Weltliteratur and Global Law: Lessons from Goethe
Written by: Sir Basil Markesinis QC, FBA
1 Preliminary remarks
The genius of Goethe has been the subject of a huge multilingual literature, not only because of the breadth of his interests – on this ground, he scores over Shakespeare and Dante, with whom he has invariably been ranked – but also for the richness of his poetic talent. To me, as a jurist who has dedicated his professional life to understanding and comparing different systems, the aspect of Goethe’s work that has particular significance – beyond his love for action rather than words – is his ability to achieve a synthesis between Northern and Mediterranean, Romantic and Classic, Eastern and Western.
No lawyer should jump and put forward the objection that this endeavour is radically different from what comparative lawyers try to do for the gaps that had to be breached by these Goethian efforts were huge. He also had to do it at a time when the public opinion called for a German culture, literature, theater, opera, poetry, and law – all after the Volksgeist of the German people had been discovered and understood. Goethe’s success was partly because his restless and open mind allowed him to approach sympathetically the ‘other’ culture, and also because his literary gifts enabled him to imitate the foreign style and sensibilities in a manner that earned him the admiration of the experts of that ‘other’ culture. His collection of poems under the general title West-östlicher Divan is an example, but not the only one supporting this point.
This bridging of cultures, though evident in early works, became Goethe’s major preoccupation during the last ten years of his life when he fought for the creation of what he called a Weltliteratur – a world literature. Modern English legal academics tend, in accordance with the impoverishing demands of our times, to be specialists or ‘technicians’, as gifted (of course) as they are industrious, but often dismissive of the advantages that wider culture can confer. Yet comparative law is a discipline that requires something more than the ability to use Socratic reasoning in the handling of legal rules. The wisdom of this observation, however, has escaped the attention of gifted but inexpert (in matters of foreign law) lawyers and allowed them to express their views about how – indeed, whether – comparative law should be studied. The impulse to express a view is understandable, since lawyers often speak confidently about many matters; yet the results of such sorties into terra incognita can be poor. After all, two and a half thousand years ago, it was Thucydides who had argued in his Funeral Oration that “ignorance provokes rashness while knowledge nourishes restraint.”
Let us, however, return to Goethe, since his thoughts deserve attention even from lawyers.
First, Goethe’s thoughts, unlike those Frederick the Great expressed in a prima facie parallel but earlier attempt, were close to what some modern lawyers believe comparative law does. For Fredrick, in his De la literature allemande envisaged a grand programme of translations from French and the classical languages to help shape German culture while ignoring its own autochthonous stirrings. Frederick’s mistake was one often made by those who deal (or dabble) in contemporary comparative law, who somehow suppose that the aim of studying foreign law is to find precedents for a quick and easy transplantation. This can never can be so; at best, the foreign solution can have only some persuasive force, especially if the purpose of invoking it is to show whether the result it produced worked in the other system and thus to make one wonder whether it might also work in one’s own. The foreign idea, solution, or institution may, on the other hand, offer the national lawyer a starting point for reflection about his own law, especially where it is unclear, dated, or contradictory; but it rarely provides more than that.
Second, unlike Frederick’s aim, Goethe’s was not to use foreign models for the purposes of shaping the ideas and practices of his own country, but to study them for the sake of enhancing comprehension, mutual understanding, and inspiration. In the words of a distinguished Germanist:
“For [Goethe] Weltliteratur was neither the sum of all national literatures nor the ever increasing canon of world masterpieces, rather he conceived of it as a dynamic process of rapprochement among European nations – above all Britain, France and Germany with the goal of breaking down the walls of national prejudices that hampered peaceful coexistence in the wake of Napoleonic Wars. To realize this social function of literature, Goethe called upon contemporary authors to serve along with himself as mediators and facilitators across the frontiers in periodicals, translations and memoirs. He hoped this common marker of ideas would eventually manifest itself in a greater sense of understanding and tolerance, first among the intellectuals and thereafter also among the peoples.”
Thus, Goethe never saw the exercise of stripping the person seeking inspiration from a foreign source of his own natural or cultural characteristics. The desire to understand, correspond, and learn from and assist as diverse a group of authors as Lord Byron, Shelley, Carlyle, George Elliot, and Alessandro Manzoni – to mention just a handful of important and self-confident individuals – led him to advocate over and over again the value of “mutual enrichment”, “the development of one’s powers through contact with others”, but also the need to preserve “the individuality of each national literature.” And on the dangers of translations, which obviously worry Professor Stapleton sufficiently to make her borrow as a subheading of her article the title of a Hollywood film, Goethe gives the matter a twist that anyone who has worked across (legal) cultures will appreciate deeply. For he wrote to Thomas Carlyle:
“…the translator works not only for his own country but also for the country from whose language he has taken the work. For it happens more often than one imagines that a nation sucks the sap and strength from a work, and absorbs it into its own inner life, in such a way as to be able to derive no further pleasure, and draw no further nourishment, from it. This applies especially to the Germans, who assimilate all too quickly everything that is offered them and, in the course of transforming it by sundry repetitions, in a sense destroy it. Therefore it is of great benefit to them to see something of their own re-appear endowed with new life through the means of a successful translation.”
Third, though Goethe (like many of his contemporaries) sought to discover the Volksgeist of his nation in order to build on it a German culture, theatre, and poetry, and thus did not see German literature growing out of foreign (e.g., French or classic) literature, he never saw in culture – conceived in general terms – an obstacle to mutual borrowing and inspiration. His own work shows this inspiration from other cultures, whether we look at his Sturm und Drang phase (replete with English borrowings), his classic dramas (such as Iphigenie in Tauris, involving a brilliant adaptation of a classic Greek theme to fit his idea of ‘ethical action’ and ‘universal humanism’) or, later, his Römischen Elegien or his West-östlicher Divan. In Römischen Elegien and West-östlicher Divan, Italian and Persian (respectively) motifs and style are skillfully re-represented or recreated through the medium of the German language, which most people, until his time (and, perhaps, even now), would have thought simply impossible.
Time and space do not allow us a great elaboration of these ideas, but enough has been said to plant the seed that Goethe’s cultural crusade to bring different languages and literatures together presents transplantable features to law, where, in addition to the unifying element that modern globalization provides, we have the very practical need (and not just the pursuit of a poetical ideal) to harmonize or even synthesize different legal solutions. Before one rushes to differentiate law, one should read what Schiller had to say about the way his friend ‘fused his German personality to a Mediterranean one’. In brief, the task can be accomplished if one is willing to undertake it.
Do our lawyers see things in this way? More importantly, can they be persuaded to open their eyes and (merely) consider the possibility that “There is a World Elsewhere,” which is not only as old (if not even older) than theirs, but also potentially useful to those, at least, who wish to keep the City of London as one of the centres of the (commercial) universe and are not wholly absorbed by the monastic environment of academic cloisters? The work of Lord Bingham clearly falls within the category of imaginary, pioneering, and open-minded work, which, one suspects, would have appealed to Goethe – and indeed, resembles greatly his own outlook – hence the unusual title of this essay. Pioneers and original minds, however, are never in the majority of any society; conservative traditionalists always are. This should not surprise us, for following accepted practice is always safer and easier, though it does not mean that those who favour ‘preservation’ cannot themselves also be exceptionally gifted. All it means is that history suggests that they are eventually forgotten.
Being specific is always more instructive than being general and bland, even if the unintended consequence may be to make the disagreement appear personal rather than scientific. Still, I feel one has to run the risk, unintended though it is in my case, since I have repeatedly tried to launch a debate about the importance of judicial mentality and outlook in explaining the final judgments handed down by judges all over the world. In other words, you cannot understand a judge’s work without knowing his character and personality.
What applies to judges also applies to academics; and I see Professor Stapleton’s recent article in the same light, even though a good one-third struck me as a persistent attack on my views in a way that might give the impression that she was attacking me personally and not just disagreeing with my view of tort law in general, or how to teach comparative law in particular.
In what follows, I would thus like to use the work of two jurists whose talents and learning I respect greatly but with whose approach and views I have the misfortune to disagree strongly. They are Lord Hoffmann and Professor Stapleton. I repeat, focusing on the work of two individuals could – but should not – be seen as an attack on persons; but it is a disagreement on mentality, outlook, philosophy, and methodology and it has to be concretized so that the reader can see for himself exactly where the intellectual disagreement lies. If this way of contrasting opinions is taken in a personal way I will be the first to regret it deeply; for what I am fighting for is a method which, in my view, may help my subject not only survive in a cluttered curriculum but also prove its worth in that of legal practice.
2 Two styles of closing ones’ eyes to the ‘other’ world
2.1 The judicial
Lord Hoffmann has, thus far, opted for what one might call a ‘laconic’, ‘above the fray’, or ‘silent’ approach towards the subject of foreign law. For someone who began life as an academic and, of course, a South African (and one assumes, in part at least, influenced by that country’s double legal culture), his reticence is both surprising and disappointing. Lord Hoffmann has also been for many years the President of the Anglo-German Lawyers’ Association so, though this does not mean that one should expect him to advocate (or criticize) German law, it could have justified occasional intrusions into foreign law based on his enhanced experienced thus acquired with (foreign) lawyers and their ideas. In his ‘pronouncements’, however, judicial and extra-judicial, references to the utility of foreign law have, as stated, been ‘aphoristic and dismissive’, or he has simply remained ‘silent’, even when others on the Bench gave him the cue to follow.
An example of his ‘summary or dismissive’ style can be found in a Foreword recently contributed to an interesting academic monograph. There, he tells us that “Comparative Law does not help”. This categorically phrased view was justified by the statement that “Continental lawyers have the same problems; but their answers are hidden by obscurity or absence of reasoning.”
I would not be surprised if many on the Continent of Europe felt offended by the italicized part of the statement. For why has a British judge of impeccable learning expressed himself in such an absolute manner? For, had he, for instance, limited the italicized part of his sentence of the decisions of the Cour de cassation (but not lower French courts) he would have been right. Had he directed his attack against the decisions of the German constitutional courts, one would have felt sympathy for his difficulty in following their complexity and, one might add, their prolixity. But phrasing his thoughts as widely as he did, to encompass European legal thought in general, is little short of unacceptably wrong. For who has ever even insinuated that the there is “absence of reasoning”
in the German legal culture on matters of private or public law? One does not expect a modern judge to have studied German law as closely as William Maitland did (and then described it as one of the finest creations of human mind); but one would have thought that at least in his capacity as Chairman of the Anglo-German Lawyers’ Association he would have had ample opportunity to see in practice and admire the German pursuit of detailed and logical reasoning.
The most plausible explanation for such brevity must thus be that one could not be expected to be too detailed in a Foreword. Moreover, he could also try to escape the meaning I ascribe to his words by arguing that he meant that the German reasoning was, in (all or some?) English cases, neither relevant nor transplantable. Alas, this attempt to escape the wide dictum he created cannot work either; and this is proved by the case he uses a few lines above the cited extract, in which he suggests the decision that (presumably) prompted him to make this comment. For there, he refers to House of Lords opinion in Anns, the implication being that the German reasoning, opaque and non-discoverable (if existent at all), was not transplantable and would not have helped the English courts.
Yet in Anns, Counsel – at Mr. Tony Weir’s prompting – submitted to their Lordships two German decisions, translated and produced by Mr. Weir, dealing with a key issue in that case: what was the plaintiff’s hurt: physical material damage (as Lord Denning had suggested in Dutton and approved in Anns) or pure economic loss? German law, in its cases and doctrine, has agonized much over this issue and the question whether damage to the property is similar to damage caused by the property and thus actionable in tort or only in contract. In the end, in the case of immovables, Germans gave the right answer: the harm was pure economic loss – a result which, after ten years of tergiversation following Anns (which refused even to consider the German reasoning), the House of Lords came to accept as right in Murphy v. Brentwood .
Now no one is suggesting that German law is here used or should be used as a precedent; but we have here an answer to Professor Stapleton’s quite remarkable question “Why should a citizen of country A be interested in the law of country B”? Well, quite apart from the fact that he may be doing business there, living there, taxed there, or dying there, he may, if he is also a judge, be interested to see how others solve similar problems so that he can think out his own solution more clearly when the problem he is facing is new, uncovered by authority, international in nature, etc. Had the correct characterization of the plaintiff’s loss in Murphy been accepted ten years earlier in Anns, it could have saved litigants much cost and academics much ink in arguing a point their German colleagues had correctly addressed before them. German theorizing therefore does exist; and much as it can be very English to mock it or caricature it, it is sound and often better than ours.
“Ignoring” the value of foreign law by means of silence is another way favoured by Lord Hoffmann. Two examples can be given because they offer one the opportunity to compare his style to Lord Bingham’s. The first is the Fairchild case and the second is the East Berkshire case.
In the first case, two learned Law Lords – Lords Bingham and Rodger of Earlsferry – spent much space and, obviously, even more thought on foreign law. They felt, one suspects rightly, that English law could have gone either way on the question before them. Faced with this clear lack of guidance, they thought it was legitimate, inter alia, to look at what other systems had done in comparable situations and – this is important – how had they coped with the issue of principle. Lord Hoffmann felt no such need to look at foreign law.
The silence of Lord Hoffmann (and, it must be added, the remaining Law Lords) could, I suppose, be explained on any of the following grounds: (a) that as Law Lord, he is obliged to resolve disputes according to English law and has no duty to consider or refer to foreign law; (b) that speculating about foreign law is dangerous, difficult, wastes time, adds to the expense of the trial – all points addressed by others in the past; (c) that citing foreign law in such cases is a form of “show off”, a practice he disapproves of; (d) that if the court can give a judgment using English cases or reasoning, it has no place in becoming a forum for discussing foreign possibilities, and (e) that his colleagues undertook this task, and he saw no reason to repeat it, or, more interestingly (surprisingly?), had no arguments or information to contradict their use of foreign law.
I would venture the thought that among the above, we can find the reason for his silence. Yet I also accept that this is speculation; and like all speculation, it may be entirely unfounded. Yet if the reasons I offered may be wrong, the reason for speculating is legitimate. For when one sees two learned Law Lords enter this domain and a third one – academically and culturally just as learned – choose to remain silent, one has to ask why he is doing this. Is this really an endeavour that has no place in national judgments, or are there other reasons for such silence?
Professor Stapleton comes close to taking the first view, at any rate where systems expressed in a different language are concerned. Yet this dialogue between top judges representing different cultures – which she dislikes (or, at the very least, sees as replete with dangers) – is happening the world over; and though one may not like it, as American neo-conservatives (and Lord Hoffmann) do not, it is neither forbidden nor useless. After all, other senior British judges have done this as well – Lords Denning, Scarman, Woolf, Steyn, Hope, Clyde, Slynn, Sedley, and Schiemann among them. Professor Stapleton may not approve, but some of our most senior judges across the world have thought otherwise. To avoid endless lists, let us simply mention the names of Chief Justice MacLoughlin (Canada), former President Barak (Israel), Justices Breyer, O’Connor, and Ginsburg (USA), and former Chief Justice Chascalsson. (South Africa). Professor Stapleton is silent on all of the above. Why, may we ask, given that they have taken a very practical or forensic view about comparative law very similar to the one I have been developing for over forty years, are they not also included in her sights?
Silence protects. Silence also gives the impression that no justification is needed for ‘ignoring’ foreign law. It seems to suggest that this is ‘evident’; and one needs no citation for evident truths.
The Hoffmann silence, however, needs further probing. Why was foreign law worth considering in Fairchild but not in East Berkshire? Here, no amount of speculation will ever provide us a definitive reply. If it were a question of expense, we should have been given a hint. If it were a question of not being relevant, Lord Bingham would not have raised it. (Or is this an indirect accusation that he is raising frivolous points simply because he has a mind as alive to intellectual disputes as that of Lord Hoffmann?) If – and this is particularly relevant to a constant theme of Lord Hoffmann’s in this type of case – the non-liability rule was a question of unbearable state expense, Counsel should have ‘urged’ their Lordships to re-think this for reasons that I, among others, have raised before and since that decision was delivered. This question of ‘cost’ is not
as evident as those who invoke it wish it to appear quite apart from the fact that I do not think it is legitimate for a judge to base his judgement on the grounds that he is trying to save money for the state.
Professor Stapleton defends Lord Hoffmann by not only dismissing the reliability of the empirical evidence adduced but also saying that Lord Hoffmann’s decision in Stovin v. Wise (which contains one of the lengthiest expositions of his reluctance to impose tort liability on local authorities for breach of statutory duty) was not based on empirical evidence, nor could it ever become dependent on such kind of work, since such surveys are incomplete, expensive, not likely to be carried out in the future, or non-existent in many countries. The Hoffmann judgment was thus largely based on his assessment of the risks that a liability rule might involve.
Deciding about risks based on judicial hunches is not, I feel, the best way of resolving disputes, especially if reputable ‘law professors’ dispute how real these risks are and the Senior Law Lord takes the same doubting stance. And when I am referring to ‘reputable law professors’, I am, naturally, not referring to comparatists like myself but to Professor Paul Craig, Professor of English law at the University of Oxford, and Dr. Duncan Fairgrieve, a widely admired (younger) Oxford jurist. For writing together, they have argued that a switch from “duty” to “breach” would not lead to a lasting economic chaos that lies at the basis of Lord Hoffmann’s hesitations. We are thus back to the starting point: Lord Hoffmann’s approach is no more convincing, necessary, or desirable than that taken by others – to quote Goethe – “in everything his equal”. The difference thus seems to boil down simply to mentality, outlook, disposition, tradition, habit, conservatism, and the list goes on forever. Which terms apply to Lord Hoffmann is not for us even to try and guess.
If that is the case, an advocate should thus be free, indeed encouraged, to adduce evidence from wherever he could find it, to give the (English) court some assistance as to how sound (or imaginary) its fears may be. At the end of the day, it would equally be for the court to tell us why it remained unconvinced about the evidence put before it; but we would need reason for this for, to cite Lord Hoffmann words (uttered in another but not unrelated context), “opaque or non existent reasons” will not do. Much as one tries to evaluate them, one finds it difficult to judge the validity of his ‘hunches’.
2.2 The academic
Professor Stapleton, an Australian tort lawyer with a deep knowledge of English and American law, recently launched forth in the domain of comparative law and methodology. After describing the subject as “a noble” subject – and I confess I (and others to whom I showed her text) remain unsure what this means – she then offers a series of arguments why the use of foreign law is not only not useful but may also be dangerous. Clearly, we cannot un-pick all of her arguments in this short essay; this may have to wait another article. Here it will suffice to focus on one or two observations in order to suggest that she misunderstands my work, which strikes me as being the main target of her article. The reasons which lead her to this critical position are, of course, legitimate; but it does not follow that they are objectively correct.
First is what she calls the problem of the monoglots and their inability to access foreign sources. She concretises her complaint as follows:
“[none] of the six or so most authoritative and extensive commentaries on the German Civil Code and extra-code law of obligations…has been translated into English. This means that English speakers do not have these texts the six or so most authoritative available so as to provide the necessary foils for one extensive text on German tort law that has been written in English [reference to the 4th edition of my own The German Law of Torts: A Comparative Treatise.]”
This statement is best answered by splitting it into two parts.
First her complaint that none of the German Kommentare has been translated in to English is aimed to show that we do not have enough information about what Germans think German law is. In one sense, she is right; but, in my view, she is entirely wrong to suggest that if these great (and grand) books had been ‘translated’ she would have had a foil – I suppose this is a polite way of saying a correctant – to what I say in my own book.
The reason why she is utterly wrong in thinking that a mere translation would solve her problem is simply because the kind of books she is referring to are written in extremely difficult German, which, in some cases – Palandt for instance – even German lawyers would find difficult to follow. Whover informed Professor Stapleton of the existence of these ‘great’ German books should have also told her that they are virtually unusable by English lawyers. What is instead needed is what I have endeavoured to do over forty years – no doubt sometimes less successfully than others – and that is to ‘package’ German law to make it usable by Common lawyers. To be sure, some academics have argued that in this way I may have ‘betrayed’ the true nature and flavour of German law; but far too many German jurists and judges of great repute, who have advised me in the writing of this book, reviewed it, or contributed forewords to its various editions, have taken the opposite view in a way that does not even merit giving references. My own conscience is thus untroubled on this score.
The second part of her statement refers more specifically to my book. Though she does not comment on it or its details, she does, quite rightly, ask for supplementary information as to what the law is; and she suggests that there is little or none available to the monoglot readers. On this point, as well, she is wrong again on two counts.
First she is wrong as to the lack of further evidence of German tort law in English. Professor Christian von Bar’s The Common European Law of Torts is replete with references to German tort law. So is Professor Walter van Gerven’s casebook on Tort Law. James Gordley and Arthur von Mehren’s An Introduction to the Comparative Study of Private Study of Private Law, Readings, Cases and Materialsalso devotes a reasonable section of their casebook to German tort law. Last but by no means least, in a website established and maintained at the University of Texas – where both Professor Stapleton and I spend a fair amount of our teaching duties – the website of translated French and German cases devoted to contract and tort are close to 900, many not included in any of the above-mentioned books.
The way Professor Stapleton treats these books can be used to judge the validity of her argument that “we need a foil” to test the veracity of the Markesinis material before we can use it. For von Bar gets only a passing reference in a note; van Gerven is cited only through mentioning
a critical (if not defamatory) review of his book; Gordley is ignored, as indeed is the website. Given that English law students get nowhere near as many cases to study during the year they read torts at law school, and given the abundance of material that does exist (but is underplayed by Professor Stapleton), her argument that “there are no other texts that deal in detail with tort law in other foreign jurisdictions” does not seem very strong. This may be true as far as, say, systems such as the Spanish are concerned; but I cannot answer for that system, as I never claimed an expertise in it, but I can refute her claims as far as the system in which I have cultivated a personal interest is concerned.
There is a second reason why Professor Stapleton is wrong in suggesting – which I believe she is – that even with the material I am referring to our knowledge of German law is inadequate. Stated simply this way, the argument has some force; the knowledge we have of a foreign system can never be adequate, given the ever-growing volume of statutory and decisional law experienced by all major modern systems.
Yet, it depends on how you intend to use this corpus of law. If you wish to have detailed advice on a very specific point of foreign law, you must turn to a native expert for it; no comparative lawyer has, to my knowledge, denied that. But if you wish to treat foreign law as a source of ideas, especially where your own law is under-developed, contradictory, or needs to be harmonized with the laws of other countries, then the amount of information needed for such exercise is there to be used. What is missing is the mentality, i.e., the individual outlook, which may be closed to foreign ideas, suspicious of them because they are foreign, uncomfortable with them because they come from cultures that are alien (or seem alien) to the potential borrower, or unable to comprehend these ideas because of the individual’s linguistic limitations. I cannot enumerate all the psychological obstacles that may account for the reticence of colleagues (and I am here speaking in general terms) to use foreign material; but I have tried elsewhere to refute in a more detailed manner why I think the more usually invoked arguments about cost, delays, lack of expertise, and different social backgrounds are less convincing as reasons for inactivity. So let me instead invoke a specific example taken from Professor Stapleton’s text that suggests, to me at least, that for a variety of reasons it may be difficult to budge her from her views. The topic she chooses to discuss this idea is Fairchild and, later in her text, the troublesome topic of civil liability for breach of statutory duties imposed on local authorities.
First she seems to me to pay inordinate attention to Tony Weir’s statement that
“The tour d’ horizon attempted by the House of Lords was admittedly superficial. Omitted is the salient fact that in almost none of the jurisdiction glanced at would the claimants in Fairchild have succeed; in most places an employee simply cannot sue his employer in tort, since workmen’s compensation or social security takes its place.”
Professor Stapleton complained earlier on about inadequate information to act as a foil to a particular opinion put to a common lawyer. Yet Professor Fedtke (a German and comparative jurist) and I had provided much more detailed information than that given by Mr. Weir in his somewhat aphoristical phrased statement.
Paraphrasing what we said elsewhere, we stressed that the House of Lords used the foreign material in the context of possible multiple tortfeasors, enquiring as to the ability of the ‘but for’ test to produce a just result. This was the main conceptual point that had to be decided; and this was also the point that attracts most of Mr. Weir’s attention. We submitted that the useful and detailed information their Lordships supplied on this point on foreign law is impeccable. Indeed, the House of Lords made history by citing a famous German practitioners’ book – Palandt – and even the ‘Motive’ of the BGB both in German and English. The BGB is, of course, one of the major German textbooks, which Professor Stapleton had never adduced as evidence of what German law was.
Criticizing their Lordships for not looking at other aspects of foreign law as well is another matter, and it should have been carefully distinguished from the criticism that the Court’s look at foreign law was nothing more than a “glance” or “superficial.” Mr. Weir’s phrase that in “almost none of the jurisdictions glanced at would the claimants in Fairchild have succeeded” is such a further point, which the House of Lords did not choose to investigate. Perhaps they should have. But if they had, they would have discovered a situation that differs from Mr. Weir’s.
That is the second reason why his throwaway statement is worrying. More precisely, it is worrying because, in our view, it is misleading. A more careful study suggests that in some systems, including Spain, Italy, the Czech Republic, Hungary, and Turkey, the possibility of a tort action is or has become available in the Fairchild scenario. Employers’ liability thus ended in the Netherlands in 1967 when the traditional workers’ compensation insurance was integrated into the general health and pension insurance systems, which allows asbestos victims to be compensated under tort law. Similarly, since 1997, asbestos cases are subject to not only social law but also tort law in France following decisions of the Cour d’Appel of Dijon of 18 December 1997 (involving the company Eternit) and the social law division of the Cour de cassation of 28 February 2002 (ruling for the first time on the question of asbestos, a case again involving Eternit and various other companies linked to asbestos multinationals).
Until the late 1990s, liability of French employers under the general rules of tort law (supplementing the standard coverage by workers’ compensation) was limited to narrowly defined exceptions (‘faute inexcusable’), which covered less that 0.05% of all occupational accidents and diseases. Both cases radically expanded the concept of ‘faute inexcusable’ and established a form of safety guarantee of employers, reversing the old rule/exception relationship between (limited) social law liability and (unlimited) tort liability. Employers, so runs the argument of the courts, could simply not have been unaware of the dangers of asbestos (a point fully corroborated by the American history on asbestos litigation). Liability insurers today thus view employers’ liability as the biggest subclass of general liability in France (in terms of both premium volume and claims potential).
Thirdly, careful observers of the German system would have discovered that in this system, the replacement of tort law by the workers’ compensation scheme (Gesetzliche Unfallversicherung) is suspended whenever the employer is guilty of intent, recklessness, or gross negligence – the latter in German case law often being found in cases which we would call ‘negligence’ in the absence of the notion of ‘gross’ negligence.
Fourthly, one could argue that in the United States, state law often allows employers to stay outside workers’ compensation schemes and, where
this happens, tort law remains applicable. Students of the American system should also take into account the bad side-effects that the workers’ compensation schemes have had in practice, namely to drive plaintiffs’ lawyers to find new additional defendants. Products liability litigation was thus often fed by and grew as a result of the difficulties that workers’ compensations schemes caused to plaintiffs.
Finally, did Mr. Weir look at the levels of compensation provided under the schemes in the various European legal systems? His statement in the CLJ is so short, one cannot tell. Such a study, however, shows how distinctly inferior they are to what can be obtained through general tort law. This is true for both Germany and France (where a finding of ‘faute inexcusable’ can more than double the amount of compensation awarded to asbestos victims by the workers’ compensation scheme).
All these important points are ‘lost’ (not in translation but) in abbreviated statements; and that ‘loss’ is neither mitigated nor, in this case, excused by Mr Weir’s carefully qualifying words “in almost none.” Worse still, they feed the insular attitudes of national lawyers and make them distrust the undoubted benefits that the study of foreign ideas can bring in its wake. We thus believe most strongly that condensed statements of this kind may produce a rhetorical effect, but that they rarely lead to an adequate understanding of foreign law.
This repetition of arguments made elsewhere (and known to Professor Stapleton) has one aim only. I wish to question Professor Stapleton’s search for “foils” or details before she makes up her mind on how important foreign law can be. If our statement was set aside because it is wrong, she should say this in detail. American judges – Justice Scalia for instance – have argued that comparative law allows a judge the cherry pick the statements which most suit his or her aim. Could it be that (subconsciously) she has chosen to pay much attention to the Weir statement because, philosophically, it is closer to the non-liability rule? Naturally, she is perfectly entitled to choose the policy view she thinks is right as well as the author who best serves her aims or is compatible with her frame of mind; but all that does not make her argument stronger; it merely makes it different.
The philosophical ‘suspicion’ Professor Stapleton nourishes towards foreign (i.e., non-Common law) systems surfaces in another part of her article where she gives the following reason why citing foreign law is an unnecessary luxury. Referring to the well-known cases of frustrated beneficiaries suing an attorney for negligently drafting wills, she writes:
“Were the Supreme Court of California and the High Court of Australia in some sense wrong or at least unwise not to refer to the German concept of contract with protective benefit for a third party when they found that a claim lay in the tort of negligence when due to a lawyer’s carelessness the intended beneficiary of a will failed to inherit?”
As a comparative lawyer, I am anxious to encourage non-comparatists to show an interest in foreign law; but when they do show such an interest and criticise the possible use of foreign law, I wonder whether either I have not expressed myself sufficiently clearly or they have not read my entire text? Professor Stapleton is a meticulous scholar; yet she seems to me to have paid inadequate attention to the fact I stressed there that American and English law had the luxury of using tort law to solve this problem (but, because of the doctrine of consideration, did not have the same ease in using contract law) whereas our German colleagues were faced with the reverse difficulty: a rigid tort law but an expandable contract law. So, citing German law here was not – prima facie – necessary. She is right, but only partially right.
For Lucas v Hamm, cited by Professor Stapleton as a tort case, also accepted, as a number of American jurisdictions have done, that a contractual action was also possible in that case. Professor Stapleton’s article makes no mention of this though, of course, no one would deny that she is aware of this double option (available to American but not English law). No doubt she is also aware that the possibility of an additional contractual approach was first proposed by no lesser a judge than Benjamin Cardozo. If we stop here – and we will not – we have already made our student or general reader aware of the fact that the German contractual approach, so summarily dismissed by Professor Stapleton’s above-cited statement, is possible in the United States as well. The question then arises, “is it also preferable?” That is where comparison with German law can come into the picture and (a) make lawyers think and (b) even provide solutions that are not open to the American tort approach. Professor Stapleton does not even reach this point of enquiry because she does not exploit the difference offered by German law in order to question the advantages of a rot-inspired solution. The first is essential to any teacher who believes that his duty in the classroom is to make his students think, reflect, and decide which rules of his law are necessary and which are the products of accidents of history. Professor Sir Otto Kahn-Freund built a whole and famous lecture around them; and the contract/tort possibilities, available in American but not English law, emerge clearly from such a discussion of the laws of the two countries if done in logical juxtaposition.
Secondly and more importantly, the contractual approach has the potential advantage of designating the range of plaintiffs more accurately through the search of who was the intended beneficiary or, in Cardozo’s better terms, who was the “end and aim of the transaction”. Unlike the multiple, contradictory, and arguably repetitive multi-criteria test expounded first in the Binkanja, the contract approach keep things under control. Also relevant and unanswered in tort is the question whether the defendant-attorney can assert against the plaintiff-beneficiary any defences or limiting clauses he may have had in his contract with his client. If a pure tort approach is adopted, the answer must be “no” because these clauses are res inter alios acta; if a contract approach is adopted, the answer is clearly “yes”. Given that this issue is relevant not only in attorney malpractice cases but also in triangular building cases, the theoretical examination whether these actions should sound in contract or in tort becomes even more important.
The common-law way of avoiding this dilemma, by saying that this is an action shaped by the underlying contract, is fudging the issue; but if people wish to do things that way, I will accept it because in this context, this so-called tort way is exactly what the German have done through their ‘contract with protective effects towards third party’. And there is, finally, a postscript in this diversion: the German sui generis type of contractual action is not, as the American would call it, a contract in favour of third parties because it does not give the frustrated beneficiary plaintiff the right to sue the attorney and demand that he write the will properly and expeditiously. In short, once again, Professor Stapleton has conflated too many issues under one sentence which thus leaves the reader unsatisfied. Because it is short, it does just that; but what she says strikes me as superficial (if not wrong), though it may not be picked up easily by anyone reading her text who is not well versed in German law.
3. How to teach comparative law
My disagreement with Professor Stapleton starts from her opening statement:
“In this article I argue that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility.”
If that means treating the subject as an ‘also ran’ to Roman law, wherever it is still taught (which essentially excludes the USA and most Commonwealth countries), or in conjunction with subjects such as anthropology, then, in my view, it will sound the death knell of the subject. Those who write or teach in that way have seen class attendance and citation to their work diminish. This must be an indication, along with others, that if you really think the subject is a ‘noble’ one, you have to find a way to make it sound relevant to our times and keep it alive. I shall not return to details I have stressed elsewhere, not least because a new book of mine will soon appear entitled Engaging with Foreign Law, which will deal in extenso with the views put forward by Professor Stapleton’s article. I note however three things coming, this time from France.
First, I note that those who have not seen the debates between Justice Breyer and (former) First President Guy Canivet about the need for comparative studies, the need for legal cooperation, and the observation by both justices that their systems are converging, will not be able to notice how un-representative Professor Stapleton’s statement is of the views of certain important, senior, judges. Academics, especially those who live in cloisters, can discard these developments or downplay them; but politicians and practitioners must note them with care, not least because they would have been unthinkable five years ago.
Secondly, I note with pride (because I played an active part in the establishment of both) that the Cornell Law School has established the Center for Documentation of American Law housed in the French Supreme Court. The generous donation that made this possible was accepted because both Lord Phillips, at the time President of the EU Association centre for Documentation of American Law of Chief Justices, and President Lamada stressed the perceived need for judges to study and understand each other’s law. It goes without saying that the study they envisaged was not theoretical or academic but forensic and practical. In the same context, I note the most recent development of the establishment of a position of a “law clerk” based at the French Constitutional Court. This development was undertaken, once again, by Cornell, with the warm welcome of the President of that Court, M Jean Louis Debré. Debré, in a joint press release with the Cornell Law School, stressed the need for such studies at a time of enhanced need for cooperation, understanding, and borrowing.
If one combines these moves with a score of others – some mentioned by Professor Stapleton in her article – one wonders who are the ones looking ahead? Surely, the answer is the pragmatists and not the theoreticians. For that, however, one must be endowed be prepared to face the emerging new world with courage and not be terrified by language barriers.
Professor Stapleton seems to reserve this courage for those (advanced) common-law cultures that operate in the same language. She thus seems to me to place extraordinary (negative) importance on the relevance of the same language, forgetting, for instance, how the House of Lords misunderstood the importance of the East River Steamship v. Transamerica Delaval Inc. case of the US Supreme Court as a case expressing American law; of course, it did not, but only resolved a dispute between two differing circuits. Lord Cook’s subsequent poignant attack on his brethren shows how language is not a bar from error, even at the level of the House of Lords, which (to borrow a well known phrase) is infallible because it is final and not final because it is infallible.
Of course, one could immediately counter-argue (and do so with some force) that if such errors can happen when the same language is involved, one shudders to think how much more can go wrong when non-English languages are brought into play. As a general proposition, that must be a valid one. Yet Professor Stapleton seems to underestimate how much globalization is bringing us closer to each other, and that will inevitably mean that a host of rules will have to be interpreted in a more or less harmonized way. This is not only the case where international conventions of Treaties are adopted or formally ratified by many countries; it will also occur in the areas of human rights, where the view is gaining ground that at least some basic human rights are cut from the same cloth.
Again, I can foresee her reply (and that of Lord Hoffmann) invoking the difference accorded to speech rights in the USA, England, and the EU; and, no doubt, Lord Hoffmann will choose to express this difference (and preference) by invoking the historical pedigree of the Common law, which he would (implicitly, one might argue,) also treat it as superior to that of, say, Continental Europe or Strasbourg. That is all very good, at any rate for those who like judgments couched in terms of patriotism – another difference, by the way, between Goethe’s promotion of German culture and his willingness to learn from others – but it ignores present realities. And the present realities in England are that we allow the police to detain people without charging them for twenty-eight days; we are about to raise this to fifty or so; we are about to exceed almost all the maxima allowed by other – ‘lesser’ (?) - systems. And all this says nothing of the ‘related’ Anglo-American law which has tolerated Guantanamo, Abu Graib, Rendition, and torture practices that the civilian systems do not sanction now, whatever they may have done three centuries ago. Thus, in my opinion, Lord Hoffmann’s patriotic proclamation of the antiquity of the Common law sits uncomfortably with the poor record the UK has had at the Court of Strasbourg for violating the Convention it helped draft. To put it differently, though it is satisfying to claim that ‘we were there first’, it also matters and, perhaps, matters more, if we are still ahead. Some of us would argue that we are not.
Yet there is one more point that should be added here because it is close to Lord Hoffmann’s and Professor Stapleton’s way of thought, and this concerns the slowly emerging right of privacy in English law.
Is this not an area of the law where German law was ahead of English law (ahead in the sense that we are moving closer to them and away from the USA than they are moving closer to us)? Is this not an area where German law, casuistic and judge-made, is transplantable? And if the remaining objection is one of differing principle – Americans prefer speech to privacy – well, is that not a matter of preference, historical and personal, but not immutable once judges and litigants are made aware of the fact that there are alternatives? How best to make one thus aware of alternatives than to give them German cases, show them that they have not numbed free speech, and also show them that they have not opened the floodgates of litigation. If in the process of doing the above, jurists such as myself err on matters of methodology or detail, the likes of Professor Stapleton will help us correct our errors and refine our methods. But that is very different from the wider position she seems to be favouring, which is that anything beyond England, Australia and maybe
New Zealand is out of bounds because it is hardly likely to be useful and perhaps even likely to be dangerous. If that is the case, Professor Stapleton is not just condemning my writings; she is condemning the practice of the South African Constitutional Court, the Israeli Supreme Court, the Canadian Constitutional Court, and, to the extent that she is interested in it or aware of its activities, the German Constitutional Court, which has performed wonders in the area of human rights law comparable to the much more publicized German economic miracle of the 1950s.
4. Postscript: back to Goethe
I began this essay by citing some of Goethe’s views about Weltliteratur and suggesting that they contained useful ideas for those interested in comparative methodology as well as managing the legal side of globalization. I now wish to end by looking at this same scholarship in an attempt to sketch an answer to two other questions. First, does the Goethian literature give any clues as to why some people remove, without thought or hesitation, foreign experiences from the bank of ideas available to them merely because they come from another culture or are expressed in another language? Secondly, how did the Goethian œuvre survive the ‘deforming’ effect of translation? Can this experience tell us anything about the ‘dangers’ of translation?
To answer the first question, attention must be paid to the time when the assessment was made. Literature scholars, like legal scholars commenting on German law, have varied in their reactions to Goethe from enthusiasm to derision and rejection but not at the same chronological time. Thus, a confident middle and late Victorian England was enthusiastic about Goethe as were its lawyers about their German counterparts; and in both cases, we are talking of some very great names. It is only as German industrial, political, and, finally, military power began to be seen as a menace that interest in things German waned, hitting a deep low from the First World War onwards.
Something not that different may be happening today as England tries to come to terms with the fact that it can only rival Germany if it is seen as an appendage of the USA whose size, might, and prestige it can try to appropriate by exploiting the highly misleading shibboleth of “the special relationship” in order to enhance its current stature. Take that away, and all that the British – or, more accurately, the English – can do is invoke their values and perfection of days gone by in order to conceal the fact that in areas outside commercial law, they can no longer credibly claim primacy in doctrinal thinking (if indeed they ever did). Indeed, even in the area of commercial law, the claim does not stand up to scrutiny unless we talk of the Common law (in all its contemporary diversity) and not just English commercial or company law. How painfully true this is can only be realized once we absorb the fact that the precedential value of our highest court’s decisions, though respected in the Commonwealth (but largely ignored in America), has diminished in recent years. This includes the area of human rights, where not only Strasbourg but also newer courts such as the Constitutional Courts of Germany and South Africa and the Supreme Courts of Israel and Canada are coming up with ideas that often reveal a foreign and not English ancestry. I confess some of Lord Hoffmann’s ‘patriotic’ outbursts to the effect that that “we were there first” (and thus need no lessons from others) strike me as meaningless given that at present others have overtaken us. It must thus be galling to admit that, in the domain of human rights – privacy, death sentence, extradition, sexual identity and equality – the German Constitutional Court has achieved for its citizens a human rights protection that rivals (by American admission) the protection given by US courts to its citizens, and exceed ours.
Though much of what I said above is believed by many, it is, admittedly, controversial to proclaim it openly and boldly. But what is the benefit of boasting about our past if the primacy of yesterday is not acknowledged to continue today? Such comfort talk may be psychologically reassuring; but it is no more real than believing that Britannia (still) rules the waves. All this then boils down to mentality and individual psychology, which enables judicial and academic outlooks to remain in denial about the understanding that knowledge of other major and relevant cultures can bring.
Is this a caricature? If it is, it is only to a point. For those who condemn foreign law – German law, both private and public – on such spurious grounds that we do not have enough of it in the English language to use it even as a source of further thinking are avoiding it simply because they ignore it completely. Instead of curing their ignorance, they attempt to deny what exists or to describe it as useless.
That is precisely what happened to the Goethain oeuvre when times made people suspicious towards Germany. The general climate affected the evaluation process of great artists, even when personally free of jingoism. Joyce thus condemned Goethe as “a boring civil servant” while the author of Lady Chatterley’s Lover decried the total immorality of Wilhelm Meister. Why, then, should we be surprised if contemporary lawyers, less equipped in broadly European culture than Joyce or Lawrence, dismiss the German world as irrelevant, even at a time when we know (and so should they) that we are culturally no more self-sufficient than we are politically and economically?
On the second question, namely the dangers of being instructed (wrongly) by foreign writings accessed via translations, Goethe’s work is, again, able to teach us much. For it has given rise to considerable general discussion as to whether poetry can ever be adequately rendered in another language. General but also very specific because Goethe’s use of stress patterns, metrical constructions, and rhymes is so extremely rich – indeed he uses every metrical and strophic form imaginable in Faust, which, for this reason, has been aptly described as a “metrical pandemonium” – that he poses enormous problems for his translators. As if all this were not enough, the text is extremely rich in philosophical meaning. On the Stapleton principle, why bother to translate it? After all, we have Shakespeare! Yet a quick search suggests that there exist something in the region of one hundred English translations of Faust, some, according to the experts, quite outstanding.
Lawyers, good at argument (and sophistry) may rush to make a distinction between translation of poetry and legal texts. In the light of the previous paragraph, the distinction should not be pursued without at the very least having studied the difficulties encountered in the Goethian translations and recalling that his translators were not only faced with complex metric and rhyming issues but also with complex ideas.
In an excellent collection of essays published to celebrate Goethe’s 250th birthday anniversary Professor John R. Williams has analyzed eight famous lines from Faust (501-09), which contain a deep Goethian thought and a metaphor that has given rise to endless difficulties to critics and literary critics. For this text, he reproduces six well-known English translations and discusses their strong and weak points. He mentions what is lost in translation and what was gained by different approaches in tackling the text. The difficulties encountered are very similar to those my translators and I had to face when writing my books and building up my website of translated decisions. Anyone who reads these texts carefully can draw conclusions about different kinds of translation and what they aim to achieve. Professor John R. Williams’ conclusions are richer still because he adds a further dimension to the art of translating. He thus states:
“Translations can be illuminating, not only to readers without German, but also to the student of German literature, provided that they are used intelligently in conjunction with the original, not as mere cribs.”
I venture to suggest that the same benefits can be derived by lawyers using available legal translations in the same manner and, when doing this, we shall discover the dangers of homonyms, the pitfalls of dictionary translations of legal concepts, and the need to replace them with their functional equivalents. In any event, given that in comparative law we are not looking for precedents but stimuli for further thought and, ideally, flashes of originality, the difficulty becomes a welcome intellectual challenge and the successful discovery of the right ‘equivalent’ a possible source for enrichment. Expressing one’s single cultural background through the title of a Hollywood film looks like an easy opt-out from doing something that our times badly need.
Sir Basil Markesinis is an honorary QC and holds doctorates or honorary doctorates from (in alphabetical order) Athens, Cambridge, Ghent, Munich, Oxford, and Paris I (Panthéon-Sorbonne). After holding successively the Chairs of European Law and then Comparative Law at the University of Oxford, where he founded the Oxford Institute of European and Comparative Law, he moved to University College London to the Chair of Common and Civil Law, which he holds simultaneously with the (part-time but tenured) Jamail Regents Chair at the University of Texas at Austin.
He has authored or co-authored twenty-nine books and over one hundred twenty legal articles, which have been published in leading law journals in America, Belgium, England, France, Germany, Greece, Italy, and the Netherlands.
He has lectured extensively in twenty-five different law faculties including Cornell, Ghent, Leiden, Michigan, Munich, Paris I, Paris II, Rome, and Siena, where he has held Visiting Professorships. He is a Fellow of the British Academy, a Corresponding Fellow of the French Academy, a Foreign Fellow of the Italian Academy (Accademia Nazionale dei Lincei), the Royal Belgian and the Royal Netherlands Academies, a Corresponding Fellow of the Academy of Athens, and a Member of the American Law Institute. In 2002 he was appointed Conseiller Scientifique du Premier Pr¿sident de la Cour de Cassation (France) on matters of European law. Besides his academic work, Sir Basil has advised many Government Ministers on both sides of the Channel on matters concerning Europe and, between 1997 and 2001, he also served as Special Advisor on European matters to the multi-national firm of Clifford Chance. For his academic work and other services Sir Basil has received high decorations from the Presidents of France (three times), Germany (three times), Greece, and Italy (three times). Most recently (2002) he was promoted by the President of Italy to the highest rank of the Italian Order of Merit, Knight Grand Cross, while the President of Germany awarded him the insignia of Knight Commander of the Order of Merit, in May 2003. He was made Knight Bachelor by Her Majesty Queen Elizabeth II in the New Year of 2005 for "Distinguished Services to International Legal Relations".
- ↑ Stapleton, J. Benefits of Comparative Tort Reasoning - Lost in Translation.  1 Journal of Tort Law, p. 1 ff.
- ↑ Published in 1790 in French.
- ↑ Hoffmeister, G. Reception in Germany and Abroad. In Lesley Sharpe (ed.). The Cambridge Companion to Goethe. Cambridge: 2002, pg. 232.
- ↑ Quoted by Richard Friedenthal, in Friedenthal, R. Goethe: His Life and Times. London: 1965 ( 1989 paperback edition), pg. 513 (Italics supplied).
- ↑ Bingham, T.H. 'There is a World Elsewhere': The Changing Perspectives of English Law. F.A Mann lecture given on 21 November 1991, published in  41 International & Comparative Law Quarterly, pgs. 513-29 and reprinted in Bingham, T.H. The Business of Judging. Selected Essays and Speeches. Oxford: 2000, pg. 87 ff. Baroness Hale of Richmond in her recent but as yet un-published Maccabaean lecture "Minority Opinion?" at the British Academy seems to me to have argued along similar lines [Editorial note: the lecture has been subsequently published in Proceedings of the British Academy  154, 319-336].
- ↑ Markesinis, B. Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding Recourse to Foreign Law.  80 Tulane Law Rev, pp. 1325 ff.
- ↑ Steven, R. Torts and Rights. Oxford University Press, Oxford, 2007, p. vi.
- ↑ BGH 27 May 1963, BGHZ 39, 358, English version in Markesinis, B. S. and Unberath, H. The German Law of Torts. A Comparative Treatise. 4th ed. Hart: Oxford-Portland, Or., 2002, p. 615 and 617.
- ↑ Dutton v. Bognor Regis Urban District Council  1 QB 373.
- ↑ Anns v. Merton London Borough Council AC 728
- ↑ Murphy v. Brentwood District Council  1 AC 398.
- ↑ Fairchild v. Glenhaven Funeral Services Ltd.  1 AC 32.
- ↑ D. v. East Berkshire Community Health NHS Trust and Others  2 AC 373.
- ↑  W.L.R. 388.
- ↑ Stapleton, J. , op. cit., note 1, p. 34.
- ↑ Markesinis, Basil and Unberath, Hannes. The German Law of Torts: A Comparative Treatise (4th ed.). Hart Publishing: 2002, 969 pages long.
- ↑ von Bar, Christian. The Common European Law of Torts. Vol. 1. Oxford University Press: 1999; von Bar, Christian. The Common European Law of Torts. Vol. 2. Oxford University Press: 2000, amounting to a total 1268 pages.
- ↑ Van Gerven, W. Tort Law. Hart Publishing: 2001 (Reprint), 969 page long.
- ↑ Gordley, James and von Mehren, Arthur Taylor. An Introduction into the Comparative Study of Private Law, Readings, Cases and Materials. Cambridge University Press: 2006, 640 pages long.
- ↑ Markesinis, B. S. and Fedtke, J. Judicial Recourse to Foreign Law, A New Source of Inspiration? Routledge-Cavendish: 2006, including essays by Justice Laurie Ackermann (South African Constitutional Court), President Barak (Israeli Supreme Court), Otto Brun-Bryde (German Constitutional Court). Guy Canivet (French Supreme Court), Sir Sydney Kentridge QC, Christos Rozakis (Court of Human Rights, Strasbourg) and Konrad Schiemann (Court of the European Communities). Société Eternit industries contre M.-L.
- ↑ Société Eternit industries contre M.-L. X et CPAM de Valenciennes, Les Petites Affiches, n°62, 27 mars 2002, pp. 15-19.
- ↑ On this, see Munich Re Group. 2nd, 6th and 7th International Liability Forum Munich. 1999, 2002 and 2003 respectively. Available at http://www.munichre.com. It is a typical thorough Germanic survey - unmatched, as far as we know, in this country.
- ↑ For a comparative survey of the relationship between general tort liability and social security systems (including workers' compensation), see Magnus, U. (ed.). The Impact of Social Security Law on Tort Law. Springer: 2003.
- ↑ 56 Cal. 2d 583, 364 P. 2d 685 (1961).
- ↑ For further details, see my Understanding American Law by Looking at it Through Foreign Eyes: Towards a Wider Theory for the Study and use of Foreign Law.  81 Tulane Law Rev, pp 123 ff.
- ↑ Kahn-Freund, O. On Uses and Misuses of Comparative Law.  37 MLR, pp. 1 ff.
- ↑ 49 Cal. 2d 647, 320 P. 2d 16 (1958).
- ↑ 476 U.S. 858 (1986).
- ↑ Cooke, Robin. An Impossible Distinction.  107 LQR 46 ff.
- ↑ Brown v. Allen 344 US 443, 540 (1953) (per Mr. Justice Jackson).
- ↑ "Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison as the whim of their rulers." A & Ors v. Secretary of State for the Home Dept.  UKHL 56, § 88.
- ↑ Ellmann, R. James Joyce. London: Oxford University Press, 1959, p. 406.
- ↑ Williams, J. R. What Gets Lost? A Look at Some Recent English Translations of Goethe. In: Boyle, N. and Guthrie, J. (eds). Goethe and the English-Speaking World. Essays from the Cambridge Symposium for His 250th Anniversary. Rochester, NY: Camden House, 2002, pp.213 ff.
- ↑ Williams, J. R., ibid., p. 225 (my emphasis).