普通法方法背景下的美国民法典研究项目启动  

 

      本教研室“主任”徐国栋将于下月4日往美国哥伦比亚大学进行“普通法方法背景下的美国民法典研究”项目，为期1年。现将其项目陈述发表如下，以通信息。  

Project Statement  

      A Study in the Civil Codes of United States in the Legal Method of Common Law

                                                                                                       By Xu Guodong  

Background 

I'm a professor of civil law tradition，therefore I'm very interested in the movement of civil codification in all the world. So I have collected 53 civil codes of foreign countries not translated in Chinese, including three civil codes of United States such as the Civil Code of State of California, Civil Code of the State of Louisiana and El Codigo Civil de Puerto Rico. My collection is the biggest in China. I plan to use these collections to write a book The History of Civil Codification in the World with the coopration of my ex-student , now the teacher of University of Wuhan, Xuejun, Now I finished the parte of oriental Euopean countries and other countries that have belonged to the former Soviet Group and the parte of African countries of this book. I also collected all materials needed for writing the parte of Latin American countries. My disciple Xuejun now is studing in Italy and writing the parte of European countries of this book. I wish that I can utilize an occasion of 2002-2003 Fulbright School Program to finish the parte of United States of this plan.

       Although the United States of America belong to the legal system of common law,but she also is a country with many civil codes.The Civil code of the state of Louisiana has came into being in 1824; In 1865，the David Dudley Field's project of civil code for the state of New York was presented to the legislature of the same state, finally it has aborted under the attacks of James Coolidge Carter in 1884,but it has been adopted,under the title of Field's Civil code, by South Dakota in 1863, North Dakota in 1865, California in 1872, Idaho in 1887, Montana in 1895.In addition, before the invasion of United States to Puerto Rico, this country has its own civil code and it's still in vigour till today. Briefly,it can be ascertainable that now there are 7 civil codes  in United States of America. According to the data loaddowned from Internet, it's possible that exist a civil code respectively in states of Virginia(See Alexander H. Sands,ed, Virginia, Revisors of the Civil Code, Richmond, J. W. Randolph, 1861.）,Pennsylvania (See Pennsylvania: Commissioners Appointed to Revise the Civil Code, Harrisburg, Printed by H. Welsh [etc.] 1831-1836.), Hawaii(See Hawaii, The Civil Laws of the Hawaiian Islands, 1897: Compiled from the Civil Code of 1859 and the Session Laws of 1860 to 1896 Inclusive, Honolulu: Hawaiian Gazette Print, 1897.), Arizona[See Samuel L. Pattee (compiled and annotated), Arizona Civil Code, the revised Statutes of Arizona, 1913.]. It's also possible a civil code of Guam(See John A. Bohn, The Civil Code of the Territory of Guam, 1970. Prepared under the direction of the Tenth Guam Legislature.).If all the abovmentioned “civil code” is the civil code in the sense of the continental legal sytem, then there are 12 civil codes in United States of America. They constitute a very interesting and huge object for study.

The problem of civil codification in United States is always a pupular topic in the circle of legal sciences. As for the general aspects of this problem, Mr. Sheldon Amos has written Codification in England and the State of New York as early as 1867(London: W. Ridgway), after more than one half of century, Mr. Maurice E.Lang also has written his Codification in the British Empire and America (Amsterdam: H.J.Paris,1924). The most recent (1997) work in this field is George A. Bermann's thesis in French “La Codification aux Etats-Unis”( In FAUT-IL CODIFIER LE DROIT? EXPERIECES COMPAREES, 82 Revue francaise d'administration publique 221).The fact that this theme was discussed repeatedly by the peoples of different times testifies it's importance. In fact, It implies the possibility of fusione between the philosophical thoughts of rationalism and the legal mothod of duduction incarnated in the codified law and the philosophical thoughts of empiricism and the legal mothod of induction incarnated in the case law, namely, the possibility of assimilating each other between two more important legal systems. As regards the special aspects of this problem, the problem of defeat and revival of civil code of New York and that of the operation of civil code of Louisiana in the circumtances of common law have brought continuously to the scholars' attention.

The abortion of civil code of New York was a victory of legal thoughts of empiricism of James C. Carter to the legal thoughts of rationalism of David D. Field, but the influence of this victory limited itself only in the State of New York, because the Field's project of civil code were accepted in other 5 states, all of them is state of occidental parte of USA that has had a background of Spanish legal tradition, therefore, it's easier to accept the idea of codified law for them. Pluralism of American culture and the federal system make this country desire and can open to multitudinous cultures. So that It's not surprising that the idea and realty of civil code can survive in this tipical country of Anglo-Saxon legal tradition. In this sense it can be said that the Uniform of Commercial Code is a product of fusion between the continental idea of codification and the legal mothod of common law. This fusion also makes the form of codes change, the original closed form of code was substituted by a opening form of codes. Owning to these values of codification, the American people commemmorates constantly Field's civil code. It appeared Robert Ludlow Fowler's  Codification in the State of New York(New York: M.B.Brown) in 1884.In 1949, on the occasion of centenary birth day of Field's project of civil code, Allison Reppy of New York University has edited and published an anthology nemed David Dudley Field : Centenary Essays Celebrating One Hundred Years of Legal Reform,(New York). After quasi one half of century, Daun Van Ee has published his David Dudley Field and the Reconstruction of the Law (New York: Garland, 1986). It's obvious that people wish to dig up profoundly the comtemporary significances of the civil code drafted by a American lawer and draw up some inspiration from it for the modern legal reforms. It's certainly that the applications of Field's civil code in the 5 states of occidental part of USA. can service the lawers both in comon law tradition and in civil law tradition with very much precious experiences.

The civil code of the state of Louisiana is different from that of New York ,because the latter was a product of initiative of the American lawer to absorb some useful elements of the continental legal system into proper law tradition and it founded itself principally on the base of juridical experience of common law, but the former is a result of a conversion of some American lawers(Such as Mr. Edward Livingston and Mr. James Brown,etc.,) trained in the method of Anglo-Saxon legal system to the continental legal tradition in the cause of its easy accessiblity, and it founded itself basically on the base of civil law tradition.After its promulgation in 1824, we have reason to believe that it has been studied and applied completely in the legal mothod of common law (See Arthur Taylor Von Mehren, The Civil Law System: Cases and Materials for the Comparative Study of Law (Englewood Cliff, N.J.: Prentice-Hall, 1957). Therefore, if the survival of the project of civil code of New York in the state of California and others states testified the possibility of approach to the civil law by common law, then the civil code of Louisiana testified the possibility of approach to common law by the civil law. In this occasion, I would like to say that I'm not strange to this code, because I have translated its preface written by prof. A. N. Yiannopoulos into Chinese as ealy as 1987, this was the first presentation to it in China. Aiming at deepen in my first persentation to it , I have published my article “An Island of continental legal System in the Ocean of common law system: A Presentation to the Civil Code of State of Louisiana“[The reference data about American studies, 1989(3)] after two years,.

 

Objective  In this research, I will try to further my understanding of the history of the America's acceptance of the idea of civil code and the cultural conflicts in its assimilation. I plan to study the basic structures and content of the civil codes of California and Louisiana, and compare these two types of civil codes. If possible, I will also study the civil codes of the other four states that adopted Field's code. The Civil Code of Puerto Rico will be part of this research. I will ascertain whether Virginia, Pennsylvania, Hawaii, Arizona, Guam and other states have civil codes, if so, I will study their history and content. In one word, I will try my best to get an overall understanding of the enactment and application of civil codes in the U.S.

 

Methodology   This research will try to study three issues, through field studies, related to American civil codes: (1) the cultural conflicts in accepting the idea of civil code, which is embodied in the debate of New York State Civil Code; (2) the application in the common law background of the Field-model ]]civil codes of such states as California; and (3) the application in the above-mentioned background of Louisiana Civil Code. Of course, we can also study some minor issues, such as the relation between the making of UCC. and the civil codes of some American states. For the first issue, I plan to study for four months in Harvard Law School because it is near the New York State and it possesses the best professors and the legal library in all the America. I would like to make a survey to the phenomenon of civil codefication in United States and to find a complete text of the draft of civil code of David Field there. For the second issue, I plan to study in Stanford University for three months, because it is in California where Californian Civil Code is applied. I plan to interview some judges of district courts and the Suprem Curt of this state and ask them what do they think about the codified law, do they have a different feeling when they apply pure common law and when they apply a civil code. I will meke a table of comparision between the Field'a draft of civil code and the civil code of the state of California there indicating the similarities and dissimilarities between them and the changes of articles of this civil code since 1872. For the third one, I plan to study for three months in Tulane University, because it is in Louisiana, in which the Louisiana Civil code is implemented. So it's the best place to study this code. I will take comparative law approach there and will finish two comparative studies, one is a comparison between the civil code of California and that of Louisiana; another is a comparision between the civil code of France and that of Louisiana.。I will pay more attention to collect cases made in the process of application of civil code of Louisiana, investigating their influences upon the function of this civil code.I will take note of especially such issues as how the notions of trust and consideration made their way to the continental-law civil codes and the different application in different backgrounds of the same provisions in the American civil codes and continental civil codes. I would like to spend a time of 4 months in the first university in order to utilize a little bit of time for polishing my speaking English. I will spend 3 months respectively in others two universities.

 

Significance   The significance of this research includes two aspects. The first is to promote the understanding of American civil codes in China. Chinese generally think civil codes only exist in continental law countries and only the case law is applied in the Anglo-Saxon legal system countries, but few people know there are some civil codes in some American states. The publication of this study will make more Chinese know this aspect of United States. and have more understanding the pluralism of American culture. The second aspect is to prepare for the enactment of the future Civil Code of China. According to the plan of Mr. Li Peng, Chairman of the Chinese National People's Congress, China will enact its own civil code in 2003, and many Chinese scholars are making preparation in the aspect of comparative law studies and in other aspects.I hope this research will contribute to the Civil Code of China by helping it to be more open, flexible and more conducive to the dialogue between the American legal system and Chinese legal system.

 

Evaluation and Dissemination   The last spot of this research will be Tulane University Law School. After the completion of the proposed research and returning to China on July 1, 2003, I will write an outline of this research within three months and then mail it to prof. A. N. Yiannopoulos for his comment and evaluation. His comments will be incorporated in the final research result, a book entitled A Study in the Civil Codes of United States in the Legal Method of Common Law , which will be published in China and form one part of my bigger book The History of Civil Codification in the World. The main ideas of this research will be disseminated in the form of an article in the Colloquia of Romanist of Central Oriental European and Asian Countries.

 

Justification for Residence in the United States for the Proposal Project  The reason is that most references, except several American civil codes, are to be found in the U.S. It's impossible to finish this research without studing them.In addition, I'm a scholar trained in the tradition of civil law, naturally my mothod of legal reasioning would be different from the method of legal reasoning of three scholars which will cooperate with me. I would like to contact with them vis-à-vis in order to absorb the advantage of their method of thinking and make me become a scholar with a more extensive culteral background. Finally, This project needs that do it by way of on-the-spot-working.

 

Duration  I need 10 months to finish the major part of the proposed project. Although the quantity of works of this project is very great,but I have an excellent ability of reading in English, so I can read rapidly the books and journals needed for finishing this project. Furthermore, I have made a sufficient preparation in background information prior to my departure, so I can start working quickly after my arrival in the U.S. therefore I ‘m able to finish the works of collection of materials and making of train of thought, as well as the writing of major part of the work.  All the work should be finished in one year after my return to China.

 

English Proficiency   I have always been studying and using the English language since I enter into college in 1978.So I have a history of 23 years as an English-user. I participated in a training program of middle level for young teacher tought by an women American professor Nash when I was a teacher of University of Jiangxi in 1983 and graduated with a good score. In 1985, I took a course of American contract law given by an American Fulbright professor Allen Scott Rau who was from University of Texas at Austin School of Law in English when I was a graduate student of China University of Political Sciences and Law, and my performance was excellent. Then I translated, in cooperation with others, Corbin on Contract and Commercial Law in Great Britain into Chinese respectively in 1997 and in 1990. I took part in the 17^th IVR (International Association for Philosophy and Social Philosophy) World Congress and presented my paper in English In 1985. After a year, I gave a lecture of the same title in English in University of Macenata, Italy. It's necessary for me to read English academic books and journals in my daily research .I always communicate with local peoples in English outside the meeting place when I participate international conferences.

 

Attachments

 

1)Host Insititution Preferences

I prefer Harvard Law School, Stanford University Law School and Tulane University Law School to be my host institutions when I do 2002-2003 Fubright Scholar Program In United States, because my project “A Study in the civil Codes of United States in the Legal Method of Common Law ” focus on three American civil codes: The project of civil code for the state of New York, the civil code of California and the civil code of Louisiana. They belong to different states. I need to study them in their homelands. Therefore I would like to do my research work about the civl code of California in Stanford University Law School for 3 months, do civil code of Louisiana in Tulane Universiy Law Shool for 3 months. As for the project of civil code for the state of New York,although it not belong to the state of Massachusetts where situated Harvard University, but this University is very near to New York and possesses the best professors and legal library in all the United States .So I would like to study there for 4 months. I belief that I would get a good academic condition there for studing the project of civil code of New York.

 

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