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What do you think about when someone mentions the US State of Louisiana? Mardi gras, hurricanes, jazz and a Sazerac cocktail? Ask a comparative lawyer and they may respond that Louisiana is a Mixed Legal System, meaning that it is a mixture of Common law and Civil law elements. Mixed Legal Systems form a legal family, which in its classical form also includes Scotland, South Africa and Sri Lanka.

The concept of legal families is an ongoing theme of comparative law. Perhaps driven by a human need for organisation and classification, there have been several different taxonomies of the world’s legal systems into legal families. Professor Husa has listed the factors involved in these taxonomies as including the history of a legal system, level of codification, process of judicial reasoning, influence of religion or political systems on law, structure of the court system, and so on.[1] There is, in other words, a focus on the structure and content of positive law.

Nowhere in these taxonomies can you see the hurricanes of Louisiana, the peatlands of Scotland, the giraffes of South Africa or the mangroves of Sri Lanka. Within legal families, there is a lack of consideration of external factors to the legal system such as geography, climate, or biodiversity.

The concept of legal families has been criticised as reductionist and therefore some claim it is useful only as a starting point. That starting point may mean that initially within a European comparative project, representatives of legal families will be chosen – perhaps Germany, France and England. These countries represent the Germanic, Romanistic and Common law legal families. The comparative property lawyer then discovers that yawning divide between the Common law and Civil law concepts of ownership, which some describe as irreconcilable. In the Civil law, ownership is said to be the most comprehensive and complete right a person can have in a thing, whilst in the Common law, there is the concept of relative title, with no single, absolute right that is superior to all competing claims. This divide dominates comparative property law.

The way in which jurisdictions are chosen for a comparative project arguably creates an insular focus, turning the comparatist towards doctrinal and technical questions of property law. The discussion diverts our attention away from the broader implications of property law, and particularly the relationship between property law and environmental factors. A good example of this is Louisiana. There has been interest in Mixed Legal Systems as potentially overcoming the Common Law/Civil Law divide. Scholars in Mixed Legal Systems also carry out research into developments in other Mixed Legal Systems. What is not highlighted by this research is how the articles of the Civil Code in Louisiana, which have been influenced by both French and Spanish law among other sources, are arguably maladapted to the environmental context of this Southern US State.[2] The coastal region of this State is dominated by marshland and swampland, which have been increasingly submerged under the waters of the Gulf of Mexico. There are ongoing property law disputes regarding ownership and access to these newly submerged lands. The articles of the Civil Code do not provide solutions to these conflicts. In fact, they seem inappropriate to the particular geography of this coastal area and the accelerating transformation which is taking place. The dynamic and changing coastal region does not fit neatly into the categories of public, private and common things in the Civil Code with the result that some areas of land are now claimed by both the State and private parties. The comparative lawyer may miss this important controversy of Louisiana’s property law.

This is problematic because property law has a very real impact on the environment that it seeks to regulate. An example is the Highland Clearances in Scotland where people were evicted from the land to make way for sheep and then deer. Now the rush for carbon offsetting is again changing the landscape. This had, and is having, significant ecological consequences which results in physical transformations of the land. In carrying out comparative law projects, therefore, we could ask different questions: In what ways does property law regulate natural resources? How does this reflect a perception or ideology of the natural world? How are natural resources used or exploited in that jurisdiction? What effects does this have?

On the other hand, the environmental conditions of a jurisdiction can influence a legal outcome. As Professor Robinson states: “Alpine montane legal systems will necessarily be distinct from the management of coastal zones in their environmental problems, forms of land tenure, economic development pressures; it is no surprise that, as a result, different types of environmental legal means can and should be structured for such places.”[3] Some argue, for example, that greater scarcity of a resource results in more defined private property rights. However, this argument has also been subject to critique by those who argue there is greater state control in times of scarcity which restricts property rights. Much remains to be explored through comparative research.

Therefore, in comparative property projects, we could ask: In what ways do external features to the legal system, such as geography, climate and biodiversity, influence property rules? How do different jurisdictions deal with abundance and scarcity of resources? Can any common patterns be discerned? Do countries take paradigms which have been perceived to function well for certain resources and use these paradigms for other resources? What happens when laws that are the product of particular environmental conditions are transplanted to other environments?

Taking this argument to the next level may be to allow natural features, species and habitats to determine the legal systems chosen for comparison, which would result in nature-based comparative property law. A large-scale research project could consider a natural feature such as the Alps, which stretch over the EU countries of France, Italy, Germany, Austria and Slovenia, and well as the non-EU countries of Switzerland and Liechtenstein. The mountain range contains rich biodiversity and a multitude of areas which are protected due to the habitats or species which are present there.

In this nature-based comparative property project we could ask: What has been the property law response to the management of these crucial areas of Europe’s natural environment? How do the property laws differ in various countries with respect to these important areas? In what ways are these laws similar? Are any laws more effective than others in maintaining or restoring the natural habitats or species? This would be a new and innovative approach to comparative methodology.

The twin crises of climate change and biodiversity loss demand that we reconsider many aspects of our legal methodologies. Property law has had an important role in producing these crises, and must be involved in the transition to sustainability. We must therefore give attention to how property law interacts with the natural environment and find examples of best practice to support the restoration and preservation of remaining species and habitats. In doing so, we must consider the nature of comparing.

This blog is based on J. Robbie, ‘The Nature of Comparing’ in B. Akkermans and A. Berlee (Eds.), “Sjef-sache”: Essays in Honour of Prof. mr. dr. J.H.M. (Sjef) van Erp on the Occasion of His Retirement, Eleven International Publishing, 2021, pp. 17-27 available on SSRN:

[1] J. Husa, ‘Legal Families’ in J.M. Smits (Ed.), Elgar Encyclopaedia of Comparative Law, 2nd ed., Cheltenham, Edward Elgar, 2012, pp. 492-493.

[2] On property law being maladapted see N. Graham, Lawscape: Property, Environment and Law, Abingdon, Routledge, 2011.

[3] N.A. Robinson, ‘Comparative Environmental Law: Evaluating How Legal Systems Address Sustainable Development’, Environmental Policy and Law, Vol. 27, 1997, p. 340.

(Photo: David Mark)