Article by Guy Canivet
As one often needs to do when treating a legal question, the introductory comments by Sir Basil Markesinis and Jörg Fedtke on The Judge as Comparatist broach a theoretical issue expressed by the first quotation, followed immediately by a practical interpretation raised by the second.
From a theoretical point of view, if one agrees with Montesquieu that the law is the product of the social order in which it is applied, then the difference between the rules of one country and another flow directly from the diversity between legal cultures.
At the same time, the phenomenon of globalization, resulting from the development of commercial relations and the spread of technologies and new means of communication, creates, as to the great questions facing society, a dialogue between civilizations and between currents of opinion, tending to bring about convergence in the different legal systems, as Pascal urges in the second quotation. The convergence, however, derives from the first observation as to the existence of different systems of law which are the fruit of their cultures, of history, of geography, and of economy. Thus, there are two movements: the incommensurability or irreducibility of legal cultures, on the one hand, and convergence, on the other, set in motion contradictory movements between singularity and rapprochement in the legal systems.
About the Author
Guy Canivet. Premier président de la Cour de cassation.
Citation
80 Tul. L. Rev. 1377 (2006)