The Efficiency of the Common Law: The Puzzle of Mixed Legal Families

Many legal economists have suggested that the common law system is more conducive to economic growth than the civil law system. Such literature has been popularized within the legal origins movement. From the perspective of such literature, the existence of hybrid, pluralist or mixed legal jurisdictions is a puzzle. Why has civil law persisted while common law is more efficient? This paper discusses the efficiency of the common law hypothesis from the perspective of hybrid jurisdictions. We argue that the complexities of legal systems require a more nuanced analysis. The consequence is that there is no single efficient outcome, thus undermining the “one-size-fits-all” theory of the legal origins literature

The Syndrome of the Efficiency of the Common Law

Our article is a methodological critique of the recent legal origins literature. We start by showing that the legal origins literature cannot easily be based on the efficiency hypothesis of the common law. By debunking the relationship between the efficiency hypothesis and the legal origins literature, we are left with no consistent theory to explain the alleged inferiority of French civil law. It is clear that the legal origins literature is based on a particular, biased selection of cherry-picked legal doctrines. A different selection of cherry-picked legal doctrines would produce a different assessment. We discuss examples that look at substantive law and procedure in the core areas of property, contracts, and torts. These are areas that have been documented as being crucial for economic growth. The second set of examples looks at the organization of the legal system and governance. The influence of these variables on economic growth is more controversial, but they are part of the argument against the efficiency of French civil law. We argue that a careful examination of rules and legal institutions shows that the inefficiency hypothesis of French law is not sustainable under the current framework of comparative law and economics. Our goal is not to argue that French law is more efficient than common law. Rather, our criticism is essentially methodological. Robust micro-based assessments of rules and legal institutions should prevail over macro generalizations and cherry-picking theories that lack a serious theoretical framework. The academic discussion concerning the efficiency superiority of the common law should not overcome the detailed study of legal institutions around the world. Successful legal reforms need to address local problems under local restrictions and specific determinants. In our view, legal reforms based on misperceptions and generalizations are actually detrimental

The Syndrome of the Efficiency of the Common Law

Our article is a methodological critique of the recent legal origins literature. We start by showing that the legal origins literature cannot easily be based on the efficiency hypothesis of the common law. By debunking the relationship between the efficiency hypothesis and the legal origins literature, we are left with no consistent theory to explain the alleged inferiority of French civil law. It is clear that the legal origins literature is based on a particular, biased selection of cherry-picked legal doctrines. A different selection of cherry-picked legal doctrines would produce a different assessment. We discuss examples that look at substantive law and procedure in the core areas of property, contracts, and torts. These are areas that have been documented as being crucial for economic growth. The second set of examples looks at the organization of the legal system and governance. The influence of these variables on economic growth is more controversial, but they are part of the argument against the efficiency of French civil law. We argue that a careful examination of rules and legal institutions shows that the inefficiency hypothesis of French law is not sustainable under the current framework of comparative law and economics. Our goal is not to argue that French law is more efficient than common law. Rather, our criticism is essentially methodological. Robust micro-based assessments of rules and legal institutions should prevail over macro generalizations and cherry-picking theories that lack a serious theoretical framework. The academic discussion concerning the efficiency superiority of the common law should not overcome the detailed study of legal institutions around the world. Successful legal reforms need to address local problems under local restrictions and specific determinants. In our view, legal reforms based on misperceptions and generalizations are actually detrimental

The Efficiency of the Common Law: The Puzzle of Mixed Legal Families

Many legal economists have suggested that the common law system is more conducive to economic growth than the civil law system. Such literature has been popularized within the legal origins movement. From the perspective of such literature, the existence of hybrid, pluralist or mixed legal jurisdictions is a puzzle. Why has civil law persisted while common law is more efficient? This paper discusses the efficiency of the common law hypothesis from the perspective of hybrid jurisdictions. We argue that the complexities of legal systems require a more nuanced analysis. The consequence is that there is no single efficient outcome, thus undermining the “one-size-fits-all” theory of the legal origins literature

From Nuisance to Environmental Protection in Continental Europe

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial divergence and the trends towards similar rules across jurisdictions, the paper explains the potential forces of convergence at the European level: the Draft Common Frame of Reference, the European Union Environmental Liability Directive, and the decisions of the European Court of Human Rights. It is important to note that this article only focuses on regulations and remedies related to non-trespassory invasions on real property, not on non-invasive, aesthetic nuisances

From Nuisance to Environmental Protection in Continental Europe

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial divergence and the trends towards similar rules across jurisdictions, the paper explains the potential forces of convergence at the European level: the Draft Common Frame of Reference, the European Union Environmental Liability Directive, and the decisions of the European Court of Human Rights. It is important to note that this article only focuses on regulations and remedies related to non-trespassory invasions on real property, not on non-invasive, aesthetic nuisances

Scope of Liability, The Vanishing Distinction between Negligence and Strict Liability

Duty of care cannot be used anymore as the touchstone to differentiate negligence from strict liability, because the scope of liability (traditionally called proximate causation) requirement replicates many of the former features. Indeed, under a negligence rule the marginal Hand formula is applied twice: first to assess whether the defendant did breach his or her duty of care, and, second, to delimit whether defendant's behavior was a proximate cause of the harm suffered by the victim. But under a strict liability rule, the Hand formula question is applied only once when the proximate causation question is raised. Traditional law and economics analysis has almost always taken normative questions raised by the causation requirement as given, which is a major flaw of mainstream models, because the centrality of the scope of liability or proximate causation requirement in real legal practice is disregarded if not simply expelled from the analysis. Then, definining the subjective scope of liability, that is to say, the boundaries of the pool of potential defendants, is the basic policy decision in each an every liability rule. In the model presented in this paper, the government first chooses efficient scope of liability, and, second, given the scope of liability, the government decides liability rule and damages that guarantee efficient precaution. In the final part of the article, most known scope of liability doctrines developed by both common law and civil law systems are described in order to show how large the common ground between negligene and strict liability can be