Special Workshop Abstract

The shaping of European legal science began with the reception of Roman Law in the Early Middle Ages and culminates with the works of Savigny, Jhering and the Begriffsjurisprudenz in the nineteenth century. In this long process legal science evolved from glosses and commentaries on the Corpus Juris Civilis to abstract and complex theories. During the seventeenth and eighteenth centuries Civil Law was greatly influenced by the school of Natural Law, especially by philosophers like Pufendorf, Grotius, and Kant, who constructed their systems by reference to the Corpus Iuris Civilis.

The philosophical approach to law really originated as a way of understanding and shaping Civil Law, rather than Common Law. Paradoxically, contemporary common law philosophers nurture themselves from the school of Natural Law to provide an account of Common Law whereas civil law philosophers remain largely inattentive to that intellectual tradition.

I argue that, although both economic and philosophic accounts are relevant to understanding Common Law as well as Civil Law, the latter are comparatively more important for Civil Law because of the greater influence of natural law ideas in its shaping. I illustrate this hypothesis with two examples. I take my first example from contract law. Unlike Common Law, Civil Law establishes specific performance, rather than money damages, as the primary remedy for breach of contract. A philosophical account can more easily explain this feature of Civil Law than any explanation based on efficiency. The second example comes from tort law. The traditional theory of civil liability in Civil Law requires causation and fault and, therefore, fits more naturally with the idea of corrective justice than with that of efficiency. Although different forms of strict liability are also recognized in Civil Law, they are generally considered peripheral to the core fault-based regime.