Rachael Lorna Johnstone

Rachael Lorna Johnstone

Dr. Rachael Lorna Johnstone is senior lecturer in law at the University of Akureyri, where she has held a position since 2003, teaching principally in the fields of comparative law, the common law, international law and human rights law. Rachael studied at the University of Glasgow (LL.B. (Hons) 1999), the European Academy of Legal Theory in Brussels (LL.M. (Magna)) and the University of Toronto (S.J.D. 2004). She also has strong connections to Italy and has taught at the Universities of Genova, Catania and Palermo. She has published in leading international journals on human rights law and international law, with emphasis on women’s rights, economic, social and cultural rights, and state responsibility. Recently, she has turned her attention to her home country of Iceland with work on economic, social and cultural rights in the context of the economic contraction. See R L Johnstone and A Ámundadóttir, ‘Defending Economic, Social and Cultural Rights in Iceland’s Financial Crisis’ 3 Yearbook of Polar Law (2011) (forthcoming); and A Ámundadóttir and R L Johnstone, ‘Mannréttindi í þrengingum. Afdrif efnahagslegra og félagslegra réttinda í efnahagskreppunni’ (Human Rights in Crisis: Economic, Social and Cultural Rights in the Shadow of Iceland’s Economic Collapse), Rannsóknir í félagsvísindum XI; lagadeild, University of Iceland, October 2010. Online Access: http://skemman.is/item/view/1946/6702.

Grein birt í: Lögfræðingur 2011

Iceland’s Renaissance: Time for Comparative Law

I Introduction

In 2011, Iceland looks to a future beyond the crisis in which it must selfcritically reflect on its legal framework, engage in substantial law reform and recast its international and domestic identity. In this article, the author draws on her international legal education and her academic study of comparative law, combined with her experience as an immigrant to Iceland to draw some conclusions about how a better understanding of and capacity for comparative law could assist Iceland as it faces these challenges.

It is first necessary to say a few words about what comparative law is and eliminate a few misunderstandings about comparative law. Then, using the scheme of 5 goals of comparative law described by noted comparatist Peter de Cruz, the author shall consider each goal in turn and its potential for Iceland as it negotiates a new constitution, and reassesses its place in the World, legally, politically, socially and, perhaps most importantly, economically.

II Comparative Law

Before arguing for more comparative law, one should attempt to explain what comparative law is. Both terms – ‘comparative’ and ‘law’ – are the subjects of lengthy treaties but replicating these will not necessarily advance the argument in any justifiable way. However, some brief working criteria will be provided.

A ‘comparison’ requires 2 or more different things; one cannot compare two identical things in a meaningful way.Nevertheless, the comparatist of any discipline must also be ready to recognise similarity as well as difference and not overlook the obvious.It appears to be the natural inclination of humankind to recognise more swiftly difference before asserting what one has in common with one’s neighbours. Yet, all legal systems are based on the same fundamental goals: to reduce disputes, to provide criteria to peacefully resolve disputes and to allow a minimal degree of certainty about the consequences of one’s actions in determined fields.

There must also be some basis for any comparison – the tertia comparationis.This will always involve some kind of value judgment: a decision as to what similarities or differences are important. Thus, if one is to compare a whale and a shark, quite different answers will arise depending on the selected tertia comparationis: size, environment, diet, genetic make-up, evolutionary position. Thus, taking diet as the tertia comparationis, the orca and the white shark will have much more in common with one another than each has with their closer evolutionary relatives, the blue whale and the whale shark though the most elementary biological or physiological comparison would place the sharks together in one group and the whales in anot- her. From this simple example we can also take an important lesson for comparative law: do not rely on predefined categories and try to put aside expectations of similarity and difference.

While any study of comparative law will therefore require a knowledge of the law of more than one system, comparative law is not a simple study of foreign law. Knowledge of numerous legal provisions from different countries is not necessarily comparative knowledge: Pierre Legrand has contemptuously described such scholars as ‘mere technicians of national laws.’4

At this point it is then necessary to decide what counts as law and the comparatists answer may not square with that of the legal theorist. Law cannot be discovered exclusively by perusal of codes and statutes, no more so in the continental tradition than in the common law. An extreme example should suffice to illustrate the point. Female circumcision is punishable under the Criminal Code of Guinea by life imprisonment with hard labour, with the possibility of execution should the girl die within 40 days of the procedure.By contrast, in England and Wales, the maximum penalty for the same offence is 14 years imprisonment.A purely textual comparison would suggest that the offence is taken much more seriously in the African state. Furthermore, a consideration of court judgments would take us no further, since there have been no cases brought on the matter in either state. Therefore something outside of the law is necessary to explain why over 98% of women in Guinea are estimated to have undergone the practice, yet it remains exceptional in the United Kingdom, with most women and girls affected having been subjected to the practice abroad, either prior to immigration or having been temporarily removed specifically for this aim.

Law is always and irreducibly bound within culture; law is, in Krygier’s words: ‘a profoundly traditional social practice.’Thus to fully understand a legal norm, even one that appears straightforward, one must step inside the legal environment and read that norm as it would be read by a legal practitioner in that system.This requires context which in turns requires an appreciation of the historical influences on legal and political culture. Thus, for example, the French civil code’s prohibition on the judge declaring a gap in the law or, worse still, openly making law, must be seen in light of the revolution and the fear of judges abusing their positions to protect the interests of the ruling class.10 In neighbouring Switzerland, the Civil Code explicitly authorises the judge, should he find a gap in the law, to ‘pronounce in accordance with the customary law, and failing that, according to the rule which he as a legislator would adopt. He should be guided therein by approved precept and tradition.’11

Stepping into the shoes of a lawyer in another legal system not only requires a subtle appreciation of the cultural tradition in which that legal system stands, it also requires, often with even greater effort, leaving behind one’s own cultural baggage. The good comparatist must never make assumptions based on his primary education as to what is the norm. His own system is just one of many and has no special place. 

III Five Goals of Comparative Law

Peter de Cruz in Comparative Law in a Changing World described five functions of comparative law.12 These are broadly similar to those found in Zweigert and Kötz’ seminal textbook, although the emphasis that the scholars put on each is rather different.13

De Cruz’ five goals are as follows:
1. Comparative Law as an Academic Discipline
2. Comparative Law as an Aid to Legislation and Law Reform
3. Comparative Law as a Tool of Construction
4. Comparative Law as a Means of Understanding Legal Rules 
5. Comparative Law as a Means to Harmonisation of Laws.14

These will each be considered in light of Iceland’s pivotal moment in the defining of its identity.

1. Comparative Law as an Academic Discipline

‘The primary aim of comparative law, as of all sciences, is knowledge’15 and the creation and diffusion of knowledge should always be valued for its own sake. Naturally, the legal scholar must know his own system and the skills to enter practice within it.16 But knowledge of foreign law and skills in comparative law facilitate also more tangible skills.

First of all, comparative lawyers benefit from having their minds opened to a diversity of experiences, ideas and cultures. As a result, the comparative legal education can encourage a more critical assessment of one’s own system and the norms within it. Knowledge of different legal approaches opens the mind to the possibilities of law and reminds the scholar that law is not something delivered from on high on a tablet of stone that is now, always has been and ever shall be. The scholar of comparative law will reject the c’est le droit17 approach to law, an approach that some have seen as contributing to the Icelandic banking collapse. A minimalist regulatory framework, combined with an approach to law that ‘if something is not prohibited, then it must be permitted’ allowed businesses and investors to evade what little controls there were with a sense of impunity and to abdicate all responsibility. For example, in one state-commissioned review of the banking collapse, Finnish banking expert Karlo Jännäri concluded:

The tycoons of the financial system could circumvent the underlying pur- pose of the regulations by sticking to the letter of the law with the help of diligent lawyers and complicated corporate structures. The supervisors were too timid and lacked legal authority in their efforts to intervene in these developments, but the overall national pride in the success of the banks would probably have made it futile even to try while the going was good and success followed success.18

In retrospect, the reply of all concerned appears to be: ‘I broke no laws’ and ‘It was not my responsibility’ with very little reflection on who might bear responsibility for failing to introduce relevant laws and a calculated ignorance of non-legal norms.19

By contrast, understanding of different legal answers to similar problems creates the critical space for scholars to assess the political, economic and social choices that are inherent in any legal system. Such a scholar will know the answer of his own system to a particular problem, but will not assume that it is the only possible solution, or one that is immutable. The scholar will be armed with additional tools for critical reflection on law. Thus, knowledge of comparative law is a defence against the undue formalism that has historically been found in the narrow traditional legal educations of some European countries. The Icelandic scholar may decide that the Icelandic custom, law and practice is the best one, or at least, the best one for Iceland; but one can hardly make that judgment in absence of knowledge of alternatives.

Secondly, comparative law, by providing the scholar with knowledge of different approaches to law, not just as a matter of legal rules, but in terms of legal interpretation and application, broadens the scholar’s sense of the ontology of law, that is, the sense of what law as an institution is. One would hardly consider a college education complete without study of a foreign language and foreign literature. Recently, the second language was Danish; today, the emphasis is on English; and only fools and economists attempt to predict the future. Words that are not easily translated from one language to another enrich one’s conceptual space. The most oft cited example is the German concept of Schadenfreude,20 but other languages also offer rich resources, such as the Gaelic sgiomlaireachd,21 the French esprit de l’escalier22 or the Italian menefreghista.23

Study of a foreign language assists the scholar not only in communicating in the new language, but also enriches understanding of one’s own native tongue. The scholar develops a better grasp of Icelandic grammar by searching for equivalents in another language. So too with law – by increasing competence in another system, the scholar inevitably enriches his competence in his own. Taking this argument rather further, Zeigert & Kötz suggest that the study of only one system does not reach the level of a true academic inquiry at all: one cannot be knowledgeable of the concept of ‘language’ if one is fluent in only one. 

It may indeed be that the mere interpretation of positive rules of law in the way traditionally practised by lawyers does not deserve to be called a science at all, whether intellectual or social. Perhaps legal studies only become truly scientific when they rise above the actual rules of any national system, as happens in legal philosophy, legal history, the sociology of law, and comparative law.24

Scholar of comparative law will also have a broader perception of the operation of legal norms. Good comparative law is not a simple recital of the written legal norms to be found in a codex but requires sensitivity to the legal and social cultures in which they operate, as illustrated above in the example of the female genital mutilation law. Thus the comparative lawyer can see how the same rules produce different outcomes in different context; and likewise see how quite different rules produce similar results because of the different ways in which people appeal to and interpret the law. Even with only the narrowest legal education, a lawyer must be able to see the social and cultural norms that influence real world disputes: one could hardly have an understanding of the institution of marriage by studying only the relevant laws. But comparative law forces the scholars to take this approach to all fields of legal inquiry and pivots on this sensitivity.

Thus, conclude Zweigert & Kötz that:

it is the general educational value of comparative law which is most important: it shows that the rule currently operative is only one of several possible solutions; it provides an effective antidote to uncritical faith in legal doctrine; it teaches us that what is often presented as pure natural law proves to be nothing of the sort as soon as one crosses a frontier, and it keeps reminding us that while doctrine and categories are essential in any system, they can sometimes become irrelevant to the functioning and efficacy of the law in action and degenerate into futile professional games.25 

2. Comparative Law as an Aid to Legislation and Law Reform

Clearly linked to the former considerations, knowledge of what the law might be as well as what the law is, provides the necessary conditions to undertake law reform. Iceland is in the thrust of reform at both micro and macro level: in the former case, regulation of the financial sector and at its broadest, constitutional review. We must be reminded at this point, and in light of the previous section, that ‘law does not just happen.’26

Law is choice. At some point, some institution decides what the law shall be. It is at times of crisis that the choice inherent in law becomes obvious: law is an expression of political will, with economic and social values at its heart and economic and social consequences. Law, in other words, is an expression of power, both in its design and in its assertion.

At this time of reform, it is natural to look to neighbouring states to see what works in those contexts. As knowledge of multiple languages enriches one’s vocabulary, so is this true in legal science. But comparative lawyers will not look only to bare text, but examine the cultural underpinnings and with this knowledge be wise to the risk of bare legal transplants. The famous example is that of the German law of contract, implemented in Japan and then copied into China – but before the Chinese constitution had been amended to defend the right to private property. But closer to home, the basis of the Icelandic constitution remains the Danish one, despite that fact that Icelandic and Danish constitutional law are divided by one very simple, but absolutely fundamental constitutional difference: Denmark is a constitutional monarchy and Iceland a Republic. It is a nonsense to replace the King with an elected President and expect the balance of power to remain undisturbed. Likewise, in the field of economic law, Iceland has become distinct from its Nordic neighbours – for better or for worse. The economic model of the past two decades has been closer to that of the Anglo-Saxon systems than those of Scandinavia. In its review of financial regulation, Iceland must look beyond North-West Europe to other economic models with which it may have more in common; but it should not reject the lessons from the crisis itself and must be open to learning why some countries – notably in Scandinavia – have not been so painfully stung.

In these and other processes of law reform, Iceland’s relatively small population must also be taken into account. Issues such as conflict of interest and family relationships in business and politics take on a different light in small societies; likewise the law of privacy has a different function in a country where everyone already knows your grandparents, their careers, transgressions and major ailments.

Thus Iceland should look beyond Scandinavia to other models but not with a view to copying a constitution that works well in France or New Zealand or Finland or Malta. The comparative lawyer is sensitive to cultural differences and looks not only at the text or even the legal practice, but also the environment in which it operates. The comparatist knows what is special about each of the systems he is considering. Thus, when considering whether a legal provision – be it constitutional, legal or regulatory – might be appropriate for domestic law reform, he will ask two questions: 1) does this system work well in its home country? And 2) is it likely to work domestically? The experienced comparatist will have the necessary cultural sensitivity to answer the second question.

3. Comparative Law as a Tool of Construction

The third goal of comparative law in De Cruz’ framework is in the resolution of ‘hard cases,’ where there is a perceived gap in the law or an absurd result from a formalistic application of black-letter law.

Most legal systems, to which Iceland is no exception, do not accept foreign law as a binding source but nonetheless, resort to foreign law can be considered informative, even ‘persuasive’ if from a similar system. In the interests of legal certainty, Courts should determine outcomes first and foremost according to their own domestic provisions, but cases in which there is no clear and incontestable outcome will inevitably crop up. It is in these cases that the comparative lawyer will have the advantage in the courtroom as he can point to solutions and explain why they should or should not be adopted by his domestic Court.

Some judges protest the comparative approach, not only regarding their own system as exceptional but regarding this exceptionalism as fundamental to the identity of the system itself. In Roper v Simmons, the majority of the United States’ Supreme Court reviewed global developments in the restriction and abolition of the death penalty before holding that it would constitute cruel and degrading treatment to execute a young man who had been less than 18 years of old when he committed a capital offence.27 However, Justice Scalia dissented:

The basic premise of the Court’s argument - that American law should conform to the laws of the rest of the world - ought to be rejected out of hand. In fact, the Court itself does not believe it.... To begin with, I do not believe that approval “by other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment.... Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own heritage.” To the contrary, they are cited to set aside the centuries-old American practice.28

Nevertheless, in a small state, it is inevitable that disputes will arise that although new for Iceland will have been discussed and resolved elsewhere: knowledge of those solutions as well as the culture and non-legal norms in which they are steeped, will give the advocate a new line of argument. At the time of writing, an Icelandic couple remained in India with a child, born through a surrogacy arrangement with an Indian woman and a donated egg. The Indian hospital had issued a birth certificate stating the Icelandic couple were the lawful parents of the child but under Icelandic law, only the birth mother could be recognised as the legal mother, unless the child were to be formally adopted.29 Although the Icelandic Parliament granted the child Icelandic citizenship through an exceptional procedure, a pass- port had not yet been issued as the couple could not determine that they were legal guardians of the child.30 Examinations of foreign court decisions on similar cases may help to speed up resolution of this problem; in a simil- ar vein, examination of foreign legal frameworks will be a part of the forma- tion of any new law.31

4. Comparative Law as a Means of Understanding Legal Rules

Icelanders rightly pride themselves in their linguistic competence, switching easily between Icelandic, Danish and English and most demonstrating varying degrees of fluency in at least one other Romantic or Germanic language. This permits Icelanders to trade easily with a wide number of partners, something considered desirable given the inherent limits of the domestic economy.32 Iceland has also opened up culturally over the last decade with markedly increased immigration.33

By contrast, most law schools throughout Europe continue to focus on their domestic systems at the expense of an international or comparative perspective and Iceland has been no exception.34 Usually where comparative law is taught as such, it is optional and for few credits, rather than as a core part of the undergraduate legal curriculum. Thus even when students are introduced to comparative law (usually at masters level), they have already formed their ideas about what law is and how legal interpretation ought to be conducted; the foreign system will always be other. The student’s legal reasoning is formed according to one school of interpretation and it will take an extra effort to open the mind again to alternative ways of reading the words on the page. The challenges are even greater when students graduate with no knowledge of foreign systems and no skills in comp- arative law at all:

This body of literature [on comparative law] will be consulted only by lawyers who have been introduced to an international comparative approach during their education. Only those who become accustomed to working with foreign legal orders during their education will be ready and will show a sufficient degree of openness to have recourse to these sources in their daily work... it must be at the educational level that openness towards foreign law is created.35

Where foreign systems are consulted it is generally only where necessary to understand one’s own domestic system. As American legal textbooks cannot but refer on occasion to English law, in particular in the fields of constitutional law and legal history, so too do Icelandic works refer to their ‘parent’ systems, principally Danish and Norwegian law. However, the foreign system is consulted as an instrument towards understanding domestic law; the student is not encouraged to develop an independent grasp of the foreign system for its own sake nor to make subtle comparative analyses.36 This is not a study of foreign law, even less comparative law.37  

But what happens when disputes arise between trading partners or international families? ‘The younger generation of lawyers, and probably their successors as well, will be faced with an unparalleled “internationalization” of legal life.’38 Linguistic fluency is clearly a starting point for any communication; but laws cannot be read like a Laxness novel, where each can take from the text what he or she finds most meaningful, according to his own tenets of interpretation. Laws are interpreted within traditions, within legal cultures.

Comparative law prepares scholars not just to read the rules of other countries but to understand the principles and historical circumstances on which they are based and have the skills to interpret those rules. Thus can the comparative lawyer grasp the mentalité of a foreign system;39 to understand how a lawyer or judge within that system would understand a legal provision. The immediate example of where such skills are required is in the Icesave dispute: a dispute that has taken more than two years to resolve, with the costs for Iceland ever increasing, by virtue of interest payments on the sum due and the direct expenses of negotiation – including the hiring of British, Dutch and other foreign legal teams.

But sensitivity to the legal systems of other countries prepares scholars not only to resolve international disputes but also to some extent to pre-empt those disputes. It would be naïve to suggest that the Icesave dispute could have been entirely avoided, but smaller everyday misunderstandings can be avoided if traders and their lawyers understand the principles under which they are operating. It would be folly to conduct any trade in England and Wales or in the United States without a sound appreciation of the doctrine of ‘consideration’ in contract law.40 Contract law contains many more idiosyncrasies between different states, for example, the difficulty in German law to revoke an offer, in contrast to the position in English law whereby, absent an option (itself a separate contract), an offer or can withdraw at any point his offer, notwithstanding an apparent ‘promise’ to hold the offer open.41 The peculiar postal acceptance rule (which applies only to acceptances and only to those sent by post or telegram) makes little practical sense in modern times and causes enough confusion amongst students of the common law.42 So far, we are still discussing the stage of contract formation. At the other end, remedies vary widely and some, such as the oft-sought French astreinte, will not be found in the civil code at all but in a separate piece of legislation.43

No comparative lawyer will know all the rules of law of any system after 5 years of study. Indeed, no lawyer whose studies have been dedicated to only one system will know all the rules of that system after only 5 years of study. However, legal education is not intended solely to provide the student with an ability to recite a code (one that he can always look up in a book in any case). Law’s change and Milazzo warns of the formalistic approach to legal education as producing only a ‘poor routinist whose knowledge and capability are confined to the two thousand articles of his code and who is a ruined man if some night that code should be abolished.’44 Legal education must instead arm the graduate with the tools to find and interpret the law of any given system. The comparative lawyer has the advantage of being able to do so in more than one.

5. Comparative Law as a Means to Harmonisation of Laws.

Peter de Cruz is cautious about using comparative law towards harmonising the legal systems of different countries.45 Zweigert and Kötz take a more express position that harmonisation, at least in Europe, is a desirable political goal to which comparative law is an essential starting point. In fact, Zweigert and Kötz suggest, distinct from comparative law as a general tool towards systematic unification of law, a goal of comparative law as ‘the development of a private law common to the whole of Europe.’46

The advantage of unified law is that it makes international legal business easier. In the area they cover, unified laws avoid the hazards of applying private international law and foreign substantive law. Unified law thus reduces the legal risks of international business, and thereby gives relief both to the businessman who plans the venture and to the judge who has to resolve the disputes to which it gives rise. Thus unified law promotes greater legal predictability and security.47

Efforts are already underway to this end. The European Parliament, as early as 1989, stated its long-term goal to develop a single European Code of Private Law although practical steps in this regard have been few in number and short in stride.48 More tangible are the Principles of European Contract Law, the work of senior academics from throughout the European Union area working in an independent capacity.49

Harmonisation must be distinguished from colonisation.50 The latter means that one system supplants another, for example when English law was transplanted into Australia and the traditions of the aboriginal people ignored, at least as concerned their interaction with the white settlers. Colonisation does not require any particular skill in comparative law: if no respect is paid to an existing tradition, there is no need to understand it. By contrast, harmonisation involves bringing multiple systems together, taking what is best in each and attempting to create a common system that is acceptable to all. That test is a cultural one; rules must be internally endorsed to be effective.51 Unified rules will not produce unified outcomes; different tools of legal interpretation and different legal processes as well as differing cultural expectations of what law is and when it ought to be appealed to will mean different results.52 Thus full European legal integration requires a ‘Europeaniz[ation of] the way lawyers think, write and learn’, in other words, the creation of a European legal mentalité.53 Unsurprisingly, some scepticism exists as to whether that is even possible.54

If there is any hope, those behind the legal reform must know not only the written laws of each state but also the legal cultures in which those laws are interpreted and applied; in other words, not the law on the books but the law in practice. Thus, for harmonisation of law, skilled comparative lawyers are essential.

Nevertheless, harmonisation of law is fundamentally a political goal and not all comparatists, let alone all lawyers, consider it desirable. First of all, one must assume that harmonisation of law is intrinsically a good thing and legal diversity a bad thing. Undoubtedly, harmonised law could reduce the potential for disputes between lawyers who would otherwise have contrasting epistemologies of law; but the risks and costs are high too. Harmonisation, in theory at least, would take the best from each system with the result that each country sees a marked improvement. In practice, the risk is that marginal, but significant and useful legal categories from smaller systems are lost and that larger and stronger systems predominate: thus the final result is more like colonisation than harmonisation. Indeed, Zweigert and Kötz’ own goal is for a European civil code and the aforementioned efforts towards harmonisation in the European Union take that shape;55 yet the very idea of a civil code is anathematic to the common lawyer and at least anomalous to his Nordic counterpart.

All considered, it appears that the better we are at comparative law, the less need we have for harmonisation. Returning to the theme of law as language, the multilingual citizens of the Nordic nations have no need for Esperanto. If we can understand one another’s legal systems, interpret their laws and communicate effectively, then harmonisation becomes less, rather than more appealing. The United States of America is the most obvious example of a fully functioning market economy that accommodates multiple systems of private law. However, perhaps more interesting from a European perspective is Canada, which likewise functions unproblematically with its civil law enclave surrounded by common law provinces.56 Certainly, comparative law is necessary for harmonisation; but just because comparative law might give us the skills to develop a harmonised legal system does not give us sufficient reason to continue along such a route.

IV Conclusion

Thus it seems that at least four of De Cruz’ five possible goals of comparative law offer tangible benefits to Iceland as it emerges from crisis and reassesses its legal frameworks, from the meta-constitutional level to the regulatory provisions of financial and trade law.

Comparative law offers the law student a whole new dimension; from it he can learn to respect the special legal cultures of other peoples, he will understand his own law better, he can develop the critical standards which might lead to its improvement, and he will learn how rules of law are conditioned by social facts and what different forms they can take.57

Comparative law deepens the scholar’s understanding of the very concept of law, the ontology of law; just as studying different species gives the zoologist a different perspective on the concept of an animal than has the scientist who devotes her life to examining only butterflies. Comparative law supports the legislator, making him wise to the context and culture of law, and warns him of the dangers of simple legal transplants. Comparative law assists the judge when she faces a novel dispute, or an old dispute in a new context. And comparative law assists the businessperson and trade lawyer as they negotiate contracts under foreign laws.

Harmonisation can wait; if modern lawyers use comparative law to prepare for a career in an international legal environment, the advantages of harmonisation wane. 

End notes

1. N Jansen, ‘Comparative Law and Comparative Knowledge’ in M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2008) 311

2. Ibid 311-2.

3. Ibid 314-5. 

4. P Legrand, Le droit compare (Presses Universitaires de France 1999) 19 (author’s own translation)

5. Guinea Penal Code, article 265.

6. Female Genital Mutilation Act 2003, s. 5.

7. E Dorkenoo, L Morison and A Macfarlane, ‘A Statistical Study to Estimate the Prevalence of Female Genital Mutilation in England and Wales: Summary Report’ (Foundation for
 Women’s Health, Research and Development 2007).

8. M Krygier, ‘Law as Tradition’ 5 Law and Philosophy [1986] 237, 239; see also J Bell, ‘Comparative Law and Legal Theory’ in W Krawietz, N MacCormick and G H von Wright (eds) Prescriptive Formality and Normative Rationality in Modern Legal Systems (1995) 24-27; P Legrand, ‘European Legal Systems are Not Converging’ 45 ICLQ [1986] 52, 60-64; M Van
Hoecke and M Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ 47 ICLQ [1998] 495, 498.

9. Dworkin’s test of ‘fit’ can be understood as a test of tradition. Fit is not simply what appears in one section of one statute but how that section must be understood within a coherent whole of law: R Dworkin, Law’s Empire (Fontana Press 1986) 245-6.

10. French Code Civil 1804, articles 4-5.

11.  Swiss Code Civil 1907, article 1. 

12. P de Cruz, Comparative Law in a Changing World (2nd edn, Cavendish Publishing 1999) 18-24.

13. K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 13-31.

14. De Cruz (n12) 18.

15.  Zeigert and Kötz (n13) 15.

16. To enhance linguistic fluidity, the male pronoun will be used in descriptions of the scholar, since the word (fræðimaður) in Icelandic is a male word; but it is of course understood that both women and men are scholars of law in Iceland and beyond. 

17. Literally: ‘that’s the law.’ It is a common French expression used here in a derogatory sense to imply an unduly formalistic and uncritical acceptance and application of the law as it is written, regardless of its reason or its consequences.

18. K Jännäri, Report on Banking Regulation and Supervision in Iceland: past, present and future, 37 (March 2009) (accessed 13 January 2011).

19. See P Hreinsson, S Benediktsdóttir and T Gunnarson (Rannsóknarnefnd Alþingis samkvæmt lögum nr. 142/2008), Aðdragandi og orsakir falls íslensku bankanna 2008 og tengdir atburðir (Oddi hf. 2008) especially Volume 8, pp. 117, 139-8, 152 & 227. 

20. When one takes pleasure or comfort from the misfortune of another.

21. The annoyance of being interrupted by a visitor during a meal.

22. When one thinks of the perfect comeback to an insult too late – literally, when one is on the stairs (leaving the location).

23. One who could not care less. 

24. Zweigert and Kötz (n13) 4.

25. Ibid 21-22. 

26. S Vogenauer, ‘Sources of Law and Legal Method’ in The Oxford Handbook of Comparative Law (n1) 877. 

27. Roper v Simmons [2005] 543 U.S. 551, 125 S.Ct. 1183.

28. Ibid. 628 (emphasis in original). 

29. Icelandic Act in Respect of Children no. 76/2003, article 6.

30. ‘Furða sig á að fá engin svör’ RUV (Reykjavík, 7 Jan 2011) (accessed 10 Jan 2011).

31. By the time of publication, the child and his parents had returned to Iceland and debates were ongoing regarding law reform with reference to foreign systems, especially Nordic systems and English law: S Kristinsson and I Elíasdóttir, ‘Staðgöngumæðrum í velgjörðarskyni – góðverk án vandkvæða?’ Jafnréttistorg, University of Akureyri, 2 Feb 2011. This is the kind of dispute where comparator countries must be chosen with shared social and family values in mind. Nordic countries would be a logical starting point. By contrast, Malta, a European country with a similar population size, would not make a good comparator country in this kind of case, because its strong Roman Catholic family values are not shared in Iceland.

32. Iceland’s principle export partners are: the Netherlands (31%), the United Kingdom (13%), Germany (11%), Norway (6%) and Spain 5%); it’s main import partners are Norway (13%), the Netherlands (9%), Germany (8%), Sweden (8%), Denmark (7%), the United States (7%), China (5%), the United Kingdom (5%) and Brazil (4%) (2009). CIA ‘Iceland’ (The World Factbook, 4 Jan 2011) (accessed 10 Jan 2011).

33. Hagstofa Íslands, ‘Fólk með erlendan bakgrunn eftir kyni, aldri, ríkisfangi og fæðingarlandi 1996-2010’ http://www.hagstofa.is/?PageID=626&src=/temp/Dialog/varval.asp?ma=MAN43002%26ti=F%F3lk+me%F0 +erlendan+bakgrunn+eftir+kyni%2C+aldri%2C+r%EDkisfangi+og+f%E6%F0ingarlandi+1996%2D2010++ %26path=../Database/mannfjoldi/Uppruni/%26lang=3%26units=Fjöldi (accessed 10 Jan 2011). 

34. See T Graziano, Comparative Contract Law (Palgrave MacMillan 2009) 23.

35. Ibid. 22.

36.  See e.g. G G Schram, Stjórnskipunarréttur (Háskólaútgáfan, 1999): this the core textbook in Icelandic constitutional law and although an extensive treatise, foreign constitutional traditions are consulted only to aid understanding of the Icelandic constitution; there is no integrated comparative approach.

37. See above Part II. 

38. Zweigert and Kötz (n13) 21.

39.  Legrand (n4) 28.

40.  For a contract to be recognised as such in English law (as opposed to a promise), ‘consideration’ must be exchanged; this means that both parties to the contract must give some advantage, usually (but not always) to the other party to the contract. It ‘may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other’ Currie v Misa (1875) LR 10 Ex 153, 162. 

41. Compare: RG, 25 October 1917, RGZ 91, 60; and Routledge v Grant (1828) 4 Bing 653.

42.  Adams v Lindsell (1818) 1 B & Ald. 681, 106 ER 250.

43. French Act Reforming Civil Enforcement Procedures, no. 91-650.

44. A Exner, Die praktische Aufgabe der romanistischen Wissenschaft in Staaten mit codifiziertem Privatrecht, 1869, 19; translated by and quoted in F Milazzo, ‘Teaching Roman Law in Iceland’ 1(1) Nordicum Mediterraneum (accessed 12 January 2010).

45. DeCruz (n12) 475-497. 

46. Zweigert and Kötz (n13) 16.

47. Ibid. 25.

48. Resolution A2159/89 of the European Parliament on action to bring into line the private law of the Member States, [1989] OJ C158/400.

49. Principles of European Contract Law Parts I, II and III (1998, 2002), available at: (accessed 13 Feb 2011). See H Beale, et al., Cases, Materials and Text on Contract Law, 2nd ed. (Ius Commune Casebooks for the Common Law of Europe No 6) (Hart Publishing, 2010) 3-38 for discussion.

50. Compare DeCruz (n12) 24. 

51. One need only consider Road Traffic Law in Naples to see that the law on the books may differ extensively from that practically endorsed.

52. Zweigert and Kötz (n13) 28-9.

53. Ibid. 28.

54. E.g., Legrand (n8); P Legrand, Fragments on Law-as-Culture (Deventer, 1999) 55-59. 

55. Zweigert and Kötz (n13) 31.

56. Of course, the United States of America also contains a civil law state, namely, Louisiana, which possesses a civil code. While this appears something of an anomaly in the United States, in Canada, the civilian tradition of Quebec is an inherent and central part of the Canadian legal order. There is a federal criminal code, yet many defences remain as uncodified common law: Canadian Criminal Code R.S.C. 1985, s. 8(3).

57. Zweigert and Kötz (n13) 21. 





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