Arthur van Mehren / Peter Murray, Law in the United States, Cambridge University Press, 2007; excerpt: final chapter The United States and the global legal community, p. 273-298
A_2.55_MURRAY_von MEHREN_Law in the US
a) Background
Law in the United States, is a description of the basic elements of the American legal system designed mainly for students with a civil law background. The focus is on those attributes of American law that are believed to be unfamiliar to jurisdictions from other legal traditions such as American common law, the federal structure of the US legal system and the American constitutional tradition. The use of comparative law technique permits us to study the American legal system in comparison with legal systems with which they are already familiar. The chapters in the second edition also cover topics such as American civil justice, criminal law, industrial property, choice of law and international jurisdiction, the American legal profession and the influence of American law on the global legal order. The text at hand – an excerpt – is the final chapter of the small book. It is a non-Swiss perspective on the international role and positioning of the American legal system in the world today. It is one of the rare texts written by non-Swiss lawyers in this collection.
Arthur van Mehren was a world-renowned scholar in international and comparative law, whose work influenced generations of lawyers around the globe. He was a towering figure in American law school teaching and in American legal research. He was fluent in several languages, taught in many countries and written ten books along with hundreds of articles on various aspects of comparative, international law, including conflicts of law and jurisdiction. He was a true bridge builder in trans-Atlantic legal matters after World War II. He had a large international network of colleagues and students who revered him as an older statesman, colleague and friend.
Peter L. Murray is an emeritus (2010) Professor of Law from Practice at Harvard Law School in Cambridge. He regularly was a Senior Fulbright Professor at the University of Freiburg in Breisgau and a Lecturer of Law at the University of St. Gallen in the Executive Masters of European and International Business Law Program. Murray had originally for many years been in private practice in Maine. He is a specialist in evidence and civil procedure. He is a comparative lawyer particularly known for comparative civil procedure and has an institutional relationship with the University of Freiburg, Germany. He is fluent in German. He was an architect and craftsman of many international endeavors – small and tall – in Harvard Law School for many years.
Van Mehren and Murray became close friends in the later part of their careers at Harvard Law School. When van Mehren became frail, he often co-taught courses with Murray. It therefore is a sign of respect and personal friendship that when this short introductory book on law in the United States was to appear in a second edition, Murray became its co-author. The book originally was called Law in the United States, a general and comparative review. It grew out of lectures that van Mehren gave in the fall of 1983 and the spring of 1984 at the University of Ghent.
Both authors have a special relationship to Swiss law, law schools and legal scholars. Van Mehren after World War II during his three years study of civil law systems was a young assistant professor of law – at the request of Roscoe Pound, the dean of Harvard Law School – in Paris, Berlin and in Zurich. Murray has often taught at the University of St. Gallen. Both of them have many friends and alumnis in Switzerland, when they have been teaching in various functions throughout their careers.
b) Summary
Characterization and structure of the book
Because it is essential for a sophisticated observer of the role of the United States after World War II to be able to change and take note of other perspectives of the influence of American law on the legal process of Globalization, this summary is more extensive, commensurate with the purpose of this part of the collection on the Americanization of Swiss law and legal culture.
The text at hand, which is the final chapter of the second edition of Law in the United States by Arthur van Mehren and Peter Murray, was published in 2007. The excerpt is chapter eleven entitled The United States and the global legal Community. The text is written from an American perspective and is divided as follows: The American legal system in the world context; American Private Law in the Modern World; American Litigation Abroad; American public law and the modern democratic world; America and the World Language of Law; American legal culture on the world scene; () America and world public law and America and the legal world of the future. We take the liberty to paraphrase the views of the authors, which is important for the better understanding of this part of the collection on Americanization.
Little attention to American law at 1950 times
Van Mehren and Murray state that unlike Roman law, which exerted influence over the world’s legal system for nearly a millennium, or even English, French or German law, which spread to much of the then-civilized world during the 19th and earlier 20th century, American law and legal institutions were not given much attention by other countries until the middle of the 20th century. This was largely because (1) in contrast to the major European Powers, America did not found many colonies abroad; (2) America’s early economic activity was focused on developing its own vast territory; (3) American Law was not in a forum that encouraged exports and emulation; and (4) the international language of discussion and exchange was French and in scientific matters German and America’s language was widely spoken only within the Empire of its motherland and cultural competitor Great Britain. American law has traditionally not been susceptible to easy export and emulation abroad in particular because of its uncodified common law form as well as the peculiar and extreme form of American federalism. These preconditions changed at the end of World War II. The political and economic strength of the United States following the war and continuing throughout the latter part of the 20th century have led to the export of American public and private law in several forms.
Areas of influences of American law after 1950
The modern roots of European constitutionalism were clearly found in the American theory of government. Many areas of influence in the post-World War II period were indirect. On the other hand, van Mehren and Murray argue that in important areas of present key law making and law practice, the American influence is profound and ongoing. In the area of American private law in the modern world it is not any concerted governmental activity on either side of the Atlantic or Pacific that counts for the current worldwide influence of American law and legal institutions. It is the result of private negotiations, in which American law is chosen to govern major transactions; the role of international financial institutions, founded in part by the United States, that condition financing participation on American-style legal arrangements; and a more diffuse but no less effective transmission, via educational and cultural means. Private law began to become relevant in London, Frankfurt and Paris in particular because of increasing internationalisation of major American enterprises. The export of the American private law to protect American economic legal actors has been intertwined by a form of law export that is connected with the kinds of economic and financial transactions themselves. The vehicles for the dissemination of the American legal doctrine and the activity of certain international financing organisations are particularly the International Monetary Fund (IMF) and the World Bank. A similar form of law export has been connected with the activities of the World Trade Organization (WTO).
Other areas of influences: civilization, constitutionalism and democracy, public law, language and international law.
Another area in which American law has made itself felt abroad, sometimes according to the authors to an inordinate extent, is the field of civilization. The expansiveness of American concepts of international jurisdiction has brought peculiar features of American tort law to the doorsteps of the rest of the world. A welcoming expansiveness of American civil jurisdiction is prevented by American choice of law requiring that sometimes, American legal norms should be applied to circumstances that seem much more closely related to the legal and social priorities of another jurisdiction.
The aspects of American democracy and its public legal order have been admired since the claims of Tocqueville. According to van Mehren and Murray, some of them, such as the written constitution and the notion of traditional elaboration of that constitution, have served as models for several developments worldwide. Again American constitutionalism and much of American public law do not lend themselves to easy adoption. Themes of public law have found widespread resistance abroad with the exceptions such as the concept of judicial review and, at times, the institution of jury trial. In those areas where American public law has developed to manage and govern the modern economy, there has been a degree of influence based upon the actual merits of the solutions reached. The influence of American law and legal institutions throughout the world has been furthered by the general acceptance of English as the world language. In recent years, English has also become the world language of law. The universal knowledge and the use of the English language – particularly in connection with the world wide web – makes American law and legal culture immediately accessible to practically anyone in the world who has a good secondary education. The lack of theoretical structures of American law makes it, according to the authors, more accessible to persons not imbued with the English language from birth.
The influence of American law is closely related to the spread of American popular and general culture throughout the world. In the foreground with respect to law is the American media culture. This phenomenon of popular culture is complemented by the intense interest of foreign lawyers in exposure to American legal education.
The outward orientation according to van Mehren and Murray with respect to its own institutions and rules of private law is not matched by a corresponding receptiveness to international law and supranational regiments governing all nations of the globe, including the United States. The United States has historically been somewhat reluctant to embrace international treaties and alliances. World War II brought the United States out of its traditional isolation. The engagement with international law and legal institutions began to diminish after the disastrous experience in Vietnam. It cannot be denied that America’s recent actions have tended to undermine the influence of American institutions of public law in the world at large. The preconditions pose an interesting dichotomy over the second half of the 20th century: American influence on private law and legal culture, and to a lesser extent international public law, has been profound and is ongoing, but at the same time, American engagement in international law and legal institutions is now seen as rather negative and in disrepute.
The role of American power in the future – the role of civil process
With respect to the influence of America and the legal world in general some predictions pretend that the influence of private law is based on economic power. It is likely – this is the argument of the authors van Mehren and Murray – that American law will continue to be exported in the area of private law. It is difficult to imagine that the United States will maintain the degree of influence exercised over the last fifty years as a source of national public law. On the other hand American laws will continue to be promoted by the use of English as an international language. American civil litigation will only come reluctantly in line with the rest of the world. The approach, a unified world economy with differences among the civil justice systems, that serves that economy will tend to finish. Finally according to van Mehren and Murray it seems clear that American exceptionalism vis-à-vis international public law is a finite phenomenon. It is hoped that the decline of America’s comparative economic and political power will occur in such a manner as to preserve international order and spare current and future generations of American citizens the consequences of violence. It is also hoped that lasting influences of the pre-eminence of economic, legal, and cultural institutions resist and enrich the world long after the political and economic power that originally protected them has waned.