DIFFERENT DEGREES OF CONVERGENCE: A Comparison of Tort Law (Example: Fairchild v. Glenhaven Funeral Services) and Property Law

Comparative lawyers often argue that, upon close examination, technical differences between legal systems from a particular, e.g. Western, tradition are not as important as they might seem. From a functional viewpoint, these legal systems might in fact be converging. However, various degrees of convergence exist, depending upon the area of the law under examination. In tort law, sometimes a strong degree of convergence can be found, whereas in property law it is much more difficult to find even a limited degree of convergence. Still, also in the area of property law civil and common law show more resemblances than might seem at first glance. I What is ‘convergence’? The topic of convergence as such cannot even superficially be discussed within the limits given to me. What I intend to offer are some thoughts about convergence and apply these to tort law and the law of property in a broad sense (including personal and real property law). In Europe the word ‘convergence’ is most frequently used when comparative lawyers discuss the coming together of European continental civil law and non-continental common law. The ‘civil law’ systems are those which are influenced by Roman legal thinking and comprise the French, German and Scandinavian legal traditions. When the ‘common law’ is referred to, usually English or American common law is meant. We tend to forget that the common law is not only the legal system of England, Wales and Northern Ireland, but also the legal system of the Irish Republic and that it constitutes a major part of the mixed legal system of Scotland. The main differences between civil law and common law have been described so often that there is no need to describe them again. The only difference relevant to what follows next is the role of the judge. In the common law, the judge leads developments in the law and thus has great authority, whereas academic writers are seen rather as those who follow the law. In civil law systems, their position is different. Of course