The British Association of Comparative Law (BACL) is pleased to announce a call for blog pieces for its new ‘Judicial Creativity and Recent Reforms of the Law of Obligations’ series.
In recent decades, many jurisdictions have carried out substantive reforms of their laws of obligations. In Europe, for example, the Netherlands overhauled its civil code in 1992, Germany amended its civil code in 2001, the UK consolidated its existing law in consumer protection in the Consumer Rights Act 2015, France modernised the sections pertaining to contract in its civil code in 2016, Belgium implemented a reform of its contract law in 2023, etc. Following the end of the Cold War, former-communist countries reformed their civil codes and/or laws of obligations to adapt them to the needs of a market economy. Subsequently, some of these states committed to major transformations of their laws of obligations – for instance, in 2013, Hungary enacted a new civil code. Meanwhile, important developments outside of Europe include the enactment of the first complete Civil Code of the People’s Republic of China in 2020 and the civil liability reform in Australia in 2002-2004.
While codifications are often monumental endeavours aimed at clarifying and solidifying legal ideas in the hope of achieving legal certainty and fairness, they do not exist in a vacuum. As early as 1910, Roscoe Pound underscored that law in the books could differ from law in action (Roscoe Pound, ‘Law in the Books and Law in Action’ (1910) 44 Am.L.Rev 12). Moreover, while definitions of ‘legal culture’ diverge, there are authors who believe that legal practice is one of its key elements. In addition, the role of the judge is an important factor (legal formant) in shining a light on how a particular outcome came to be (see David Nelken, ‘Legal Culture’ and Antonio Gambaro and Michele Graziadei, ‘Legal Formants’ in the Elgar Encyclopedia of Comparative Law (Edward Elgar Publishing 2023)). In other words, courts play a key role in interpreting and applying the law. In turn, the role they have been given or the role they may have carved out for themselves is an integral feature of the legal culture in which they function.
To this end, a new provision in legislation may be a priori dead because judges may find creative ways to circumvent it if they do not see its merit. Judges may also rely on legal creativity to make up for seeming lacunas in legislation – for instance, while Germany formally codified the doctrine of hardship only in 2001, German judges were the first ones to address instances of supervening onerous performance in the aftermath of World War I by relying on scholarly theories (Basil S Markesinis, Hannes Unberath and Angus Johnston, The German Law of Contract: A Comparative Treatise (2nd edn, Hart Publishing 2006) 326–342). The reverse phenomenon is also possible – a principle, which was formally deleted from legislation, may make a surprising comeback because of creative interpretation by the courts. For instance, Bulgarian judges have resorted to socialist scholarly writing pertaining to the ‘rules on socialist coexistence’, which were removed from Bulgarian legislation in the early 1990s, to interpret the current notion of ‘good morals’ in the law.
BACL is interested to consider for publication blog pieces examining the intricate relationship between judicial creativity and the impact of law reform in view of recent overhauls of the laws of obligations, including attempts to harmonise the laws of obligations at the regional or the international level, in countries from all over the world.
Some of the questions we are interested to hear about are the following ones:
- To what extent were solutions developed in case law (also known as jurisprudential solutions in the continental tradition) taken into account by legislators in the recent reform of the law of obligations in your jurisdiction? Were these jurisprudential solutions inspired by foreign or domestic scholarly writing?
- After the entry of the reform of the law of obligations into force in your jurisdiction, have judges found creative ways, including relying on prior case law, scholarly literature from your jurisdiction or from a foreign jurisdiction, to circumvent changes in the law? Have legislators subsequently reacted to curtail such creativity? Why/why not? Have other practitioners been troubled by such episodes of creativity?
- Have recent reforms of the law of obligations in your jurisdiction born surprising fruit because of judicial creativity? In case you are researching a jurisdiction that experienced a radical change of political regime, what lessons can you draw about the (im)possibility of teaching judges to adapt to different values of the law of obligations? In case your jurisdiction faced reform in the past few years and case law has not accumulated yet, do you anticipate surprising fruit and why?
- How fine is the line between creativity and interpretation? How fine is the line between judicial creativity and judicial activism in your jurisdiction, and is this a source of concern?
- More broadly, to what extent is judicial creativity a legal formant in your jurisdiction and why? (see Michele Graziadei, ‘Legal Formants’ in the Elgar Encyclopedia of Comparative Law (Edward Elgar Publishing 2023)). Is judicial creativity a means to sustain the values of your legal culture and/or a bigger legal cultural community to which your jurisdiction belongs (e.g. European legal culture, common law world, Latin American legal culture, etc.)?
You can focus on the evolution of a particular principle or rule of the law of obligations broadly conceived (contract, tort, unjust enrichment, consumer law, etc.), or provide a general overview of how judicial creativity has impacted the recent reform of the law of obligations of a jurisdiction/several jurisdictions which you research.
Submission requirements
- Deadline: BACL will accept pieces for consideration until 1 October 2024.
- BACL encourages early submissions.
- Please send blog piece to Dr Radosveta Vassileva r.vassileva[at]mdx.ac.uk, copying Prof Yseult Marique ymarique[at]essex.ac.uk and Dr Sirko Harder S.Harder[at]sussex.ac.uk (co-editors of the series).
- Please feel free to contact the editors informally to test your ideas prior to submission.
- BACL reserves the right to demand corrections and to reject submissions which do not address the call or which do not meet its publication standards.
Format requirements
- The blog piece should be between 1,500 and 2,000 words and in excellent English. By exception, longer pieces may be accepted.
- The blog piece should be divided into sections with succinct headings.
- Hyperlinks should be used instead of footnotes. In case a hyperlink is not available, please include the references in the text itself.
- Pictures to illustrate the text are welcome. Please provide their credits.
- Please include your title and affiliation at the end of your piece.
British Association of Comparative Law 
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