Article by John C. Reitz
Because law reflects society's values to a considerable extent, comparative law has always had to confront differences in values and in the terms in which they are expressed. But as Professor Fleiner's article shows, these differences in values and in terminology, especially in the way civil law and common law systems conceptualize fundamental aspects of the state and the legal system, go to the heart of the comparative study of public law. Professor Fleiner is certainly right that we comparatists need to focus our attention on these differences. Comparatists in all countries must provide a way for lawyers in other countries to understand the very different concepts in each system. Only if we can understand the very different values in other countries can we fairly assess the importance of different legal institutions and rules. Only if we can appreciate the underlying sense of other countries' laws can we understand what differences are likely to persist and which ones are likely subject to harmonization or convergence.
In this Article, I attempt to contribute to that search for understanding by suggesting that many of the fundamental differences among the public law systems of the world can best be understood as reflecting different types of political economy. Political economy, I argue, is an important design principle for each legal system, but each country has its own specific version of political economy. Of course, differences in political economy do not explain everything about public law. There are certainly other families of design principles one can discern in the architecture of modern legal systems. There are surely other influences, as well, that are of such limited impact that we cannot consider them principles at all, but mere accidents of history. My claim is only that recognizing the differences in political economy will help us understand many important differences in public law. Part I establishes the methodological basis for this claim by defining the key terms “political economy” and “architectural principles.” Part II examines the political economy of France, Germany, Great Britain, and the United States. Part III starts with the argument that political economy is reflected in the laws of these countries concerning standing and related issues, such as citizen enforcement of public law and citizen participation in the process of agency rulemaking. Part III then extends that argument to conceptions of the state, constitutional rights, and judicial power; the traditions in the civil law of a strong distinction between public and private law and the separate court systems for public law that come with that distinction; and finally the system of distribution of state powers, including separation of powers, judicial review, federalism or other forms of centralization or decentralization. Part IV concludes by discussing how political economy relates to other important design principles of public law in particular and to the comparative study of law in general.
About the Author
John C. Reitz. Professor, University of Iowa College of Law.
Citation
75 Tul. L. Rev. 1121 (2001)