disc()\ ercd? The answer oi\ cn is that it was the law found elsewhere or among most ci\ ilized nations, what they had in common; and this was preeiseh’ what they all hatl borrowed from Roman and canon law. The most commonb’ found law in e.xisting systems is not necessarib’ the best law. Of course, lawmakers will pay attention, and shoidd pa\ attention, to the most widel\' accepted solutions. But the\’ ought to be \ ery conscious of how these solutions ha\ e come to be so w idely accepted. Ciomparatit e legal history is a necessary tool for responsible legal change in the b.L. A fifth conclusion is that foreign law is not easih’ understood. This is most ob\ ious when a system is renwne in tiiue or place. The problem, though, is at its most insidious when the swstems seem close. As Otto Kahn-Freund has reminded us, the IVench anitrat, doniicilf, tnhn)uil iidmi)iistriitif, notiiin\ prcscriprio)!, wnd jugc df pnix, are not the linglish 'contract,' 'domicile,' 'administratixe tribunal,' '»lotary public,' 'prescription,' and 'justice of the peace."" Indeed, misunderstanding ma\' ha\e grores(]ue consec|uences. Fhus, to return to I Vench tort law. The heading of the relcwant chapter in the code civil is Dcs dc/itxt/r dcs (jiu/si-dclits, 'On delicts and quasi-delicts.' 'The terms do not occur in the articles in the chapter, and we are gi\ en no clue to the meaning of the distinction. 'This is surely grotesque, for IVench law the distinction that 1 siqipose is implied depends primarily on Robert Ptithier." Wv supposition is nothing more: it derixes from the fact that Pothier made such a distinction, and that he was regarded as a major source by the ctmipilers of the code civil. For Pothier, dc/ir was a ci\ il w rong caused intentionally, r/ua.a-dclit a w rong caused negligently. But then there is a further grotesquerie: Pothier's distinction resulted from a failed, but widespread, attempt, to e.xplain the Roman categorizations of delictum and (jiui.si ex delicto. lo 'Comparative Law as an Academic Subject,' 82 Law Quarterly Review(ig66), pp. 4off., at pp. 52f. II Traité des Obligations, 1.1.2.2. 169
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