The concept that property rights are essential for wealth creation isn't a novel one.
I thought some more about the thesis of the article, and have some doubts.
Unless they are strictly limiting the analysis of civil law legal systems to ones that are in fact derived from the Napoleonic code, they're off on a tangent that has a fatal flaw.
Among civil law countries, which are actually derived from Greek and Roman law, are Germany, the Netherlands, Austria, Switzerland and Liechstenstein, all of which are quite prosperous. Japan, Taiwan and South Korea have also adopted civil law legal systems. Scotland is mixed civil and common law legal system, but my impression is that it is primarily civil.
It is true that in civil law systems, the judiciary is not co-equal with the legislature. The structure of the Louisiana Civil Code is similar to those of other civil law systems, and may be instructive. The first few articles of the Louisiana Civil Code are as follows:
Art. 1. Sources of law
The sources of law are legislation and custom.
Art. 2. Legislation
Legislation is a solemn expression of legislative will.
Art. 3. Custom
Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation.
Art. 4. Absence of legislation or custom
When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.
Art. 9. Clear and unambiguous law
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
Art. 10. Language susceptible of different meanings
When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.
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The above should make clear that in civil law legal systems, the legislature is the source of positive laws, and that judges are to defer to the will of the legislature.
I remain more impressed by the thesis of Hernando de Soto, who argues that wealth creation is greater in common law countries due to the system of recordation of property rights, which makes it possible to enforce said rights.
amazon.com
There are two basic classifications of wealth -- liquid wealth, such as money, and illiquid wealth, such as land. You can use money to operate a business, but you can't turn land into money without a good system of recordation, so that lenders will feel safe loaning money using land as collateral.
We can thank Thomas Jefferson for our present land recordation system, but it was highly advanced before the Revolution. Jefferson's father was a land surveyor, as was George Washington.
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Over the years I have become accustomed to the fact that few people in the US know anything about civil law legal systems, and what little they do know is from Brando's ravings in A Streetcar Named Desire. Neither Brando nor Tennessee Williams knew anything about civil law legal systems. |
