CRITICAL COMPARATIVE LAW Considering Paradoxes for Legal Systems in Transition Esin orucu Readers are reminded that this work is protected by copyright While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Contents 1. Shifting horizons Old and new 1.2 Comparative law: Facing new trends 1. 2. 1 Comparative law: Legal theory and jurisprudence 1.2.2 Comparative law: Legal history 1.2.3C 1. 2. 4 Comparative law: Economics 1. 2. 5 Critical comparative law: A different name or a different approach? 1.3 The link: Reciprocal influences 2. Convergence versus divergence: Must it be either-or? 2. 1 The two approaches: Are they mutually exclusive? 2.2 Harmonisation or harmony? 3. Paradoxes for recipients: Modernisation and borrowing 3. 1 Pool of models and possible mismatch: Which model? Which recipient? 3. 2 The first paradox: Similarity and difference 3.2. 2 The value of the different 3.3 The second paradox: Can the mismatch be corrected? 3. The third paradox: Contemporary character of import/export 4. Intermezzo: The test bed 5. The case of Engli inated irritated or corrected 5.1 Past encounters abroad 5.2 The Privy Council: Unity through diversity? 5.3 Encounters at home 5. 4 Present-day encounters 5. 4. 1 Convergence: Concepts 5.4.2 Convergence Statutory interpretation 5.4.3.1 Introduction 5.4.3.2 The Law Commission
CRITICAL COMPARATIVE LAW Considering Paradoxes for Legal Systems in Transition Esin Örücü Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Contents 1. Shifting horizons: Old and new 1.1 Comparative law: An old question 1.2 Comparative law: Facing new trends 1.2.1 Comparative law: Legal theory and jurisprudence 1.2.2 Comparative law: Legal history 1.2.3 Comparative law: Culture 1.2.4 Comparative law: Economics 1.2.5 Critical comparative law: A different name or a different approach? 1.3 The link: Reciprocal influences 2. Convergence versus divergence: Must it be either-or? 2.1 The two approaches: Are they mutually exclusive? 2.2 Harmonisation or harmony? 3. Paradoxes for recipients: Modernisation and borrowing 3.1 Pool of models and possible mismatch: Which model? Which recipient? 3.2 The first paradox: Similarity and difference 3.2.1 Which to stress? 3.2.2 The value of the different 3.3 The second paradox: Can the mismatch be corrected? 3.4 The third paradox: Contemporary character of import/export 4. Intermezzo: The test bed 5. The case of English common law: Contaminated, irritated or corrected? 5.1 Past encounters abroad 5.2 The Privy Council: Unity through diversity? 5.3 Encounters at home 5.4 Present-day encounters 5.4.1 Convergence: Concepts 5.4.2 Convergence: Statutory interpretation 5.4.3 Convergence: Codification 5.4.3.1 Introduction 5.4.3.2 The Law Commission
5.4.3. 3 Commercial Code 5.4.3.4 Criminal Code 5.4.3.5 Contract Code 5.4.3.6 Coexistence of common law and civil law in Cod 5.4.3.7 European Codes in the common law context 5.5 Civil law and common law Contaminants irritants or correctives? 6. The case of Turkey: A hyphenated legal system? 6. 1 The formation 6. 1. 1 Turkish import and the eu 6. 1.2 Internal implications 6. 1.2. 1 Examples of adjustment: Legislative 6. 1.2.2 Examples of adjustment: Judicial 6.2 The development 6.3 The experience: Hyphenated legal system 6.3. 1 Mode One: Swiss-Turkish law 6.3. 11 In developing principles 6.3. 1.2 In the unification of precedents 6.3. 1.3 In dissenting opinions 6.3.2 Mode One: Turkish-Other ' source laws' 6.3.2.1 Italian-Turkish and German-Turkish law 6.3.2.2 French-Turkish law 6.4 Assessment 7. The case of Central and Eastern Europe: Choice, chance or necessity? 7. I Systems in transition 7.2 Legal tra 7.3 The elements of the present experience 7.3.1 Form and content 7.3.3 Prestige and efficiency 7.3.5 Choice 7.3.6 Culture structure and substance 7. 4 Models 7.5 Assessment 8. Can comparative legal studies offer the panacea? Where do we go from here? 1. Shifting horizons: Old and new 1. 1 Comparative law: An old question
5.4.3.3 Commercial Code 5.4.3.4 Criminal Code 5.4.3.5 Contract Code 5.4.3.6 Coexistence of common law and civil law in Codes 5.4.3.7 European Codes in the common law context 5.5 Civil law and common law: Contaminants, irritants or correctives? 6. The case of Turkey: A hyphenated legal system? 6.1 The formation 6.1.1 Turkish import and the EU 6.1.2 Internal implications 6.1.2.1 Examples of adjustment: Legislative 6.1.2.2 Examples of adjustment: Judicial 6.2 The development 6.3 The experience: Hyphenated legal system 6.3.1 Mode One: Swiss-Turkish law 6.3.1.1 In developing principles 6.3.1.2 In the unification of precedents 6.3.1.3 In dissenting opinions 6.3.2 Mode One: Turkish-Other 'source laws' 6.3.2.1 Italian-Turkish and German-Turkish law 6.3.2.2 French-Turkish law 6.3.3 Mode Two: Layered and hyphenated existence 6.4 Assessment 7. The case of Central and Eastern Europe: Choice, chance or necessity? 7.1 Systems in transition 7.2 Legal transpositions 7.3 The elements of the present experience 7.3.1 Form and content 7.3.2 Chance 7.3.3 Prestige and efficiency 7.3.4 Elites 7.3.5 Choice 7.3.6 Culture, structure and substance 7.4 Models 7.5 Assessment 8. Can comparative legal studies offer the panacea? Where do we go from here? Notes 1. Shifting horizons: Old and new 1.1 Comparative law: An old question
Modern, systematic comparative law is a child of the nineteenth century and an adolescent of the twentieth. During this period, beyond giving the comparative lawyer a ' free rein and being arded as 'interesting law has provided a seemingly uner comparatists and others to discuss its true meaning, historical development, dangers, virtues, scope, functions, aims and purposes, uses and misuses, and method, and this even after comparative law been accepted as part of the undergraduate curriculum in most sorry state of affairs. Comparative law is, dare I say it, still in a sorry state in 1999, in spite of being regarded now as indispensable and the fact that the next century may become the era of comparative law, (3)the time of its majority. Let alone having a decisive definition of what comparative law and comparative method is today, it seems still open to discussion whether this is indeed an independent discipline at all. (4)Comparatists have already been called upon to rethink their subject. (5)It is even suggested that the comparative method may have more of a future by penetrating other subjects than by trying to assert its own continued independence under the unconvincing title of comparative law. (6) This kind of desperate view may have arisen partly from a circular and rather vague definition given by two of the most established comparatists of our time: '[T]he words suggest an intellectual activity with law as its object and comparison as its process. (7)We well know that there is no fundamental agreement even on 'what law is. (8) Might one go so far as to say that, if historical accidents' such as the following had not taken place there would have been no need for comparative lawyers? 'If the legal learning of the Roman Empire had not been lost in the barbarian invasions. ' If in England there had been no Norman Napoleon had not been interested in codification ., If Roman Law had not been rediscovered in the twelfth century .. If in every country legal science had not been nationalised in the sense of being nationally isolated. 'If Algeria had not been colonised by the french . . that is, 'If"buts and"ands"were"pots"and"pans". Yet, not only are comparatists here, but there is also a renewed and growing interest in the subject. A survey of law journals over the last ten years reveals that the number of articles on comparative law-and these are not just comparative studies of certain areas of law, but searching, creative and innovative articles looking at comparative law proper- have quadrupled. (9)Ault and Glendon s remark in 1974 that, 'if comparative law did not exist, it would have to have been invented, (10) is even more pertinent today a cursory reading of any well established comparative law textbook will inform the reader of the 1900 Paris Congress and of the aligning of comparatists as methodologists and social scientists, the aims and purposes of comparative law and how it relates to other branches of law When the vast number of works making use of comparative law are read, the following objectives can be noted: academic study; law reform and policy development; a tool for research to reach a universal theory of law, the provision of perspective to students; an aid to international practice of ore research; a gap-fill in law courts, and an aid to world peace. These objectives are sometimes grouped as practical sociological, political or pedagogical. The findings of comparative lawyers can indeed be utilised for any of these objectives. Whether these uses have been fully taken advantage of and whethe the objectives formulated above have been realised should be open for discussion when taking stock of comparative legal studies at the end of the twentieth century. These issues must be studied
Modern, systematic comparative law is a child of the nineteenth century and an adolescent of the twentieth. During this period, beyond giving the comparative lawyer a 'free rein' and being regarded as 'interesting', comparative law has provided a seemingly unending pastime for comparatists and others to discuss its true meaning, historical development, dangers, virtues, scope, functions, aims and purposes, uses and misuses, and method, and this even after comparative law had been accepted as part of the undergraduate curriculum in most universities.(2) This was a sorry state of affairs. Comparative law is, dare I say it, still in a sorry state in 1999, in spite of being regarded now as indispensable and the fact that the next century may become 'the era of comparative law',(3) the time of its majority. Let alone having a decisive definition of what comparative law and comparative method is today, it seems still open to discussion whether this is indeed an independent discipline at all.(4) Comparatists have already been called upon to rethink their subject.(5) It is even suggested that 'the comparative method may have more of a future by penetrating other subjects than by trying to assert its own continued independence under the unconvincing title of comparative law'.(6) This kind of desperate view may have arisen partly from a circular and rather vague definition given by two of the most established comparatists of our time: '[T]he words suggest an intellectual activity with law as its object and comparison as its process.'(7) We well know that there is no fundamental agreement even on 'what law is'.(8) Might one go so far as to say that, if 'historical accidents' such as the following had not taken place, there would have been no need for comparative lawyers? 'If the legal learning of the Roman Empire had not been lost in the barbarian invasions ...', 'If in England there had been no Norman conquest and consequently the centralised courts of the King had not been established ...', 'If Napoleon had not been interested in codification ...', 'If Roman Law had not been rediscovered in the twelfth century ...', 'If in every country legal science had not been nationalised in the sense of being nationally isolated ...', 'If Algeria had not been colonised by the French ...', that is, 'If "buts" and "ands" were "pots" and "pans" ...' Yet, not only are comparatists here, but there is also a renewed and growing interest in the subject. A survey of law journals over the last ten years reveals that the number of articles on comparative law - and these are not just comparative studies of certain areas of law, but searching, creative and innovative articles looking at comparative law proper - have quadrupled.(9) Ault and Glendon's remark in 1974 that, 'if comparative law did not exist, it would have to have been invented',(10) is even more pertinent today. A cursory reading of any well established comparative law textbook will inform the reader of the 1900 Paris Congress and of the aligning of comparatists as methodologists and social scientists, the aims and purposes of comparative law and how it relates to other branches of law. When the vast number of works making use of comparative law are read, the following objectives can be noted: academic study; law reform and policy development; a tool for research to reach a universal theory of law; the provision of perspective to students; an aid to international practice of the law; international unification and harmonisation - common core research; a gap-filling device in law courts; and an aid to world peace. These objectives are sometimes grouped as practical, sociological, political or pedagogical. The findings of comparative lawyers can indeed be utilised for any of these objectives. Whether these uses have been fully taken advantage of and whether the objectives formulated above have been realised should be open for discussion when taking stock of comparative legal studies at the end of the twentieth century. These issues must be studied
and assessed before we move into a ' new century for comparative law. (11)However urgent this may be, it is not the aim of the present study. Neither is it the main concern of the present study to question whether the above are the prime objectives of comparative law. One might, for example prefer to understand the prime function of comparative law to be the provision of wider access to legal knowledge, to further universal knowledge and understanding of the phenomena of law, (12) and regard comparative law primarily as the critical extraction of this legal knowledge from individual instances In earlier years comparative law was categorised as descriptive, applied, 'abstract or speculative Other categorisations in comparative law are also well known: internal/external descriptive/dogmatic/applied/contrasting; legislative/scholarly/scientific or theoretical formal/dogmatic/historical; comparative nomoscopy/nomothetics/nomogenetics; and, macro comparison/micro comparison. Towards the end of the twentieth century, however, a number of distinct approaches to comparative law have become prominent and have gained dominance over the others. On the one hand these approaches may enhance the prospects of comparative law, on the other, they could swallow it and change its character 1. 2 Comparative law. Facing new trend There are four such distinct trends worth mentioning in comparative law discourse today comparative law and legal philosophy(comparative jurisprudence); comparative law and legal history(historical comparative law or historico-comparative perspective); comparative law and culture (comparative legal cultures and law and culture studies); and comparative law and economIcs Its advocates claim that only the combination of comparative law and legal philosophy can reach a true understanding of law. The combination of comparative law and legal history is used by the new ius commune seekers and legal transplant scholars. The combination of comparative law and culture, which took the form of ' law and society studies in the 1970s and law and popular culture in the 1980s, now seeks to involve comparative law studies in order to provide a better understanding of multi-culturalism and integration. The comparative law and economics movement, very much in vogue to day, endeavours to set up competing legal systems as an alternative to harmonisation and codification to find the most efficient solutions to global problems 1. 2. 1 Comparative law: Legal theory and jurisprudence The first of these trends was initially the outcome of the search for a true meaning for comparative law attempting to establish comparative law not only as a discipline in itself, but also as just another term for sophisticated legal analysis (13)As 'a local or national science of law is a contradiction in adjecto, (14)Yntema, who equated legal research to comparative law, said in 1952 in this sense comparative law is another name for legal science (15)This is a negation of a national legal science. Thus far this trend is perfectly satisfactory. More recent comparative law literature, however, reflects a wish for a different combination. In his article 'Comparative Law
and assessed before we move into a 'new century for comparative law'.(11) However urgent this may be, it is not the aim of the present study. Neither is it the main concern of the present study to question whether the above are the prime objectives of comparative law. One might, for example, prefer to understand the prime function of comparative law to be the provision of wider access to legal knowledge, to further universal knowledge and understanding of the phenomena of law,(12) and regard comparative law primarily as the critical extraction of this legal knowledge from individual instances. In earlier years comparative law was categorised as 'descriptive', 'applied', 'abstract or speculative'. Other categorisations in comparative law are also well known: internal/external; descriptive/dogmatic/applied/contrasting; legislative/scholarly/scientific or theoretical; formal/dogmatic/historical; comparative nomoscopy/nomothetics/nomogenetics; and, macro comparison/micro comparison. Towards the end of the twentieth century, however, a number of distinct approaches to comparative law have become prominent and have gained dominance over the others. On the one hand, these approaches may enhance the prospects of comparative law, on the other, they could swallow it and change its character. 1.2 Comparative law: Facing new trends There are four such distinct trends worth mentioning in comparative law discourse today: comparative law and legal philosophy (comparative jurisprudence); comparative law and legal history (historical comparative law or historico-comparative perspective); comparative law and culture (comparative legal cultures and law and culture studies); and comparative law and economics. Its advocates claim that only the combination of comparative law and legal philosophy can reach a true understanding of law. The combination of comparative law and legal history is used by the 'new ius commune' seekers and legal transplant scholars. The combination of comparative law and culture, which took the form of 'law and society studies' in the 1970s and 'law and popular culture' in the 1980s, now seeks to involve comparative law studies in order to provide a better understanding of multi-culturalism and integration. The comparative law and economics movement, very much in vogue to day, endeavours to set up competing legal systems as an alternative to harmonisation and codification to find the most efficient solutions to global problems. 1.2.1 Comparative law: Legal theory and jurisprudence The first of these trends was initially the outcome of the search for a true meaning for comparative law attempting to establish comparative law not only as a discipline in itself, but also as 'just another term for sophisticated legal analysis'.(13) As 'a local or national science of law is a contradiction in adjecto',(14) Yntema, who equated legal research to comparative law, said in 1952, 'in this sense comparative law is another name for legal science'.(15) This is a negation of a national legal science. Thus far this trend is perfectly satisfactory. More recent comparative law literature , however, reflects a wish for a different combination. In his article 'Comparative Law
and Jurisprudence, Samuel points out that the 'anti-theory or common sense view can 'lead to the view that comparative law is nothing more or less than a methodology, (16)and therefore suggests that comparative law should provide the opportunity to study the internal structures of legal knowledge (17) He would like to see comparative law contributing to jurisprudence by helping to construct a range of different"ontological"models through the institutional deconstruction and reconstruction, of case law and doctrinal analysis from a range of different legal systems. (18)So here the legal theorist wants to employ the services of comparative law for legal theory, since comparative law ' can go far in testing each system's construction of its perceived social reality. (19) Others also have seen a unity between general jurisprudence and comparative law. The unity of general jurisprudence and comparative law consists in the unity of form and content; they are essential moments of legal knowledge, different sides of the same coin. General jurisprudence without comparative law is empty and formal; comparative law without general jurisprudence is blind and non-discriminating General jurisprudence with comparative law is real and actual comparative law with general jurisprudence is selective and clear sighted. (20)Here we are told that the jurist should approach comparative law by way of legal theory and legal theory by way of comparative law. Yet, in the standard textbooks of Jurisprudence or Legal Theory, (2 1)there is no section marked Comparative Jurisprudence, though, for example, Schlesinger(22)and Monateri(23)use this term expressly According to Ewald, traditional comparative law has failed by paying insufficient attention to context and ignoring the context of ideas. (24)'Comparative law, properly pursued, is an essentially philosophical activity (25) Ewald then talks of comparative jurisprudence. After admitting that there is as yet no precise definition of ' comparative jurisprudence he gives a tentative definition as the comparative study of the intellectual conceptions that underline the principal institutions of one or more foreign legal systems. He then states that comparative jurisprudence can make two sorts of contributions to legal philosophy. It first, raises abstract and intrinsically philosophical questions of method and second, 'supplies substantive information about law in foreign countries that can itself be of philosophical interest (26) Not only should comparative law be renamed 'comparative jurisprudence, (27) but it should become the handmaid of philosophy. This view should worry comparative lawyers considerably I do not agree with Samuel(28)when he attributes to Sacco the view that the need to justify comparison in law by an appeal to its practical use can. verge on the ridiculous. Sacco says, ' the use to which scientific ideas are put affects neither their definition of a science nor the validity of however. it do should actually have no practical use. The reason why those who compare legal systems are al ways asked about the purpose of such comparisons, ( 30) is not because comparative law has to justify its existence by its uses, but because the inquirers are of the common sense or ' utilitarian ilk. We as comparatists should blame ourselves if we are still at the level of seeking a justification for our subject and do not have a once-and-for-all answer to give. However, we must also consider that this may reflect on the subject we are professing. The involvement of scholars from other fields in claiming comparative law for their own use may very well strengthen suspicions that
and Jurisprudence', Samuel points out that the 'anti-theory or common sense view' can 'lead to the view that comparative law is nothing more or less than a methodology',(16) and therefore suggests that 'comparative law should provide the opportunity to study the internal structures of legal knowledge'.(17) He would like to see comparative law contributing to jurisprudence by helping to 'construct a range of different "ontological" models through the institutional deconstruction and reconstruction, of case law and doctrinal analysis from a range of different legal systems'.(18) So here the legal theorist wants to employ the services of comparative law for legal theory, since comparative law 'can go far in testing each system's construction of its perceived social reality'.(19) Others also have seen a unity between general jurisprudence and comparative law. 'The unity of general jurisprudence and comparative law consists in the unity of form and content; they are essential moments of legal knowledge, different sides of the same coin. General jurisprudence without comparative law is empty and formal; comparative law without general jurisprudence is blind and non-discriminating. General jurisprudence with comparative law is real and actual; comparative law with general jurisprudence is selective and clear sighted.'(20) Here we are told that the jurist should approach comparative law by way of legal theory and legal theory by way of comparative law. Yet, in the standard textbooks of Jurisprudence or Legal Theory,(21) there is no section marked 'Comparative Jurisprudence', though, for example, Schlesinger(22) and Monateri(23) use this term expressly. According to Ewald, traditional comparative law has failed by paying insufficient attention to context and ignoring the context of ideas.(24) 'Comparative law, properly pursued, is an essentially philosophical activity.'(25) Ewald then talks of 'comparative jurisprudence'. After admitting that there is as yet no precise definition of 'comparative jurisprudence' he gives a tentative definition as 'the comparative study of the intellectual conceptions that underline the principal institutions of one or more foreign legal systems'. He then states that comparative jurisprudence can make two sorts of contributions to legal philosophy. It first, 'raises abstract and intrinsically philosophical questions of method' and second, 'supplies substantive information about law in foreign countries that can itself be of philosophical interest'.(26) Not only should comparative law be renamed 'comparative jurisprudence',(27) but it should become the handmaid of philosophy. This view should worry comparative lawyers considerably. I do not agree with Samuel(28) when he attributes to Sacco the view that 'the need to justify comparison in law by an appeal to its practical use can ... verge on the ridiculous'. Sacco says, 'the use to which scientific ideas are put affects neither their definition of a science nor the validity of its conclusions'.(29) This is absolutely true; however, it does not mean that comparative law should actually have no practical use. The reason why 'those who compare legal systems are always asked about the purpose of such comparisons',(30) is not because comparative law has to justify its existence by its uses, but because the inquirers are of the 'common sense' or 'utilitarian' ilk. We as comparatists should blame ourselves if we are still at the level of seeking a justification for our subject and do not have a once-and-for-all answer to give. However, we must also consider that this may reflect on the subject we are professing. The involvement of scholars from other fields in claiming comparative law for their own use may very well strengthen suspicions that
comparative law is not an independent subject When Sacco says, like sciences,comparative law remains a science as long as it acquires knowledge and reg whether or not the knowledge is put to any further use, (31) this cannot be taken to mean that the knowledge gained should not be put to any use. If comparative law ' presupposes the existence of a plurality of legal rules and institutions, .and studies them in order to establish to what extent they are identical or different (32)then, there is no restriction on what is to be done with the knowledge gained on similarities and differences. In fact, this is the moment when the whole enterprise starts to get exciting The initial thesis of the Trento group is to be fully endorsed: 'Comparative law, understood as a science, necessarily aims at the better understanding of legal data Ulterior tasks such as the improvement of law or interpretation are worthy of the greatest consideration but nevertheless are only secondary ends of comparative research. '(33)The present writers inaugural speech at Erasmus Univer sity Rotterdam was entitled Symbiosis between Comparative Law and Theory of Law, (34)but it did not deny at any point the uses to which the knowledge gained by comparative legal research can be put. To regard comparative law as intertwined with legal theory or jurisprudence is one thing, to utilise comparative legal research exclusively to test theories and see it simply as a helping hand to legal theory is another; because in that second sense, comparative law is still not a subject in itself. Ironically therefore, this approach which culminates in the school ofcomparative jurisprudence not in any way different to the other three trends mentioned above and to be seen below, as in them, it is the legal historians, economists and anthropologists and sociologists rather than the legal theorists who are looking for a marriage between their discipline and comparative law to avail themsel ves of the body of information and insight provided by comparative legal studies (35) Between the last three trends, however, there is a further similarity, an underlying belief that systems reciprocally influence and cross-fertilise each other. 1. 2.2 Comparative law: Legal hist egal historians are looking at past legal transplants or transfrontier mobility of ideas and institutions, both in an effort to offer an understanding of and an explanation for, the development of the law and to help justify future legal development utilising law reform through the use of foreign models and, in the context of Europe, to rediscover a ius commune, old or new. However Ibbetson points to what he calls the 'real difficulties of comparative legal historians (36) He notes, in reply to Zimmermann and as an anti- ius commune stat in an ideal world, of course, comparative legal historians, if they were to do their job properly, would gain expertise in the histories of the different legal systems about which they are writing and examine the primary sources for themselves; but the world may not be ideal. This, in its turn, carries the risk that the comparative legal historian will succumb to the pressure to pick and choose those histories of foreign systems which either look most familiar or best fit in a preconceived notion of the relationship between different systems. It is a pressure which has to be resisted, unless we are completely to subvert Savigny s enterprise (37) Sacco talks of comparative perspective as historical par excellence, and says ' comparison is a
comparative law is not an independent subject. When Sacco says, 'like other sciences, comparative law remains a science as long as it acquires knowledge and regardless of whether or not the knowledge is put to any further use',(31) this cannot be taken to mean that the knowledge gained should not be put to any use. If comparative law 'presupposes the existence of a plurality of legal rules and institutions, ... and studies them in order to establish to what extent they are identical or different',(32) then, there is no restriction on what is to be done with the knowledge gained on similarities and differences. In fact, this is the moment when the whole enterprise starts to get exciting. The initial thesis of the Trento group is to be fully endorsed: 'Comparative law, understood as a science, necessarily aims at the better understanding of legal data. Ulterior tasks such as the improvement of law or interpretation are worthy of the greatest consideration but nevertheless are only secondary ends of comparative research.'(33) The present writer's inaugural speech at Erasmus University Rotterdam was entitled 'Symbiosis between Comparative Law and Theory of Law',(34) but it did not deny at any point the uses to which the knowledge gained by comparative legal research can be put. To regard comparative law as intertwined with legal theory or jurisprudence is one thing, to utilise comparative legal research exclusively to test theories and see it simply as a helping hand to legal theory is another; because in that second sense, comparative law is still not a subject in itself. Ironically therefore, this approach which culminates in the school of 'comparative jurisprudence' is not in any way different to the other three trends mentioned above and to be seen below, as in them, it is the legal historians, economists and anthropologists and sociologists rather than the legal theorists who are looking for a marriage between their discipline and comparative law to avail themselves of the body of information and insight provided by comparative legal studies.(35) Between the last three trends, however, there is a further similarity, an underlying belief that systems reciprocally influence and cross-fertilise each other. 1.2.2 Comparative law: Legal history Legal historians are looking at past legal transplants or transfrontier mobility of ideas and institutions, both in an effort to offer an understanding of and an explanation for, the development of the law and to help justify future legal development utilising law reform through the use of foreign models and, in the context of Europe, to rediscover a ius commune, old or new. However, Ibbetson points to what he calls the 'real difficulties of comparative legal historians'.(36) He notes, in reply to Zimmermann and as an anti-ius commune statement, that: ... in an ideal world, of course, comparative legal historians, if they were to do their job properly, would gain expertise in the histories of the different legal systems about which they are writing and examine the primary sources for themselves; but the world may not be ideal. This, in its turn, carries the risk that the comparative legal historian will succumb to the pressure to pick and choose those histories of foreign systems which either look most familiar or best fit in a preconceived notion of the relationship between different systems. It is a pressure which has to be resisted, unless we are completely to subvert Savigny's enterprise.(37) Sacco talks of comparative perspective as 'historical par excellence', and says 'comparison is a
historical science concerned with what is real (38) The third thesis of the Trento Manifesto Comparison turns its attention to various phenomena of legal life operating in the past or the present, considers legal prepositions as historical facts including those formulated by legislators, judges and scholars, and so verifies what genuinely occurred In this sense, comparative law is an historical science. (39)According to Sacco, '[]omparative law examines the way in which legal institutions are connected, diversified and transplanted from one country to another (40) Comparative law not only enables one to know domestic law better but to check hypotheses formulated in the sociological analysis of law. Comparative law thus becomes a go-between [between] legal scholarship and history, and between legal scholarship and general theory of law:(41) 1.2.3 Comparative law: Culture Anthropologists and sociologists are querying the kinds of complexities and problems arising from the mismatch between legal and social cultures which arose in the past and which may arise again from the legal transplants of today. There is growing and impressive literature here It is among scholars interested in culture that we find the majority of the so-called'contrarian challenge supporters. It is they who are most concerned with the clash of cultures surviving under monolithic value systems imposed by legislatures. (42) The role of comparative law in culture studies and the role of culture in comparative law studies is difficult and delicate. The comparative law and cultures' approach emphasises the mismatch of recipients and models. especially in one-way trajectories of mobility of law and the ensuing problems of rejection of transplanted norms, specifically values and standards. The terms layered law and hyphenated law become part of the resultant vocabulary of this approach Comparative law studies point, on the one hand, to the failures and weaknesses of transplants as a means of law reform and modernisation while disregarding socio-cultural diversities, by stressing unsuccessful examples, especially those related to colonial experiences. On the other hand comparative law studies show that legal transplants are the best way of modernisation and do not cause instability in the existing legal or socio-culture, by providing examples of successfu transplants where the recipient, through its own creative modernisation efforts, has used the import to its own overall benefit without alienating the socio-culture. The role of comparative law here appears to be to offer examples and explanations. What is of significance is that research encountered in this field is not always neutral but value laden 1. 2. 4 Comparative law: Economics Economists are trying to establish a blueprint by which systems can choose the most efficient solution from the pool of solutions offered by competing systems. Here there is al so the hope that a new ius commune in European private law can develop through the competition of legal rules and an eventual choice of the most efficient or best rule. (43)Thus the prerequisites for achieving harmony will not be necessarily similarity or regul arity, but difference and diversity
historical science concerned with what is real'.(38) The third thesis of the Trento Manifesto is: 'Comparison turns its attention to various phenomena of legal life operating in the past or the present, considers legal prepositions as historical facts including those formulated by legislators, judges and scholars, and so verifies what genuinely occurred. In this sense, comparative law is an historical science.'(39)According to Sacco, '[c]omparative law examines the way in which legal institutions are connected, diversified and transplanted from one country to another'.(40) 'Comparative law not only enables one to know domestic law better but to check hypotheses formulated in the sociological analysis of law. Comparative law thus becomes a go-between [between] legal scholarship and history, and between legal scholarship and general theory of law.'(41) 1.2.3 Comparative law: Culture Anthropologists and sociologists are querying the kinds of complexities and problems arising from the mismatch between legal and social cultures which arose in the past and which may arise again from the legal transplants of today. There is growing and impressive literature here. It is among scholars interested in culture that we find the majority of the so-called 'contrarian challenge' supporters. It is they who are most concerned with the clash of cultures surviving under monolithic value systems imposed by legislatures.(42) The role of comparative law in culture studies and the role of culture in comparative law studies is difficult and delicate. The 'comparative law and cultures' approach emphasises the mismatch of recipients and models, especially in one-way trajectories of mobility of law and the ensuing problems of rejection of transplanted norms, specifically values and standards. The terms layered law and hyphenated law become part of the resultant vocabulary of this approach. Comparative law studies point, on the one hand, to the failures and weaknesses of transplants as a means of law reform and modernisation while disregarding socio-cultural diversities, by stressing unsuccessful examples, especially those related to colonial experiences. On the other hand, comparative law studies show that legal transplants are the best way of modernisation and do not cause instability in the existing legal or socio-culture, by providing examples of successful transplants where the recipient, through its own creative modernisation efforts, has used the import to its own overall benefit without alienating the socio-culture. The role of comparative law here appears to be to offer examples and explanations. What is of significance is that research encountered in this field is not always neutral but value laden. 1.2.4 Comparative law: Economics Economists are trying to establish a blueprint by which systems can choose the most efficient solution from the pool of solutions offered by competing systems. Here there is also the hope that a new ius commune in European private law can develop through the competition of legal rules and an eventual choice of the most efficient or 'best' rule.(43) Thus the prerequisites for achieving harmony will not be necessarily similarity or regularity, but difference and diversity
The law and economics movement seems to be in the process of establishing an ' intellectual Imperialism, ar ation by law and economics (44)of a number of legal disciplines. Comparative law has become the special prey for this colonist. However, as long as comparative law maintains its distinctiveness and this relationship can move beyond ' colonisation into one of co-partners, then comparative law can only gain in popularity and be seen as indispensable for understanding the role of law in economics and of economics in lay The comparative law and economics approach aims at building a model for an efficient legal institution and then comparing it with the actual world alternatives offered by different legal systems. It becomes important here to be able to offer explanations for the reasons and the mode of the departure (45) 1. 2. 5 Critical comparative law: A different name or a new approach? I suggest that under the title Critical Comparative Law the comparative lawyer understands comparative law to be a subject in its own right, as the only reliable way of accumulating knowledge of the reality of law and then assesses the problems that may arise out of the proposed marriages discussed above, giving warning signals where need be. So with the knowledge gained the task is to analyse fully the underlying phenomena that the three last trends are addressing, the ansfrontier mobility of ideas and institutions and reciprocal influences. Most of the current concerns of comparatists on convergence versus divergence, mismatch in borrowings, problems for the importer and the exporter of legal ideas and institutions can be constructively approached under the name Critical Comparative Law. This title can also be regarded as the antithesis to the term traditional comparative law (46)or conventional comparative law. (47)However, this choice of terminology is in no way to be construed to mean that Critical Comparative Law is a branch of the Critical Legal Studies movement Today, comparative law in Europe is first and foremost used within the European Union and is involved in giving rise to inter-European consequences. The first task it is put to in Europe is in the 'new ius commune studies where it is asked to facilitate integration and make a case for the success of legal transplants as the basis for convergence, whether supported or not by the law and economics school,. Its second task is to find ways of reconciling civil law and common law. The third and related task given to comparative legal studies concerns the creation of European Codes A fourth and more general task is to act as a tool for construction in the courts, national and European In its relations with the extra-European scene Europe is interested in the function of comparative law in the export of legal ideas and institutions and aiding law reform by providing a convincing display of competing models to form a pool of models presented by Western European legal systems When looking at comparative law solely in the common law world, we see the same four trend mentioned above. The tasks comparative law is put to also resemble the ones we considered above However, five further points must be mentioned here. One is the competition of the US with
The law and economics movement seems to be in the process of establishing an 'intellectual imperialism', and we see a 'colonisation by law and economics'(44) of a number of legal disciplines. Comparative law has become the special prey for this colonist. However, as long as comparative law maintains its distinctiveness and this relationship can move beyond 'colonisation' into one of co-partners, then comparative law can only gain in popularity and be seen as indispensable for understanding the role of law in economics and of economics in law. The comparative law and economics approach aims at building a model for an efficient legal institution and then comparing it with the actual world alternatives offered by different legal systems. It becomes important here to be able to offer explanations for the reasons and the mode of the departure.(45) 1.2.5 Critical comparative law: A different name or a new approach? I suggest that under the title 'Critical Comparative Law' the comparative lawyer understands comparative law to be a subject in its own right, as the only reliable way of accumulating knowledge of the reality of law and then assesses the problems that may arise out of the proposed marriages discussed above, giving warning signals where need be. So with the knowledge gained, the task is to analyse fully the underlying phenomena that the three last trends are addressing, the transfrontier mobility of ideas and institutions and reciprocal influences. Most of the current concerns of comparatists on convergence versus divergence, mismatch in borrowings, problems for the importer and the exporter of legal ideas and institutions can be constructively approached under the name 'Critical Comparative Law'. This title can also be regarded as the antithesis to the term 'traditional comparative law'(46) or 'conventional comparative law'.(47) However, this choice of terminology is in no way to be construed to mean that 'Critical Comparative Law' is a branch of the Critical Legal Studies movement. Today, comparative law in Europe is first and foremost used within the European Union and is involved in giving rise to inter-European consequences. The first task it is put to in Europe is in the 'new ius commune' studies where it is asked to facilitate integration and make a case for the success of legal transplants as the basis for convergence, whether supported or not by the 'law and economics school'. Its second task is to find ways of reconciling civil law and common law. The third and related task given to comparative legal studies concerns the creation of European Codes. A fourth and more general task is to act as a tool for construction in the courts, national and European. In its relations with the extra-European scene Europe is interested in the function of comparative law in the export of legal ideas and institutions and aiding law reform by providing a convincing display of competing models to form a pool of models presented by Western European legal systems. When looking at comparative law solely in the common law world, we see the same four trends mentioned above. The tasks comparative law is put to also resemble the ones we considered above. However, five further points must be mentioned here. One is the competition of the US with
European systems to sell her legal export in preference to any European model, especially in Central and Eastern European States. Another is the changing attitude of the Privy Council in Britain to legal systems and legal cultures in the Commonwealth and the unity of the common law. The third is a strong desire to keep English law intact within the eu by stressing the view that legal systems of our day should remain flexible and realistic and, therefore, uncodified. Accepting a degree of adjustment is one thing but accepting European Codes, based predominantly on civilian concepts and legal science, is another. The fourth point is the renewed interest in research and teaching in comparative common law. Finally, and specifically in the USA, there is additional concern that comparative law has grown in the shadow of Europe and that it must develop its own agenda if it is to be taken seriously. (48)We will be looking at some of these in more detail in the section on The Case of English Common Law below. At the end of one century, poised to enter the next, comparative law must take stock of some of the most important problematic issues that arise from the above picture. The shifting and changing horizons for comparative law must be analysed through a critical stance. The problems cannot be exhaustive. Nevertheless some are more pressing than others. In this study entitled 'Critical Comparative Law, the most important role and purpose of comparative law for our day and the next century with some of the ensuing problems will be discussed The comparative law enterprise in the twenty-first century will be paying more attention to general public, private and criminal comparative law as well as comparative law in the eu, comparative aw in in the far east an future of comparative law will be tied theoretically and practically to an enhanced legal science convergence and integration as well as an appreciation of diversity, the use of foreign models in law reform and law and culture studies. The trends we see developing will continue to centre around the role for comparative law as a means of theory testing: new approaches to harmonisation; new receptions, mixed and mixing systems and redesigning systems, a new European ius commune; redefining legal culture; and an emphasis on regional comparative law such as European, Central and Eastern European, common law, African and Far Eastern. Many concepts and institutions are already being looked at through the spectacles of critical comparatists Some of the recent doctoral theses display this development. (49) Comparative law will also become even more important as an indispensable tool of construction for the European Court of Justice of the Communities and for national courts and law reform 1.3 The link: Reciprocal influences In all this however, reciprocal influences, even though not necessarily direct legal transplants, will dominate the twenty-first century as already alluded to above. These reciprocal influences have to be examined in ways other than those of the past, where the main emphasis has been on historical transplants Today, the emphasis, the consequences of these movements and the means are different. The most
European systems to sell her legal export in preference to any European model, especially in Central and Eastern European States. Another is the changing attitude of the Privy Council in Britain to legal systems and legal cultures in the Commonwealth and the unity of the common law. The third is a strong desire to keep English law intact within the EU by stressing the view that legal systems of our day should remain flexible and realistic and, therefore, uncodified. Accepting a degree of adjustment is one thing, but accepting European Codes, based predominantly on civilian concepts and legal science, is another. The fourth point is the renewed interest in research and teaching in comparative common law. Finally, and specifically in the USA, there is additional concern that comparative law has grown in the shadow of Europe and that it must develop its own agenda if it is to be taken seriously.(48) We will be looking at some of these in more detail in the section on 'The Case of English Common Law' below. At the end of one century, poised to enter the next, comparative law must take stock of some of the most important problematic issues that arise from the above picture. The shifting and changing horizons for comparative law must be analysed through a critical stance. The problems cannot be exhaustive. Nevertheless some are more pressing than others. In this study entitled 'Critical Comparative Law', the most important role and purpose of comparative law for our day and the next century with some of the ensuing problems will be discussed. The comparative law enterprise in the twenty-first century will be paying more attention to general, public, private and criminal comparative law as well as comparative law in the EU, comparative law in the common law world, comparative law in the Far East and reciprocal influences. The future of comparative law will be tied theoretically and practically to an enhanced legal science, convergence and integration as well as an appreciation of diversity, the use of foreign models in law reform and law and culture studies. The trends we see developing will continue to centre around the role for comparative law as a means of theory testing; new approaches to harmonisation; new receptions, mixed and mixing systems and redesigning systems; a new European ius commune; redefining legal culture; and an emphasis on regional comparative law such as European, Central and Eastern European, common law, African and Far Eastern. Many concepts and institutions are already being looked at through the spectacles of critical comparatists. Some of the recent doctoral theses display this development.(49) Comparative law will also become even more important as an indispensable tool of construction for the European Court of Justice of the Communities and for national courts and law reform bodies. 1.3 The link: Reciprocal influences In all this, however, reciprocal influences, even though not necessarily direct legal transplants, will dominate the twenty-first century as already alluded to above. These reciprocal influences have to be examined in ways other than those of the past, where the main emphasis has been on historical transplants. Today, the emphasis, the consequences of these movements and the means are different. The most
prominent ' reciprocal influence'today is that which is taking place within the EU. The transplants from the Western legal traditions to the Eastern and Central European legal systems are of equal importance to comparative law scholars. The emphasis, therefore, is on the present and the future The consequences are the birth of systems in transition and mixing systems, the blurring of the demarcation lines between the generally accepted classifications of legal families and the emergence of new clashes between legal cultures themselves or legal cultures and socio-cultures The means are apparently voluntary reception rather than colonisation and imposition, though, of course, imposed receptions are more prominent in some instances, and in the case of Central and Eastern European legal systems, the term 'collective colonisation by the EU is used. Nevertheless, there are distinct differences in the character of the new movements some of these issues will be touched upon in the three 'Cases to be looked at below. As Sacco claims, original innovation in law is very small and borrowing and imitation is of central importance in understanding the course of legal change. (50) Teubner, however, claims that the transplant theory needs some conceptual refinement Apart from challenging the convergence theses and functional equivalence, Teubner does not go down the path followed by Legrand that legal transplants are impossible (51)Neither is he supportive of Watson (52)Instead, he claims that the conceptual refinement needed would allow us to analyse institutional transfer in terms different from the simple alternative context versus autonomy, (53) Teubner puts forward four laws contemporary ties to society are no longer comprehensive, but are highly selective and vary from loose coupling to tight interwovenness, they are no longer connected to the totality of the social, but to diverse fragments of society; where, formerly, law was tied to society by its identity with it, ties are now established via difference; and, they no longer evolve in a joint historical development but in the conflictual interrelation of two or more independent evolutionary trajectories(54) Allison, on the other hand, is more suspicious of legal transplants and Watson' s suppositions, and points to the need to consider both the present and proposed contexts of a transplant (55)He comes to the conclusion, in relation to English and French law and the public/private law divide that because of the coherence of legal and political system, transplantation is hazardous. (56) Obviously, there are serious dangers in ill-considered transplantations. (57) The terminology used in classical statements of legal transplants such as transplant, reception, imposed reception, solicited imposition, crypto-reception and inoculation(58) have been and a colourful vocabulary has been created highlighting nuances in individual instances of such mobility and influence, such as grafting, implantation, repotting, cross-fertilisation, cross-pollination, engulfment, emulation, infiltration, infusion, digestion, salad bowl, melting pot and transposition, and new notions and bases for analysis are being developed such as collective colonisation, contaminants, legal irritants, layered law, hyphenated law and competition of legal systems. Some of this vocabulary (59) will be used in this study when the occasion arises
prominent 'reciprocal influence' today is that which is taking place within the EU. The transplants from the Western legal traditions to the Eastern and Central European legal systems are of equal importance to comparative law scholars. The emphasis, therefore, is on the present and the future. The consequences are the birth of systems in transition and mixing systems, the blurring of the demarcation lines between the generally accepted classifications of legal families and the emergence of new clashes between legal cultures themselves or legal cultures and socio-cultures. The means are apparently voluntary reception rather than colonisation and imposition, though, of course, imposed receptions are more prominent in some instances, and in the case of Central and Eastern European legal systems, the term 'collective colonisation by the EU' is used. Nevertheless, there are distinct differences in the character of the new movements. Some of these issues will be touched upon in the three 'Cases' to be looked at below. As Sacco claims, original innovation in law is very small and borrowing and imitation is of central importance in understanding the course of legal change.(50) Teubner, however, claims that the transplant theory needs some conceptual refinement. Apart from challenging the 'convergence theses' and 'functional equivalence', Teubner does not go down the path followed by Legrand that 'legal transplants are impossible'.(51) Neither is he supportive of Watson.(52) Instead, he claims that the conceptual refinement needed would 'allow us to analyse institutional transfer in terms different from the simple alternative context versus autonomy'.(53) Teubner puts forward four theses, that: law's contemporary ties to society are no longer comprehensive, but are highly selective and vary from loose coupling to tight interwovenness; they are no longer connected to the totality of the social, but to diverse fragments of society; where, formerly, law was tied to society by its identity with it, ties are now established via difference; and, they no longer evolve in a joint historical development but in the conflictual interrelation of two or more independent evolutionary trajectories.(54) Allison, on the other hand, is more suspicious of legal transplants and Watson's suppositions, and points to the need 'to consider both the present and proposed contexts of a transplant'.(55) He comes to the conclusion, in relation to English and French law and the public/private law divide, that 'because of the coherence of legal and political system, transplantation is hazardous'.(56) Obviously, there are serious dangers in ill-considered transplantations.(57) The terminology used in classical statements of legal transplants such as transplant, reception, imposed reception, solicited imposition, crypto-reception and inoculation(58) have been superseded, and a colourful vocabulary has been created highlighting nuances in individual instances of such mobility and influence, such as grafting, implantation, repotting, cross-fertilisation, cross-pollination, engulfment, emulation, infiltration, infusion, digestion, salad bowl, melting pot and transposition, and new notions and bases for analysis are being developed such as collective colonisation, contaminants, legal irritants, layered law, hyphenated law and competition of legal systems. Some of this vocabulary(59) will be used in this study when the occasion arises
