Materials for Lectures on Comparative Legal Systems

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Introduction to Comparative Law

Aims and Functions of Comparative Law as a Method of Research

Most research studies in this area of legal systems use comparative perspectives. 1 They look at
how different legal systems have traditionally protected rights and other interests and how each
of those legal systems is adapting to global dynamics such as advances eg in technology. In this
course of study, the comparison is mostly done on a small scale. That is, the method is micro-
comparison. It mainly explores the specific question at issue eg whether and how the clash
between copyright and the right to education can be resolved. It also examines why the different
legal systems under the study in question solve the problem at issue in the way they do as well as
considering the common elements in the different legal systems. The common elements can be
identified and then used to suggest an appropriate probable resolution to the problem.

A comparative method is suitable for the resolution of the problem statement for a number of
reasons. First, a comparative method is appropriate for this study as it is likely to help develop
critical standards which might lead to improvement in both national and international law.
Secondly, it might significantly aid in identifying avenues for the international unification or
harmonisation of laws in the field under study. Thirdly, given that ‘the legal science includes not
only the techniques of interpreting the texts, principles, rules, and standards of a national system,
but also the discovery of models for preventing or resolving social conflicts’ it follows that ‘the
1
See eg ACA2K; Lindsay D and Rickectson S “Copyright, Privacy and Digital Rights Management (DRM)” in
Kenyon AT and Richardson M (eds) New Dimensions in Privacy Law: International and Comparative Perspectives
(Cambridge University Press 2006) 121-153.
method of comparative law can provide a much richer range of model solutions than a legal
science devoted to a single nation.’2

The Importance of the Major Legal Systems

Case study

How do civil law and common law legal systems interpret and apply rules re privacy
protection?

 dignitarian ‘rights-based’ theories and utilitarian ‘interests-based’ theories.

 First, dignitarian approaches often formulate privacy as a sacred and inalienable right
over ourselves. By the term ‘sacred’ is meant to say that which is serious, solemn, and
important (in the way religious things are). By ‘inalienable’ is meant that which cannot
be taken away. It should be noted, however, that these are general rules to which there
might be exceptions.

 Secondly, privacy is regarded as a personality right. That is to say, a right that attaches to
oneself because of their whole nature as a human being. It entails notions of honour or
dignity of a person. However, it is extremely difficult to understand precisely what is
meant by ‘personality’.

 Third, perhaps the most distinguishing feature of dignitarian approaches is that ordinarily
protection attaches to intangible interests.

 In dignitarian ‘rights-based’ approaches to the regulation of privacy protection legal

rules would protect the autonomy and dignity of the person by imposing limits on the
searches re their person, home or property; seizure of their possessions; unnecessary
requirement or revelation of information relating to their family or private affairs; or
infringement of the privacy of their communications.

 . Under a utilitarian ‘interests-based’ approach to the regulation of privacy protection the

legitimacy of legal intervention is primarily assessed according to whether the
intervention will promote more efficient (operation of) markets (in tangible economic
interests).

 In other words, in the dignitarian approaches, privacy protection does not attach to things
connected with money, possessions, etc rather it attaches to the needs of the mind or
spirit. Put another way, dignitarian approaches to privacy protection are not concerned
with the physical world but rather with the mind or spirit. Accordingly, the golden thread
2
UNISA ‘Research Methodology for Law: Tutorial Letter 101/2009 at p35.
 underlying the civil law tradition of privacy protection is the dignity (or honour), and
(moral) autonomy of the human subject.

 the steering axiom for (data) privacy protection advocates is “knowledge is power”.

 Cf: For copyright-holders a steering axiom of greater importance is “knowledge is

wealth”.

 More particularly, copyright is an attempt to protect the incentive to produce original

works and contribute to public well-being by assuring the creators an economic benefit
of their creative activity. By contrast, privacy protection attempts to maintain the
incentive to participate in a democratic, pluralist society by securing the privacy,
autonomy and integrity of individuals

Privacy in international legal instruments

 International Covenant on Civil and Political Rights (ICCPR) : ‘No one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, or to unlawful attacks on his honour and reputation.’

 European Convention on Human Rights (ECHR) : ‘Everyone has the right to respect for
his private and family life, his home and his correspondence.’

 Universal Declaration of Human Rights (UDHR): ‘no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to attacks upon his
honour and reputation. Everyone has a right to the protection of law against such
interference.’

 Ordinarily, these legal instruments somewhat reveal both dignitarian and utilitarian
approaches to the regulation of privacy. However, a special problem remains. What is the
actual content of the concept of privacy? How is the matter treated in practice? It is
worth noting that different legal traditions treat privacy in different ways.

Privacy in the Civil Law and Common Law Traditions

 Remember those naked Germans enjoying themselves in the middle of Berlin?

 To Germans and other continental Europeans this is a) fun and b) part of freedom. The
word for public nudity, in fact, is ‘free body culture’)

 To Americans, this tends to be awkward if not shocking: “Don’t these Europeans have
a sense of privacy?”

 But remember Monica Lewinsky? - “stains on dresses and all the rest”.
  If you spent an evening with President Clinton, would you demand to know exactly what
these two had been up to in which closet

 To Americans this was part of freedom — the free press and the right to hold government
accountable. To continental Europeans, this is amusing at first, then awkward, then
distasteful and finally undignified:

 “Don’t these Americans have a sense of privacy?”

Dignitarian Approaches to privacy

 dignitarian approaches formulate privacy as a sacred and inalienable right over

ourselves.

 Exceptions: those rights are usually inalienable even if they can be waived and devised eg
moral rights can be transferred and are only available to certain categories of works, (e.g.
moral rights are not available for sound recordings).

 privacy is regarded as a personality right. ie, a right that attaches to oneself because of
their whole nature as a human being. It entails notions of honour or dignity of a person.

 ordinarily protection attaches to intangible non-economic interests unlike in utilitarian

approaches

 Key feature: the civil law tradition of privacy protection is the dignity (or honour), and
(moral) autonomy of the human subject.

Utilitarian Approaches to privacy

 seen to be more pragmatic in the common law tradition

 ‘pragmatic’: the practical implication that there are numerous exceptions due to social
need.

 do not recognize privacy as an independent value deserving of protection in its own right.
eg no English Common Law privacy tort except e.g. the equitable action for breach of
confidence

 Notably, rights-based approaches to privacy protection seem to offer higher levels of

protection than interests-based approaches.
 What about the perspective of a developing country such as Botswana, South Africa,
Kenya or Nigeria?