goal 82 mension the of heterogeneity international acquire legal ing of profession any of the nomics, actions gress are functions Collegiate

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56 in 80MPARISONS: ANGLO-AMERICAN COMMON LAW AND DUTCH CIVIL LAW 83 Scots (civil) law by deriving it "from that common law that rules the world," and subsequently, by comparing it with the laws and customs of neighboring nations, So, too, will we find that much of the law of this country, and of the Netherlands, is based on that kind of "common law." In fact, it seems that no matter where we live, much of the law of any given society is derived from that kind of "common law" referred to by Viscount Stair. To the mind conditioned to "legal thinking" this statement may evoke a question as to the precise meaning of the term "law" as used in this context Although I do not want to hide behind the shield of Kantorowicz, who states that persons who think that they can define law are still influenced by a pre­ historic belief in verbal magic,4 I feel that it is important to point at this difficulty of definition. In broad lines we will define our concept of law as " ... a body of rules aiming at the prevention or the orderly settlement of conflicts."5 Now, how do these concatenations of rules respectively making up the American Common Law and the Dutch Civil Law compare? When, a few years ago, the editor of the Wayne Law Review asked me to review F. H. Lawson's "A Common Lawyer Looks at the Civil Law,"6 I was very much tempted to give this book review the sub-title, "How it Feels to be Looked At." Of course, such a course of action would only have been facetious, and nothing would have been accomplished. At the same time, Lawson's title tempts me to suggest that I present at this time a sequel to his study and call it, "A Civil Lawyer Looks at the Common Law." However, such a title would be far too presumptuous for the purpose here undertaken. Furthermore, it should be emphasized at the outset that no global look at the entire American Common Law system is even contemplated; merely some comparative aspects are being discussed and, even then, not with the depth that this topic rightly deserves. Finally, if Lawson is correct in his final conclusion, 7 namely that one would have to go "inside" the Civil Law systems (whatever may be meant by this ex­ pression) in order to understand these systems and "learn their tunes," it is obvious that even the most lucid clarification of the peculiarities of one of the Civil Law systems still would fall short of achieving, to a reasonable degree, an understanding of the particular system. Yet, I hope to succeed in depicting some aspects worthy of consideration.

4Kantorowicz, The Definition of Law 3 ( 1958). See also id. at 7 where he states: "The word "law' is itself a technical term in such phrases as 'due process of law,' 'courts of law' (as opposed to courts of equity), or 'error of law' (as opposed to error of fact) and in each case its definition may be different." 5Id. at 12. See also "Legal Science--A Summary of its Methodology," 28 Col. L. Rev. at 679 ( 1928) for Kantorowicz' earlier definition of law as " ... the totality of those rules of external conduct, to whose application a judge is appropriate." The latter definition comes close to Gray's definition of law as " , .. the general rules which are followed by (the) judicial department in establishing legal rights and duties." Gray, The Nature and Sources of the Law at 1 ( 1948). See also id. at 84 for a similar definition. That these rules must be interconnected speaks for itself; therefore Gray's remark that "The law is so closely concatenated that it is hard to determine where to approach it" should not come as a surprise. 62 Wayne L. Rev. 163 ( 1956). 7Lawson, A Common Lawyer Looks at the Civil Law 210 ( 1953) (hereinafter refer­ red to as Lawson).

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