Bijuralism: An Economic Approach

Citation

Bowers, J.W. (2008), "Bijuralism: An Economic Approach", International Journal of Social Economics, Vol. 35 No. 3, pp. 222-224. https://doi.org/10.1108/03068290810847888

Nomos, cosmos, or client?

“Globalization,” might explain our interest in law governing transactions which cross political boundaries. Abstractly, “Bijuralism” describes any occasion for comparing two legal systems. In practice, however, the compared systems are French vs British. The two Canadian lingual and jural systems exist in some tension with each other. Some Quebecois hope their province will quit the Canadian confederation. The coexistence and interaction of dual systems also raise concerns about how universities can train lawyers to survive or thrive in both. The Canadian Federal Government commissioned a 2003 conference, and invited several famous academics to address economic aspects of bijuralism. The conference featured four major papers, each followed by two critical commentaries, some from a Francophone sentiment, and others, arguably Anglophone, all collected to form this book. The work thus comes already internally self‐reviewed.

The USA and Canada have federalist structures specifically designed to accommodate differing systems. A single jurisdiction like Quebec becoming a civilian island in a common law sea is only exploiting the constitutional plan. Nevertheless, the federalist design is justified by the assumption that the citizens of a state may in fact have substantially differing tastes and aspirations from those of its sisters. The doctrines differing between the compared North American systems, however, produce observably similar outcomes. In fact most behaviors sanctioned in Ontario will be similarly sanctioned in Quebec. People can marry, divorce, reproduce, buy, sell, lend, borrow, live, work, or play with nearly identical legal consequences in both systems. Lawyers may call the doctrines by differing names, but in substance, the distinctions between the ultimate outcomes are strictly marginal. When the differences in outcome do arise, it is also usually very difficult to connect them with any particular cultural attributes of the affected groups so many substantive doctrinal differences are as likely the result of chance or path dependence as they are to be artifacts or expressions of existing cultural distinctions. Why, then, if life is almost the same in both kinds of jurisdiction, and the differences are constitutionally blessed, is there a fuss?

Prior to the economic approach, comparison of common law versus civil law systems tended to resemble a debate over which is better, cognac or single malt? A particularly eloquent example from a civilian supporter of bijural legal education, asks whether law teaching should focus on the pedestrian doctrine of “law's empire” or rather the more ethereal‐but‐edifying “law's cosmos”:

… the preoccupation with law's essence – what explains law as a social phenomenon, what is the nature of legal knowledge, what does it mean to think like a lawyer, what it means to think like a citizen alive to law's symbolic and persuasive attributes – these are the concerns of law's cosmos (Kasirer, 2002).

Another recent writer in this tradition (but a skeptic of bijuralism) counsels that:

… there is a nomos to legal traditions in much the same way there is a nomos to specific legal cultures – an aura that transcends the institutions that make up the tradition (Roark, 2007) (emphasis original).

Citizens of either compared jurisdiction will likely care little about these spectral auras and essences. Indeed, prior to the economic approach, discussions assumed that judging (between) legal systems was entirely a question of aesthetics, and, moreover, that it turned entirely on the aesthetic appeal of the system to lawyers. This book makes a contrary assumption: law is not just about what lawyers think, but rather about the welfare of all the citizens, their clients. The lawyer's role is that of the agent, not the principal.

The book's first paper, for example, considers how to forecast the needed number of bijurally trained lawyers. The answer: you derive this quantity from the demand for legal services by clients! Clients' needs drive this analysis, not lawyers' sensibilities. The second major paper addresses the failure of law due to its incompleteness, concludes that it is the citizenry who suffers from those failures, not the bar, and surmises that the citizens' response explains the creation of the regulatory state. This too is a story not about lawyer‐aesthetes, but rather the people who must live under the law.

The third major paper, the least successful in the book, speculates that doctrines found in one of two bijural systems will influence doctrines in the other system, producing an analogue to biological coevolution. It theorizes that “Schumpeterian competition characterizes the interaction among judges, lawyers and legal scholars and between legal systems,” creating incentives for legal actors to innovate. A natural source of innovative ideas will be the parallel bijural legal system. Another posited driver of coevolution is the desire of lawyers to reduce the costs of searching for doctrine in one tradition when it is cheaply available in the other. These stories are only about lawyer behavior.

A more intuitively plausible story, however, is that the citizens of one system will have needs better met by the doctrines of the other. If the other system has a nifty way of solving a problem facing citizens in your own, a political demand to borrow the solution will arise. In the USA, this kind of democracy‐in‐action story explains the adoption of the trust, and parts of the Uniform Commercial Code by Louisiana, even though Louisiana has a civil law heritage.

The last paper in the book argues that if bijural training seems most valuable to clients transacting across bijural boundaries, one needs to look at real transactions in order to determine whether bijural skills will be valuable. In Canada, the authors show, most transactions are between similar systems, not differing ones. They also find that employing lawyers in teams satisfactorily substitutes for employing a single bijural lawyer. Whether cognac is better than single malt is a question capable of being answered only chauvinistically. The economic approach started in this book, however, promises to make more tractable the analogous question (which law works better?). The sensibilities of lawyers are poor substitutes for the facts of social life.