Wolfgang Wiegand, Die Rezeption des amerikanischen Rechts, in Die schweizerische Rechtsordnung in ihren internationalen Bezügen, Festschrift zum Juristentag 1988, Bern 1988, p. 229-262
A_2.34_WIEGAND_Amerikanischen Rechts
[The Reception of American Law]
a) Background
The text at hand deals with the “reception” of United States law in the Swiss legal system, an as yet unanalyzed phenomenon of post-World War II international developments. Wolfgang Wiegand’s major thesis – later criticized by international comparatives – is that there is a parallel between the reception of Roman law in the Middle Ages in Europe and the reception of American law in today’s Europe. This not only results in significant changes in legislative and legal thinking but also leads to a paradigmatic change in Swiss law and legal culture.
The text at hand is a rare example of lawyers in Switzerland dealing with the process of Americanization from a theoretical perspective. It is the only text in the part on Americanization in the Anthology, which in the aftermath of its release raised international attention.
Wolfgang Wiegand is an Professor Emeritus for Civil, Commercial and Banking Law at the University of Bern. He has a German legal education and has been teaching in Switzerland for almost thirty years as a professor. Wiegand has a keen interest on comparative law issues, as evidenced by the text at hand. The text has been criticized because of the far-reaching implications of the use of the comparative law concept of “Rezeption” (reception) for the phenomena described. According to Wiegand the development of Americanization of law has not been analysed or recognized in the literature beyond the usual remarks here and there about the (negative) influence of American law and American “legal imperialism”. There was no real study of the reasons for this “imperialism” or its consequences, Wiegand noted in 1988. The text appeared as a contribution of the law faculty of the University of Bern to the Festschrift at the Schweizerischer Juristentag 1988 (the annual meeting of the Swiss Lawyers Association) in Bern. This is in keeping with the tradition that if the annual meeting of the Swiss Lawyers Association takes place in a city or canton that has a University with a law faculty, the members of the faculty are the editors and contributors of the respective Festschrift. The Festschrift had the title “Die Schweizerische Rechtsordnung in ihren internatonalen Bezügen” (The Swiss legal system and it’s international dimensions). This is the first time that after World War II the “official” Swiss Lawyers Association has chosen the internationalization of Swiss law as the key topic. Further occasions were the annual meetings of in St. Gallen (2002) and in Geneva (2012).
b) Summary
Wolfgang Wiegand’s analysis of facts and observations comes to the conclusion that the study of law at an American university, post-World War II, has in Switzerland a similar value and comparable function as the study of jus commune in the Middle Ages. He observes a preponderance of American-trained lawyers in universities, industry and the bar, with regards to the numbers of the lawyers, the working style and the structure of the law firms.
Wiegang then notes in a variety of areas of the legal system a specific reception of American law in Swiss law. The text identifies new types of business and contracts, new instruments and institutions of law such as trusts and leasing, various developments of economic law such as business law, capital markets and banking, as well as general liability and product liability law, producers’ liability and constitutional law.
Wiegand notes that besides this seizure of law and legal thinking, more and more American theoretical methods in law are being taken over by the continent of Europe; he is one of the very early authors in Switzerland to note the potential “travel” of the economic analysis of law across the Atlantic Ocean.
Based upon the comparison to the reception of jus commune in the Middle Ages, Wiegand comes to the conclusion that the reception of American law is an irreversible and unstoppable process. It does not serve to analyse the real reasons and the extent of the process, if one discredits the process as an expression of “American legal hegemony”. Wiegang followed up on the topic in later articles published in English; see Wolfgang Wiegand, ‘Reception of American Law in Europe’, American Journal of Comparative law (1991) pages 229 ff. and Wolfgang Wiegand, ‘Reception or Convergence?’ in Lawrence Friedman/Harry W. Schreiber (eds.), Legal Culture and the Legal Profession (1996), pages 137 ff.