On the Relative Pertinence of the Civil Law/Common Law Dichotomy When Reflecting on the Relationship between Comparative Law, Development Law and Living Law. Some Observations in the African Context.

Abstract

This article examines the pertinence of resorting to the civil law/common law dichotomy in the context of the use of legal comparison to evaluate the relative “performance” of states in the development field. It accordingly looks into the growing importance of neo-institutionalist analysis in law and development economics, in order to conclude that if certain analyses have possibly unduly amplified the role of legal tradition as critical variable of states’ performance, they must nevertheless be credited with bringing to light the influence of institutional variables on such performance and with assisting us to grasp the relationship between civil law and common law from the angle of development law rather than from the more classic comparative law one. While it acknowledges the significance of institutional analysis, the article highlights its limited grasp of law’s ability to influence the development of a society. Focusing particularly on the example of Africa and the harmonization projects conducted there under the aegis of OHADA, it notes that a fixation on the civil law or common law legal tradition more often than not poses an epistemological obstacle or a distraction from the point of view of elaborating efficient normative intervention strategies in societies where economic relations are still predominantly informal. The article therefore defends the thesis, based on a perspective anchored in legal pluralism, that granting a disproportionate significance to the civil law/common law dichotomy is problematic when reflecting in an appropriately complex manner on optimal conditions for the development of such societies. However, this dichotomy remains relevant when considering the type of legal education that best prepares jurists to grasp the complexity of the normative landscape of such societies, so as to ensure that their normative interventions are aligned with living law rather than with law in books. In this respect, it must be acknowledged that several fundamental characteristics of the civil law tradition, as well as the type of legal education generally offered in states associated with this tradition, tend to prevent a genuinely complex understanding of that normative landscape, particularly because of the lasting hegemony of legal monism and positivism, and of the dissociation of state law from the political, economic and social contexts in which it arises and to which it seeks to apply. Such training therefore hampers the development of cultural intelligence in the jurists for whom it is intended. The article thus calls for a reform of legal education in civil law states, and for their opening up to legal pluralism and interdisciplinarity.