Institutional convergence and competition
(2014) Institutional competition between common law and civil law : theory and policy — ISBN: [978-3-642-54659-4], p. 461-475, published
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- Evidence collected from 64 countries confirms the comparative law theory of a convergence between common law and civil law. Yet, institutional competition between the two legal traditions continues as assumed by legal origins theory (LOT). Ideally, it drives convergence. Reviews on both substantive and procedural levels, however, infirm LOT’s assertion that common law is economically superior to civil law. Learning in law and economics occurs in both directions. While the traditional characterization of common law as judge made, and of civil law as codified is being eroded by convergence, the competition between the two traditions is evidenced by stark, and counterintuitive, contrasts in the degrees of legislative and procedural efficiency. Talcott Parsons’ sociological functionalism offers a simple matrix illustrating the stakes, actors and sources of law involved in institutional competition between common law and civil law. The history of convergence offers a rich reservoir of experience for developed, developing and transforming countries alike to consider. The American philosophy of pragmatism is a better guide for legal reforms than dogmatic dissension between legal origins.
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Lauwers, M., & Schmiegelow, H. (2014). Institutional convergence and competition. In Michèle Schmiegelow-Lauwers, Henrik Schmiegelow (eds.) (ed.), Institutional competition between common law and civil law : theory and policy (p. p. 461-475). Springer. https://doi.org/10.1007/978-3-642-54660-0_18