The Role of Comparative Law: New International Model Rules vs. Time-Tested Local Practices

Abstract

Conceptualizing general principles from each individual case (bottom-up approach) and establishing general principles fashioned by the legislative organs of a state (top-down approach) are the two main ways to make laws in a democratic legal system. While the courts’ approach in conceptualizing general principles derived from various cases enables established rules to continually evolve and extend to specific instances previously unconsidered by the legislature, rule-making by the legislature on the other hand is better able to solve general social dilemmas. This second scenario is particularly true where, like in Turkey at the beginning of the twentieth century, law was to be the instrument to bring about social change by trying to influence behavior, beliefs, and values (‘social engineering through law’).

In 1923, the Ottoman dynasty whose tale had lasted more than six centuries came to an end, and the Republic of Turkey was created. The new leadership wished to adopt a new code that would promote traditional Western values. The accessibility of Swiss private law to ordinary citizens, its solutions—which are being pragmatic rather than conceptual—as well as additional historical facts and circumstances at that time, played a key role in the adoption by the Turkish legislature of the Swiss codes, namely the Civil Code and the Code of Obligations and, to some extent, the Swiss rules of international arbitration. Since the reception of the Swiss private law in Turkey in 1926, cooperation between the two countries’ academic institutions has been encouraged thanks to numerous projects to enhance dialog and mutual legal understanding between Switzerland and Turkey. Not only did the Turkish legal institutions adopt Swiss statutory rules but also the progressive academic opinions on their interpretation as well. Turkish judges have not hesitated to rely, among others, on the case law and academic experience of this country.

In the comparative law literature, several scholars have used such outcomes resulting from the adoption of Swiss private law in Turkey as an argument against the significance of local beliefs, national values, and attitudes toward the perception of law and order. According to these researchers, the Swiss-Turkish experience could serve as a model for developing in the European Union (“EU”) common principles of contract and tort law as a kind of restatement. To underlie the general trend of harmonisation in EU private law, Professor Jürgen Basedow, for instance, stipulates that, “in more recent years, the use of comparative law by national legislators for the purpose of legal reform clearly demonstrates that the general belief in the national character of national law is receding.” He supports these views in reference to the Swiss-Turkish transplant: “In some countries, foreign codes have been more or less completely received as legal transplants; think of the Turkish civil code or the law of obligations imported from Switzerland . . . .”

Based on the similarities of their texts, Professor Basedow was tempted to assert that Swiss and Turkish laws are very similar, but the case law would tell us a rather different story. I am of the opinion that his statement “emphasizing the law’s positive nature over and above its socio-cultural bases” neglects the role of the judiciary system and different views, customs, and traditions. It seems that his argument also lacks content and becomes (at least partially) controversial when content is provided, both by factors underlying legal developments in Switzerland and Turkey and the application of similar statutory provisions in these respective countries. As I will attempt to demonstrate below, people—including judges—from different socio-economic, educational, religious, and ethnic backgrounds tend to comprehend and interpret similar statutory rules differently.

The article is structured as follows: to look beyond the positivist credo of merely explaining the promulgation of the Swiss Civil Code in Turkey as a complete success, I will adopt an interdisciplinary approach to Swiss-Turkish transplant. I will begin by explaining that different perceptions of law that lie beneath the words have in fact generated different legal developments in Switzerland and Turkey (II). I will then focus on the judiciaries’ role in Switzerland and Turkey to demonstrate the practical differences between these respective systems based on very similar statutory rules due to the adoption of Swiss private law in Turkey (III). This will permit me to contend that the similarity between the statutory provisions of different countries is not always enough to entail the similarity of their law to demonstrate the role of courts and comparative analysis in the law-making process (IV). While focusing not only on statutory rules, but also on their effects, I will then compare my key findings with the organic development of private law in the EU. Indeed, the role of courts and comparative law in the evolution of the Swiss-Turkish transplant may provide us with some useful insights regarding the future direction of European private law, particularly regarding the relevance of the possible methods aimed at harmonizing private law in the EU (V).

My analysis does not, nevertheless, purport to address the various complex aspects of harmonization. Instead, on the basis of the Swiss-Turkish experience, I aim to contribute to the current debate at the EU level and establish whether harmonization should be achieved by the mere drafting and enacting of ‘Model Rules’ (top-down approach) or by courts deciding in an organic way, while taking into account the socio-cultural background of the given legal system (bottom-up approach). To this end, I employ the idea of comparative law with at least three different meanings: the study of the factors underlying legal development, the exercise of exploring similarities and differences between legal systems, and the use of foreign law by courts.

Keywords: harmonization, comparative law, Turkish law, Swiss law

JEL Classification: K10, K12, K13