Mixing Legal Systems in Europe; the Role of Common Law Transplants (Polish Law Example)
At least since the late 1960s, comparatists have been questioning the division of civil law jurisdictions into the German and French families, bearing in mind ongoing processes of amalgamation. Polish law is an example of a mixture, which firstly derives from the unique historical creation of the body of the legal system after First World War, which, in essence, survived until today. Further mixtures, being more typical to all European jurisdictions, were introduced through more or less massive transplants that related to the harmonization demands of the EU. Thirdly, the mixture was effected through thebottom-upprocessofAnglo-Saxonizationof law,especiallyinitscontractualdimension.
Three Dimensions of the European Jurisdictional Mixtures
1. It is true what E. Örücü said, that ‘what is necessary today is reassessment of individual legal systems according to the old and new overlaps, combinations and blends, and of how the existing constituent elements have mingled and are mingling with new elements entering them’.
2. Any attempt to position Polish law among the great legal families has been fraught with considerable difficulty. Western legal writers have adopted various stands as to how Polish law might fit among the legal systems of the world and usually did so without the benefit of a deeper analysis. Writing in their comparative legal studies classic, K. Zweigert and H. Kötz2 place Polish law as related to the French, while others, like La Porta et al. regard Polish law as an outgrowth of the German legal system.
3. In particular, as it follows from the Polish law evidence, three factors that challenge the classic taxonomy should be considered. The first is historical relationship, the second the effect of the European law. The third one is the impact of common law on the continental jurisdiction.
The historical perspective is not new in comparative law. As A. Watson said ‘[i]n the forefront, above all, stands the historical relationship; where one system, or one of its rules, derives from another system, probably with modifications’, with such process going back to ancient times. A unique particularity of the Polish system is the deliberate amalgamation of elements devised in various jurisdictions, opted for in lieu of importation of an entire system (as, for example, Swiss civil law was imported into Turkey) or importation of only particular institutions.
European Union law affects the legal systems of its members by mixing in a reciprocal way, characterized by infusing solutions or ideas from various legal jurisdictions into the EU system and then disseminating them back into the national systems via directives, regulations, and soft law-type guidelines, as well as European Court of Justice and European Human Court of Human Rights judgments. The EU law impact will be discussed below only briefly.
4. The most interesting feature, however, which has been present in the last decades and has not been much taken into consideration is the impact of the common law systems on the Continental jurisdictions in the last decades, this on a scale which has not been observed at an earlier stage.
5. Before discussing those factors in detail, the author would like to offer two caveats. Firstly, the comments set out below are, in principle, limited to the area of private law, as most of the taxonomies in the theory of legal families are,6 with particular emphasis on the commercial law. Secondly, for the sake of clarity of the argument that deals with European jurisdictions, the impact of international instruments other than purely European ones, e.g. UN Convention on Contracts for the International Sale of Goods (CISG or the Vienna Convention) or the Uncitral works, are not analysed in depth here, although their contribution for the process of mixing legal systems is noted.