"Double Cross” : Comparing Scots and South African Law

The present project is intended to provide new impulses for the development of private law in Scotland and South Africa. But it also attempts to establish whether and to what extent mixed legal systems have been able to advance towards coherent and rational solutions of problems on which civil law and common law legal systems take a different view. These experiences should be, as Zweigert and Kötz predicted years ago, of considerable interest to those engaged in the great task of establishing a new European private law and, more importantly, a truly European scholarship of private law. Thus, in the course of the deliberations of the ‘Lando’ Commission it has become apparent, on a number of occasions, that essential features of the solution ultimately adopted were recognizable in Scots law; the same appears to be true of South African law. Significantly, also, Scots and South African trust law have been an important source of inspiration for the ‘Principles of European Trust Law’ which were produced by an International Working Group, convened at the University of Nijmegen. Neither of these systems knew the institutional separation of law and equity. Both have a law of property based on Roman legal concepts. None the less, both Scots law and South African law have developed a vigorous law of trusts—true trusts, without being English trusts. Finally, the present project also attempts to explore new avenues of comparative legal research. Comparative law scholarship has hitherto been guided, very largely, by the notion of legal families, a notion which has provided the structural basis for large scale surveys of the world’s legal systems. Such scholarship has been carried out by comparative lawyers. As a result, however, comparative law has become a specialized academic discipline with little influence on legal practice. The Scotland/South Africa project looks at two legal systems which do not easily fit into the established categories of legal families. It aims at an integrated comparative analysis of individual rules in both legal systems. It links comparative law up with doctrinal history. And it is carried out not by specialists in comparative law but by about 50 of the leading private lawyers in both countries. The project thus attempts to use comparative law for the development of modern private law: the emerging European private law as much as two of the existing national systems of private law. Hardly anybody, I think, would today dispute the potential of comparative law for the European ius commune. But even for the existing national legal systems, comparative law constitutes a general method of interpretation that has to be employed in a much more imaginative way than has hitherto been the case. For, as Ernst Rabel, the founding father of the Hamburg Max-Planck-Institute for comparative private law once put it, a healthy national law, just as a normal human being, can only develop on the basis of constant social exchange with its companions