Comprehensive Law Defined
What is Comprehensive Law?
One of the earliest definitions of comprehensive law was proposed by a group of federal judges who met in 2000 to form the Federal Court System and as simply put, it is a holistic approach to law. A method long ago adopted in China, it is n inextricably linked to an understanding of human relationships and the best ways to resolve disputes. Comprehensive law is that which adopts a human oriented philosophy to understand each thing subject to law, its possible application, aims , and limits and its closer or further removal from nature. In deeper terms it is the discernment of the harmony inherent in the universe, by the divine order, nature, God, the force of the universe, or whatever you wish to call it, a realization and acceptance of the interconnections of all events, of all actions, and of each person’s role in them. It is the constant balance of all factors in full view and the consideration of every element, fact or circumstance affecting a situation, with the ultimate aim of a just outcome for all involved, for all times.
The Origins and Development of Comprehensive Law
A comprehensive law system aims to integrate theory and practice. It is designed to cover all branches of law but without favouring any during the resolution of a conflict. The main purpose is justice for every party. The law applies equally to all regardless of social or economic status.
By highlighting the interrelation between various branches of law, the comprehensive system helps lawyers, who mostly specialise in only one or two areas. Sometimes specialisation has a downside, where expertise in one narrow area can be detrimental to understanding all aspects of a case. Comprehensive law counters this by giving an overreaching view.
Comprehensive law originated from Canon law, the legal system of the Roman Catholic Church. Canon law not only regulated the internal rules of the church, but also set down the law of the land as promoted by religion. Canon law was applied by the church itself, with a separate court system, leaving law and morality almost indistinguishable.
By the 1700s, however, canon law started to decline, falling out of favour. When tracing the history of comprehensive law, most lawyers agree that the pioneer in formulating the concept was Otto von Gierke, a German nationalisation lawyer. Gierke’s theory was not very popular in his time, but it laid the foundation for the development of comprehensive law in Germany. His work influenced several prominent academics, one of whom was Herman Cohen, who studied Gierke’s work. Cohen’s disciples produced work that gained popularity among legal scholars, finally leading to widespread acceptance of the concept of a comprehensive law system in Germany.
The concept later made its way into France, where express provisions were introduced first in the Brussels Commercial Code and then into the French Code, becoming a part of it. Later, the Comprehensive Code of International Trade adopted this German model.
Over the years, comprehensive law spread beyond France and Germany. The 33rd and 34th Congress of the International Association for Comparative Law adopted resolutions on comprehensive law in which they recognised the system’s wide application both as a subject and method.
Fundamental Aspects of Comprehensive Law
At its core, comprehensive law seeks to help lawyers adopt a broader problem-solving approach to the practice of law. However, distinguishing components within comprehensive law can be problematic because there is no single paradigm or methodology that every lawyer who identifies as a comprehensive lawyer will interpret and implement in the same way. At least five related forms of comprehensive law currently exist with scholars, practitioners, and judges embracing aspects of all of these: holistic law, collaborative law, therapeutic jurisprudence, peacemaking law, and restorative justice. All of these paradigms support lawyers and judges who are moving away from the traditional legal processes and legal-centric approaches toward a more substantive focus that additionally includes negotiation, collaborative processes, mediation, and a holistic view of client and other stakeholder needs. According to Santa Clara University law professor Susan R. Jones, core attributes of comprehensive law include attention to underlying human needs; a focus on collaborative and creative resolution of client-centered problems; interest in holistic resolution of legal problems; and the use of alternative, nonadversarial methods to promote peace and healing. Jones, Susan R., The Core of Comprehensive Law: Lessons from Peacemaking and Therapeutic Jurisprudence, 24 Alternatives to High Cost Litigation 135, 135 (2006). In addition, the Institute for the Study of Legal Ethics (ISLE) at the Maurice A. Deane School of Law at Hofstra University defines holistic law as a conceptual framework that comprises lawyer-led "multidisciplinary collaborative teams that deliver holistic (physical, psychological, social, spiritual and/or structural) problem solving and/or conflict resolution services."
Advantages of Comprehensive Law
A distinguishing feature of comprehensive law is its ability to resolve disputes with less expense and protracted delay than traditional methods. Because of its focus on the key motivations of parties to a dispute, comprehensive law can generate results that are acceptable to all parties, thereby saving time, where the system has been set up to handle an entire case permitted by law, rather than just one phase of litigation. In addition to compressing the timeframe of dispute resolution, comprehensive law has the potential to lower costs associated with litigation.
The advantages of comprehensive law extend beyond the business sector. While first among the supporters of comprehensive law are corporate executives, attorneys, educators, and insurance professionals, advocates for this approach to streamlining or resolving disputes with reference to law include medical groups and societies, academic organizations, interest groups, as well as individual citizens.
Obstacles and Critiques
As with any approach, comprehensive law is subject to challenges and criticisms. What is clear is that it is not a one-size-fits-all approach, which in some ways makes it a uniquely challenging proposition for the profession. Comprehensive law requires greater on-going expense and resource devotion, albeit with the prospect of more productive client relationships and greater satisfaction in practice. As much as many greet these values with open arms, there is the very real concern of whether such virtues can be achieved consistently. The term itself poses potential problems. There is a natural tension between the notion of ‘comprehensiveness’ on the one hand, and the availability of lawyerly talent and resources on the other. If the idea is to embrace all aspects of client matter , this raises the question of whether every aspect of perhaps very disparate legal disciplines and legal requirements can be effectively handled by one lawyer (or even several lawyers in a growing law firm). The legal complexities and the knowledge required to be effective in some disciplines and areas of law may be daunting or impossible, and force the lawyer on a steep and uncertain but necessary learning curve, with no way to judge success until it is too late to correct. The term also may mean different things to different lawyers. In addition to the connotations of the key term of comprehension, there are different definitions of the noun law: the substantive law itself, the discipline of law, or the profession of law. Different lawyers may have different orientations on the key aspects of comprehension and law, and may become more or less adept at comprehending and dealing with their differences when espousing the notion of comprehensive law. Nor is it clear whether comprehensive law applies when the core of the matter does not enact or otherwise apply substantive law to the client.
Practical Examples
Comprehensive law has been applied in various legal systems and industries around the world. One example is comprehensive law as it is applied in the field of alternative dispute resolution (ADR). In ADR, comprehensive law refers to the use of collaborative law practices to resolve disputes outside of the traditional litigation system. This approach emphasizes the importance of full disclosure and transparency in the resolution process while also minimizing costs and stresses for all parties involved.
Another example can be found in the field of environmental law. Comprehensive environmental law seeks to address the root causes of environmental problems and create sustainable solutions that go beyond short-term fixes. For instance, there have been successful case studies of comprehensive environmental law in the European Union, where regulations have been put in place to limit pollution from industrial sources. These regulations have been accompanied by measures to promote renewable energy and energy efficiency, resulting in significant progress towards reducing carbon emissions and protecting natural resources.
Comprehensive law has also been applied in the context of corporate social responsibility and sustainability. Companies are increasingly recognizing that they have a responsibility to not only adhere to legal requirements but also to take into account the impact of their operations on society as a whole. Comprehensive law in this context involves the implementation of policies and practices that address social, environmental, and economic concerns while still considering the bottom line.
For example, some companies have started to adopt a more holistic approach to their supply chains, focusing on ethical sourcing and production practices. This includes providing fair wages and safe working conditions for workers and taking into consideration the environmental impact of their operations. Such initiatives have been shown to result in not only improved relationships with stakeholders, but also improved financial performance.
The Next Steps for Comprehensive Law
The Continuing Spread of Comprehensive Law
The growth of comprehensive law is likely to keep on moving in the same direction it has for the last several decades: towards ever greater uniformity and predictability. The desire for an unambiguous rule that can be applied to a wide variety of contexts has long been a driving force at the federal level and will likely keep driving the legal landscape through the state courts as well, nationwide.
California is, of course, an example of this trend. As noted above, its courts used a range of tools in interpreting the UCL and had no single UCL progenitor. The whole slew of UCL decisions relied upon by the California courts were in turn organized by the California Supreme Court in the now canonical Madrigal decision. Madrigal, of course, featured a laundry list of the UCL’s numerous facets, all indexed via small roman numerals (e.g., i, ii, iii, etc.) and all observed to appear with increasing frequency in California courts. These facets have since been easily harvested once again by other courts because of the California Supreme Court’s straightforward, codified promulgation of its multitude of UCL rules. No longer do other courts have to comb through California’s case law in order to find rulings on how the UCL should apply. Instead, the California Supreme Court’s extensive compilation of its UCL jurisprudence makes finding other courts’ UCL cases about as easy as finding a restaurant in a guidebook. Such is the power of uniformity and predictability.
Another element to the California approach is its incrementalism which also seems likely to continue in the coming decades. Just as California encourages its courts to examine novel UCL issues, so too it allows them to break new ground on an incremental basis. One can envision a similar situation arising with Chakrabarty®—namely, that as courts around the country increasingly look to Chakrabarty® for rules for patent protection, those rulings will make their way back to California and into the appropriate section of madrigalized law. Other courts will in turn harvest those decisions, thus enriching their own case law—even without express opt-in provisions like those currently found in California.
California’s route to a more unified jurisprudence remains an effective one . Both other states and federal circuits have paid attention to California law, citing California decisions in their own opinions. The trend for the Kamal test also shows promise. Its DNA-based format appeals to many courts, and its expatriation from California has resulted in the existence of a broad and growing base of decisions incorporating its analysis. We also have recent examples of other states following California’s lead in issuing organized publications and making them available in accessible, codified formats. For example, Missouri recently made available its relatively comprehensive body of consumer protection law, which has included a recent LCD screen price-fixing ruling that used the Kamal test to analyze almost identical violations under both federal and Missouri state law.
One likely future way for comprehensive law to develop incrementally will be through its reliance on statutes reminiscent of the UCL, many of which are modeled after some aspect of an existing California law. Examples of this trend abound. The sheer number of California UDAP statutes has made it a model for aggregating otherwise diffuse state statutory litigation, and the amount of money it makes makes it appealing to plaintiffs’ lawyers. Similar statutes have been passed in Illinois, Texas, and countless other states. The same is true for California’s franchise act, which has influenced other states like Florida, Minnesota, and Ohio, each of which have their own franchise laws already. There seems to be little cause to question California’s continuing influence in this regard.
Expect the future of comprehensive law to continue along the same path it has followed for decades. As courts throughout the United States start to see more and more UCL-like statutes, more and more courts will see more and more use of California UCL decisional law to buttress their own rulings. Over time, as more and more courts adopt UCL-based tests and analyses, the overall legal landscape will slowly but surely develop greater uniformity and predictability, just like what California courts have done over the last several decades.
It remains to be seen whether any of these influences will catch on outside the state and federal court systems.