Reproduced with permission of 65 Louisiana Law Review (Winter 2005) 677-774

1. Introduction
2. The Two Dominant Legal Systems of the World: Common Law and Civil Law
   1. The Pervasive Reach of the Two Systems
   2. Basic Origins, Precepts, and Characteristics of the Common Law System
      1. Historical Roots
      2. Basic Mechanics of the Common Law System
      3. Legislation in Common Law Systems
      4. Equitable Powers of the Courts
      5. The Role of the Court and Judges in the Common Law System
      6. Summary of Common Law System
   3. Basic Origins, Precepts and Characteristics of the Civil Law System
      1. Roman Origins and the Corpus Juris Civilis
      2. Revived European Study of the Corpus Juris Civilis
      3. The Rise of the Nation-State, the Revolution, and the Advent of National Codes
      4. Codification Efforts in England and the United States
      5. The Code in the Modern Civil Law System
      6. The Judicial Function in the Modern Civil Law System
      7. The Status of Judges in the Civil Law System
      8. Summary of Civil Law System
3. Internationalized Contract Law: Past and Present
   1. The Need for International Contract Law
   2. Historical International Contract Law: The Jus Commune and Lex Mercatoria
   3. Present Day Echoes of the Lex Mercatoria
      1. Uniform Laws on Sales of Goods (ULIS, ULFIS, and CISG)
      2. Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts
   4. The Implementation of CISG as Positive Law and the Degree of Uniformity in its Interpretation Among Contracting States
4. Prospects for the Future Internationalization of Contract Law and the Pragmatic Effects of Implementing a Civilian Resolution
   1. An International Civil Law Code Will Have a Unifying Effect on the Globalized Rule of Contract Law
   2. An International Civil Law Code Will Limit the Delegation of the Sovereignty of Nations
   3. The Conditions that Historically Have Led to Codification Are Currently Present in the International Commercial Community
   4. Common Law Jurisdictions Are Increasingly Receptive to Codification
   5. Other Practical Considerations Portend Eventual Codification
5. Conclusion

I. INTRODUCTION

The international community has worked toward a global law of contracts for the last century. These efforts include the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, and the Vienna Convention for the International Sales of Goods (CISG). These texts are all tremendous achievements in their own right. The CISG, especially, is a monumental achievement, testifying to the increasing willingness of modern nations to cooperate toward a unification of commercial law.[1] However, they reflect a delicate juxtaposition of the two [page 678] primary legal systems of the world -- the civil law and the common law. A consequence of this tension has been that the texts are full of compromises between the two systems. The excessiveness of these compromises has resulted in confusion and lessened effectiveness of the resultant provisions.[2] The hybridized legislation is devoid of interpretational methodologies which accompany statutes in the common law and civil law systems, respectively. The international effort at a unifying law of contracts is therefore at a relative impasse because of this tension between the two systems.[3] A solution is needed.

Suggesting the solution to this tension is the purpose of this article. That is, this article seeks to determine, between the two great and dominant legal systems of the world -- the common law and the civil law -- which of the two is more workable as the model on which any future regime of international contracts law should be based. The purpose is not to argue for the superiority of one system or another in the abstract sense, or in the sense of superiority as applied to a single nation's domestic system of laws.[4] Rather, this article's narrow focus is to decide whether a common law or civil law model is more efficacious in implementing any future effort at such a sophisticated system of international contracts law. For reasons I shall expound, I believe that in this narrow sense, the civil law may prove a more pragmatic and politically expedient solution to this dilemma. [page 679]

Section II demonstrates that the common law and the civil law are easily the most widely practiced legal systems in the world. It will also provide a comprehensive historical overview and basic description of both the common law system and the civil law system. Particular emphasis is placed on the civil law. Section III describes the perceived need for an international law of contracts, the history of the efforts to attain such a regime, and the problem of uniform international interpretation of the current such law, the Convention for the International Sale of Goods (CISG). The effects of having participating nations from both legal systems is also discussed. Section IV asserts that a civil law model would provide a more pragmatic and efficacious solution for a future international contracts code, for the following reasons: (1) the civil law would be more distinctly unifying of the international law of contracts, (2) the civil law would minimize the surrender of nations' sovereignty to an international regime of contract law, primarily by promulgating a comprehensive code and eliminating stare decisis, (3) the characteristics of the international contract law -- in excess of one thousand years old, and simultaneously a new supranational regime in the embryonic stages -- are such that codification is especially appropriate for immediate implementation of any such regime, (4) common law jurisdictions have evidenced increasing amenability to codification of existing law and have also revealed an observable trend away from strict adherence to stare decisis, whereas there is no discernible converse trend in civilian jurisdictions, and (5) other considerations -- including the sheer population numbers which weigh in favor of the civil law -- point toward implementing a civilian international contracts code as the logical and pragmatic solution. Section V presents a brief conclusion. Section V, therefore, concludes by recommending that any future attempt at promulgation of a comprehensive international commercial code be done in the form of a civil code.

II. THE TWO DOMINANT LEGAL SYSTEMS OF THE WORLD: COMMON LAW AND CIVIL LAW

A. The Pervasive Reach of the Two Systems

Today's world is comprised of approximately 190 individual nation states.[5] There are a host of differing legal systems in such nations. Included among these systems are very regionalized, [page 680] indigenous systems of customary law, and also various types of religious law.[6] At first glance, it would appear that today's nations have decentralized into a veritable potpourri of legal systems, as scattered and irreconcilable as were the peoples in the aftermath of the biblical account of the Tower of Babel.[7] In some respects this is doubtlessly true. In another important respect, however, there have really developed only two major, dominant systems of legal structure -- the civil law and the common law.

That the civil law and the common law are the dominant world legal systems is immediately apparent from an observation of the statistics of the number of nations adhering to each of the respective systems. The University of Ottawa has assembled helpful information in this regard.[8] Specifically, the jurisdictions in the world have been catalogued according to the following legal system categories: Civil law,[9] Common law,[10] Customary law,[11] and Muslim [page 681] law.[12] There is a fifth category, described as "Mixed," which is designed to broadly state the presence of many jurisdictions which have a combination of two or more of the four legal systems described.[13] [page 682]

Based on these categories, the University identifies the nations of the world by the appropriate category of legal system.[14] The jurisdictions are divided into "pure" legal systems of only one of the categories, and also various combinations of "mixed" jurisdictions. All but three [15] of the one hundred ninety-one nations of the world [page 683] have some form of either civil law or common law. This represents 98.43% of all nations of the world.[16] The population measure is even more impressive -- 99.56% of the population lives in a jurisdiction which utilizes a civil law system, common law system, or combination of the two, with some nations having other elements of indigenous customary law, or Muslim law, mixed into the system.[17] Hence, literally all corners of the earth have been touched by either the Common Law or Civil Law systems.

Common law (exclusive of any Civil Law), whether in "pure" or "mixed" form, is utilized by some fifty-one nations, or 26.7% of all nations of the world.[18] These nations account for 34.81% of the world's population.[19] These aggregate numbers are derived by adding together four combinations of nations: (1) Common Law (including the United States, United Kingdom, Canada, Australia, and Ireland); (2) mixed systems of Common Law, Muslim law, and local Customary law (including India, Kenya, Malaysia and Nigeria); (3) mixed systems of Common Law and local Customary Law (including Ghana, Myanmar, Nepal, Tanzania, and Uganda); and (4) mixed systems of Common Law and Muslim Law (including Bangladesh, Pakistan, Singapore, and Sudan).[20]

Civil law (exclusive of any Common Law), whether in "pure" or "mixed" form, is utilized by some 115 nations, or 60.21% of all nations of the world.[21] These nations account for 59.01% of the world's population.[22] These aggregate numbers are derived by adding together yet another four combinations of nations: (1) Civil Law (most of Continental Europe, Asia, Central America, and South America, including Argentina, Belarus, Belgium, Brazil, Colombia, France, Germany, Greece, Italy, Mexico, Netherlands, Peru, Poland, Romania, Russia, Spain, Turkey, Ukraine, Venezuela, and Vietnam); (2) mixed systems of Civil Law and local Customary Law (including China, Congo, Ethiopia, Japan, North Korea, South Korea, [page 684] Madagascar, and Niger); (3) mixed systems of Civil Law and Muslim Law (including Algeria, Egypt, Libya, Morocco, Syria, and Tunisia); and (4) mixed systems of Civil Law, Muslim Law, and local Customary Law (including Indonesia).[23]

Finally, it happens that there are a handful of jurisdictions which, in fact, have a legal system which is a mixture of Common Law and Civil Law. Such a Common Law-Civil Law blended legal system is utilized by some twenty-two nations, or 11.52% of all nations of the world.[24] These nations account for 5.74% of the world's population.[25] These aggregate numbers are derived by adding together the following four combinations of nations: (1) mixed systems of Civil Law and Common Law (including Philippines, South Africa, and Thailand);[26] (2) mixed systems of Civil Law, Common Law, and Customary Law (including Cameroon, Sri Lanka, and Zimbabwe); (3) mixed systems of Civil Law, Common Law, and Muslim Law (including Iran, Jordan, Saudi Arabia, Somalia, and Yemen); and (4) mixed systems of Civil Law, Common Law, and Talmudic Law (including only Israel).[27]

The statistics thus bear out the proposition that Common Law and Civil Law are the two dominant legal systems of the world. For this reason, I have formulated my thesis so as to constrain myself to an observation of which of these two dominant legal system models -- Common Law or Civil Law -- is more suited to serve the needs of the international community in the form of a new, global commercial system. This is with all due respect for the localized indigenous practices which comprise the various Customary Laws and certainly also with due respect for the religious-based legal systems such as Muslim Law and Talmudic Law. In fact, these systems will almost certainly continue to have a sweeping influence.[28] Recognition [page 685] must also be here given to the fact that in many respects I am engaging in gross oversimplification -- in the strictest sense it is not correct to simply say that all parts of the world are governed by either common law or civil law.[29] And, even within the systems which have here been classified as either fully or partly "common" or "civil," there exists greater heterogeneities within these systems.[30] However, given the dominance of the Civil Law and the Common Law, it seems certain that a future international commercial legal system will bear the characteristics of one of these systems or the other.

B. Basic Origins, Precepts, and Characteristics of the Common Law System

1. Historical Roots

As I assume that much of my audience consists of common law lawyers, any explanation of the common law system need not be [page 686] overly comprehensive. Nevertheless, a few comments are in order, for purposes of a later comparison with essential components of the Civil Law system. It is generally accepted that the Common Law system originated in England. At least parts of the British territory were, at one time, part of the Roman Empire.[31] With the eventual fall of the Roman Empire, and the concomitant loss of its grip on political control and organization in Western Europe, including Britain, came the "de-legalization" of culture and society generally, and the descent into what is known colloquially as the "Dark Ages."[32] Many factors, including the rise of Islam in the seventh century, and the rise of Norse savagery, with the accompanying seizure of control of much of the Mediterranean Sea, began to isolate Western Europe, including Britain, from its eastern brethren in the former Roman Empire.[33] As was stated by Pirenne in his work, Economic and Social History of Medieval Europe:

Because of this development into an agrarian-based society, Britain, like much of Western Europe, developed into such a state that markets, and sales and purchases generally, were relatively rare, being only necessary in the event of a personal financial calamity.[35] Because there were no markets, and thus no systematically, recurring commercial transactions, there also came to be no real need for a system of law in any organized sense, as had existed in the prior days of the Roman Empire.[36] The Anglo-Saxon rule of law, to the extent [page 687] it existed at all, was highly regional, fragmented, and arbitrary.[37] The systems for resolving disputes were quite crude, as the society during this time was quite crude by modern standards.[38] This was attributable in large part to the feudal societal structure, which tended to decentralize the region and prevent the rulers from exercising effective control.[39] The legal order of the day tended towards primitive processes, such as vengeance, compurgation, the ordeal, and the hue and cry.[40] In short, it has been described as "barbarian law."[41]

It was not until the English conquest of William from Normandy in 1066, that outside stimuli began to affect the prevailing systems there. This is the year commonly identified as the year that the common law tradition commenced.[42] The Normans, unlike the indigenous Anglo-Saxons they conquered, were able administrators [page 688] which quickly claimed a centralized monarchical and political power over all the British territory.[43] Much of the early thrust of English political influence was directed toward the increasing centralization and unification of the English royal governmental structure and processes.[44] The Norman rulers quickly discovered that the state of the rule of law in England was in dire straits -- it was said by a writer of the time that "definite truth of the law can seldom be found."[45] It has further been stated that "in the early twelfth century men in England had every reason to be bewildered by the law."[46]

Accordingly, one of the Normans' most critical and influential efforts was the creation of the king's court, devised in order to impose orderly judicial rule.[47] Serving at the pleasure of the throne, these royal courts began to exercise competing jurisdiction with the local, feudal courts of the pre-Norman period.[48] The initial assumption of jurisdiction of these courts was a delicate matter, and initially much effort was directed at not stepping lightly around areas still adjudged by the Saxon-era courts.[49] Under Henry I, at the beginning of the twelfth century, the royal courts began to travel to the various municipalities in the country so as to hear local disputes.[50] Unlike the older Saxon courts, which rendered decisions in an often arbitrary and inconsistent manner, the new royal courts began applying a uniform, or "common" law, throughout England, with the purpose of normalizing and unifying the law for the entire country.[51] [page 689]

The English citizenry gradually began to prefer these royal courts over the older Saxon-era courts, perceiving them as superior sources of adjudicatory and enforcement power.[52] Thus, the royal courts eventually became the main courts in England, and the older, Saxon-era courts eventually ceased to have any importance.[53] This new uniform and superior law adjudicated by the royal courts, "common to all the realm," began to completely subsume and displace all of the "petty local and tribal peculiarities of which English law, at the time of the Conquest, [had been] full."[54] Thus, from the coronation of Henry I in 1100, through the death of Henry III in 1272, the royal courts "declared the Common Law of England."[55] Eventually, of course, with the advent of British imperialism, the common law system was transplanted far and wide, such that "the sun never set on the British empire," nor on some land which utilized the common law system.[56] [page 690]

2. Basic Mechanics of the Common Law System

What were, and are, the attributes of this system known as "the Common Law"? The answer is derived from the historical workings of the early court system in England. Early on, the royal courts developed a system of several dozen specific writs -- i.e., court orders for relief -- which could be issued to a litigant.[57] Only cases which had factual patterns matching one of these situations could be granted relief via a writ.[58] As a result, the early royal courts in the first two centuries after the Norman conquest began to pay particularly close attention to the different fact scenarios involved in the cases before them.[59] As the case load increased, the royal courts turned to an innovation in the interest of judicial efficiency -- once the courts decided a particular dispute, all subsequent disputes would be decided in the exact same way, thereby eliminating the need for the judge to ever address that particular issue in any comprehensive manner again.[60] Indeed, based on the lack of any other written source of law, the English adherence to precedence seems logical.[61] As early as the thirteenth century, Judge Bracton stated the principle in his incomparable treatise of the day:

However, it was actually not until the sixteenth century that case decisions began to be reported in print and available to lawyers -- before this, the lawyers and judges simply worked from memory of the professionals and the official case file record.[63]

Nevertheless, it is seen that early on the common law embraced the doctrine of stare decisis, defined thusly: "The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation."[64] [page 691] The common law system has been described as the process of applying rules derived from case precedents, to new factual situations, all for the purpose of producing uniform, consistent, and certain results.[65] Champions of the common law method of law-making and case resolution often praise it as being dynamic and ever-evolving, able to adjust to new situations which have been previously unaddressed by legal rules or principles.[66] Indeed, part of this dynamism is in the fact that common law courts and scholars have even imbued the rule of stare decisis, though it is the certainty-imbuing mechanism of the common law, with limitations.[67] As the United States Supreme Court [page 692] has stated, albeit in the context of constitutional interpretation: "[t]he doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command."[68]

It does seem as though, in reality, common law judges do not follow prior decisions as dogmatically as the theoretical conventions [page 693] of common law ideology and stare decisis would otherwise command.[69]

This system of constant potential for change, while celebrated as a virtue among those who praise the common law's adaptability, is not without its historical critics. Jeremy Bentham, the English codification proponent, for instance, is said to have observed: "Common law judges make law as a man makes laws for his dog. When a dog does anything you want to break him of, you wait till he does it, and then you beat him for it."[70] Nevertheless, this system of precedent is the lifeblood of the operation of the common law, and it has persevered in the entire English-speaking world and elsewhere for centuries. The use of prior precedent as authoritative in future cases "is the distinctive feature of a common law legal system."[71] So, quite simply, common law is "judge-made" law.[72] Cases are law.[73] [page 694]

3. Legislation in Common Law Systems

There are, of course, statutes in common law jurisdictions.[74] However, by and large, the common law is the comprehensive backdrop of law in such jurisdictions:

One state supreme court justice, speaking over twenty years ago, observed that in the cases before her court, only about ten percent of such cases were "purely common law," with statutes bearing some relevance to the balance of the disputes.[76] Nevertheless, even so, the presence of statutes does not change the fundamental nature of the common law adjudicatory method, nor the manner in which courts are empowered to invoke wide-ranging interpretations and resort to prior precedents for aid in resolving disputes. The common law still "represents the largest proportion of property, contracts and torts."[77] [page 695] Indeed, since much legislation is concerned with public interests such as criminal prohibitions, environmental protections, employment relations, securities regulation, and the like, it has been said that legislatures in Anglo-American legislatures seem largely to "leave individual pursuit[s] of monetary or injunctive relief to existing common law."[78]

Even where there are statutes in common law jurisdictions, they are "organic, a living creature."[79] Statutes, where applicable, do in theory govern preemptively, but even then cases may add "judicial gloss" to the statute by way of interpretation.[80] That is, in the words of one observer, "[t]he U.S. approach [to statutory language] easily recognizes the need for judicial adaptation. It has not committed itself to a stable approach to statutory interpretation."[81] In the United States system, at least, judges often balance the interests advanced by the statute in question, rather than simply adducing the grammatical meaning of the provision.[82] Here, there is great internal debate in the common law system between jurists willing to liberally construe statutory language and those who cling more fervently to a strict constructionist approach.[83] Nevertheless, the presence of statutes in common law jurisdictions, though undeniably affecting the common law, has not fundamentally transformed its basic essence and the law-making effect of case decisions. [page 696]

4. Equitable Powers of the Courts

The influence of the common law judge is even more impressive when her equitable powers are taken into account. Judges in the common law tradition have such equitable powers inherent in their judicial authority, in addition to the powers to decide disputes according to fixed legal principles.[84] This power of equity gives the common law judge the ability to ameliorate the perceived harshness of a legal rule in the context of a particular set of factual circumstances, so as to achieve justice in the context of an individual dispute.[85] The common law judge's equitable powers are even seen as giving her the ability to "interpret and reinterpret in order to make the law respond to social change."[86] While this poses the potential for tension between the twin desires for certainty and justice in the law, in the common law system the mandate to maintain the balance between these two competing interests is set squarely at the feet of the common law judge.[87] Hence, the maintenance of balance between these two tensions is yet another responsibility of the common law judge, and yet another source of wide discretion and power within the operation of the common law system.

5. The Role of the Court and Judges in the Common Law System

From the foregoing, it is perhaps unsurprising that one of the enduring characteristics of the common law system is our reverence for, and even glorification of, judges and the judicial function. In the United States, and at least historically in England, judges at certain levels are heroes of the culture, at least the legal culture. "Many of the great names of the common law are those of judges: Coke, Mansfield, Marshall, Story, Holmes, Brandeis, Cardozo."[88] The reasons for this, given the mechanics of the common law system, are obvious. The judges are the creators of the law, with deference to the legislature's role.[89] It has been stated that the common law arose, at [page 697] least in part, out of an inherent suspicion of democratically elected majority rule, and, at least by implication, the legislative function.[90] In the American experience, the judicial system has been a stimulus for the advancement and safeguarding of civil liberties.[91] As John Henry Merryman observed:

The fact that judges are held in such high regard in common law jurisdictions is, of course, a function of the reality that they are an indispensable part of operating the common law system. However, it also stems largely from the success that they have had in the practice of law before assuming the bench. Judges in common law jurisdictions have generally attended law school and had successful careers as practicing attorneys.[93] Further, in common law [page 698] jurisdictions, judges generally attain their office through, in part, their successful practice, but also in large part through peer reputation, and even influence in political circles.[94] It is rare for someone to become a judge early in his or her career, and certainly virtually unheard of to take the bench directly after law school. Rather, becoming a judge is often a "crowning achievement," bringing a great deal of prestige and esteem.[95] In short, as one of the crafters of the law through the rendering of adjudications having precedential effect, the judge is a critical figure in the common law.[96]

6. Summary of Common Law System

In summary, the Common Law derived historically from medieval England, as a way to provide uniformity -- i.e., "commonality" -- to the law throughout all of England. Its chief identifying methodological characteristic is its use of stare decisis to give precedential effect to case decisions, thereby giving them the force of law. The common law spread throughout much of the world as a direct result of eighteenth and nineteenth century British imperialism. Common law systems exalt the role of the judiciary, which has a very strong influence on the law-giving functions within government, rivaling and even exceeding the legislatures in this regard. Because of the largely positive experience with this system in England, and especially the United States, common law courts and judges have an esteemed place within government, and even society itself.

C. Basic Origins, Precepts and Characteristics of the Civil Law System

1. Roman Origins and the Corpus Juris Civilis

The Civil Law system of legal methodology is the world's oldest system still in wide practice -- it is also the world's most broadly practiced and implemented system.[97] Other than the areas permeated by British imperialism in the eighteenth and nineteenth centuries, virtually the entire remainder of the world practices some form or another of civil law, or at least has systems which were, or are, [page 699] influenced by civil law.[98] The system almost certainly has its origins in the ancient Roman Empire.[99] The Romans were quite adept, given their historical context, at developing legal methodologies and substantive legal precepts.[100] Justinian's great codification in the sixth century A.D. is often the starting point for a discussion of the history of the civil law, but that does not go far back enough.[101] Rather, the civil law system is said by Merryman to have originated nearly a millennium earlier, in 450 B.C. when the Twelve Tables were published in Rome.[102] This was Rome's first system of written law, codified around the time the Roman Republic was founded,[103] shortly before the demise of the original Roman monarchy.[104] The process of putting the law of the Republic into written form was important, as one of its chief functions at the time was to give the Roman citizenry the means to review the applicable legal standards of the day.[105] The legal principles were literally inscribed onto [page 700] twelve stone tablets, which were then affixed in a prominent location in the city itself, so as to be viewable by all citizens.[106] The physical Tables were demolished by the marauding Gauls in 390 B.C.[107] However, due to the prior memorization of all the principles contained in the Tables by Roman citizens, the Twelve Tables had an enduring influence and continued vitality until the time of Justinian's great codification and reformation of Roman law.[108]

In 533 A.D., nearly one thousand years after the publication of the Twelve Tables, the Emperor Justinian published his great codification, the Corpus Juris Civilis.[109] Justinian had at least two critical rationales for ordering the codification.[110] His first rationale was that a reformation of Roman law was in order -- Justinian considered the legal system of the day to be corrupt, as a result of centuries of deterioration and decline.[111] Justinian desired to return the Roman law to its prior glory at the foundation of the Republic.[112] His second rationale was more pragmatic -- he perceived a need for codification in light of the massive volume of authorities, treatises, and commentaries on Roman law, many of which differed in opinion, and even directly contradicted each other.[113] These commentaries were written by the legal scholars of the period, which were called jurisconsults.[114] Accordingly, Justinian sought to reform the existing legal precepts and authorities by discarding what he perceived as incorrect, arcane, or superfluous, and to organize the remainder into a categorized, systematized whole -- i.e., a code.[115]

When Justinian's Code was completed, it consisted of approximately 4,600 sections, which were organized into ten volumes.[116] The Code provisions themselves were written in Latin, which was the academic language throughout the empire.[117] Included in the promulgation of Justinian's Code were: the Institutes (a [page 701] treatise-like exposition of the code provisions), the Digest (a collection of excerpts of writings from scholars on the pre-Justinian Roman law), and the Codex (an aggregation of royal pronouncements affecting the law).[118] Also accompanying the Code provisions were the Novels, which were declarations of Justinian himself, and were written in Greek, the language commonly used by ordinary citizens of the time.[119] The Code was a celebrated achievement of the day (those sharing this view included Justinian himself).[120] One of the commands Justinian gave regarding the Code was that all pre-Code authority (which was not incorporated into the code itself or the supplementary code materials), such as jurisconsult commentary, was to be thenceforth disregarded as legal authority, persuasive or otherwise.[121] Justinian's motives in this regard were at least partly positive -- he wanted to obviate the need for the citation of any authority other than the Code itself, lessening the research burden of finding the law.[122] Justinian sought not only to abolish prior commentary, his motive was actually to abolish all prior law itself, with the Corpus Juris Civilis completely replacing and superseding all prior law.[123] Justinian even went so far as to have many of the pre-Code manuscripts and authorities burned in order to effectuate his pronouncements in this regard.[124] Though he also sought to ban any subsequent commentary after the promulgation of the Code, he was utterly unsuccessful, as commentary began to be written almost as soon as the Code was completed.[125] [page 702]

2. Revived European Study of the Corpus Juris Civilis

With the fall of the western Roman Empire (succeeded to the east by the Byzantine empire), all of Western Europe descended into the Dark Ages.[126] Much interest in law and scholarly studies virtually disappeared during this period, replaced instead by the force of might and feudal hierarchies.[127] The Roman civil law remained in the consciousness and memories of the indigenous peoples of Western Europe, however, and eventually cruder, "vulgarized" versions of the Roman civil law, mixed with indigenous cultures and customary law of invading tribes, came to be practiced in many parts of Western Europe during this period.[128] The revived intellect and scholarly pursuits that came with the Renaissance in Europe, however, brought with it a renewed spark of enthusiasm for studying the law in a refined, intellectual manner.[129] The first modern-era university was founded in Bologna, Italy at the end of the eleventh century (not long after the time William was conquering England).[130] At Bologna, law was one of the primary areas of academic interest, and the law which was studied was not any of the indigenous laws of the various regions or the "vulgarized" Roman law that had appeared in certain parts of Europe -- rather, the academians turned their attention to Justinian's Corpus Juris Civilis.[131] Irnerius is given credit for being the first scholar to provide instruction based on the Roman code.[132] Soon, other universities in Italy and elsewhere in Europe were founded, and they, too, studied the Corpus Juris Civilis.[133] So dominant was the emphasis on studying Roman law, that virtually none of the [page 703] universities in Europe concerned themselves with the study of "local laws" until well into the 1700s.[134]

There were several reasons for the interest in Justinian's Code by the legal scholars of Renaissance Europe. First, it had the obvious credibility associated with the great Roman civilization, which by this point seemed almost mystical in its historical and sociological significance, especially in light of the dim period from which the continent had just emerged.[135] Further, the European scholars recognized the superior logical and organizational scheme of the Code, which they came to refer to as "written reason."[136] It was quickly realized that Justinian's codification contained substantive legal principles which were well suited for the solution of many of the dilemmas presented by the emerging commercial markets and increasingly sophisticated citizenry.[137] More pragmatically, perhaps, the Code was written in Latin, which was still the common language of academic study in Renaissance Europe, and hence, Justinian's Code was eminently accessible by the scholars of the day.[138] In a very real sense, with the uniform study of the Corpus Juris Civilis throughout Europe, and its almost universal acceptance as the foundation for all prospective thought about the law and what it should be, the Corpus Juris Civilis, along with the commentary on it by the scholars of the day, became known as the "common law of Europe," or the jus commune.[139] Indeed, at a certain point in the thirteenth century and beyond, Roman law began to go beyond being the source of academic study, and began also to be applied by the courts in Italy and elsewhere, so as to actually have the force of binding law.[140] This was known as the "Reception" of Roman law.[141] [page 704] At this stage, therefore, Merryman has observed that "[t]here was a common body of law and of writing about law, a common legal language, and a common method of teaching scholarship."[142]

3. The Rise of the Nation-State, the Revolution, and the Advent of National Codes

The Roman Empire, and subsequently the Byzantine empire, was the dominant civilization and organized governmental structure in the wider European-Mediterranean region for the better part of two millennia.[143] When the Roman Empire fell in the West, for a time, only crude tribal and regional authorities filled the power vacuum that was left by Rome's absence.[144] The eastern Byzantine empire, which was based in Constantinople, did not fall until 1453 A.D. when it was conquered by the Ottoman Turks.[145] The fall of the last vestiges of the supraregional Roman Empire, coupled with the renewed intellectual and philosophical energy that accompanied the Renaissance, corresponded from the fifteenth century and forward with the gradual ascendancy of the concept of the nation-state, and national sovereignty.[146] With this development, the idea of a jus commune, or "common law of Europe," began to decline, and instead sovereign nations began to assume the lawmaking prerogative for their own populaces.[147] Nevertheless, the Corpus Juris Civilis continued to have a profound influence on the laws of these nations, as nearly all of the continental European nations either formally received Roman law as having the actual binding force of law, or at least were heavily influenced by Roman law in their own promulgation of laws.[148] In short, "Roman law was the beginning [page 705] point for the development of modern legal systems on continental Europe."[149]

Eventually, the continental European nations began devising plans for their own national codes. However, other complex political forces were at work, more than merely a desire to intellectually arrange and re-systematize the original Roman codification. Broad geopolitical revolutionary forces were at work in the eighteenth and nineteenth centuries, including notably the revolutions of America and France.[150] Novel approaches of thought arose about humankind, social order, markets, and national sovereigns.[151] These new paradigms for thinking about government and society were very much the impetus for the new European legal order of the day.[152] One important influence was that of nonreligious "natural law" -- the idea that all humans are equal, all have rights to property and life and liberty, and that government should protect these rights.[153] Feudalism, and the idea that wealthy members of society could "purchase" judicial protection for the highest price, were swift [page 706] casualties of this new revolutionary thought.[154] Instead of feudalism, the new era was to glorify the secular nation-state, which was to gain sovereignty within its borders over the lawmaking function.[155] Another extremely important consequence of this revolutionary thought was in the idea of governmental separation of powers.[156] Several philosophers of the day, including Montesquieu and Rousseau, stressed the critical importance to democratic governmental structure of separating the dominion of, respectively, the legislative and the executive branches, from the judicial branch.[157] The explicit purpose of this separation was to thwart any attempt by the judiciary to exercise the other governmental powers -- namely, legislation and/or executing the laws.[158]

Understanding the reason for the revolutionary hostility to the judicial function on the continent is critical to understanding the modern civil law tradition as it exists today.[159] The French revolutionary movement besieged the judicial branch for at least two reasons -- their propensity for favoring the land-owning aristocracy, and also their tendency to make law outright rather than merely apply existing law.[160] This distrust of the judiciary had longstanding origins in French history, as courts were seen as instruments of monarchical subjugation.[161] Even prior to the revolution, the French courts had [page 707] proven reticent to enforce the various reforms propounded by the French monarchs, frustrating the government's attempts at progressivism.[162] The French revolutionaries, in part influenced by Montesquieu and others, came to conclude that the surest manner by which to prevent such perceived abuses was to sharply isolate the judiciary from the legislative function, and to closely guard against any operational judicial encroachment into such lawmaking areas.[163] Thus, closely restricting the ability of judges to do anything other than strictly a law-application/enforcement function was of paramount importance in French revolutionary thought.

In the aftermath of the French Revolution, Napoleon Bonaparte rose to power in 1799.[164] In 1804, France adopted its Code Civil, or, as it is sometimes called, the Napoleonic Code.[165] The substantive areas covered by the Napoleonic Code were very similar to Justinian's Corpus Juris Civilis, and even the structure was quite comparable.[166] The Roman influence was obvious and comprehensive.[167] Also comprehensively influential, however, were the ideologies of the revolutionary thought that flowered in the years prior to the Code's promulgation.[168] As had Justinian's Code, the [page 708] Napoleonic Code purported to abolish all prior law.[169] Nationalism played a large role in this decision, as any notion that the law could have come from a larger community (i.e., post-Roman Europe via the jus commune) outside the glorified state violated the sense of patriotism that accompanied the revolution and the growing nationalism of the era.[170] The acute restriction on judicial power permeated the ideology of the Napoleonic Code, and moreover, one of the utopian goals of the Code was to eventually obviate the need for lawyers.[171] As stated by Merryman:

The French Code Civil was an undeniable triumph for the orderly rule of law and a great improvement over the previous state of law in France.[173] The Code was a vast improvement over any prior Codes since the days of Justinian, and the Code's language is "clear and precise, concise and direct ... a literary as well as a legal masterpiece."[174] It is said that Napoleon considered it his greatest achievement in his military and political career, which was not small, self-praise since his exploits included political conquest of most of Western Europe.[175]

Because a principal purpose of the French Code was to constrain the role of the judiciary to merely the application of existing law, the [page 710] drafters strove to make the Code consistent (so there were no conflicting provisions which a judge could choose between and thereby "make law"), comprehensive in its coverage (so there were no "gaps" in coverage which a judge might thereby fill in by making law), and clear (so as to minimize any reason for a jurist to seek to engage in the demonized "lawmaking" or even its recognizable cousin, law interpreting).[176] Thus, the ultimate goal of the French codifiers was to draft a systematic, comprehensive code, which would be so all-encompassing and lucid that the judicial role would be restricted simply to ascertaining the pertinent code section and applying it to adjudicate the litigation before the court.[177]

Though the Napoleonic Code is often described as the "archetype" of the civil codes promulgated in the eighteenth and nineteenth centuries,[178] mostly in Western Europe, it was not the only significant one, nor the first. A decade earlier, in 1794, an immensely detailed civil code was adopted by Prussia under Frederick the Great.[179] Whereas the Napoleonic Code had 2,281 sections,[180] the Prussian Code had over 17,000 sections, all designed to govern a myriad of factual scenarios.[181] This attempt at hyper-specificity was widely viewed as a "spectacular failure," one which the French codifiers explicitly endeavored to avoid by making the Napoleonic Code more general and universal, in the nature of its Roman ancestor.[182] The French codifiers recognized the futility of trying to address every possible factual scenario, and instead sought to promulgate broad principles, which would suggest the correct outcomes of disputes.[183] As several of the codifiers of the day stated: [page 711] "The function of the law (loi) is to fix in broad outline, the general maxims of justice (droit), to establish principles rich in suggestiveness (consequences), and not to descend into the details of the questions that can arise in each subject."[184]

The other great civil code of the nineteenth century was the German Civil Code enacted in 1896.[185] Many German scholars originally advised patterning after the much-admired Napoleonic Code -- however, it was eventually decided instead that the German Code would more directly codify existing and historical law, including Roman law, and would tend toward the more detailed nature of the Prussian Code, though not to that extent of excess.[186] The German code exudes a belief that the law is entirely scientific.[187] Unlike the Napoleonic Code, which was theoretically written so as to be understandable by laymen, the German code was written strictly for legal professionals -- the structure and language utilized makes legal acumen an absolute necessity.[188] However, though there are great differences between the French and German codes (including prominently the difference in the level of detail), substantial similarities in ideology are unmistakably present.[189] Certainly one of these major similarities was the desire for a clear, lucid, yet comprehensive and all-encompassing code, to govern all aspects of the affairs of its citizenry.[190] Another overarching similarity is the adoption of a well-defined role for the judiciary and its complete prohibition from any type of law-making function whatsoever.[191] In this regard, the French and German codes, and all of their progeny adopted by the various civil law nations of the world throughout the [page 712] nineteenth and twentieth centuries, share these legalistic values. These codes, and especially the French code,[192] as the modern descendants of the Roman law tradition and the Corpus Juris Civilis, serve as the models for the modern civil law tradition.[193]

4. Codification Efforts in England and the United States

The geopolitical reverberations of the study of the Corpus Juris Civilis, and, later, the French Revolution, did not have the same effect in England and on its common law heritage, but their effects were certainly felt. Cardinal Reginald Pope, in the sixteenth century, suggested that England promulgate a code in the order of the Corpus Juris Civilis in order to reform "barbaric," confusing English law.[194] Although it is said that Henry VIII, the monarch at the time of Pope's suggestion, was amenable to the idea, nothing came of it.[195] Edward VI was also said to be open to the idea of codification, and the House of Lords considered it in 1549, but again no consensus or action was ever effected.[196] These suggestions for codes continued during the reigns of Elizabeth I (1558-1603) and James I (1603- 1625).[197] James is actually reputed to have attacked the common law, and to have suggested that all laws be converted to statute; James revered the Danish legal system, where "the formality of the law hath no place ... all their state is governed only by a written law .... Happy were all kingdoms if they could be so. But here, curious writs, various conceits, different actions and variety of examples breed questions in the law."[198] But, no codification occurred, despite the efforts of the early English codifying proponent Sir Francis Bacon.[199]

Most of the reasons for the failure of these codification proposals were political, not jurisprudential.[200] Parliament was generally too [page 713] conservative during this period to consider such sweeping reforms.[201] The only legal, as opposed to political, reason which can be historically ascertained for England's opposition to codification at the time was that English law was not yet "thoroughly systematized and conceptualized" -- i.e., not yet "ripe" enough.[202] Eventually, Blackstone's commentary on English common law was published in 1765, and this seemed to satisfy the English desire for a systematizing organization of English common law precepts.[203]

As the eighteenth century drew to a close, Jeremy Bentham emerged as the new English champion of the codification ideology.[204] In fact, so obsessed was Bentham with eradicating the "evils" of the common law and replacing it with codified systems, that he has been called the "greatest codification enthusiast of all times and all peoples."[205] He even went so far as to correspond with several heads of state in England, the United States, and elsewhere in an effort to convince those nations to adopt his codification ideology.[206] Bentham was convinced that England had reached a "disastrous" state in the development of its law, and that radical reform was imperative; he detested what he perceived as the lack of clarity, lack of certainty, and even dawdling functioning of the English judiciary.[207] Instead, Bentham advocated a streamlined, comprehensive code, simple enough that it shared the French revolutionary ideal that "every man [could be] his own lawyer!"[208]

Like his English codifying predecessors, however, Bentham's efforts to implement actual Anglo codification were generally unsuccessful, though it is noteworthy that his theoretical conceptualizations of codification are very widely respected in the civil law world.[209] The reasons for the historical failure of codification in England are varied and complex, but some of them are: (1) national pride and admiration for the long, textured history [page 714] of English common law,[210] (2) no need for a code as a unifying agent since England was already well-unified by its common law system, and (3) a general conservatism and view of the French revolution as a traumatic event to be avoided.[211]

The United States also has a history of considering the possible codification of its law. In the aftermath of the American Revolution and the War of Independence, codification was widely considered a distinct possibility for the shaping of future American law.[212] This is quite unsurprising, given the fierce conflict with England, the desire to be free of all or many things English, and the French support during the war. Louisiana eventually decided to expressly codify its law in the tradition of Roman law and the Napoleonic Code, and still practices it today as a civilian island in a common law sea.[213] The other states considered codification, but in a much more measured manner than Louisiana.[214] Bentham wrote a letter to President Madison in 1811, urging the adoption of an American code, and he also posted letters to various state governors as well.[215] Subsequently, Joseph Story addressed the idea of codification in an 1821 speech to the Suffolk Bar, but his support was generally ignored.[216]

More recognized were the efforts of William Sampson, in 1823, to support the idea of American codification.[217] His efforts led to a serious American discussion of the possibility of codes.[218] Beginning in 1830, the American consideration of codification became [page 715] especially strong, especially in light of the Jacksonian desire for improved democracy -- ordinary citizens came to view the complex nature of the law as evidence of attempts by lawyers to impose control over the system and keep non-lawyers ignorant of basic legal principles.[219] During the 1830s and 1840s, both South Carolina and Massachusetts came quite close to a codification of their laws.[220]

In the advent of these failures to codify, David Dudley Field came upon the scene in the United States. Described as "America's Bentham," Field was actually a practicing lawyer, who had a pragmatic perspective on reforming and codifying American law, as contrasted with Bentham's theoretical underpinnings.[221] Field was principally concerned with judicial sluggishness, lack of clarity, and also the overly complex nature of the law of New York, which was emblematic of the law in all of the American states.[222] Field defined his vision of codification thusly:

Field actually had great success in enacting codifications of New York's rules of civil procedure, and Field's theories remain the structural framework and inspiration for the American Federal Rules of Civil Procedure currently in force.[224] However, Field's vision for a codification of substantive law in New York did not succeed, and, in the aftermath of the American Civil War, interest in the project declined as other matters became more pressing.[225] [page 716]

The arguments in Field's day for and against codification were familiar to Anglo-American codification proponents. Codifiers urged that reform would make the law easier to access, greater in efficiency, and more clear, as well as introduce stricter separation of powers.[226] Those against codification urged that a code would be too inflexible as contrasted with common law, and varied judicial interpretation would lead to greater uncertainty.[227] Another reason was that Americans were generally less suspicious of the courts, and actually more suspicious of occasionally corrupt legislative bodies.[228] Perhaps the most efficacious reason for opposition, however, was that, as in England, American legal professionals were conservative, traditionalist, and thus for the sheer force and pride of history alone were successful in opposing codifying reforms of the law.[229] Actually, later in the nineteenth century, five states did enact legislation resembling, and even titled, civil codes, though the practice in these states still retains a decidedly common law characterization.[230] Thus, though England and the United States considered civil law-type codifications throughout their history, the effects have never matured into practice, and thus these nations remain the vanguards of the common law tradition.

5. The Code in the Modern Civil Law System

With the foregoing richness and depth of historical and ideological perspective in mind, what then are the basic operational structures and mechanics of the modern civil law system, and how is it different from the other great legal tradition, the common law? It is often recited that the cornerstone of civil law is "the Code."[231] This concept is far more philosophical and dogmatic than most common lawyers immediately realize.[232] What is the philosophy? First and [page 717] foremost, it can be described as a fundamental preference for "positive law" in the judicial and legal process.[233] As mentioned earlier, this is bound up with restraining judicial abuses, and the ideology of having an all-encompassing code itself is a large part of effectuating this ideal.[234] Law is supposed to come from the code, and not from the decisions of the judiciary.[235] The lawmaking prerogative of the legislature is jealously guarded against incursion by a lurking ambitious judicial system, which is to be avoided based on historical experience.[236] In civil law jurisdictions, courts

Preventing a freewheeling judiciary is one of the reasons for the ideology of the code, but what is the reason behind this reason? Certainty in the law. Within civil law jurisdictions, certainty "has come to be a kind of supreme value, an unquestioned dogma, a fundamental goal."[238] Certainty is unquestionably a value in common law jurisdictions as well, but not to the extent it is in the civil law.[239] Approaching the law from more of a scientific perspective [240] than the rugged experiential approach of the common law,[241] civil law [page 718] jurisdictions approach their codes as the embodiment of logic and reason itself.[242] Civil law codes are drafted, developed, and utilized based on the view that there is order to life, rather than haphazard happenstance of events.[243] The code philosophy is tied up in the ideal of objective rationality in the law.[244] Civilians design and revere their civil code to be the lifeblood of the legal system,[245] indeed, even the very framework for all of society.[246] Oliver Wendell Holmes famously stated that, as to common law, "[t]he life of the law has not been logic: it has been experience."[247] This statement is somewhat puzzling to civilians.[248] The importance of experience is undoubted to them, but logic is the very lifeblood of the civil code ideology.[249] To civil law scholars, there is no meaningful distinction between logic and experience -- they are the same. The code is an aggregation of legal precepts with such internal consistency that to civilians logic is inescapably part of the legal reason which must accompany judicial operations:

Thus, civilians perceive no meaningful contrast between experience and logic.[251] The code is a manifestation of both logic and experience.[252]

The concept of having all positive law stated in a written code has more pragmatic justifications as well. In making the law enacted by the representative legislature firm, fixed, and unassailable by the threat of an activist judiciary, the civil code ideology embodies the quintessence of majoritarian governmental rule.[253] The people democratically elect the legislatures, which enact the laws. The judges, not being subject to the electorate, are not empowered to enact laws. It is also noteworthy that the civil code has long been viewed as having a distinctly unifying feature -- that is, civil codes have unified the law of the sovereigns which have promulgated them.[254]

The code, to effectuate these civilian ideals, also seeks to be all-encompassing and exhaustive, affecting all aspects of social order. Hence, the frequent usage by civilian codifiers as implementing the code as a "legislative novation," replacing all prior law since the new code is thoroughly complete in nature.[255] Because civilians value the ability of human reason to effect a legal order, the code is envisaged as complete, with the wherewithal to furnish the resolution of any legal issue which could possibly arise as to matters within its jurisdiction.[256] That is, as stated by Sereni on the advent of the 150th anniversary of the enactment of the Napoleonic Code: "within [the code's] four corners an answer could and should be found to each question arising in connection with any topic covered by the code [page 720] itself without resorting to other sources or to any method of implementation of its provisions."[257] One commentator has succinctly summarized the purpose and characteristics of the civil law code in the following manner:

Though different jurisdictions have codified their civilian laws along different parts of this continuum,[259] this remains nevertheless the fundamental philosophy of the civil code: rational, systematized, organized, clear, and comprehensive, leaving the judiciary with no function but to select and apply the applicable provisions, with resort to no other sources of law.

6. The Judicial Function in the Modern Civil Law System

The judicial function in modern civil law systems follows inexorably from the ideology of the civil law code -- that is, in fact, part and parcel of the reason for the code in the first place. There are at least two fundamental limitations placed on civil law judiciaries.[260] The first limitation is that, since positive law in a civil law jurisdiction is ideologically expressed exclusively in the [page 721] comprehensive provisions of the code, the power of courts to adjudicate disputes is limited quite literally and strictly to the scope of coverage of the code precepts.[261] The court must come to its resolution of the case by working strictly within the framework of the code.[262] Because of the dogmatic philosophy that the code is complete and sufficient, the court may not rely on any authorities not contained in the code itself.[263] So devout is this dogma of completeness, courts are generally prohibited from declining to adjudicate a dispute based on any perception of gaps in the code's coverage of a particular subject matter.[264] This is simple enough when the civilian judge is able to readily find a clearly applicable code section, but what of the situation where none presents itself as being directly "on point?" The judge is to enlarge the meaning of another code section, or even to analogize from one or more other code sections to obtain a reasoned solution.[265] The tendency of civil codes to be broad and general in nature, actually accords civil law courts with greater discretion than their common law counterparts.[266] This is by civilian design, as stated by the French codifier Portalis:

The process has been likened to the moves in a chess match, with each following logically and intellectually from the prior move.[268] It is for this reason, in part, that the code is required to be organized in such a logical and systematic manner -- the code provisions are envisaged as a system of closely interrelated premises, different threads of the same fabric, which may be utilized through deduction to achieve an adjudicative solution.[269] Coming back to the all-encompassing authority of the civil code, however, the case must ultimately find its definitive authority within the precepts of the code.[270] This complete focus on the code language as the sole source of primary authority results, unsurprisingly, in a much greater civilian emphasis on the explicit language of the legislative embodiments than is found in common law jurisdictions.[271] Where actual definitions of code terms are codified, such definitions will, of course, be referenced, but where there are no such definitions, the court will rely on other concepts and sections of the code, construing them together consistently as part of an organic whole.[272] Accordingly, it is seen that the first fundamental limitation placed on the civil law court is that it must derive its judicial solutions from the code.

The second fundamental limitation on civilian judiciaries follows from the first -- cases are not law. Only the code is law. That is to say, civil law courts may not adopt prior cases as precedents, or "positive law" to be followed in subsequent litigation.[273] There is no stare decisis.[274] It follows, of course, that civil law courts do not see themselves as "making law" at the time of the rendering of their opinions. So vigorously and dogmatically is this principle adhered to in France, that it is not only explicitly legislated,[275] but criminal [page 723] liability is actually imposed for violating it.[276] Though this precept is set forth expressly in the Napoleonic Code, such provision is basically superfluous, as "the principle of nonrecognition of the rule of stare decisis applies, as a rule, in civil-law countries even in the absence of an express provision to that effect."[277] In France, even the form of the opinions reflects this narrow focus in terms of source authority.[278] This refusal to allow citation to other single court decisions as positive law, though at first quite foreign to the common lawyer, actually follows as a matter of inescapable logic in light of the doctrine of the completeness of the code -- what reason would there be for a court to concern itself with case authority when all of the answers are in the code directly, or may be deduced from the code's provisions?[279] Again, the civilian concept of separation of powers is crucial to this ideology -- legislatures are the lawmakers, and courts are merely to apply the law written down by the legislature: they must do no more and they must do no less.[280]

This is not to suggest or imply that civil law cases are utterly inconsequential. In fact, the French use the term jurisprudence to refer to the body of case decisions rendered by its courts.[281] Civil cases do tend to be persuasive in civilian litigation.[282] A civil court may well, and often does, review prior civilian decisions.[283] [page 724] However, the purpose is usually said to be in order to study an example of a logically-obtained resolution worked out from the code provisions themselves -- i.e., an illustration of the deduction of a result from the positive code law, not a case law precedent to be followed in its own right.[284] A civil law court may even choose to assimilate another court's reasoning, but once it does so it becomes the court's own reasoning, for which it is fully responsible.[285] The difference between common law treatment of case decisions, though perhaps initially superficial, is in fact deeply embedded in the civilian ideology and exemplifies a fundamental divergence in treatment of case decisions from that practiced in common law jurisdictions.[286]

There is at least one way in which civilians approach the recognition of case authority, and that is in the doctrine of jurisprudence constante.[287] Whereas a single court decision is no authority at all in a civil law system, but is rather only an illustration of that court's opinion of the correct solution to be deducted from the code, a series of decisions which reach the same result by the same deductive process in the same or similar situation will eventually attain a much higher level of persuasiveness than that of a single decision.[288] This is jurisprudence constante -- but even in light of such a line of similar resolutions, the court facing the present dispute must satisfy itself of the correct deduction to be reached.[289] [page 725]

Quite obviously, in actual practice, the dogma of metaphysical completeness of the civil code is a fiction.[290] Short of perfect clairvoyance, not every conceivable scenario can ever be accounted for in a code in advance. Moreover, even where provision is made in a code, the dogma of perfect lucidity and clarity so as to obviate the need for any interpretation is likewise a fiction.[291] Accordingly, though the civil law courts do in fact practice the deductive and analogizing processes described herein, they also may fairly be said to engage in a considerable amount of statutory interpretation.[292] Civil law courts are to take into account not only the express grammatical provisions of the code section, but they are also to consider the legislative intent and the social goal of the provision.[293] This is sometimes referred to as the "teleological approach" -- that is, interpreting legislation in light of evolving societal or market forces.[294] One scholar described the civilian interpretive process thusly: [page 726]

Similarly, in Germany, courts go beyond the grammatical text where necessary, and instead seek the underlying gist and reason for the code provision.[296] As in France, German courts are to consider not only the text of the statute, but, if necessary, the history of the text, and even what the legislator would have intended, in the hypothetical scenario of her writing the code section with full cognizance of the present situation before the court.[297] The array of steps available to the civil law court in this process, and the manner according to which such interpretation proceeds, has been compared to playing a chess match.[298] As stated by Merryman, the judge's role is to seek applicable code sections and apply them to the fact pattern: "[t]he whole process of judicial decision is made to fit into the formal syllogism of scholastic logic."[299]

Some mention should be made, as well, of the oft-repeated characterization that the common law courts use inductive reasoning processes, whereas the civil law courts use deductive reasoning processes. By induction, is meant the "inference of a generalized conclusion from particular instances."[300] In one sense, of course, this is obviously a quite correct manner of describing the common law system -- the law is made by various cases which adjudicate specific [page 727] disputes, out of which come generalized rules or precepts. By deduction, is meant "inference in which the conclusion about particulars follows necessarily from general or universal premises."[301] And thus, the same holds true of describing the civil law processes in this manner, for it is true that civil codes seek to be broad and universal, and cases are merely the adjudication of specific disputes based on those principles. Lawson, however, thought that this description was of limited accuracy or usefulness.[302] In either system, he said, there is the finding of the law -- the general principles -- in common law it is often found in cases, and in civil law it is found in the code.[303] Then, however, in both systems, a specific factual dispute -- the litigation -- is resolved by applying those principles to resolve the case.[304] More crucial, in Lawson's view, was the fact that the common lawyer's source of law was in constant flux and increase, whereas the civil lawyer's source -- the code -- was much more stable.[305]

When civil law courts apply and interpret the code provisions deemed to be applicable, it could be argued that, at least in some sense, they are "creating" law.[306] However, such "law" is secondary to the code at all times.[307] The decisions of civil law cases are to be viewed as evolving "beside the sanctuary of the statutes and under the control of the legislator."[308] Civilians thus view the role of the judiciary, not as making law, but as serving a function in assisting in the actualization of the code -- the courts add definition and sharpness to the code, they fill in the gaps of the code, and they even adjust it to conform to new societal pressures and innovations.[309] However, through all of these judicial machinations and refinements, the supremacy of the code provisions themselves is the recurring theme, and respect is never lost for its guiding principles.[310] Rather, the courts are viewed as merely extending the law set forth in the code provisions to the specific circumstances presented by the case.[311] [page 728] That is, "[t]he courts make explicit the law in particular circumstances, according to the general rules declared by the legislature" in the articles of the code.[312] Thus, although civil law courts do in a sense perform some "tuning" of the law, they do it with reverence for the code, and with due cognizance for their relative inferiority to the code provisions and the legislature.[313] The courts recognize that the legislature is to make any significant modifications or additions to the law, and that the judicial function is, at most, only "to legislate interstitially."[314] Moreover, the purpose of the code as the sole source of positive law is not defeated by such judicial refinement -- to the contrary, such refinement would be meaningless without the backdrop of a code, and invariably the adjudication will be based on a comparison of two or more analogous code provisions; that is, the debate will not be whether or not the code applies, but which part of it applies with greater force.[315] Thus, the code reigns supreme over the judicial function. [page 729]

7. The Status of Judges in the Civil Law System

Before concluding the discussion of the basic history and mechanics of the civil law system, some mention should be made of the social and legal status of judges in the civil law system. As mentioned earlier, judges in common law jurisdictions are widely revered, celebrated figures in legal and societal culture. This follows naturally from the fact that they are entrusted with a powerful lawmaking role in our common law system.[316] As may be apparent from the different role of judges in the civil law system, and the lack of stare decisis in a formal sense, the same is not true, generally speaking, of judges in civil law jurisdictions. Civilian judges typically choose that career path directly out of school.[317] Moving from a career as a practicing attorney to a judicial office is relatively rare.[318] Instead, judges typically commence their judicial career at an entry-level position with a lower court and then advance through the system to, hopefully, progressively higher courts.[319]

The actual work of the judge is seen as "fairly routine activity."[320] The judge's job is to perfunctorily seek the applicable code provisions, apply it to the litigation, and render a decision.[321] "The net image is of the judge as an operator of a machine designed and built by legislators. His function is a mechanical one."[322] This is, quite obviously, bound up in the historical development of the civil law separation of powers ideology, with its concomitant suspicion of the judicial system.[323] Thus, whereas the great names of the common law are often those of the judges (e.g., Holmes, Cardozo, Frankfurter, Mansfield, Coke), the celebrated historical names of the civil law are the codifiers (e.g., Justinian and Napoleon), and the academics (e.g., Pothier, Irnerius, Savigny, Portalis).[324] In civil law jurisdictions, judges tend to be anonymous, based in large part on the severe restrictions placed on them.[325] In sum, the civil law judge is a civil [page 730] servant -- a respected one, to be sure, but merely a servant seen as performing "important but essentially uncreative functions."[326]

8. Summary of Civil Law System

In summary, the modern civil law system derived historically from the ancient Roman Empire, and more recently through the codifications of revolutionary France in 1804 and Germany in 1896. The chief identifying methodological characteristic of the modern civil law is its use of a unitary source of law -- the code -- which is dogmatically held to be all-encompassing, comprehensive, clear in its language, systematic, and capable of providing the solutions to any legal problem which may arise. The legislature is the superior governmental branch, which is seen as creating the governmental machinery, which the civil law judges simply operate as functionaries. There is no stare decisis. The only law is the code -- cases are not law. Courts, in rendering their decisions, must always justify their decisions under code provisions which are directly applicable, under other code provisions by analogy, or by deducting a solution from broad principles derived from the overall structure of the code itself. Strict separation of powers dictates that the legislature makes law through the code, and judges are strictly to apply, not make, law.

III. INTERNATIONALIZED CONTRACT LAW: PAST AND PRESENT

A. The Need for International Contract Law

The world perceives a need for an international, even global, law to deal with transnational commerce and trade. There is no real debate that the global economy has arrived in unprecedented, modern force.[327] Over the last half century, the global economic inclination has been steadily in favor of open markets -- worldwide exports [page 731] expanded from eight percent to twenty-seven percent of total worldwide gross domestic product from 1950 to 1998.[328] Moreover, total worldwide trade was fourteen times greater in 1997 than it was in 1950.[329] Since shortening production and distribution times is crucial to profitable business operation, it has been stated that "the history of capitalism has been characterized by a speed-up in the pace of life."[330] Such accelerated processes of economic production and communication "increasingly render national borders anachronistic."[331]

This anachronistic limitation of individual nations is illustrated by some of the growing transnational issues of the day. For instance, the rising use of multinational enterprises such as Siemens, or General Motors, as a corporate form of business entity which transcends many national borders, increasingly defies the application of any single system of national law to its operations. Perhaps an even more profound example is the explosion of the Internet -- who could have foreseen even ten years ago the extent to which the Internet has now pervaded our lives, both personally and commercially? The Internet also often defies application of any single system of national law to its operations. Consider the following hypothetical: an Internet web site is maintained on a server which is located in London, a mirror site and server is maintained in Sydney, Australia, and persons from the United States, France, and Germany all transact business on the Internet site. Which nation's law governs in the absence of an agreement? Which nation's laws should regulate affairs conducted on the site? Our legal regimes are currently struggling for answers to these questions.[332] Such dilemmas [page 732] have led at least one international observer to note that "[n]ation states will continue to decline as effective centers of power -- they are too small to solve the big problems, and too big to solve the small problems."[333] Because of this reality, a system of supranational law seems to be required in order to handle these emerging issues which transcend the legal system of any one nation.

There has, in fact, been growing supraregional economic integration, accomplished by such supranational entities as the European Union, ASEAN (Association of South East Asian Nations), NAFTA (North American Free Trade Agreement), and MERCOSUR (the Southern Cone Common Market).[334] The general reasons for such supranational systems are obvious. They include efficiency, uniformity, certainty, reduction of transaction costs, and reduction of obstacles to trade. The globalization of the economy [page 733] has been likened to the twenty-first century's equivalent of the debate during the eighteenth and nineteenth century about societal organization itself.[335] "Globalization as generally understood involves the increasing interaction of the world's peoples through their national economic systems."[336] As evidenced by the statistics set forth herein, trade markets in the world have dramatically broadened in the last fifty years, especially as obstacles to such trade and financial activity have gradually lessened.[337] Because globalization of economies tends to stimulate economic expansion, it also tends to improve standards of living for the population of states participating therein.[338]

As the worldwide economy has become more globalized, there is an irresistible urge to work the law itself toward globalization in order to accommodate.[339] The inclination toward unification may be irreversible as well.[340] The globalizing of the markets is primarily an economic occurrence, though it has undeniable political characteristics as well.[341] Any new global commercial law will value certainty so as to facilitate commercial activity.[342] "Convergence of legal systems or harmonization of commercial law will, in the long run, stabilize and strengthen national economies and will create a healthy competitive environment":[343] hence, the discussion of how best to effectuate such an international legal order of contracts. [page 734]

B. Historical International Contract Law: The Jus Commune and Lex Mercatoria

The current era is not the first time in which there has been a contemplation of global commercial law: "Medieval lex mercatoria and ius communis [i.e., jus commune] were genuine global legal rules."[344] For the last two hundred years or so, all legal systems have been a function of national sovereigns, but this was not always so.[345] As Europe ascended from the Dark Ages, a new international, informal body of law arose to accommodate the business practices of merchants who readily moved across regional borders.[346] This body of law which arose at the time, is now referred to historically as "law merchant," or "lex mercatoria."[347] It was autonomous, and was run not by a formal legal order, but rather by the business persons, merchants, themselves.[348] This law merchant, likened by some scholars to the European jus commune, waned in effectiveness with the advent of the nation states and codes in the seventeenth and eighteenth centuries.[349] What were the jus commune and lex mercatoria? A brief historical overview provides an enhanced modern perspective.

From the fall of the western Roman Empire, until late in the eleventh century -- the so-called "Dark Ages" -- there was no "common" law of Europe that prevailed.[350] Around this time, however, at least two factors began to contribute to a common legal thought on the continent. First, the influence of the Roman Catholic Church and canon law began to have a dominating effect, spreading uniformly to the nations of Europe.[351] This canon law encompassed areas of ecclesiastical authority, but also family law, inheritance law, criminal law, and even civil law, as well as procedure.[352] The other great contributor to the idea of a European common law, or jus [page 735] commune, was the revival of the study of Justinian's Corpus Juris Civilis.[353] In the time of the Renaissance, this became the universal subject of legal scholars in Italy and elsewhere in Europe.[354] Though it was not ever formal, "positive law" in such a sense, its effect was pervasive, and permeated the promulgation of indigenous law throughout the continent in this time frame.[355] Latin was the universal language of study, and this also facilitated the common schools of juristic thought throughout Europe during this period.[356]

Whereas the jus commune constitutes an almost mystical, "soft" historical significance, the history and effect of the medieval law merchant -- lex mercatoria -- was more concrete and more substantive in practice. While the European scholars were busy studying Justinian and the jus commune on the university campuses, the business persons and merchants of the day were industriously forming rules and procedures to govern disputes which arose from their transactions. It is certainly true that "some form of commercial law is as old as commerce" itself.[357] However, the beginning of the medieval law merchant as scholars now describe it can be traced to Italy and the Crusades, for it was then that the Mediterranean sea routes were re-opened to western European businesses.[358] Guilds were formed, and towns became centers of commercial activity with rules being prescribed to govern the fairs and other commercial activity there.[359] The "courts" which heard such disputes were staffed [page 736] with merchants, not legal professionals.[360] The rules promulgated by the various towns and fairs quickly gained a uniformity, even across national borders, such that in a very real sense, an international commercial law developed to accommodate trade.[361] The law merchant and its principles were developed largely exclusive of formal legal systems -- indeed, it has been hailed as "the most successful example of global law without a state."[362] However, its principles were gradually subsumed by the sovereign national legal systems which arose at the time of the Renaissance and beyond -- both, notably, by common law jurisdictions and civil law jurisdictions alike.[363]

The law merchant was quite informal -- it emphasized flexibility of approach and commercial orientation, and good faith was of paramount importance.[364] It has been said that the lex mercatoria had five characteristics: "(1) it was transnational; (2) its principal source was mercantile customs; (3) it was administered not by professional judges but by merchants themselves; (4) its procedure was speedy and informal; and (5) it stressed equity, in the medieval sense of fairness, as an overriding principle."[365] Above all, merchants were required to perform their agreements.[366] Agreements were enforceable largely without regard to any requisites of form.[367] Another of the procedural features of the law merchant was that disputes were heard and adjudicated on an expedited basis to avoid unwarranted interruptions of the contestants' commercial activities.[368] This included the common practice of oral hearings, informal evidentiary standards, and immediate oral rulings from the adjudicator.[369] "The grandeur and significance of the medieval merchant is that he creates his own laws out of his own needs and his own views."[370] [page 737]

The law merchant flourished for centuries, largely because of the homogeneity of commerce along the Mediterranean Sea and throughout Europe.[371] In fact, the presence of this element was fairly crucial to the success of the law merchant, that is, "a general similarity in economic conditions ... and [a] predominant influence of the legal conceptions and the commercial usages of ... merchants."[372] With the rise, however, of nation states and their assertion of monopoly power over the creation of positive law, the force of the law merchant began to wane.[373] Moreover, greater diversity and heterogeneity among merchants' practices, inevitable at the time with the advent of more widely observed national boundaries, made the maintenance of a uniform law merchant even more difficult.[374] This indigenous variation in both rules, customs, and results all contributed to a budding lack of unity, which itself led to an actual growing distrust in the law merchant itself, as inferior to the growing, sovereign, national, legal systems in which merchants began to have national pride and investment.[375] Hence, by the time of the promulgation of the Napoleonic Code in 1804, if not before, the existence of a vibrant, effective law merchant ceased to have the currency it had enjoyed previously. The positive law thenceforth was almost wholly a matter of national government and politics.

The historical evidence for the jus commune and the medieval lex mercatoria provides interesting food for thought. Though many now believe that unification of contract law on a global scale is an insurmountable, Sisyphean task, it was a reality over a millennium ago. And it existed under much harsher conditions, much less technology, and much less comprehensive structures for world communication and diplomacy. The historical evidence answers the skepticism that an international commercial law could not be fashioned in the present day.[376] [page 738]

C. Present Day Echoes of the Lex Mercatoria

Is there a modern lex mercatoria which has arisen during the twentieth and twenty-first centuries? This question has been hotly disputed for the better part of the last half-century.[377] There arises a more fundamental question, which is whether the parties agree on what the term "lex mercatoria " means in the present day, and whether it even is worthwhile to have this debate at all.[378] Be that as it may, there has been a clear rise of efforts to craft an international commercial legal order for the better part of a century, and these initial efforts shed much light on any subsequent efforts that may be undertaken to create a true, unifying international regime of contract law.

The perception of a modern-era need for transnational law is widely believed to have originated in the Industrial Revolution, since national economies at that time began to over-produce in proportion to their population, thereby economically necessitating the exportation of products beyond national borders.[379] Therefore, for the past one hundred years or so, efforts have increasingly been underway to "create an internationally uniform discipline for cases linked to a plurality of countries."[380] Stated another way, economists and scholars have increasingly been working toward a droit corporatif international.[381] The growing sense of a need for such a unifying legal regime is based on the perceived "anarchy upon which [current] international relationships are based,"[382] and the obstacles presented by the fiercest adversary of international business persons -- "nationality of law."[383] Therefore, beginning in the twentieth century, scholars and legal professionals began to take steps to fashion contract laws which [page 739] would transcend national boundaries and thereby facilitate world commerce.

1. Uniform Laws on Sales of Goods (ULIS, ULFIS, and CISG)

The first such effort is widely credited with having commenced at the end of the 1920s, when a scholar named Ernst Rabel suggested the creation of a uniform law to govern the international sale of goods.[384] The contract for sale of goods was selected as the focus of this first effort because of its perception as the "mercantile contract par excellence."[385] Rabel's suggestion was directed to the logical private body of the day, the International Institute for the Unification of Private Law, or as they are more commonly known, UNIDROIT.[386] Rabel became the leading member of the group constituted to effect this task and was also its general reporter.[387] The first drafts of the uniform sales law were prepared in 1935 and 1939 -- they were based primarily on an amalgamation of European civil law principles, though the common law had some influence as well.[388] Some years later, in 1964 to be exact, the first two formal bodies of international uniform contract law were adopted by multiple nations in The Hague -- the Uniform Law on the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULFIS).[389] The ULIS and ULFIS, like the earlier drafts, reflected mainly the principles in Continental Europe.[390] For whatever reason,[391] the ULIS and ULFIS were only adopted by a handful of nations, not including France or the United States.[392]

So, the international legal community decided to try again. This time, the task was undertaken by the United Nations Commission on [page 740] International Trade Law (UNCITRAL) in 1968.[393] The scope of coverage of the ULIS and ULFIS was merged, and the new text took the form of a treaty, namely, the United Nations Convention on Contracts for the International Sale of Goods (CISG).[394] At an international conference in Vienna in 1980, forty-two nations adopted the new sales convention as law.[395] As of 2001, over sixty countries have subscribed to the CISG.[396] It has been referred to as "the most important piece of [modern] jus commune within the law of obligations."[397] The CISG is positive, actual, operating law in these sixty-plus nations, and it will be discussed more below.

2. Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts

In 1968, the same year that UNCITRAL was charged with the task of reworking a uniform code for the sale of goods which eventually led to the CISG, UNIDROIT began considering the concept of preparing a broader, more comprehensive "Restatement" of all principles of international contract law.[398] In 1971 UNIDROIT published an initiative called "Progressive Codification of the Law of International Trade," which further signaled its resolve in this regard.[399] It took another nine years, in 1980, for a committee to actually be appointed by UNIDROIT to begin drawing up the Restatement.[400] The first version of the contract principles was made public in 1994 and adopted by UNIDROIT.[401] Entitled "UNIDROIT Principles of International Commercial Contracts" (hereinafter "UNIDROIT Principles"), they were originally published in English and French, and then subsequently in all of the "major languages."[402] The principles contain 119 articles, which cover the broad range of most issues of contract law, including: freedom of contract, [page 741] formation, pacta sunt servanda, good faith, and also trade usages.[403] The provisions contain basic statements of legal rules and precepts, followed by commentary and hypothetical case illustrations.[404] Notably, though the experts who participated in the drafting of the UNIDROIT Principles came from five continents and all major legal systems of the world, the introductory commentary to the UNIDROIT Principles states that they "are drafted more in the style of European codes than of typical common law statutes," though the commentary also states that the "drafters deliberately avoided using the terminology peculiar to any given legal system and preferred the adoption of terms frequently used in international contracts."[405] The UNIDROIT Principles are not positive law,[406] nor is this on the immediate horizon -- rather, the more modest goal of the UNIDROIT Principles is to be used in any number of ways, including incorporation by parties into their own private contracts, reference by arbitrators, and even by judges and legislative bodies.[407]

Curiously, at about the same time that UNIDROIT was beginning work on its comprehensive restatement of international contract law, a separate group of scholars organized itself with the self-styled moniker Commission on European Contract Law (CECL).[408] The CECL had as its forming mission the drafting of a similar set of comprehensive contract law principles, with a focus on the rules of the nations of Europe.[409] After an initial draft was prepared in 1995, a complete version of the CECL's text -- the Principles of European Contract Law (PECL) -- was published in 1999.[410] English and French versions have been published, and CECL intends to also publish and widely disseminate the PECL in German, Spanish, Italian, Russian, Chinese, and Japanese.[411] Like the UNIDROIT Principles, the PECL cover issues of "formation, validity, [page 742] interpretation, contents, performance and nonperformance (breach) of contract, and remedies for nonperformance."[412]

The PECL are held out for the same immediate purposes as the UNIDROIT Principles-adoption by parties into their contracts, arbitrational usage, and even potential reference by courts and legislative bodies.[413] However, the CECL has a much more ambitious, express goal for the PECL: "several of the members of the CECL hope that the EU or its member states will one day adopt a European civil code, and they see the PECL as a first draft of the contract rules of that Code."[414] Thus, the PECL have been implemented for the express purpose of facilitating development of a common unified contract law for all of Europe. However, for now, neither the UNIDROIT Principles, nor the PECL, are positive law in and of themselves -- they are merely private drafts of contract law, held out to the world for discussion about their prospective utilization in further developments of the law.

D. The Implementation of CISG as Positive Law and the Degree of Uniformity in its Interpretation Among Contracting States

As set forth herein, and as is well known, the CISG is a landmark achievement insofar as it is "real" law,[415] which applies to all those states who have subscribed to it.[416] It is the only current comprehensive contract law applicable on an international scale, and, for all practical purposes, the first one ever in the age of cooperation among modern nation-states. As such, it is unparalleled in its potential for "laboratory observations" which may illuminate the process of fashioning unifying contract law in the future. As it turns out, many commentators have concern for the CISG's viability in the [page 743] future.[417] Paramount among these fears is the problem of uniform interpretation of its provisions -- indeed, it was noted early on that "the lack of a common heritage of judicial techniques and substantive law among the Contracting States" could pose a "special hazard" for the CISG's implementation in practice.[418] Put simply, "even if you get uniform laws you will not get uniform results."[419]

The CISG was promulgated with input from members of all of the major legal systems, including both common law and civil law,[420] though its designers hoped it would "escape[] the ethnocentric perspectives and biases of any one legal system."[421] Additionally, because of the CISG's unique compromising feature of being limited in scope, hardly exhaustive in content, and taking on a hybrid nature vis-à-vis the dominant legal methodologies of the nations, problems [page 744] in interpretation and application are perhaps bound to occur.[422] In order to affect a uniform, international interpretation of the CISG's provisions, article 7 was included, which provides as follows:

The meaning of Article 7's mandate of uniform, international interpretation has proven elusive. One commentator, John Murray, has stated that to the extent "it means that the court is to transcend its domestic perspective and become a different court that is no longer influenced by the law of its own nation state ... it can only be an aspiration."[424] In fact, it almost certainly does mean that, in theory, courts are to consider CISG issues without regard to the legal methodology from which they originate.[425] As Murray further metaphorically posited: "If a judge in Hungary, the United States or any other Contracting State is to see the Convention through an international lens instead of a lifetime domestic lens, we now know that the typical judge may require assistance from an international legal ophthalmologist."[426] Notwithstanding the importance of the objective of uniformity, the different legal systems and judicial methodologies involved make it an exceedingly complex puzzle.[427] [page 745]

One of the difficulties is that, although Article 7 establishes a requirement to invoke the CISG's "general principles" when there is no explicitly applicable provision, ascertaining what these principles are has proven problematic.[428] Professor Honnold has remarked that "[i]nternational unifying conventions, unlike true (civil law) codes, lack a general framework from which general principles can be derived."[429] This notion of "general principles" is quite clearly a civilian concept, in which principles are used to fill in gaps in civil code coverage.[430] In common law jurisdictions, on the other hand, the concept of general principles in legislation is not nearly as prevalent -- statutes are ordinarily only for addressing specific, defined circumstances, rather than the broad, comprehensive coverage of a civil code.[431] The few United States court decisions applying the CISG have, perhaps unsurprisingly, violated Article 7's requirement to maintain the "international character" of the CISG, by instead falling back on domestic law.[432] These courts too often view the CISG through their "domestic lens," rather than through the aspirational "international" lens which the CISG seems to dictate.[433] Moreover, there have been very few cases decided in United States courts at all, which is itself problematic for the development of a CISG jurisprudence which would aid in future interpretation.[434] This is likely due to the fact that lawyers and their clients frequently avoid the CISG altogether due to unfamiliarity.[435] Honnold has stated that he "has not yet seen a clear solution to this dilemma."[436] [page 746]

Central to the debate on uniformity of interpretation of the CISG, as it is structured, is the precedential effect that foreign cases interpreting the CISG should have on domestic courts. In this regard, it is interesting to note the dichotomy in the volume of CISG case decisions emanating from the common law member states on the one hand, versus the civil law member states on the other hand.[437] In short, the civil law jurisdictions have generated a much larger number of cases, out of proportion to the ratio between the member states of the two traditions.[438] The reasons for this discrepancy are, ultimately, a matter largely of speculation. One reason which has been advanced is that the common law courts "are loath to apply law that has not been created from within and, moreover, that may conflict with well-established domestic common law or code (such as the United States' Uniform Commercial Code)."[439] However, this is not necessarily any more the case with common law jurisdictions than civil law ones. Many scholars conclude that Article 7(1)'s requirement for international interpretation necessitates that domestic courts at least consider foreign CISG decisions.[440] At least one commentator has even argued for a "supranational stare decisis" to be practiced by common law and civil law courts alike.[441] However, although no one questions that foreign case law should have persuasive authority, this suggestion of supranational stare decisis has been criticized,[442] [page 747] primarily because there is no "rigid hierarchical structure of the various countries' court systems in which the 'national' stare decisis doctrine is embedded."[443] Moreover, of course, there is also the deeply embedded civilian aversion to judicial "law."

In practice, such consideration of foreign CISG cases happens quite rarely.[444] This, in fact, is equally true with decisions from civil law countries as well as common law countries.[445] Some scholars have expressed surprise at this lack of cross-border citation of authority, certainly in common law jurisdictions where stare decisis is recognized, but even in civil law jurisdictions where it is widely appreciated that court decisions do have persuasive value.[446] This may not be, however, a startling result. There is, after all, a qualitative difference in the way the various jurisdictions accord decisions with precedential effect, and the variety of different nations from which these decisions emerge creates a jurisprudential dissonance which is difficult to resolve. Courts the world over have undeniable "inertia[s] of habit" formed by their national biases, which make them intellectually resistant to undertake different ways of analyzing and adjudicating legal disputes.[447] Moreover, courts are unlikely to modify and innovate their methodologies until they are obliged to do so, such as by a new legal structure or paradigm.[448] These are issues for courts from any jurisdiction, but it is illuminating that the common law courts have issued CISG opinions in drastically fewer disproportionate numbers. This development is "worrisome for the harmonizing efforts of private international law," and could [page 748] potentially lead to the exclusion of common law jurisdictions from future unifying efforts.[449]

The national biases of the courts is a large problem. As stated, one of the problems of according precedential effect to CISG opinions is the respective desires of the various national courts to establish their ideas as judicial authority, rather than being "beaten to the punch" by foreign courts.[450] Commentators hope that the allure of unifying international law embodied by the CISG will ultimately "dissipate the centrifugal force of domestic social and legal traditions."[451] One other suggestion that has been made for the purposes of increasing uniformity in interpretation of the CISG is the creation of an international appellate court to hear appeals from CISG "lower" court decisions, though the loss of sovereignty accompanying such a measure is grounds for criticism.[452] Until that ameliorating reform, or some other measure, however, the parochialism of domestic courts is a quandary: "Naturally, each jurisdiction would like to have its CISG judgments become authority, and equally naturally, each 'opposing' jurisdiction would like to prevent that."[453]

Another possibility for obtaining interpretative uniformity is through recurring legislative enactments. As stated by Professor Gerhart:

Murray has concluded that, in bringing together different legal traditions for an attempt at uniform law such as the CISG, sometimes "[t]he desire for enactability breeds compromise that may be excessive."[455] He notes, however, quite correctly, that

Concluding that it is unrealistic to expect courts, in applying the CISG, to study case law from all the jurisdictions of the contracting states around the world, Murray has suggested the establishment of an interpretative committee akin to the Permanent Editorial Board of the National Conference of Commissioners on Uniform State Laws for the American Uniform Commercial Code, with the concomitant publication of explanatory comments for aid in interpreting the CISG, and the authority to render non-binding advisory opinions.[457] This is certainly another measure worthy of serious contemplation, but whether this is a comprehensive solution, or merely a temporary, ameliorative salve, is open to question. Ultimately, if the CISG is to [page 750] fail, it is likely because there were many compromises on certain issues, and at other times intentional gaps in the CISG's coverage, which the drafters felt were unavoidable, and that "the attitudinal differences between approaches of common lawyers and civilians ... were just too fundamental to bridge."[458]

IV. PROSPECTS FOR THE FUTURE INTERNATIONALIZATION OF CONTRACT LAW AND THE PRAGMATIC EFFECTS OF IMPLEMENTING A CIVILIAN RESOLUTION

The global community of scholars and legal professionals has not yet fashioned the definitive contracts legislation to govern all commercial transactions in all nations. Assuming that it wishes to do so, what form can, or should, such legislation take? The CISG is an important milestone in the historical development of such a code, but it is hardly the ultimate modern commercial code, but rather only is significant in that it indicates a willingness for states to eventually go further with a more sophisticated code.[459] Promulgating and enacting such a sophisticated, comprehensive code is the next logical step. The lessons learned from the implementation of the CISG, as well as other internationalization efforts, should be put into practice as this code is envisioned and drafted. Uniformity among nations is a supreme goal, probably the paramount goal, of cross-border commercial legislation.

A comprehensive code, rather than one with intentional gaps for compromise purposes, is preferable, because the fewer gaps in the code's coverage, the fewer opportunities there will be for divergent judicial interpretation by different national courts, which lead in turn to non-uniform contract law across the nations. Also, the best hope for uniformity in a multinational context comes from the quality of the legislation, rather than reliance on judicial interpretations.[460] The legislation must likely be the primary unifying factor to achieve the much desired certainty and uniformity that international commerce necessitates.

In all prior efforts at uniform international contract law, there has been a tension between pacifying both civil law representatives and common law representatives. The motivations for doing this are obvious -- respect and deference for the two traditions, and the sincere conviction that one's legal system provides excellent and superior rules and methodologies for achieving the greatest justice in disputes. And yet one of the driving forces of globalization of contract law [page 751] should be the shedding of domestic biases for the sake of achieving unifo