17 - Implications for convergence

Summary

The conclusion of the analysis contained in this book is that the form of legal development in England, Germany and Austria has historically been determined by the legal doctrine in place prior to the reform process. The historical legal analysis serves as evidence that law changes consistently with incumbent legal doctrine. Once a legal system adopts a particular legal doctrine to govern an area of the law, changes to the law that become necessary afterwards will be carried out by modifying that particular legal doctrine rather than by adopting a new doctrinal regime. This, over time, causes legal rules to become increasingly refined and specialised.

This has implications for convergence. It becomes impossible for any particular legal system to implement the same rules in place in another legal system even if these rules happen to create a regime that is more efficient, politically preferred and more compatible with social, commercial and cultural norms. If one jurisdiction, for example, responded to the market practice of having transfers of securities administered by a service provider who acts as an intermediary by developing its law of bailment, that jurisdiction will adapt and transform the rules governing bailment to accommodate changes in market practice. The law of bailment will change to accommodate the requirements set by market practice. Every change in market practice will cause the law of bailment to evolve and to move further away from its original starting point.