|
...laws of North America within the cadre of the North American Free Trade Agreement (NAFTA).[2] There has been very little written on this subject, though a great deal has been happening by way of informal harmonization of North American private law.[3] The title of my remarks is an effort to place the subject in a European context, and should probably not be taken too literally. It is meant, however, to indicate the ongoing relevance of European medieval legal thought. Perhaps it can be seen as an example of the "new medievalism."[4]
The medieval European model
Pour memoire, what were the dominant characteristics of the medieval European legal order? Europe then included, as it does today, the civil and common law traditions, each in their own particularity. Unlike contemporary Europe, however, with its European Union structures, there was nothing hierarchically superior to these traditional sources of law, in their respective fields. Moreover, each of the civil and common laws left considerable play to the forces of both universalism and and particularism.
Universalism, or more precisely pan-Europeanism, with the measure of uniformity which it entailed, flowed both from the persuasive presence of Roman law, whose influence extended in varying degrees as far as the British Isles, and from the unifying influence of the Catholic Church.[5] The sources of Roman and canon law in a very real sense floated over Europe and no notion of "binding" law, linked to the power of sanction of State authority, had yet emerged. Professor Oppetit has referred to the ius commune as a "manner of thought" as opposed to a body of norms.[6]
Particularism also prospered, usually in the form of what came to be known as "customary" law. It was not, however, customary law as we know it today, since it prevailed over legislation and could exist in both oral and statutory form.[7] Statuta were seen primarily as enacted custom, and this prior to the massive process of redaction of the customs, and eventual codification.[8] Local context thus prevailed over more distant, floating law. Local interests, locally defined, were thereby protected.
There were of course differences between local, particular laws and there were some trans-border legal relations. Yet there was no "science" of the conflict of laws and differences were often not regarded as conflicts. In the domain of the common, floating, Roman law there were differences of opinion, and internal inconsistences, but no formal, allocative process to resolve them. Formal conflicts did not exist. Where local statuta differed their respective reach was a matter of construction or interpretation (statutist theory), not in itself an autonomous field of law. This method of interpretation was itself part of the floating law and could not be converted into formal rules. The statutists wrote by way of gloss on the Corpus Juris, which provided overarching, though informal, legitimation of the process. Cunctos populos, and all that.[9]
North America and NAFTA
Now let me say a few words about contemporary North America. Contrary to world opinion, there are three countries in North America, not one, so NAFTA must function over national boundaries as well as over state or provincial boundaries. NAFTA and North America begin at the northern Guatemalan border and proceed north, so Mexico belongs both to Latin America and to North America, which contributes greatly and happily to North American diversity. In spite of popular Mexican affirmation, Washington is not the capital of North America -- politically, legally or economically. Nor is there any other capital. There are some 400 million people in North America, 100 million in Mexico, 270 million in the U.S.A., and 30 million -- thinly spread -- in Canada.
North America has, by my count, 99 private law jurisdictions. There are 32 in Mexico, counting the Federal District; 51 in the U.S.A., counting both Hawaii and Puerto Rico; and 13 in Canada, counting the three northern Territories, which now include the new Inuit Territory of Nunavut. To these 96 must be added 3 Federal jurisdictions, each of which has a private law dimension, of varying importance. Mexico has a Federal common law, in codified form.[10] There is greater hostility to the idea of a Federal common law in both the U.S.A. and Canada, though this has been no obstacle to the proliferation of Federal legislation.[11] North America is thus more jurisdictionally encumbered than Europe, though it is linguistically simpler since, sauf erreur, only...
NOTE: All illustrations and photos
have been removed from this article.
More articles from Global Jurist Advances
Human rights risk, infrastructure projects and developing countries., March 06, 2002
Looking for additional articles?
Search our database of over 3 million articles.
Looking for more in-depth information on this industry?
Search our complete database of Industry & Market reports by text, subject, publication
name or publication date.
About Goliath
Whether you're looking for sales prospects, competitive information, company
analysis or best practices in managing your organization,
Goliath can help you meet your business needs.
Our extensive business information databases empower business
professionals with both the breadth and depth of credible,
authoritative information they need to support their business
goals. Whether it be strategic planning, sales prospecting,
company research or defining management best practices -
Goliath is your leading source for accurate information.
|
