merely non-pecuniary and non-physical. The role of pecuniary damages, they claimed, can only be to "reestablish the wealth [patrimoine] of the person who obtains them by the amount by which this wealth was unjustly diminished." But even if the plaintiff should recover for non- Page 1077 pecuniary harm, he should not recover for affronts to his honor, dignity, or reputation. "It is scandalous that one can regard, as a matter of justice, the most sacred affections [and] the sufferings most worthy of respect."16 One cannot say, then, that the protection of dignity, which the Code never mentions, is in some way part of a "system" embodied in the Code and intelligible in terms of its other provisions.
This account of nineteenth century French law is much different than the one given by James Whitman in his article, "The Two Western Cultures of Privacy: Dignity Versus Liberty."17 In his story, in earlier centuries when societies were "sharply hierarchical," "only persons of high social status could expect their right to respect to be protected in court. Indeed, well into the twentieth century . . . only high status persons could expect their 'personal honor' to be protected in continental courts."18 The honor of...
To continue reading
Request your trial