Article by Peter Schlechtriem
When I received the invitation to comment on Ole Lando's most impressive report, I was a bit at a loss, for Ole Lando had convincingly outlined the function of comparative law as a basis of lawmaking on the transnational level, in particular on the European level in the preparation of the Principles of European Contract Law (PECL) and, regarding the United Nations, in the preparation of the Convention on the International Sale of Goods (CISG). I, therefore, will skip my prepared comments on these two subject matters and will restrict myself to supplementing the general report with some remarks on comparative law in the preparation of European Community (EC) directives and comparative law in the context of domestic legislation.
I would like to point out that by dealing with comparative law only as a basis for international conventions, transnational soft law, regional harmonization, or domestic legislation, we have unduly narrowed the field of lawmaking. First of all, courts and judges are very important lawmakers; therefore, I expected a report (or at least a special comment) on the role of comparative law in courts, including judicial precedent and landmark decisions. It is true that judicial opinions rarely make express references to foreign and comparative law as a source of inspiration. But I am convinced that judges take note of scholarly contributions in comparative law and consider the solutions of other legal systems (i.e., codes and court decisions). This is especially true of judges who studied comparative law in law school because it is natural for them to look beyond the fence to see whether the pasture on the other side is really greener. A second area in which comparative law in lawmaking seems neglected is the practice of drafting contracts for international transactions. A contract is the law of the parties, and, therefore, many lawyers when drafting a contract, in particular a choice-of-law clause, compare respective legal systems to advise their clients what law should be preferred and what legal provisions should be circumvented. Last, but not least, and probably dealt with in the coming sessions, comes comparative lawmaking by scholars in countries where scholars still influence lawmaking by legislators and courts by laying foundations and developing super-structures for new codes or judicial solutions.
About the Author
Peter Schlechtriem. Emeritus Professor of Law, University of Freiburg, Germany. Dr.iur. 1964, University of Freiburg; M.C.L. 1965, University of Chicago; Dr.h.c., Basel.
Citation
75 Tul. L. Rev. 1177 (2001)