The Cambridge Handbook of Comparative Law (Cambridge Law Handbooks) 1108843085, 9781108843089
123 32
English Pages 780 [418] Year 2024
01.0_pp_i_ii_The_Cambridge_Handbook_of_Comparative_Law
02.0_pp_iii_iii_The_Cambridge_Handbook_of_Comparative_Law
03.0_pp_iv_iv_Copyright_page
04.0_pp_v_viii_Contents
05.0_pp_ix_x_Figures
06.0_pp_xi_xii_Tables
07.0_pp_xiii_xvi_Contributors
08.0_pp_xvii_xviii_Preface
09.0_pp_xix_xxiv_Abbreviations
10.0_pp_1_12_Introduction
11.0_pp_13_208_Methods_of_Comparative_Law
11.1_pp_15_31_Traditional_Methods
11.2_pp_32_47_Historical-Jurisprudential_Methods
11.3_pp_48_71_Critical_Methods
11.4_pp_72_90_Culture_and_Comparative_Law_Methodology
11.5_pp_91_112_Linguistic_Approaches
11.6_pp_113_132_Qualitative_Fieldwork
11.7_pp_133_156_New_Institutional_Economics
11.8_pp_157_176_Empirical_Methods
11.9_pp_177_208_Machine-Learning_Methods
12.0_pp_209_384_Legal_Families_and_Geographical_Comparisons
12.1_pp_211_234_Civil_Law
12.2_pp_235_255_Common_Law
12.3_pp_256_274_Confucian_Legal_Tradition
12.4_pp_275_301_Former_Soviet_States_of_Eastern_Europe_Caucasus_and_Central_Asia
12.5_pp_302_330_Latin_America
12.6_pp_331_342_Middle_East_and_North_Africa
12.7_pp_343_366_South_Asia
12.8_pp_367_384_Sub-Saharan_Africa
13.0_pp_385_558_Central_Themes_in_Comparative_Law
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Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed ‘the era of comparative law’. It is thus topical to publish this Cambridge Handbook of Comparative Law which seeks to present a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on key topics of comparative law. In total, this handbook contains chapters which are divided under the following main parts: ‘Methods of Comparative Law’ , ‘Legal Families and Geographical Comparisons’, ‘Central Themes in Comparative Law’; and ‘Comparative Law Beyond the State’. is a Professor at the European University Institute (EUI) in Florence, Italy. He previously taught at Durham University, the University of Edinburgh and the Riga Graduate School of Law. He was also a Fulbright Scholar at Harvard Law School and a Jean Monnet Fellow at the EUI. is a Professor at The University of Hong Kong (HKU). He graduated from the National University of Singapore with an LLB degree and he obtained LLM qualifications from both Harvard Law School and University College London. He graduated with a PhD degree from the University of Cambridge.
Published online by Cambridge University Press
Published online by Cambridge University Press
The Cambridge Handbook of Comparative Law Edited by
MATHIAS SIEMS European University Institute, Florence
PO JEN YAP The University of Hong Kong
Published online by Cambridge University Press
Shaftesbury Road, Cambridge , United Kingdom One Liberty Plaza, th Floor, New York, , USA Williamstown Road, Port Melbourne, , Australia –, rd Floor, Plot , Splendor Forum, Jasola District Centre, New Delhi – , India Penang Road, #–/, Visioncrest Commercial, Singapore Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/ : ./ © Cambridge University Press & Assessment This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data : Siems, Mathias, editor. | Yap, Po Jen, editor. : The Cambridge handbook of comparative law / edited by Mathias Siems, European University Institute, Florence; Po Jen Yap, the University of Hong Kong. : Cambridge, United Kingdom ; New York, NY : Cambridge University Press, . | : Hbk Cambridge law handbooks | Includes index. : (print) | (ebook) | (hardback) | (epub) : : Comparative law. : . (print) | (ebook) | /.–dc/eng/ LC record available at https://lccn.loc.gov/ LC ebook record available at https://lccn.loc.gov/ ---- Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
Published online by Cambridge University Press
Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed ‘the era of comparative law’. It is thus topical to publish this Cambridge Handbook of Comparative Law which seeks to present a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on key topics of comparative law. In total, this handbook contains chapters which are divided under the following main parts: ‘Methods of Comparative Law’ , ‘Legal Families and Geographical Comparisons’, ‘Central Themes in Comparative Law’; and ‘Comparative Law Beyond the State’. is a Professor at the European University Institute (EUI) in Florence, Italy. He previously taught at Durham University, the University of Edinburgh and the Riga Graduate School of Law. He was also a Fulbright Scholar at Harvard Law School and a Jean Monnet Fellow at the EUI. is a Professor at The University of Hong Kong (HKU). He graduated from the National University of Singapore with an LLB degree and he obtained LLM qualifications from both Harvard Law School and University College London. He graduated with a PhD degree from the University of Cambridge.
Published online by Cambridge University Press
Published online by Cambridge University Press
The Cambridge Handbook of Comparative Law Edited by
MATHIAS SIEMS European University Institute, Florence
PO JEN YAP The University of Hong Kong
Published online by Cambridge University Press
Shaftesbury Road, Cambridge , United Kingdom One Liberty Plaza, th Floor, New York, , USA Williamstown Road, Port Melbourne, , Australia –, rd Floor, Plot , Splendor Forum, Jasola District Centre, New Delhi – , India Penang Road, #–/, Visioncrest Commercial, Singapore Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/ : ./ © Cambridge University Press & Assessment This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data : Siems, Mathias, editor. | Yap, Po Jen, editor. : The Cambridge handbook of comparative law / edited by Mathias Siems, European University Institute, Florence; Po Jen Yap, the University of Hong Kong. : Cambridge, United Kingdom ; New York, NY : Cambridge University Press, . | : Hbk Cambridge law handbooks | Includes index. : (print) | (ebook) | (hardback) | (epub) : : Comparative law. : . (print) | (ebook) | /.–dc/eng/ LC record available at https://lccn.loc.gov/ LC ebook record available at https://lccn.loc.gov/ ---- Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
Published online by Cambridge University Press
Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed ‘the era of comparative law’. It is thus topical to publish this Cambridge Handbook of Comparative Law which seeks to present a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on key topics of comparative law. In total, this handbook contains chapters which are divided under the following main parts: ‘Methods of Comparative Law’ , ‘Legal Families and Geographical Comparisons’, ‘Central Themes in Comparative Law’; and ‘Comparative Law Beyond the State’. is a Professor at the European University Institute (EUI) in Florence, Italy. He previously taught at Durham University, the University of Edinburgh and the Riga Graduate School of Law. He was also a Fulbright Scholar at Harvard Law School and a Jean Monnet Fellow at the EUI. is a Professor at The University of Hong Kong (HKU). He graduated from the National University of Singapore with an LLB degree and he obtained LLM qualifications from both Harvard Law School and University College London. He graduated with a PhD degree from the University of Cambridge.
Published online by Cambridge University Press
Published online by Cambridge University Press
The Cambridge Handbook of Comparative Law Edited by
MATHIAS SIEMS European University Institute, Florence
PO JEN YAP The University of Hong Kong
Published online by Cambridge University Press
Shaftesbury Road, Cambridge , United Kingdom One Liberty Plaza, th Floor, New York, , USA Williamstown Road, Port Melbourne, , Australia –, rd Floor, Plot , Splendor Forum, Jasola District Centre, New Delhi – , India Penang Road, #–/, Visioncrest Commercial, Singapore Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/ : ./ © Cambridge University Press & Assessment This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data : Siems, Mathias, editor. | Yap, Po Jen, editor. : The Cambridge handbook of comparative law / edited by Mathias Siems, European University Institute, Florence; Po Jen Yap, the University of Hong Kong. : Cambridge, United Kingdom ; New York, NY : Cambridge University Press, . | : Hbk Cambridge law handbooks | Includes index. : (print) | (ebook) | (hardback) | (epub) : : Comparative law. : . (print) | (ebook) | /.–dc/eng/ LC record available at https://lccn.loc.gov/ LC ebook record available at https://lccn.loc.gov/ ---- Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
Published online by Cambridge University Press
Contents
page ix
List of Figures
xi
List of Tables List of Contributors
xiii
Preface
xvii
List of Abbreviations
xix
Introduction: A New Handbook for Comparative Law in a Global Context Mathias Siems and Po Jen Yap
Traditional Methods Jaakko Husa
Historical-Jurisprudential Methods Jean-Louis Halpérin
Critical Methods Thomas Coendet
Culture and Comparative Law Methodology Qian Xiangyang
Linguistic Approaches Łucja Biel
Qualitative Fieldwork Petra Mahy, Richard Mitchell, John Howe, Ingrid Landau and Carolyn Sutherland
New Institutional Economics Olive Sabiiti
v Published online by Cambridge University Press
vi
Contents
Empirical Methods Mathias Siems
Machine-Learning Methods Han-wei Ho, Patrick Chung-Chia Huang and Yun-chien Chang
Civil Law Andrea Ortolani
Common Law Shivprasad Swaminathan
Confucian Legal Tradition Ngoc Son Bui
Former Soviet States of Eastern Europe, Caucasus and Central Asia Andrey Shirvindt
Latin America Isabel Zuloaga and José Manuel Díaz de Valdés
Middle East and North Africa Radwa S. Elsaman
South Asia Rehan Abeyratne
Sub-Saharan Africa Charles Manga Fombad
The Tradition of Comparative Law: Comparison and Its Colonial Legacies Helge Dedek
Decolonial Theory and Comparative Law Roger Merino
Legal Transplants: A Theoretical Framework and a Case Study from Public Law Margit Cohn Legal Transplants: A Case Study of Private Law in Its Historical Context Gerardo Caffera, Rodrigo Momberg and María Elisa Morales
Convergence and Divergence in Public Law Po Jen Yap
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Contents
vii
Convergence and Divergence in Company Law Hatice Kübra Kandemir
Law and Development Yong-Shik Lee and Andrew Harding
Divided Legal Systems: Understanding Legal Systems in Conflict-Prone Societies M. Bashir Mobasher and Haroun Rahimi Legal Pluralism and Commerce Ada Ordor, Nojeem Amodu and Victor Amadi
Comparative International Law Danielle Hanna Rached and Conrado Hubner Mendes
Transnational Regulation Victor V. Ramraj
Quantitative Forms of Legal Governance Rene Urueña
Comparative International Arbitration Law Shahla Ali
Cross-Border Judicial Dialogue Tom Gerald Daly
Comparing Regional Law Armin Cuyvers
Comparative Conflict of Laws Yuko Nishitani
Comparative Indigenous Law Anthony C. Diala
Comparative Legal Education Tan Cheng-Han, Alan Koh, Topo Santoso, Umakanth Varottil and Jiangyu Wang
Index
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Published online by Cambridge University Press
Figures
. . . . . . . . . . . . . . . . . . .
The research process Versions of universalism Heatmap on Gower similarity coefficients Gower dissimilarity coefficient with English property law Results of logistic PCA mMDS results Two-dimension projection by t-SNE UMAP with different values of two hyperparameters Two-dimension projection by UMAP Legal family tree (dendrogram) Results of k-modes Total within-cluster distances under k-modes Decision boundaries under kNN A typology of legal transplants, ordered by de facto sovereignty A typology of legal transplants, ordered by motivations A typology of legal transplants, ordered by outcome Additional legal transplant typologies Legal transplant chronicles: long-term, two-player scenarios Legal transplant chronicles: long-term, multi-player scenarios
ix Published online by Cambridge University Press
page
Published online by Cambridge University Press
Tables
. . . . . . . . . . .
page
Corporate and competition law data Constitutional law data Property and trust law data Civil procedure law data Sources of law-related variables Legal families Overview of methods Four categories of attribute comparison Confusion matrix by kNN with k = Confusion matrix by naïve Bayes Confusion matrix by SVM
xi Published online by Cambridge University Press
Published online by Cambridge University Press
Contributors
Rehan Abeyratne, Professor of Law, Western Sydney University Shahla Ali, Professor and Associate Dean (International) and Deputy Director, Program in Arbitration and Dispute Resolution, Faculty of Law, The University of Hong Kong Victor Amadi, Postdoctoral Researcher Fellow, Centre for Comparative Law in Africa, University of Cape Town Nojeem Amodu, Research Associate, Centre for Comparative Law in Africa, University of Cape Town Łucja Biel, Associate Professor and Head of EUMultiLingua Research Team, University of Warsaw Ngoc Son Bui, Professor of Asian Laws, Faculty of Law, University of Oxford Gerardo Caffera, Professor of Private Law, Faculty of Law of Universidad de la República, Uruguay Yun-chien Chang, Jack G. Clarke Professor of East Asian Law, Cornell Law School Thomas Coendet, Shanghai Distinguished Professor (Oriental Chair), Shanghai Jiao Tong University (SJTU) Margit Cohn, Henry J. and Fannie Harkavy Chair in Comparative Law, Faculty of Law, Hebrew University of Jerusalem Armin Cuyvers, Professor of EU Constitutional Law and Comparative Regional Integration, Leiden Law School, and Director of CompaRe, the Leiden Jean Monnet Centre of Excellence on Comparative Regional Integration Tom Gerald Daly, Associate Professor and Deputy Director, Melbourne School of Government and Director, Democratic Decay & Renewal (DEM-DEC) Helge Dedek, Professor of Law and Wainwright Chair in Civil Law, McGill University Anthony C. Diala, Associate Professor of Global Law and Foundation Director of the Centre for Legal Integration in Africa at the University of the Western Cape, South Africa
xiii Published online by Cambridge University Press
xiv
Contributors
José Manuel Díaz de Valdés, Professor of Constitutional Law, Universidad del Desarrollo and Pontificia Universidad Católica de Chile Radwa S. Elsaman, Professor of Commercial Law, Faculty of Law, Cairo University, and Adjunct Professor, Cornell Law School Charles Manga Fombad, Professor of Law, Director, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, South Africa Jean-Louis Halpérin, Professor, École Normale Supérieure – PSL, Paris Andrew Harding, Visiting Research Professor, National University of Singapore (NUS) Han-wei Ho, Assistant Research Scientist and Chief Executive Officer of Center for Empirical Legal Studies, Institutum Iurisprudentiae, Academia Sinica, Taiwan John Howe, Professor, Melbourne School of Government and Melbourne Law School, University of Melbourne Patrick Chung-Chia Huang, Assistant Professor, College of Law, National Taiwan University Jaakko Husa, Professor in Law and Globalisation, University of Helsinki ˙ Hatice Kübra Kandemir, Assistant Professor, Izmir Katip Çelebi University, Turkey Alan Koh, Assistant Professor, Nanyang Technological University College of Business Ingrid Landau, Senior Lecturer, Department of Business Law and Taxation, Monash University Yong-Shik Lee, Director, and Professorial Fellow Law and Development Institute (LDI) and Adjunct Professor of Law, Cornell University Petra Mahy, Adjunct Senior Lecturer, Department of Business Law and Taxation, Monash University Conrado Hubner Mendes, Assistant Professor, Faculty of Law, University of São Paulo Roger Merino, Associate Professor, Universidad del Pacífico, Lima, Peru Richard Mitchell, Adjunct Professor, Department of Business Law and Taxation, Monash University M. Bashir Mobasher, Postdoctoral fellow, Department of Sociology, American University, Washington, D.C. Rodrigo Momberg, Professor of Private Law, Faculty of Law, Pontificia Universidad Católica de Valparaíso, Chile María Elisa Morales, Associate Professor of Private Law, Faculty of Law and Social Sciences, Universidad Austral de Chile Yuko Nishitani, Professor of International Private and Business Law, Kyoto University Ada Ordor, Professor and Director, Centre for Comparative Law in Africa, University of Cape Town Andrea Ortolani, Associate Professor, University of Tsukuba, Japan
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Contributors
xv
Qian Xiangyang, Associate Professor, Sichuan University Danielle Hanna Rached, Assistant Professor, Institute of International Relations, University of São Paulo Haroun Rahimi, Associate Professor of Law, American University of Afghanistan Victor V. Ramraj, Professor of Law, Chair in Asia-Pacific Legal Relations, and Director, Centre for Asia-Pacific Initiatives, University of Victoria, Canada Olive Sabiiti, Professor, Cavendish University Uganda Andrey Shirvindt, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Hamburg Topo Santoso, Professor, University of Indonesia Mathias Siems, Professor of Private Law and Market Regulation, European University Institute, Florence Carolyn Sutherland, Professor, Department of Business Law and Taxation, Monash University Shivprasad Swaminathan, Professor and Dean, Shiv Nadar Law School, Shiv Nadar University, Chennai, India Tan Cheng-Han, Professor, National University of Singapore Rene Urueña, Associate Professor, Universidad de Los Andes School of Law, Colombia, and Visiting Professor, University of Lapland Law School, Finland Umakanth Varottil, Associate Professor, National University of Singapore Jiangyu Wang, Professor, City University of Hong Kong Po Jen Yap, Professor of Law, The University of Hong Kong Isabel Zuloaga, Assistant Professor of Civil Law, Faculty of Law, Universidad de los Andes, Chile
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Published online by Cambridge University Press
Preface
Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed ‘the era of comparative law’. It is thus topical to publish this Handbook which seeks to present a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to reflect different ways we understand the ‘law’ and how it operates in practice. In substance, the Handbook contains chapters covering a broad range of topics. They are divided under the following headings: ‘Methods of Comparative Law’ (Part I); ‘Legal Families and Geographical Comparisons’ (Part II); ‘Central Themes in Comparative Law’ (Part III); and ‘Comparative Law Beyond the State’ (Part IV). Given its broad geographical and substantive coverage, this Handbook aims to appeal to a wide international readership. Its primary audience is likely to be academics and students interested in the methods, ideas and concepts of comparative law. A secondary audience would be legal and other scholars who are not comparative lawyers in a narrow sense. After all, nowadays, even lawyers whose core interest pertains to a particular domestic legal system often come across foreign sources of law in their professional lives. Moreover, scholars in disciplines other than law also engage in comparative legal research. Therefore, the Handbook may also appeal to researchers in fields such as anthropology, political science, economics and sociology. We owe an immense debt of gratitude to all of the contributors to this Handbook. We also extend a big thank you to the PhD researchers at the European University Institute (EUI) in Florence and the students at the University of Hong Kong (HKU) who have helped us with the proofreading and editing of the manuscript: Sylvie Taylor Armstrong and Daniel Rozenberg at the EUI and Bu Chong, Daniel Chan, Patrick Li and Liu Ju at HKU. Last but not least, we are very grateful to Cambridge University Press for supporting our project. Mathias Siems, Florence Po Jen Yap, Hong Kong February
xvii https://doi.org/10.1017/9781108914741.001 Published online by Cambridge University Press
https://doi.org/10.1017/9781108914741.001 Published online by Cambridge University Press
Abbreviations
AAA ABA ABGB ACHPR ACHR ACJ ACS AD ADI ADR AEC AfCFTA AGNES AJD AJN ALADI ALBA AMU ARI ARoLS ASEAN AU BCBS BCI BEE BERI BGB BJP BN BSD CACJ CAN CARICOM
American Arbitration Association American Bar Association Austrian General Civil Code African Commission on Human and Peoples’ Rights American Convention on Human Rights Andean Court of Justice Association of Caribbean States Appellate Division (Supreme Court of Bangladesh) Action of Unconstitutionality (Brazil) Alternative Dispute Resolution African Economic Community African Continental Free Trade Agreement Agglomerative nesting African Judicial Dialogue African Judicial Network Asociación Latinoamericana de Integración Alternativa Bolivariana para Latinoamérica y el Caribe Arab Maghreb Union Adjusted Rand index Afghanistan Rule of Law Stabilization Association of Southeast Asian Nations African Union Basel Committee on Banking Supervision Bar Council of India Business Enabling Environment Business Environment Risk Intelligence German Civil Code Bharatiya Janata Party Barisan National (Malaysia) Basic Structure Doctrine Central American Court of Justice Andean Community Caribbean Community xix
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xx
CBR CCJA CCJA CCP CDA CEDAW CEN-SAD CEPII CESCR CET CETA CIDIP CIETAC CIRI CISG CJEU cMDS CMP COMESA CRC CRPD DACCL DBI DIANA EAC EACJ EACJF ECCAS ECCJ ECHR ECOWAS ECtHR EEA EFTA EBGB EITI ERSUM ETLS EU FATF FCPA FDI
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Abbreviations
Centre for Business Research (Cambridge) Conference of Constitutional Jurisdictions of Africa Common Court of Justice and Arbitration (OHADA) Chinese Communist Party Community development agreement Convention on the Elimination of All Forms of Discrimination Against Women Community of Sahel-Saharan States Centre d’Etudes Prospectives et d’Informations Internationales International Covenant on Economic, Social and Cultural Rights Common external tariff Comprehensive Economic and Trade Agreement Specialized Conferences on Private International Law China International Economic and Trade Arbitration Commission Cingranelli-Richards (dataset) United Nations Convention of Contracts for the International Sale of Goods Court of Justice of the European Union classical MDS Constitution-making process Common Market for Eastern and Southern Africa Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Decolonising Approaches in Comparative Constitutional Law Doing Business indicator Divisive analysis clustering East African Community East African Court of Justice East African Community Chief Justices Forum Economic Community of Central African States ECOWAS Community Court of Justice European Convention on Human Rights Economic Community of West African States European Court of Human Rights European Economic Area European Free Trade Association German Introductory Act to the Civil Code Extractive Industries Transparency Initiative Regional Training Centre for Legal Officers (OHADA) ECOWAS Trade Liberalisation Scheme European Union Financial Action Task Force Foreign Corrupt Practices Act of (US) Foreign Direct Investment
Abbreviations
FH IPK FOCAC FPIC FSC FTA G GADAL GCC GDP GDPR GINI GMM GRC GSTP HCCH HCJ HKCFA HKU IACAC IARAC IASB IBA ICANN ICBT ICC ICCS ICDR ICRG ICSID IEA IFC IFRS IGAD ILO INC IOM IRA ISEAL Alliance ISIS-K ISO ISSB IVF JAMS JCAA JD JSC
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Fakultas Hukum dan Ilmu Pengetahuan Kemasyarakatan Forum on China–Africa Co-operation Free, Prior, and Informed Consent Forest Stewardship Council Free Trade Area Group of Seven Grupo para la Armonización del Derecho en Latinoamérica Gulf Cooperation Council Gross Domestic Product General Data Protection Regulation (EU) Gini coefficient General method of moment Group Representative Constituencies (Singapore) Global System of Trade Preferences Hague Conference on Private International Law High Court of Justice (Israel) Hong Kong Court of Final Appeal Hong Kong University Inter-American Commercial Arbitration Commission International Arbitration Rules of the Asia/Pacific Centre International Accounting Standards Board International Bar Association Internet Cooperation for Assigned Names and Numbers Informal cross border trade International Court of Arbitration International Commission on Civil Status International Centre for Dispute Resolution International Country Risk Guide International Centre for Settlement of Investment Disputes Islamic Emirate of Afghanistan International Finance Corporation International Financial Reporting Standards Intergovernmental Authority on Development International Labour Organization Indian National Congress International Organization for Migration Islamic Republic of Afghanistan International Social and Environmental Accreditation and Labelling Alliance Islamic State – Khorasan Province International Organization for Standardization International Sustainability Standards Board In vitro fertilisation Judicial Arbitration and Mediation Services Japan Commercial Arbitration Association Juris Doctor Japanese Supreme Court
xxi
xxii
KMT kNN LCIA LDP LESPA LLB LLM LSP LTS LTTE MDGs MDS MENA MERCOSUR MERCOSUR PRC MFC mMDS MONA MP MPI NBE NGO NIE NJAC NLAC NLSIU NLUs nmMDS NPCTG NPM NUS OAS OECD OHADA OHADAC OLG OOPP OSVIR PA PAFTA PAP PCA PH PICC PISA
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Abbreviations
Kuomintang k nearest neighbour London Court of International Arbitration Liberal Democratic Party (Japan) Legal Education Support – Afghanistan Bachelor of Laws Master of Laws Languages for special purposes Legal translation studies Liberation Tigers of Tamil Eelam Millennium Development Goals Multidimensional scaling Middle East and North Africa Common Market of the South MERCOSUR Permanent Review Court Federal Court of Malaysia metric MDS Monothetic analysis clustering of binary variables Member of Parliament Max Planck Institute National Bar Exam (Japan) Non-governmental organisation New Institutional Economics National Judicial Appointments Commission (India) New Latin American Constitutionalism National Law School of India University National law universities (India) non-metric MDS Non-Party Caretaker Government New Public Management National University of Singapore Organisation of American States Organization for Economic Cooperation and Development Organisation for the Harmonization of Business Law in Africa Organisation for the Harmonisation of Business Law in the Caribbean Higher Regional Court (Germany) Objectives Oriented Project Planning Opleidingsschool voor Inlandsche Rechtskundigen Proportionality Analysis Pan-Arab Free Trade Ara People’s Action Party (Singapore) Principal component analysis Pakatan Harapan (Malaysia) Principles of International Commercial Contracts (UNIDROIT) Programme for International Student Assessment (OECD)
Abbreviations
PKPA PLACL PML-N PPP PTI QCA QS RCEP REC RICO RH RSPO SAARC SACJF SACU SADC SCB SCC SCCAM SCI SCP SCSL SDGs SGCA SIAC SICA SMCs SMU SNM SP SSCI STR STRESS STS SVM TCC TFEU t-SNE TTP TWAIL UDHR UMAP UMNO UN UNASUR
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Special Education of Advocate Profession (Indonesia) Principles of Latin American Contract Law Pakistan Muslim League Pakistan People’s Party Pakistan Tehreek-e-Insaf Qualitative Comparative Analysis Quacquarelli Symonds Regional Comprehensive Economic Partnership Regional Economic Community Racketeer Influenced and Corrupt Organizations Act of (US) Rechtshogeschool te Batavia Roundtable of Sustainable Palm Oil South Asian Association for Regional Cooperation Southern African Chief Justices Forum Southern African Customs Union Southern African Development Community Supreme Court of Bangladesh Stockholm Chamber of Commerce Swiss Chambers’ Court of Arbitration and Mediation Supreme Court of India Supreme Court of Pakistan Supreme Court of Sri Lanka Sustainable Development Goals Singapore’s Court of Appeal Singapore International Arbitration Centre Central American Integration System Single-member constituencies Singapore Management University Somali National Movement Structured Proportionality Social Sciences Citation Index Simplified Trade Regime Standardised Residual Sum of Square Science and Technology Studies Support vector machine Turkish Commercial Code Treaty on the Functioning of the European Union t-distributed Stochastic Neighbour Embedding Tahreek Taliban Pakistan Third World Approaches to International Law Universal Declaration of Human Rights Uniform Manifold Approximation and Projection for Dimension Reduction United Malays National Organization United Nations Union of South American States
xxiii
xxiv
UNCITRAL UNCLOS UN-CTS UNDP UNDRIP UNHCR UNIDROIT UNP UPFA WB WIPO WJP WTO ZGB
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Abbreviations
United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Survey of Crime Trends and Operations of Criminal Justice Systems United Nations Development Programme United Nations Declaration on the Rights of Indigenous Peoples United Nations High Commissioners for Refugees International Institute for the Unification of Private Law United National Party (Sri Lanka) United People’s Freedom Alliance (Sri Lanka) World Bank World Intellectual Property Organization World Justice Project Word Trade Organization Swiss Civil Code
Introduction A New Handbook for Comparative Law in a Global Context Mathias Siems* and Po Jen Yap**
This chapter introduces the aims and scope of this handbook. In this handbook, we seek to showcase the diverse perspectives offered by contributors from all over the world concerning topics of comparative law. We begin by outlining the proposition that one’s culture and identity shape what we do and how we think, but we also suggest that understanding law in a global context requires us to transcend a radical scepticism about the comparative law enterprise and also avoid exclusionary ‘identity politics’. We proceed by explaining the structure of the handbook and summarising the key contents of each chapter in the handbook.
A. INTRODUCTION
Comparative law is a common topic of research and teaching in many universities around the world, and the twenty-first century has even been termed the ‘era of comparative law’. Reflecting this trend, we have witnessed in recent years the publication of several new general books on comparative law. With regard to handbooks specifically, many specialised handbooks deal with specific topics of comparative law, along with general handbooks of comparative law * European University Institute, Florence, Italy. ** The University of Hong Kong. Esin Örücü, The Enigma of Comparative Law (Leiden: Martinus Nijhoff, ), p. . For some of the recent books published in English: Jaakko Husa, Introduction to Comparative Law (Oxford: Hart Publishing, nd ed., ); Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ); Simone Glanert, Alexandra Mercescu and Geoffrey Samuel, Rethinking Comparative Law (Cheltenham: Edward Elgar, ); Uwe Kischel, Comparative Law (Oxford: Oxford University Press, ); Catherine Valcke, Comparing Law (Cambridge: Cambridge University Press, ); Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Oxford: Hart Publishing, ). For example, Irene Calboli and Jane C. Ginsburg (eds), The Cambridge Handbook of International and Comparative Trademark Law (Cambridge: Cambridge University Press, ); Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, ); Emma Less and Jorge E. Vinuales (eds), The Oxford Handbook of Comparative Environmental Law (Oxford: Oxford University Press, ); Peter Cane, Herwig C. H. Offman, Eric C. Ip and Peter L. Lindseth (eds), The Oxford Handbook of Comparative Administrative Law (Oxford: Oxford University Press, ); Research Handbooks in Comparative Law by Edward Elgar, see www.e-elgar.com/shop/gbp/book-series/law-academic/research-handbooks-in-comparative-law-series.html (accessed February ).
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such as the second edition of the Oxford Handbook of Comparative Law and the third edition of the Elgar Encyclopedia of Comparative Law. These handbooks have advanced the study of comparative law. Notably, they apply different methods of studying comparative law (going beyond the traditional functional approach) and consider different areas of law (going beyond comparative law’s traditional focus on private law topics). These are welcome developments which this Handbook embraces. However, the existing handbooks also have a major limitation, namely that the vast majority of their contributors are drawn from universities in Europe and North America, leading to an underrepresentation of authors from Latin America, Africa, Asia and Australasia. This Handbook therefore seeks to broaden the geographical representation of contributors to all continents of the world. Geographical representation is relevant and important for studying comparative law because many of its core concerns relate to different ways of understanding ‘law’, not just conceptually but also how it operates in practice. For example, as comparative law delves into topics such as legal culture, legal transplants and law’s role in social and economic development, it is possible that authors from different parts of the world would approach these topics from different perspectives – and these different perspectives would therefore be crucial for comparative law to consider. This introductory chapter is structured as follows. Section B examines the proposition that one’s culture and identity shape what we do and how we think, while Section C explains why understanding law in a global context requires us to transcend a radical scepticism about the comparative law enterprise and avoid exclusionary ‘identity politics’. Section D summarises all the chapters in the book and Section E concludes. B. CULTURE AND IDENTITY MATTERS: WHO WE ARE SHAPES WHAT WE DO AND HOW WE THINK
Differences and similarities between cultures are frequently examined in popular and academic writings. There can be a fine line between identifying certain cultural differences and risking cultural stereotypes (e.g., using terms such as ‘East’ and ‘West’ as ‘fixed cultural entities’). In this regard, research on cross-cultural psychology has sought to unpack the assumptions by using empirical data to analyse whether there are indeed differences or similarities between cultures. A prominent line of cross-cultural psychological research focusses on the differences between ‘Western’ and ‘non-Western’ (in particular: ‘Eastern’) cultures, while others identify
Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ); Jan M. Smits et al. (eds), Elgar Encyclopedia of Comparative Law (Cheltenham: Edward Elgar, rd ed., , forthcoming). Further examples are Mauro Bussani and Ugo Mattei (eds), The Cambridge Companion of Comparative Law (Cambridge: Cambridge University Press, ); Pier Giuseppe Monateri (ed.), Methods of Comparative Law (Cheltenham: Edward Elgar, ); Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (Oxford: Hart Publishing, ). There is also the International Encyclopedia of Comparative Law (Tübingen: Mohr Siebeck), a multi-volume work published since the s. In today’s world, identities of academics are of course often mixed. Thus, we take into account the countries of the authors’ current university affiliations and also their countries of origin and experience. For the former see, for example, websites on ‘business etiquette’ in different countries: for example, www.commisceoglobal.com/resources/country-guides (accessed February ). For the latter see the following footnotes. On this point, as related to the debate on ‘orientalism’ (see also Section C, below): Thomas Coendet, ‘Chinese Law: ½ Trajectories’ (2021) Ancilla Iuris 137. Joseph Henrich, The WEIRDest People in the World: How the West Became Psychologically Peculiar and Particularly Prosperous (New York: Farar, Straus and Giroux, ); Richard E. Nisbett, The Geography of Thought: How Asians and Westerners Think Differently . . . and Why (New York: The Free Press, ).
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Introduction
sub-variations (e.g., Western, Eastern European, Middle Eastern, Sub-Saharan African, Latin American, Southern Asian and Eastern Asian cultures). There are also other typologies that distinguish, for instance, between ‘progress-prone’ and ‘progress-resistant’ cultures, between ‘authority-ranking’, ‘egalitarian’, ‘market-pricing’ and ‘torn’ cultures, and between ‘tight’ and ‘loose’ cultures vis-à-vis social conformity. Some of this literature also observes that the extant psychological research is limited because the psychological experiments have mainly been conducted with the most accessible participants, namely, European and North American university students. In particular, one may note that this group of participants – abbreviated as ‘WEIRD’, that is ‘Western, educated, industrialised, rich and democratic’ – may be viewed as rather peculiar when compared with other cultural groups. In the words of one of the main authors of that study: When cross-cultural data were available from multiple populations, Western samples typically anchored the extreme end of the distribution. They were psychologically weird.
Some psychological studies also relate psychological variations between groups to differences in the legal systems, for example, ‘tight nations’ tend to have harsher laws and fewer political rights and civil liberties. In the comparative law literature too, some scholars suggest a possible causal relationship between psychological orientation and legal perspectives. For example, it has been suggested that ‘an English judge is not only a judge; she is also English’, that the national character of the Germans accounts for their preference for rigid rules and that the higher degree of over-optimism among Canadian as compared to Japanese consumers may explain the two countries’ different levels of consumer protection. Moreover, it is equally possible that laws and legal changes can shape behaviour, and some literature also suggests that legal rules can be internalised by individuals and the society, and that institutions can change the perception of one’s identity.
Vivian L. Vignoles et al., ‘Beyond the “East–West” Dichotomy: Global Variation in Cultural Models of Selfhood’ () Journal of Experimental Psychology (also emphasising variations within these regions). Mariano Grondona, ‘A Cultural Typology of Economic Development’ in Lawrence E. Harrison and Samuel P. Huntington (eds), Culture Matters: How Values Shape Human Progress (New York: Basic Books, ), p. . Martin J. Gannon and Rajnandini Pillai, Understanding Global Cultures (Los Angeles: Sage, th ed., ). Michele J. Gelfand, Rule Makers, Rule Breakers: How Tight and Loose Cultures Wire Our World (New York: Scribner, ). Joseph Henrich, Steven J. Heine and Ara Norenzayan, ‘The Weirdest People in the World?’ () Behavioral and Brain Sciences ; Henrich, above n. . Henrich, above n. , p. xii. Michele J. Gelfand et al., ‘Between Tight and Loose Cultures: A -Nation Study’ () Science . See also Henrich, above n. , pp. – (Western notions of government and law evolved due to their ‘fit’ with Western psychology in medieval and early modern Europe). Pierre Legrand, Fragments on Law-as-Culture (Deventer: W.E.J. Willink, ), pp. –. Elsewhere, Legrand also relates this point to forms of ‘standpoint epistemology’, Pierre Legrand, ‘The Same and the Different’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, ), p. at pp. –. Pierre Legrand, ‘Against a European Civil Code’ () Modern Law Review at . Giesela Rühl, ‘Behavioural Analysis and Comparative Law: Improving the Empirical Foundation for Comparative Legal Research’ in Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito (eds), Research Methods in Consumer Law: A Handbook (Cheltenham: Edward Elgar, ), pp. , . Frederick Schauer, ‘Comparative Constitutional Compliance: Notes towards a Research Agenda’ in Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (Cambridge: Cambridge University Press, ), pp. , ; Ashutosh Varshney, ‘Ethnicity and Ethnic Conflict’ in Carles Boix and Susan C. Stokes (eds), The Oxford Handbook of Comparative Politics (Oxford: Oxford University Press, ), pp. , –.
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This literature builds upon recent developments in the humanities which emphasise that we are all shaped by our own preconceptions and the language we use to describe them. Thus, our growing awareness of cultural differences in turn leads, for example, to an interest in ‘epistemologies of the South’. Yet, the factors that shape one’s identity are not limited to cultural factors. In the literature, it is sometimes also noted that, at the individual level, identities are often complex, and thus one’s specific ‘lived experience’ is bound to play a key role in the way we understand the world. In the words of Pierre Legrand: Any individual embodies a seemingly infinite declension of ascertainable cultural formations, each allegiance engaging only a part of one’s energies and concerns. Thus, one can be a labor lawyer in Marseille while also being a feminist, a native of Alberta, a fluent speaker of Hungarian, a militant of Amnesty International, a breeder of siamese cats regularly entering international competitions, and a lifelong member of the Parti socialiste.
A further complication is that there are divergent views on whether authors should openly express their individuality and group identity (race, gender, etc.) in their professional or academic legal writings. Indeed, the following section will suggest that giving consideration to group identities should not be radicalised in such a way as to impede the understanding of law in a global context. C. BEYOND RADICAL SCEPTICISM OF COMPARATIVE LAW AND EXCLUSIONARY IDENTITY POLITICS: UNDERSTANDING LAW IN A GLOBAL CONTEXT
Some comparative lawyers express a ‘radical scepticism’ about the individual’s ability to research and understand foreign law. For example, Pierre Legrand contends that a lawyer from a civil law country ‘can never understand the English legal experience like an English lawyer’ and that, as we cannot escape our ‘prejudicial fore-structure’ in interpreting a legal text, a researcher is necessarily only able to provide his or her own ‘re-presentation’ and ‘invention’ of foreign law. Similarly, Günter Frankenberg is sceptical as to whether we can ‘go native’ and understand foreign legal cultures, suggesting that any comparatist needs to both accept that other law is truly foreign and do justice to the singularity of every legal system. Elsewhere Frankenberg warns that such comparisons may not end well:
Eric C. Schneider, ‘Deconstructing Principles Foundational to the Paradox of Freedom: A Comparative Study of United States and German Subversive Party Decisions’ () DePaul Law Review at . Boaventura de Sousa Santos, Epistemologies of the South: Justice against Epistemicide (London: Boulder, ); Boaventura de Sousa Santos, The End of the Cognitive Empire. The Coming of Age of Epistemologies of the South (Durham: Duke University Press, ); Boaventura de Sousa Santos, Law and the Epistemologies of the South (Cambridge: Cambridge University Press, ). Pierre Legrand, ‘Jameses at Play: A Tractation on the Comparison of Laws’ () American Journal of Comparative Law . Cf. Franz Werro, ‘How to Engage in Legal Comparison: A Reaction’ in Samantha Besson, Lukas Heckendorn Urscheler and Samuel Jubé (eds), Comparing Comparative Law (Geneva: Schulthess, ), pp. , – (on the greater willingness of authors to express their individuality in common law jurisdictions than in civil law ones). Pierre Legrand, ‘European Legal Systems Are Not Converging’ () International and Comparative Law Quarterly at . Pierre Legrand, ‘Foreign Law As Self-Fashioning’ () Journal of Comparative Law at , . Günter Frankenberg, Comparative Law as Critique (Cheltenham: Edward Elgar, ), pp. , , . Previously, Günter Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’ () Harvard International Law Journal .
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Introduction
[T]he tragic comparatist seems to be well aware of the limits and defects of her home law and her intellectual situation. Confined to the borders of a national legal regime and the parochial nature of the corresponding legal education, the tragic self dresses casually and bemoans a state of ‘consecrated ignorance’ of foreign laws and of her own alienation.
There is also a line of scholarship that draws a connection between cultural distinctiveness and ‘identity politics’. Contemporary identity politics suggest that there are power imbalances between social identity groups (white/black, male/female, straight/gay, etc.) and the powerless ‘oppressed’ group would need to recalibrate their relationship with the powerful ‘oppressors’. Applied to the comparative law enterprise, this divide may potentially lump everything associated with the ‘West’ (or the ‘Global North’) – including Western law, Western-type legal institutions and also Western legal scholars – with ‘oppression’. For example, such a view may surface in statements that perceive comparative law as ‘orientalist’ and ‘Eurocentric’ in the way it presents, or disregards, non-Western legal traditions. By way of illustration, consider a recent article which promotes non-Western rhetorical practices ‘to improve communication, enhance persuasion, and envision new forms of community building’, while the status quo is depicted as follows: the Western approach of empirically infusing everything with ranking, order, and neatness creates a toxic mindset that has been used to reach legal conclusions that ignore the lived reality of many people.
It is not possible to discuss both above-mentioned views in detail here, but it is noteworthy that they transcend the axiomatic proposition that ‘culture and identity matters’, and both perspectives also pose the risk of ‘essentialising’ group identities. To elaborate, the ‘radical scepticism’ of one’s ability to understand foreign law may divide nations into groups of ‘us’ versus ‘them’, which may seem at odds with a ‘legal culture of modernity’ or even ‘world legal culture’ transcending national borders and legal families, which we may observe in cities around the world today. A related question is whether any individual can become competent in the law of a foreign country. A sceptic may argue that our own cultural background will always shape our legal thinking, as is the case with how our native languages affect the way we learn a foreign one. However, one may note an important difference: native language is acquired as an infant, while law is studied when we are adults. In the latter case, we can be more optimistic about our ability to learn new legal cultures. If legal
Günter Frankenberg, ‘Stranger Than Paradise: Identity and Politics in Comparative Law’ () Utah Law Review at (footnotes omitted). See, for example, Christopher T. Stout, The Case for Identity Politics: Polarization, Demographic Change, and Racial Appeals (Charlottesville: University of Virginia Press, ); Kwame Anthony Appiah, The Lies That Bind: Rethinking Identity (New York: Liveright, ); Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Resentment (New York: Farrar, Straus and Giroux, ); Mark Lilla, The Once and Future Liberal: After Identity Politics (New York: Harper, ). Cf., for example, Teemu Ruskola, ‘Legal Orientalism’ () Michigan Law Review ; Sherally Munshi, ‘Comparative Law and Decolonizing Critique’ () American Journal of Comparative Law at . For different ways of understanding the term ‘eurocentrism’: Sarah M. H. Nouwen ‘Exporting Peace? The EU Mediator’s Normative Backpack’ () European Law Open at . Lucille A. Jewel, ‘Comparative Legal Rhetoric’ () Kentucky Law Journal at . Lawrence M. Friedman, ‘Is There a Modern Legal Culture?’ () Ratio Juris ; Lawrence M. Friedman, ‘Erewhon: The Coming Global Legal Order’ () Stanford Journal of International Law . Kirk W. Junker, ‘A Focus on Comparison in Comparative Law’ () Duquesne Law Review at . Similarly, from the perspective of ‘standpoint theory’: Maria Salvatrice Randazzo, ‘Chthonic Legal Traditions: A Standpoint Legal Research Paradigm for Comparative Analysis on Australian Indigenous Legal Orders’ () Udayana Journal of Law and Culture .
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culture is viewed as ‘mental software’, it is indeed plausible that our ‘mental programming’ can integrate and accommodate different and new cultural perspectives. Thus, while there is no denying that preconceptions may influence our preliminary understanding, this does not mean that it is impossible for one to learn new things. Consequently, in our view, legal systems should not be seen as ‘closed frameworks’ that foreigners can never enter and ‘borders of legal systems should not be seen as borders of knowledge acquisition’. With respect to the literature on ‘identity politics’, the general drawback is that group-based politics downplay both human commonalities and individual responsibilities for past actions. It also clashes with liberal values as far as it takes the position that some persons ‘lack standing to speak on certain matters’ because they belong to a particular identity group. For topics of comparative law in particular, it can be misleading to draw a clear line to demarcate distinct legal traditions, given that ‘every legal system contains imported elements’, that law’s evolution ‘has always been externally influenced’, and that ‘the layering of domestic sources over foreign ones will eventually camouflage many distant origins’. Indeed, it can be potentially beneficial for laws to draw ideas from a mix of different legal traditions. This comparative experience stands in sharp contrast to exclusionary forms of identity politics, which imply a ‘zero sum game’ where there can only be ‘winners’ and ‘losers’. To conclude, we agree with only some of the epistemological and normative statements advanced in the aforementioned literature on the viability of comparative law and the role identity politics play in it. It is correct to point out our limitations when we seek to understand ‘the foreign’. We also agree with it insofar as it argues that comparatists need to treat the other (i.e., other laws and cultures) with respect and be aware of our own preconceptions. But in doing so, comparatists should neither be universalist (i.e. assuming that the other is the same as oneself ) nor essentialist (i.e. assuming that the other is fundamentally different). We suggest that our proposed position can be associated with a cosmopolitan perspective. Cosmopolitanism rejects the view that there is an irreconcilable gap between ‘us’ and ‘them’, which would make it impossible to understand foreign ideas and cultures. Rather, it ‘presents an
Jan M. Smits, ‘Legal Culture as Mental Software, or: How to Overcome National Legal Culture?’ in Thomas Wilhemsson, Elina Paunio and Annika Pohjolaine (eds), Private Law and the Many Cultures of Europe (The Hague: Kluwer Law International, ), p. . See also Mathias Siems, ‘Foreign-Trained Legal Scholars in the UK: “Irritants” or “Change Agents”?’ () Legal Studies at . Anne Peters and Heiner Schwenke, ‘Comparative Law Beyond Post-Modernism’ () International and Comparative Law Quarterly at . Jaakko Husa, Advanced Introduction to Law and Globalisation (Cheltenham: Edward Elgar, ), p. . Thus, this challenges the contemporary strain of ‘common enemy identity politics’ by favouring a ‘common-humanity identity politics’; for these terms, see Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure (New York: Penguin, ), pp. –. Quoting a speech by Barack Obama, see http://time.com//barack-obama-south-africa-speech-transcript/ (accessed February ), who also rejects such restrictions on who is allowed to speak. Ugo Mattei, Teemu Ruskola and Antonio Gidi, Schlesinger’s Comparative Law (New York: Foundation Press, th ed., ), p. . Margit Cohn, ‘Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom’ () American Journal of Comparative Law at . H. Patrick Glenn, ‘Are Legal Systems Incommensurable?’ () American Journal of Comparative Law at . See also recent research monographs: Daniel Bonilla Maldonado, Legal Barbarians: Identity, Modern Comparative Law and the Global South (Cambridge: Cambridge University Press, ); Veronica Corcodel, Modern Law and Otherness: The Dynamics of Inclusion and Exclusion in Comparative Legal Thought (Cheltenham: Edward Elgar, ); Emma Patrignani, Otherness, Pluralism and Context – Underground Issues in Comparative Legal Studies (Ph. D. thesis, University of Lapland, ). Following Siems, above n. , pp. –.
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Introduction
openness to other peoples, cultures and experiences’, accepting the potential for an integration of one’s own and foreign (legal) cultures. However, cosmopolitanism is not naïve in simply assuming that the same tools will work everywhere in the world. Thus, researchers with a cosmopolitan spirit should be curious about exploring diverse ways of understanding a particular field and should explore the use of new methods to expand their intellectual horizons. D. STRUCTURE OF THIS HANDBOOK
Existing general handbooks of comparative law often have chapters on specific areas of law (comparative contract law, comparative criminal law, etc); on specific countries (comparative law in Germany, France, etc., or German law, French law, etc.); and on the relationship between comparative law and other disciplines (comparative law and history; comparative law and politics etc.). In contrast, we structure this Handbook differently. The four main parts of this Handbook, consisting of eight to nine chapters each, are structured according to more general themes: ‘methods of comparative law’, ‘legal families and geographical comparisons’, ‘central themes in comparative law’ and ‘comparative law beyond the state’. Part I on the ‘Methods of Comparative Law’ begins with Chapter by Jaakko Husa on ‘Traditional Methods’. This chapter sets the scene by outlining what the traditional methods of comparative law usually entail, namely a generic research process of comparative law, the functionalist methodology and concepts of universalism. Husa also provides critical reflections on these traditional concepts, thus offering a segue into the subsequent chapters in this part. In Chapter , Jean-Louis Halpérin explores ‘Historical-Jurisprudential Methods’, which also have a long history in comparative law. Specifically, Halpérin examines critical and constructive approaches to comparative law through the lens of legal history and underscores how those approaches may facilitate a deeper analysis of legal dynamics. In Chapter on ‘Critical Methods’, Thomas Coendet analyses critical comparative law specifically. Herein, critique is conceptualised as an attitude that requires comparative lawyers to (re-)position themselves vis-àvis the received methodological tools and themes currently in vogue, and this chapter also addresses concepts such as legal relativism, decolonialism and orientalism. Chapter by Qian Xiangyang on ‘Culture and Comparative Law Methodology’ also reflects on some scholarship on critical comparative law. But Qian does so by suggesting that a misunderstanding of culture is responsible for many missteps in comparative law. For example, he challenges research that presents over-generalised notions of a country’s culture, while he also proposes that cultural elements should be approached objectively. Also related to culture, Chapter by Łucja Biel addresses the topic of ‘Linguistic Approaches’. She notes that insights from legal linguistics and legal translation studies have recently become part of comparative law methodology. She provides examples of how this integration can be achieved, notably suggesting that linguistic approaches should be triangulated with other comparative law methods and supported by empirical research. Turning to empirical methods, Chapter by Petra Mahy, Richard Mitchell, John Howe, Ingrid Landau and Carolyn Sutherland deals with ‘Qualitative Fieldwork’. It highlights how qualitative fieldwork methods have the potential of providing valuable insights into the relationships between laws and cultures across different nation-states
Sheldon Pollock, ‘Conundrums of Comparison’ () KNOW: A Journal on the Formation of Knowledge at (referring to Hegel’s ‘wahrhaften Grundcharakter’). See Section A, above.
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and other social organisations. In doing so, the chapter also discusses how these methods relate to socio-legal comparative law and comparative socio-legal studies. Moving closer to the social sciences, Chapter by Olive Sabiiti provides an in-depth analysis of ‘New Institutional Economics’ and how it can contribute to innovative, interdisciplinary approaches to understanding comparative law. In particular, it suggests that ‘institutions’ provide an easily understandable tertium comparationis for studies of comparative law. In Chapter on ‘Empirical Methods’, Mathias Siems discusses research that applies quantitative methods to questions about the relationship between law and society. In particular, it presents how the studies’ aim of drawing conclusions from causal connections between variables can contribute to normative approaches to comparative law. Chapter by Hanwei Ho, Patrick Chung-Chia Huang and Yun-chien Chang on ‘Machine-Learning Methods’ presents another discussion of quantitative methods. But here, the focus is on the way machine-learning methods can make use of empirical comparative law data sets. The authors illustrate this by providing a step-by-step guide to evaluating and developing legal family theories using machine-learning algorithms. Part II discusses ‘Legal Families and Geographical Comparisons’ in alphabetical order of the topics. It commences with the two traditional legal families in comparative law, namely the ‘Civil Law’ in Chapter by Andrea Ortolani and the ‘Common Law’ in Chapter by Shivprasad Swaminathan. While Ortolani focusses on the origins, development and spread of the Civil Law tradition, Swaminathan addresses the history of the Common Law and highlights the core features of this tradition. In Chapter , Ngoc Son Bui discusses the ‘Confucian Legal Tradition’. He argues that this tradition is closely connected to Confucian precepts and principles, and he explains its historical evolution from formation and consolidation to transnationalisation and modernisation. Chapter on the ‘Former Soviet States of Eastern Europe, Caucasus and Central Asia’ by Andrey Shirvindt also has a strong historical dimension as it traces the evolution of the laws of the Russian Empire, the Soviet Union and the former Soviet states today. Analysing changes in legal methodology and the role of private law in these countries, the chapter examines their distinctive features in today’s world. A further interesting variation of the Civil Law tradition is presented in Chapter on ‘Latin America’ by Isabel Zuloaga and José Manuel Díaz de Valdés. It explores the current landscape of Latin American legal systems from both private and public law perspectives, and it discusses key trends while scrutinising their distinctiveness and success. In Chapter on the ‘Middle East and North Africa’ (MENA), Radwa S. Elsaman provides an overview of the fundamentals of the MENA region’s legal systems. It compares them with ‘Western’ legal traditions while also addressing the role of Islamic law that underpins the legal systems of the MENA countries. Chapter on ‘South Asia’ by Rehan Abeyratne also underscores how traditions can overlap. He focusses on developments in the public law as shaped by the Common Law in India, Bangladesh, Pakistan and Sri Lanka. Yet, he also illustrates how episodes of unchecked judicial or executive domination are a unique feature in these jurisdictions. Chapter on ‘Sub-Saharan Africa’ by Charles Manga Fombad also explains how laws passed during the colonial period still impact these legal systems today. However, by drawing on recent constitutional reforms, the chapter concludes by highlighting how, despite the persistence of the common/civil law dichotomy, some distinct sub-regional features have emerged, such as a special mix of Roman-Dutch/English common law operating in southern Africa. Part III of this Handbook is entitled ‘Central Themes in Comparative Law’. It begins with two chapters that address aspects of comparative law’s darker past and remaining legacies today.
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Introduction
In Chapter on ‘The Tradition of Comparative Law: Comparison and Its Colonial Legacies’, Helge Dedek discusses the emergence of comparative law in the nineteenth century, highlighting the diffusion of the comparative method from biology and philology to other academic disciplines. It also suggests that we need a context-sensitive recovery of the discipline’s institutional and discursive history. Chapter by Roger Merino on ‘Decolonial Theory and Comparative Law’ addresses the relationship between the colonial question and comparative law in detail. Specifically, Merino proposes strategies to decolonise comparative law, for example, by considering indigenous and local people as norm makers rather than mere norm takers or beneficiaries in the human rights debates. The subsequent four chapters deal with two interconnected key concepts of comparative law today: legal transplants and legal convergence. Chapter by Margit Cohn is entitled ‘Legal Transplants: A Theoretical Framework and a Case Study from Public Law’. It employs a series of typologies to comparatively study the nature and use of legal transplants. Cohn further illustrates her arguments by examining closely the ‘margin of appreciation’ doctrine applied in public law, and she makes the case that this is an example of a ‘warped’ transplant that has been erroneously classified by some systems as domestic in origin. In Chapter on ‘Legal Transplants: A Case Study of Private Law in Its Historical Context’ by Gerardo Caffera, Rodrigo Momberg and María Elisa Morales, the authors explain how the concept of legal transplants can be used in an applied historical manner. Specifically, they illustrate how South American private law has been inspired by other sources but has also provided new creative solutions. Legal transplants can lead to legal convergence, or not. Chapter on ‘Convergence and Divergence in Public Law’ by Po Jen Yap and Chapter on ‘Convergence and Divergence in Company Law’ by Hatice Kübra Kandemir underscore the limitations that may remain. In the chapter by Yap, he highlights how Taiwan and South Korea are converging with the West on constitutional jurisprudence, while China and Singapore remain outliers and are in divergence from this cosmopolitan constitutional project. Kandemir’s chapter observes that certain good corporate governance principles are recognised throughout the EU and many modern jurisdictions around the globe. Yet, it also highlights how in Turkish law, variations due to legal culture and institutional development have led to some divergence in shareholder protection. In Chapter , ‘Law and Development’, Yong-Shik Lee and Andrew Harding address the underexplored interrelationship between law and development and comparative law, and they also present a general theory that bridges the two disciplines. Chapter by M. Bashir Mobasher and Haroun Rahimi addresses ‘Divided Legal Systems: Understanding Legal Systems in Conflict-Prone Societies’. Specifically, it investigates the history and institutions of the plural legal systems of Afghanistan and how it is a leading example of a divided legal system. Chapter by Ada Ordor, Nojeem Amodu and Victor Amadi is on ‘Legal Pluralism and Commerce’. It illustrates how legal pluralism is an embedded key component of comparative law and how, in African legal systems, customary arbitration and supra-regional norms interact with domestic laws. Finally, in Part IV, we turn to ‘Comparative Law Beyond the State’. It starts with ‘Comparative International Law’ in Chapter by Danielle Hanna Rached and Conrado Hubner Mendes. This chapter argues that comparativism plays a crucial role in international law – notwithstanding the use of common rules and advancement of shared aspirations under international law – as countries may adopt very different approaches, doctrines and procedures of domesticating international law. In Chapter on ‘Transnational Regulation’ by Victor V. Ramraj, the author also underscores how state laws are not the only unit of study in comparative law today as
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Mathias Siems and Po Jen Yap
transnational non-state regulators and other hybrid and inter-governmental regulators have emerged and are conferred with a variety of rule-making powers. Chapter by Rene Urueña on ‘Quantitative Forms of Legal Governance’ also deals with a transnational form of governance, namely through the growing use quantitative indicators. He focusses on the need to contest and resist these indicators, rather than merely criticise their accuracy. In Chapter on ‘Comparative International Arbitration Law’, Shahla Ali discusses a different application of transnational law. She examines how far different comparative law methods (traditional, historical, linguistic, socio-legal, empirical, economic) can be, and have been, applied to comparative arbitration studies. In Chapter , Tom Gerald Daly discusses ‘CrossBorder Judicial Dialogue’ – another important illustration of how comparative law operates beyond the state. This chapter seeks to enhance understanding on how judicial dialogue takes place through African and Latin American perspectives. The author examines what this dialogue means in the Global South context by comparing the different patterns and facilitating conditions occurring in these regions, including the development of regional integration projects. Regional integration is also the focus in Chapter by Armin Cuyvers on ‘Comparing Regional Law’. Among others, it discusses how one can validly compare laws in regions with vast different histories, cultures, geographies, languages and economies, without falling prey to eurocentrism or colonialism. Chapter by Yuko Nishitani on ‘Comparative Conflict of Laws’ presents another perspective on the impact of globalisation and regionalisation on the law. While noting conflict of laws trends in Europe and America, her main focus is to assess the recent developments and discussions in other parts of the world, as well as globally. Chapter by Anthony C. Diala on ‘Comparative Indigenous Law’ also deals with countries’ struggles to manage multiple legal orders. It does so by showcasing how African legal frameworks reflect the values of indigenous laws in Kenya, Nigeria, Somaliland and South Africa. Last but not least, Chapter is entitled ‘Comparative Legal Education’ and is authored by Tan Cheng-Han, Alan Koh, Topo Santoso, Umakanth Varottil and Jiangyu Wang. The authors discuss trends and developments in legal education in various countries of Asia. This chapter presents a case study of how received Western laws remain relevant in Asia, while also noting the profound influence of factors such as the teaching of transnational law subjects, transnational rankings, and transnational scholarly communities engaged in teaching and research collaboration. E. CONCLUSION
A key aim of this Handbook is to showcase the diverse perspectives offered by contributors from all over the world. When we were planning this Handbook, a senior academic warned us that it would be difficult to find suitable contributors from the Global South. However, our experience has proved otherwise, as we have managed to curate a chorus of voices from all over the globe. In planning the Handbook, the authors were also asked to select themes, topics and methods that are of relevance to comparative law today, and they were afforded a high degree of autonomy to approach their chosen topic. Did this strategy work? Of course, it is ultimately for our readers to evaluate this. At the very least, we hope we have demonstrated that it is feasible to gather a truly global group of contributors to critically reflect on key themes pertaining to comparative law today. Finally, what general insights on comparative law as a discipline have we learned from this collective endeavour? We suggested earlier in this chapter that a cosmopolitan perspective of comparative law celebrates both the diversity of cultures – without being exclusionary – while
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Introduction
remaining optimistic about our collective effort to understand law in a global context. This means we fully accept that there is bound to be a diversity of methods and approaches within comparative law. Nevertheless, while comparative legal scholars can and should be concerned about the way local contexts impact comparative law, it is equally legitimate and important for us to find commonalities that bridge the divide between legal traditions or geographies. In closing, we would offer our profound gratitude to all our contributors in the Handbook, and we also look forward to future handbooks on related topics adopting a similar approach.
Section C (final paragraph), above.
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https://doi.org/10.1017/9781108914741.002 Published online by Cambridge University Press
Methods of Comparative Law
https://doi.org/10.1017/9781108914741.003 Published online by Cambridge University Press
https://doi.org/10.1017/9781108914741.003 Published online by Cambridge University Press
Traditional Methods Jaakko Husa*
Comparative law has grown out of its traditional theoretical and methodological boundaries. However, much of comparative law scholarship may still be described as traditional. This chapter discusses the traditional view of comparative law research. What can be characterised as traditional comparative law has concentrated on the private law of major Western legal systems, leaving other areas of law and non-Western systems mostly aside. In substance, while it is not entirely clear what can be labelled as traditional methods, we can separate three essential issues. The first issue concerns the research process and how traditional comparative law scholars have outlined it. Traditional comparative law scholarship typically provides guidance on how research should be conducted. The second issue deals with the specific method of functionalism that has been recommended to be used in the comparative research. At the heart of the functionalist methodology lies the assumption according to which there are legal rules or institutions that serve a certain social function. The third issue concerns the underlying assumption behind functionalism, that is universalism. Universalism maintains that every society faces essentially the same problems, and that societies solve these problems by different means, though often with similar results. The chapter ends with a critical analysis and thoughts about the future of traditional methods.
A. INTRODUCTION
Comparative law has changed during the last two decades as it has grown out of its traditional theoretical, methodological and geographical boundaries. Numerical and computational approaches are gaining a foothold, while socio-legal, linguistic, economic, historiographic and other interdisciplinary dimensions are more commonplace today than they used to be.
* Professor in Law and Globalisation, University of Helsinki. New approaches can be broadly described and classified as postmodern, socio-legal and numerical comparative law. See Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), Part . See also Pier Giuseppe Monateri (ed.), Methods of Comparative Law (Cheltenham: Edward Elgar, ) and Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (Cambridge: Cambridge University Press, ).
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Jaakko Husa
According to some, comparative law is becoming more empirical. The Global South and decolonisation are becoming more relevant themes of study within the field following developments in public international law. However, much of comparative law scholarship even today may be described as traditional in terms of its methods. Nevertheless, comparative law is gradually transforming into a more pluralist area of legal research in both substance and methodology. Scholarly transformation is slow but, in any case, it has been on its way for quite some time now. There are growing calls to rethink intellectual approaches to comparative law. The traditional methods are, more or less, challenged by new conceptions of comparative law. It is not the task of this chapter to discuss the reasons behind the perseverance of traditional approaches, although one can safely assume that the strong position of legal doctrine, as well as the long-established way legal professionals are educated, play an important role. It has been clear for a long time that scholarly conservatism is a part of legal academia, and this undoubtedly has had an impact on the way doctrinally trained legal professionals undertake research. Sharp breaks with the past are instinctively avoided by the majority of lawyers even though, from time to time, new schools and approaches do appear. These reform movements in legal scholarship have had a surprisingly modest impact on the general outlook of the mainstream comparative study of law. Traditional comparative law literature, for instance, is frequently cited as if we were still in the twentieth century. All of this tells us about the resilience of the old paradigm that consolidates traditional methods. Methodological transformation is on its way, but it takes place only gradually. This chapter discusses what is meant by the traditional view of comparative law research methods. ‘Traditional’ is an ambiguous term and needs some explaining in the context of this chapter. In short, ‘traditional’ here refers to something that is habitually done, though it is not necessarily an age-old tradition in the historical sense. Moreover, it is important to point out that the expression ‘traditional’ does not imply a pejorative characteristic as to its nature. Hence, traditional methods are not automatically outdated nor a practice needing to be avoided in the modern comparative study of law. On the contrary, as the methodology of comparative law transforms and evolves, it seems likely that the essential parts of traditional methods can still be employed and combined with more recent approaches. However, the question remains: What does ‘traditional’ mean in the context of comparative law methodology? This issue should come
See, for example, Holger Spamann, ‘Large-Sample, Quantitative Research Designs for Comparative Law?’ () American Journal of Comparative Law . See, for example, Luis Eslava and Sundhya Pahuja, ‘The State and International Law: A Reading from the Global South’ () Humanity . Mark Van Hoecke, ‘Is There Now a Comparative Legal Scholarship?’ () The Journal of Comparative Law . See Simone Glanert, Alexandra Mercescu and Geoffrey Samuel, Rethinking Comparative Law (Cheltenham: Edward Elgar’ ), pp. vi–xiii. See, for example, Lena Salaymeh and Ralf Michaels, ‘Decolonial Comparative Law: A Conceptual Beginning’ () Rabels Zeitschrift für ausländisches und internationales Privatrecht . Edgar Bodenheimer, ‘The Inherent Conservatism of the Legal Profession’ () Indiana Law Journal . The best example is Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr., Oxford: Clarendon, rd ed., ). The theoretical foundation (Grundlagen) is largely the same as it was when the first edition appeared in (Konrad Zweigert and Hein Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, Band I (Tübingen, JCB Mohr, )). On legal traditions, see H. Patrick Glenn, Legal Traditions of the World (Oxford: Oxford University Press, th ed., ). This is true of research methods in legal research in general: the doctrinal approach is not abandoned but is complemented by other approaches: historical, socio-legal, economic, comparative, international, empirical (qualitative and quantitative), ethnographic and interdisciplinary. See, for example, Mike McConville and Wing Hong Chui (eds), Research Methods for Law (Edinburgh: Edinburgh University Press, nd ed., ).
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Traditional Methods
as no surprise, as the close connection between tradition and innovation has become more generally understood. In essence, what can be characterised as traditional comparative law has concentrated on the private law of the major Western legal systems, leaving mostly aside other areas of law and nonWestern systems. Indeed, the bulk of comparative law literature deals with the distinction between common law and civil law, and its substantive focus is on private law as broadly understood. Comparative law literature of this sort is legion. The approach here is not without difficulty, as the sphere of comparative legal studies today is a vast field of legal scholarship. Although to describe the methodological comparative law paradigm is bound to be a generalisation as to its character, a certain stereotyping seems nonetheless within the bounds of possibility. At the same time, it is not quite clear what can be labelled as ‘traditional methods’. Moreover, the focus on methodology means that traditional central issues are left out. Consequently, questions about classifying the legal systems of the world and scholarship revolving around legal transplants are not dealt with, even though they are most certainly issues concerning traditional mainstream comparative law. What is clear, however, is that methodology is a central aspect of past, present and future comparative law, even though comparative law is certainly more than merely a method. Notwithstanding, the focus on method and methodology may also be conceived as a part of the epistemic malaise of comparative law. Methodological debates have been both a boon and a bane for comparative law scholarship. It is important to grasp that, although the methodology of traditional comparative law has never been a collection of precise research techniques, even traditional comparative law scholars have underlined the relevance of method for the comparative study of law. Nevertheless, it was only in the twenty-first century that competing methodological views emerged and the old functionalist understanding of comparative law was truly challenged. Before proceeding to further discussion on traditional methods, the notion of ‘method’ needs to be defined for the purposes of this chapter. Against the backdrop of traditional comparative law, method is understood differently from the exact sciences because comparative legal method refers generally to the practices and operations by means of which pieces of information about the law (as broadly understood) are collected and analysed. Importantly, the traditional understanding of comparative law method is non-technical and non-exact. In this chapter, three essential issues related to traditional methods of comparative law are distinguished and discussed. The first issue concerns comparative research as a process and how traditional comparative law scholars have outlined it. Traditional comparative law scholarship typically provides broad signposts on how comparative legal research should be conducted. The literature is not straightforward, as the leading textbooks tend not to provide a particular method (or methods
See, for example, Olav Hammer, ‘Tradition and Innovation’ in Michael Stausberg and Steven Engler (eds), The Oxford Handbook of the Study of Religion (Oxford: Oxford University Press, ), p. (‘two concepts that could seem like each other’s opposites are in fact inextricably interwoven’, p. ). For a critique of the Western focus, see for example Werner Menski, Comparative Law in a Global Context (Cambridge: Cambridge University Press, nd ed., ) and William Twining, ‘Comparative Law and Legal Theory’ in Ian Edge (ed.), Comparative Law in Global Perspective (Leiden: Brill Nijhoff, ), p. . Geoffrey Samuel, An Introduction to Comparative Law Theory and Methodology (Oxford: Hart Publishing, ), pp. –. Cf. Glanert et al., above n. , pp. –. Cf. Esin Örücü, ‘Methodology of Comparative Law’ in Jan Smits (ed.), Elgar Encyclopedia of Comparative Law (Cheltenham: Edward Elgar, nd ed., ), pp. , –. See Jaakko Husa, A New Introduction to Comparative Law (Oxford: Hart Publishing, ), pp. –.
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in the plural) to be followed. Instead, it is commonplace to present a heuristic understanding of the research process in the comparative study of law. The second issue deals with a specific method – termed ‘functionalism’ – that has traditionally been recommended in the comparative study of law. At the heart of the functionalist methodology lies the assumption according to which legal rules or institutions serve a similar social function. The third issue, and related to the second, concerns the underlying central assumption behind the functional method, namely universalism. Universalism maintains that every society faces essentially the same problems and societies solve these problems by different legal means, though often with similar results. The chapter ends with thoughts on the possible future of traditional methods as instruments in the toolbox of comparative law. B. COMPARATIVE LAW: THE TRADITIONAL RESEARCH PROCESS
Traditional comparative law has a somewhat fuzzy view of methodologies or methods, thus presenting a challenge in discussing them. The methodology of traditional comparative law is nothing like methodologies in the exact sciences. For want of a better expression, traditional methodology and the accompanying view of comparative research as a process can be described as heuristic. Importantly, this view of methodology is different from more recent methodological views provided by empirical, computational and interdisciplinary methods. The traditional view of a proper research process in the comparative study of law is lax, as it does not adamantly insist on a one-size-fits-all solution on how to construct and conduct comparative study. Notwithstanding, methodological scholarship in traditional comparative law typically offers general guidelines on what the comparatist is supposed to be doing. In the following, traditional descriptions of the comparative research process are discussed and analysed, with a focus on what can be characterised broadly as ‘mainstream’. Occupying a central position in traditional comparative law has been Zweigert and Kötz’s view on the proper research process. As with all traditional methodological outlines, what they suggest is not an exact method or a collection of methods but a general description of the comparative law research process. Notwithstanding, it has been suggested that Zweigert and Kötz offered a balanced synthesis of comparative law literature when they provided supposedly the most advanced approach to traditional comparative law. What they were suggesting on the level of theory in part I of their weighty textbook, originally dating from the beginning of the s, can be considered as a kind of a paradigmatic methodology in traditional comparative law. This archetypal position stemmed from the fact that these ideas, originally crafted by Zweigert, were endorsed by a great number of comparative law scholars who engaged in methodological discourse within the discipline. Paradigmatic views were, in turn, based on earlier German comparative law scholarship such as Jhering in the nineteenth century and Rabel in the twentieth century. This view of comparative law research as a process is intimately connected with so-called functional comparative law, as we will see in the next section.
For the methodology of comparative law as heuristics, see Jaakko Husa, ‘Research-Designs of Comparative Law: Methodology or Heuristics?’ in Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law (Oxford: Hart Publishing, ), p. . Mark Van Hoecke and Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ () International and Comparative Law Quarterly , . Balázs Fekete, Paradigms in Modern European Comparative Law: A History (Oxford: Hart Publishing, ), p. . Fekete, above n. , p. . Of the earlier phase, see Konrad Zweigert, ‘Méthodologie du droit comparé’ in Mélanges offerts à Jacques Maury, Tome I (Paris: Dalloz, ), pp. –. Zweigert and Kötz, above n. , pp. –.
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In traditional comparative law research, the crucial issue is: What socio-legal function does the norm under study fulfil in its own societal context? Samuel explains that this approach means taking a look at a specific problem, for example in case law or litigation, in one legal system and then asking how that problem is solved in another legal system. The underlying methodological idea appears to be to try to achieve comparability of rules and institutions by studying them as part of a larger socio-legal context and placing them in an external comparative framework – called tertium comparationis – constructed by the comparatist. This, nevertheless, requires the comparatist to be epistemically detached from their own legal preconceptions and to discover neutral or at least less biased concepts which make it possible to describe legal problems in a comparative framework. Characteristically, the traditional comparative law research process starts from posing a functional research question. Basically, the focus is on loosely understood social problems that are solved by means of law. The underlying research interest is essentially comparative because if comparatists find out ‘that different countries meet the same need in different ways, we must ask why’. The next stage consists of two elements that describe the legal systems being studied and how they solve the socio-legal problem in question. After that, the comparatist needs to catalogue similarities and differences in the methods of solving what is essentially the same problem in all the systems under comparison. However, a mere description of similarities and differences is supposedly not sufficient, as it is suggested that the comparatist needs to adopt a new point of view from which to consider explanations for differences and similarities. For this to be possible, the comparatist must have built an external comparative framework so that they are able to analytically compare and contrast legal answers to the same problem. Finally, the comparatist is expected to critically evaluate their comparative findings and typically – but not always – judge which of the solutions works best in providing a legal solution to the same social problem. Another traditional view of traditional comparative law research is presented perhaps somewhat more in the spirit of pragmatism by de Cruz. He recognises the limits of describing comparative law research generally and thus calls his description of comparative method a ‘blueprint’. This blueprint consists of eight steps. In essence, de Cruz’s blueprint by and large coincides with Zweigert and Kötz’s view, although it has more details as it is more refined, although they both have a similar basic view of comparative legal research. To an important extent, they represent the intellectual ethos of twentieth-century legally-trained comparatists. This is a feature that is typical of and essential for traditional comparative law methods. The first step is to identify the research issue and state it as clearly as possible. This is also about deciding how wide the range of issues to be considered shall be. The second step involves
Samuel, above n. , p. . There has been much discussion on the notion of tertium comparationis, which refers simply to the third part of comparison, that is the common yardstick used when comparing different laws. On the term itself, see Lei Zhu, ‘On the Origin of the Term Tertium Comparationis’ () Language & History . In comparative law discussion, see for example Michael Bogdan, ‘Some Reflections on the Comparability of Laws Based on Different Socio-economic Systems’ () Scandinavian Studies in Law . See Richard Hyland, Gifts: A Study in Comparative Law (Oxford: Oxford University Press, ), pp. –. Zweigert and Kötz, above n. , p. . See, for example, Marieke Oderkerk, ‘The Need for a Methodological Framework for Comparative Legal Research’ () Rabels Zeitschrift für ausländisches und internationales Privatrecht , . As a classical twentieth-century comparatist put it ‘[T]o compare means to observe and to explain similarities as well as differences’, Rudolf B. Schlesinger, ‘The Past and Future of Comparative Law’ () American Journal of Comparative Law , . Peter de Cruz, Comparative Law in a Changing World (London: Routledge-Cavendish, rd ed., ), pp. –.
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Jaakko Husa
identifying and deciding which legal systems are going to be compared in the research. Once this has been done, then the third step is about the required sources and materials – and planning where and how to obtain them. The fourth step, in turn, consists of gathering and arranging the research materials, which are not necessarily purely legal in nature. The fifth step continues working with the materials and provides the recommendation of organising the sources so that they reflect the philosophy and ideology of each legal system under the comparative law microscope. The sixth step proceeds to map out possible answers to the research questions, simultaneously keeping in mind contextual non-legal factors that may have influenced the legal issues under examination. The seventh step consists of critically analysing the legal principles and making sure that the translations used are reliable. This step also involves a socio-legal dimension, as de Cruz urges researchers to ask what purpose the legal rule being studied fulfils and what its practical effects are. Finally, the eighth step is about drawing conclusions and evaluating them critically in order to make sure that they are correct and that they relate to the original research question identified as part of the first step. Numerous other comparative law scholars have outlined the research process in roughly the same manner. The main phases may be termed differently but the process itself is seen more or less in a similar fashion. For example, in his influential article, Kamba distinguished three main phases in the comparative study of law: description, identification and explanation. Other similar characterisations of comparative legal research are those of Reitz and Örücü. Reitz provides nine methodological principles that outline the research process in comparative law. He is, nevertheless, well aware that his principles are far from perfect, as he is ‘simply trying to list the most important characteristics of good comparative scholarship, with the caveat that deviations may always be made for good cause’. In Reitz’s blueprint one needs to draw explicit comparisons, concentrate on similarities and differences, observe distinctive characteristics, push the analysis to broader levels of abstraction, analyse reasons for similarities and differences, describe the professional world of lawyers in the systems compared, look at all the sources so that the difference between law in the books and law in action is taken into account, deploy the required linguistic and other necessary non-legal skills, organise research around explicit comparison and undertake research in a spirit of respect for legal cultures other than one’s own. Örücü, for her part, uses a different kind of scholarly language but, essentially, her description of the research process in comparative legal research is of a similar type: conceptualising the research problem, describing and comparing, measuring and theory-testing. Although Örücü’s description follows the general outline of traditional comparative law, it seems evident that her way of describing the research process brings to mind descriptions of social science research rather than research that is usually undertaken by doctrinally trained legal scholars. Theorytesting is added to the foundation of traditional comparative law scholarship. Albeit Örücü’s basic structure follows a similar pattern to traditional descriptions of the comparative law
W. J. Kamba, ‘Comparative Law: A Theoretical Framework’ () International and Comparative Law Quarterly . John C. Reitz, ‘How to Do Comparative Law?’ () American Journal of Comparative Law , . Örücü, above n. , pp. –. Örücü has herself, however, described her approach as ‘critical comparative law’, see Esin Örücü, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition (Deventer: Kluwer, ). This concerns her understanding of comparative law in general: ‘Comparative law is more closely related to social sciences . . . than to ‘pure’ normative inquiry, which seems to characterise other types of legal research’, Esin Örücü, ‘Developing Comparative Law’ in Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (Oxford: Hart Publishing, ), pp. , .
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Traditional Methods
Comparative law research process – traditional view Making research question
Building comparative framework
Describing systems
Listing Similarities and Differences
Considering explanations
Evaluation of discoveries
. The research process
research process, her outline contains a dimension of social science methods as she distances herself from the traditional conception of comparative law research. In sum, it is not difficult to see that the basic structure of traditional comparative law research as a process is conceived in a rather similar manner – as heuristics – by all of these scholars. Figure . shows the main steps in the traditional comparative approach. The hermeneutic nature of traditional methodology can be seen in the way the research steps can go both forwards and backwards, as each step is to be revised so that back-and-forth movement is unavoidable as the research advances. This hermeneutic nature of the traditional comparative law process is a key facet of the manner in which the traditional approach to the comparative study of law conceives itself as a special form of legal research, that is separate from legal doctrine. Even though traditional conceptions of the comparative research process are not all based on functionalism, they are nevertheless related. Traditional accounts of comparative law research are to a considerable extent compatible with so-called functionalism. For example, Reitz argues that a good comparative lawyer should: ‘normally devote substantial effort to exploring the degree to which there are or are not functional equivalents of the aspect under study in one legal system in the other system or systems under comparison’. Because of the significance of so-called functionalism as the driving force behind traditional views of methodology, it makes sense to address the content and role of functionalism in more detail. This is done against the backdrop of the ambit of this chapter, that is, the traditional notion of comparative law methods. The aim is not to discuss comparative law functionalism as such in depth. as the focus is on methodology and the impact that so-called functionalism exercises on research methods. C. FUNCTIONAL METHOD
It would not be correct to argue that the functional method is a monolith, as there are different ways of understanding functionalism in comparative law. Be that as it may, different versions of functionalism possess significant similarities. Accordingly, it is evident that the functional approach, in its various forms, has never been the only method for the comparative study of
Reitz, above n. , at .
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law. At the same time, though, functionalism has gained a strong position, especially in Europe, where it became the core tool for common core studies. According to Zweigert and Kötz: ‘[T]he basic methodological principle of comparative law is that of functionality. . .’. If we follow their methodological lead, then the methodological outline is straightforward: look at the different ways of solving similar problems through law. A solution to a legal problem can be provided by a custom or by some other social practice that is not necessarily in an identifiable legal form. The comparatist is thus – in the ideal case, that is – seeking to identify foreign norms that are functionally equivalent to those rules, principles or institutions that have been taken from other systems. To that end, functionalism follows the traditional understanding of the comparative law research process as discussed in the preceding section. In the late s, the functional approach was described as ‘the standard methodology, at least in Europe and the United States’. However, much water has flowed under the bridge since the traditional view of the comparative law research process was crafted by twentieth-century comparative law scholars. Accordingly, there are views according to which functionalism is but a thing of the past, and not worthy of discussion in this century. This critical take is easy to understand, as functionalism in comparative law has been a target of crititicism for decades. For many contemporary critical scholars, functional comparative law ‘stands for everything that is bad about mainstream comparative law’. Regardless, this has not prevented other scholars from defending functionalism, considering it as still having a legimate use and arguing that functionalism is at least partially immune to critique. The lines of debate are situated between those who value functionalism and see a future for it and those who are more willing to underline its inherent limitations, though without totally abandoning it. Even scholars critical of functionalism may hold that ‘[I]t still has its virtues and valuable applications today’ or that comparative law ‘should build upon functionalism’s legacy’. What is more, some modern comparatists unreservedly accept the basic mindset of the functional approach.
Örücü, above n , p. . Zweigert and Kötz, above n. , p. . Hyland (above n. , p. ) points out that the key issue here is to establish a common research perspective that allows study of different legal systems comparatively, that is from a similar point of view. Zweigert and Kötz, above n. , pp. –. David J. Gerber, ‘System Dynamics: Toward a Language of Comparative Law?’ () American Journal of Comparative Law , . See Michele Graziadei, ‘The Functionalist Heritage’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, ), p. . See also Fekete, above n. , pp. –. Gunter Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’ () Harvard International Law Journal . Ralf Michaels, ‘The Functionalist Method of Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, ), pp. , . Cf. Catherine Valcke and Mathew Grellette, ‘Three Functions of Function in Comparative Legal Studies’ in Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law (Oxford: Hart Publishing, ), p. . See Jaakko Husa, ‘Metamorphosis of Functionalism – or Back to Basics?’ () Maastricht Journal of European and Comparative Law and Jan Smits, ‘Taking Functionalism Seriously: On the Bright Future of a Contested Method’ () Maastricht Journal of European and Comparative Law . Oliver Brand, ‘Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies’ () Brooklyn Journal of International Law , ; Christopher A. Whytock, ‘Legal Origins, Functionalism, and the Future of Comparative Law’ () Brigham Young University Law Review , . Uwe Kischel, Comparative Law (Andrew Hammel tr., Oxford: Oxford University Press, ), p. : ‘The basic mindset of the functional method can be . . . approved without reservation . . . it makes sense to abandon the term “functional comparative law” while holding fast to its basic idea’).
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Paradoxically, and regardless of widespread usage, what comparative law scholars mean by functionalism is indistinct. In a sense, it has been something of a buzzword among traditional comparatists. Consequently, the notion of function/functional as described by Zweigert and Kötz has been characterised as ‘simplistic and unfortunate’. This is nothing more than an unavoidable result of the heuristic nature of traditional comparative law methodology. The word ‘functional’ is tricky here because it does not mean similar things as it does in other fields of social science. Consequently, comparative law’s functionalism looks odd, especially if conceived from the point of view of non-legal fields of knowledge. Furthermore, there seems to be very little substantiation that the functionalism of these other fields, mainly deriving from the s and s would have affected functionalism in comparative law. The paradigmatic approach is based on simple comparative law wisdom which presupposes that the legal systems of different countries can be understood as providing answers to similar problems. According to Gerber’s analysis, functionalism’s methodological core was simple and easy for lawyers to understand: ‘look at how a problem is solved in two or more legal systems and explore the differences and similarities in the respective treatments of the problem’. For a practising lawyer or doctrinally focused legal scholar this formula makes sense as it is not a complicated social science approach that would require lawyers to step out of their methodological comfort zone. The traditional understanding of functionalism is safe in its familiarity and virtual simplicity for legal scholars, as it does not require them to apply methods from non-legal fields. To that end, traditional comparative law has always had a tension-filled relationship with the interdisciplinary comparative study of law. One should, perhaps, dig deeper in order to grasp what the original idea actually was. Here, if one speaks of functionalism in comparative law, then one cannot omit Rabel, who was probably the first comparatist to sketch functionalism as a methodological road map in the comparative study of law. However, it must be borne in mind that Rabel never formulated any systematic functional methodology. Arguably, Rabel’s idea was simply too nebulous to be rejected, as its later success suggests. Moreover, even in its fuzziness the fundamental idea of functionalism has made sense for generations of comparative legal scholars. To that end, functionalism can be characterised as the bread and butter of traditional comparative law methodology. Notwithstanding, more than ten years ago it was noted by European private law scholars that ‘[U]ntil quite recently the functional method was the dominant method of comparison.’ Regardless, Rabel’s functionalism has hardly anything at all to do with scientific (if science is understood as ‘hard sciences’) renditions of functionalism. In fact, there seems to be no equivalence between the way this concept is used in other fields of knowledge. In short, the manner in which this concept is used to describe different organic systems in sociology,
Maurice Adams and John Griffiths, ‘Against Comparative Method: Explaining Similarities and differences’ in Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law (Oxford: Hart Publishing, ), pp. , . Otherwise see Brand, above n. , p. . See Whytock, above n. , pp. –; cf. also Kamba, above n. , at : ‘equivalent functions performed’. David J. Gerber, ‘Sculpting the Agenda of Comparative Law: Ernst Rabel and the Façade of Language’ in Annelise Riles (ed.), Rethinking the Masters of Comparative Law (Oxford: Hart Publishing, ), pp. , . See Jaakko Husa, Interdisciplinary Comparative Law (Cheltenham: Edward Elgar, ). See Max Rheinstein, ‘In Memory of Ernst Rabel’ () American Journal of Comparative Law . John Cartwright and Martijn Hesselink, ‘Introduction’ in John Cartwright and Martijn Hesselink (eds), Precontractual Liability in European Private Law (Cambridge: Cambridge University Press, ), pp. , .
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anthropology or political science differs from that of comparative law. It would appear that the concept of ‘function’ in other disciplines has scarcely anything to do with the comparative study of law. But, of course, there are conceptual similarities, such as the general kinship of Rabel’s functionalism to the functional analysis that forms part of Luhmann’s macro-sociology. Although Luhmann was also interested in functional equivalents, he was in other respects more systematic, holistic, theoretical and emphasising of causal relations than the lawyer Rabel, who was interested in concrete legal problems (contract, marriage, sale of movables and so on). It is no surprise, then, that reading Luhmann’s sophisticated sociological theory is a fundamentally different experience from reading texts by functional comparative law scholars. Importantly, Rabel’s rule-ofthumb type of functionalism is more closely related to the doctrinal study of (private) law than to sociological theory. Rabel’s intellectual home base was in conflict of laws, not in social theory. The fact that comparative law functionalism was crafted by doctrinally trained lawyers and not by social scientists has great importance for the methodological outlook of traditional comparative law and why traditional comparative law has been unable to genuinely embrace interdisciplinarity. In order to grasp the bare bones of comparative law functionalism, one needs to look back at its intellectual roots. From the point of view of functionalism, it is useful to note Rabel’s seminal article which was published in the late s. At the beginning of the text, the development of the theory of comparative law from the early s is characterised in the light of the grand names of Rabel’s time, mentioning Saleilles, Lambert, Kohler, Pollock, Pound and Wigmore. Rabel crystallised the heartstrings of his own comparative approach out of the work of these great scholars, summing up that the surface level, that is the language of law, does not suffice as one must take into the account the functions of legal institutions. It was in the functions of legal institutions that real law was to be found, rather than from the mere wording of foreign legal texts that could not be trusted as sources of research. This was early guidance, later echoed by Rheinstein, for comparative law scholars to concentrate on the functions of legal institutions instead of seeing merely the linguistic surface of foreign law. Later scholarship by Zweigert and Kötz transformed this timid guidance into a mainstream
Jaakko Husa, ‘Functionalism’ in Michael T. Gibbons (ed.), The Encyclopedia of Political Thought (Oxford: WileyBlackwell, ), p. . Niklas Luhmann, Social Systems (Stanford, CA: Stanford University Press, ), pp. –. This would imply certain differences between empirical or natural sciences: normative legal research (i.e., legal dogmatics) is at many times hermeneutic, embedded in institutional dimensions of law and interpretative. See John Bell, ‘Legal Research and Comparative Law’ in Mark Van Hoecke (ed.), Methodologies of Legal Research (Oxford: Hart Publishing, ), pp. , . Ernst Rabel, Gesammelte Aufsätze Band III Arbeiten zur Rechtsvergleichung und zur Rechtsvereinheitlichung (Tübingen: Mohr Siebeck, ), pp. –. ‘Mit einem Wort: wir vergleichen nicht starre Daten und isolierte Paragraphen, wir vergleichen vielmehr, welche Lösungen sich aus der Gesamtheit des ganzen vollen Rechtserlebens in den einen und in dem anderen Staat in den gleichen Lebensfragen ergeben. Indem dieses umfassende Untersuchungsprogramm die Funktion der Rechtsinstitute an die erste Stelle setzt [. . .]’, Rabel, ibid. . [In English: ‘In a word: we do not compare rigid data and isolated paragraphs, we compare the solutions that result from the totality of the whole full legal experience in one state and in the other in the same questions of life. In doing so we put the function of legal institutions first in this comprehensive programme of investigations.’] Banakas traced functionalism to Max Rheinstein’s article published in the s, see Efstathios K. Banakas, ‘The Method of Comparative Law and the Question of Legal Culture Today’ () Tilburg Foreign Law Review (‘First proposed by Max Rheinstein . . . functionality is now accepted as the orthodox, methodological principle of all meaningful comparative law’, ibid. ). In the article Rheinstein connects the functional approach to American legal education: ‘as it has been developed in modern American legal education, means that every legal rule and institution is presented to law students from the point of view that it fulfils a function in the machinery of organized society’, Max Rheinstein, ‘Teaching Comparative Law’ () University of Chicago Law Review , . For the purpose of this chapter, it does not make sense to trace the origins of functionalism in greater detail.
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view on methodology among comparatists. Surprisingly, Rabel’s key elements of comparative method are virtually unaltered if we consider the way they are still formulated by mainstream researchers in the twenty-first century. Crucially, concentrating on studying particular material and isolated provisions, emphasis should supposedly be on a comparison of those specific solutions that each State makes (through law) in situations that are supposedly identical. The heuristic descriptions of comparative legal research described in the previous section are all, more or less, based on this kind of methodological foundation. As to its nature, the methodological foundation of traditional comparative law is flexible and eclectic in the sense that it allows different views on methods, because its elasticity requires the comparatist to develop a new method (in the technical sense of the word) for each project. Modern approaches, discussed elsewhere in this Handbook, typically seek to offer more detailed methods as they seek to break free from the limits of the traditional heuristic understanding of comparative law methods forged under the long shadow of legal doctrine. In any case, heuristic traditional functionalism has one central strength: it is uncomplicated and easy to keep in mind. Traditional functionalism seemingly overcomes theoretical and practical problems that result from the study of legal systems foreign to the comparatist. Instead of sophisticated theoretical and methodological discourse, Rabel was interested in practical legal questions of an international character. There are other limitations, too, as ‘the method was not designed as a basis for all comparative studies’. This is also why we should be reluctant to instinctively assume that functional comparative law can deal with all types of sociolegal problems. No doubt, the traditional methods have inborn limitations. Even though the traditional functional approach has its limits and problems, it can be argued that it at least brought about an expansion of the comparative study of law as functional approach (es) became part of mainstream legal thinking, especially in Europe. It managed to expand the narrow doctrinal understanding of comparative law and, in this sense, to broaden the methodological horizon of doctrinally trained lawyers venturing to study law comparatively. That is to say, functionalism in comparative law meant a methdological step forward for doctrinally trained legal scholars. Notwithstanding, comparative law functionalism in research practice is known for its focus on black-letter-law. This is not a surprise, as traditionally trained lawyers tend to focus on positive law and formal sources of law because that is the epistemic basis of their research. It is important to point out that functionalism in comparative law was originally not designed as a refined methodology because it was a methodological rule of thumb aimed at doctrinal lawyers. Problems with functionalism begin when it is expanded, and some ideas not present with Rabel were thus expanded by Zweigert and Kötz. The significance of those ideas has been very important and their position for today’s mainstream position – coined here as traditional comparative law – elemental. Yet, they seemingly continued along the path trailblazed by Rabel. However, Zweigert and Kötz’s paradigm risks assumptions that go further than Rabel
Cf. Hyland, above n. , p. . Brand, above n. , at . Brand, above n. , at . Michele Graziadei, ‘Comparative Law, Transplants and Receptions’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, ), pp. , . See Jaakko Husa, ‘Farewell to Functionalism or Methodological Tolerance?’ () Rabels Zeitschrift für ausländisches und internationales Privatrecht at : ‘Even with its innate blind spots, functionalism is theoretically a reasonably solid methodological ground for analytic comparative analysis of developed legal systems, provided it is open to admit that it is not neutral and that its possibilities are limited.’
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concerning the assumed functional similarity between legal systems. The similarity assumption is a typical feature in traditional approaches, whereas modern pluralist comparative law has, by and large, abandoned this epistemic idea. Understanding the intellectual foundations of comparative law functionalism necessarily involves discussing it against the backdrop of universalism. This discussion is warranted because universalism is one of the key factors behind traditional methods of comparative law. Universalism explains much of the groundwork underlying traditional methods. D. UNIVERSALISM AS AN UNDERLYING ASSUMPTION
What sets modern comparative law apart from traditional comparative law is their different relationship with law as a research subject. Traditional comparative law was similar to public international law and private international law as long as it was based on the idea that one of comparative law’s main purposes was to eradicate differences and enhance the harmonisation and unification of laws globally. Traditional comparative law has existed both as a professional practice (law drafting, judicial comparativism) and as an academic discipline (research, teaching) with a strong preference for similarity. It has hence both assumed and produced similarity. This implicitly or explicitly assumed role has had a tremendous impact on traditional comparative law methods. The key factor here has been an ever-present commitment to universalism, which is related to the idea of the universality of law that sees international law as a global system which has worldwide validity as it binds all States. In essence, this kind of legal universalism assumes the existence of legal rules applicable to all legal subjects. Universalism in comparative law is, nevertheless, different as comparative law is not a field of law but a branch of legal knowledge. Originally, universalism can be traced back to important comparatists, such as Saleilles in the early s, which illustrates the deep European roots of legal universalism. Without the shadow of a doubt, universalism has been an important epistemic constitution on which traditional methods have been built in comparative law. To that end, universalism explains much of the characteristics of traditional comparative law and the centres of gravity around which its methodological assumptions are based. However, it is important to distinguish between different forms of universalism. From the viewpoint of methodology, legal universalism is an important factor for traditional comparative law. In essence, legal universalism, as a legal ideology, supports the desirability of creating far-reaching similarities between the laws of the world. Consequently, the key goal has been an attempt to reduce differences between the legal systems of the world. For comparative law, universalism has two central manifestations: unification and harmonisation. Even though these notions overlap, they are not fully identical. Both of these manifestations of universalism are related to a specific interest in knowledge as it was typical of twentieth-century comparative law. This interest in knowledge can be described as
Cf. Valcke and Grellette, above n. , pp. –. See Van Hoecke, above n. , p. . See for more detailed analysis, Jaakko Husa, ‘Merging International Law and Comparative Law’ () Rabels Zeitschrift für ausländisches und internationales Privatrecht . André Nollkaemper, ‘Universality’ in Max Planck Encyclopedia of Public International Law (), see https://opil .ouplaw.com/view/./law:epil//law--e (accessed February ). See Christophe Jamin, ‘Saleilles’ and Lambert’s Old Dream Revisited’ () American Journal of Comparative Law . About legal universalism in general, see Kevin E. Davis, ‘Legal Universalism’ () University of Toronto Law Journal (Davis distinguishes common law universalism, functional universalism, and procedural universalism against the backdrop of law and development scholarship).
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an integrative interest. Essentially, this genre of comparative study of law focuses on similarities, as it wants to eliminate differences. In other words, harmonisation means an attempt to create harmonised legal systems. In practice, this means that the biggest differences between systems are eliminated by constructing a minimum standard with which all parties must comply. The outcome of this is substantively similar rules, although individual legal systems retain many of their individual characteristics. Comparison, here, is a second-rate apparatus that assists in constructing common standards. Unification, in turn, goes further, as the goal is to achieve identical applicable rules. Consequently, unification seeks to replace two or more legal systems with a new system. As a result, unification is normatively cosmopolitan by nature. In this specific version of cosmopolitanism the intellectual foundation is almost identical – internationalism – with that of public international law. Comparatists whose background is in private international law also tend to favour harmonisation or unification for practical legal reasons, while modern comparatists are much more reserved about the topic. At the other end of the intellectual spectrum, critical and postmodern comparative law scholarship has stressed the importance of legal–cultural differences. An embodiment of culturally-aware pluralist thinking in comparative law is Legrand, who has been pioneering the movement towards the appreciation of differences and diversity. Notwithstanding, mainstream comparative law as developed in the twentieth century was built on universalism, as legal diversity has been conceived of as an obstacle or as a problem that needs to be solved. A paradigmatic example of the underpinning legal thinking is the famous European Common Core Project, which brings forth the particular mindset behind traditional comparative law methods in light of the underlying theoretical ideas about law based on universalist thinking. To simplify a great deal, common core-type thinking is based on the idea that legal systems have a common core, and thus that it is possible, or even desirable, via the comparative study of law, to find their common elements. This enhances either harmonisation or unification. The underlying idea of a common core of the legal systems of the world, and the search for that core, was developed first in Schlesinger’s comparative research programme at Cornell University in the s. The origin of the project can be traced back to Schlesinger’s earlier article, based on public international law, in which he sketched the idea of a common core of law and a comparative methodology for finding it. The underlying universalist idea was simply the ‘similarity of legal solutions’ that was, by and large, an outcome of the migration and reception of legal ideas and harmonisation projects. The methodological challenge for the project was how to obtain comparable answers to questions presented to experts from different legal systems. The difficulty lay in creating identical
See Husa, above n. , pp. –. See R. H. Graveson, ‘The International Unification of Law’ () American Journal of Comparative Law (‘international process of assimilating the diverse legal systems’). Husa, above n. , at –. See, for example, Pierre Legrand, ‘The Same and the Different’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, ), p. . See also James Gordley, ‘Comparison, Law, and Culture’ () American Journal of Comparative Law Issue Suppl. and James Q. Whitman, ‘Hunt for Truth in Comparative Law’ () American Journal of Comparative Law Issue Suppl. . Rudolf B, Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’ () American Journal of International Law . Rudolf B, Schlesinger, ‘The Common Core of Legal Systems’ in Kurt Nadelmann, Arthur T. and von Mehren, John N. Hazard (eds), XXth Century Comparative and Conflicts Law: Legal Essays in Honor of Hessel E. Yntema (Leiden: AW Sythoff, ), pp. , .
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questions that would be understood in the same manner by all respondents. Essentially, the problem is the same as Rabel’s – namely an attempt to penetrate the surface level of law and enter the deeper level of law lurking behind the deceptive surface layer of language. Methodologically, this was an essential idea. If lawyers from different countries were to understand the questions differently, then the results would not be genuinely comparable. Moreover, the answers from different legal systems had to be self-explanatory in the sense that there would be no need for further explanations complicating the interpretation of data received. From the point of view of comparative method, the key lesson for the comparative study of law was that it compelled lawyers from different systems to reply to identically formulated questions without, in principle, the legal-cultural baggage of one’s own legal system. Inherently, this was about constructing a common point of comparison (tertium comparationis) and thus ensuring the scientific validity of the comparative study of law. The way the common core method works is rather similar to the blueprint method discussed above. First, one would have to construct questions and hypotheticals and then circulate them among those participating in the research project. Second, legal experts from each system would answer the questions by explaining how their own law would react to each of the hypothetical questions supposedly presenting a common legal problem. Third, the answers would then be discussed in seminars in order to ensure the results were valid and that there were no misunderstandings. The fourth phase consisted of drafting a general report pointing out differences and similarities between all systems studied. Eventually, Schlesinger’s ambitious project resulted in a massive two-volume treatise. Even though the Cornell project is no longer well known among modern comparative lawyers, it unearths a kind of a culmination point of traditional comparative legal methods. Crucially, the project had a longstanding impact on comparative legal methodologies. One important outcome is the continued use of this approach by the International Academy of Comparative Law at its conferences, which are based on a similar approach. The second important outcome was the European Common Core Project, which considered the private law of the various European legal systems. From a methodological viewpoint, it is noteworthy that the European Common Core Project assumed its universalist approach, for the most part, from Schlesinger’s earlier project based on universalising comparative law functionalism. Even today, the blueprint and European Common Core Project provide an insight into a methodological-model for the comparative study of law, as research is supposed to be performed by doctrinally trained lawyers. Interdisciplinarity, of course, brings new elements and challenges to traditional comparative law and the methods used. Modern comparative law’s universalism is different from that of the old paradigm, as it lacks the normative dimension typical of traditional approaches. Traditional methods and modern methods of comparative law rest on a different theoretical base. The key difference between traditional and modern comparative law lies in their conceptions of universalism. In essence, modern comparative law has freed itself from the epistemic and normative limits set both by public and private international law and by integrative comparison. The contemporary
Rudolf B. Schlesinger (ed.), Formation of Contracts: A Study of the Common Core of Legal Systems Vol. and (Dobbs Ferry, NY: Oceana, ). These congresses have been organised since , see https://aidc-iacl.org/general-congresses/ (accessed February ). See, for example, Ugo Mattei, ‘The Common Core Approach to European Private Law’ () Columbia Journal of European Law . Cf. Cartwright and Hesselink, above n. , pp. – (‘how different legal systems solve the same practical cases’).
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Epistemic universalism
Normative universalism
Traditional comparative law
. Versions of universalism
underlying comparative ethos is not that of harmonisation but an epistemic effort to cross borders and gain a general knowledge of law in different legal cultural contexts by using different ‘schemes of intelligibility’. The goal is to study differences and similarities with a view to explaining the reasons behind them. In today’s comparative law scholarship, this epistemic need is anchored in pluralism, which stands in opposition to the normative universalism of traditional comparative law. As the illustration in Figure . seeks to point out, normative universalism as an idea is more similar to traditional comparative law than the modern comparative study of law. Comparative law’s non-normative epistemological universalism assumes the existence of nonState-based legal knowledge in the sense that the borders of legal systems are not the borders of research and lawyers are able to learn across borders. The key epistemic observation here is that ‘universalism inevitably erases diversity’, which is why combining a normative view with universalism is alien to modern comparative law methodologies. In turn, a lack of diversitybased thinking is typical of traditional comparative law methods as exemplified in comparative law functionalism discussed above. The future direction of comparative law seems to be interdisciplinary. Hence, traditional approaches seem to be losing their dominance. However, this conclusion may be oversimplified and premature.
The scheme of intelligibility is a notion used by Samuel (above n. , pp. –) and it means roughly the same as paradigm orientation, that is a particular way of studying law comparatively. Paul Schiff Berman, ‘Evolution of Global Legal Pluralism’ in Roger Cotterrell and Maksymilian Del Mar (eds), Authority in Transnational Legal Theory (Cheltenham: Edward Elgar, ), p. . Of interdisciplinarity in comparative law, see for example Geoffrey Samuel, ‘All That Heaven Allows: Are Transnational Codes a ‘Scientific Truth’ or Are They Just a Form of Elegant ‘Pastiche’?’ in Pier Giuseppe Monateri (ed.), Methods of Comparative Law (Cheltenham: Edward Elgar, ), p. (comparatist needs ‘by definition to be interdisciplinary’, ibid. ). For a comprehensive discussion, see Husa above n. .
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E. THE FUTURE OF TRADITIONAL METHODS
Modern approaches in comparative law are methodologically more versatile than in the past. Functionalism in its various forms, as well as normative universalism with its accompanying integrative objective, have lost their all-but-paradigmatic position on which the methodology of traditional comparative law was built. Quantitative, qualitative, computational, economic, historic, critical and linguistic approaches have become more commonplace in the comparative study of law. It has been rightly pointed out that the general trend has been an expansion of comparative law’s methodological toolbox and its substantive perspective. Accordingly, comparative law research extends beyond the narrow bounds of private law and Western law. Much of this scholarly expansion is undoubtedly motivated by dissatisfaction with the established paradigm of traditional comparative law. In unison, methodological and substantive expansion are the driving forces behind new approaches and themes. Moreover, the globalisation and transnationalisation of law are posing novel challenges to the comparative study of law and methods applied. These developments raise a question about the future of traditional comparative law methods. Here, in the form of legal globalisation, we can see universalism raising its head again to challenge the modern pluralist view of comparative law. Recently, comparative law methods have been discussed against a broader background of the humanities and social sciences. Finally, one important feature of the new methodological thinking is that, unlike the old paradigm, there is no longer a need to define the best approach in the comparative study of law. Indeed, one of the underlying features of the present treatment of traditional methods was to present openly or implicitly normative views about methods. Modern approaches, on the contrary, are built on the idea that the comparative study of law can use many methods. Accordingly, comparatists need, instead of a single method, a toolbox of methods. The methodological vision of a toolbox allows pluralism, as it accepts that different approaches are available for the comparative study of law, rather than insisting that there is only one way to undertake comparative law research. Crucially, this means that traditional methods still form part of the methodology of comparative law as there is no overarching view on methods. What is to be expected in the future is that, instead of abandoning traditional methods, new approaches are deployed alongside traditional ones. In a sense, methods are layered as an organic whole rather than as a neatly organised scientific methodology advancing in a rational or foreseeable manner. What is more, it is also to be expected that traditional approaches are combined with new ones. From there it follows that instead of pure historical, linguistic or economic comparisons, we may see new approaches mixing with the old ones to create novel and fascinating
It is now pointed out that ‘comparatists should mobilize other disciplines’, Glanert et al., above n. , p. . See Mathias Siems,’ New Directions in Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. . Cf. Matteo Nicolini, ‘Methodological Rebellions’ () The Journal of Comparative Law , –. Maurice Adams and Mark Van Hoecke (eds), Comparative Methods in Law, Humanities and Social Sciences (Cheltenham: Edward Elgar, ). See for example Husa, above n. , p. : ‘the toolbox of comparative law, not of the only right tool, i.e. as a research field comparative law is necessarily methodologically pluralistic’; Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ () Law and Method (DOI: ./REM/.) : ‘we need a “toolbox”, not a fixed methodological road map’; Siems, above n. , p. : ‘comparative law has broadened both its methodological tool box and its substantive perspective’.
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methodological possibilities for the comparatists of today and tomorrow. To conclude, traditional methods are not disappearing, but they are transforming and evolving interactively with more recent interdisciplinary approaches. These novel methods include those discussed in the following chapters of this Handbook, including historical, linguistic, empirical, socio-legal and economic approaches. As these chapters show, many elements of traditional comparative law methods are still part of the endeavour of studying law comparatively.
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Historical-Jurisprudential Methods Jean-Louis Halpérin*
The relationship between comparative law and legal history has been a topic of interest for a long time. But reflections on how methods could combine the historical approaches of legal systems around the world with theoretical or jurisprudential points of view really began with Edouard Lambert’s book La fonction du droit civil comparé. Using the two meanings of ‘jurisprudence’ (as case law in French language and as legal theory in English), Lambert proposed comparing positive rules while bearing in mind the weight of history and its limits. Following this path, this chapter explores critical and constructive approaches to comparative law through legal history. In the first part of this chapter, history is used to criticise simplistic conceptions of comparative law like ‘legal families’ and ‘national spirit’. In the second part, historical-jurisprudential approaches are defended as a means of more clearly delimiting legal phenomena and facilitating a deeper analysis of the dynamics of law. In conclusion, scholars are and should remain open to developing a diversity of historical-jurisprudential approaches.
A. INTRODUCTION
The relationship between comparative law and legal history has been a topic of interest for a long time. Considering that history must be illuminated by laws and laws by history, Montesquieu did not hesitate to take examples from the Ottoman Empire, China, Japan, Mexico or even the Maldives. Montesquieu inspired the nineteenth-century European jurists who were interested in comparing Roman law with extra-European laws that were known from travel literature or colonial reports. Thibaut wrote in that ‘ten sophisticated lectures about the constitutions of the Persians and the Chinese’ would be better for legal education than
* Professor, École Normale Supérieure – PSL, Paris. All internet links cited in this chapter have been last accessed on October . Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (Tony Weir tr., Oxford: Oxford University Press, rd ed., ), p. ; Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), p. . Charles de Secondat Montesquieu, De l’esprit des lois (Geneva: Barrilot & Fils, ), p. XXI, . Ibid., p. XVI, .
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‘“pathetic charlatanry” and “micrology” about some details of Roman law’. Savigny replied that the legal history of all peoples was not equally interesting and that it was necessary to favour the legal history of Christian Europe. Despite this, Gans wrote his famous essay about the universal history of inheritance in and quoted Jewish, Chinese and Islamic laws. In France, Laboulaye, the founder of the Revue historique de droit français et étranger () and of the Société de législation comparée (), already spoke about ‘comparative legal history’ (histoire comparée du droit). All these nineteenth-century jurists were convinced that legal rules were a necessary product of the past and that it was possible to infer laws of evolution from the empirical data discovered through legal history. This ‘historical jurisprudence’, as Mathias Reimann calls it, was rooted in Savigny’s conviction that law was ‘an essentially historical phenomenon’ and that the diversity of European legal systems (relativised by a common heritage of Roman law) could be explained by the consciousness (or Volksgeist) of every people in Europe. Laboulaye, who was heavily influenced by Savigny, as were Amari, Henry Sumner Maine, and almost all European and American legal historians until the s, thought that legal history was the door to comparative law. However, the use of an empirical method, based on history and especially on the study of ancient law, led Amari, as well as Sumner Maine, to be opposed to a strict determinism or simplistic evolutionism. Furthermore, the first development of an ethnographic study of nonWestern law triggered doubts about Savigny’s schemes that were conceived only for the heritage of Roman law. For all these reasons, Eurocentric nineteenth-century theories of historical methodology have declined or been transformed into new conceptions of comparative legal history. The focus here is therefore not comparison in legal history, but the use of legal history approaches in comparative law today. Here, my starting point will be Edouard Lambert’s famous book La fonction du droit civil comparé. Several reasons justify this choice. First, it has to be noted that Lambert was a legal historian. In , he was successful in the last national competition in France to recruit law professors without specialisation (the agrégation unique that was subsequently replaced by four specialised competitions, including one of legal history). Then, his professorship in Lyon was one of legal history and he wrote about this matter, especially about Roman law in a famous
Katharina Isabel Schmidt, ‘From Evolutionary Functionalism to Critical Transnationalism: Comparative Legal History, Aristotle to Present’ in Markus D. Dubber and Christopher Tomlins (eds), The Oxford Handbook of Legal History (Oxford: Oxford University Press, ), p. . Zeitschrift für geschichtliche Rechtswissenschaft reproduced in Friedrich Carl von Savigny, De la vocation de notre temps pour la législation et la science du droit (Alfred Dufour tr., Paris: PUF, ), pp. –. Eduard Gans, Das römische Erbrecht in weltgeschichtlicher Entwicklung. Eine Abhandlung der Universalrechtsgeschichte (Berlin: In den Maurerschen Buchhandlung, ). Édouard Laboulaye, De la méthode historique en jurisprudence et de son avenir (Paris : Dalloz, ), p. . Mathias Reimann, ‘Historical Jurisprudence’ in Markus D. Dubber and Christopher Tomlins (eds), The Oxford Handbook of Legal History (Oxford: Oxford University Press, ), p. . Emerico Amari, Critica e storia di una scienza delle legislazioni comparate (Soveria Mannelli: Rubbettino, for a reprint of the edition) was opposed to Charles Comte’s idea that legal rules were determined by social needs expressed through history. For a nuanced consideration of the relationships between Maine’s conceptions and Spencer’s evolutionism, see Kenneth E. Bock, ‘Comparisons of Histories; the Contribution of Henry Maine’ () Comparative Studies in Society and History . Albert Hermann Post, Bausteine für eine allgemeine Rechtswissenschaft auf vergleichend-ethnologischen Basis (Oldenburg: C. Bernd & A. Schwartz, ); Albert Hermann Post, Grundriss der ethnologischen Jurisprudenz (Oldenburg: A. Schwartz, ); Josef Kohler, Das chinesische Strafrecht. Ein Beitrag zur Universalgeschichte des Strafrechts (Würzburg: Druck und Verlag der Stahel’schen Universität, ); Josef Kohler, Rechtsvergleichende Studien über islamitisches Recht, das Recht der Berbern, das chinesische Recht und das Recht auf Ceylon (Berlin: Carl Heymann, ).
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paper criticising the traditional date of the law of Twelve Tables. Second, in , Lambert wrote a -page book that was also devoted, in large part, to criticising the traditional Romanocanonic theory of customary law. In addition, he was particularly aware of the recent literature about comparative legal history, as he quoted Goldziher’s and Kautzsch’s studies about Islamic and Jewish texts. He considered Maine, Post and Kohler as pioneers of the historical comparative approach. Third, Lambert critiqued the traditional conception of customary law as a set of spontaneous rules coming from the people, which meant a frontal attack against the Historical School of Law. He also denounced Pandectist conceptions (including the cult of Roman law by his own masters), especially that of the Russian professor Petrazycki: Roman law was no longer the ‘messiah of humanity’ or the ‘book of wisdom’ according to Lambert. Not only it was necessary to include large-scale comparisons with Jewish, Islamic, Hindu and Scandinavian traditions in legal history (Lambert wrote eight years before Maitland’s famous motto ‘history involves comparison’), but the law of the past was not likely to resolve all the new problems of contemporaneous societies. Fourth, Lambert understood the English meaning of the word ‘jurisprudence’ to be the superior branch of the science of law. His approach was therefore ‘historical-jurisprudential’ in two ways: as a method giving more importance to judicial practice than to legislative statements (the two phenomena of case law in common law countries and jurisprudence in the French sense had to be deeply compared according to Lambert) and as a conception of legal science that had to be developed in order to clarify the task of comparatists. Lambert did not propose his own legal theory, but following the Paris Congress, he advocated for the distinction between two sciences (or one art and one science) and two methods of comparative law: one of comparative law as a tool for the rapprochement of positive private laws (droit commun législatif) that had to be distrustful of the past, and another which saw comparative law as a social science studying all legal phenomena, whether of living or dead systems, without practical goal (histoire comparative des institutions). According to Lambert, this scientific and historical science of comparative law was supported during the Paris Congress by Kohler, Esmein and Tarde. This conclusion was based on his personal interpretation of reports, which tended to be based on evolutionist conceptions. Even taking into account the important changes in the discipline of comparative law since Lambert’s book, one can use some of his postulates today to defend ‘historical-jurisprudential methods’. First, he shows that there are scientific goals (and not only practical ones) of comparative law. These can be realised by historical approaches among other methods.
Édouard Lambert, La fonction du droit civil comparé (Paris: Giard et Brière, ), p. (ces trois vaillants pionniers de la science de l’histoire comparative du droit). Ibid., pp. –. Ibid., p. . Ibid., p. . In his book, Lambert preferred to speak of ‘art’ for the comparative legislation. Congrès international de droit comparé tenu à Paris du juillet au août , Procès-verbaux des séances et documents (Paris: LGDJ ), vol. , pp. –. Ibid., p. (Kohler pleaded only for a comparison between systems at the same level of ‘civilization’), p. (Tarde insisted on sociological aspects and on social conflicts), and p. (Esmein proposed a classification of legal systems in four groups for the teaching of comparative law, including the historical formation of these systems). Other readers of Lambert’s book have insisted on his project of a common legislative law, neglecting the historical approach that represents per cent of the work: Georges Sauser-Hall, Fonction et méthode du droit comparé (Genève: Albert Kündig, ), pp. – and, more recently, Christophe Jamin, ‘Le vieux rêve de Saleilles et Lambert revisité. À propos du centenaire du congrès international de Paris’ () Revue internationale de droit comparé .
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Historical-Jurisprudential Methods
Nonetheless, approaches should not only be rooted in the knowledge of ‘ancient laws’, because many legal issues have appeared and developed in recent years. This is vividly illustrated by the sentence of von Kirchmann against the Historical School of Law in : ‘three corrective words of the legislator, and entire law libraries become scrap paper’. Similarly, one has also to be conscious of developments in contemporary legal history that can be used to explain twentieth-century phenomena. Second, historical-jurisprudential methods are not limited to Europe or to European conceptions of law: for this reason, the analysis of historical legal data needs clarifications about jurisprudence and involves discussions about a minimal concept of law that could be used everywhere. As Lambert said, one has to reject simplistic explanations about laws of evolution and admit that each legal configuration is subject to change. This is why I speak of historical-jurisprudential methods in the plural form: the choice between different legal theories (notably about the definition of legal phenomena) means a plurality of approaches. For example, I personally disagree with Lambert’s statements that historical comparison would be reduced to the ‘skeleton’ of legal systems and that many legal conceptions are deeply rooted in the national consciousness. On these bases, inspired by an interpretation of Lambert’s book, I discuss two aspects of historical-jurisprudential methods: using these methods to critique some simplistic conceptions of comparative law (), then combining history with jurisprudence to participate in the progress of comparative law (). For each point, I give my opinion, but also try to present the diverse alternatives. B. USING HISTORY TO CRITIQUE SOME SIMPLISTIC CONCEPTIONS OF COMPARATIVE LAW
Many specialists of comparative law make reference to history. But these references, used as a conscient or inconscient basis to justify ideas such as the existence of legal families or national legal ‘spirits’, are inconsistent with modern developments in legal history research. Professionals of legal history can therefore offer their expertise to challenge the traditional classifications of legal systems and to move conversations away from the idea of a national spirit towards a more nuanced understanding of legal cultures. . Replacing Legal Families with New Paradigms Legal family classifications are today questioned and challenged through methodological arguments. Whereas these classifications purported to be based on empirical facts, they appear inconsistent with analyses of legal history today. To illustrate this, first, it is necessary to historicise the different proposals of legal families that were made in comparative works.
Julius von Kirchmann, Die Werthlosigkeit der Jurisprudenz als Wissenschaft (Dornbirn: BSA Verlag, ), p. (my own translation). Frédéric Audren, Anne-Sophie Chambost and Jean-Louis Halpérin, Histoires contemporaines du droit (Paris : Dalloz, ). ‘Congrès international de droit comparé’, above n. , p. (‘Le comparatiste historien, dont la vue s’étend sur toutes les législations vivantes ou mortes, dont le seul souci est d’intégrer chacun des systèmes juridiques dans l’un des échelons de révolution générale de l’humanité ou de fixer sa place naturelle dans la classification des droits, se contentera de dégager les lignes directrices, la structure générale, le squelette en quelque sorte de chacun des systèmes juridiques.’). Jaakko Husa, ‘Classification of Legal Families Today – Is It Time for a Memorial Hymn?’ () Revue internationale de droit comparé ; Siems, above n. , pp. –.
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Jean-Louis Halpérin
Paradoxically the first one in the chronology seems to be the Japanese professor Nobushige Hozumi, one of the drafters of the Japanese Civil Code (Minpo). In an – Japanese text, he considered that there were five groups of laws in the world: Indian, Chinese, Islamic, Anglo-Saxon and Roman. Then, in a book in English, Hozumi enlarged his classification to seven systems and proposed a ‘genealogical’ method, making links between a ‘Mother Law’ and her descendants. He thus counted seven legal families (Chinese, Hindu, Mohammedan, Roman, Germanic, Slavonic and English). The goal of this classification was to demonstrate that the Japanese law had passed ‘from the Family of Chinese law to the Family of European Laws’. Not only did Hozumi not say which European Family Law the Japanese had joined, however, but he wrote that his classification was neither ‘exhaustive or exclusive’. There were also nuances in Esmein’s report (about the teaching of comparative law) during the Paris Congress. He spoke first of four families (Latin, German, Anglo-Saxon and Slavic) among the legal systems of Western civilisation, the grouping being made according to the formation, history and main characters of these laws (excluding Roman and canonical law from the classification, as a kind of common core for all legal systems). Then, he considered that Muslim law could perhaps (peut-être) be added as fifth group, taking into account the colonial subjection of many Muslim people to Western powers. One can see that the imperialist perspective was not hidden! Also clearly dated today is Sauser-Hall’s proposal in his book Fonction et méthode du droit comparé. The Neuchâtel professor, very critical of Lambert, Saleilles and Roguin, defended an ethnological classification, dividing the races (considered as natural phenomena), into three or four groups: one for the law of Aryan races (Hindu, Iranian, Celtic, Greek, Roman, German and Anglo-Saxon), a second one for the Semitic races (Assyrian, Egyptian, Hebraic and Islamic), a third one for the Mongol races (Chinese and Japanese) and a last inferior group for barbarous people ruled by customs in Africa, America and Oceania. The goal of this classification based on races, other than the openly racist one, was again to limit the comparison of institutions inside one family and to warn readers about the danger of ‘transpositions’ of foreign laws. After World War II this typology of legal families was maintained, with small changes like René David’s proposal to add a socialist family. And, again, these classifications were based on history, notably the ideas of a large ‘reception’ of Roman law in continental Europe, of a complete isolation of common law from this Roman influence and of rather ‘exotic’ (as religious and customary) systems outside Europe. Today all these prejudices are rejected by a majority of legal historians. After a period of excessive enthusiasm for the jus commune – a core of Roman law that could have been maintained until modern times and thus nowadays be a source of private European law – legal historians now agree about the precocity of practices not ruled by
The classification (in three groups) made by the French professor Ernest Glasson, Le mariage civil et le divorce dans les principaux pays de l’Europe (Paris: G. Pedone-Lauriel, ), pp. VI–VIII only concerned European laws according to their proximity with Roman law. It cannot be considered as an attempt to map the world’s legal systems. Hans-Peter Marutschke, Beiträge zum Modernen Japanischen Rechtsgeschichte (Berlin: BWV, ), p. . Nobushige Hozumi, Lectures on the New Japanese Civil Code (Tokyo: Maruzen, ), pp. –. Ibid., p. . ‘Congrès international de droit comparé’, above n. , p. . Sauser-Hall, above n. , pp. –. René David and John E. C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (London: Stevens & Sons, ), p. . About David’s changing conceptions, from his Traité élémentaire de droit civil comparé to his Les Grands systèmes de droit contemporain, see Mariana Pargendler ‘The Rise and Decline of Legal Families’ () American Journal of Comparative Law .
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Historical-Jurisprudential Methods
Roman law, as well as the clear breaks away from this system. These occurred first through princely or royal legislation, then national codifications. Other historical works have further shown that England was not so closed to canon and Roman law as Maitland and Holdsworth had thought. Rather, in modern times, the exchanges between common law and civil law were bilateral, if one thinks of juries, the parliamentary system or labour law. Additionally, AngloSaxon law is a nonsense for legal history after the Middle Ages and the law of the United States differs in many aspects (a written and federal constitution, judicial review, the paucity of labour laws) from the British model. Not only do the civil law and common law families not appear as monolithic, but the concepts of ‘Muslim law’, ‘Hindu law’ or ‘African law’ are also today seen as artefacts created by colonial powers. ‘Muslim law’ is an invented wording by orientalists and colonisers to distinguish Islam as a ‘religion’ and ‘legal’ rules inside the Koran, all concepts that were ignored by the Muslim tradition before the nineteenth century. In the first centuries of the Hijrah, Islamic ‘normativity’ gave birth to a legal tradition through the creation of judges (qadis) and the development of a literature (fiqh) focusing on rules of the sharia. This legal tradition was never monolithic, for instance taking into account the divide between Sunnis and Shia and the existence of different ‘schools’ (madhhabs). It was deeply transformed by the positivisation of law, first in Islamic (Ottoman, Safavid and Mughal) empires, then in the colonial or quasicolonial contexts (with the adoption of codifications like the Ottoman Mecelle, the Tunisian, the Moroccan and the Lebanese Codes of Obligations) and finally in the contemporary States. Similarly Hindu law, as a complete system of positive rules supposed to be contained in antique dharma´sastras, ¯ is considered by many historians as an invented tradition based on the manipulated translations of William Jones. Today Hindu law is a set of State rules limited to matters of personal status and it cannot be conflated with the whole of the Indian legal system. By the same token, the old idea that the Chinese were (and could remain) distrustful of courts and of law has been completely abandoned since archaeological discoveries attesting to the existence of a developed statutory law since at least the third century BCE. And finally the concept of customary law systems, even restricted to matters of personal status, is also rejected by many legal historians, considering (as Lambert was among the first to think) that customary law (not be confused with customs) was always a reflex effect of judicial practice, developed through case law. Finally, all the allegedly historical foundations of legal families are questionable and
Wilhelm Brauneder, ‘Europäisches Privatrecht: aber was ist es?’ () Zeitschrift für Neuere Rechtsgeschichte ; Jean-Louis Halpérin, ‘L’approche historique et la problématique du jus commune’ () Revue internationale de droit comparé ; Pio Caroni, La solitudine dello storico del diritto: appunti sull’inerenza di una disciplina altra (Milano: Giuffrè, ), p. . Richard H. Helmholz, The ius commune in England (New York: Oxford University Press, ). Antonio Padoa Schioppa, ‘Common Law and Civil Law: uno scambio biunivico’ in Richard H. Helmholz and Vito Piergiovanni (eds), Relations between the ius commune and the English law (Soveria Mannelli: Rubbettino, ), p. . Baudouin Dupret and Léon Buskens, ‘De l’invention du droit musulman à la pratique juridique contemporaine’ in Baudouin Dupret (ed.), La charia aujourd’hui. Usages de la référence au droit islamique (Paris: La Découverte, ), pp. –. Lena Salaymeh, The Beginnings of Islamic Law (Cambridge: Cambridge University Press, ). Baudouin Dupret and Jean-Louis Halpérin (eds), State Law and Legal Positivism: The Global Rise of a New Paradigm (Leiden: Brill, ). Nandini Bhattacharyya-Panda, Appropriation and Invention of Tradition: The East India Company and Hindu Law in Early Colonial Bengal (New Delhi: Oxford University Press, ). About this old idea (involuntarily linked with Escarra’s works in the s), see David and Brierley, above n. , p. . As an example of the huge literature about the history of ancient Chinese law, see Yongping Liu, Origins of Chinese Law: Penal and Administrative Law in Its Early Development (Hong Kong: Oxford University Press, ).
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Jean-Louis Halpérin
the main classifications, including the one opposing civil law and common law countries, appear as by-products of colonisation, as Lambert wrote in . New paradigms or ideal types, including concepts of constitutional, family, criminal, commercial or labour law, are more heuristic today than a cartography of colonial empires after more than half a century of decolonisation. . Replacing National ‘Spirit’ with Legal Cultures The fact that modern States have historically constructed their own legal systems (Rechtsordnungen) should not allow other simplistic arguments that are contested by historical-jurisprudential methods to be perpetuated. On one hand, our world is full of States and the structure of legal rules is largely determined by state frontiers, by the effects of nationality, or by the impact of statutes and judgments on a national level. This ‘statalisation’ or nationalisation of legal rules is the outcome of a historical process – the development of the ‘modern State’. On the other hand, however, the growing impact of supranational rules, as well as perspectives focusing on non-state laws, have engendered doubts about the ‘systematic’ character of state laws. Speaking of German, French, Italian, Russian, Chinese, American or Indian law as a series of homogenous systems is practical and probably unavoidable, but this ease of reference must not lead to the conclusion that national laws are always anchored in the past and immutable. A historical-jurisprudential approach also considers the importance of legal revolutions and breaks. The first system of American law, as based on a constitutional text recognising the legality of slavery, was replaced by a new legal order through the Thirteenth, Fourteenth and Fifteenth Amendments. Nobody would say that German law has been a ‘seamless web’ from the unification (not to speak about the historical concept of Deutsches Privatrecht) until today, not least due to the ruptures provoked by the Nazi Regime, then by the separation between Western and Eastern Germany. All States have known, in the recent past, new constitutions or new interpretations of older constitutions that have meant change prevailed over continuity. Not only is there no essential character of national laws in the longue durée (even the history of common law can be divided into different stages), but the use of a spiritualist vocabulary (about the so-called spirit of each national law) is ahistorical and inconsistent with a positivist jurisprudence. Changing gradually, national legal systems have been subject to strong foreign influences, especially during modern times. Here, the issue is not the origins of legal systems or the questionable idea of ‘filiation’ that was used to construct the concept of ‘legal families’. Rather, the problematic concept is the one of ‘legal transplants’ – according to vocabulary proposed by Alan Watson (a legal historian of Roman law) in . The historical approach shows first that this issue was discussed by comparatists before Watson’s book. At the Paris Congress, Kohler devoted one part of his report (published in a French translation) to the
Lambert, above n. , p. . Gianfranco Poggi, The Development of the Modern State: A Sociology Introduction (Stanford, CA: Stanford University Press, ). The wording ‘modern State’ was popularised by Lucien Febvre, ‘De l’État historique à l’État vivant’ in Anatole de Monzie, Henry Puget and Pierre Tissier (eds), L’Encyclopédie française. L’État moderne (Paris: Comité de l’Encyclopédie française, ), vol. X, p. . James Gordley, ‘Comparative Law and Legal History’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. . Bruce Ackerman, We the People, Volume : Transformations (Cambridge, MA: Harvard University Press, ). Alan Watson, Legal Transplants: An Approach to Comparative Law (Charlottesville, VA: University Press of Virginia, ).
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Historical-Jurisprudential Methods
‘borrowing’ (emprunt) or ‘reception’ of foreign law. Kohler noticed that these borrowings were frequently linked in his time with legal innovations (for example, in industrial or labour law) and that foreign institutions had to be interwoven (intercalées) with the ‘spheres of law and civilization’ of the national law. Much of this matter’s ins and outs was therefore already exposed in ! Then, in the s, Frederick P. Walton, a Scots advocate who was director of the Khedivial School in Cairo, spoke of a ‘transplantation of legal system’ when discussing the massive borrowings of Western law in Egypt, Japan and Turkey. For legal historians of the nineteenth and twentieth centuries, there is convincing evidence of a multitude of legal transplants: the keeping of the Napoleonic Civil Code in Belgium (including the wording ‘qualité de Français’ about the Belgian nationality until !) and Luxembourg; its verbatim translation (with the exception of some articles) in Haiti () and in the Mexican state of Oaxaca () (even without referencing all its imitations by European and South American codes); the adoption of the Spanish Penal Code in Bolivia (); and the influence of European codifications in the Ottoman Empire, in Egypt, in Japan and the Turkish Civil Code modelled on the – Swiss Civil Code (ZGB). The borrowings which made their way into foreign constitutions, criminal laws, company laws, labour laws and intellectual property rules cannot be counted, and circulations of legal statements also blossomed in multidimensional ways during the nineteenth and twentieth centuries. Furthermore, the phenomena (rather under-evaluated by Watson) of Western powers imposing legal rules in colonial territories and keeping a non-marginal part of these statutes in decolonised countries until today confirms the importance of borrowings to foreign laws. All legal systems can be considered as more or less mixed, combining the heritage of their national history and influences from foreign and international inputs. Of course, legal historians have a large panel of examples to show how legal statements were transformed through their incorporation. There is no doubt that new national norms were different from the original foreign statements, whether because of translation or interpretation (for example when the same language was used, as between Belgium and France). But, the overcritical point of view of Pierre Legrand that legal transplants are impossible cannot be accepted by any historical-jurisprudential approach. If cultural factors, including linguistic differences, were and are important in the borrowing of foreign legal statements, they cannot be analysed as a homogenous and timeless block. The integration of these foreign legal statements into the national system of the receiving country will depend on going through statutes, case law and doctrinal writing, often understood as ‘legal formants’ in Sacco’s vocabulary. Legal borrowing is a business for jurists and depends on professional cultures. In any country, these professional cultures are diverse and evolving over time. If one takes the French example, characterised by the rich history of a national and centralised legal system, John Bell has shown that there exists at least two legal cultures, one of private law and one of public law. The concept of ‘French legal culture’ is a by-product of nationalism elaborated in the middle of the
‘Congrès international de droit comparé’, above n. , pp. –. John W. Cairns, ‘Watson, Walton, and the History of Legal Transplants’ () Georgia Journal of International and Comparative Law . Pierre Legrand, ‘The Impossibility of “Legal Transplants”’ () Maastricht Journal of European and Comparative Law . Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law’ () American Journal of Comparative Law . John Bell, French Legal Cultures (London: Butterworths, ).
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Jean-Louis Halpérin
twentieth century, which does not stand up to a historical study of the evolution of the different cultures of academics, judges, lawyers or notaries. The same observation can be made for every country: there is not one legal culture corresponding to every nation or language, but, to use the vocabulary of Bourdieu, a competition of professional cultures inside the ‘juridical field’. Furthermore, the recent development of legal globalisation (though not a completely new phenomenon if one considers the intensity of legal circulations at the end of the nineteenth century) has favoured the borrowing of ‘deculturalised’ elements according to Günter Frankenberg’s IKEA theory about constitutional transfers. Transnational legal cultures have appeared, especially in Europe, with the European Union and the European Court of Human Rights. Historical-jurisprudential approaches to national legal systems therefore require a great cautiousness towards culturalist arguments: there is no such thing as a ‘national spirit’ of laws, but rather a plurality of evolving and competing legal cultures inside every national (and sometimes infra-national) space that must be studied in all their peculiarities through a finely honed analysis. C. COMBINING LEGAL HISTORY AND JURISPRUDENCE
Hitherto, I have been critical of traditional historical-jurisprudential approaches and simplistic methods or concepts of comparative law in current legal history research. Now I will try to develop more positive or constructive ideas. Using positivist conceptions, largely those of Kelsen and Hart, but also trying to present other theses, I will consider how legal history can help comparatists in both the delimitation of legal phenomena and the analysis of the relationship between static and dynamic aspects of law. . Legal History and the Delimitation of Law Many jurists, including legal historians, have affirmed that every society has a law: ubi societas, ibi jus. Far from being a Roman adage, this sentence was created by German writers during the seventeenth century. The idea is clearly inconsistent with the positivist theory of law as a convention or technique, which was invented like all artefacts (as with the wheel or money). It is also contradictory to the assumption (defended by Savigny and the Historical School of Law) that legal rules had their distant origins in customs which were supposed to be as old as languages. An empirical method does not allow us to affirm the pre-existence of oral customs that cannot be ascertained from written documents. Nonetheless, the current historiography of legal history has found material sources of statutory law in China (texts of the Shuihudi’s tomb, c. BCE), whereas the majority of legal historians think that the Law of XII Tables (c. BCE) is an authentic piece of Roman legislation and that the text of the Pentateuch was fixed at the time of Ezra (fifth or fourth century BCE).
Frédéric Audren and Jean-Louis Halpérin, La culture juridique française. Entre mythes et réalités XIXe-XXe siècles (Paris: CNRS éditions, nd ed., ). Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, Richard Terdiman tr. () Hastings Law Journal . Günter Frankenberg, ‘Constitutional Transfer: The IKEA Theory Revisited’ () International Journal of Constitutional Law . David Heath-Stade, ‘Ubi societas, ibi jus’, David Head-Stade’s Blog, June , see https://davidheithstade .wordpress.com////ubi-societas-ibi-ius/.
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These three texts can be considered as three great moments (at different places without connection) of ‘invention’ in the law, if one accepts Hart’s scheme of defining law as a union of primary rules of conduct with secondary laws of recognition, change and adjudication. This scheme has been adopted by some historians, because it minimises the distinction between law and other normative systems, without prejudice to the content of legal rules. It has proved to be not Eurocentric because it can be applied to the invention of Chinese, Jewish or Muslim laws. It is not contradictory with the admission of different stages in the transformation of ‘pre-law’ (primary rules with one or two secondary rules) into law (with the three secondary rules), even if the writing of rules appears as the fundamental witness that law had been invented at the moment the text was formulated. Nobody is obliged to adopt Hart’s definition of law – a non-essentialist definition that aims to delimitate a legal field inside the global social field – without requiring necessarily the presence of specialised experts in law. But this analytical scheme also serves legal historians of the Middle Ages (for determining at which time Islamic law, common law or Icelandic law appeared with proof of the existence of a rule of change and a rule of recognition), of Modern Times (for saying when Hindu tradition was recognised as a set of legal rules applied in some cases by the Great Mughals, then by the British colonisers), and of the nineteenth and twentieth centuries (in the debate about the apparition of binding rules of international law). Concerning the so-called ‘religious laws’, using Hart’s scheme does not divide the Bible and the Koran between ‘religious’ and ‘legal’ norms (that is an historical anachronism) but identifies when and where these normativities have been recognised as laws, applied by judges and in some cases changed by new interpretations. It is also a means of clarifying the debates about pre-colonial laws in America, Africa and Asia. Did an Aztec law exist before the Spanish conquest? Can we speak of a ‘Buddhist law’? Were there customary laws applied by public authorities, besides the presence of Islamic law in a great part of the African continent before Western colonisation? All these questions, that remain important today in the symbolic representation of legal systems, are likely to be debated, if not resolved, with Hart’s ideal type. One central issue which purports to link history and contemporary norms is the existence of customary law, especially in an oral form. Hart used the conceptual heritage from Austin’s Province of Jurisprudence Determined (), which proposed a distinction between custom as testimony of the moral rules and customary law as part of positive law. As I have said, it is no coincidence that Lambert devoted a major part of his book about comparative law to attacking the traditional theory of the spontaneous and popular character of customary law. These debates about the delimitation between custom as a set of primary rules and customary laws as a part of a legal system with secondary rules have been renewed by the development of pluralist conceptions focusing on non-state laws. Here again, historians can say that the debate began in the first years of the twentieth century: Eugen Ehrlich defended the idea that customary rules needed to be recognised by judges to count as law, and that many rules emanating from the society were outside state law.
Aldo Schiavone, Ius. L’Invenzione del diritto in Occidente (Torino: Einaudi, ). H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, ), pp. –. For example, Michael Gagarin, Writing Greek Law (Cambridge: Cambridge University Press, ). John Austin, The Province of Jurisprudence Determined, W. E. Rumble ed. (Cambridge: Cambridge University Press, ), pp. –. Eugen Ehrlich, Die Tatsachen des Gewohnheitsrechts (Leipzig: Deuticke, ). Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Walter L. Moll tr., Cambridge, MA: Harvard University Press, ).
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Legal pluralism is not something foreign for historical-jurisprudential approaches. Legal historians know the origins of the idea of a plurality of legal orders, including non-state rules. Outside the colonial context, Binding and Romano have defended Church laws as a legal system independent from the State. Even Kelsen, despite his monism, recognised Church law as a legal order and wrote that the State was a legal order, but that not all legal orders were States. Since the middle of the twentieth century, legal historians have generally agreed not to use the word ‘State’ when referring to events prior to the sixteenth century and to consider that legal orders of Antiquity and of the Middle Ages corresponded to polities that cannot be considered modern States, even if ‘seeds’ of States could have existed at certain periods of the Chinese and Roman Empires, as well as in fourteenth- and fifteenth-century kingdoms. In the colonial context, until the middle of the twentieth century, the recognition of Islamic, Hindu and customary laws (especially for the ‘personal status’, a concept forged by Western lawyers) created pluralistic legal orders that were different from one territory to another. There is no historical problem with recognising and studying this ‘weak pluralism’ according to Griffith’s vocabulary. This historical knowledge is precisely the reason why legal historians generally dissent from the ‘strong pluralist’ theory for modern times. What Griffiths called an ‘ideology of legal centralism’ is, from a historical point of view, a concrete and successful process to make all legal rules dependent on modern States. It was the recognition by State authorities that transformed customs in customary laws, from the written customs of ancient France to (more sporadically) the African customs that were written down by colonisers. Then and still today, only customary rules that are recognised by State courts can be supported by legal sanctions. As Santi Romano has shown, it is mechanisms comparable to the ‘relevance’ of foreign laws that justify their application by domestic courts in the case of conflicts of laws. The risk with strong pluralism is that it blurs any distinction between customs as social norms (with diffuse sanctions) and customary laws (with organised sanctions) and sets all social regulations under a ‘legal flag’. This argumentation has been strongly developed by Brian Tamanaha in his famous article about the ‘folly’ of strong pluralism. The concept of ‘oral law’, supposed to be based on ethnographic observations, is particularly questionable for historical-jurisprudential approaches. Legal historians have fought to take away the romantic conception of custom as a set of oral rules pre-existing any written testimony: we can know customs, as well as customary laws, of the past only thanks to written texts and we cannot postulate the existence of what is not proven, except by returning to the fallacious adage ‘ubi societas, ibi jus’. The idea of ‘mute law’ defended by Sacco in the context of African legal systems remains completely mysterious, if not mythical, for historians. For studying customary laws in all parts of the world today, there are no other means than the rulings of the courts and
Ralf Seinecke, Das Recht des Rechtspluralismus (Tübingen: Mohr Siebeck, ). Hans Kelsen, Reine Rechtslehre (Leipzig: Deuticke, ), p. . Among a huge literature, see, for example, Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, – (Cambridge: Cambridge University Press, ). John Griffiths, ‘What Is Legal Pluralism?’ () Journal of Legal Pluralism and Unofficial Law . Santi Romano, L’ordinamento giuridico (Pisa: Spoerri, ), translated into English as The Legal Order ( Mariano Croce tr., New York: Routledge, ). Brian Tamanaha, ‘The Folly of the “Social Scientific” Concept of Legal Pluralism’ () Journal of Law and Society . Rodolfo Sacco, Introduzione al diritto comparato (Torino: UTET, ), p. ; Rodolfo Sacco, Il diritto africano (Torino: UTET, ), p. .
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the interviews of notables, which implies a social construction through texts – a ‘return to positivism’ as Tom Bennett has written about South Africa. One historical example, concerning people living in the Tibetan mountains from the Middle Ages to the nineteenth century, shows the utility of a delimitation between law and other social regulations that can be used in comparative law. Fernanda Pirie has distinguished three situations. In Western Tibet, villagers resolved their conflicts without any reference to written rules, although they knew the use of writing. In Eastern Tibet, pastoral tribes were governed by dominant families and knew more general customary rules, but the judges decided case by case without really applying these rules. In Central Tibet, there were kingdoms with written laws (under Mughal influence, from the fourteenth century onwards) and courts applying these laws. According to Fernanda Pirie, there was no law in the first case, only a loose ‘legalism’ in the second case and a true ‘law’ in the third case. Fernanda Pirie belongs to a current that has proposed an empirical approach to law and a concept of ‘legalism’ open to non-state law. This current can be connected with Brian Tamanaha’s more recent position considering law as what people identify with the ‘label of law’. Despite the fact that I consider that there is a risk of subjectivism in this ‘label’ (in comparison with the more objective secondary rules from Hart), this conception maintains a distinction between what is (or was) legal and not legal. Historical-jurisprudential approaches include the diachronic study of legal professions and of legal ideologies that contribute, as well as legal thought, to the construction and evolution of legal cultures. Combining history and jurisprudence does not underestimate the positive character of norms nor the impact of ideas and practices. . Legal History and the Articulation of Static and Dynamic Aspects of Law Since Kelsen, we are accustomed to distinguishing between static and dynamic perspectives of legal systems. This distinction does not mean that a positivist approach has to be restricted to only the norms currently in force today and that legal history is limited to past norms that are out of force. Legal norms have a historical thickness that connects present and past through the application of previous rules authorising organs to create new rules (e.g., constitutions promulgated a long time before new statutes). Furthermore, the lag period between the gathering of information and the publishing of results (a period that is extended by the difficulties of comparative law) means we often compare legal norms of the recent past, such that comparative analysis has to be quickly updated. Historical-jurisprudential methods are based on studies of these perpetual changes. As Jhering has said, ‘the law is Saturn devouring his own children’. Jellinek has described the legal dynamic as the struggle between old and new law and has helped raise awareness, against the
Tom Bennett, Customary Law in South Africa (Cape Town: Juta and Company, ). Fernanda Pirie, Peace and Conflict in Ladakh: The Constitution of a Fragile Web of Order (Leiden: Brill, ); Fernanda Pirie, ‘Legalism: A Turn to History in the Anthropology of Law’ () Clio @ Themis , see https:// journals.openedition.org/cliothemis/. Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History (Oxford: Oxford University Press, ); Fernanda Pirie and Judith Scheele (eds), Legalism: Community and Justice (Oxford: Oxford University Press, ); Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories (Oxford: Oxford University Press, ). Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University Press, ). Rudolf von Jhering, The Struggle for Law (Johan J. Lalor tr., Chicago: Callaghan and Company, ), p. .
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trend of continuation of the Historical School of law, about the difference between the development of an institution (adding new rules without changing their goal) and the transformation of an institution (giving birth to a new institution with different goals). Though with the same name, legal norms and legal thought often describe different concepts and comparative lawyers have to be very careful with this issue. Challenges include both translation between contemporary languages and the ‘transmission’ of old languages. Similarly, but more globally, Coke, Selden and Hale discussed the temporal dimension of common law and wondered whether common law was like the ship of Theseus, changing all its components but remaining the same. Historical-jurisprudential methods are useful for analysing this dynamic dimension and avoiding clichés about timeless characteristics of legal systems. In order to compare legal systems, it is fruitful to combine different scales in the diachrony: one of longue durée and one of the history of present time (Zeitgeschichte as the concept was created in Germany after World War II to study Nazism). This double temporal dimension is necessary to evaluate the relative importance of both old basic norms and breaking moments. The latter can consist of new codes and constitutions that considerably change a legal landscape. For example, new constitutions in Latin American countries at the end of the twentieth century and at the beginning of the twenty-first century, drafted after the end of dictatorships, reflecting the economic policies of structural adjustment and, in some cases, the victory of radical parties (thus extending social rights, recognising the plurality of indigenous cultures or, in the case of the Constitution of Ecuador, the rights of ‘Nature’), have deeply transformed these legal systems. The adoption and the enforcement of the first Chinese Civil Code is likely to radically change the configuration of the relationships between case law and statute law and it is not the invocation of a supposed Confucian tradition that can help to understand this turning point. Substantial additions or amendments of constitutions or codes could have recently upset national laws: for example, in the United Kingdom with the Human Rights Act and Devolution Acts, then the Constitutional Act and the institution of the Supreme Court or, in Belgium, with the very recent modernisation of different parts of the Civil Code. Extended changes, such as the Brazilian and the Argentinian civil and commercial codes (merging the two hitherto separate matters), or the , and reforms of the law of obligations inside the German, the French and the Japanese civil codes (keeping or reorganising the numbering of numerous articles) are not at all tabula rasa, but have modified the standards of comparison under the influence of international texts (like the Vienna Convention) or transnational projects (like the – Principles of European Contract Law). For analysing and comparing these sea-changes, historical-jurisprudential methods need quantitative and qualitative tools. Tracking the number of new statutes and the impact of turnover on the consistency of legal systems is not an easy task. It is clearly an issue for theoretical reflection about legislative inflation. But it also concerns the history of the present time through the comparison of statistics (and of methods for calculating them) used in each country. In a civil law country like France, where more than per cent of statutes and regulations are codified (in more than different codes), the ‘rate of change’ of articles inside these codes is
Georg Jellinek, Der Kampf des alten mit dem neuen Recht (Heidelberg: C. Winter, ) and Georg Jellinek, Allgemeine Staatslehre (Berlin: O. Häring, nd ed., ), pp. – with the examples of the transformations of jury and adoption. Gerald J. Postema, ‘Law’s System: The Necessity of System in Common Law’ () New Zealand Law Review . Roberto Gargarella, Latin Constitutionalism, – (New York: Oxford University Press, ). Luc J. Wintgens (ed.), Legisprudence: A New Theoretical Approach to Legislation (Oxford: Hart Publishing, ).
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evaluated at per cent each year. Even if some of these changes are minor, it means that French codes in the s are substantially different from their previous versions in the s, in the s and so on, which makes a big difference when comparing them with other (also changing) legal systems. Inside the European Union, many regulations and guidelines have approximated the domestic legislations of Member States, including common law countries like Ireland or even the United Kingdom, as Brexit does not mean the rejection of all norms from European origin. Qualitative evaluations for comparing transformations of legal systems in recent history are even more difficult. They have to take into account all the new interpretations of legal statements through case law in a context of rising ordinary, constitutional and international courts. If one can discuss the range of extension of judicial review, and its use in some countries as a means to develop illiberal policies, there is no doubt that in many countries constitutional courts have recently reversed past interpretations of the constitution and transformed some structural elements of legal systems. Historical-jurisprudential methods can also be helpful in this field to understand the comparative history of judicial review in the nineteenth and twentieth centuries and to analyse recent overturnings of constitutional interpretation. For example, if one wants to make today a comparison of legal systems about the death penalty or abortion law, it is necessary not only to include case law with statute law, but also to consider all the historical developments in recent times. It is noteworthy that the death penalty was almost disappearing in the United States before Furman v. Georgia, then that the Supreme Court ruling and its shift in Gregg v. Georgia triggered the adoption of many statutes invigorating the death penalty; and that more recently an increasing number of States (currently ) have suppressed the death penalty from their criminal laws. The evolution of case law about abortion is also made of stops and starts (especially since the overturning of Roe v. Wade by Dobbs v. Jackson Women’s Health Organization) that are meaningful for comparative law. Simplistic views based on the national spirit of laws are thus refuted by contemporary legal history. This interest in the importance of recent changes, notably those linked with the globalisation of law and the accelerated circulation of models, does not lead to total scepticism about the consistency of legal systems. Even the circumstantial legislation triggered in urgency by the antiterrorism struggle since or the COVID- situation since tends to be incorporated into ‘permanent’ rules which modify criminal or administrative law for a long time. Historicaljurisprudential methods have to identify which rules are kept in the longue durée and which are re-interpreted in new contexts. For example, the rising role of the German Constitutional Court has diminished the weight of professors’ legal writings (Professorenrecht), without ironing out the
The public reports from the Council of State (, , and ) about ‘legal security’ or ‘simplification of law’ have proposed different manners to track the number of laws and regulations that are in force in France. For example about Italy, see Guido Alpa, Tradition and Europeanization in Italian Law (London: British Institute of International and Comparative Law, ). Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, ); Tom Ginsburg and Tamir Moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge, Cambridge University Press, ). Keith Whittington, ‘Judicial Review of Congress before the Civil War’ () Georgetown Law Journal ; Steven G. Calabresi, The History and Growth of Judicial Review, vols. (New York: Oxford University Press, ); Guillaume Tusseau, Contentieux constitutionnel compare (Paris: LGDJ, ). US (). US (). US (). US ___ ().
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conceptual style of judicial rulings that is considered to be typical of the ‘German approach’. We will see if the change of judicial styles of the French supreme courts (Constitutional Council, Council of State, Court of cassation), with the end of the line-up of considerations (considérant que, attendu que), will represent a true break in the French tradition (the old expressions were used in Latin from the thirteenth century) or a simple adaptation of legal writing. Also in these cases, historical-jurisprudential methods are likely to support a qualitative evaluation of new rules that could change the comparative perspective, either by harmonising legal standards or keeping national idiosyncrasies. As I have said, the science of comparative law has long been obsessed by the idea of legal traditions at the core of legal families or national systems, with the danger being the reification of these supposed ‘identities’. The revival of nationalism, including from domestic courts rejecting international or foreign models, risks reactivating this simplistic view of the past today, often based on a superficial knowledge of history. Because of their professional practices, namely looking in archives and in libraries for new elements to help them understand the past, legal historians are aware of the changing character of traditions and of the existence of invented traditions. Our late colleague Patrick Glenn proposed to replace the ‘misleading’ taxonomy of legal families with a fluid conception of ‘legal traditions’ as webs of information transmitted through history and evolving in their mutual relationships. However, it is doubtful that a partially new and more fuzzy classification of legal traditions could resolve all the problems linked with the notion of ‘tradition’ itself. Studying the transmission of a core of legal norms through decades and centuries is not the same as analysing the impact (as a type of path dependence) of ideas and supposed information associated with some words such as ‘common law’, ‘civil law’, ‘Muslim law’, ‘Hindu Law’, and so on. Historical-jurisprudential methods also consider legal ideas and cultural phenomena to evaluate the weight of images of the past on legal development, sometimes with very different outcomes to historical research. In the same period as Lambert’s Fonction du droit civil comparé, Maitland wrote the famous sentence: ‘the form of actions we have buried, but they still rule us from their graves’. Without pretending they should have any monopoly in the field of comparative law, historical-jurisprudential methods look to analyse the heritage of the past in all legal systems, whether visible in longstanding and unchanged legal statements or under the guise of our representations of so-called legal traditions. D. CONCLUDING REMARKS
The old alliance between the disciplines of comparative law and legal history has to be sustained and renewed. This collaboration cannot be fruitful without parallel reflections about jurisprudence or legal theory. Comparing past and current legal systems without a formalist ontology applied to a minimal concept of law induces a dialogue between deaf people. Even if we do not
Christoph Schönberger, Der German Approach. Die deutsche Staatsrechtslehre im Wissenschaftsvergleich (Tübingen: Mohr Siebeck, ). Patrick Glenn, Legal Tradition of the World: Sustainable Diversity in Law (Oxford: Oxford University Press, ). The first chapter of this famous book was particularly sensitive to this idea of tradition as a changing network of information, even if the subsequent chapters defended a more rigid conception of the great legal traditions. H. Patrick Glenn, ‘Comparative Legal Families and Comparative Legal Traditions’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), pp. – gives other arguments for prefering this historical-cultural approach over the legal families taxonomy. Frederic William Maitland, The Forms of Action at Common Law (Cambridge: Cambridge University Press, ), p. . This sentence is at the beginning of one lecture first published in , three years after Maitland’s death.
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agree about a common definition of law, we have to take account of empirical configurations through history. It is counterfactual and relatively useless to say that the current role of States in recognising legal rules is a ‘fiction’, but nor can we analyse pre-modern legality with a State vocabulary. This is why we speak about ‘historical jurisprudential methods’. They are a plurality of analytical methods associating history and jurisprudence in a common vocabulary. These ‘historical jurisprudential’ methods are not Eurocentric. More and more works show that we can compare empirical configurations of legal rules with the same tools in Africa, in Asia or in Oceania, as well as in Europe and America. Recent research devoted to the history of colonial laws or of international law opens the way to the development of transnational studies of legal history that could deepen our understanding of current legal systems in all continents. Distinguishing and comparing pluralistic legal orders before colonialism, during their colonial domination and since decolonisation processes can help us to move away from a polemical confrontation between weak and strong pluralism. The recognition of a plurality of legal histories (of norms, of legal ideas, discourses and representations) has to be associated with new instruments of research: quantitative methods applied to the study of statutory or case laws, bibliometrics and networks analysis for a better knowledge of the circulation of ideas, geographical and spatial perspectives on legal history with the use of mapping to construct new classification scales of legal comparison. These innovative methods do not aim to know an unattainable reality of ‘global legal history’ but to propose original perspectives for understanding the complexity of current legal phenomena.
For example about the history of international law, see Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, ) and Martti Koskenniemi, To the Uttermost Parts of the Earth (Cambridge: Cambridge University Press, ); about African legal history, see Mamadou Badji, Introduction historique à l’étude des institutions publiques et privées de l’Afrique du sud du Sahara (VIIIe-XXe siècle) (Aix-en-Provence: Presses Universitaires d’Aix-Marseille, ). Jean-Louis Halpérin, ‘Le droit et ses histoires’ () Droit et Société and a series of maps of legal history to be proposed, see https://ctad.cnrs.fr/.
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Critical Methods Thomas Coendet*
Critical comparative law, as we know it, defines itself negatively: it stands not for, but against something, that is, traditional comparative law. This state of affairs turns critique into a weak programme for it tends to polarise and polemicise the discussion on comparative law and its methods. Critique divides an ‘us’ (the avant-garde) against ‘them’ (the mainstream). This chapter argues for a paradigm shift, reconceptualising critique as an ethos: an attitude that requires the comparative lawyer to position and reposition herand himself time and again towards the received methodological tools and themes currently in vogue. Consequently, critical comparative law cannot be identified with advocating a specific substantive proposition or method, yet constitutes a mode of reflection. In this chapter, the critical positional work revolves around the view on (comparative) law from beyond the Western world. It first provincialises and specialises critical comparative law and, on this basis, discusses critically the topics of legal relativism, decolonialism, and orientalism, using universal human rights as its core theme. An integrated excursus on ‘law as such’, finally, clarifies some long-standing critical issues in the triangle of truth, language, and the lifeworld of the comparatist.
A. CANON AND CRITIQUE
If the conventional comparatist is suggesting working towards a canon of comparative law, critical comparatists are the ones to reject it. Instead of a canon of what comparative law should be about, they will argue for ‘disciplinary decomposition’ to rearticulate the comparative project. A canonised knowledge of comparative law will be seen as a mode of governance of the ‘dominant discourse’ that critical comparatists ought to challenge and refuse. These reflexes * Shanghai Distinguished Professor (Oriental Chair) at Shanghai Jiao Tong University (SJTU). Cf. M. Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’ () American Journal of Comparative Law at –; heretofore, in the same vein, U. Mattei, ‘Comparative Law and Critical Legal Studies’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. at p. . P. Legrand, ‘Comparative Legal Studies and Commitment to Theory’ () Modern Law Review at . G. Frankenberg, Comparative Law as Critique (Cheltenham: Edward Elgar, ), p. .
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Critical Methods
against canonising comparative legal knowledge are predictable, but too schematic to provide an accurate understanding of how canon and critique are related. A closer look into this conceptual relation unlocks quite a few problems in the relationship between ‘mainstreamers’ and ‘crits’. Let us start therefore with a brief outline of Jan Assmann’s clarification of what canon and canonisation mean. The ‘canon’ of antiquity was a gauge used in construction work and served as an instrument for measuring accuracy. The concept has kept up this meaning to the present: a canon provides uniformity, precision, coherence, and reduces variance, caprice, disunity. However, this basic function of providing reliable orientation shifted decisively in the fourth century, when the Christian church in turn defined the canon as the corpus of sacred texts that authoritatively lays down the tenets of the faith. Thus the shift in the modern concept is from accuracy to authority. While these theological roots dominate our notion of canon even today, it is crucial that the canon as a matter of authority comes in two types: there is the canon of the sacred and the canon of the classics. The former defines the authoritative religious texts, which are not to be altered, and discriminates negatively against other texts. The latter includes works that are of exemplary character and can be taken as a guide for future cultural production, however, without considering non-canonical work as minor or ‘heretical’. Thus, compared with the sacred canon, the classical canon is less rigid; it varies from domain to domain and time to time – art, philosophy, science, poetry, etc., each produce their own canon. Still, what remains the same for both, the sacred and the classical canon, is that its content is of particular importance: it does not simply state norms, but the norm of norms. A canon, be it a secular or a religious one, thus inheres a degree of sanctification. Assmann richly describes how different cultures at different times have used canonisation to reduce and increase complexity, either by emphasising the function of the canon to sanctify or to offer criteria for accuracy. An important insight from his historical-comparative reflections is that the ancient criterial function sets the basis for polarisation: the canon installs a binary schematism between what is inside and outside of its scope. It separates virtue and vice, beauty and ugliness, true and false, the just and the unjust. Within this schematism lies the basic canonical function of providing reliable orientation. However, while this was originally a mere separation between the relevant and the irrelevant, the canonical distinction tends historically to polarise between friend and foe, the orthodox and the heretic. If applied not just to objects and facts, but human beings, the canonical measure was time and again used to judge on human existence, life and death. This polarisation connects to the fact that the canon is no longer simply a measuring tool, but provides the basis for a specific identity (as a Jew, a Christian, a novelist, a poet, a scientist, a critical theorist, etc.); it establishes and stabilises the nexus between a ‘we’ and an ‘I’. The proponents of a canon for comparative law are therefore correct if they see its function as providing the discipline with ‘coherence and continuity’. A canon could indeed offer a more solid basis for what it means to identify as a comparative lawyer and thereby, perhaps, resolve or lessen the ‘identity problems’ that critical comparatists have spotted in the mainstream for a long time. But a canon is not in sight. Since the proposal for a canon was made at the turn of the
J. Assmann, Cultural Memory and Early Civilization: Writing, Remembrance, and Political Imagination (Cambridge: Cambridge University Press, ), pp. –. Reimann, above n. , at . G. Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’ () Harvard International Law Journal at , note .
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century, debates on methodology and conceptualisations of comparative law have further proliferated, and the units of what comparative law is said to compare are still expanding. The critical rethinking of the masters of comparative law likewise did not yield a canon. Further, a recent large-scale attempt to consolidate the field single-handedly on a traditional basis has been met with scathing criticism by the crits. For critical comparatists, on the other hand, it is the mainstream which founds their identity as critics by opposition. Consequently, they spot ‘the canon’ or a set of propositions with ‘canonical status within the field’ more readily than the mainstream itself. Indeed, the safest thing that can be said about critical comparative law is that it directs itself against traditional comparative law, which it takes to centre around a positivist and functionalist framework. Unfortunately, the safest thing is not safe enough. A canon of critical methods of comparative law does not exist either. One does not have a clear yardstick of what belongs inside and outside the critical project. This is revealed by the label ‘critical’, which does not offer such guidance in either a positive or a negative sense: its presence or absence does not offer any conclusive indication about a particular author. Rather, there exist concurrent labels, such as ‘postmodern’ or ‘new approaches’ to comparative law, and while these tend to cover similar clusters of authors, they too offer no canonical measure. In fact, the crits and their critics even agree that what they discuss as the mainstream and the ‘postmodern’ argument derives from heterogenous groups of scholars. The regrettable consequence of this state of affairs is that we get, in some sense, the worst of both worlds. We lack the secure reference points of a canon, and yet the discussion between mainstream and critical scholars tends to polarise. We have division without distinction. For
See, for example, P. G. Monateri (ed.), Methods of Comparative Law (Cheltenham: Edward Elgar, ); G. Samuel, An Introduction to Comparative Law Theory and Method (Oxford: Hart Publishing, ); M. Van Hoecke, ‘Methodology of Comparative Legal Research’ () Law and Method ; R. Leckey, ‘Review of Comparative Law’ () Social & Legal Studies ; M. Siems, ‘The Power of Comparative Law: What Types of Units Can Comparative Law Compare’ () American Journal of Comparative Law . A. Riles (ed.), Rethinking the Masters of Comparative Law (Oxford: Hart Publishing, ). G. Frankenberg, ‘“Rechtsvergleichung” – A New Gold Standard?’ () Heidelberg Journal of International Law ; U. Kischel, ‘Critical Legal Studies, Postmodernism and the Contextual Method in Comparative Law – A Reply to Günter Frankenberg’ () Heidelberg Journal of International Law ; P. Legrand, ‘Kischel’s Comparative Law: Fortschritt ohne Fortschritt’ () The Journal of Comparative Law . P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought (Cambridge: Cambridge University Press, ), p. ; P. Legrand, ‘Paradoxically, Derrida: For a Comparative Legal Studies’ () Cardozo Law Review at –. Legrand refers in both cases to the Introduction to Comparative Law by Zweigert and Kötz. Similar to here, R. A. Miller, ‘On Hostility and Hospitality: Othering Pierre Legrand’ () American Journal of Comparative Law at . Frankenberg, above n. , p. ; Legrand, above n. (Negative Comparative Law), pp. , , , in particular; similar, E. Örücü, The Enigma of Comparative Law (Leiden: Springer Netherlands, ), p. ; J. Husa, A New Introduction to Comparative Law (Oxford: Hart Publishing, ), pp. , . On the functional method as a (more imagined than real) common core of traditional comparative law, see Husa, Chapter (in this volume). Besides the works of Frankenberg cited already, a positive list would include E. Örücü, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition (Deventer: Kluwer, ); further, R. Merino Acuña, Comparative Law from Below: The Construction of a Critical Project in Comparative Legal Studies (Saarbrücken: Lambert Academic Publishing, ); G. Marini, ‘Critical Comparative Contract Law’ in P. G. Monateri (ed.), Comparative Contract Law (Cheltenham: Edward Elgar, ), pp. –. So while it is doubtful already whether the authors from this positive list can be meaningfully grouped together, one certainly misses plenty of important work that should be considered – see only the authors and studies cited in n. below. Cf. Frankenberg, above n. , pp. –; A. Peters and H. Schwenke, ‘Comparative Law Beyond Post-Modernism’ () International & Comparative Law Quarterly at . This is the paradoxical inversion of Coleridge’s ‘distinction is not division’; see S. T. Coleridge, Biographia Literaria (London: Dent & Co., ), p. .
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the critics, traditional comparative law is stereotypically ‘WEIRD’; while for the conventional comparatists, critical comparative law is simply weird. Concessions to and borrowings from the other side are suspect, if not a priori irrelevant or ‘heretic’. The result is that debates surrounding critical approaches can turn rather polemical. At times, it appears like a trench warfare between well-known positions in which progress is hard to spot. This is epitomised in a recent debate that Pierre Legrand staged as the opposition between a ‘positivist’ and a ‘culturalist’ approach to legal comparison, which positions he assigned to James Gordley and James Whitman, respectively. Someone familiar with Legrand’s earlier writings will not be surprised that the culturalist is praised, while the positivist is scorned in anything but a mild-mannered prose. The reactions, however, were informative: the ‘vilified James’ impressed with a composed, detailed, and generous response; the ‘lauded James’ with the revelation that the use of their names left him ‘alternately incensed and ashamed’. But perhaps most importantly, the majority of the invited commentators did not see how such confrontational staging of the methodological issues could help to advance matters – an assessment that carries weight because these commentators are well versed in and sympathetic to critical approaches. If the discussion on critical comparative law does not completely lose its way and still achieves a certain coherence, it is therefore not because of a canon, but because of its historiography. An account of critical methods usually starts with Gunther Frankenberg’s seminal paper ‘Critical Comparisons’. The next stop is the ‘New Approaches to Comparative Law’: a symposium held in Utah in , which brought together a range of scholars associated with various critical perspectives from in- and outside legal studies. These two temporal reference points can be complemented with two spatial ones: Frankfurt and Harvard. While both places link to institutional initiatives, which transmitted impulses to comparative law scholarship, they primarily stand for two broader intellectual movements that inspired and shaped the critical approaches to comparative law. Frankfurt represents the connection to Critical Theory in the tradition of the Frankfurt School; Harvard marks the nexus between comparative law and Critical Legal Studies. Beyond these rudimentary temporal and spatial markers, critical approaches to comparative law do not generate a common core or methodological precept – not even stylised ones, such as ‘positivism’ and ‘functionalism’ for mainstream comparative law. There are some studies that can be considered classics, yet again without forming a canon of classical works. A possible
An acronym for ‘Western, Educated, Industrialised, Rich, Democratic’ populations. Cf. J. Henrich, S. J. Heine and A. Norenzayan, ‘The Weirdest People in the World?’ () Behavioral and Brain Sciences . P. Legrand, ‘Jameses at Play: A Tractation on the Comparison of Laws’ () American Journal of Comparative Law . In particular, P. Legrand, ‘Antivonbar’ () Journal of Comparative Law ; Legrand, above n. (‘Paradoxically, Derrida’); P. Legrand, ‘Siting Foreign Law: How Derrida Can Help’ () Duke Journal of Comparative & International Law . J. Gordley, ‘Comparison, Law, and Culture: A Response to Pierre Legrand’ () American Journal of Comparative Law ; J. Q. Whitman, ‘The Hunt for Truth in Comparative Law’ () American Journal of Comparative Law at . Miller, above n. ; P. Zumbansen, ‘Les Jeux Sont Faits: Comparative Law – As It Really Was Meant to Be?’ () American Journal of Comparative Law . ‘New Approaches to Comparative Law’ () Utah Law Review –. With a Frankfurt-emphasis, P. Legrand, ‘Negative Comparative Law’ () Journal of Comparative Law at –; Merino Acuña, above n. ; with a Harvard-emphasis, Mattei, above n. , pp. –, –; further J. Schacherreiter, ‘Postcolonial Theory and Comparative Law: On the Methodological and Epistemological Benefits to Comparative Law through Postcolonial Theory’ () Verfassung und Recht in Übersee at . For example, M. de S.-O.-l’E. Lasser, ‘“Lit. Theory” Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse’ () Harvard Law Review ; P. Legrand, ‘The Impossibility of
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strategy out of this predicament is to arrange the discussion of critical comparisons in clusters of (predominantly methodological) themes and arguments. Today there exist three such accounts, which offer critical and competent guides, two of which were updated recently. The marginal returns of one more overview in this style would therefore be negligible. More importantly, the path-dependency of such a review combined with the fact that the topical field is fairly unclear increases the risk of rehashing debates that are exhausted, outsourced, or outdated, while missing others that would be worth addressing. This chapter therefore argues for a refocusing and reinterpretation of what critical methods are, taking both the concept of critique and method more seriously. We will revisit some previous themes and arguments (especially in the excursus on ‘law as such’), yet select and frame them in a way that hopefully provides a better fit with a handbook that seeks to emphasise the view on (comparative) law from beyond the Western world. B. LOCALISING THE CRITIQUE
The word ‘critical’ derives from the Greek krinein, meaning ‘to distinguish, to part, to separate’. At a basic level, a critical attitude therefore minds distinctions. The term critical comparative law can be approached in this way. There thus exists a pragmatic use of the term, which as we have seen brings together a range of diverse views on comparing law. Such use is not without its merits, for it provides a terminological medium to relate approaches that might otherwise operate in ‘silos’. Still, we can ask more pointedly, ‘What is this: the Critique?’, as did Michel Foucault in his later work. Foucault’s exposition is of particular interest for the following reasons. First, he has the benefit of localising the critique clearly in the liberal tradition and thereby allows for orientation. Second, his political and theoretical thinking inheres a complex tension between critical and liberal impulses, which notably shows in the topic of human rights and thereby resonates with a major fault line in the comparative discourse between legal orders of Western and non-Western origin. Third, his writings surely belong to the canon of critical theory today and are as such highly influential. In comparative legal studies, these writings have entered most notably through postcolonial approaches. In this status, Foucault’s oeuvre has achieved the degree of sanctification that is typical of canonical works. However, it is one of his great contributions to have theorised the effects of power flowing from such sanctification in the concept of discourse, and one of his virtues to have spoken out against it. The application of Foucault’s critical theory should not fall short of these achievements.
“Legal Transplants”’ () Maastricht Journal of European and Comparative Law ; T. Ruskola, ‘Legal Orientalism’ () Michigan Law Review ; G. Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergencies’ () Modern Law Review . Mattei, above n. (clusters: ‘assault on the tradition’, ‘functionalism and structuralism’, ‘transplants and receptions’, ‘legal consciousness’); Peters and Schwenke, above n. (clusters: ‘cultural relativism’, ‘biases of the comparatist’, ‘comparative law as a hegemonial project’, ‘categories and classifications’, ‘functionalism’); M. Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), pp. – (clusters: ‘law as politics’, ‘law as discourse’, ‘negative comparative law’). Cf. Frankenberg, above n. , pp. –. M. Foucault, ‘What Is Critique?’ in S. Lotringer (ed.), L. Hochroth (trans.), The Politics of Truth (Los Angeles: Semiotext(e), ), pp. – (translation adjusted). See, for example, U. Baxi, ‘The Colonialist Heritage’ in P. Legrand and R. J. C. Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, ), pp. –; Ruskola, above n. . M. Foucault, ‘Prison Talk’ in C. Gordon (ed. and trans.), Power/Knowledge: Selected Interviews and Other Writings, – (New York: Pantheon Books, ), pp. – at pp. –; M. Foucault, ‘The Order of Discourse’ in R.
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Foucault’s lecture on critique starts by characterising critique as an instrument: it ‘only exists in relation to something other than itself’ and thus ‘is subordinated in relation to what philosophy, science, politics, ethics, law, literature, etc., positively constitute’. Hence, Foucault notes, one may wonder how there could be a unity in critique. He finds this unity in what he variably calls an attitude, a virtue, or an ethos of critique. The critical attitude, thus the core thesis of his lecture, sprang up from an increase of the arts and institutions of government in Western Europe in the sixteenth century. Together with this governmentalisation, critique arose as the question of how to be or not to be governed. It is, he emphasises, not an opposition to be governed at all, but a perpetual question about ‘how not to be governed like that’. He discerns specific reference points for this critical attitude in the questioning of the authority of Church and Scripture, in the claim to universal and indefeasible rights to which every government would have to submit, and in the refusal to consider truth as flowing from authority rather than reason. The initial dimensions of the critique are therefore biblical, legal, and scientific. Foucault sees them as historical anchoring points for ‘a specific attitude in the Western world starting with what was historically, I believe, the great process of society’s governmentalization’. This process involves, most notably, the governmentalisation of the state. By this Foucault means, briefly put, the emergence of the modern state that takes on as its principal task the management of its population by means of statistics and ‘apparatuses of security’. Foucault submitted that this understanding of critique has its roots in Immanuel Kant’s famous essay, What Is Enlightenment? Alongside this text, Foucault further elaborated his thesis on critique in his later work, suggesting that Kant poses here a new problem within the Christian tradition. He sees novelty in the way that a philosopher is reflecting ‘on the contemporary status of his own enterprise’; philosophical thought would now ‘describe the nature of the present, and of “ourselves in the present.”’ Critique is the consequence for the philosopher who finds himself in the new historical context of the Enlightenment: just ‘when humanity is going to put its own reason to use, without subjecting itself to any authority; now it is precisely at this moment that the critique is necessary, since its role is that of defining the conditions under which the use of reason is legitimate in order to determine’ – in the words of the great Kantian questions – ‘what can be known, what must be done, and what may be hoped’. For Foucault, the critical question inherited from Kant and the Enlightenment, therefore, is this ongoing positioning and repositioning of ourselves to our present time. This critical questioning is not a body of knowledge or a set of propositions, but an ethos. The ‘thread that may connect us with the Enlightenment is not faithfulness to doctrinal elements, but rather the permanent reactivation of an attitude – that is, of a philosophical ethos that could be described as a permanent critique of our historical era.’ Foucault called this, on another occasion, a
Young (ed.), I. McLeod (trans.), Untying the Text: A Post-Structuralist Reader (Boston: Routledge & Kegan Paul, ), pp. –. Foucault, above n. , p. . Ibid., p. . Ibid., p. . M. Foucault, ‘Governmentality’ in J. D. Faubion (ed.), C. Gordon (trans.), Essential Works of Foucault –: Power (New York: New Press, ), pp. –. Respectively, M. Foucault, ‘What Is Enlightenment?’ in P. Rabinow (ed.), C. Porter (trans.), The Foucault Reader (New York: Pantheon Books, ), p. at p. ; M. Foucault, ‘Critical Theory/Intellectual History’ in L. D. Kritzman (ed.) A. Sheridan (trans.), Politics, Philosophy, Culture: Interviews and Other Writings – (New York: Routledge, ), p. at p. . Foucault, above n. (‘What Is Enlightenment?’), p. . Ibid., p. .
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critical ‘ontology of actuality’ that runs ‘from Hegel to the Frankfurt School, through Nietzsche and Max Weber’ to his own work. He characterises the ethos of critique more specifically as follows. In a negative sense, it would entail refusing the ‘blackmail’ of the Enlightenment, namely that one has to be ‘for’ or ‘against’ the latter. Moreover, the critique would need to steer clear of confusing Enlightenment as a historically particular ‘mode of reflective relation to the present’ with humanism. In Foucault’s understanding, humanism is ‘a set of themes’; a set of propositions, not an ethos. Christianity, Marxism, National Socialism, Stalinism, all had their humanism. To this list Foucault adds the proviso that not everything connected to humanism would therefore need to be rejected, yet it would still be dangerous and historically inaccurate to mistake it for Enlightenment. In a positive sense, then, the critical attitude would be a ‘limit-attitude’. Foucault puts this point very generally in the first instance: ‘Criticism indeed consists of analysing and reflecting upon limits.’ More specifically, he submits that the present critical task would not, as for Kant, consist of reflecting on the limits that reason should not transgress. Rather, it would be necessary to see what a practical critique could be that takes the form of possible transgression. He hastens to say that this would not be a transcendental or even transcendent project: ‘It is not seeking to make possible a metaphysics that has finally become a science’ but to ‘give new impetus . . . to the undefined work of freedom’. However, to prevent that work from hanging in the air, critique should take on an experimental attitude. That is, the critique must put itself to the test of contemporary reality and determine the precise forms of possible changes. This would imply turning away from ‘all projects that claim to be global or radical’. For Foucault, ‘very specific transformations’ are preferable, for which he suggests the relations between the sexes and the way in which we perceive insanity or illness as examples. Foucault apparently has his distinction between the ‘universal’ and the ‘specific’ intellectual in mind here. The former being the ‘master of truth and justice’, the latter the expert in a specific field of knowledge. We should note that Foucault locates the historical paradigm of the universal intellectual in the eighteenth century jurist: ‘the man of the law’ (l’homme de loi) ‘who counterposes to power, despotism, and the abuses and arrogance of wealth the universality of justice and the equity of an ideal law’. The specific intellectual is for him more recent and descends from the scientist: the ‘nuclear scientist, computer expert, pharmacologist, and so on’. Putting the call for specific transformations and the role of the specific intellectual together, we hence arrive at ‘the local character of criticism’. Foucault closes his essay on Kant with a sentence that is one of those rays of light in an otherwise rather dark oeuvre, and therefore shines all the brighter: ‘I do not know whether it must be said today that the critical task still implies faith in Enlightenment; I continue to think that this task requires work on our limits, that is, a patient labor giving form to our impatience for liberty.’
M. Foucault, ‘What Is Revolution?’ in S. Lotringer (ed.), L. Hochroth (trans.), The Politics of Truth (Los Angeles, CA: Semiotext(e), ), p. at p. . Foucault, above n. (‘What Is Enlightenment?’), pp. –. Ibid., pp. –. M. Foucault, ‘Truth and Power’ in J. D. Faubion (ed.), C. Gordon (trans.), Essential works of Foucault –: Power (New York: New Press, ), p. at pp. – (translation adjusted). M. Foucault, ‘Two Lectures’ in C. Gordon (ed.), K. Soper (trans.), Power/Knowledge: Selected Interviews and Other Writings, – (New York: Pantheon Books, ), p. at p. . Foucault, above n. (‘What Is Enlightenment?’), p. (translation adjusted).
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C. LOCALISING CRITICAL COMPARATIVE LAW
The Foucauldian localisation of critique has a number of obvious and not so obvious corollaries for the critique of comparative law. An obvious conclusion is that if critical comparative law aspires to be a strong methodological programme, it should take on a ‘limit-attitude’. This section characterises three general aspects of this limit-attitude; the following considers three more specific limits of critical comparative law. . Critique as Self-Reflection A not-so-obvious corollary of the Foucauldian localisation is that critical comparative law should not start by reflecting the limits and limitations of the mainstream, as it usually does. Rather it should begin by reflecting on its own limits. Critique as self-reflection includes first of all the realisation that critique is subordinate and therefore dependent on a particular discourse. The assault on traditional comparative law depends on that tradition. Reflecting this dependence matters for several reasons. First, if critical comparison becomes more than an attitude and turns into a campaign against the mainstream, it comes to be based on being against the mainstream: the negation of the mainstream grounds the identity of the scholarly endeavour; the critical discourse gets polarised and judgement no longer rests upon the arguments, but upon who is uttering them: friend or foe. Second, the rejection of the mainstream does not produce a viable alternative and thus allows the critique to be swiftly dismissed. This problem is important, but not new. Gunther Teubner has described it eloquently for the theory of ‘negative jurisprudence’ and we can adapt his diagnosis here. The critique may be a thorn in the flesh of the mainstream, but the pain will fade. ‘Critical theories of law . . . collapse before the iron law of deconstructibility: Critique without an alternative proposal does not count.’ While it is correct that challenging the mainstream, for starters, does qualify as an intervention, the credit for the critical initiative will inevitably run out. Third, fixation on the mainstream may unwittingly reproduce its biases or merely invert them. The critical comparatist who aims at the positivist core of mainstream comparative law by putting it into its cultural context in fact reproduces the notion of law as a set of rules. The critical comparatist who prioritises differences over similarities, instead of similarities over differences arrives at a similarly unbalanced methodological proposal. . Provincialising Critical Comparative Law Yet the problem is not merely that critique of the Western lineage of traditional comparatists may turn out to amplify that very tradition. Foucault’s analysis of the critique clarifies that the implication runs deeper because the critical tradition itself has a Western lineage: from Kant and Hegel to the Frankfurt School, through Nietzsche and Max Weber, to critical comparisons and its successors. Foucault thus allows us to ‘provincialise’ critical comparative law. This gesture too
For example, W. Twining, ‘Glenn on Tradition: An Overview’ () The Journal of Comparative Law . G. Teubner, ‘Self-Subversive Justice: Contingency or Transcendence Formula of Law?’ in D. Göbel (ed.), Critical Theory and Legal Autopoiesis: The Case for Societal Constitutionalism (Manchester: Manchester University Press, ), p. at p. . Frankenberg, above n. , p. . Cf. J. Husa, ‘Methodology of Comparative Law Today: From Paradoxes to Flexibility?’ () Revue internationale de droit comparé at ; Siems, above n. , p. ; on the similarity/difference debate, G. Dannemann, ‘Comparative Law: Study of Similarities or Differences?’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), pp. –.
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has its roots in the Enlightenment period. It is a crucial normative impulse in the ‘world philosophy’ of Karl Jaspers and, more recently, became a standard analytical move in postcolonial studies. But this move still needs to be made in the present context: the interventionist, emancipatory project that critical comparatists put forward against an ethnocentric mainstream47 is itself an ethnocentric project of Western descent. That sounds like an accusation, but it is not meant to be. I simply mean to draw attention to the fact that enlisting avant-garde thinkers such as Theodor W. Adorno, Jacques Derrida, and Michel Foucault does not take one out of the European orbit. Reflecting this limit of the critique matters because all too quickly the ‘Other’ of the Western legal tradition, which critical comparatists wish to protect from the ethnocentric gestures of the mainstream, becomes an object of rescue, rather than a subject with its own voice. The Other is then regulated, not emancipated by the knowledge of modern critical theory. Thus, unless we provincialise this technique, we face the danger that an Enlightened discourse effectively silences those who are not the privileged Other of the critical imagination, but the lower others (the sub-altern) actually existing. It results in ‘us’ speaking for ‘them’. . Specialising Critical Comparative Law Localisation further indicates the specialisation of the critique, shifting it from the universal to the specific intellectual. This dimension of localisation and limitation is no less important to the critique than its provincialisation. We see it particularly well if we recall that Foucault’s paradigm for the universal intellectual is ‘the man of the law’ (l’homme de loi) ‘who counterposes to power, despotism, and the abuses and arrogance of wealth the universality of justice and the equity of an ideal law’; and add to this his observation that critique, historically, has its legal dimension in claiming ‘universal and indefeasible rights’ against government. The universal intellectual in the present time thus becomes the passionate defender of universal human rights. In his case, human rights have degenerated from a critical questioning of governance to a humanistic mission, which projects the historically particular, notably Christian, framework of the critique onto the rest of the world. Against this, the concept of the specific intellectual offers a corrective. We should not overlook the fact that the defender of universal human rights need not coincide with the legal expert. The expert human rights lawyer or comparatist who has properly limited her critique appears, then, as the opposite of the human rights defender who takes on a universal task: she stands for ‘the man of laws’ (l’homme des lois), not ‘the man of the
Going back to the French oriental scholar, Abraham-Hyacinthe Anquetil-Duperron (–), see J. Assmann, Achsenzeit: Eine Archäologie der Moderne (Munich: C.H. Beck, ), chapter . Ibid., pp. –; D. Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, ). Cf. N. Berman, ‘Aftershocks: Exoticization, Normalization, and the Hermeneutic Compulsion’ () Utah Law Review . The Western European pedigree of critical theory is well illustrated by D. Kennedy, ‘A Semiotics of Critique’ () Cardozo Law Review . For the theoretical foundations of critical legal studies, he lists: Hegel, Ruskin, Parsons, Kierkegaard, Nietzsche, Sartre, Marx, Freud, Foucault, Saussure, Lévi-Strauss, Derrida. For an illustrative case study on the Western limitations of critical legal studies: W. P. Alford, ‘The Inscrutable Occidental? Implications of Roberto Unger’s Uses and Abuses of the Chinese Past’ () Texas Law Review . B. de S. Santos, ‘Why Is It So Difficult to Construct a Critical Theory?’ () / Zona Abierta . Locus classicus, G. C. Spivak, ‘Can the Subaltern Speak?’ in C. Nelson and L. Grossberg (eds), Marxism and the Interpretation of Culture (Basingstoke: Macmillan Education, ), pp. –; as a critique of Pierre Legrand the point has been recently argued by S. Munshi, ‘Comparative Law and Decolonizing Critique’ () American Journal of Comparative Law at –; further, W. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa (Cambridge: Cambridge University Press, nd ed., ), pp. –.
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Critical Methods
law’ (l’homme de loi). As a specialist, she has therefore acknowledged the limits of ‘grand theories’, such as human rights or the rule of law, in comparative law. Her expert contribution lies in assisting with local problems of governance, not in pursuing a global, top-down project on behalf of humankind. D. LIMITS OF CRITICAL COMPARATIVE LAW
For ‘the man of laws’ (l’homme des lois) the important question thus becomes: What does it mean to properly localise and limit the critique? There are a number of conceptual binaries that all capture something relevant about this limitation, yet ultimately they produce unsatisfying answers. The first is the vintage universalist–relativist divide. Here, localisation means keeping the critique at home, as it were, at least not moving beyond the Western legal tradition from which it descends. The second (related, yet distinct) binary sees the idea of universal human rights implicated in a colonial project that must be countered by decolonisation. The third (related, yet distinct) binary consists of the opposition of orientalism and self-orientalism. In this scenario, the Western lawyer imagines the Orient as a lawless place, with populations subject to oriental despotism, and therefore sets out to colonise the Orientals’ lifeworld, relying in particular on the grand theories of the Western legal tradition just mentioned. The critical comparatist will expose this endeavour as resting on legal orientalism. Situations where Asian populations adopt Western legal ideas, such as human rights, without foreign imposition or interference will, on the other hand, be candidates for self-orientalism. I will discuss these three binaries in turn: () universalism–relativism, () colonialism– decolonialism, () orientalism–self-orientalism. The discussion will centre around the idea of human rights, since these rights underline a most important and controversial theme. The methodological implications I draw will, however, apply to modern law generally. In the same vein, it must be noted that the literature tends to associate the second binary with a ‘North– South’ and the third with a ‘West–East’ distinction. But the problems, which will be addressed under the second and third binaries, are not contingent on a ‘North–South’ nor a ‘West–East’ perspective. The critical fault line runs along the discourse of modernity whose European origins provide a counterpoint to the ‘Global South’ just as much as to the Orient. . Universalism–Relativism A lot of ink has been spilled on the universalist–relativist divide and this is not the place to continue it. The dissatisfaction with the alternative has been well captured by François Jullien,
W. P. Alford, ‘On the Limits of “Grand Theory” in Comparative Law’ () Washington Law Review . On the decolonial approach and decolonisation of comparative law, generally, see Merino, Chapter (in this volume). See, generally, T. Ruskola, Legal Orientalism: China, the United States, and Modern Law (Cambridge, MA: Harvard University Press, ). Consequently: an author like de Sousa Santos, who emphasises the North–South distinction, structures his thinking along the fault line of Western modernity and integrates the orientalist theme, B. de Sousa Santos, Epistemologies of the South: Justice Against Epistemicide (London: Routledge, ), pp. –; B. de Sousa Santos, Para descolonizar occidente: más allá del pensamiento abismal (Buenos Aires: Prometeo Libros, ); and an author like Ruskola integrates the colonial perspective into his analysis of modern law along the West–East distinction, Ruskola, above n. , pp. –. See, for example, E. Gellner, ‘Relativism and Universals’ in his Relativism and the Social Sciences (Cambridge: Cambridge University Press, ), pp. –; R. Peerenboom, ‘Beyond Universalism and Relativism: The Evolving Debates about “Values in Asia”’ () Indiana International & Comparative Law Review at –; R. A. Wilson,
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Thomas Coendet
who characterises it as the option between a ‘facile universalism (naively projecting its vision of the world onto the rest of the world)’ and a ‘lazy relativism (condemning cultures to imprisonment in an identity with specific values).’ For legal specialists, Foucault’s ‘man of the law’ should be a reminder that we who share in the Western (critical) tradition are prone to universalise too readily, especially if it is well-intended. The turn to (legal) culture, on the other hand, carries its perils too: an unsophisticated understanding of the concept – alongside its romantic heritage – readily produces a static, essentialist notion of culture that seals off different cultures into local boxes. Suffice to say, then, that today’s advanced theoretical proposals all aim beyond the universalist–relativist divide in reflecting both the universal and the particular aspects of law and its concepts. The positive task for the critique, therefore, is to develop the concepts and methods of a comparative legal discourse, which allow mediating and managing the rationality conflicts that run along the fault line of modernity. Falling back on either side of the universalist–relativist divide is either arrogant, lazy, or both. Thus, relativism is not the proper limitation of the critique. The Foucauldian analysis suggests the contrary: in a comparative legal discourse the critique should consider possible transgressions of its Eurocentric boundaries, however, without falling back into advancing a metaphysical or transcendental project. In this respect, it is helpful to recall that even for someone as critical of humanism and global projects as Foucault, the humanist and universal implications of human rights did not licence dismissing these rights out of hand as a means of critique. Especially those who are interested in keeping these rights actionable universally should endorse Foucault’s resolute baseline proposition that the understanding of what it means to be human neither answers to a pre-given essence nor should be defined once and for all. The critical liberal idea of universal and indefeasible rights against government does not lose anything of its force if we treat it as a contingent human idea that we derive from the European tradition. On the contrary, in its very contingency, its fragility becomes visible together with our responsibility for what we do with it, and for keeping it alive. This responsibility is today increasingly shared globally, not
‘Human Rights, Culture and Context: An Introduction’ in R. A. Wilson (ed.), Human Rights, Culture and Context: Anthropological Perspectives (London: Pluto Press, ), p. at pp. –. F. Jullien, On the Universal, the Uniform, the Common and Dialogue between Cultures (Cambridge: Polity Press, ), p. . See the important contribution and (historical) clarification of S. E. Merry, ‘Human Rights Law and the Demonization of Culture’ () POLAR . That the cultural strands of comparative law theory are not free from the romantic impulse and its pitfalls has been shown by J. Q. Whitman, ‘The Neo-Romantic Turn’ in P. Legrand and R. J. C. Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, ), pp. –. For a recent proposal to replace the too general concept of culture within comparative legal studies, see Qian, Chapter (in this volume). For example, S. Besson, ‘Comparative Law and Human Rights’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. at pp. , ; Peerenboom, above n. , p. ; Ruskola, above n. , p. ; C. Valcke, Comparing Law: Comparative Law as Reconstruction of Collective Commitments (Cambridge: Cambridge University Press, ), p. . T. Coendet, ‘Critical Legal Orientalism: Rethinking the Comparative Discourse on Chinese Law’ () American Journal of Comparative Law at – (developing the concept of transcultural dialogue). R. Martin, ‘Truth, Power, Self: An Interview with Michel Foucault’ in L. H. Martin, H. Gutman and P. H. Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault (Amherst, MA: University of Massachusetts Press, ), p. at p. ; M. Foucault, ‘Confronting Governments: Human Rights’ and ‘Open Letter to Mehdi Bazargan’ in J. D. Faubion (ed.), C. Gordon (trans.), Essential works of Foucault –: Power (New York: New Press, ), pp. – and pp. –. That the late Foucault did not renege on this anti-essentialist baseline proposition has been established by B. Golder, Foucault and the Politics of Rights (Stanford, CA: Stanford University Press, ), chapter .
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least because the historically particular processes of governmentalisation, to which these rights critically respond, have spread to all corners of the globe. Human rights should therefore not be defended as a moral idea with universal purchase due to some innate property of the human. Such a proposal must be faulted as a global but in fact very provincial idea indeed. However, to treat these rights as a contingent legal concept of human culture that can potentially be deployed and appropriated in every corner of the planet is an altogether different starting point. Recall the riposte on relativism: culture is neither static nor total, but dynamic and differentiated for any given society. Of course, there has been and rather likely still remains the arrogant (if not racist) belief that only populations of EuroAmerican descent can really understand what fundamental rights are. This conviction is a key instantiation of the legal orientalist discourse in which proper insight into law and governance is preordained in the Western legal subject. One does not need to believe in Truth or Progress (with a capital T and P) to see that this proposition has been exposed as both descriptively and normatively wrong, even in the polities that advanced it. It certainly does not provide a valid reason to refute the critical potential of human rights (or even law) as a concept that is both universal and particular. . Colonialism–Decolonialism We can now already appreciate why it is dissatisfying to couple the idea of universal human rights with a colonial–decolonial binary. The critique of governmentalisation based on the liberal idea of universal and indefeasible rights is, properly understood, universal–particular: it combines the local and the universal. In this form, these rights respond to processes of modern governmentality, which can be witnessed today all-over the world. This state of affairs is not least the legacy of colonialism. Obviously then, this makes the gesture of decolonising the idea of universal human rights problematic, especially if it is accompanied by the awareness that these rights draw their essential appeal from offering an instrument against oppressive states. The standard qualification attached to concepts like decolonisation and orientalism, that they are not directed against Western (legal) knowledge, offers no remedy in this respect. The intellectual and political discourses that safeguard governments against the critique will stand ready to exploit the rhetoric potential of these (well-intended) critical concepts to nip any local initiatives in the bud that reach out to the idea of universal rights. These ‘dark sides’ of comparative legal discourses are now just too well documented to write them off as mere conceptual or academic
N. Luhmann, Law as a Social System (Oxford: Oxford University Press, ), pp. – (referring to the modern state). See the references above in n. . In a US case from the s dealing with the complaint of a ‘subject of Japan’, we read: ‘It is obvious that the objection on the part of Congress is not due to color, as color, but only to color as an evidence of a type of civilization which it characterizes. The yellow or brown racial color is the hallmark of Oriental despotisms, or was at the time the original naturalization law was enacted. It was deemed that the subjects of these despotisms, with their fixed and ingrained pride in the type of their civilization, which works for its welfare by subordinating the individual to the personal authority of the sovereign, as the embodiment of the state, were not fitted and suited to make for the success of a republican form of Government.’ Terrace v. Thompson () Federal Reporter (District Court, W. D. Washington) at , ; cited in Ruskola, above n. , p. . I draw in this paragraph on Jullien’s distinction between a (positive) ideological and a (negative) logical defence of human rights, of which he rejects the former and defends the later; Jullien, above n. , pp. –. D. Scott, ‘Colonial Governmentality’ in his Refashioning Futures: Criticism After Postcoloniality (Princeton, NJ: Princeton University Press, ), pp. –. See, for example, de Sousa Santos, above n. (Epistemologies of the South), p. ; Ruskola, above n. , p. .
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Thomas Coendet
concerns. Concepts like decolonisation and orientalism must be self-reflective, that is to say, we must account for their critical position beyond the self-criticism of the so-called West. And this includes reflecting on the political implications and proper limitations of their use. Incidentally, considering how much these approaches owe to the canonical thinker of power/ knowledge, it would be deeply ironic if we were to take them to stand, somehow, aloof from local regimes of truth and to offer analytical tools that would not themselves produce effects of power. Inscribing the idea of universal human rights into a colonial–decolonial binary is unfortunate for another reason. It conceals the question: Whose universality? Charting the world in relations of power between North–South and West–East to analyse asymmetries between different regions and the people that live there is one thing; discussing the power asymmetry between the individual and the modern state is quite another (even where it relates to the former). The latter is a power relation that exists globally today. Accordingly, there are local voices that can articulate it who are not located in the northern–western hemisphere. To them, the universality of human rights might mean something very different than to the comparative lawyer situated in the Global North–West. Certainly, these subaltern voices might see this universality as a symbol and instrument of global power relations. But just well, they might invoke these rights as universally deployable concepts for objecting to their local power relations with the modern state and to ways in which they are governed. The comparatist who criticises the rights discourse in China, for instance, might therefore harbour the comment that for a Westerner enjoying the protection of rights to caution Chinese citizens about their limits is like ‘an overweight person asking a thin person to lose weight’. Thus, there is something Eurocentric about the idea of decolonising universal human rights. It appears that the colonial–decolonial binary blocks the view, once more, for considering how this universality might be understood and lived locally in places beyond Europe. Universal human rights are not an abstract ideal, they are specific legal concepts laid down in texts that can be studied, debated, and developed. The view that they could only be implemented through asymmetrical power relations and hence perpetuate coloniality simply misses the point and the perspective of how these rights work in power relations between individuals and the modern state. This limits the universal quality of human rights to a legal transplant approach in which these rights are imposed top-down by ‘the man of the law’. And this, of course, invites an unthinking call for decolonisation. But what is lost in this view is not only that such a call has its
In particular, Coendet, above n. , at –; J. Kroncke, ‘Orientalism, Occidentalism and the Control of Law: The Dark Side of Comparative Law’ () Ancilla Iuris ; S. Seppänen, ‘After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law’ () American Journal of Comparative Law . Coendet, above n. , at – and – in particular. Succinctly, Foucault, above n. , pp. –. While Foucault was keen to distance himself from a too narrow ‘juridical conception’ of power, he did not suggest that rights could not be effective tactical tools against modern (state) power; cf. above note and Foucault, above n. , pp. , –. Lu Nan, quoted in T. Ruskola, ‘A Reader’s Guide to Legal Orientalism’ () Ancilla Iuris at (with reference to the original source); for another crisp response to a critical project from the ‘Global North’, I. C. Jaramillo-Sierra, ‘An Outsider’s Comment on Eve Darian-Smith’s Laws and Societies in Global Contexts’ () International Journal of Law in Context at . For important voices on human rights from beyond the Western perspective, J.-M. Barreto (ed.), Human Rights from a Third World Perspective: Critique, History and International Law (Cambridge: Cambridge Scholars Publishing, ); U. Baxi, The Future of Human Rights (Oxford: Oxford University Press, rd ed., ); W. Twining (ed.), Human Rights, Southern Voices: Francis Deng, Abdullahi AnNa’im, Yash Ghai and Upendra Baxi (Cambridge: Cambridge University Press, ). Contra: L. Salaymeh and R. Michaels, ‘Decolonial Comparative Law: A Conceptual Beginning’ () Rabels Zeitschrift für ausländisches und internationales Privatrecht at .
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Critical Methods
political dangers and overwrites the agency of formerly colonised people. It further misses out on the perspective of the specific intellectual, ‘the man of laws’, together with the insight that human rights must and should be ‘home-grown’ to be effective. In this bottom-up approach to human rights comparison, universal rights are seeds: they cannot be transplanted from one social body to another, but they can be planted as legal concepts – even if it remains unclear what, if anything grows from them. . Orientalism–Self-Orientalism The theory of legal orientalism alerts the comparative lawyer to a particular epistemological bias regarding Asian law. The orientalism trope consists on a general level of constructing a false dichotomy between Western and Eastern societies. Examples for such dichotomies are modern– traditional, civilised–inhuman, progressive–outdated, free–despotic, universal–particular, rational– irrational, superior–inferior, lawful–lawless. While the trope often casts the West in a positive and the East in a negative light, this evaluation can be inverted as well. Take, for instance, a regression narrative in which the comparative lawyer romanticises the East as a ‘paradise lost’: ancient wisdom about forms of life and law still exists there, which the capitalist and secular societies of the West have now foregone. Positive and negative orientalist imaginations have and still do inform politico-legal projects of Euro-American powers abroad and at home. Edward Said’s classic study on orientalism therefore interpreted orientalism as a ‘political doctrine’, a ‘cultural apparatus’ that ‘is all aggression, activity, judgment, will-to-truth, and knowledge’. In this apparatus of power, the Asian individual is slotted into a ‘subject race’ that ‘had to be subjected’. Recent work on legal orientalism has sought to overcome these obviously pejorative connotations of the term ‘orientalism’, while keeping in view its political effects as a particular discourse on Asia and its legal traditions. The concept is now best understood as a body of knowledge (or discourse) on the legal traditions of the East, which informs the viewpoint of a Western observer and results in a specific way of imagining the East and its law. The orientalist viewpoint does not turn on geographical location or citizenship, but marks a particular epistemological position. So, the viewpoint of a Western observer can also be adopted by someone living in the East, whose primary legal education is not in a Western legal system. If such a person, however, comes to reproduce the biases of the Western viewpoint, this is now commonly denoted as selforientalism. Legal orientalism is an important concept in the toolbox of the comparative lawyer: it offers helpful methodological pointers to stay away from negative and positive orientalism. But, as Foucault would assure us, this concept too is ‘dangerous’. I have already broached the
See, generally, O. Táíwò, Against Decolonisation: Taking African Agency Seriously (London: Hurst, ). On the global importance of modern rights and their place in this debate, see ibid., pp. –, , . See Besson, above n. , p. . After the sowing, the biological metaphor must break down if one presumes an anti-foundationalist understanding of rights, as I do here. The following draws on T. Coendet, ‘Legal Orientalism’ in J. Smits, J. Husa and C. Valcke (eds), Elgar Encyclopedia of Comparative Law (Cheltenham: Edward Elgar, forthcoming). E. W. Said, Orientalism (New York: Vintage Books, ), p. . Ibid., p. . Ruskola, above n. , p. . M. Foucault, ‘On the Genealogy of Ethics: An Overview of Work in Progress’ in P. Rabinow (ed.), Essential works of Foucault –: Ethics (New York: New Press, ), p. at p. .
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Thomas Coendet
necessity of reflecting on the political implications of its use under the problematic motion of decolonising universal human rights. The key point bears repeating: universal human rights provide a conceptual form for the critical question of how not to be governed. This critique is of Western descent and hence can be easily slotted into the orientalist dichotomies mentioned above: (i) human rights stand for the modern, civilised, progressive, free, universal, rational, superior, and lawful world. Step (i) opens the possibility (ii) of refuting any critique of modern governance as an orientalist misreading of Asia or, generally, the Other of Western modernity. If the criticism is raised from the ‘own ranks’, it can be denounced as self-orientalism. It is crucial to see that steps (i) and (ii) need not belong to the same discourse. Step (ii) will typically involve a discourse that concerns itself with the particular local power relationship between a modern state and its citizens. Step (i) can have its place in a discourse that concerns itself with the global power relationships between the West and East or North and South, for that matter. However, step (i) in no way amounts to critical thinking. It simply means subsuming the concept of human rights under a narrative that is currently in vogue. This may be encouraged by the hope that the zeitgeist got it right, this time, or even by the strong conviction of ‘the man of the law’ who, once more, sets out to change the world based on his interpretation of what is just and unjust, universal and particular, global and local. As regards step (ii), such hope and conviction are either politically naive or dangerous, or both. A critical theory of legal orientalism must therefore keep a reflective distance from the discourse it sets in motion. Distance from a discourse will require consideration of its limits. As to the orientalism–self-orientalism binary, this means to reflect on what lies outside the discourse of legal orientalism. Conceptually, this can be marked by two limits: the East–West and the West–West limit of legal orientalism (or, if you wish, the South–North and the North–North limit). The basic thrust of these distinctions is that it is ethically and politically problematic, and potentially self-defeating, to approach and use the term (self-)orientalism indiscriminately, rather than with some restraint. (a) The West–West Limit: Beyond Legal Orientalism The West–West limit captures the problem of whether it is possible for Western observers who engage with Asia and its legal traditions to move outside their orientalist prejudice (Vorverständnis) or whether they are, for evermore, caught up in the net of orientalist knowledge. While Western observers will have little choice but to start their comparative endeavour against the background of legal modernity, with its ready-made orientalist implications, the critical question is whether they will be capable of ‘unlearning’ and hence arrive at propositions that are no longer orientalist, even if still forming part of their Western viewpoint. There is a strong case for being sceptical about the possibility of moving beyond orientalist knowledge within a Western perspective and thus denying a West–West limit of orientalist knowledge. The most important reason seems to me that the Euro-American observer may consider it too easy to clear his modern legal viewpoint from orientalist prejudice and simply continue orientalising in the
See above at note and references provided therein. Coendet, above n. , at –; the importance of critical distance is also emphasised in J. Butler, ‘What Is Critique? An Essay on Foucault’s Virtue’ in D. Ingram (ed.), The Political (Oxford: Blackwell, ), pp. –; Frankenberg, above n. , at –. The discursive effects of analysing orientalism have themselves been analysed by, for example, N. McInnes, ‘“Orientalism”, the Evolution of a Concept’ () The National Interest ; G. Achcar, ‘Orientalism in Reverse’ () Radical Philosophy . On the politics of legal orientalism, most recently Ruskola, above n. , at –. The following draws on and expands the argument in Coendet, above n. , at –. The idea of unlearning was already introduced by Said, above n. , p. (borrowing from Raymond Williams).
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Critical Methods
illusion that something has been (un)learned. If Said had a point, it is this: cultural stereotypes concerning the Orient are far more pervasive and stubborn than common knowledge recognises because they are part of common knowledge. Nevertheless, I would uphold the conceptual distinction of a West–West limit. Part of the problem of why this limit is important lies in the fact that the term ‘orientalism’ has not shaken off its pejorative, moralistic connotations. The speech act of labelling some statements as orientalist propositions is therefore still fraught with ethical and political concerns. Yet the notion of an orientalist legal knowledge, of which there is no outside for the Western observer, is also problematic for epistemological reasons. It appears to repeat the mistake of imagining legal culture, now knowledge, as a static, holistic entity, rather than a differentiated and differentiating phenomenon.87 Moreover, everyone who acknowledges the possibility of self-orientalism cannot consistently hold such a static and holistic view of legal knowledge. Self-orientalism presupposes that the Asian legal subject can learn from the West. There is no logic to the thought that the Asian legal subject should be able to self-orientalise, while the Western legal subject should not be able to de-orientalise its legal knowledge. What is more, the proposition that comparative reasoning can cease to be orientalist does not warrant a carefree way to future engagement with Asia. Orientalist knowledge is common knowledge. Thus, comparative lawyers (whether or not they specialise in Asian legal traditions) have no reason to consider themselves beyond orientalist knowledge by default. The default position should better be to presume that one might share orientalist views. And the conscientious comparatist will even go further and seek to remember in some form the earlier experience of orientalism: for ‘unlearning’ can only mean deconditioning, but should not mean forgetting. Excursus: The Orient and Law as Such A satisfying way of dealing with the problem posed by the West–West limit conceptually might be to give one of Said’s central intuitions about orientalism a more robust theoretical underpinning. Said scolded the orientalists notably for not engaging with the ‘real’ Orient, but rather experiencing the Orient as a figment of their own imagination. The orientalist imagines things and bypasses the reality of how they actually are – this is a problem that should be of interest to any comparative lawyer for obvious reasons. At issue is a non-trivial, albeit (to philosophers) wellknown theoretical problem about how conceptual truth and the world relate to one another. Since the problem connects many long-standing issues about comparative law and its methods, I will develop it at some length by way of this Excursus on the Orient and law as such. The Excursus will take a very European perspective on the problem. Yet as we ultimately aim to see how the Western legal subject relates to the world beyond itself, I may be forgiven. (i) Analytical Pragmatism – To Kant we owe not only the critical insight that ‘intuitions without concepts are blind’. He also bequeathed to us the philosophical red herring that our
For case studies on the persistence of orientalist legal knowledge in scholarship and judicial practice, respectively, J. Kroncke, ‘Substantive Irrationalities and Irrational Substantivities: The Flexible Orientalism of Islamic Law’ () UCLA Journal of Islamic and Near Eastern Law ; M. H. K. Ng, ‘Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law’ in Y. Zhao and M. H. K. Ng (eds), Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation (Cambridge: Cambridge University Press, ), pp. –. See above at note . The culture of remembering (Erinnerungskultur) raises deep and difficult questions, which I cannot address here. See for a profound study, Assmann, above n. ; for a most sensitive reflection in a few words, K. Ishiguro, My Twentieth Century Evening and Other Small Breakthroughs: Nobel Lecture Delivered in Stockholm on December (London: Faber & Faber, ). For example, Said, above n. , p. . I. Kant, Kritik der reinen Vernunft (Hamburg: F. Meiner, ), p. (B/A).
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Thomas Coendet
concepts cannot grasp how things are as such: the thing-in-itself (Ding an sich) pertains to a noumenal sphere beyond the world we can understand. Kant famously argued that reason should not be tempted by the lure to grasp the thing-in-itself for that could only result in transcendent nonsense and submitted his transcendental philosophy as a remedy. Hegel appreciated the effort, but took him to task for gesturing rather unfortunately at a ‘thing-in-itself’: for what should it possibly mean that things exist in a world somewhere beyond the world that we are living in? The confusion remains, haunting social scientists and comparative lawyers, among others, who contend that there is no such thing as capitalism as such, law as such, freedom as such, the human as such – and are thereby right and wrong in an important way. Hegel and Foucault shed some light on the issue of why this is so. Hegel reconceptualised the logic of what it means to speak of how things ‘really’ are. In his analysis, speaking about how matters are as such implies a three-fold structure. First, if we speak about the cello in itself (an sich), we refer to what a cello is, in principle or paradigmatically: ‘a bass instrument of the violin family, held upright on the floor between the legs of the seated player’, as the Oxford Dictionary puts it. Second, we also speak about how things are for themselves (für sich), that is, as particular empirical instantiations. I may, for instance, refer to the cello of my sister. Third, our knowledge of how things are in themselves allows us to infer how things normally present themselves. If you tell me that your son plays cello, I can and will by default infer that your son’s cello has four strings. Thus, my understanding of the situation implies a judgement of how things are in and for themselves (an und für sich), pulling together my knowledge of the concept as such with the particular instance of its use. So, if Kant argued that we could not apprehend the thing-in-itself, say bread as such, because we only grasp bread as located in time and space by some a priori forms that are innate to our capacity of reason, Hegel moved the thing-in-itself back into our world. That bread on the table is a thing for itself and if I ask you to hand it over to me, I rely on our shared concept of what bread is in itself, bread as such, by which we mean not bread somewhere in a world we cannot see and know, but bread in the world that we inhabit. Now things get complicated, first of all, because for concepts that refer to the world there are, and always will be, exceptions. Cello strings break once in a while, but skilful cellists can compensate for such an instance, to some extent, by transposing their playing onto the remaining three strings without interrupting the piece. In such a situation, we still can rightly say that the cellist continues to play a cello. However, it would be misleading to introduce someone to the concept of cello by suggesting this situation to be the normal case. The default inferences that we connect to playing a cello as such refer to a player who can rely on four strings. And yet more complicated: the default inferences that we connect with particular concepts are known to us in a particular language and culture. Wittgenstein would say, they are part of our ‘form of life’. Our normal understanding of things is embedded in our form of
G. W. F. Hegel, Wissenschaft der Logik, (Frankfurt am Main: Suhrkamp, ), pp. –; for the interpretation I adopt here, P. Stekeler, Hegels Wissenschaft der Logik. Ein dialogischer Kommentar. Band : Die objektive Logik. Die Lehre vom Sein (Hamburg: Meiner, ), pp. –; P. Stekeler, Hegels Wissenschaft der Logik. Ein dialogischer Kommentar. Band : Die objektive Logik. Die Lehre vom Wesen (Hamburg: Meiner, ), pp. –. Hegel’s analytical pragmatism, which I introduce in the following, has been developed in the Hegel commentaries of Pirmin Stekeler. For an overview, see Stekeler, above n. (Hegels Wissenschaft der Logik. Band ), pp. –. The basic theses of this interpretation of Hegel can be found in the following English publications, P. Stekeler–Weithofer, ‘Absolute Spirit in Performative Self-Relations of Persons’ in M. F. Bykova and K. R. Westphal (eds), The Palgrave Hegel Handbook (Cham: Palgrave Macmillan, ), pp. –; P. Stekeler-Weithofer, ‘Conceptual Thinking in Hegel’s Science of Logic’ () III Argument: Biannual Philosophical Journal . L. Wittgenstein, Philosophische Untersuchungen (Oxford: Blackwell, nd ed., ) para. .
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Critical Methods
life and therefore using the same concept among users who do not share the same form of life will trigger different associations, even if they use the concept in a competent way and talk about the same object. If a German and Frenchman speak in English about bread, which they just bought in a London bakery, their associations about the concept of bread will differ, although they are plainly talking about the same thing. As Benjamin explains it: the word bread ‘means something different’ (etwas Verschiedenes) to both of them and it means ‘the very same thing’ (das Selbe und Identische) because the ‘modes of intention’ (Art des Meinens) differ, while the ‘intended object’ (das Gemeinte) is the same. Moreover, there is singularity: the thing for itself is always unique: no one cello plays like another – even if they are all fitted with four strings, just as the paradigm of the cello has it. Finally, complexity is compounded because – contrary to the conventional use of the term, on which I have also relied so far – what we understand as the essence of things is not fixed, but evolves together with the we who understands: not long ago we might have defined the cello in itself to be made from wood, but after having seen someone playing an electronic cello for some time, we may come to understand that using wood for producing a cello is not essential. By distinguishing between the thing in itself, for itself, and in and for itself, what Hegel offers us is, on this reading, an analytical pragmatism. The strength of this theory lies not only in cleaning up Kant’s confusion about the thing-in-itself, which points to a mystical direction. Even more importantly, Hegel’s doctrine of essence holds the two things together: the universal of the concept (in itself ) and the particular of its instantiation (for itself ) and does so in a way that allows us to grasp our complex and evolving interaction with the world and each other. I am sure that the astute reader will already ponder the implications of this theory for law and its comparison. But before I turn to them, and then back to orientalism, let me highlight three features of the analytical pragmatism that is on offer here. First, pragmatism is key. The truth captured by our concepts is our truth: it is not Truth, but truth that guides our engagement with the world and each other. Our concepts of how things essentially are should provide us with reliable orientation. That orientation is their pragmatic core. We benefit from clear orientation even if, and perhaps especially if, we debate about changing direction, redefining the essence of things because we think that the concepts as they stand have misguided us. Second, such debate on our conceptual knowledge does not stand above the political and, as Foucault was keen to emphasise, relates to power. The point is not that knowledge is power or that knowledge serves power (the second is a truism, the first is not even false if it purports to represent Foucault’s position). The point is that power constitutes knowledge and that this process involves ‘regimes of truth’. In short: power is not evil, knowledge does not boil down to politics.
‘The words Brot and pain “intend” the same object [that is, bread as such], but the modes of this intention are not the same. It is owing to these modes that the word Brot means something different to a German than the word pain to a Frenchman, that these words are not interchangeable for them, that, in fact, they strive to exclude each other. As to the intended object, however, the two words mean the very same thing.’ W. Benjamin, ‘The Task of the Translator’ in H. Arendt (ed.), H. Zohn (trans.), Illuminations (New York: Schocken Books, ), p. at p. ; Legrand quotes Benjamin’s example to the effect that bread means something different to the German and Frenchman, but omits Benjamin’s acute observation that Brot and pain also means ‘the very same thing’, Legrand, above n. , at . On the complex cultural, notably religious connotations of bread, for example, M. Balinska, The Bagel: The Surprising History of a Modest Bread (New Haven, CT: Yale University Press, ). Stekeler–Weithofer, above n. (‘Absolute Spirit in Performative Self-Relations of Persons’), p. . Particularly clear: M. Foucault, ‘The Ethics of the Concern of the Self as a Practice of Freedom’ in P. Rabinow (ed.), P. Aranov, and D. McGrawth (trans.), Essential works of Foucault –: Ethics (New York: New Press, ), p. at pp. –.
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Thomas Coendet
Third, using a concept competently requires good judgement and cooperation because for none of our concepts, which we use to express our knowledge about the world, could we come up with a definition that would not be subject to exceptions or possible refinement. Standing in front of that London bakery, the Frenchman might complain to his German friend, holding the bread he just bought in his hands, ‘It’s not even bread to me.’ And this overture will give our two friends the opportunity to relish in the refinement of what they each associate with bread as such. Just a minute earlier our English baker will have shown common sense and cooperation in using the concept of bread when the Frenchman asked him for ‘that bread over there’ to differentiate it from the cake next to it, rather than bringing up the controversial issue, ‘What do you mean by bread?’ Thus, whether the default inferences of a concept apply in a given situation and whether re-specification is needed is context driven. The pragmatic insight, which we derive from Hegel and Benjamin, is that the default inferences built into our concepts enable us to mean the same thing, while our associations and connotations differ, always a little at least. (ii) Law as such – Saying that even within the same language and culture we will never have exactly the same understanding of a concept, which relates us to the world and others, means stating the obvious. Just as clear is, however, that it matters greatly for our social interactions whether or not we share a form of life, in particular for using and defining legal concepts and law as such. As any lawyer can tell, learning to judge when a particular case is part of the paradigm case, which a specific legal concept is meant to capture, requires a long, incremental learning process that takes place of course within a particular form of life. It is not impossible for outsiders to get it right (comparatists included), but the difficulty rises considerably; especially because the judgement of whether or not to apply a concept requires that fine-tuned knowledge, which is honed by experience and remains to a significant extent implicit to a particular legal system. You only get this knowledge at the front line – as I did when arguing for an additional compensation for our client under ‘severance’ as the contract terms, taken for themselves, suggested quite clearly. ‘Severance?’, answered the partner, ‘no judge will grant us something under that category.’ I was puzzled because I could not see why the concept of severance as such would overrule the particular contract terms. But the experienced litigator seemed rather sure about how the concept applied to the case in and for itself. Explicit or implicit, modern law is undoubtedly a highly organised domain of knowledge, as Max Weber, Michel Foucault, and Niklas Luhmann have shown us, each in their own way. In one of his sharp-witted aperçus about the effects of such organised discourses, Foucault remarked, for the domain of sexuality, ‘Among the numerous effects the organization of this domain has undoubtedly had, one is that of having provided historians with a category so “selfevident” that they believe they can write a history of sexuality and its repression.’ This confidence about what a certain concept denotes in itself not infrequently entails scepticism about whether conceptual reflection is meaningful, or indeed leads into ‘metaphysics’ and empirically unfounded ‘speculations’. In the extreme, the scholar of sexuality, capitalism, law (etc.) may come to hold the paradoxical view that there is no such thing as sexuality, capitalism, law, as such. Instead of higher-order conceptual clarification, this scholar will, if a historian, insist with Leopold von Ranke on saying ‘stick to the sources’ and, if an anthropologist, with Clifford Geertz will aim for a ‘thick description’ of the particular sexualities, capitalisms, laws, etc.
M. Foucault, ‘Questions of Method’ in J. D. Faubion (ed.), C. Gordon (trans.), Essential Works of Foucault –: Power (New York: New Press, ), p. at p. .
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Critical Methods
Also the comparative lawyer may be and, in fact often is, tempted by the conceptual stopgap to consider the object of study, that is to say, law, a broad continuum, or a sliding scale of various historical and cultural instantiations that cannot be reduced to a paradigm. To be sure, not every comparative legal enquiry requires us to formulate a paradigm of law. In any case, it would be naive to think we could not understand or practice law before having it defined – the average lawyer will neither be able, nor need or care to formulate a concept of law that passes philosophical scrutiny. It is also sound methodological advice for the comparatist to keep to the sources and strive for thick description. But considering the sliding scale to be a solution for what our object of study actually consists of is deceptive: for, no matter how close to the sources you are and how thickly you describe, how do you know that you are on the scale? In other words, from the true observation that law is particular, it does not follow that there is nothing ‘interesting and true to say about law in general, law as such, law wherever it may be found’. In this tension between law’s particularity and universality, Hegel’s logic suggests pragmatically linking the world with our concepts, not splitting the two. Conceptual work on law as such, thus understood, does therefore not entail moving into a metaphysical realm detached from our lifeworld, but rather means working on our orientation within it. It remains to the comparative lawyer a matter of judgement which level of conceptual clarification is needed for her research project, but she should be wary of taking her concept of law to be self-evident. This piece of advice should not be controversial and perhaps not even worth mentioning if it were not for a more difficult critical question. Are there limits to how one can define law, notably for the purpose of comparative law studies? Does the object of study constrain our concepts? Nominalism knows no such constraints: a nominalistic definition takes as law whatever one defines as law. In the comparative law discourse, the nominalistic move may be justified in a given situation as a wellaimed, inclusive performative gesture and it may indeed enrich our understanding of the legal domain. But in less capable and careful hands, it can be analytically weak and impoverishing; and with Hegel we add, potentially misleading. Let me explain. An understanding of law and its concepts is always the understanding of a particular person. This understanding is part of a specific language and culture, a form of life. Using the term ‘law’ as well as specific legal terms in a particular local situation activates a complex differential and inferential network of legal and non-legal propositions and connotations. Not all of these semantic effects are essential to the emergence of legal normativity as defined by law’s central case. Modern law, for instance, can have poetic features, but they are not central to it. Now, as regards defining law the key point is: what counts as the central case of law is not something that the researcher can make up at will because it is produced in and pertains to a particular form of life. This local understanding of law’s central case constrains its definition. It can only be
This is no reason for legal philosophers to feel superior, see J. Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford University Press, ), p. . J. Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford: Oxford University Press, ), p. (emphasis added). See T. Ruskola, ‘Beyond Anti-Anti-Orientalism, or How Not to Study Chinese Law’ () American Journal of Comparative Law , note . S. Roberts, ‘After Government? On Representing Law Without the State’ () Modern Law Review at . The fine texture of this differential and inferential network is perhaps best theorised in Jacques Derrida’s semiology. It can be elaborated alongside the neologism ‘pragrammatology’ by which Derrida indicates the combination of pragmatism and deconstruction: J. Derrida, ‘Remarks on Deconstruction and Pragmatism’ in C. Mouffe (ed.), S. Critchley (trans.), Deconstruction and Pragmatism (London: Routledge, ), p. at p. ; for a theory of (comparative) legal reasoning building on this combination, T. Coendet, ‘Legal Reasoning: Arguments from Comparison’ () Archiv für Rechts- und Sozialphilosophie ; T. Coendet, Rechtsvergleichende Argumentation (Tübingen: Mohr Siebeck, ).
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Thomas Coendet
ignored at the price of giving a misleading definition of law. If I were to suggest, for instance, defining law’s central case to the effect that it ought to be morally unsuccessful, I would put forward a highly misleading concept of law. It is crucial for the comparative lawyer to see that these distortions cannot only be produced by definition, but also implicitly by translation, that is, simply by calling a particular form of social order ‘law’ in the English language. Thus, careful argument and judgement about the given comparative context is required in order to decide whether we must re-specify the term or perhaps choose another. What comes together in this assessment are notably analytic, pragmatic, and political considerations. Since the problem is serious enough indeed, let us return to the London bakery for a more genial illustration. After an impassioned debate, our Frenchman draws some important conclusions: ‘OK, I agree with you that I have relied on the concept of bread when ordering mine at the counter before, that the baker and I understood the same thing in this situation. But you must grant me, I construct what bread is supposed to be on the inferential basis of the word pain. And if I were to bring back at home as pain what I just bought here as bread, my family would leave breakfast in protest for being treated like that. This is because we consider baguette to be bread’s central case. It may not be to your taste, but I stand with my argument for baguette being the central case of bread. This argument does not exclude considering something else than baguette as bread, but I wish to have clarity on what bread is to me and when we disagree on it.’ To this his friend offers as a last resort: ‘de gustibus non est disputandum.’ For law, we do not have this convenient exit. (iii) The Orient as such – To conclude the Excursus, let us return to Said and his suggestion that orientalists would not engage with the ‘real’ Orient. On the basis of analytical pragmatism, Said had no need to use scare quotes when drawing the distinction between the Orient that the Western scholars imagine and the one that really exists. The latter simply is the Orient for itself. Said’s problem with the discourse of orientalism can hence be grasped more clearly: the criticism is that the study of the Orient unfolds in a conceptual realm in itself, which does not care any longer about how things actually are on the ground, if it ever did. What the Orient really is and how its people live for themselves is ignored. Because the orientalist fails to take account of how matters present themselves for themselves, his knowledge about the real Orient is therefore misleading. The conceptual truths he offers become a set of fallacious default inferences. Good comparative practice? The question requires no answer. Fortunately, a basic remedy against such imaginings of the Other has now become common methodological currency in comparative law scholarship. Caring about foreign law for itself implies the methodological suggestion of understanding it on its own terms. For the comparative lawyer, who necessarily embarks on her investigation into foreign law with the concepts of her own tradition, this suggests in other words immersing herself in foreign law as it is for itself. But, importantly, she should then return to her starting point and reflect on her findings in and for themselves. Frankenberg has pinned down this ‘dialectic learning experience’ in legal comparison as
J. Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford: Oxford University Press, ), pp. – at pp. – in particular. Hence the importance of J. E. Ainsworth, ‘Categories and Culture: On the Rectification of Names in Comparative Law’ () Cornell Law Review ; P. Legrand, ‘Mind the Gap! Translation of Foreign Law Is Not What You Think’ () Revista de Investigações Constitucionais . On human rights violations and ‘legal taste’ (Rechtsgeschmack), see Luhmann, above n. , p. . T. Coendet, ‘Chinese Law: ½ Trajectories’ (2021) Ancilla Iuris 136 at 143. V. G. Curran, ‘Cultural Immersion, Difference and Categories in U.S. Comparative Law’ () American Journal of Comparative Law .
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Critical Methods
follows: ‘The dilemma of understanding foreign (legal) cultures and of transcending the domestic (legal) culture can neither be resolved by “going rational” nor by “going native.”’ Put differently, good comparative practice considers its subject matter not ‘as such’ or ‘for itself’ only. Instead, it unfolds the comparative issue in a dialectic process of ‘as such’, ‘for itself’ and ‘in and for itself’. (b) The East–West Limit: Transmodern Comparative Law In the contemporary comparative discourse, modern law is certainly dominant; so much so that some may even doubt whether there still is non-modern legal knowledge to be had. The simplistic binary of orientalism–self-orientalism positively seduces us into imagining such a legal wasteland. Either law’s world is orientalised by the Western comparatist, or it is self-orientalised by its Other. But this is not only misleading for conflating modernity and westernisation. It further overlooks the fact that there are radically (from radix, i.e., root) different local starting points to make sense of our (legal) world and to do so in a different way. Even thinking through modern law from such radically different starting points has the potential to produce very different conclusions – varieties of modern law, so to speak. The East–West limit therefore invites the Western comparatist to the following thought-experiment: how would it be to rethink modern law or, indeed, law by entering the global legal discourse through the Eastern door? This thought-experiment operates as a kind of stop signal against the universalising tendency of the orientalism–self-orientalism binary. And precisely because modern law is the dominating discourse, this East–West limit offers a salutary reminder. The concept of self-orientalism, moreover, deserves a special cutback. For there is a real danger that a Eurocentric view re-enters here through the back door: the Western comparative lawyer, who has learned about his own orientalism, overzealously turns to judging the Other on their use of modern legal knowledge. Surely, if they are drawing on it, they must be orientalising themselves. Yet appropriating modern or, more generally, Western legal techniques and concepts is by no means a sufficient condition of self-orientalism. Seeing things that way would simply be an extension of legal orientalism that screens out local agency. Instead, why could a case of legal borrowing not just as well be an endogenous learning process, an idiovariation, which starts from a radically different basis and draws on the Western legal tradition? For example, looking for civil law in Chinese legal history comes with the epistemological risk of imagining Chinese law as a variation of the civilian tradition for the Chinese scholar too. A conscientious use of the civil law concept, however, can contribute to a richer understanding of the Chinese legal tradition. Overall, I think we handle the concept of self-orientalism better once we realise that it is not simply the reverse of orientalism. Legal orientalisms are Western imaginings of Asian law. Asian scholars can succumb to this bias, of course, yet they are still less likely to hallucinate about the Orient than Western comparatists. Orientalism and selforientalism are hence asymmetric phenomena. Finally, there needs to be a conceptual space that positively marks out that other perspective on (modern) law. Legal orientalism is no fitting concept for this task because it essentially
Frankenberg, above n. , at . A sophisticated and inspiring account of this fact (as to the discourse of modernity) is L. O. Lee, Shanghai Modern: The Flowering of a New Urban Culture in China, – (Cambridge, MA: Harvard University Press, ). Coendet, above n. , at . See Z. Liang, ‘The Vernacularization and Localization of Civil Law in China’, P. Renninger (trans.) () Ancilla Iuris .
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Thomas Coendet
captures the reflection of the Western legal subject on the Western legal subject. The inversion of the concept in the form of an ‘oriental legalism’ is not a good choice either. The spatial connotations of this inversion are first of all not vast enough and, moreover, render it prone to a geopolitical reading, which must result in a too narrow view of law and risks producing more division where we require distinction instead. Law, of course, would be a term that could work in theory, but I am afraid this (English) word is today too readily understood as modern law. In other words, law does not make the reflective distance explicit that is necessary to mark the space beyond (post)modern comparative law. My terminological suggestion consequently is a ‘transmodern’ comparative law. I do not wish to develop this concept here, for it seems to me that it should not be Western comparative lawyers who take the lead for filling out the conceptual space of a transmodern comparative law and thus make this concept the entry point for yet another Western project of how to do comparative law. Nonetheless, and this is my final reason to recommend the term, transmodern comparative law neither excludes comparative lawyers from the Global North–West, nor does the concept insinuate that we should simply discard institutions of modern law, such as individual rights against state power. After all, ‘Europe is as much a quarry for models of future world-making as the various other cultures of the ex-colonised.’ E. SO DOES IT BECOME METHOD?
So, does critical comparative law become a method then? No, it does not and it should not. In what the critics describe as comparative law’s mainstream, we do find at least some rules of thumb that can be integrated into a series of steps, which we can call a method, a way to approach specific comparative issues. By contrast, what the critical line of comparative law scholarship did produce is an assemblage of various methodological hints and clues, some of which are valuable and important, but which, in any case, do not produce a toolbox with the necessary savoir faire for the uninitiated. According to the view taken in this chapter, the missing method of critical comparative law is, however, no miss. Critique should not be a method, it should not aspire to produce a body of knowledge, a set of propositions of what should be the right way of doing comparative law. Critique loses its power if it seeks to provide that safe harbour, for it then gives up upon its essential feature of reflective distance. Critical comparative law should stand for an ethos, an attitude that requires the comparative lawyer to position and reposition her- and himself time and again towards the received methodological tools and the themes currently in vogue. That positional work will result in specific methodological proposals and advances – as in this chapter – but not in grand, overarching methods or projects for comparing law. This does not mean the end of critical comparisons. What should be left behind is the attitude of profiling critical comparative law as against the mainstream as a matter of principle. That tends to produce not a critical dialogue on
On the concept of oriental legalism, Ruskola, above n. , at (with references); further T. Coendet, ‘Histories of Legal Orientalism’ () Ancilla Iuris at –. Generally on legal geopolitics, with a North–South focus, J. L. Esquirol, Ruling the Law: Legitimacy and Failure in Latin American Legal Systems (Cambridge: Cambridge University Press, ), pp. –. I borrow the term ‘transmodernity’ from E. Dussel, ‘Are Many Modernities Possible? A South–South Dialogue’ in A. Allen and E. Mendieta (eds), Decolonizing Ethics: The Critical Theory of Enrique Dussel (Pennsylvania: The Pennsylvania State University Press, ), p. at p. . Táíwò, above n. , p. (drawing on Frantz Fanon). Husa, above n. , p. . On the idea of a methodological toolbox, see Husa, Chapter (in this volume, with references).
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Critical Methods
method, but polemics from which results division, instead of clear and operable distinctions. Critique becomes no less important for that matter, but more important because it loses its character of defining a small avant-garde. Put differently, the concept of critique argued for here ceases to cut vertically in order to divide between ‘us’ and ‘them’. It cuts horizontally, right across comparative law scholarship. In this form, it may then be that patient labour giving form to our impatience for liberty.
This is not a renewed proposal for a value-free science of comparative law. What I mean is this: ‘Once, and I think only once, Mr Steiner is misled into blurring a point by the incisiveness of his own style. In distinguishing “neartragedy” – drama that ends, like Faust or Peer Gynt with some sort of redemption – he says “near-tragedy is, in fact, another word for melodrama.” He may or may not be right. But the trouble is that “melodrama” is more a pejorative than a descriptive term. And I suggest, as a fundamental canon of exposition, that a distinction of kinds should never be thus combined with a judgment of comparative value. This always weakens it and distracts our attention. If you say, “This is not port but sherry”, you speak to the purpose. If you say, “This is not port, but the vile drink of sherry’, you have introduced a red herring. Tell us afterwards how you dislike sherry, but don’t mix this up with the distinction.’ C. S. Lewis, ‘Tragic Ends: George Steiner, The Death of Tragedy’, in Walter Hooper (ed.), Image and Imagination: Essays and Reviews (Cambridge: Cambridge University Press, ), p. at pp. –.
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Culture and Comparative Law Methodology Qian Xiangyang*
The misconception of culture is responsible for many difficulties in comparative law. This chapter suggests that a general concept of culture is inevitably distorting or empty, and that any meaningful talk of culture can only take place upon microscopic elements. Cultural elements are different in their relevance to the constitution of the problem of life and accordingly the problem of law; the enquiries into the cultural impacts upon law must be based upon the relevance of a particular element to a particular law. The insider’s view to apprehend culture is a fallacy; the outsider’s view is the only way possible to know a culture. Taking culture as a purely subjective construction is another common misconception while the objectivity of cultural elements is essential for the proper understanding of culture and the methodological improvement of comparative law.
A. INTRODUCTION
Comparative law compares the legal systems across national, political, and other boundaries, where culture and its interactions with law are unavoidable topics. Functionalism, as the currently dominant method for comparative law, establishes itself upon the concept of the social problem, or what Zweigert and Kötz term ‘the problem of life’, assuming that law functions to find solutions for these problems, as every society faces essentially the same problems of life, which, through tertium comparationis, makes the comparison of laws possible. However, functionalist methodology is ineffective in culture-related areas where ‘strong moral and ethical feelings, rooted in the particularities of the prevailing religion, in historical tradition, in cultural development, or in the character of the people’ differ so much that one cannot expect the rules governing such areas of life to be congruent. Thus, the
* Associate Professor, Sichuan University. Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), p. . Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr., Oxford: Clarendon Press, rd ed., ), p. . Ibid., p. .
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Culture and Comparative Law Methodology
functionality doctrine that the same problem of life guarantees the comparability of law loses its validity. The limitations of functionalists can be explained by the sociology of social problems, according to which an objective fact alone is not sufficient to constitute a problem of life. How people understand it, or the subjective meaning attached to it, is what makes a fact into a problem. A natural fact only provides the objective ground; it is the subjective attitude that defines the fact as a problem: ‘social problems are what people think they are’. These definitional subjective meanings are cultural elements. Therefore, a proper understanding of the problems of life includes their inherent cultural elements. The functionalist predicament is rooted in a misconception that excludes culture from the problem. Culturalists are therefore right in claiming that ‘functionalism, as methodology, is highly insensitive for the cultural elements of law’. Consequently, ‘(t)he catchword “culture” has been recently used to express dissatisfaction with functional comparisons’. But ‘(i)t must be said that critics of functional comparisons have made little progress . . . despite the energy put in challenging the functionalist canon through the appeal to the cultural dimension of legal phenomena’. Culturalists highlight the importance of culture in comparative law, but they do not provide a successful remedy for the failure of functionalists. Neither functionalists nor culturalists cope well with culture, which is a significant factor in comparative studies of law. This chapter suggests that a key problem shared by both functionalists and culturalists is the misconception of culture, and that a reconceptualization of this term is therefore a possible remedy. The chapter focuses on four basic points concerning the concept of culture: in Section B, the culture versus element distinction; in Section C, the relevance of cultural elements to the constitution of the problem of life and accordingly the problem of law; in Section D, the outsider’s view as the proper way to understand culture; and in Section E, the objectivity of cultural elements. Then, following on from these points, the chapter concludes in Section F with a redefinition of culture, and the improvements thus brought to comparative law theory by this new conceptualisation. B. CULTURE VERSUS ELEMENT
Despite all the ambiguities and disagreements, there is nevertheless some consensus about culture, among which we have the following arguments. First, culture is dynamic: no culture remains the same as it was centuries or even decades ago. Second, culture is porous and cannot be strictly demarcated either geographically along national borderlines, or along the
Ibid., p. . ‘So there are areas in comparative law where judgment must be suspended, where the student simply cannot say which solution is better.’ Richard Fuller and Richard Myers, ‘The Natural History of a Social Problem’ () American Sociological Review at . Ibid. Qian Xiangyang , ‘Reconceptualize the Problem of Life for Functional Comparative Law’ () Asian Legal Philosophy at . Jaakko Husa, ‘Farewell to Functionalism or Methodological Tolerance?’ () Rabels Zeitschrift für ausländisches und internationales Privatrecht at . Michele Graziadei, ‘The Functional Heritage’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, ), p. at p. . Ibid., p. . Anne Peters and Heiner Schwenke, ‘Comparative Law beyond Post-Modernism’ () The International and Comparative Law Quarterly at .
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Qian Xiangyang
divisions of race, political entities, etc. Third, individuals in the same culture can be significantly different from each other in spite of very iconic aspects of their shared culture, and yet share commonalities with individuals in another culture that is strikingly different from their own. This suggests that we should not consider culture as a monolithic entity, and we must resist the ‘temptation to consider “culture” as a homogeneous whole’, lest we risk oversimplification, severe distortion, and the ignorance of a given culture’s complexity. Ironically, these mistakes are well known but hard to avoid. Like a set in mathematics containing particular elements, culture is a general term referring to numerous specific elements that are much richer and more versatile. This leads to the distinction between the general name of culture and the specific elements it refers to. When the name of a culture reminds us of some of its internal elements, what comes to mind is but a very small part of the whole. Suppose we talk grandiosely of the Chinese culture in general, we usually pick up on characteristic elements as representative of the whole, which might actually be different things in different contexts. One might isolate Confucian ethics, Chinese language and literature, or Chinese foods, costumes, or architecture. Whatever it is, the focus on some elements leaves the rest aside. Generalised talk about culture is never complete and accurate, but inevitably partial, distorting, ambiguous, or substantially empty. Such a general focus might be of some use when the specific substance of culture is unnecessary. For example, in the discussion about culture and comparative law in this chapter, not every line is based upon specific examples or elements. However, such focus without specificity has its limitations. The best it can suggest is ‘to be specific when talking about culture and law’ while it cannot offer any insight at all into the actual impacts of any particular culture on any particular law, which are what comparative law practice truly pursues. Therefore, if I hope to do something tangible with culture in comparative law, I should stop saying ‘be specific’ theoretically, and start being specific practically. Being more specific and microscopic tends to be proportionate with accuracy and meaningfulness, while macroscopic generalities correlate with distortion and meaninglessness. As those elements are the real things that culture stands for, the general concept is just a caricatured mask for them. Only when we quit the general concept, penetrate the outer layer and stay firmly on an elemental level, can we practice meaningful and accurate cultural work in comparative law. This element-oriented view fits particularly well with the micro-level perspective of functional comparison. Functionalism is more interested in concrete problems and specific rules or institutions, than the general spirit of a tradition or the Grands Systemes. As previously stated, a problem is constituted of a natural fact together with a culturally determined attitude. What combines with a natural fact to make a problem is not culture in general but a particular element. For example, what creates the problem of same-sex marriage in the US is not the American culture in general, which covers a wide range of elements like religion, politics, cuisine, costumes, etc. Some typical American cultural elements like KFC or McDonald contribute hardly anything to the problem of same-sex marriage. Rather, we must focus on
Ibid., at –. See also Pierre Legrand, ‘European Legal Systems Are Not Converging’ () The International and Comparative Law Quarterly at . Peters and Schwenke, above n. , at . Graziadei, above n. , pp. –. Zweigert and Kötz, above n. , p. . See Rene David, Les Grands Systemes de Droit Contemporains (Paris: Dalloz, ). The book focuses on the history, philosophy, structure, and methods of major legal systems.
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Culture and Comparative Law Methodology
those elements of American culture that match facts and play a actual role in the debate around same-sex marriage. The culture versus element distinction seems obvious and important, but this is what many fail to observe, even those culturalists who strongly emphasise the significance of culture in the understanding of law. An example is Pierre Legrand, who contends that he argues against the monolithic view of culture, which, paradoxically, is exactly what he adopts. As Legrand puts it, ‘(But) what is culture? Suffice it to say, within the present context, that “culture” concerns frameworks of intangibles within which interpretive communities operate and which have normative force for these communities.’ So culture is very complicated, with numerous interactive microscopic units, and it’s not right to simplify them into one symbolising entity of any sort. Legrand criticises the tendency of the ‘absurdly reductionist (view) to see a rule simply as a rule’ because law is culture. These are typical culturalist arguments and perfectly right in that laws are more than rules because culture is present and is complicated. But how can one properly depict this complexity? I contend that Legrand makes the same mistake that he argues against. Legrand goes on to argue: T(he) essential key for an appreciation of a legal culture lies in an unravelling of the cognitive structure that characterises that culture . . . . The comparatist must, therefore, focus on the cognitive structure of a given legal culture and, more specifically, on the epistemological foundations of that cognitive structure. It is this epistemological substratum which best epitomises what I wish to refer to as the legal mentality (the collective mental programme), or the interiorised legal culture, within a given legal culture’.
After all the emphases on its significance and complexity, culture eventually is again epitomised as a mentality, or an epistemological substratum, or a cognitive structure. ‘Epitomisation’ is the embodiment and representation of the richness of a phenomenon in a nutshell, by which all the complicated elements and intangibles are simplified into one general label or one characteristic homogeneity. Here he applies a culture versus element distinction and then erases the richness underneath. In doing so, this culturalist has gone back to where he started and has surrendered to what he has criticised, excluding all the specificity of culture. Consequently, Legrand is talking of French culture simply as Frenchness. This conclusion is ironically tragic for a culturalist. The epitomising approach is essentially problematic. First, the approach ‘will be unduly holistic, monolithic or over-consensual’. But ‘(o)ne must make due allowance for submentalités or para-mentalités’, because all societies are ‘so pluralistic that ‘often within-country differences are larger than between-country differences’. One is thus, ideally, looking for a representative common core – always bearing in mind, however, that one may have to settle for
Detailed discussions in Section C (‘Relevancy’). See, for example, Legrand, above n. , at ; Pierre Legrand, ‘Against a European Civil Code’ () Modern Law Review at ; Pierre Legrand, ‘How to Compare Now’ () Legal Studies at . Legrand, above n. , at . Ibid., at –. Ibid., at . Ibid., at . Ibid., at . Ibid. Legrand, above n. (‘How to Compare Now’), at . Ibid. Legrand, above n. , at .
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an imperfect approximation thereof’. So the epitomising approach is doomed to be distorting and incorrect, just as the idol in the idolatry can never really represent the divinity behind it. Legrand rejects rules as the epitomisation of law, but does to culture the wrong he rejects for law. Second, such an epitomisation is detached from real matters – it lacks substantial content and is therefore empty. Legrand, for example, frequently uses terms like mentalité or Frenchness but has not given explicit explanations what each of them means. What is Frenchness per se? What exactly constructs a mentalité? He does not answer any of these questions. In fact there is really nothing to say about such empty epitomisations. The process of epitomising is a process of deviation from the real elements of culture, and the invented idol can tell us little about the real thing. If this inventor is required to say something about his invention, he has no choice but to turn away from his general macroscopic invention and start to talk about specific and microscopic elements. When Legrand starts to talk about legal mentalités, he swiftly switches to civil law and common law mentalités. When talking of civil law mentalities, he focuses on a specific Gaian institutional system; when talking of common law mentalité, he focuses on England, while he fully realises ‘that to focus exclusively on English law in order to introduce the common law mentalité is, in an important sense, inadequate’. The reason for this predicament is obvious: the general and empty epitomising approach to culture is too far removed from the concrete elements ‘to do justice to the richness of the available materials and the complexity of the stories they tell’. So, a proper debate on culture, paradoxically, needs to forget the word ‘culture’ plus the general concept it implies, and be based on microscopic elements alone. This is where a culturalist has his fundamental fallacies. In order to emphasise the importance of culture, culturalists use a ghost-like incarnation of the term as an eye-catching sign, but the sign (mis) leads people to understanding it as the substance of culture. Interestingly, functionalism, on other hand, though criticised by culturalists as culturally insensitive, seems to adopt a relatively better microscopic approach. Functionalism bases itself on the concrete problem of life, which requires a focus on specific elements instead of on the general epitomisation of culture, because only specific elements combine with the corresponding facts to form concrete problems. Thus, in terms of culture, functionalism actually has a chance to win over culturalism. We might explore this further through a discussion on relevancy. C. RELEVANCY
Under a microscopic lens, we see culture as comprised of specific elements, rather than being a general entity. As such, we will realise that different elements of culture are markedly different in relevance to the making of problems of life. Certain kinds of facts can only combine with certain kinds of cultural elements to construct certain kinds of problems in life and of law. For example, it is easy to see the impact of Confucian ethics (an iconic element of Chinese culture) upon Chinese law. However, who could identify the impact of Chinese foods (another iconic part of Chinese culture) upon Chinese law? What rules, principles, institutions, or spirits of Chinese law are shaped by Chinese cuisine? Which particular foods have made these impacts? How do
Ibid., at –. Ibid., at . Though he briefly mentioned that it is ‘the shared meanings, attitudes and values that form a mentalité’, it is still vague, as the terms of meanings, attitudes, and values need further explanations. Ibid., at . Ibid., at .
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these foods make these impacts on law? These questions are difficult, if not impossible, to answer. The most plausible conclusion is that Chinese foods, if not totally irrelevant, differ greatly from Confucian ethics in their relevance to Chinese law. These problems of relevancy can be seen in Legrand’s illustration, which is based on a painting by Jacques-Louis David. It depicts Napoleon in his study drafting the French civil code by candlelight. Legrand claims that this painting ‘is just as relevant to French law, is as much a genuine, useful, and intelligible part of French law as any provision of the civil code’ because the painting has ‘helped to shape French minds within the legal community, and beyond, at least as much as what any provision of the civil code may have achieved, literally and symbolically’. If this argument is valid, Chinese foods and Confucian ethics would be equally relevant in shaping the Chinese legal mind and, accordingly, the law. Legrand’s argument is problematic for several reasons. First, a particular piece of cultural work does not necessarily support in general cultural impacts upon the law; to argue this could lead to over-generalization. Second, suppose this particular painting does indeed exert influence upon the French legal mind. In that case, we need to find out precisely the influence-exerting process: How does a piece of artistic work come to constitute a part of the French legal mind? If it is through reshaping the epistemic stratum, then how does a non-legal idea change the process of legal thinking? Legrand does not give a clear answer. Third, David’s painting of Napoleon drafting his civil code has contained something ‘legal’, the civil code and the implied ‘historically-conditioned relationship between the legislative and judicial powers in France’. So the example does not adequately support the argument of fait social total or of culture as a non-legal entity which shapes the mind of the law. An example containing absolutely no information that is legal in any sense might make a stronger argument, like David’s Portrait of the Comtesse Vilain XIII and her Daughter Louise. It would be interesting to hear Legrand’s opinion, following this change of example, of the impact of French paintings on French law, and this is the real question in general about law and the non-legal culture. But I doubt any affirmative answer could be reasonably convincing. Homosexuality, for example, is the same as heterosexuality in being a natural (biological) fact but, under Christian culture, only homosexuality, not heterosexuality, has become a problem. This is because the values that originated in Christian biblical teachings enable people to make a negative judgement about homosexuality, thus creating a problem. But ideas, say, on how to make Foie Gras, however brilliant, will not enable people to make any value judgement on the topic of homosexuality, neither negative nor positive, and thus construct a problem. This suggests that only some particular cultural elements are relevant to understanding why certain lawmakers regard homosexuality as a problem while other elements are just irrelevant. Similarly, given a particular cultural element, only some facts are relevant enough to create problems of life, while others are irrelevant. For example, scientific knowledge about earthquakes and volcanoes, which is also human culture, will enable people to make value judgements about such natural facts, thus impacting the rules and regulations of public security and emergency laws. But the knowledge about earthquakes will not enable people to make any value judgement
Legrand, above n. (‘How to Compare Now’), at . Ibid. Pierre Legrand, ‘The Impossibility of Legal Transplants’ () Maastricht Journal of European and Comparative Law at .
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about the natural fact of homosexuality, which is thus unable to exert equal influences upon the corresponding constitution of problems of life and the law. Objectively, cultural elements are intrinsically linked to the kind of facts on which judgements can be based. Only when such judgements are possible, can a problem be constructed. Random combinations do not apply. That is, cultural elements have objective, but different, relevancies to the problems of life and the law. Which cultural elements can create which problems of life is not arbitrarily decided by the human will. People must endeavour to find out about objective relevancy so as to achieve a better understanding about whether a problem is there, what the problem is, and what cultural element plays a role in it. According to the functionalist doctrine, law exists as the solution to the problems of life, and it is reasonable to assume that problems impact upon its solution. Now we know that a problem of life is determined by its objectively relevant cultural element; the problem of life is accordingly the medium that bridges culture and the law. If a cultural element plays a role in the emergence of a perceived problem, it will have the chance to influence law through that problem. Otherwise, any cultural element will simply have no chance at all of exerting any impact upon law. Thus, the actual problem of life here is just the intermediate influence-exerting mechanism from culture to law, and a cultural element must first make itself a part of the problem to exert influence upon law. This leads to an answer to the question about food’s influences upon law. Food as culture does not refer to vegetables, meat, spices, or any other ingredients, as these materials are natural rather than cultural. Food as culture refers essentially to ideas about how to process these materials: what ingredients to use, what the cooking procedures or techniques are appropriate, etc. The physical food cooked, with its particular flavour, shape, colour, etc., is the reification of these ideas. So, the recipe and the chef’s own ideas better explain food as culture than the physical dishes on the table. Food involves ideas, a special group of ideas about how to cook. If these ideas combine with certain facts by making value judgements on them to construct problems that demand law as a solution, food as culture will exert an influence upon law. But this seems unlikely. Foods as ideas are more likely to combine with the facts of ingredients and kitchen devices by making the value judgements on how to use them. But these combinations bring about tasty delicacies, not problems that demand legal solutions. If this observation is true, food as culture exerts hardly any influence upon law. The difference in the relevancy of cultural elements is important and is rooted in the unique nature of each specific element. ‘There is much of the utmost relevance to a deep understanding of a legal order, of an experience of law, that is simply not to be found in legislative texts and in judicial decisions’. But those deep, non-legal cultural factors are huge in number, gigantically different in nature, and accordingly different in their legal relevance. The specific and accurate identification of their relevancy is possible only under a microscopic view that focuses on a concrete element rather than an epitomising idol of culture in general: which element is relevant and which is not, to which part of the law it applies if it is relevant, etc. This explains why it is a fallacy to interpret Jacques-Louis David’s painting as being equally relevant to any provision of the French Civil Code. If the specific ideas contained therein do not match any facts to create problems demanding legal solutions, they are irrelevant to the law. The
The theory of memetics gives an excellent explanation for this, with the concept of phenotype and genotype memes. See Richard Dawkins, The Selfish Gene (Oxford: Oxford University Press, ). More on memetics in Section F, below. Legrand, above n. (‘How to Compare Now’), at .
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fallacy lies in an ignorance of the cultural elements’ substantial differences in their relevance, which is further rooted in a monolithic view of culture. This monolithic view creates the idollike beings of epitomisation, mentalité, or Frenchness, obliterating the uniqueness of each specific element, distorting their differences in relevance, and mistaking the irrelevant for relevant, and the relevant for irrelevant. An element-oriented view provides a way out of this dilemma. The influence-exerting medium of the problem of life can work as an access control system, checking each specific element of culture into law by its relevancy and answering four basic questions concerning the passage of culture into law: . Which cultural elements can influence law? Only the objectively relevant ones. . How do the elements exert their influence? Through the actual problem of life. . What (what laws) is influenced? Only those laws that provide a corresponding solution to the problem. . What are the influences? The specific contents of law corresponding to the relevant cultural elements. These insights detail the integration of cultural elements into the functional approach to comparative law. Some functionalists simply reject cultural research, arguing that ‘function can be detected without resort to the contextual “why”’, just as a car buyer cares only about cars per se, with no need to know about their manufacturers’ history, or the assembly lines that produced them, etc. Some accept cultural research but, for more abstract reasons. Graziadei, for example, says that it makes sense to ask how much legal research can ignore the link between facts and legal consequences (i.e., how much go into brackets without losing too much ‘culture’) and that it is fair to criticise functionalism’s stripping the law of all that is interesting for its favour of causal explanation over interpretive understanding. But he finds as a metaphor that, while it is possible to explain a road accident without knowing the reason why the driver had to go too fast, investigating the thoughts and motivations of human agents will provide us with a more complete picture of the incident, and asking whether a road accident was caused by a reckless passion for racing or by the driver’s desire to get back home will yield meaningful answers for some purposes. Actually, cultural elements are not the external or remote background factors of function but an integrated part of function per se. The concept of function refers to law as the solution to the actual problems of life, while cultural elements determine whether and what those problems of life are constructed. Without first carefully considering cultural elements, functionalists will lose the relevant starting point, or they may become lost in the vast range of irrelevant elements. Cultural research for functional comparative law is essential and necessary; it is not analogous to the investigation of the thoughts and motivations of human agents, but to the mens rea of the actors because cultural elements are inherent in their actions and they are what we use to judge those actions. Comparatists are not analogous to car buyers; rather, they are like car dealers who should have knowledge of assembly lines or even of a manufacturer’s history in order to provide a better service to their clients; that is, laypeople and general lawyers. Functionalism needs
Qian, above n. , at . Antonios Emmanuel Platsas, ‘The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks’, () Electronic Journal of Comparative Law, see https://web.archive.org/web/ /https://www.ejcl.org//art-.pdf (accessed February ). Graziadei, above n. , pp. and .
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cultural research, not for ‘a fuller picture of the world’ nor for abstruse philosophical reflections, but for the direct and practical reasons of comparative law. D. OUTSIDER’S VIEW
Corresponding to the culture versus element distinction is the insider’s versus outsider’s view about the understanding of culture. The insider’s view is understood by many to be the only proper approach, while an external point of view is considered inappropriate. Berman points out that ‘The comparatist must relinquish the comfortable position of the outside observer . . . there is no wholly neutral position in which the comparatist can stand’. William Ewald said one cannot ‘view the legal system from outside, adopting the perspective of an external observer’, but must do it ‘from the inside’. Mark van Hoecke and Mark Warrington argue that ‘an external position towards one’s own legal system is problematic’. In a nutshell, ‘the comparatist as an “outsider” should have precisely the aim of understanding the insider’s view’. For scholars, the term ‘insider’s view’ can have different meanings, so literal clarification is necessary. What does ‘inside’ mean in contrast to ‘outside’? By definition, an enclosed space is required for one to be ‘inside’, while the place beyond the enclosed space is the outside. Thus, the notion of ‘insider’ is in line with the general, holistic and monolithic concept of culture, where culture as an entity is demarcated and enclosed by a borderline, making an inside/outside distinction. But if we adopt the element-oriented approach, the camouflage of general culture is ripped off, leaving only the naked elements exposed directly and externally to each other and to the observer. The observer then finds no enclosed space to be ‘inside’. Analogically, you can be inside a cloud, when considered a holistic entity, but not inside any of the particles that the concept of ‘cloud’ actually refers to. So, the insider’s view is a rhetorical variant of the monolithic view of culture, which does not hold on the microscopic level. But the term is granted some non-literal meanings. John Bell suggests that the insider’s view on legal systems is to become the voice of that system and understand it on their own terms. To William Ewald, the insider’s view means that ‘what we should be seeking to understand is not law in books nor law in action but law in minds’. In other words, we should seek the understandings, attitudes, or ideas of the participants. But this does not constitute an insider’s view. Because they are cultural elements, the texts contained within books are the same as rules in social life and ideas in people’s minds. Even if we could squeeze into the skull of a participant to observe his ideas about his own culture, the ideas contained in his mind would be just the same as the ideas contained in the printed letters of texts, or the information contained in social actions. They are all out there, external but accessible to cognisers, who can acquire information about them. Even if one tries to reflect on one’s own idea, the reflecting power and the reflected object are also external to each other. Logically, the cogniser (or cognising power) and
Nathaniel Berman, ‘Aftershocks: Exoticization, Normalization, and the Hermeneutic Compulsion’ () Utah Law Review at . William Ewald, ‘The Jurisprudential Approach to Comparative Law: A Field Guide to “Rats”’ () American Journal of Comparative Law at –. Mark van Hoecke and Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ () The International and Comparative Law Quarterly at , . Siems, above n. , p. . John Bell, Judiciaries within Europe: A Comparative Review (Cambridge: Cambridge University Press, ), p. . Ewald, above n. , at . For more, see Siems, above n. , p. . Ewald, above n. , at .
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the cognised object are two different things and the distinction between them makes them logically external to each other. This externality is a logical necessity. So, when cultural elements are the observed objects, wherever they are empirically situated or whatever the empirical form, they are necessarily external to the observer. Ewald’s law in minds therefore does not support the insider’s view of culture but just refers to some cultural elements that also require an outsider’s view. Another aspect of the insider’s view refers to the special epistemic stratum of a particular culture, which is also known as the framework theory. This theory holds that each mind is a framework that is dominated ‘by a grid of concepts, research techniques, professional ethics, and politics, by which the prevailing culture imposes on the individual scholar its canons of how legal scholarship is to be conducted’. Once a person is born into a culture, he will inherently bear the cognitive framework of that culture, not another culture. Just as one can never be another, his cognitive framework will be inherently different from someone in another culture, and the understanding of others will be inevitably inadequate. This determines the irreducible differences between the epistemic strata of an insider and an outsider. An outsider can never truly understand a foreign culture; only the French know ‘Frenchness’. Given the determinant effect of the epistemic stratum upon law, different laws or legal cultures are also irreducibly different at the epistemological level. So a French lawyer will not desire to think like an English Lawyer; a Spanish lawyer is wrong in assuming he understands the common law way of thinking; and they cannot grasp the common law, other than in a superficial and, therefore, meaningless way, just as it is impossible for us today truly to perceive the significance of the play The Merchant of Venice, because we can never begin to recapture the era-specific sense in which Shakespeare used the word ‘Jew’. But this usage of the insider’s view as a special epistemic stratum leads to even worse selfcontradiction. Shown by the above citations, the epistemic framework epitomising a culture enables the insider to perceive law and the world, just as the eye enables one to see the world. Thus, the insider’s view is, rather than the only way to truly know his own culture, a view that is totally blind to that culture. When an insider perceives the world with his culture-specific epistemic framework, he is using it as a cognitive device not a cognitive object; so he cannot and does not perceive the stratum itself! His epistemic stratum, the epitomisation of his own culture, is of course a part of the world. But he is only perceiving the rest of the world, not his own epistemic stratum. This insider, a pure and thorough insider, is therefore totally blind to his own culture and is unaware of the speciality or even the existence of this framework that he is intrinsically and unconsciously using. While he himself cannot perceive it, an outsider can, because the stratum is an external object to the outsider. To draw an analogy: our eyes can see anything in the world but not our own eyes. And if we use a mirror in order to see our own eyes, this would then be an external view! Now we have an interesting paradox. The biggest blind spot of an insider’s sight is his own culture, which confers him his sight, his capacity to see. And the reason for the blindness is that
Peters and Schwenke, above n. , at . Gunter Frankenberg, ‘Stranger than Paradise: Identity & Politics in Comparative Law’ () Utah Law Review at . Legrand, above n. , at . Ibid., at . Legrand, above n. (‘How to Compare Now’), at . Legrand, above n. , at , –. Legrand, above n. (‘How to Compare Now’), at , , .
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he is ‘inside’ it. So, in opposition to Legrand’s opinion, French people who immerse themselves completely in ‘Frenchness’, can never know that Frenchness; only foreigners can. If some French people do know something about Frenchness, they must be able to take the foreigner’s view in order to look externally back upon their own Frenchness. The internal view means blindness, ignorance, and lack of knowledge, while the external view is the only chance for a person to have knowledge of a culture. As said by a Flemish monk who lived in Paris in the early part of the twelfth century: ‘He who finds his homeland sweet is still voluptuous; he to whom every soil is as his native one is already strong; but he is perfect to whom the entire world is as a foreign land.’ George Fletcher is an American author trying to depict the law in the mind of East Asian people, which is foreign to him. He concludes that East Asian people understand law as a path or way: ‘This idea is captured in the Japanese term for law, Ho, based on a radical connoting water (法). The original connection between ‘water’ and ‘law’ remains obscure. An appealing, though admittedly speculative, interpretation finds in the symbol of water the connotation of a waterway, a flowing stream, a way for the community to travel together in natural harmony’. Given the insider’s view as epistemic strata, Fletcher shouldn’t have bothered to make an attempt to describe this because, with an irreducibly different frame of mind, he could never truly know the East Asian mind at all, even if he had consulted local experts. Indeed, as an insider in Eastern Asian culture, I detect significant mistakes by Fletcher. First, the character 法 is originally Chinese not Japanese, which is called Kanji (漢字) or, literally, Chinese character by Japanese people. Many Chinese characters are incorporated into Japanese language, and 法 is one of them. So, to pursue the original connotation of this character, we should look into the ancient Chinese language, just like we can trace some English vocabularies to ancient Latin. Second, 法 is a simplified character used in both Japanese and Chinese today, and the simplification is made for easier writing but has nothing to do with the connotation. So, the proper conception of law should be identified from the character’s original form, not the simplified version. The perfect resource for this is Shuo Wen Jie Zi (说文解字), an authoritative dictionary on the original connotations of Chinese characters published two thousand years ago, at around AD. According to the dictionary, 法 is pronounced as Fa, which is the same as the current Chinese pronunciation but different from the Japanese Ho. And the original form of the character is 灋, which is much more complicated than the current writing of 法 today. The simplified form is a two-part structure, with the left part of 氵(water), and the right part of 去 (go or away). The original form has three parts, with the left part of 氵(water), the right lower part of 去 (go or away), the right upper part of 廌 (a one-horned divine creature who knows good from bad). Shuo Wen Jie Ze has the entry: ‘灋 (which means penalty). ‘As even as water’ is what water (氵) connotes; the divine beast 廌 hits the unjust ones with its horn; so ‘to drive them away’ is what go or away (去) connotes’. So law, as connoted by the character 灋, refers to penalty,
Legrand, above n. (‘How to Compare Now’), at . George Fletcher, Basic Concepts of Legal Thought (Oxford: Oxford University Press, ), p. . Susumu Ono, The Origin of the Japanese Language (Kokusai Bunka Shinkokai, ), p. ; Haruhiko Kindaichi, The Japanese Language, Umeyo Hirano trans. and annot. by Umeyo Hirano (Rutland and Tokyo: Charles E. Tuttle Co., ), pp. –. Li Jiashu and Wu Changhe, The Evolution and Developing Tendency of Chinese Characters (李家树、吴长和《汉字 的演变和发展趋向》), (Hong Kong: Hong Kong University Press, ), p. . ‘方乏切(Pronounced with the consonant in FANG and the vowel in FA)’, Xu Shen, Shuo Wen Jie Zi (许慎， 《说文解 字》). Ibid. ‘刑也.平之如水,从水; 廌, 所以觸不直者; 去之,从去’ Ibid.
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fairness, or justice, and a process of trial, not way or path. Other Chinese classics elaborating the conception of law (灋) have similar interpretations and none refers to way or path. Though the connotation of 灋, printed on the first pages of first-year Jurisprudence textbooks in Chinese law schools, is basic for a Chinese law student, while Professor Fletcher has got it wrong due to the difficulties of being a foreigner, I still find no support for the insider’s view that Fletcher has to be a Chinese to get it right. The problem Fletcher has is the lack of language knowledge, and obtaining such knowledge does not necessarily demand the insider’s epistemic stratum of a Chinese person. An American mind, or a French or any human mind, has the capacity to achieve the proper understanding of the character. With the proper resources found and the correct information conveyed, the cognitive process to the correct conclusion will be the same, whether an individual is Chinese or not. Actually, most Chinese do not know the original connotation of the character 法 either. As an insider, the only advantage a native Chinese person has is that he has a better chance of encountering the character, he is more likely to feel the need to enquire about its connotation, and has better chance of finding proper resources. However, none of these is a necessary part of the epistemic stratum, rather they provide the opportunity to bump into the target object of cognition. It is a fact, empirically and logically, that a foreign Chinese law expert can know more about Chinese law than ordinary Chinese natives. Proponents for the insider’s view still have a point to make, even if it is acceptable that it is not uncommon for outsiders and spectators to gain a sharper and deeper insight into the actual meaning of what happens to go on before or around them than would be possible for the actual actors or participants. As Legrand argues: I am not truly concerned whether the insight is sharper or not. I am prepared to assume that, sometimes, it can be. But my point is that no matter how acute the insight he brings to bear on Italian law, the English lawyer will necessarily think differently from the Italian-lawyer-understanding-Italian-law, that he will of necessity not think as an Italian lawyer. The English lawyer will, therefore, never understand Italian law on its own terms, that is, in the way Italians do given the way it appears to them; he will never transcend his acculturation.
We can reapproach Legrand’s argument with help from Ewald’s trial of rats. William Ewald has made ‘the core arguments against externalism’, for which he used an interesting illustration of animal trials during the Middle Ages. According to Ewald, in order to ‘understand phenomena like, say, the trial of the rats of Autun, what one should be seeking is . . . an understanding of what the trials were about for the participants’(original emphasis). But a problem Ewald has is that the rats, though they never showed up, should certainly be the most important participants in the trial, and we must understand what it was all about for the rats, not the humans, if we hope
Some refer law to punishments, such as Yi Ching, Shang Shu. (利用刑人,以正法也。–《易·蒙》; 惟作五虐之刑曰 法。–《书·吕刑》); some refer law to prohibitions of violence and killing, such as Yan Tie Lun, and Guan Zi (法者,刑 罚也。所以禁强暴也。–《盐铁论·诏圣》; 杀戮禁诛谓之法。–《管子·心术》); some refer law to the post-event prohibitions distinguished from LI as the pre-event prohibitions, such as Li Ji. (礼者禁于将然之前,而法者禁于已 然之后。–《大戴礼记》). See, for example, Zhang Wenxian, Jurisprudence (张文显， 《法理学》), ed. (Beijing: Law Press, ), pp. –; Zhuo Zeyuan, Basics of Law (卓泽渊， 《法学导论》), ed. (Beijing: Law Press, ), pp. –. Legrand, above n. , at . Ibid. William Ewald, ‘Comparative Jurisprudence (I): What Was It like to Try a Rat?’ () University of Pennsylvania Law Review . Ewald, above n. , at .
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to make any sense of the trial at all. Indeed, what Chassenee, the rats’ lawyer, did in defending his clients was to tell the court what he thought about what the rats thought about the trial: how the rats had difficulty understanding what they were on trial for, how they prepared for the trial, and how they felt the danger and refused to appear in court. But was Chassenee right about what the rats had in their mind? Or can a human being understand the rats’ understanding of the trial? According to the insider’s view argument, as Legrand has described between English and Italian lawyers, if a human hopes to know correctly the rats’ thoughts so as to understand the trial, he has no other choice but to be a rat himself. Otherwise the trial would be senseless and unreasonable. If I am allowed to suggest that it is a fact that a human can never be a rat, then the insider’s view thesis is what denies the soundness of the rat trial. However, the insider’s view is what Ewald uses to argue for the trial’s reasonableness; obviously, he has contradicted himself. The problems here are essentially centres around knowledge: What is knowledge? What is knowledge for? What is the relationship between the object of cognition and knowledge about it? If knowledge or understanding of the Other means only that you think just as the Other thinks, feel just as the Other feels, you know just as the Other knows, the insider’s view thesis will not just be an argument against the external view of culture. It is actually a complete denial of the possibility of knowledge, since it demands one to be the Other, which is impossible. People cannot have the knowledge that a rat is scared or hungry because a human is not a rat, and this may further entail that all biological knowledge about rats or any animals is virtually nonsense. Furthermore, we cannot have any knowledge about stones or stars because we are not stones nor stars and do not share their intrinsic properties or logic. This entails that all the scientific knowledge about the natural world is nothing but nonsense. All in all, no knowledge is possible. If we define knowledge as the captures by our own cognitive device of the Other, which achieve certain but not perfect quality, such a kind of knowledge is possible. We can then know something about rats or stones, though we are not rats or stones ourselves. An English lawyer can claim he knows something about Italian law while not sharing the same thinking as an Italian lawyer. Of course, knowledge has to be qualified to be different from random opinion, as Plato has argued, by its truthfulness. But the qualification of truth is justified by either empirical evidence or logical coherence, both of which are objective. The objectivity of empirical evidence is obvious, and substantial logic are also objective laws. We cannot deny that human reasoning and cognitive activity have to follow some objective principles, or substantial logic, to obtain true knowledge. Formal logic is the human cognition of these objective laws but with flaws, as Newton’s law never fully captures its objective scientific law in an absolute manner. However, the imperfectness of formal logic does not negate the objectivity of substantial logic, which is always ultimately what people appeal to when deciding if something is true or false. The objectivity of knowledge, truth, and logic is, accordingly, something that no opponent can deny. In order to deny it, they have to assume that such a thing exists. So culturalists cannot
Ewald, above n. , at –. For the knowledge about the external world, see Bruce Aune, Knowledge of the External World (London and New York: Routledge, ). For more philosophical discussions about how we know the external world and what perceptions can be seen as knowledge, see Don Locke, Perception: And Our Knowledge of the External World (London: George Allen and Unwin Ltd., ), pp. – Plato, Theaetetus (c. BCE), see https://standardebooks.org/ebooks/plato/dialogues/benjamin-jowett/text/theaete tus#theaetetus-text (accessed February ). For the concept of objectivity, see Section E, below.
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deny the existence of objective knowledge of either the natural or the cultural world. If they do, all of their arguments are sheer nonsense according to their own logic. They should desist right away. While objective knowledge must be present beyond all cultural diversities and conflicts, discrepancy could exist between cognitive results and cognitive targets. However, discrepancy of knowledge does not deny the existence of knowledge but, by definition, presupposes its existence as it is after knowledge is logically assumed. And discrepancy occurs not only in the knowledge of culture; it is universal for any human knowledge, including natural sciences. Mathematics is best known for its accuracy and certainty but ‘(i)ts “truths” are as dependent on human beings as is the perception of colour or the English language’. If objects and relationships in the physical world are subject to imperfections, change, and decay, and hence do not represent the ultimate truth, mathematics is not an area of absolute and unchanging truths either. Of course, the smaller discrepancy, the better knowledge. But the question is what we need pffiffiffi knowledge for. For example, we cannot have an exact number for either π or 2. Or, the size of a real triangle calculated with the equation is never the exact size of that triangle because there is no absolute triangle in the real world and what we have is always an approximation of the mathematical ideal type. ‘Thus one cannot speak of arithmetic as a body of truths that necessarily apply to physical phenomena.’ But despite all these issues, mathematics still gives us valuable knowledge which has great practical significance. For many practical needs, we do not necessarily need pffiffiffi the absolutely exact number of either π or 2, or the size of a triangle. This imperfect knowledge remains important in our lives. And we do not follow Pythagoras to drown a garrulous student pffiffiffi though today we are still unable to write out 2 as a precise rational number. If the present knowledge is sufficient to serve our purpose, why bother with the discrepancies, say, between English and Italian lawyers? What Chassenee said about the rats may not be so true for the rats; the English lawyer’s opinions about Italian law may not be correct in the Italian lawyer’s opinion. But what Chassenee pursued is the human understanding, not the rats’ understanding, of the rats, which can provide objectively good knowledge by certain objective criteria and may well serve human needs rather than the rats’ needs. What the English lawyer has is an English understanding, not an Italian understanding, of Italian law, which can produce objectively good knowledge by certain objective criteria and could well serve English needs rather than Italian needs. What more could we ask for? The practical value of flawed knowledge in meeting subjective needs does not debase the importance of objective truth and substantial logic. On the contrary, it’s the objective truthfulness, not the discrepancy, that produces the subjective usefulness of knowledge in practice. Yet, to some, a question might remain: Is the knowledge of culture truly as objective as science? I will further clarify the concept of objectivity. E. OBJECTIVITY
The term objectivity also has multiple meanings. This Chapter discusses two of them. First, epistemic objectivity, that is, cognitions as the accurate representations of how things are. Such objectivity demands that the cognitive process and its result are free of the factors that produce
Morris Kline, Mathematics: The Loss of Certainty (New York: Oxford University Press, ), p. . Ibid., p. . Ibid., p. . For a broader discussion of the conception of objectivity in terms of law, see Matthew Kramer, Objectivity and the Rule of Law (Cambridge: Cambridge University Press, ), pp. –.
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inaccurate representations. Second, ontological objectivity, that is, things are what they are by themselves, they are independent of cognisers and what they take them to be. Subjectivity, correspondingly, has also two meanings. Epistemic subjectivity means that cognitions are not the accurate representations of external objects but are impacted by the way the cogniser perceives it. Ontological subjectivity means that things depend on a human individual’s mind, desire, experience, or perception for their existence; they do not exist by themselves. The discrepancy previously discussed concerns the epistemic sense of objectivity, which, however, is related to ontological objectivity. Investigation into epistemic objectivity requires research into ontological objectivity as a premise. I will leave epistemic objectivity for later discussion and look first at ontological objectivity. Cultural elements, like beliefs, ideas, art, literature, cognition, and others, are usually taken as ontologically subjective. This is because cultural elements are essentially mental entities that originate in the human mind: desire, emotion and other attributes of people. Without human involvement, no cultural element would exist. In this sense, the subjectivity of culture requires human involvement for its existence. In contrast, objects in the natural world exist by themselves, without any involvement of human factors. Whether or not people know or like them, they just exist. Hence, they are objective. Once the impacts wilfully made by people affect natural objects, they can change from natural to cultural. A white stone lying alone for billions of years in the great wilderness in Western China is natural. A Qiang ethnic person picks it up one day and puts it on the roof of his house. No change occurs to the stone but rather to its spatial location. Now it’s cultural, exhibiting Qiang’s worship of the White Stone God. The nature-to-culture transformation corroborates human involvement or interference as the essence of culture’s subjectivity. But to an outsider who is not involved or interfering, the cultural elements before him are same as the physical objects in being what they are by themselves, whether static or dynamic, totally independent and autonomous, and enjoying the same ontological objectivity. This could be called the objectivity of the subjectivity. An example is the idea your friend has. His idea is a mental entity existing in his mind, and it is usually considered to be subjective. The idea does not come from you nor does it change for you; you may or may not know or like it. It’s just there, existing as an objective fact to you. It is objective to you because it is totally free from your involvement. If you try to change his mind and fail, or if your friend changes his idea but you do not want him to, you can strongly feel the objectivity of subjectivity because of your failed attempt at involvement. Culture is slightly different in it involves the ideas of a group of people, not an idea of one individual; but culture enjoys the same objectivity to an outsider as your friend’s idea. This ontological objectivity of cultural elements is of great importance to epistemic objectivity. First, given ontological objectivity, cultural elements are externally observable just as physical objects. Beliefs, religions, foods, and all cultural elements are groups of information with tangible carriers, like books, social behaviours or institutions, physical objects, such as foods, etc. This information can be captured through the cognitive process where sensory perceptions are also involved, like reading books, observing social actions, etc. This is the
Brian Leiter, ‘Introduction’ in Brian Leiter (eds), Objectivity in Law and Morals (Cambridge: Cambridge University Press, ), pp. –. Ibid. Xu Ming, ‘Analysis of Qiang Faith in White Stone God(徐铭， ’羌族白石神信仰解析’)’ () Journal of Southwester Institute for Ethnic Groups: Philosophy and Social Sciences at . William Ewald, above n. , at .
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same as scientists’ empirical cognitive process of observing the physical world to capture intangible information such as Newton’s law. Second, objectivity requires that the observer stays external to the cultural elements so that they are free from disturbing factors and present themselves as they are. Otherwise, if the observer becomes an insider in his target culture, as a part of what he attempts to perceive, his perceptive action also changes the object that he observes. The cognitive target will not be ‘what it is as it is’, that is, ontological objectivity is lost, and the accurate representation of ‘what it is as it is’, that is, epistemic objectivity, will accordingly be impossible. So, the objectivity of cultural elements and the rejection of the insider’s view are two sides of the same coin. The objectivity of cultural elements requires cultural study from an onlooker’s instead of a participant’s view, while the proper knowledge of culture must take as its premise its ontological objectivity. Cultural studies should have the same attitude that scientists have towards their object of study: watch externally and respect its objectivity. The mingling of the observer with the observed object ruins the opportunity of gaining knowledge and there is no such a thing as participant observer. The objectivity of cultural elements leads to the objectivity of the problem of life. Among its two constituents, the objectivity of the natural fact aspect is obvious, which, as the sociologists put it, is an empirical matter of observation by scientists, trained experts, and members of society with their instruments or technology. Now we know that the meaning-conferring part, or the cultural part, which is usually taken as subjective, is the equally objective and empirically observable fact out there. Thus, the problem of life, constituted by those aspects, is also an objective fact that is empirically observable. The empirical observability of the objective aspect ensures the objective knowledge of problems as well as their differences and similarities. Only when the two constituents are the same can the constructed problems be the same. If either or both parts are different, the problems are different. Homosexuality is a universal and purely natural biological fact(factα). But this natural fact alone does not make a problem until a meaning or cultural aspect is granted. In traditional Christian culture, a negative meaning(meaning-α) is granted to this natural fact, creating a problem of sin. The problem of sin then promotes, as a solution,
Such an external point of view is not only that of the scientists, but also adopted to secure the objectivity of science study and religious studies. As Philip L. Quinn argues: ‘A practitioner of a science can also study it, but one can study a science without also being a practitioner of it. And one can study a science without sharing the scientific beliefs of its practitioners. The study of a science is done from a point of view external to the science being studied. Adopting such an external point of view is one of the ways in which objectivity is secured in science studies . . . A practitioner of a religion can also study it, but one need not to be a practitioner in order to study it. And one can study a religion without sharing the religious beliefs of its practitioners. The study of a religion is done from a point of view external to the religion being studied. Adopting such an external point of view is one of the ways in which objectivity is secured in religious studies.’ Philip Quinn, ‘The Cultural Anthropology of Philosophy of Religion’ in William Wainwright (ed), God, Philosophy, and Academic Culture (New York: Oxford University Press, ), p. . For participant observation, see Kathleen DeWalt, Billie DeWalt and Coral Wayland, ‘Participant Observation’ in H. R. Bernard (eds), Handbook of Methods in Cultural Anthropology (Walnut Creek, CA: AltaMira Press, ), pp. –. John Kitsuse and Malcolm Spector, ‘Towards a Sociology of Social Problems: Social Conditions, Value-Judgments, and Social Problems’ () Social Problems at . For a more detailed discussion of the process of problem construction, please refer to the distinction made by John Searle between brute physical fact and mental fact in the construction of social reality. His theory basically applies, but with the objectivity of mental or social facts. See John Searle, The Construction of Social Reality (New York: Free Press, ), pp. –, , . Some may argue that homosexuality is a subjective wilful choice and therefore cultural. But the subjective choice needs to be based upon sex drive, so the ultimate natural (biological) fact remains.
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sanctions against homosexual people. In contemporary Western countries, however, the same natural fact of homosexuality does not create a problem because it is granted the same positive meaning as heterosexuality. So the fact of homosexuality alone does not guarantee a problem or the same problem. Either the traditional negative meaning or the sanctions promoted are also facts (fact-β), usually known as a social fact or construct. They are sub-facts derived from the ultimate fact of homosexuality, but they are equally objective. The new sub-fact is granted a new negative meaning (meaning-β) under the contemporary values of Western culture. Thus, a new problem is constructed, which demands as a solution protection for homosexual people, such as same-sex marriage. Behind same-sex marriage is the problem constructed with fact-β and meaning-β, not fact-α and meaning-α. While fact-α of homosexuality is universal, the other three are not shared by non-Western societies. So, it’s a misconception for Zweigert and Kötz to presuppose the same problem of same-sex marriage and show thereby the ineffectiveness of the functionality principle. The functionality principle remains sound and valid because there is no identical problem of life and certainly no comparability of law. Zweigert and Kötz are trying to compare the incomparable, which, in their own words, is the mistake of a beginner. The derived sub-facts are the human perceptions or value judgements of pre-existing social facts or the ultimate natural fact. Sub-facts are therefore cultural; but their cultural nature does not ruin their objectivity. This is where many comparatists commit mistakes. Ralf Michaels, for example, says that we should reduce our empirical aspirations in the search for objectively existing problems and functions ‘because these are constructs’, and that because ‘problems and functional relations are constructions’, ‘a juristic and normative approach – in other words, the internal method of law itself – may be more appropriate to this endeavour than an external observation of law’. However, the objectivity of subjectivity and its empirical observability tell us that that social constructions cannot only be internally or normatively interpreted; they can also be externally described and empirically observed. The functional approach is therefore not undermined by culture-related criticisms in its pursuit of objective and neutral knowledge, and the rationalised methodology of comparative law remains plausible with the naughty cultural factors curbed. The Conclusion sketches the possible pathway to this promising prospect. F. CONCLUSION
Culture is more than the object of study for comparative law; it is one of its key methodological foundations. Investigations into the microscopic view, relevancy, the outsider’s view, and the objectivity of culture lead to a rationalised reconceptualisation of culture. With all the current definitions as enumerative descriptions, some contend that a rational definition covering all
David Greenberg and Marcia Bystryn, ‘Christian Intolerance of Homosexuality’ () American Journal of Sociology . Zweigert and Kötz, above n. , p. . The authors use same-sex marriage as one of the counter-examples against the fact that that ‘different legal systems give the same or very similar solutions . . . to the same problems of life, despite the great differences . . .’, concluding that the rules in these areas are not congruent because ‘different legal systems answer these questions differently’. Logically, they are presupposing the same problem of same-sex marriage. Ibid., p. . Ralf Michaels, ‘Explanation and Interpretation in Functionalist Comparative Law – A Response to Julie de Coninck’ () Rabels Zeitschrift für ausländisches und internationales Privatrecht at . Alfred Kroeber and Clyde Kluckhohn, for example, cited definitions of culture in a work they co-authored. See Alfred Kroeber and Clyde Kluckhohn, Culture: A Critical Review of Concepts and Definitions (Cambridge, MA: Peabody Museum Press, ), Part II Definitions, pp. –.
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elements in a systematic order is impossible for culture. But this Chapter concludes to the contrary that the concept of culture could be logically defined as the following: a complex of widespread mental entities (memes or elements) in a particular society, genotype and phenotype, viewed from an outsider’s perspective. This new conceptual proposal is supported by the memetic theory of culture. According to this theory, culture is a system of basic mental units called memes, analogous to genes in biology, which replicate and disseminate themselves to form a gigantic cultural sphere just as genetic replication forms the biosphere. These cultural genes, or memes, also have genotypes and phenotypes, an example of which are the ideas of cooking skills in a chef’s mind and the physical dishes on a table. When the memes are widespread in a society, culture as a substantial existence is already there. But the outsider’s view is still needed to construct the usual concept of culture, with the connotations of both unity and relativity. An insider who indulges himself in the widely spread memes of his own society cannot have the usual concept of culture. For example, Chinese culture has a history of thousands of years but the concept of culture has been recently imported from the West. Because the Chinese viewed China as the whole world, they could not escape from the insider’s view, and were inclined to absolutise what they had and unable to develop the relative concept of culture as used today. This definition is well in line with the four basic points made in this Chapter. Following memetics, culture consists of microscopic elements in a similar way as there is an objective existence of biological genes. In other words, the generality of widely disseminated memes in a society consists of a superficial morphology together with non-memetic factors (national, racial, political etc). It is suggested here that we should penetrate this surface in order to get to the substance of culture. Accordingly, the outsider’s view, like that of scientists before physical objects, is the only way to acquire proper knowledge of culture. Cultural ideas or memes are objective entities that can be objectively known. Culture as the perceptions or knowledge about natural facts or social facts can be true or false. When cultural conflicts occur, the objectivity of truth provides the neutral criterion for non-biased comparisons, making cultural communication possible, and invalidating a culturalist attack upon the functionalist pursuit for the objective and neutral knowledge of culture and law. The critical approach of culturalism is destructive, but not constructive, because the insider’s view loses the objectivity of culture, resulting in possible epistemological and ontological wrongs. Cultural relativism is actually the absolutism of a particular group of cultural elements, a political game defying the objective truth. The isolation and incomprehensibility of Frenchness, the unbridgeable gap between English and Italian lawyers, the well-intentioned
Michel De Certeau, Culture in the Plural (Tom Conley tr., Minneapolis & London: University of Minnesota Press, ), p. . For the detailed discussion of the logical definition, see Qian Xiangyang, Marital Rape in China and the UK: Problems in the Current Approach to Culture and Law (PhD thesis, University of Edinburgh, ), p. . For more on the memetic theory of culture, see Dawkins, above n. ; Daniel Dennett, Consciousness Explained, (Penguin Books, ). For the application of memetics in law, see Jack Balkin, Culture Software: A Theory of Ideology (New Haven & London: Yale University Press, ); Qian, above n. . The coined term of ‘meme’ is a shortening of mimeme (from the Greek mimema). Dawkins, above n. , p. . Qian, above n. , p. . Feng Tianyu, Yang Hua, Ren Fang, The History of Chinese Culture (冯天瑜、杨华、任放， 《中国文化史》), (Beijing: Higher Education Press, ), p. . Qian, above n. . The objective criteria for cultural conflicts concern the fundamental problem of the is/ought relation. See Qian Xiangyang, ‘On Truth as the Source of Good: An Is/ought Reinterpretation’ () Filosofia Unisinos .
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critics against Western centrism, in founding their criticisms upon ‘west’ and cultural relativism, are some examples of denial of the possibility of knowledge and the objectivity of culture. The memetic nature of culture explains the different relevancies to law, as each memetic entity has its own special attribute to match fact to problem. This relevancy thesis redefines the concept of the problem as a two-part structure, with culture included. The problem of life is thus no longer a purely empirical concept but requires theoretical rigour to avoid mistaking different problems for the same, as the examples in this chapter have shown. The universality of pure natural facts is undeniable, and different societies could share these natural facts through common ideas or knowledge. Thus, the assumption of the same problems of functionalist comparative law may well be defended in theory and better applied in practice. The redefinition of the term ‘problem’ in turn redefines the concept of function. Function empirically refers to law as solutions to actual problems of life: thus, a logical relation from culture plus fact to problem and then to law may also be like the development of an abstract concept in mathematics. This further abstracted conceptualisation does not exclude, but logically covers the usual empirical meaning. In theory, it shows that the problem-law/ solution relation is necessary not contingent; in practice, cultural factors are absorbed and rationalised into function via the concept of the problem as an inherent part of this conceptual foundation for functionalism. Anything functional is something cultural first. This refutes the arguments that functionalism is ‘highly insensitive for the cultural elements of law’, and ‘has little to say’ whenever cultural problems appear, and that functionalism plainly assumes law’s functions, ignoring the different understandings caused by cultural, socio-economic and other factors. Thus the functionalism approach remains lively in comparative practice, but with greater theoretical rigour, and it is no longer a crude rule of thumb. If theory is a system of narratives with logical coherence and consistency, we have it. If methodology involves a combination of the practical method in comparative law with some theoretical rigour, we have it. The reconceptualisation of culture, inter alia, refining constructively both functionalism and culturalism, points to a new line of methodology and theory for comparative law as a better developed discipline.
Siems, above n. , p. . Qian, above n. , p. . The reconceptualisation of functionalism could be further theorised, but this is beyond the chapter. The empirical example of ‘carburettor controls the flow of petrol’ can be connotated by the mathematical equation: y = f(x): given y = carburettor, x = petrol, f = control the flow. Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Oxford: Hart Publishing, ), p. . Husa, above n. , at . Siems, above n. , p. . Husa, above n. , at .
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Linguistic Approaches Łucja Biel*
Language and translation are fundamental to comparative law not only as materials and tools in comparisons but also as determinants of methodological choices. Their importance has been largely downplayed in comparative law and it was not until recently that they were acknowledged more explicitly by interdisciplinary postmodern comparative methods. This chapter discusses linguistic approaches to comparative law which foreground the issues of language and translation in comparisons, relying on insights from legal linguistics and legal translation studies. The chapter first discusses methodological developments in comparative law and linguistics which have facilitated this shift. It presents cognitive and communicative aspects of legal semantics and their implications for the depth of comparisons. The chapter next centres on theoretical foundations of and approaches to legal translation in a variety of intersystemic, intrasystemic and hybrid contexts. The final section gives an overview of legal linguistic comparisons beyond the term level, focusing on genres and Eurolects. In conclusion, it is argued that linguistic approaches should be integrated more systematically, triangulated with other comparative law methods and supported by empirical research.
A. INTRODUCTION
The paths of comparative law and linguistics cross in many ways and more frequently than has been previously acknowledged by either side: as observed for example by Galdia, ‘jurists have been always dealing with language but did not take law’s linguistic foundations seriously’. Comparative law performs comparisons across legal systems to identify interrelations between them, to reform or harmonise law, for theoretical reasons. Linguistics – and in particular its specialised branch of legal translation studies, where comparative law and linguistics interact at * Associate Professor and Head of EUMultiLingua Research Team, University of Warsaw. Marcus Galdia, Lectures on Legal Linguistics (Berlin: Peter Lang, ), p. . See also Oliver Brand, ‘Language as a Barrier to Comparative Law’ in Frances Olsen, Alexander Lorz and Dieter Stein (eds), Translation Issues in Language and Law (London: Palgrave Macmillan, ), p. . A. Esin Örücü, ‘Methodology of Comparative Law’ in M. Jan Smits (ed.), Elgar Encyclopedia of Comapartive Law (Cheltenham: Edward Elgar, ), pp. –.
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their fullest – addresses practical aspects of overcoming the language barrier in legal communication. Although the objectives of the two disciplines are clearly different, they both – as pointed out by Engberg – ‘work across the barriers of languages and legal systems, they intend to create bridges enabling users to see relations between different legal and linguistic settings and understand the unfamiliar, and they rely upon each other in their activities’. While the emergence of legal translation studies was enhanced by comparative law, it has developed its own eclectic methods over time. Simultaneously, comparative law has become more aware of language and translation in its search for interdisciplinary methods. The objective of this chapter is to present one of the results of this search – linguistic approaches to comparative law, which involve deep-level linguistic analyses. The chapter first explores recent methodological developments in comparative law and linguistics (Section B) which have facilitated the emergence of linguistic approaches to comparative law (Section C). Section D presents the fundamentals of legal semantics, which shed light on the depth of comparisons. Section E centres on legal translation – a focal point of linguistic approaches – and presents its theoretical foundations. Finally, Section F presents legal linguistic comparisons beyond the term level, which focus mainly on genres and Eurolects. B. METHODOLOGICAL DEVELOPMENTS IN COMPARATIVE LAW, LINGUISTICS AND TRANSLATION STUDIES
. Methodological Developments in Comparative Law Comparative law has undergone important developments relatively recently which have extended its geographical scope and thematic versatility (‘substantive perspective’) and enriched its ‘methodological tool box’. In particular, the last two decades have observed comparative lawyers’ increasing methodological awareness and engagement in methodological discussions, addressing such constructs as, for example, ‘method/methodology’, ‘comparability’, ‘tertium comparationis’ or researcher’s ‘neutrality’. This has been accompanied by recognition of the limitations of the so-called traditional method and by the search for its refinement and/or alternatives. The traditional method has centred on functionalism, ‘the mantra and the bête noire’ of comparative law. This approach usually starts with a socio-economic problem and searches for functional equivalents (similarities) across legal systems, working under the assumption that legal rules and institutions play the same social function in various systems. The traditional method has been criticised for its excessive focus on similarities, black letter rules, functions and biased preconceptions, as well as for its thematic preoccupation with the private law of Western legal systems. In response, the traditional method is on the one hand
Jan Engberg, ‘Comparative Law for Legal Translation: Through Multiple Perspectives to Multidimensional Knowledge’ () International Journal for the Semiotics of Law , . Mathias Siems, ‘New Directions in Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ). See also Jaakko Husa, ‘Traditional Methods’, Chapter (in this volume). See, for example, Örücü, ‘Methodology of comparative law’, above n. ; Siems, above n. . Ralf Michaels, ‘The Functional Method of Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. . Siems, above n. , pp. –. Husa, above n. . Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), pp. –. Husa, above n. .
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Linguistic Approaches
undergoing refinement, while on the other it is supplemented and/or replaced by new – mainly empirical, quantitative and interdisciplinary – methods, which question the autonomy of comparative law as a discipline and attempt to more systematically integrate it with other social sciences. Such new methods have been grouped under the label of postmodern comparative law, subsuming () deep-level analysis of law, () deep-level comparisons, and () critical comparative law. The category of deep-level comparisons includes: () jurisprudential and structural approaches and () cultural and linguistic approaches. On the whole, as pointed out by Örücü, while the traditional method was interested in neutralising the context of individual legal systems in comparisons, postmodern comparative law does the opposite through its contextual approach – which embeds comparisons in the economic, political, cultural and linguistic contexts of the ‘local dimension’. Thus, new methods foreground the embeddedness of law in language, culture, politics, economy and its vital links to other disciplines. . Methodological Developments in Linguistics From the perspective of linguistics, these methodological developments of comparative law – in particular the rejection of full disciplinary autonomy and growing sensitivity to cultural and linguistic issues – do not come as a surprise. In fact, they mirror earlier developments in both linguistics itself and neighbouring fields. Linguistics, which can be broadly defined as the scientific study of human language, addresses various aspects of language as part of cognition, a system of communication and a form of social behaviour, ranging from pronunciation, form, meaning and function to usage. Since language is used in many areas of life, which are studied by various branches of the humanities and social sciences, linguistic methods are naturally also used in other disciplines, including sociology, psychology, political science, philosophy, as well as law. Linguistic approaches can generally be grouped into formal and functional methods. Formal approaches, which are represented, for example, by Chomsky’s generative grammar and logical semantics, are oriented towards studying the form (structure) of language. Functional approaches, represented by pragmatics, sociolinguistics, discourse analysis, psycholinguistics, neurolinguistics, cognitive linguistics, corpus linguistics, etc., study language
See, for example, Michaels, above n. . Siems, above n. , pp. –. See also Jaakko Husa, Interdisciplinary Comparative Law: Rubbing Shoulders with the Neighbours or Standing Alone in a Crowd (Cheltenham: Edward Elgar, ). Marcus Galdia, ‘The Comparative Element in Comparative Legal Linguistics’ () Comparative Legilinguistics , : ‘the biggest problem of comparative study of law is its weak anchorage in methods of social sciences as many comparatists continue to cherish the idea of an autonomous, and apparently inherent rather than explicit comparative method, which they are ready to enrich with conceptual puzzles from other social sciences that are borrowed rather inconsistently’. See for an overview Siems, above n. , pp. –. Siems, above n. , pp. –. Örücü, above n. , p. . Carol Genetti, ‘Introduction: Language, Languages and Linguistics’ in Carol Genetti (ed.), How Languages Work: An Introduction to Language and Linguistics (Cambridge: Cambridge University Press, ), p. . Genetti, above n. , p. . Frederick J. Newmeyer, ‘Formal and Functional Explanation’ in Ian Roberts (ed.), The Oxford Handbook of Universal Grammar (Oxford: Oxford University Press, ). Generative grammar views language as a system of rules capable of generating sentences of a language, whereas logical semantics studies meaning through logic using truth conditions, cf. Roman Kalisz, J˛ezykoznawstwo kognitywne w s´ wietle j˛ezykoznawstwa funkcjonalnego (Gdansk: ´ Wydawnictwo Uniwersytetu Gdanskiego, ´ ), pp. –.
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functions and use. The two approaches differ fundamentally, having divergent views not only on the research agenda of linguistics but also, more importantly, on the nature of language and meaning. Whereas the former views language as if it was a predictable, rule-based mathematical system, the latter views it rather as a biological organism and as part of human physiology and cognition. Functional linguistics has been the mainstream approach since around the s. What is understood as functionalism in linguistics differs from its understanding in comparative law: it is a study of language functions rather than form. By focusing on the actual use of language, functional linguistics has broadened the concept of language, bringing in what was traditionally left out as extralinguistic factors such as cognitive, communicative, social, cultural, pragmatic, discursive and emotional aspects of language. It is now commonly accepted that linguistics is not autonomous as a discipline and has to take these factors into account as integral parts of language use. Thanks to functional approaches, linguistics now has more to offer other disciplines. Collaboration with other disciplines and methodological developments – that is a shift towards more empirical, quantitative (or mixed) and interdisciplinary methods – contribute to the ongoing rebranding of linguistics as ‘language science’. . Linguistic Comparisons and the Interface of Law and Language There are quite a few branches of linguistics which engage in comparison. Contrastive linguistics usually involves a comparison of two languages to identify similarities and differences for applied purposes; comparative linguistics compares genetically similar languages from a historical perspective; language typology analyses variation between many languages in search, inter alia, for language universals; comparative dialectology makes intralinguistic comparisons within a language; and intercultural communication compares language use. Contact linguistics studies contacts between languages and their influence. The interdisciplinary field of translation studies is more practically oriented and researches translation – that is, how texts are rendered from one language into another. Thus, comparative research in linguistics is spread across a number of subfields, which differ with regard to the scope and purpose of comparisons. The link between law and language has been explored by more specialised branches of linguistics rather than by law itself, such as: LSP (languages for special purposes), legal linguistics, forensic linguistics and legal translation studies. Among these, most relevant for comparative law are comparative legal linguistics and legal translation studies. Legal linguistics, also known as law and language, legilinguistics and jurilinguistics, is a relatively new field which studies legal language mainly from a monolingual but also a comparative perspective. One of the most comprehensive attempts to synthesise research in this fragmented field is the monograph Lectures on Legal Linguistics by Marcus Galdia, one of
Kalisz, above n. , p. . Genetti, above n. , p. . For example, since language is part of cognition, the cognitive commitment requires linguistics to be integrated with disciplines which study the nature of the brain, such as neuroscience, psychology, anthropology, cf. George Lakoff, ‘The Invariance Hypothesis: Is Abstract Reason Based on Image-Schemas?’ () Cognitive Linguistics , –. See Ekkehard König, ‘Contrastive Linguistics and Language Comparison’ () Languages in Contrast . For a historical overview of the invisibility of language and translation to the discipline of law, see Elena Ioriatti, ‘Comparative Law and EU Legal Language: Towards a European Restatement?’ () Global Jurist . See for an overview of its origin and later developments: Heikki E. S. Mattila, Comparative Legal Linguistics. Language of Law, Latin and Modern Lingua Francas (Aldershot: Ashgate, nd ed., ), pp. –. Galdia, above n. , p. . For examples of monolingual (English) legal-linguistic research see David Mellinkoff, The Language of the Law (Boston: Little, Brown & Co., ) and Peter M. Tiersma, Legal Language (Chicago IL, London: University of Chicago Press, ).
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the prominent scholars in this area. Galdia, who proposes the linguistic turn in law, views law as ‘a discursive social practice’ and analyses ‘linguistic operations in law’, such as the creation of law through language, legal argumentation, interpretation and translation. He is interested, on the one hand, in ‘linguistically relevant parts of legal mechanisms’ and, on the other hand, in contributing a linguistic perspective to the theory of law. The comparative strand of legal linguistics was pioneered by Heikki Mattila in his acclaimed book Comparative Legal Linguistics. Language of Law, Latin and Modern Lingua Francas, who sought to establish the field of comparative legal linguistics, defined rather narrowly as the study of ‘the development, structure, and vocabulary of two or more legal languages’. Mattila’s focus is on the linguistic rather than functional aspects of comparative law: he studies major legal languages (German, French, English, Latin) diachronically and synchronically, and considers the terminological interrelations between them. Although both Galdia and Mattila would regard legal translation as part of legal linguistics, most scholars working on translation position themselves as part of the sister field known as legal translation studies (LTS). This is an interdiscipline, which derives its methods from linguistics, translation studies and law. The focal point of LTS is legal translation – that is a translation of legal texts as an area of market practice, research and training. Compared to comparative law, LTS is a relatively young field, which started to form in the s, triggered by the emancipation of translation studies from linguistics around the same time. It is now one of the most active fields in translation studies. Its phases of development, as proposed by Prieto Ramos, comprise: the initial stage (s–mid-s), the catalytic stage (mid-s–mids) and the current period of consolidation, expansion and focus on applied research. LTS owes its early developments to comparative law. The initial phase of LTS was shaped by research in bi-/multilingual countries, in particular Canadian jurilinguistique, and insights from comparative lawyers who had been engaged in explaining domestic or foreign legal concepts in other languages and relied on translation for comparative purposes. During the catalytic stage, the development of LTS was enhanced methodologically by influential theoretical monographs, most notably Susan Šarčevic´ ’s New Approach to Legal Translation, published in , and a few textbooks. The ongoing period of consolidation and expansion has observed an outburst of specialised research, growing in volume, visibility, scale and
Galdia, above n. , p. . Galdia, above n. , pp. –. Galdia, above n. , p. . Mattila, above n. . Mattila, above n. , p. . See Fernando Prieto Ramos, ‘Legal Translation Studies as Interdiscipline: Scope and Evolution’ () Meta, , , who observes that the relationship between legal linguistics and LTS corresponds to that of linguistics to translation studies. Prieto Ramos, above n. , pp. –. Prieto Ramos, above n. , p. . Represented among others by Gémar, cf. Jean-Claude Gémar, ‘De la traduction (juridique) à la jurilinguistique. Fonctions proactives du traductologue’ () Meta. For example, Gerard-René de Groot, ‘Language and Law’ in Netherlands Report to the fifteenth International Congress of Comparative Law (Antwerp, Groningen: Intersentia, ), pp. – and a discussion of legal translation techniques in Martin Weston, An English Reader’s Guide to the French Legal System (New York: Berg, ). Susan Šarčevi´c, New Approach to Legal Translation (The Hague: Kluwer Law International, ). For example, Enrique Alcaraz and Brian Hughes, Legal Translation Explained (Manchester: St. Jerome, ); Deborah Cao, Translating Law (Clevedon: Multilingual Matters, ). Prieto Ramos, above n. , p. .
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geographical scope, as well as diversifying both thematically and methodologically. Geographically, LTS research has also broadened its ‘substantive perspective’ and concerns not only multilingual countries and Western legal systems but also multilingual organisations (the European Union (EU), the United Nations (UN)) and other regions of the globe. Thematically, research has embraced the traditional core dimension of products (translations), as well as the context of production, participants, the translation process and reception. Methodologically, LTS has become more rigorous and evolved from qualitative only to empirical, quantitative and mixed methods, including the growing interest in comparative law. These developments lay the groundwork for the empirically-based theorisation and modelling of legal translation as an area where comparative law is applied in practice. C. THE COMMON GROUND: LINGUISTIC APPROACHES TO COMPARATIVE LAW
Legal texts, be it legislation, judgments or contracts, are formulated in specific languages – legal languages bound to their legal systems: law is ‘language (. . .) a profoundly linguistic institution’ and ‘one of the intimately language-related practices’. The link between law and language is especially visible in multilingual law expressed in more than one language, and in the case of the European Union – in language versions. With comparative law being a ‘translator for the international, the cross-border, the transnational’, any attempt to do legal comparison faces the problem of language and the need to translate. As stressed by Samuel, ‘if law primarily, even exclusively, manifests itself only through language, it is evident that language can form the primary object of comparison’. Language is not only the comparatist’s essential instrument which determines what s/he chooses and analyses as an object of comparison, it also influences how law and its terminology are formulated. The frequently used and negatively charged metaphor ‘the language barrier’ reflects the conceptualisation of language as an impediment to ‘objective’ comparative research – ‘the constant threat of fundamentally misconceiving foreign law and thus thwarting a meaningful comparison’. These challenges have been identified by Oliver Brand at numerous levels and take the form of: monolingualism
See Łucja Biel, ‘Research into Legal Translation: An Overview of the s Trends from the Perspective of Translation Studies’ in Agustín Parise and Olivier Moréteau (eds), Comparative Perspectives on Law and Language (The Hague: Eleven Publishing, ), pp. –. For an overview, see Łucja Biel, ‘Translating Legal Texts’ in Kirsten Malmkjær (ed.), The Cambridge Handbook of Translation (Cambridge: Cambridge University Press, ), pp. –. Biel, above n. , pp. –. See, for example, Ingrid Simonnæs, ‘Legal Translation and “Traditional” Comparative Law – Similarities and Differences’ () Linguistica Antverpiensia, New Series – Themes in Translation Studies ; Guadalupe Soriano-Barabino, Comparative Law for Legal Translators (Oxford: Peter Lang Verlag, ); Engberg, above n. . Biel, above n. , p. . John Gibbons, ‘Language and the Law’ () Annual Review of Applied Linguistics , . Husa, above n. , p. . Barbara Pozzo, ‘Comparative Law and Language’ in Mauro Bussani and Ugo Mattei (eds), The Cambridge Companion to Comparative Law (Cambridge: Cambridge University Press, ), p. ; Husa, above n. , p. . Vivian Grosswald Curran, ‘Comparative Law and Language’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), –, p. . Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Oxford: Hart Publishing, ), p. . Brand, above n. , p. . See, for example, Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ () Law and Method (DOI: ./REM/.) on how research choices are motivated by the comparatist’s knowledge of languages. See, for example, Brand, above n. . Brand, above n. , p. .
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(overreliance on English in comparisons and limited knowledge of non-mainstream languages), overreliance on textism (rather than ‘law in action’), problems of legal translation (untranslatables, legal transplants, implications of legal texts, subjectivity of meaning), as well as intralinguistic traps (inconsistent use of terms). These challenges necessitate critical methodological reflection. Initially, language was seen as an instrument rather than an object of research. Comparative lawyers’ growing interest in language has been observed since the s, most notably in Pierre Legrand’s hermeneutic approach which aimed to penetrate the ‘façades of language’, followed by interest in translation. Legrand recommended that comparatists should learn from linguistics, criticising them for their lack of interest in translation and failure to develop their own theory of translation for comparative purposes. Yet as Brand observed in , a focus on language ‘declines into being mere lip service’ due to the dominance of functionalism. Similarly, Glanert observes that despite some urges to discuss legal translation, there is still reluctance among comparatists and most of them ‘ignore, minimise or disqualify translation issues’ due to their lack of interdisciplinary knowledge, limited use for finding solutions to legal problems, and perceived ascendancy of law. This seems to have started to change in the s, with postmodern comparative law addressing the problems of language and translation more realistically than traditional comparative law. The above discussed methodological developments – the awareness of the limited disciplinary autonomy of comparative law and the search for new and/or refined methods, the shift of linguistics towards usage-based functional approaches, the emergence of disciplines exploring the interface of law and language and the growing importance of translated law in the globalised world – have laid fertile ground for linguistic approaches to comparative law. Discussions of linguistic approaches can now be found in theoretical and methodological monographs on comparative law (Curran; Pozzo; Samuel; Siems; Glanert; Husa), in studies of multilingual law (Glanert; McAuliffe), in translation (Fuglinszky and Somssich) and in legal linguistics (Galdia; Mattila), in addition to publications by legal translation scholars. What are linguistic approaches to comparative law? As already noted, they are classified as one of the interdisciplinary postmodern approaches engaged in deep-level comparisons through a
Brand, above n. . Ioriatti, above n. , p. . Brand, above n. , p. . See also Ioriatti, above n. , p. , who argues that the change started in the s. Pierre Legrand, ‘How to Compare Now’ () Legal Studies , . Brand, above n. , p. . Simone Glanert, ‘Translation Matters’ in Simone Glanert (ed.), Comparative Law – Engaging Translation (London: Routledge, ), pp. –. Siems, above n. , p. . Curran, above n. . Pozzo, above n. . Samuel, above n. , pp. –. Siems, above n. , pp. –. Simone Glanert, Alexandra Mercescu and Geoffrey Samuel, Rethinking Comparative Law (Cheltenham: Elgar, ). Husa, above n. , pp. –. Simone Glanert (ed.), Comparative Law – Engaging Translation (London: Routledge, ). Karen McAuliffe, ‘Translating Ambiguity’ () Journal of Comparative Law . Ádám Fuglinszky and Réka Somssich, ‘Language-Bound Terms – Term-Bound Languages: The Difficulties of Translating a National Civil Code into a Lingua Franca’ () International Journal for the Semiotics of Law . Galdia, above n. . Mattila, above n. . For an overview, see Biel, above n. .
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focus on linguistic and translation issues. They critically explore the link between comparative law and language, adopting the study of language ‘as a cognitive model for comparative law’ and acknowledging the status of translation as ‘one of the central linguistic operations in law’ and ‘the fundamental operation of the comparatist’. They explore how language and translation influence comparative research theoretically and methodologically and how linguistics and translation studies can contribute to comparative law. D. LEGAL SEMANTICS: UNDERLYING FUNDAMENTALS OF COMPARISONS
In classical terminology, a term is a designation (linguistic expression) which represents a concept – a unit of knowledge ‘created by a unique combination of characteristics’ (intension) and corresponding to a set of material or immaterial objects (extension). More recent approaches to terminology derived from functional linguistics view terms as units of knowledge, units of language and units of communication embedded in knowledge structures. Legal terms are both linguistic units and points of access to complex, open-ended legal knowledge structures activated by individuals for legal communication purposes. The cognitive linguistic approach, which has significantly contributed to contemporary semantics, rejects the idea of an objectivist meaning: meaning is not a static list of characteristics but is a dynamic process of conceptualisation which relies on an individual’s mental experience, knowledge (historical, cultural, legal as well as unfolding discourse), social, physical and linguistic contexts, and which is negotiated in social interactions. Thus, meaning is construed by individuals (an individual’s knowledge) and is social – developed through interactions (collective knowledge). Drawing on Haiman’s famous claim that meaning resembles encyclopaedias rather than dictionaries, the cognitive approach does not differentiate between linguistic and extralinguistic knowledge. In order to understand a concept, it is necessary to evoke relevant cognitive domains incorporated in and triggered by such a concept which form its semantic potential. For example, the term articles of association can evoke the domains of company, business, incorporation, document, directors and associated legal knowledge. This may be derived, for example, from the UK Companies Act , other statutes, case law and doctrine, as well as practical knowledge, depending on communicative needs and an individual’s capacities. Such capacities, and hence conceptualisations, will obviously differ among individuals – whether legal professionals or language users without a legal background. Yet meaning is also intersubjectively shared among the legal profession in a given legal system as a result of education, socialisation and practice. Legal professional norms impose expectations as
Curran, above n. , p. . Galdia, above n. , p. . Brand, above n. , p. . ISO : Terminology Work and Terminology Science – Vocabulary (Geneva: International Standardization Organization, ), p. . Cf. Juan C. Sager, A Practical Course in Terminology Processing (Amsterdam: John Benjamins, ); Łucja Biel, Lost in the Eurofog. The Textual Fit of Translated Law (Frankfurt am Main: Peter Lang, ). Łucja Biel, ‘Organization of Background Knowledge Structures in Legal Language and Related Translation Problems’ () Comparative Legilinguistics. International Journal for Legal Communication . Ronald W. Langacker, Cognitive Grammar. A Basic Introduction. (Oxford: Oxford University Press, ), pp. , . Langacker, above n. , p. . John Haiman, ‘Dictionaries and Encylopedias’ () Lingua . Langacker, above n. , p. . Langacker, above n. , p. .
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to the type, depth, and hierarchy of legal knowledge and when and how it should be activated by language users, including its normative aspects. Conceptualisations of some language users (e.g., judges, legal scholars) may be more authoritative. The meaning of a term incorporates not only the conceptual content but also linguistic knowledge about its network of relations to other general-language and legal-language units (paradigmatic and syntagmatic relations, associations), distributional properties (frequency, cotext, contextual and situational variables), as well as ‘a particular way of construing that content’, including the level of specificity (degree of detail), perspective, relative prominence of substructures (e.g., due to the normative element), background assumptions and expectations (such as presuppositions), and epistemic, emotional and axiological commitment. This portrayal of content is naturally shaped by the legal system and its organising principles, legal reasoning, approaches to interpretation, etc. As for linguistic knowledge, concepts have relationships with other concepts and form concept systems (also known as conceptual networks). These may be hierarchical (generic-specific, partitive) or non-hierarchical (associative, causal, chronological, procedural). A place of a concept in these networks also contributes to its meaning. Although law in general seems to favour objectivist approaches to meaning, comparative lawyers tend to be much more sensitive to the fact that meaning cannot be reduced to ‘fixed, discrete packages of information’ and requires background knowledge from a language user. For example, Husa argues that legal language has a surface layer and an epistemic layer. Hendry emphasises that ‘[l]egal meaning cannot be usefully detached from its context’. Pozzo highlights invisible links between law, culture, values and ideology, which have to be uncovered to understand the ‘deep’ meaning of legal concepts. The need to incorporate historical information in comparative analyses is also stressed to account for the ‘stratification’ of diachronic meanings and ‘path dependence’. The axiological aspect is pointed out by Brand, who argues that comparative studies of courts should take into account attitudes towards litigation. A more comprehensive view of knowledge structures can be found in Samuel’s multi-perspective ‘scheme of intelligibility: structural (system), functional, causal (dictionary), hermeneutic (cultural)’ understandings are required when comparing and translating terms between legal systems. Samuel also points out the need to address cultural and psychological aspects of meaning, as well as to account for the network of conceptual relations (through dialectal rather than functional comparisons of terms with other lexical units).
John R. Taylor, ‘Lexical Semantics’ in Barbara Dancygier (ed.), The Cambridge Handbook of Cognitive Linguistics (Cambridge: Cambridge University Press, ), p. . Taylor, above n. , p. . Langacker, above n. , p. . Peter Sandrini, ‘Comparative Analysis of Legal Terms: Equivalence Revisited’ in Christian Galinski and Klaus-Dirk Schmitz (eds), Tke’ (Frankfurt am Main: Indeks, ), pp. –; see also Šarčevi´c, above n. , pp. –. Taylor, above n. , p. . Husa, above n. , p. . Jennifer Hendry, ‘Comparative Law and the (Im)possibility of Legal Translation’ in Simone Glanert (ed.), Comparative Law: Engaging Translation (London: Routledge, ), p. . Pozzo, above n. , pp. , . Pozzo, above n. , p. . Husa, above n. , pp. –. On the contribution of historical roots to meaning, see also Sofie M. F. Geeroms, ‘Comparative Law and Legal Translation: Why the Terms Cassation, Revision and Appeal Should Not Be Translated’ () American Journal of Comparative Law . Brand, above n. , p. . Samuel, above n. , p. . Samuel, above n. , p. .
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Yet various layers of knowledge structures should be accounted for more systematically rather than selectively. Background knowledge is believed to be structured in the form of matrices, frames, larger scripts/scenarios and higher-level cognitive/cultural models. What is particularly recurrent in the legal literature is the structuring of legal knowledge in the form of if-then scripts, reflecting legal rules and the resulting perception of terms as the ‘crystallisations of legal rules’, or ‘reduced representation of legal rules’ which connect legal conditions with effects. For example, ‘if a court holds that the relationship between two persons was a “marriage”, there immediately attach to them all the legal consequences which many statutes, cases and authoritative books have prescribed as the legal consequences of marriage, such as the duty to adhere and to aliment, the inability of either to marry another’. Such schematic representations of legal rules activated by legal concepts form part of their meaning. A more holistic approach to the organisation of knowledge is offered by the linguistic construct of a frame. In the Frame-Based Terminology approach, frames are conceptual templates which relate elements and entities associated with situations and embed concepts in such situations. Frames determine the semantic, syntactic and pragmatic properties of terms as well as their relations with other terms and are retrieved from long-term memory. Frames were adopted as an analytical tool for legal conceptual comparisons by Jan Engberg, who argues that they help capture the dynamics of legal knowledge which goes beyond normative aspects and establish tertium comparationis by identifying broader similarities in the conceptual structure. Frames resemble how humans think in associative networks and consist of slots (dimensions which organise the meaning of a term) and fillers (chunks of knowledge). Understanding a term is ‘an inference process’ during which users ‘enrich underspecified linguistic input’ relying on background knowledge and communicative experience. As an analytical tool, frames are constructed on the basis of comparative law and linguistic research findings. Input for slots is derived from three perspectives: national culture, the socio-functional system (independent of national peculiarities) and interpersonal communication (linguistic aspects); fillers are generated through normative and/or cultural approaches to law. Since meaning is distributed among users, concepts are ‘non-monolithic’ and there may exist ‘competing versions’ of a concept with a similar slot structure but different acceptable fillers. From a comparative perspective, legal terms are system-bound and derive their meaning from asymmetrical legal systems, where they are defined, applied and interpreted, linked to other language units, embedded in local contexts and knowledge structures, and
Mattila, above n. , p. . Anne Lise Kjær, ‘On the Structure of Legal Knowledge: The Importance of Knowing Legal Rules for Understanding Legal Texts’ in Lita Lundquist and Robert J. Jarvella (eds), Language, Text, and Knowledge: Mental Models of Expert Communication (Berlin: Mouton de Gruyter, ), pp. –. David M. Walker, The Scottish Legal System. An Introduction to the Study of Scots Law (Edinburgh: W. Green/ Sweet & Maxwell, ), p. . Pamela Faber and Melania Cabezas-García, ‘Specialized Knowledge Representation: From Terms to Frames’ () Research in Language , . Faber and Cabezas-García, above n. , p. . Jan Engberg, ‘Frame Approach to Legal Terminology: What May Be Gained From Seeing Terminology as Manifestation of Legal Knowledge?’ in Łucja Biel and Hendrik J. Kockaert (eds), Handbook of Terminology: Volume . Legal Terminology (Amsterdam: John Benjamins, , forthcoming), –. Engberg, above n. . Engberg, above n. . Engberg, above n. . Cf. Šarčevi´c, above n. , p. , . Sieglinde E. Pommer, ‘No Creativity in Legal Translation?’ () Babel , .
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intersubjectively shared among experts. On the one hand, similarities can be expected, especially when knowledge structures rely on shared human, societal and cultural experience. On the other hand, differences exist at many levels. Languages differ in how they organise conceptual fields and one-to-one correspondence may be expected to be rare. The cross-systemic incongruity of terms concerns not only their conceptual content and boundaries of concepts but also what background knowledge they activate and how it is structured. What follows from this discussion is that a theoretical stand on legal semantics has implications for legal comparisons and should be systematically integrated into comparative law methods. Linguistics can provide frameworks for the representation of meaning whereas comparative law provides fine-grained details and can critically test such frameworks in comparative contexts. Additionally, legal semantics cast doubt as to comparatists’ neutrality as they will inevitably filter comparisons through their native (L) language and/or the language of their education and practice, which is bound to prevail over the second (L) language. This limitation of a ‘foreign interpreter’ has been noted by Brand: ‘native speakers interpret a text more deeply, filling it with more associations’. This is known as L cognitive disadvantage in bilingualism research – even in the case of bilingual speakers, one language tends to be stronger. This can lead to differences in the depth of L and L comparisons. E. LEGAL TRANSLATION
Since law is accessed through language, comparative law engages in translation to obtain access to foreign law. Translation is also a component of comparative lawyers’ research skills. Comparatists use translated texts as a research material or self-translate in their research process. They also use (self-)translation to publish research findings, for example when writing about non-English law in English, a modern lingua franca in academia. Translation is not neutral – it is always interpretative and, hence, it should not be trivialised as a purely technical ‘linguistic’ operation. It influences how the object of research is conceptualised and the research process itself. As observed by Hendry, translation is both ‘a lens and a frame’ in legal comparisons. . The Nature of Translation Some popular misconceptions of translation are that it is a bilingual typing, matching of equivalents or a process of decoding–transcoding. The current understanding of translation has evolved from decoding–transcoding to ‘a constrained production of texts led by creative
Biel, above n. , p. . Brand, above n. , p. . See also Peter de Cruz, Comparative Law in a Changing World (London: Routledge, ), p. . Cf. Bogusława Whyatt, Olga Witczak and Ewa Tomczak, ‘Information Behaviour in Bidirectional Translators: Focus on Online Resources’ () The Interpreter and Translator Trainer . Glanert, above n. . Hendry, above n. . C. J. W Baaij, , ‘Translation and the ‘Contamination’ of Comparative Legal Research’ in Simone Glanert (ed.), Comparative Law – Engaging Translation (London: Routledge, ), p. . See the concept of ‘research translatoriality’ when researchers use translation in any phrase of the research process: Esa Penttilä et al., ‘Multilingual Communication in a Researcher’s Work: Preliminary Results of a Questionnaire Survey’ () MikaEL . Hendry, above n. , p. .
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imitation’. This stresses a few important aspects of translation: it is about creating texts rather than solving local terminological problems; it is a form of (re-)writing and a new text often functions as a text in its own right; it is constrained by the source text (the original) and has a relationship with it. This relationship is known as equivalence, which is now commonly understood as a relationship of similarity rather than identity. Additionally, due to asymmetries between languages resulting from their conceptual and grammatical structuring, translation is, by its very nature, a decision-making process where a translator chooses from possible alternatives, being involved in a complex, simultaneous, bilingual processing of content, which requires considerable cognitive effort, and at the same time produces a constrained target text (translation). Translators make choices both at the macro-level of strategy and the microlevel of technique, also known as procedures. A strategy is a cognitive plan at a textual level. Main translation strategies are foreignisation (source-oriented translation) and domestication (target-oriented translation). The former respects the foreignness: it ‘seeks to evoke a sense of the foreign’ by ‘sending the reader abroad’, while the latter involves assimilations to the target culture to ensure comprehension. These orientations are achieved through micro-level techniques applied to identify grammatical, stylistic and conceptual equivalents and solve local problems. Translation is thus translator-mediated: it is filtered through the translator’s choices and produces a text with an ‘observer effect’. . Legal Translation Techniques: Comparative Analysis at Term Level Legal translation is a specialised area of professional activity, conducted for centuries despite claims about the untranslatability of law. It was the first type of translation singled out by the International Organization for Standardization to be regulated in a separate standard Legal translation – Requirements, which specifies requirements for the provision of legal translation services. The standard requires legal translators to have a translation competence, linguistic/textual competence, specialist legal field competence, competence in research, information acquisition and processing, legal culture competence and technical competence. In particular, the specialist legal field competence stresses not only the requirement of legal knowledge but also legal-linguistic skills: ‘the ability to understand specialist legal content produced in the source language and to reproduce it in the target language, using the appropriate up-to-date specialist legal language register, genre conventions, terminology and style’. The legal culture competence adds ‘the ability to understand the distinction and cultural and factual implications behind different legal systems and approaches’ to translation. Comparative skills are better foregrounded in academic competence models. For example, de
Ricardo Muñoz Martín and Christian Olalla-Soler, ‘Translating is Not (Only) Problem Solving’ () The Journal of Specialised Translation . See also Šarčevi´c, above n. , p. . Maria Tymoczko, ‘Trajectories of Research in Translation Studies’ () Meta , . Jiˇrí Levý, ‘Translation as a Decision Process’, in Lawrence Venuti (ed.), The Translation Studies Reader (London: Routledge, []), p. . Andrew Chesterman, ‘Problems with Strategies’ in Krisztina Károly and Ágota Fóris (eds), New Trends in Translation Studies. In Honour of K. Klaudy (Budapest: Akadémiai Kiadó, ), pp. –. Chesterman, above n. . Lawrence Venuti, ‘Strategies of Translation’ in Mona Baker (ed.), Routledge Encyclopedia of Translation Studies (London: Routledge, ), pp. –. Hendry, above n. , p. . ISO : Legal translation – Requirements (Geneva: International Organization for Standardization, ). ISO :, above n. , p. .
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Linguistic Approaches
Groot observed that legal translators ‘are obliged to practise comparative law’ to identify equivalents in the target legal system. Similarly, Šarčevi´c’s ideal legal translator is required to have a legal competence covering legal terminology, legal reasoning and problem-solving skills, understanding of how translations will be applied and interpreted, drafting skills and comparative skills. Undoubtedly, comparative analysis is an inherent component of the methodological framework in legal translation. It is first used in ‘macro-comparisons’ at a system and genre level during the initial macro-contextualisation preceding the translation task to identify legal systems, branch of law, genre, purpose of translation and recipients. It is subsequently used for ‘micro-comparisons’ at the level of terms, phraseology or genre markers to assist the decisionmaking process, in particular to understand source legal concepts and find their equivalents, especially when a number of options are triggered. Given that terms are a frequent source of litigation, most critical decision-making options are created by their equivalents. The translator first needs to understand a source term in context. The next step is to identify the corresponding target conceptual field, its organisation and possible equivalents, and assess their degree of equivalence and adequacy in context. If the translator is able to identify ‘the closest natural equivalent’ – a functional equivalent (also known as a dynamic or cultural equivalent) in the target legal system – that is a term which has the same function and ‘most accurately conveys the legal sense of the source term and leads to the desired results’ – its acceptability should be assessed. One of the tools is the conceptual analysis recommended by Šarčevi´c, which distinguishes vital indispensable characteristics of terms (essentialia) from additional characteristics (accidentalia). If the majority of essential characteristics are shared or sufficiently similar and/or the context clarifies additional characteristics, the equivalent can be accepted. Functional equivalents are regarded as desirable and even ideal due to their communicative potential: they are ‘immediately familiar to practicing lawyers and readily comprehensible to the average cultivated reader’. They capitalise on recipients’ target knowledge structures which are mapped to understand source legal concepts. There is, however, a risk that too much target knowledge will be mapped, leaving recipients with ‘an exaggerated and misleading impression of similarity to their own legal systems’. Another challenge appears when recipients are unknown or when they are a broad international audience, especially when translating into pluricentric languages used in more
Gérard-René de Groot, ‘Legal Translation’ in Jan M. Smits (ed.), Elgar Encyclopedia of Comparative Law (Cheltenham: Edward Elgar Publishing, ), p. . Šarčevi´c, above n. , pp. –. Cf. Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Oxford: Oxford University Press, rd ed., ), p. . Fernando Prieto Ramos, ‘Developing Legal Translation Competence: An Integrative Process-Oriented Approach’ () Comparative Legilinguistics – International Journal for Legal Communication , . Zweigert and Kötz, above n. , p. . See also Soriano-Barabino, above n. , p. . Cf. Soriano-Barabino, above n. , p. . Šarčevi´c, above n. , p. . Šarčevi´c, above n. , p. . Šarčevi´c, above n. , p. . Fuglinszky and Somssich, above n. , p. . Cf. Weston, above n. , p. ; Alcaraz and Hughes, above n. , pp. –; Anna Jopek-Bosiacka, Przekład prawny i sa˛dowy (Warsaw: PWN, ), p. . Alcaraz and Hughes, above n. , p. . Biel, above n. , p. . Curran, above n. , p. .
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Łucja Biel
than one national system, such as English, Spanish, or French, which makes it impossible to assess the adequacy of functional equivalents. The major challenge, however, is that full equivalence is rare, ‘elusive’ and ‘no doubt occasionally illusory’, and legal translators more frequently deal with near, partial and zero equivalence. When differences outweigh similarities, translators should creatively compensate for the lack of comparability. The most typical compensating techniques include a descriptive equivalent, literal equivalent or borrowing, which communicate increasing degrees of ‘the foreign’. Non-functional equivalents are neologisms from the perspective of the target legal system and foreground differences, by contrast to functional equivalents which foreground similarities. The most reader-friendly compensating technique, which accounts for recipients’ knowledge gaps and is ‘driven by precision’, is a descriptive equivalent, also known as a gloss, paraphrase, explicitation or descriptive paraphrase. This technique often relies on the closest target equivalent, using it as a head to assign a specific category and adjusting the modifier(s) to supplement key missing details which are implicit in the source text. This can be illustrated with the English equivalent of Polish spółka jawna (lit. disclosed partnership) – a registered partnership, which uses the closest natural equivalent ‘partnership’ and explicates that, unlike English partnerships, it requires registration. The descriptive equivalent is sometimes accompanied by the source term in brackets as a signal of approximation referring the recipient to the relevant source term. Another technique, literal equivalent (other names: formal equivalent, calque, loan translation), involves a word-for-word translation of the source term. Its acceptability depends on whether it is misleading, as it evokes a false friend (a different target language concept), or is sufficiently semantically transparent to be meaningful. Such equivalents are often apparent to translators due to interference; they require knowledge and cognitive effort to be overcome, with calques regarded as a ‘default mechanism’ in translation. The most foreignising technique is a borrowing in the form of transcription or naturalisation (adaptation of spelling), in other words – a non-translation. This technique fully acknowledges the foreignness and is mainly applied to highly incongruent or non-equivalent terms which
Katia Peruzzo, ‘Legal Terms That Travel: Constraints to Presenting National Legal Terminology to International Audiences’ in Łucja Biel and Hendrik J. Kockaert (eds), Handbook of Terminology: Volume . Legal Terminology (Amsterdam: John Benjamins, , forthcoming), –. As argued by Fuglinszky and Somssich (above n. , pp. , ), it is less problematic when translating into internationalised languages, such as English, which has developed artificial terminology for civil law concepts recognisable to an international audience. Alcaraz and Hughes, above n. , p. . Fuglinszky and Somssich, above n. , p. . Pommer, above n. , p. . Terms adapted after Weston, above n. , pp. –; Malcolm Harvey, ‘A Beginner’s Course in Legal Translation: The Case of Culture-Bound Terms’ in Association suisse des traducteurs, terminologues et interprètes, Université de Genève: La traduction juridique: Histoire, théorie(s) et pratique / Legal Translation: History, Theory/ies, Practice (Proceedings, Geneva, – February ) (Bern/Geneva: ASTTI/ETI, ), pp. –; Biel, above n. ; Šarčevi´c, above n. . de Groot, above n. , p. . Fuglinszky and Somssich, above n. , p. . Šarčevi´c, above n. , p. . Fuglinszky and Somssich, above n. , p. . Šarčevi´c makes a distinction between the ‘lexical expansion’ of functional equivalents and ‘descriptive paraphrases’ which explicate the meaning of the source concept, see above n. , pp. –. Weston, above n. , p. . Ian Mason, ‘Text Parameters in Translation: Transitivity and Institutional Cultures’ in Lawrence Venuti (ed.), The Translation Studies Reader (New York/London: Routledge, []), p. .
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cannot be approximated succinctly. Alcaraz and Hughes argue that terms such as common law and estoppel may be left untranslated because they are ‘very well known even to moderately cultivated jurists, or because they are extremely complex technically, so that it is easier to understand them conceptually than to translate them’. This solution is impracticable for languages of lesser diffusion: leading ‘to utter despair if the comparatist is confronted with sources which are based upon another alphabet or on pictograms’. It is regarded by some as admitting ‘defeat’, as it gives no prompts to recipients. Although the strategies of domestication and foreignisation are often perceived as a dichotomy, translators inevitably mix various techniques in a single text, especially at the term level, depending on a complex array of interrelated factors such as the purpose of translation, recipient, and text genre, but also type of translation, relationship between source and target conceptual fields, legal origin of concepts and situational factors of reception – for example application of provision or interpretation by courts. More domestication can be expected at the grammatical level, whereas source-orientation is common at the macrotextual level, such as the macrostructure and text composition, rhetorical strategies, etc. Translators’ decisions are also influenced by their competence and experience, source and target legal knowledge, time pressure and risk management strategies. Choices may also be constrained by professional norms: some terms may have so-called recognised (or established) equivalents, developed through translation practice and sanctioned by usage or authoritative sources. They are therefore recognisable and recipients expect their use, creating a ‘linguistic precedent’. In contrast to the fragmented nature of intersystemic freelance translation practice, linguistic precedents are much more frequent in institutional translation such as the translation of EU multilingual law and case law, where institutions – at least to some extent – control and standardise translators’ choices through guidelines and term bases to create a coherent system of law with a consistent use of terminology continued from higher-ranking and preceding legal acts. All these factors contribute to a hybrid nature of translation, which is often referred to as a third language, third code, or in the case of legal translation tertium quid, and an ‘assemblage in motion’. The foregoing discussion demonstrates that legal translation is imperfect and inflicts losses: it is a ‘compromise’ which ‘will always fall short of the ideal’. On the other hand, it is also an
Alcaraz and Hughes, above n. , p. . See also Geeroms, above n. . Brand, above n. , p. . Weston, above n. , p. . Biel, above n. , pp. –. Fuglinszky and Somssich, n. . This paper comments on the English translation of the Hungarian Civil Code and is an excellent example of how various techniques are mixed in one text for various reasons. Šarčevi´c, above n. , p. . Łucja Biel, ‘Genre Analysis and Translation’ in Kirsten Malmkjær (ed.), The Routledge Handbook of Translation Studies and Linguistics (London and New York: Routledge, ), p. . Anthony Pym, ‘Translating as Risk Management’ () Journal of Pragmatics . Martin Weston, ‘Characteristics and Constraints of Producing Bilingual Judgments: The Example of the European Court of Human Rights’ in Jean-Claude Gémar and Nicholas Nicholas Kasirer (eds), Jurilinguistics: between Law and Language (Brussels: Bruylant, ), p. . For example, IATE (InterActive Terminology for Europe) annotates possible equivalents as preferred, admitted, deprecated and obsolete. Biel, above n. , pp. –. Jean-Claude Gémar, ‘Translating vs Co-Drafting Law in Multilingual Countries: Beyond the Canadian Odyssey’ in Anabel Borja Albi and Fernando Prieto Ramos (eds), Legal Translation in Context. Professional Issues and Prospects (Oxford: Peter Lang, ), p. . Simone Glanert, ‘Law-in-Translation: An Assemblage in Motion’ () The Translator . Peter W. Schroth, ‘Legal Translation’ () (suppl_) American Journal of Comparative Law .
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important means of enabling the flow of information between legal systems, facilitating communication and the harmonisation of laws. Source knowledge structures are accessed through the target text, knowledge structures, and textual and contextual clues. Such textual clues, created by translators, enable recipients to construct mental representations of the source text which overlap with representations expected by source recipients. Another benefit is for comparative research: as observed by Fuglinszky and Somssich, the very experience of translation triggers comparative analysis, due to the need to assess similarities and differences, and helps comparatists ‘fine-tune’ their findings as ‘a kind of language-oriented double-check of the hypotheses’. . Approaches to Legal Translation (a) Evolution of Approaches to Legal Translation Historically, approaches to legal translation have evolved from strict literalness to moderate literalness, then to idiomatic approaches and co-drafting. For translation purposes legislative texts were initially treated similarly to religious texts. The earliest known recommendation for legal translation, Emperor Justinian’s directive in Corpus juris civilis, a codification of Roman law, allows for only strictly literal foreignising translations – word-for-word translations, including syntactic structures – to avoid ‘distortions’. As analysed by Šarčevi´c, this approach was transformed over the centuries from strictly literal to literal and moderately literal, which allowed for word order and grammatical adjustments, before finally shifting to more domesticating idiomatic approaches, which enhance the comprehensibility of translated law. An important milestone was the Swiss debate on the translation of the German version of the Swiss Civil Code (Schweizerisches Zivilgesetzbuch) into French and Italian in the early twentieth century. The modernisation of approaches culminated in Canadian co-drafting (bilingual drafting), intended to improve French versions of legislation by raising the status of translators to co-drafters and giving them more freedom to produce more idiomatic translations in collaborative teams with bijural lawyers. This evolution highlights the growing importance of reception and communicative aspects of legal translation. (b) Functionalism in Translation Studies Nowadays, functionalism is the dominant approach to specialised translation. Like linguistics, functionalism in translation studies is interested in communicative rather than purely formal aspects of language use. Unlike functionalism in comparative law, functionalism in translation studies does not assume or promote sameness in the source and target culture. It derives from Skopostheorie, a theory of translation developed by Hans J. Vermeer in collaboration with
McAuliffe, above n. , p. . Biel, above n , p. . Engberg, above n. . Fuglinszky and Somssich, above n. , p. . Šarčevi´c, above n. , pp. –. Šarčevi´c, above n. , pp. –. Šarčevi´c, above n. , pp. –. Following the realisation that literal approaches do not guarantee equal language rights, cf. Šarčevi´c, above n. , p. .
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Linguistic Approaches
Katharina Reiss at the end of the s and the s. The theory centres on Skopos – the communicative purpose of translation in the target culture for target recipients, which may happen to be different than that of the source text. Skopostheorie assumes that this purpose is a determining factor in translation and that the translator’s decision-making process is shaped not only by the source text itself but also by clients’ instructions, recipients’ needs, communicative purpose and translators’ perceptions of such purpose. The functionality of translation is assessed against its intended purpose – Skopos – and how it will function in the target culture. This shifts attention from the source text to the target text and emphasises that texts can be translated in a number of ways for different purposes. Although Skopostheorie has been criticised over the years, it gave rise to various strands of functionalism which refocus attention on text functions, the purpose of translation and recipients’ needs. A good example of such refocusing is the key ISO standard : Translation Services – Requirements for Translation Services, where translation quality is understood as fitness for purpose. (c) Types and Purposes of Legal Translation From the perspective of legal systems, legal translation can be classified into () intersystemic translation which takes place between legal systems, for example when a contract is translated from Italian into Japanese; () intrasystemic translation, which takes place within a system, say, language versions of a legal act in bi-/multilingual jurisdictions (Switzerland, Canada); and () hybrid translation, which concerns mixed systems and international/supranational organisations. The main purposes of legal translation are: () legal translation for normative purposes; () legal translation for informative purposes; and () legal translation for general legal and judicial purposes. Normative purposes cover translations which become legally binding, equally valid ‘authentic’ or ‘authoritative’ legal texts. This situation pertains mainly to the translation of (bi-) multilingual law. Translation transforms law linguistically into an equivalent target speech act so that it becomes operative. It enables ‘the mechanism of the law to function in more than one language’, because language versions of a legal act are ‘[v]ested with the force of law’. Informative purposes cover translations which do not have a binding legal force but serve only as a source of information to target recipients. This is frequent in intersystemic translation where a translated legal act has the status of ‘a gloss or a commentary to be used as a key of access
See for an overview: Christiane Nord, ‘Functionalist Approaches’ in Yves Gambier and Luc van Doorslaer (eds), Handbook of Translation Studies (Amsterdam: John Benjamins, ), pp. –. Nord, above n. , p. . Anthony Pym, Exploring Translation Theories (Abingdon: Routledge, ), pp. –. Nord, above n. , p. . For an overview, see Pym, above n. , pp. – and for criticism in relation to legal translation Susan Šarčevi´c, ‘Legal Translation and Translation Theory: A Receiver-Oriented Approach’ in Association suisse des traducteurs, terminologues et interprètes, Université de Genève: La traduction juridique: Histoire, théorie(s) et pratique / Legal Translation: History, Theory/ies, Practice (Proceedings, Geneva, – February ) (Bern/Geneva: ASTTI/ETI, ), pp. –. ISO : Translation Services – Requirements for Translation Services (Geneva: International Organization for Standardization, ). Biel, above n. , pp. –. Cao, above n. , pp. –. Cao, above n. , p. . Galdia, above n. , p. . Šarčevi´c, above n. , p. . Cao, above n. , p. .
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to the original, which has no legal validity of its own’. Finally, translations for general legal or judicial purposes are informative and descriptive but ‘have legal consequences attached to them due to their use in the legal process’. They are typically used in court proceedings as documentary evidence. (d) Functionalism in Legal Translation: A Receiver-Oriented Approach and Its Applicability for Comparative Purposes Functionalism in legal translation is known as the functional approach or a receiver-oriented approach. It focuses on communicative aspects – that is, recipients and reception (e.g., interpretation and application by courts). It understands equivalence dynamically, focusing on ensuring an equivalent effect on recipients. The receiver-oriented approach highlights the translator’s role as a text producer and mediator who facilities communication between authors and recipients. Thus, legal translation is ‘an act of communication within the mechanism of the law’ and a purpose-oriented communication of legal knowledge which builds comprehension bridges for recipients, enabling them to ‘grasp the meaning as accurately as possible from their viewpoint of the legal world’. Thus, the translator provides an optimal approximation of the source text and relevant linguistic prompts to recipients in line with professional norms, and ensures that translation is ‘fit for purpose’ in a legal communicative situation. The receiver-oriented approach is sometimes mistaken for target-orientation. However, it does not presume any specific strategy but rather requires an adequate choice of strategies and techniques, which may well result in a source-oriented translation. For example, translation for information purposes may require a more target-oriented strategy, whereas the translation of multilingual law and translation for court purposes may need to be more source-oriented. The translation of EU law for the purposes of harmonisation is a special case in point: it is drafted at the supranational level but is applied in national legal systems of the Member States. A legislative proposal is in most cases prepared in neutralised, ‘facilitated’ English and is then translated into languages. Since equivalence is the ‘uniform intent of the single instrument’, source-oriented strategies tend to be preferred. For example, at the term level, the use of functional equivalents (terms of national law) is discouraged in institutional guidelines when translators deal with autonomous EU legal concepts.
Guliana Garzone, ‘Legal Translation and Functionalist Approaches: A Contradiction in Terms?’ in Association suisse des traducteurs, terminologues et interprètes, Université de Genève: La traduction juridique: Histoire, théorie (s) et pratique / Legal Translation: History, Theory/ies, Practice (Proceedings, Geneva, - February ) (Bern/ Geneva: ASTTI/ETI, ), p. . Cao, above n. , p. . Cao, above n. , p. . Garzone, above n. . Šarčevi´c, above n. . Šarčevi´c, above n. . See also Malcolm Harvey, ‘What’s So Special About Legal Translation?’ () Meta , , and Alcaraz and Hughes, above n. , pp. –. See also Galdia, above n. , p. , who understands equivalence as ‘substantive homogeneity’. Šarčevi´c, above n. , p. . Engberg, above n. . Pommer, above n. , pp. –. Garzone, above n. . Pozzo, above n. , p. . Šarčevi´c, above n. , p. . For discussion, see Biel, above n. , p. .
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Finally, a pertinent question arises regarding whether the receiver-oriented approach is adequate for comparative research purposes and which strategy is optimal. Opinions differ. For example, Baaij finds the receiver-oriented approach (although he means target-oriented translation) to be inadequate for comparative purposes due to ‘free methods’ (adaptations) and the cultural filter which removes source language idiosyncrasies. The rejection of target-oriented strategies by comparatists is, first of all, often based on references to literary translation, which is not an instructive benchmark for legal translation. A typical target-oriented legal translation would differ markedly from a typical target-oriented literary translation through the rather modest application of ‘free adaptations’ and the steering of a safe middle course to ensure the accurate rendering of source text. A higher degree of target-orientedness may be expected in transposition – an intralingual translation when EU directives are rewritten (transposed) into national law, however this is a different process to interlingual translation. Second, translators will inevitably mix various techniques in one text, as it would be practically impossible to use functional equivalents only. Baaij rejects target-oriented translation because it ‘contaminates’ the output as ‘the legal translator has beaten the comparatist to the post’. To avoid such contamination, he recommends a literal (source-oriented) strategy where translators translate as ‘linguistically’ as possible in order to refrain from comparative analysis. Here, a distinction should be made between the literal strategy and the source-oriented strategy, with the former being an impracticable extreme of the latter which would render translation incomprehensible, especially in the case of genetically distant languages. Whereas Baaij’s claim of contamination is valid, it is doubtful whether a competent source-oriented translation can be achieved without comparative analysis, as translation always requires an interpretation of the source text and choice between a range of options. Other legal scholars emphasise that translation and interpretation are intertwined but translators interpret texts differently to lawyers. Zeifert and Tobor argue that translators engage in interpretation in the wide sense (interpretation as understanding), whereas lawyers engage in interpretation in the narrow sense (interpretation as problem solving). Husa stresses that legal translators interpret texts statically as static entities, whereas lawyers interpret texts dynamically to determine the normative message and account for changing reality when resolving ambiguities. Similarly to Baaij, Glanert recommends the source-oriented ‘alienating’ strategy over the targetoriented ‘fluent’ translation for comparative purposes; however, for different reasons. The alienating type of translation, she argues, is the only ethically acceptable translation for comparatists even if it does not resolve translation-inherent problems, as it represents the foreignness of the source text by reflecting its particularities and hence avoids cultural appropriation. A different stance is taken by Hendry, who differentiates between metaphrase (literal word-for-word translation, formal equivalence) and paraphrase (domesticating translation, dynamic ‘gist’ equivalence), observing that the former can lead to incomprehension whereas the latter is ‘an equivalence of spirit and possibly even function’ and can better convey the source meaning. These differences may be
For a more detailed criticism of Baaij’s stance on the receiver-oriented approach see also Engberg, above n. . Baaij, above n. , p. . Baaij, above n. , p. . Baaij, above n. , p. . Glanert, above n. , p. ; Pozzo, above n. , p. . Mateusz Zeifert and Zygmunt Tobor, ‘Legal Translation Versus Legal Interpretation. A Legal-Theoretical Perspective’ () International Journal for the Semiotics of Law . Husa, above n. , pp. –. Glanert, above n. , p. . Hendry, above n. , pp. –. The terms metaphrase and paraphrase were introduced by John Dryden, a seventeenth-century poet, who also describes the third most domesticating type of translation – imitation.
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Łucja Biel
partly due to a different understanding of what source-orientation and target-orientation mean in practice. Finally, translation for comparative purposes may require a different strategy than translation to facilitate cross-cultural communication, the adequacy of which will depend on the purpose of comparison. Discussions of strategies by comparatists sometimes call for the reconceptualisation of translation under new names. For example, Husa argues that ‘traditional’ legal translation should often resemble transcreation. Replacing translation with ‘transcreation’ is to ensure that instead of ‘focusing on the text only’, it accounts for the context, the legal culture and ‘the living legal message’ in the source text. These aspects are included in the concepts of ‘traditional’ translation and recipient-oriented approach; hence, there is no need to introduce a new term. This term may be misleading as it refers to a professional practice in the area of marketing, which again is not an instructive benchmark for legal translation. Transcreation adapts source marketing copy for the target market, resulting in a target text which looks as if it had been created in the target language from scratch; it is a combination of translation, copywriting and adaptation which requires extreme localisation to remove the traces of the foreign. This type of transcreation would go beyond what is typically acceptable and practicable in legal translation. F. COMPARISONS OF LEGAL LANGUAGES ABOVE THE TERM LEVEL
Linguistic approaches can also aim for comparisons of legal language above the term level, for example linguistic reasoning in adjudication or legal speech acts. Recent research has focused on higher-level linguistic structures, in particular legal genres and Eurolects. This has been facilitated by corpus linguistics, which allows for the computerised quantitative analysis of large collections of texts and rigorous verifications of hypotheses on extensive data. Quantitative corpus methods offer a bird’s-eye view of texts and shift attention from words to patterns. They are particularly efficient at comparing same-language groups of texts, known as comparable corpora: they can automatically uncover the unique linguistic make-up of texts comprised in a corpus and identify differences between corpora. Legal texts have proved particularly well-suited for corpus analyses due to their standardisation and formulaicity. Most legal corpora comprise the genres of legal acts and judgments (rather than private legal documents), given their public availability. The concept of genre is used to group texts into larger classes. Genres are a ‘way of acting and interacting linguistically’; they are marked by a habitual use of patterns, recognisable to a discourse community and realising a given communicative purpose and social goal. Legal genres (e.g., legal acts, judgments, contracts) are tied to their legal systems and have distinctive features. Features which are frequently studied include: deontic modality (e.g., shall, must, should) and other patterns which code duties and rights in legal acts, such as the present or future tense in some languages, epistemic modality which conveys the degree of certainty and
Husa, above n. , pp. –. Claudia Benetello, ‘When Translation Is Not Enough: Transcreation as a Convention-Defying Practice. A Practitioner’s Perspective’ () The Journal of Specialised Translation . Elina Paunio and Susanna Lindroos-Hovinheimo, ‘Taking Language Seriously: An Analysis of Linguistic Reasoning and Its Implications in EU Law’ () European Law Journal . Galdia, above n. . For an overview see Biel, above n. . Norman Fairclough, Analysing Discourse: Textual Analysis for Social Research (London: Routledge, ), p. . John M. Swales, Genre Analysis. English in Academic and Research Settings (Cambridge: Cambridge University Press, ), p. .
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Linguistic Approaches
other argumentative patterns in judgments, textual navigation (referencing patterns, such as according to Article x) and lexical bundles, that is very frequent recurrent sequences. One of the prolific areas of research concerns Eurolects and EU translation. Eurolects are a type of lects – distinct ‘Europeanised’ varieties of national legal languages which are used by and in EU institutions. These hybrids are moulded to address the linguistic needs of the European Union and its law. They rely on national legal languages, but are also required to maintain multilingual concordance with other EU official languages, which results in ‘mirror’ realisations strongly influenced by EU procedural languages – English and French. Eurolects have been demonstrated to comprise not only supranational terminology of EU law but also distinct discursive, stylistic and grammatical features, which are clearly visible when set against corpora of national legal languages. Depending on the corpus design, Eurolects can be analysed to measure their divergence from and impact on national legal languages, similarities and differences between Eurolects, their evolution over time (for example by comparing pre-accession and postaccession translations of EU law), internal variation between genres (for example how the language of EU judgments differs from that of EU legal acts) and the transfer of terminology from directives into national transposing acts. Other uses concern parallel corpora, where source texts are aligned with target texts, which allows for large-scale studies in the variation of terminology in cross-institutional comparisons. Overall, such studies contribute information on what Pozzo refers to as the ‘genius’ of legal languages and ‘legal mentality’, but can also improve the clarity of legal language and the quality of translations. G. CONCLUSIONS
As observed by Husa, interdisciplinarity helps comparative lawyers escape ‘a narrow normative view of law’ and enables them to study law in context by extending the methodological toolbox of comparative law. In the case of linguistic approaches, this context is language. Language and translation are essential components and companions of comparative law. Drawing on legal linguistics and legal translation studies, the linguistic approaches involve
A social, regional or functional variety of language. For an overview of research in this area, see: Łucja Biel, ‘Eurolects and EU Legal Translation’ in Meng Ji and Sara Laviosa (eds), The Oxford Handbook of Translation and Social Practices (Oxford: Oxford University Press, ), pp. –. Biel, above n. ; Laura Mori (ed.), Observing Eurolects: Corpus Analysis of Linguistic Variation in EU Law (Amsterdam: John Benjamins, ). Mori, above n. . Virginia Mattioli and Karen McAuliffe, ‘A Corpus-Based Study on Opinions of Advocates General of the Court of Justice of the European Union: Changes in Language and Style’ () International Journal of Legal Discourse . Łucja Biel, ‘From National to Supranational Institutionalisation: A Microdiachronic Study of the Post-Accession Evolution of the Polish Eurolect’ () Perspectives . Łucja Biel, Dariusz Ko´zbiał and Dariusz Müller, ‘The Judicial English Eurolect: A Genre Profiling of CJEU Judgments’ in Stanisław Go´zd´z-Roszkowski and Gianluca Pontrandolfo (eds), Law, Language and the Courtroom: Legal Linguistics and the Discourse of Judges (London and New York: Routledge, ), pp. –. Łucja Biel and Agnieszka Doczekalska, ‘How Do Supranational Terms Transfer into National Legal Systems? A Corpus-Informed Study of EU English Terminology in Consumer Protection Directives and UK, Irish and Maltese Transposing Acts’ () Terminology . For example, the UN, EU and WTO: Fernando Prieto Ramos and Albert Morales Moreno, ‘Terminological Innovation and Harmonization at International Organizations: Can Too Many Cooks Spoil the Broth?’ in Ingrid Simonnæs and Marita Kristiansen (eds), Legal Translation. Current Issues and Challenges in Research, Methods and Applications (Berlin: Frank&Timme, ), pp. –. Pozzo, above n. , p. . Husa, above n. , p. .
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Łucja Biel
critical, deep-level analyses of comparative linguistic aspects of law at not only the term level but also higher-level structures. Linguistic approaches acknowledge the significance of language and translation, problematise them, and confront the challenges and limitations they trigger. Even if progress can be regarded as relatively modest, these developments contribute to the growing methodological awareness and interdisciplinarity of comparative law. Interdisciplinarity requires critical methodological reflection on what it brings and how it will be integrated with other comparative methods. First, linguistic methods need solid empirical grounding. There is still little empirical research into how legal language and translation are processed by recipients, how they influence the understanding, application and interpretation of law, and specifically how they influence comparative analyses. This would allow for a systematic testing of theories, assumptions and claims, and would provide both comparative law and legal translation studies with a better foundation. Second, as with any method, linguistic approaches admittedly foreground some aspects and obliterate others; hence, a triangulation of methods and data is necessary. Comparative work should ideally be conducted in interdisciplinary teams, where not only local languages are represented, but also other disciplines (e.g., linguistics, translation studies, cultural studies). This would facilitate more dialogue with other disciplines and a holistic study of law from a comparative perspective.
Van Hoecke, above n. . Husa, above n. , p. .
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Qualitative Fieldwork Petra Mahy, Richard Mitchell, John Howe, Ingrid Landau and Carolyn Sutherland*
The use of qualitative fieldwork methods for comparative legal research has the potential to provide valuable insights into the relationships between laws and cultures across different nation-states and other socially defined spaces. Such methods also give rise to a wide range of methodological research design issues including fieldsite selection, the development and use of comparator concepts, and the means of handling detailed contextual accounts. This chapter discusses these issues as they arise in relation to three sub-disciplinary categories: (i) traditional comparative law; (ii) socio-legal comparative law; and (iii) comparative socio-legal studies. Building on this review of comparative legal research design discussions and examples, the authors also reflect on the design for their own ongoing comparative empirical project on labour dispute resolution systems in Southeast Asia.
A. INTRODUCTION
Comparative legal scholars have long pointed to the prospective advances in knowledge which may arise from a combination of traditional comparative law and the methodologies of near disciplines in the social sciences which (among other techniques) apply qualitative fieldwork methods. However, in practice studies which actually apply fieldwork methods to comparative * Petra Mahy, Richard Mitchell, Ingrid Landau and Carolyn Sutherland are at the Department of Business Law and Taxation, Monash University. John Howe is at the Melbourne School of Government and Melbourne Law School, University of Melbourne. This chapter is based on research funded by the Australian Research Council (Discovery Project #DP). For example, Annelise Riles, ‘Comparative Law and Socio-Legal Studies’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ); Anne Griffiths, ‘Review: Law, Space and Place: Reframing Comparative Law and Legal Anthropology’ () Law and Social Inquiry ; David Clark, ‘History of Comparative Law and Society’ in David S. Clark (ed.), Comparative Law and Society (Cheltenham: Edward Elgar, ); Roger Cotterrell, ‘Comparative Sociology of Law’ in David S. Clark (ed.), Comparative Law and Society (Cheltenham: Edward Elgar, ); Naomi Creutzfeldt et al., ‘Introduction: Exploring the Comparative in Socio-Legal Studies’ () International Journal of Law in Context ; Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ) (especially chapter ); Ulrich Drobnig, ‘Methods of Sociological Research in Comparative Law’ () Rabels Zeitschrift für Ausländisches und Internationales Privatrecht .
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legal research questions are relatively rare. Searches of comparative law journals for papers employing fieldwork methods, and searches of socio-legal, regulatory and social science journals for articles specifically applying cross-jurisdictional (or across other types of spaces) comparisons, each reveal a handful of such studies at most. Researchers in this area do produce theses and monographs, with their more generous word limits and space to present comparative data, but even so the numbers of such studies are still quite small. The reasons for this are clear: conducting robust fieldwork in more than one location is timeconsuming, expensive, and practically difficult (including often involving cross-cultural and multiple language issues). The widespread shift towards neoliberalism in higher education institutions and demands on researchers for quick research output also hinder the long-term engagement required for in-depth comparisons. In addition, fieldwork for a comparative legal project requires the combining of disciplinary knowledge and methods in which researchers may have no academic grounding. Conducting fieldwork also compounds the research design complexities; while a ‘traditional’ comparative lawyer might need to select and justify the jurisdictions and legal questions in issue, a qualitative fieldworker may additionally need to select ‘fieldsites’, moments of observations, modes of participation, identity of interviewees, nature and content of interview questions, sources of discourses, or other data points (and all the exclusions that this implies) all with the aim of producing comparable results. Researchers will need to grapple with choices of concepts and how to deal with large amounts of contextual data. While this is certainly a difficult endeavour, it is not impossible, and at the same time offers potential rewards for producing new knowledge and theories of laws in societies. This chapter takes a current fieldwork-based research project as an example to ground the discussion of the complexities involved in comparative research design. This collaborative, multi-year project is titled ‘Formal and Informal Regulation of Labour Disputes in Southeast Asia’ (referred to in this chapter as our ‘Southeast Asia Project’) and is funded by the Australian Research Council. As the project title indicates, we are investigating the formal and informal mechanisms of labour dispute resolution in three Southeast Asian countries: Indonesia, the Philippines and Vietnam. We are concerned with three sets of questions for each country: (i) How are collective labour disputes defined and regulated under the formal legal systems in each country? (ii) How effectively do these systems operate in practice and what are the major conditions contributing to the relative success or failure of such systems? and (iii) What roles are played by informal institutions and actors in dispute resolution and settlement in each country; How does such informal regulation interact with formal labour law; and What are the
Riles, above n. , made a similar observation some years ago in relation to the lack of dialogue between comparative law and socio-legal studies scholars. Also, we acknowledge here that we are only referring to journals and other sources written in English. For example, Meredith Edelman, Judging the Church: Legal Systems and Accountability for Clerical Sexual Abuse of Children (Ph.D. thesis, Australian National University, ); Marieke Riedel, Ambivalent Encounters: Law and the Construction of Jewish Difference (Ph.D. thesis, Australian National University, ); Åse B. Grødeland and William L. Miller, European Legal Cultures in Transition (Cambridge: Cambridge University Press, ); William Hurst, Ruling Before the Law: Politics of Legal Regimes in China and Indonesia (Cambridge: Cambridge University Press, ); Elizabeth Jane MacPherson, Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience (Cambridge: Cambridge University Press, ). Mark Olssen and Michael A. Peters, ‘Neoliberalism, Higher Education and the Knowledge Economy: From the Free Market to Knowledge Capitalism’ () Journal of Education Policy ; Peter Roberts and Michael A. Peters, Neoliberalism, Higher Education and Research (Rotterdam: Sense Publishers, ). ‘Formal and Informal Regulation of Labour Disputes in Southeast Asia’ (Australian Research Council Discovery Project #DP). Project website: www.monash.edu/business/business-law-and-taxation/our-research/showcase/ asian-regulation/labour-disputes-in-southeast-asia (accessed February ).
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effects of such alternative mechanisms in practice? While these research questions are autonomous for each country, we also aim to analyse these questions comparatively across the three countries in order to draw broader conclusions about the conditions under which formal and informal modes of labour regulation interact. We may also conclude with policy recommendations for the optimal design of dispute resolution systems if our data and analysis support this, and this might involve reflecting on our own (Australian) system with fresh eyes. Our data collection involves qualitative, semi-structured interviews conducted with participants and observers of the labour dispute resolution systems in each country, coupled with case studies of particular collective labour disputes. Initially fieldwork was to be conducted in person; however, due to the COVID- pandemic we have largely shifted to the use of video calls to conduct interviews. The pandemic has also necessitated a ‘slow’ research approach, with interviews spread out over time rather than being conducted intensively. This has had the benefit of allowing iterative processes of reflections on, and refinement of, the conceptual and comparative framework in relation to specific local research findings and, in response, the adjustment of our overall research design. This chapter represents one part of this ongoing reflective approach. As comparativists often state, there is no one-size-fits-all comparative methodology, and qualitative research in general also follows this principle because the social world is not easily reducible to objective scientific variables. In Section B of this chapter, we define and outline the objectives of qualitative fieldwork for comparative legal research. In relation to comparison, while no firm prescriptions are possible, nonetheless there are a number of key research design factors that should be properly addressed in any project of this nature. We argue (in Section C) that it is useful to position a fieldwork research design in relation to three sub-disciplinary categories: (i) traditional comparative law; (ii) socio-legal comparative law; and (iii) comparative socio-legal studies. Then, in Section D, we outline the importance and complexities of ‘fieldsite’ selection. And finally, in Section E, we discuss the issue of developing lower-level comparator concepts and dealing with context. For each of these topics, we critically appraise the research design in our Southeast Asia Project in light of relevant literature on comparative methodologies alongside our experience of the practicalities of conducting our fieldwork. The aim in doing so is to assist other scholars to orient comparative legal research design involving qualitative fieldwork. Overall, we join others in calling for greater methodological clarity and for open acknowledgement of where aspects of comparative research design have occurred for pragmatic or serendipitous reasons.
As recommended by Phil Almond and Heather Connolly, ‘A Manifesto for “Slow” Comparative Research on Work and Employment’ () European Journal of Industrial Relations , . See Nora V. Demleitner, ‘Combating Legal Ethnocentrism: Comparative Law Sets Boundaries’ () Arizona State Law Journal (arguing that the aim of comparative law should be to counter ethnocentrism through the analysis of foreign systems and thereby to challenge researchers’ perceptions of their own home jurisdiction). Almond and Connolly, above n. . Catherine Valcke, ‘Reflections on Comparative Law Methodology – Getting Inside Contract Law’ in Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (Cambridge: Cambridge University Press, ); David Nelken, ‘Doing Research into Comparative Criminal Justice’ in Reza Banakar and Max Travers (eds), Theory and Method in Socio-Legal Research (Oxford: Hart Publishing, ), p. . Mats Alvesson et al., ‘Reflexive Design in Qualitative Research’ in Uwe Flick (ed.), Sage Handbook of Qualitative Research Design (Thousand Oaks, CA: SAGE Publications, ), p. . For example, Koen Lemmens, ‘Comparative Law as an Act of Modesty: A Pragmatic and Realistic Approach to Comparative Legal Scholarship’ in Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (Cambridge: Cambridge University Press, ).
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B. QUALITATIVE FIELDWORK FOR COMPARATIVE LEGAL RESEARCH
We can define qualitative fieldwork as the gathering of qualitative empirical data through methods that require personal interaction between the researcher and the subjects of the research or as ‘people studying people’. This includes methods of observation, participant observation, interviewing, qualitative surveying administered in person and digital engagement that requires the researcher’s virtual presence. The gathering of data is conducted ‘in the field’, and taking a comparative approach would usually necessitate the selection of more than one fieldsite (discussed further in Section D below). This definition of fieldwork excludes the collection and analysis of written, oral and digital records and surveys administered remotely, although these methods are, of course, also often used in combination with fieldwork. Fieldwork can entail different levels and lengths of engagement. Nelken distinguished between three approaches a scholar might take in conducting research in a foreign environment: ‘living there’ (conducting ethnography as an observing participant and aiming for immersion in the fieldsite); ‘researching there’ (making relatively short research visits, mostly conducting interviews); and finally, being ‘virtually there’ (relying on information from local experts). Living there, or full immersion and enabling the development of an ‘inner’ perspective, is often touted as being the most desirable fieldwork approach for understanding cultural phenomena. While being ‘virtually there’, or outsourcing the data collection to others, may still produce useful information, it arguably excludes all immersive possibilities and obscures the personally reflexive aspects of in-person qualitative fieldwork. ‘Researching there’ is, therefore, a middle-of-the-spectrum option. Qualitative fieldwork may be chosen as a research method in response to a wide range of research questions that generally aim to build up detailed accounts of, and to analyse, complex human social phenomena and their meanings in their social settings, including subjective experiences. In relation to law and the basic principle that law is a cultural phenomenon, or is at least embedded in culture, we can assume that understanding can be best obtained through a cultural, qualitative, lens. Qualitative fieldwork may aim to investigate a very wide range of phenomena, including but not limited to: law-making, law enforcement, perceptions of law and justice, legal effectiveness, court and alternative/informal dispute resolution mechanisms, access to justice and lawyer–client relationships. These are all aspects of stepping outside of lawyers’
Robert A. Georges and Michael A. Jones, People Studying People: The Human Element in Fieldwork (Berkeley, CA: University of California Press, ). David Nelken, ‘Virtually There, Researching There, Living There’ in David Nelken (ed.), Contrasting Criminal Justice: Getting from Here to There (Abingdon: Routledge, ); Nelken, above n. . We include the new technologically-enabled methods such as conducting interviews via video call as being a form of ‘researching there’ rather than ‘virtually there’, given the more active role of the researcher. See James Q. Whitman, ‘The Neo-Romantic Turn’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, ) (arguing that an inner perspective of how participants view and describe their legal system is a required starting point, but that the researcher also needs to uncover unarticulated assumptions). For example, Hortense Powdermaker, Stranger and Friend: The Way of an Anthropologist (New York: W.W. Norton ), p. ; Roger M. Keesing and Andrew Strathern, Cultural Anthropology: A Contemporary Perspective (Fort Worth, TX: Harcourt Brace College Publishers, ), p. ; Siems, above n. , p. ; Vivian Grosswald Curran, ‘Cultural Immersion, Difference and Categories in U.S. Comparative Law’ () American Journal of Comparative Law . Roger Cotterrell, ‘Comparative Law and Legal Culture’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ). Lisa Webley, ‘Qualitative Approaches to Empirical Legal Research’ in Peter Kane and Herbert M. Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, ).
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doctrinal and normative points of view and attempting to find out how the law, and other forms of social ordering, really work in practice, including uncovering taken-for-granted assumptions that participants may not themselves be consciously aware of. Generally speaking, the immediate aim of comparison is to examine similarities and differences. This is a necessary basis for general human cognition as well as for any social research, where one piece of information must be compared with another in order to build understanding. Here, though, comparison usually refers to comparison across space (and sometimes also time), and implies the search for cross-cultural understandings of the roles of laws in societies. That is, systematic comparison is aimed at theory building and potentially identifying causal relationships between law and culture or other factors, and is not just a ‘mere juxtaposition’ of case studies. Comparison may also be aimed at supporting political action on a particular issue. The pragmatics of qualitative fieldwork, though, necessarily limit the comparison to small sample size (small-N) studies with few fieldsites, and also to selected fragments of social life which are used to build theory or at least to lead to larger insights. For our Southeast Asia Project, as introduced above, we have chosen to employ fieldwork methods to gather data on legal effectiveness in relation to the formal labour dispute resolution systems in the three nominated countries. This includes gathering the subjective experiences and views of participants in, and observers of, these systems. We are also examining informal mechanisms of labour dispute resolution, and while some passing references to these can be found in media sources and secondary literature, in-depth empirical fieldwork is the only viable method for discovering and documenting these processes. Our comparative approach in examining these questions in the three countries is aimed at theory building about the interactions and effectiveness of formal and informal labour dispute resolution mechanisms and their links to industrial peace. As a group of researchers based outside the countries we are studying, for pragmatic reasons, to use Nelken’s terminology, we are ‘researching there’ and conducting semistructured interviews via video calls. We, therefore, must acknowledge that our approach does not involve the more desirable full ‘immersion’. C. THREE CATEGORIES OF COMPARATIVE LAW AND THE ROLE OF QUALITATIVE FIELDWORK
Scholars may often use the terms ‘socio-legal comparative law’ and ‘comparative socio-legal studies’ interchangeably to indicate the extension of (or blending of ) ‘traditional comparative law’ approaches into the realm of the social through fieldwork and other empirical methods. Although these terms are similar, it is both possible and useful to distinguish between them in order to understand possible options of research design and their implications. The intention
Carolin Demuth and Alessandra Fasulo, ‘Qualitative Research Design Across Different Cultural Communities’ in Uwe Flick (ed.), The SAGE Handbook of Qualitative Research Design (Thousand Oaks, CA: SAGE Publications, ), p. . Siems, above n. . Cotterrell, above n. . See, for example, the discussion in James Peacock, ‘Action Comparison: Efforts towards a Global and Comparative yet Local and Active Anthropology’ in Richard G. Fox and Andre Gingrich (eds), Anthropology, by Comparison (London: Routledge, ). Creutzfeldt et al., above n. . Ingrid Landau et al., ‘Regulatory Pluralism and the Resolution of Collective Labour Disputes in Southeast Asia’ () Journal of Industrial Relations . For example, see the three editions of Mathias Siems’ Comparative Law (Cambridge: Cambridge University Press, , , ).
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here is to delineate three heuristic categories while acknowledging that real research designs may not fully conform with any of them – as is the case with our Southeast Asia Project. The first category, ‘traditional comparative law’, has a set of core assumptions about the centrality of the nation-state and of positive law. Then, in ‘socio-legal comparative law’ the traditional comparative law paradigm remains at the core of the inquiry but with some extensions to encompass social context. In the third category, that of ‘comparative socio-legal studies’, socio-legal approaches are predominant with comparison added as a means of moving beyond single cases towards theory building. These categories are further detailed in the following discussion. . Traditional Comparative Law ‘Traditional comparative law’ is something of a caricature or a foil as there is some doubt as to whether it continues to exist, or indeed has ever existed, in practice. Certainly, the idea of comparative law as a discipline, and its aims and scope, have been the subject of much critical literature, and scholarship in this field has evolved over time. Nonetheless, it is useful to set out the conventions of traditional comparative law here to draw attention to its attendant scope, albeit narrow, within which qualitative fieldwork methods may be employed. A key assumption of traditional comparative law is the primacy and boundedness of nationstates, with research designs taking this as a central starting point for comparison. That is, Country A is compared with Country B, or as an extension of this, Province C with Province D within formally constituted federal jurisdictions. Then, in traditional comparative law, there is a focus on positivist or ‘black letter’ state law and the formal legal systems that support it – that is, on the formal rules promulgated by the nation-state’s law-making bodies (including formal delegated rule-making), and their application through courts and other formal legal bodies. The aim of comparing such formal legal systems and their rules is often one of taxonomy and the recognition and understanding of legal families, but may also be for the normative purpose of law reform and seeking inspiration for reform in other systems. Often the aim is to promote convergence or at least harmonisation between systems. Thus, the study of ‘legal transplants’ plays a prominent role in this field of scholarship due to its implications for convergence. Legal transplant studies also rest on assumptions of the primacy of the nation-state and the movement of formal rules from one state to another. By virtue of its narrow legal focus, research in traditional comparative law tends to have a fixed (rather than flexible) research design. The method here is a ‘legal scientific approach’ that most often rests on, or is related to, the functional method as set out by Zweigert and Kötz. Here, to overcome the problem of differences in legal terminology between places, a social
For example, Cotterrell, above n. , p. . For example, Husa, ‘Traditional Methods’, Chapter (in this volume). Griffiths, above n. , p. . Griffiths, above n. , p. ; Siems, above n. , p. . Note, though, that broader conceptions of ‘legal transplants’ have also been proposed, such as Twining’s concept of ‘legal diffusion’: William Twining, ‘Diffusion and Globalization Discourse’ () Harvard International Law Journal . Siems, above n. , p. . See also Ralf Michaels, ‘The Functional Method of Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ). Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (tr., Tony Weir, Oxford: Oxford University Press, rd ed., ). See also John C. Reitz, ‘How to Do Comparative Law’ () American Journal of Comparative Law (setting out a comparative law methodology with functionalism at its core). See also discussion by Husa, above n. .
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problem is to be identified in each place (usually in different nation-states) and then the ‘legal’ and ‘extra-legal’ solutions to that problem are identified and compared. Explanations for similarities and differences are to be sought from the surrounding context. The social problem is, therefore, the tertium comparationis, or ‘common point of departure for the comparison’. The research design would therefore often assume a background of similarity in the selected nation-states and would then seek to identify differences in the actual rules. The basic research design here is pre-set by the researcher and is unlikely to change even as new information comes to light. Fieldwork would only be needed in a very narrow set of circumstances if a traditional comparative law researcher is merely attempting to find the formal law on a particular topic in more than one jurisdiction. For example, understanding which rules belong to which social problem may well require soliciting knowledge from legal practitioners. Beyond this, examples of research applying the full extent of Zweigert and Kötz’ functional method, which seeks the ‘extra-legal’ solutions alongside the legal, and seeks contextual explanations for similarities and differences, are very rare in practice and therefore fieldwork is rarely employed. Still, we should acknowledge here that this method does include plural legal and contextual information in theory, if not in practice, and that it has long been debated as to whether traditional comparative law has always been concerned with context. . Socio-Legal Comparative Law Taking a further step along the continuum of comparative legal research design possibilities is what we are calling ‘socio-legal comparative law’. Another possible term that could be used here is ‘comparative law in context’. The core of the traditional comparative law approach, with its key assumptions about the central primacy of the nation-state and their formal legal systems, is maintained here, but with research additionally seeking to take account of social context. Often, doctrinal legal analysis remains a key part of this kind of research. For example, Banakar’s review of Örücü and Nelken’s Comparative Law: A Handbook highlights how that text seeks to ‘contextualise legal research by taking into account the social, cultural, historical, economic and political factors that are in constant interaction with law and legal institutions, i.e. comparing laws in their socio-cultural context’. Other examples that might be classified as
Reitz, above n. , p. . Michaels, above n. , p. . As examples of functional approaches without considering the ‘extra-legal’, see: Valcke, above n. ; Eric Feldman, ‘Blood Justice, Courts, Conflict and Compensation in Japan, France and the United States’ () Law & Society Review . For an example of research that does seek the ‘extra-legal’ see: Petra Mahy, ‘The Functional Approach in Comparative Socio-Legal Research: Reflections Based on a Study of Plural Work Regulation in Australia and Indonesia’ () International Journal of Law in Context ; Maurice Adams and John Griffiths, ‘Against “Comparative Method”: Explaining Similarities and Differences’ in Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (Cambridge: Cambridge University Press, ). E.g. Riles, above n. . Both the Cambridge University Press ‘Law in Context’ book series and the journal International Journal of Law in Context define ‘law in context’ by focusing on law as the central concern while acknowledging relationships to other disciplines and the usefulness of their materials. Siems, above n. , p. . See also Eberle, who sets out a comparative law methodology within this vein: Edward J. Eberle, ‘The Method and Role of Comparative Law’ () Washington University Global Studies Law Review . See Christopher McCrudden, ‘Legal Research and the Social Sciences’ () Law Quarterly Review (explaining the benefits of retaining doctrinal legal analysis in interdisciplinary research). Reza Banakar, ‘Review Essay: Power, Culture and Method in Comparative Law’ () International Journal of Law in Context , reviewing: Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (Oxford: Hart Publishing, ).
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‘socio-legal comparative law’ include empirical studies of legal transplants or contextualised accounts of aspects of legal families. While law may be understood here as being embedded within legal culture, this is often understood as being lawyers’ culture or the professional realm of law rather than as a broader view of societal culture. Researchers in this category are typically legally trained but less familiar with social science methodologies, and thus where they do engage with such methodologies they may only employ them in a loose manner. . Comparative Socio-Legal Studies By contrast, researchers employing ‘comparative socio-legal studies’ approaches may abandon the key assumptions of traditional comparative law. They are not tied to the assumption that the nation-state is necessarily the primary space within which ‘law’ is found (see further discussion in Section D below), nor to a positivist view of ‘law’ and therefore may emphasise legal or regulatory pluralism. In this category, researchers are not just concerned with the context of law – but rather with deeper understandings of the role of law in social orders, subjective experiences, internalised conceptions, processes and many other concerns. Such approaches are more likely to employ inductive reasoning (though not discounting the role of existing theory and deductive reasoning) and to have a flexible (rather than fixed) research design permitting the research questions and approaches to evolve as more information comes to light. ‘Comparative socio-legal studies’ projects are more likely to draw directly on various social science disciplines, and therefore a greater number of research designs are possible. While the disciplinary lines between, for example, anthropology and sociology may be blurred here, often sociology brings a focus on case studies, and strives to test hypotheses and build theory through the identification of independent and dependent variables. Meanwhile anthropology brings its ethnographic techniques, and particularly its core method of participant observation and long-term engagement, as well as a ‘thickly’ descriptive and transparently reflexive writing style that incorporates the researcher’s subjective experience and acknowledges their influence
Cotterrell, above . See also Reitz, above n. and Mark van Hoeke and Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model of Comparative Law’ () International and Comparative Law Quarterly , where legal culture is understood to be lawyers’ culture. As Mark van Hoeke notes, ‘comparative lawyers are often lost when it comes to describing context’. See Mark van Hoeke, ‘Deep Level Comparative Law’ in Mark van Hoeke (ed.), Epistemology and Methodology of Comparative Law (Oxford: Hart Publishing, ) . See also Esin Örücü, ‘Methodology of Comparative Law’ in Jan M. Smits (ed.), Elgar Encyclopaedia of Comparative Law (Cheltenham: Edward Elgar, nd ed., ) (which contains several mentions of extending comparative law to contextual approaches but few pointers on how this should be done, and acknowledgement that the help of social scientists may be needed). Alternative terms in use which appear to have similar meanings are ‘comparative sociology of law’ – see, for example, Cotterrell, above n. , p. ; David Nelken (ed.), Comparing Legal Cultures (Aldershot: Dartmouth, ) , and ‘comparative law and society’ (Clark, above n. ). For Riles, above n. the study of legal pluralism, especially in non-Western contexts, has been the site of productive interdisciplinarity between comparative law and socio-legal studies. While much socio-legal research is qualitative fieldwork based, of course not all work is produced this way. Other approaches include: textual discourse analysis, analyses of the social meaning and aesthetics of legal texts, ethnographic reading or content analysis of case decisions, analyses of films, novels and other cultural products, and analyses of naturally occurring data. Cotterrell, above n. , p. . Richard L. Abel, ‘A Comparative Theory of Dispute Institutions in Society’ () Law and Society Review , ; Mattei Dogan, ‘Strategies in Comparative Sociology’ () Comparative Sociology ; Jean-Pascal Daloz, ‘Comparative Sociology: Epistemological issues’ in Maurice Adams and Mark van Hoeke (eds), Comparative Methods in Law, Humanities and Social Sciences (Cheltenham: Edward Elgar, ).
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on the data. Legal anthropologists are also more likely to allow research designs to be inductively and iteratively determined as more information comes to light rather than being pre-set. That is, the terms of comparison may be allowed to emerge from the research data without preconceived assumptions, and this may lead to uncovering unexpected information. However, as Harrison notes, ‘ethnography flourishes in the liminal spaces between research design and improvisation’, but is not built for efficiency or producing easy policy prescriptions. We can now consider our Southeast Asia Project in relation to the three categories outlined above in order to pinpoint its sub-disciplinary location. In fact, the project falls somewhere between the second and third categories. We do have nation-states as our fixed starting point for comparison (Indonesia, the Philippines and Vietnam) and this three-country comparison is preset and unlikely to change (being written into a grant application is one practical limitation). The social problem with which we are concerned is collective labour disputes and their resolution. In that respect we have a functional aspect that ties our analysis in the three countries together. Formal law is our starting point – that is to say, its operation and effectiveness is our first research question. Underlying this we have a normative concern with labour justice. But we also have adopted regulatory pluralism as a key assumption – that is, the assumption that dispute resolution processes can and often do occur outside the formal legal framework. Within the country studies and at a more detailed level, our parameters of comparison are much more fluid, and this is giving rise to various sub-projects as our understanding grows. Labour regulation and dispute resolution are national issues in each of the three countries, but the existence of smaller spaces of labour dispute resolution is also emerging from our data. This theme is continued in the following section. D. SPACES, SCALES AND ‘FIELDSITES’
In some cross-national studies, which we can categorise as being ‘traditional’ or ‘socio-legal comparative law’, fieldwork (usually in the form of interviews) is conducted without any consideration of local, intra-nation-state, spaces. For example, Dietz investigated the enforcement of cross-border contracts in the global software industry by interviewing software industry experts in Germany, Bulgaria, Romania and India. What mattered here was the interviewees’ expertise and not their specific location within particular geographical areas or institutions in these countries. In another example, Hertogh and Kurkchiyan utilised focus group discussions and national surveys with individual citizens of different backgrounds, as well as semi-structured interviews with lawyers working in different areas of law to investigate legal consciousness in the United Kingdom,
Elizabeth Mertz and Mark Goodale, ‘Comparative Anthropology of Law’ in David S. Clark (ed.), Comparative Law and Society (Cheltenham: Edward Elgar, ). We should also note that, in recent decades, anthropology has had an uneasy relationship with cross-cultural comparison, particularly its earlier use for developing ‘grand theories’ of cultural development (which has since been discredited by postmodern critiques). See the discussion in: Richard G. Fox and Andre Gingrich, ‘Introduction’ in Richard G. Fox and Andre Gingrich (eds), Anthropology, By Comparison (London: Routledge, ). Creutzfeldt et al., above n. . See also the discussion of iterative research design in some cognate fields: Almond and Connelly, above n. ; Richard M. Locke and Kathleen Thelen, ‘Apples and Oranges Revisited: Contextualised Comparisons and the Study of Comparative Labor Politics’ () Politics & Society . Anthony Kwame Harrison, ‘Ethnography’ in Patricia Leavy (ed.), The Oxford Handbook of Qualitative Research (Oxford: Oxford University Press, nd ed., ), p. . Thomas Dietz, Global Order Beyond Law: How Information and Communication Technologies Facilitate Relational Contracting in International Trade (Oxford: Hart Publishing, ).
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Poland and Bulgaria. This sampling approach was also largely disinterested in the social or physical location of the interviewees. Similarly, Dezalay and Garth conducted more than interviews across a number of countries in Asia to understand the historical role of elite lawyers in transitions away from colonialism, but again there was no intra-nation-state spatial analysis. As another example in the area of family and religious law, Fournier studied the social problem of Jewish women who were not granted a divorce (get) by their husband even while state law recognised their divorce. This was a comparative study of Israel and Canadian legal solutions and practices in relation to this problem. Fieldwork, including interviews with Jewish women who had faced this problem, allowed the author to take a critical legal pluralism approach and to document how these women had navigated this problem by drawing on religious, legal and non-legal sources of power. The author did not provide a justification for the selection of Israel and Canada other than the fact the same social problem occurs in both countries. The interviewees were selected without any consideration of their geographical or social locations, but there was passing mention of some rabbinical courts in Israel acting differently to others which hints at a missing spatial aspect to the research design. In contrast, ‘comparative socio-legal studies’ often adopts legal or regulatory pluralism approaches. A consequent aspect of pluralism is the acknowledgement that legal and nomic spaces, that is spaces within which cultural norms or living law may develop, in addition to the nation-state, are important. This necessarily opens up a much more complex issue of selection of comparative research fields than exists in ‘traditional’ or ‘socio-legal comparative law’ projects. Scholars have developed various conceptions of ‘space’ within such research project design. In some cases, these concepts correspond to presumed ‘real’ bounded (or semi-bounded) spaces within which particular laws, norms and cultures take shape, such as Sally Falk Moore’s concept of the ‘semi-autonomous social field’, Pierre Bourdieu’s ‘juridical field’, or the ‘regulatory space’ of regulatory studies. Districts, cities/towns, villages, religious law jurisdictions,
Marc Hertogh and Marina Kurkchiyan, ‘When Politics Comes into Play, Law Is No Longer Law’: Images of Collective Legal Consciousness in the UK, Poland and Bulgaria’ () International Journal of Law in Context . See also: Grødeland and Miller, above n. (apparently drawing on the same, but expanded, dataset as Hertogh and Kurkchiyan, but with some acknowledgement of sampling within intra-state regions especially in Ukraine, at p. . However, the analysis in this study still largely proceeds on a state (and not intra-state) basis). Yves Dezalay and Bryant G. Garth, Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, IL: University of Chicago Press, ). Pascale Fournier, ‘Halacha, the Jewish State and the Canadian Agunah: Comparative Law at the Intersection of Religious and Secular Orders’ () Journal of Legal Pluralism and Unofficial Law . Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’ () Law & Society Review . Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ () Hastings Law Journal . Leigh Hancher and Michael Moran, ‘Organizing Regulatory Space’ in Leigh Hancher and Michael Moran (eds) Capitalism, Culture, and Economic Regulation (Oxford: Oxford University Press, ); Colin Scott, ‘Analysing Regulatory Space: Fragmented Resources and Institutional Design’ [] Public Law . For example, Maarten Bavinck et al., ‘From Indifference to Mutual Support – A Comparative Analysis of Legal Pluralism in the Governing of South Asian Fisheries’ () European Journal of Development Research . See also an earlier version of this group’s work examining three districts in India: Svein Jentoft et al., ‘Fisheries CoManagement and Legal Pluralism: How an Analytical Problem Becomes an Institutional One’ () Human Organization . For example, Hao Zhang and Eli Friedman, ‘Informality and Working Conditions in China’s Sanitation Sector’ () The China Quarterly ; Carol J. Greenhouse, Barbara Yngvesson and David M. Engel, Law and Community in Three American Towns (Ithaka, NY: Cornell University Press, ). The ‘Berkeley Village Law Project’ is one example of this approach. See: Laura Nader and Harry F. Todd, The Disputing Process: Law in Ten Societies (New York: Columbia University Press, ); Laura Nader, ‘Choices in Legal Procedure: Shia Moslem and Mexican Zapotec’ () American Anthropologist . For example, Edelman, above n. .
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indigenous reservations, communities and special economic zones have also figured as the ‘spaces’ of comparative socio-legal fieldwork, as have other nomic settings such as homes, prisons, workplaces, courtrooms and other public institutions. Cyberspaces can also arguably be divided into virtual zones. One example of a cross-national socio-legal project with fieldwork based in presumedly bounded local communities is Gezelius and Hauck’s collaborative ethnographic research on motivations for compliance with fisheries regulation. The larger comparison is between three nations with major fishing industries (Canada, Norway and South Africa) where research began as separate studies before the researchers began to collaborate and design their research to ensure comparability. The community cases in each country were then chosen based on their similarity, each involving small communities that were economically dependent on fisheries subject to state regulation but where there were also incentives and opportunities not to comply with such regulation. The differences between the cases were provided through historical patterns of interactions with state authorities, and the states’ governmental compliance strategies. These similarities and differences then allowed the authors to test for the factors causally impacting compliance motivations. Other scholars have taken the view that any spatial concepts must be considered to be arbitrarily drawn by researchers to delineate their field of research due to the acknowledgement that social life is never easily divided into spatio-legal geographies or fixed culturally bounded territories. That is, cultural spaces are viewed as permeable and blurred and any formally defined social boundaries should be treated as suspect. For example, the European Union
For example, Robert D. Cooter and Wolfgang Fikentscher, ‘American Indian Law Codes: Pragmatic Law and Tribal Identity’ () American Journal of Comparative Law ; Robert D. Cooter and Wolfgang Fikentscher, ‘Indian Common Law: The Role of Custom in American Indian Tribal Courts (Part I of II)’ () American Journal of Comparative Law ; Robert D. Cooter and Wolfgang Fikentscher, ‘Indian Common Law: The Role of Custom in American Indian Tribal Courts (Part II of II)’ () American Journal of Comparative Law . For example, Oswaldo Ruiz-Chiriboga, ‘You Have No Right to Remain Silent: Self-Incrimination in Ecuador’s Indigenous Legal Systems’ () American Journal of Comparative Law ; Sophie Dascalopoulos-Capetanakis, ‘The Notion of Female Property’ (−) Journal of Legal Pluralism and Unofficial Law . For example, James Alan Brown, ‘Territorial (In)Coherence: Labour and Special Economic Zones in Laos’s Border Manufacturing’ () Antipode . David Delaney, ‘Home as Nomic Setting: Seeing How the Legal Happens’ () English Language Notes . For example, Ronald L. Akers, Norman S. Hayner and Werner Gruninger ‘Prisonization in Five Countries: Type of Prison and Inmate Characteristics’ () Criminology ; L. Thomas Winfree Jr., Greg Newbold and S. Houston Tubb III, ‘Prisoner Perspectives on Inmate Culture in New Mexico and New Zealand: A Descriptive Case Study’ () The Prison Journal . For example, Yunmei Wu and Benjamin van Rooij, ‘Compliance Dynamism: Capturing the Polynormative and Situational Nature of Business Responses to Law’ () Journal of Business Ethics . Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Abingdon: Routledge, ); Linda Mulcahy and Emma Rowden, The Democratic Courthouse: A Modern History of Design, Due Process and Dignity (Abingdon: Routledge, ). Irus Braverman et al., ‘Introduction: Expanding the Spaces of Law’ in Irus Braverman et al. (eds), The Expanding Spaces of Law: A Timely Legal Geography (Stanford, CA: Stanford University Press, ), p. . Lawrence Lessig, ‘The Zones of Cyberspace’ () Stanford Law Review ; Dan Hunter, ‘Cyberspace as Place and the Tragedy of the Digital Anticommons’ in Austin Sarat and Paul Schiff Berman (eds), Law and Society Approaches to Cyberspace (Abingdon: Routledge, ). Stig S. Gezelius and Maria Hauck, ‘Toward a Theory of Compliance in State-Regulated Livelihoods: A Comparative Study of Compliance Motivations in Developed and Developing World Fisheries’ () Law & Society Review . Akhil Gupta and James Ferguson, ‘Discipline and Practice: “The Field” as Site, Method, and Location in Anthropology’ in Akhil Gupta and James Ferguson (eds), Anthropological Locations: Boundaries and Grounds of a Field Science (Berkeley, CA: University of California Press, ); Matei Candea, ‘Arbitrary Locations: In Defence of the Bounded Field-site’ () Journal of the Royal Anthropological Institute .
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‘throws its legal shadow’ ahead to prospective member states which act in anticipation of a coming legal order. Legal spaces are also not necessarily static in time but have been shown to shift as geographic features themselves transform or the social meaning attached to boundaries changes. Therefore, in this view, research can, and arguably should, seek to test any assumption that spatial boundaries in fact do enclose a particular normative order or culture via the comparison of fieldsites on either side of the boundary. Or in other words, ‘the researcher should be attentive to epistemological and political issues of location’. Driven by studies of global legal pluralism, notions of discrete legal spaces have also more recently given way to much more complex, interactive, multi-level and polycentric conceptions of how law and norms may correspond with people and places. Within this much more complex conception of the world, the choice of fieldsites is far more multi-faceted and multilayered than the dilemma usually faced by traditional comparative lawyers in deciding which nation-states to compare. A comparative researcher taking a pre-set approach must decide which spaces to compare with each other, what levels of comparisons are to be conducted (e.g., macro, meso or micro or some combination of levels), whether and what sites within particular nation-states should be chosen, and importantly whether these spaces are to be taken for granted or their existence tested through the research. As an example, Locke et al. conducted fieldwork in ‘matched case studies’ of two electronics companies in Mexico and the Czech Republic that both supplied the multinational brand Hewlett-Packard and were subject to the same Code of Conduct. The researchers sought to investigate the interactions between the transnational private regulation of Hewlett-Packard, the state regulatory environments of Mexico and the Czech Republic, and the impacts of these on labour compliance. Here, the supplier companies were their defined fieldsites. In another
Franz von Benda-Beckmann and Keebet von Benda-Beckmann, ‘Places that Come and Go: A Legal Anthropological Perspective on the Temporalities of Space in Plural Legal Orders’ in Irus Braverman et al. (eds), The Expanding Spaces of Law: A Timely Legal Geography (Stanford, CA: Stanford University Press, ), p. . Ibid. Alexandre (Sandy) Kedar, ‘Expanding Legal Geographies: A Call for a Critical Comparative Approach’ in Irus Braverman et al. (eds), The Expanding Spaces of Law: A Timely Geography (Stanford, CA: Stanford University Press, ). Gupta and Ferguson, above n. , p. . See also Anne Griffiths’, above n. , review of Drummond () – lauding her ethnography for exploring what constitutes as local rather than treating it as a given: Susan G. Drummond, Mapping Marriage Law in Spanish Gitano Communities (Vancouver: UBC Press, ). Paul Schiff Berman (ed.), The Oxford Handbook of Global Legal Pluralism (Oxford: Oxford University Press, ). For example: James Ferguson and Akhil Gupta, ‘Spatializing States: Toward an Ethnography of Neoliberal Governmentality’ () American Ethnologist ; Julia Black, ‘Constructing and Contesting Legitimacy in Polycentric Regulatory Regimes’ () Regulation & Governance ; Elinor Ostrom, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems’ () The American Economic Review ; Sally Engle Merry, ‘International Law and Sociolegal Scholarship: Towards a Spatial Global Legal Pluralism’ in Michael A. Helfand (ed.), Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism (Cambridge: Cambridge University Press, ); Eve Darian-Smith, Laws and Societies in Global Contexts: Contemporary Approaches (Cambridge: Cambridge University Press, ). Siems, above n. , p. ; Esin Örücü, ‘Methodology of Comparative Law’ in Jan M. Smits (ed.), Elgar Encyclopedia of Comparative Law (Cheltenham: Edward Elgar, nd ed., ), p. . Banakar, above n. , p. . Richard M. Locke, Ben A. Rissing and Timea Pal, ‘Complements or Substitutes? Private Codes, State Regulation and the Enforcement of Labour Standards in Global Supply Chains’ () British Journal of Industrial Relations . We can contrast this research design with that proposed by Yoav Dotan, where comparison is similarly based on a multinational corporation (McDonald’s), but this design does not directly test the effects of a shared corporate code of conduct and lacks multi-level aspects: Yoav Dotan, ‘The Common Real-Life Reference Point Methodology – Or: ‘The McDonald’s Index for Comparative Administrative Law and Regulation’ in Peter Cane et al. (ed.), The Oxford Handbook of Comparative Administrative Law (Oxford: Oxford University Press, ).
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example, also concerned with the interactions between transnational private regulation and state legal contexts, Bartley studied the influence of private sustainable forestry and fair labour standards in authoritarian China and democratic Indonesia. Here, rather than focusing on highly particular fieldsites, Bartley took a middle-level analytical approach, ‘close enough to see how transnational rules are put into practice but still able to compare across fields and countries’. This meant interviewing a range of participants and observers as well as selecting some sub-issues to explore, such as sustainable forestry initiatives in East Kalimantan, a province of Indonesia. However, much more fluid approaches to research site selection are also possible, particularly that of ‘multi-sited ethnography’ which has grown in popularity in cultural anthropology in past decades. In this approach, ethnographers may employ multiple sites of observation and participation in order to examine cultural meanings and entities within the world system, eschewing the single bounded site of conventional ethnography. According to Marcus, multisited fieldwork is not merely a different kind of controlled comparison but rather allows a ‘fractured, discontinuous plane of movement and discovery’. The researcher may follow a person, thing, metaphor, story, allegory, life or conflict as they move through geographical and socially defined spaces. Such multi-sited fieldwork methods have been commonly adopted by scholars studying international law and transnational governance regimes. Multi-sited ethnographic research is not without its critics. Candea, for example, argues that in practice it still requires the selection of bounded fieldsites, and this selection, while it may indeed occur a posteriori, is hidden by discourses of the multi-sited imaginary. That is, a decision is still necessarily being made to cut what is studied from what is not studied at each site of data collection. An example which arguably illustrates Candea’s critique can be found in Merry’s study of human rights norms on gender violence. For this study, Merry conducted fieldwork to discover how these norms were constructed at the international level and then traced how they were translated or ‘remade in the vernacular’ in different localities. Merry labelled this work as being ‘multi-sited’ or ‘deterritorialised’. The international part of the research was conducted ‘in the world of UN conferences, transnational NGO activism, and
Tim Bartley, Rules without Rights? Land, Labor and Private Authority in a Global Economy (Oxford: Oxford University Press, ). Ibid, p. . For a discussion of other (non-anthropological) forms of interdisciplinary multi-sited fieldwork: see, Kathryn Henne, ‘Multi-Sited Fieldwork in Regulatory Studies’ in Peter Drahos (ed.) Regulatory Theory: Foundations and Applications (Canberra: ANU Press, ). George E. Marcus, ‘Ethnography in/of the World System: The Emergence of Multi-Sited Ethnography’ () Annual Review of Anthropology , . Marcus provides a number of examples from legal anthropology in relation to following conflicts. Indeed, a focus on ‘trouble cases’ as providing a window into the core of legal problems has been a conventional methodology in legal anthropology since about the mid-s. See: Mertz and Goodale, above n. , p. . See, for example, Sally Engle Merry, Human Rights & Gender Violence: Translating International Law into Local Justice (Chicago, IL: University of Chicago Press, ); Adelle Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labor Law (Ithaka, NY: Cornell University Press, ). See, for example, John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge: Cambridge University Press, ); Kathryn Henne, Testing for Athlete Citizenship: Regulating Doping and Sex in Sport (Rutgers University Press, ); Ingrid Landau, Rights, Risks and Rules: The Rise of Human Rights Due Diligence and Implications for Transnational Labour Governance (Ph.D. thesis, University of Melbourne, ). Candea, above n. . On a different line of critique of multi-sited fieldwork, Hage () has argued that multi-sited ethnography is simply not practically feasible because it is too exhausting to be socially involved at multiple sites: Ghassan Hage, ‘A Not so Multi-Sited Ethnography of a Not So Imagined Community’ () Anthropological Theory . Merry, above n. .
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academic, legal, and social service exchanges of ideas and practices’. Applying Candea’s critique, we would point out that each of these sites still involved the researcher’s decisions about what to include and exclude, for example the selection of particular rooms or caucuses to attend at UN conferences. The only possible solution to this problem, argues Candea, is to explicitly acknowledge that arbitrary fields are being created by the researcher. Cook and colleagues concur that arbitrary fieldsites must be created and explicitly owned, but that this process can be driven by the theoretical and comparative concerns of the research. That is, dividers can be drawn, and sampling or observations undertaken on either side, in order to test for similarities and differences. In other words, if we follow Cook and colleagues, we essentially come in a full circle back to more explicitly comparative-across-space approaches. A final point to make with respect to this discussion of space and comparison, following an observation made by Gupta and Ferguson, is that the academic ‘vocabulary of justification’ tends to require that fieldsite choices be cast solely in terms of the theoretical problems for which the site was especially suited to produce data. Researchers are not supposed to have other personal interests in the site selection. But this ignores practical realities – that sites are often chosen for prior familiarity, personal and scholarly interest, ease of access and so on. Indeed, the literature survey of existing comparative legal studies projects with fieldwork components conducted for this chapter indicates that a great many are unspecific as to why particular sites have been chosen. One notable example of this is Riles’ ethnography of ‘collateral’ as a legal technology of global private finance. Fieldwork was conducted in large financial institutions in Tokyo, Japan, but neither the choice of Japan as the country of study, nor the particular financial institutions selected, the bureaucrats and lawyers interviewed and for what reasons, is explained. Similarly, Hurst’s comparative study of legal regimes in China and Indonesia uses a complex ‘between-country’, ‘within-country’ and ‘across time’ comparative approach. While the choice of China and Indonesia is explained, the ‘within-country’ site selection is glossed over, arguably weakening the study’s conclusions. We can surmise, perhaps, that personal interests, practical considerations and/or the ethical imperative to conceal certain fieldsites to protect informants may have driven Riles’ and Hurst’s choices, but these factors are not acknowledged in their work. With respect to our Southeast Asia Project, as noted, we have as our starting point the comparison across the three selected countries. We have justified the selection of Indonesia, the Philippines and Vietnam along various dimensions: these are the three most populous states in Southeast Asia, but each has distinctly different legal histories and labour dispute systems. However, our choice of countries is also influenced by personal factors, as among us we have prior expertise, interest, local language capacity and contacts in each country. Our study of the effectiveness of the formal labour dispute resolution systems in each country is largely proceeding on a national basis by conducting interviews with judges, government administrators, lawyers, arbitrators/mediators, academics, trade union and employers’ association leaders and labour rights activists based on their professional expertise rather than their spatial location. Each
Merry, above n. , p. . Joanna Cook, James Laidlaw and Jonathan Mair, ‘What If There Is No Elephant? Towards a Conception of an Unsited Field’ in Mark-Anthony Falzon (ed.), Multi-Sited Ethnography: Theory, Praxis and Locality in Contemporary Research (London: Routledge, ). Gupta and Ferguson, above n. . Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (Chicago, IL: University of Chicago Press, ). Hurst, above n. .
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selection is influenced by both our theoretical aims and practicalities of access, and who will generously give us an hour or two of their time. As our data collection has progressed, we have collected evidence of intra-national diversity including the very real geographical impediments faced by disputants in the more remote areas. We are also collecting data on regional specificities – for example, courts that have developed their own cultures or special economic zones where zone leadership plays an important role in dispute processing. As we progress, we must necessarily choose which of these issues and areas to focus on to the exclusion of others. The literature discussed in this section has reinforced our commitment to explaining each of these choices clearly in our published work. E. CONTEXTS AND CONCEPTS IN COMPARATIVE LEGAL RESEARCH DESIGN
If comparativists already tend to be reticent about their spatial fieldsite choices, then the more granular explanation of their choices of comparator concepts and processes for dealing with contextual detail is even more frequently absent. That is, the process of assembling comparators is ‘deeply hidden in almost mystical processes’. This explanatory gap is likely to occur because of the sheer complexity involved, unresolved cognitive conflicts between ideals of perfectly abstracted ‘scientific’ research design and the realities of data collection, and the difficulties involved in clearly describing comparative analytical processes. Further, being explicit about choices of comparator concepts is not only a problem of scholarly appropriateness, but also requires self-awareness of the researcher’s cultural biases and the power dynamics inherent in translation. Complexity arises particularly for comparative research projects involving qualitative fieldwork where the aim is to collect rich contextual data and there is no end to what may seem relevant. As Cotterrell has pointed out, detailed descriptions of legal experiences in different contexts may encompass so many different variables that the comparison remains an unsystematic juxtaposition of accounts of differences. Resolving, or at least mitigating, this problem of non-comparability arising from contextual detail therefore requires the comparativist to find a means of reconciling the requirement for some degree of thematic unity across fieldsites with the societal specifics found at ground level. Additionally, issues of access and the unpredictability of the people being observed or interviewed will inevitably alter the course of data collection in different fieldsites − and each such contingency ‘has repercussions for the comparison’. In the remainder of this section, we consider how these issues of contexts and concepts are likely to play out in each of the three categories of comparative legal research design (as set out above in Section C) before then discussing our Southeast Asia Project.
Jörg Niewöhner, ‘Assembling Comparators – Assembling Reflexivities’ () Science as Culture , . Nelken, above n. , p. ; Mahy, above n. , p. . See also the debate in legal anthropology between Max Gluckman and Paul Bohannan in the s−s as to the appropriateness of using indigenous legal terms or foreign researchers’ imposed terms (explained in Mertz and Goodale, above n. , p. ). Marit Melhuus, ‘Issues of Relevance: Anthropology and the Challenges of Cross-Cultural Comparison’ in Andre Gingrich and Richard G. Fox (eds), Anthropology, by Comparison (London: Routledge, ), p. . Cotterrell, above n. , p. . Almond and Connolly, above n. , p. . Joe Deville, Michael Guggenheim and Zuzana Hrdličková, ‘Same, Same but Different: Provoking Relations, Assembling the Comparator’ in Joe Deville et al. (eds) Practising Comparison: Logics, Relations, Collaborations (Manchester: Mattering Press, ), p. . See also Robert A. Georges and Michael A. Jones, People Studying People: The Human Element in Fieldwork (Berkeley, CA: University of California Press, ), p. (on the many unplanned events and interactions that inevitably occur during fieldwork).
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In relation to ‘traditional comparative law’, where formal state law is the main focus of comparative inquiry and the scope for qualitative fieldwork is therefore quite limited, claims of comparability usually rest on functionalism (as discussed above in Section C ). There has been much critical discussion of the potential and limitations of functionalism as the means of enabling cross-cultural comparisons in law. Functionalism aims to avoid the trap of assuming that legal terminology will necessarily refer to the same thing across jurisdictions. Here, it is the selected social problem that is assumed to be the tertium comparationis or quality that the things being compared have in common. The legal rules which functionally relate to the problem in each place are then selected for comparison. Explanations for similarities and differences between the rules may be sought in the surrounding context, but the source of such contextual material is more likely to be secondary literature rather than primary fieldwork. As a consequence, any conclusions drawn may largely only be impressionistic, failing to establish causation between law and context. The design complexities are somewhat heightened in ‘socio-legal comparative law’ research projects. Here, formal state law is still the research focus but comparative lawyers may make forays into discovering how law relates to its surrounding context. Following the functionalist approach, a social problem may still provide the tertium comparationis here, but the difference, as compared with the ‘traditional comparative law’ approach, is that fieldwork might be used to discover the relevant context that explains the similarities and differences found between the legal rules examined. As various authors have argued, the functional approach is potentially problematic as it involves, initially, the artificial stripping of context in the selection of the social problem and its related rules, and then its reintroduction later in the analysis. How context and concepts are used appears quite under-theorised in the literature falling into this category. ‘Legal culture’ is often used loosely in conjunction with (or as an alternative for) context. A good example of a study that falls in this category is MacPherson’s comparative research on state recognition of indigenous water rights in four countries: Australia, Aotearoa/New Zealand, Colombia and Chile. Indigenous rights to use water was identified as the functional social problem at the heart of the comparison, with the selected countries representing different legal families and different approaches to water governance. This was both doctrinal and empirical research. MacPherson explicitly recognises the importance of social, cultural, political and historical contexts as a means of avoiding misinterpreting legal languages. However, she does not appear to explain her criteria for deciding what was and was not relevant context, or how usable comparative terminology for explaining this context was identified. In the third category, that of ‘comparative socio-legal studies’, the research design possibilities are again more varied given the many forms that qualitative fieldwork can take. And the issues relating to how concepts and contexts are handled is much more complex but also potentially more exploratory and fluid. Here, though, the problems associated with comparison are also better theorised compared with ‘socio-legal comparative law’ given the relatively elaborate discussions that have occurred on comparison in various social sciences. According to Fox
For example, Günther Frankenberg, ‘Critical Comparisons: Rethinking Comparative Law’ () Harvard International Law Journal ; Husa, above n. . See also discussion above in Section C . Frankenberg, above n. , p. ; Mahy, above n. , pp. −. Balázs Fekete, ‘Inconsistencies in the Use of Legal Culture in Comparative Legal Studies’ () Maastricht Journal of European and Comparative Law , . MacPherson, above n. . MacPherson, above n. , p. . For example, Richard G. Fox and Andre Gingrich (eds), Anthropology, by Comparison (London: Routledge, ); Joe Deville, Michael Guggenheim and Zuzana Hrdličková (eds), Practising Comparison: Logics, Relations,
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and Gingrich, ‘a rich plurality of qualitative comparative methodologies has emerged – none claiming exclusive rights, each offering its insights and evidence’. We can loosely divide these approaches into two categories: (i) isolating particular key variables to focus on from among the many possibilities and/or (ii) allowing for a more holistic interpretive approach based on ‘combination concepts’. While the first strategy of isolating key variables could be done a priori with a pre-set approach to the research design, this is likely to be efficient but ultimately deficient. This approach has been variously termed as a ‘scholastic comparison’ or ‘etic comparison’ with its predetermined dimensions set by the outsider researcher, and as ‘thin’ because it necessarily excludes empirical cultural specificities as being undesirable ‘noise’. Researchers using pre-determined variables are likely to need to draw on existing taxonomies (e.g., legal families, varieties of capitalism), and therefore ultimately this approach assumes the validity and comparability of the pre-set variables used. An alternative, and likely more satisfactory, strategy for isolating key variables is to use an iterative process for discovering and frequently refining ‘comparator concepts’ during the research process as fieldwork data emerges. That is, comparability is the result rather than the starting point of the research. This has been described as an ‘emic comparison’, which is conducted from an insider perspective and most likely achieved via ethnography. One way of iteratively discovering such comparator concepts is to use Weber’s ‘ideal types’. Ideal types are understood as being abstract hypothetical tools against which real-world empirical data can be analysed. To arrive at an ideal type, initial concepts are ‘confronted’ with empirical reality and if the differences are too large then the ideal type should be adjusted until a good ideal type is arrived at. Here, comparative empirical data may be used inductively to determine an ideal type, and afterwards may be compared deductively against the ideal type to enable analysis. Relatedly, but not precisely the same, iterative approaches may be used without any ideal type, but where a comparator concept or bridging term is sought – a term that is capable of capturing the social or legal phenomenon in each place. As an example of such an iterative approach, Sørensen argued that it is possible to employ multi-sited ethnography in such a way that tertia comparationis (in the plural) emerge from the research process. She describes studying the regulation of computer game content for the purposes of child protection. Sørensen began by conducting fieldwork on German regulatory approaches which then led to the re-examination of her own home system of Denmark. Then, through data collection, she was able to transform an initially non-comparative multi-sited study into a comparative one by finding and testing tertia comparationis or shared concepts that permitted comparison between the sites to occur.
Collaborations (Manchester: Mattering Press, ); Thomas Scheffer and Jörg Niewöhner (eds), Thick Comparison: Reviving the Ethnographic Aspiration (Leiden: Brill, ). Richard G. Fox and Andre Gingrich, ‘Introduction’ in Richard G. Fox and Andre Gingrich (eds), Anthropology, by Comparison (London: Routledge, ), p. . Estrid Sørensen, Alison Marlin and Jörg Niewöhner ‘From Scholastic to Emic Comparison: Generating Comparability and Handling Difference in Ethnographic Research’ in Uwe Flick (ed.), The SAGE Handbook of Qualitative Data Collection (Thousand Oaks, CA: SAGE Publications, ). Almond and Connolly, above n. , p. . Sørensen et al., above n. . Richard Swedburg, ‘How to Use Max Weber’s Ideal Type in Sociological Analysis’ () Journal of Classical Sociology , . See also mentions of Weber’s ideal type approach for comparative legal studies in Cotterrell, above n. , p. and in Riles, above n. , p. . Estrid Sørensen, ‘Multi-Sited Comparison of “Doing Regulation”’ () Comparative Sociology ; Estrid Sørensen et al., ‘Producing Multi-Sited Comparability’ in Thomas Scheffer and Jörg Niewöhner (eds), Thick Comparisons: Reviving an Ethnographic Aspiration (Leiden: Brill, ).
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One of Sørensen’s comparator concepts was ‘duality of regulation’, defined as the simultaneous restriction and promotion of the computer game industry. An alternative option to isolating individual variables or comparator concepts is to conduct a comparison using a broader ‘combination concept’. Such combination concepts in common use in comparative socio-legal studies include ‘legal culture’, ‘legal consciousness’ and ‘legalism’. ‘Legal culture’ has a multiplicity of inconsistent scholarly usages, but one understanding is to view it as being an aggregate or set of cultural patterns which can be ‘confronted with a different aggregate or patterning observed elsewhere’. While ‘legal culture’ has been used to provide causal explanations for cross-cultural differences in law and legal practices, alternatively ‘legal culture’ can also be something that requires explanation in itself. It is particularly the use of legal culture for causal explanations that has garnered a great deal of critique given the many subvariables at play. Indeed, some scholars have sought to sub-divide legal culture into more specifically defined aspects while still attempting to capture a more holistic view. ‘Legal consciousness’ is also a diffuse, multi-faceted notion sometimes concerned with individual subjective understandings and experiences of the law, while in other views it provides a critical window of understanding into the collective everyday experiences, and hegemonic power, of law. While there are certainly differences in how it is defined, we can view ‘legal consciousness’ as a combination concept, such as through the aggregation of notions of ‘worldview, perception, and decision’. The third combination concept mentioned here – ‘legalism’ – is perhaps more precisely defined than the other two. Used in history and anthropology to bridge state and non-state legal orders, ‘legalism’ has been defined as ‘the use of explicit rules and generalising categories’. While this definition appears quite narrow, in scholarly practice many other related aspects seem to necessarily come into play to make particular case studies contextually meaningful. Examinations of ‘legalism’ have various additional concerns including ‘critical reflective attitudes’, ‘the discussion of moral order’ and ‘how parties are entangled’, and ‘claims and theories about justice’. These types of ‘combination concepts’, for all the criticism that they may attract for their lack of specificity, through their very flexibility and multi-dimensional nature can enable interpretative comparative approaches to be built around them. Such approaches are less interested in extracting causal explanations and instead seek ‘thick’ or ‘deep’ comparisons of how certain laws and social
For example, Nelken, above n. . For example, Marina Kurkchiyan, ‘Perceptions of Law and Social Order: A Cross-National Comparison of Collective Legal Consciousness’ () Wisconsin International Law Journal ; W. E. Butler and P. T. Grier, ‘Legal Consciousness: Some Comparative Legal Aspects’ () Journal of Comparative Law . Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History (Oxford: Oxford University Press, ); Fernanda Pirie and Judith Scheele (eds), Legalism: Community and Justice (Oxford: Oxford University Press, ); Fernanda Pirie, ‘Comparison in the Anthropology and History of Law’ () The Journal of Comparative Law . Cotterrell, above n. , p. . David Nelken, ‘Comparative Legal Research and Legal Culture: Facts, Approaches and Values’ () Annual Review of Law & Social Science , . Cotterrell, above n. , p. . For example, Sally Engle Merry, ‘What Is Legal Culture? An Anthropological Perspective’ () Journal of Comparative Law ; van Hoeke and Warrington, above n. . Susan S. Silbey, ‘After Legal Consciousness’ () Annual Review of Law and Social Science . Lynette J. Chua and David M. Engel, ‘Legal Consciousness Reconsidered’ () Annual Review of Law and Social Science . Fernanda Pirie and Judith Scheele, ‘Justice, Community and Law’ in Fernanda Pirie and Judith Scheele (eds), Legalism: Community and Justice (Oxford: Oxford University Press, ), p. ; Fernanda Pirie, ‘Comparison in the Anthropology and History of Law’ () Journal of Comparative Law . Paul Dresch, ‘Legalism, Anthropology, and History: A View from Part of Anthropology’ in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History (Oxford: Oxford University Press, ). Pirie and Scheele, above n. .
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Qualitative Fieldwork
practices and contexts may be mutually constitutive. This may allow recognition of the interlocking nature of different spheres of social organisation. Rather than stabilising key variables, a thick comparison may aim to capture dynamic relations among social and legal elements; so again here comparability is a result rather than a starting point of the research. For example, Field’s holistic interpretative approach to understanding youth justice cultures in Wales and Italy was able to demonstrate the interdependencies of certain aspects of each of the two systems that prevented a conclusion that one was more lenient on youth offenders than the other. To reflect now on our Southeast Asia Project, we should begin by acknowledging that to obtain our grant funding we presented quite a pre-set research design, involving the three countries, a focus on collective labour disputes in the manufacturing sectors in major industrial centres, and an expectation that we would be able to label different forms of dispute regulation as being either formal (state) or informal (non-state). The reality has been rather more fluid and we are necessarily engaging in an ongoing, iterative, process of maintaining and searching for comparability as our team members have been conducting fieldwork in each country. Due to the exigencies of efficiency and expertise, only certain team members have been collecting data on each country. While keeping to our project’s overall research questions, each sub-team is tending to pursue particular threads based on their own interests and as directed by the specifics of the system being examined. Each is finding that access to particular groups of interviewees is different, and each interview itself is skewed in different directions by the interviewee and their individual experience and perspectives, as well as the identity of the interviewer(s). In this process, we are constructing detailed accounts of the labour dispute resolution systems in each of the three countries. Each system, of course, sits within surrounding institutional and cultural contexts, positing the problem of how to ultimately produce comparability. Team calibration activities through written accounts and regular group meetings (and sub-group meetings) have been significant to enable handling of on-the-ground findings and discussions of whether such material points us towards seeking similar information in the other countries. As an example of our search for individual comparator concepts, we are continuing to test the utility of the formal/informal regulation dichotomy against the possibility of adopting a broader spectrum of terms able to capture intermediate or blended forms of regulation. At this point we are still unsure as to whether we will eventually draw on, or arrive at, a combination concept such as ‘legal culture’, but it is certainly an option that we are exploring. F. THREE CATEGORIES OF COMPARATIVE LAW AND THE ROLE OF QUALITATIVE FIELDWORK
The writing of this chapter has been an exercise in reflexivity undertaken somewhere mid-way in the conduct and iterative development of a multi-year, qualitative fieldwork-based, comparative
David Nelken, ‘Comparative Legal Research and Legal Culture: Facts, Approaches and Values’ () Annual Review of Law & Social Science ; Stewart Field, ‘Explaining, Interpreting, and Prescribing: Some Tensions and Dilemmas in the Comparative Analysis of Youth Justice Cultures’ () Journal of Law and Society S; Almond and Connolly, above n. ; Jörg Niewöhner and Thomas Scheffer, ‘Thickening Comparison: On the Multiple Facets of Comparability’ in Thomas Scheffer and Jörg Niewöhner (eds), Thick Comparison: Reviving the Ethnographic Aspiration (Leiden: Brill, ). Almond and Connolly, above n. , p. . Thomas Scheffer, ‘Comparability on Shifting Grounds: How Legal Ethnography Differs from Comparative Law’ in Thomas Scheffer et al. (eds), Thick Comparison: Reviving the Ethnographic Aspiration (Leiden: Brill, ). Field, above n. . Deville et al., above n. , p. .
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legal research project. The ‘slow’ approach to the fieldwork for our Southeast Asia Project has allowed us to develop further an initially fairly fixed research design, that was written to obtain funding, into a more flexible, and arguably more robust, comparative approach. This has been an iterative process of confrontation between our initial design and theory-building aims, with the practicalities of conducting fieldwork and the specific findings from different fieldsites. This has involved consideration of local fieldsite selection and our approach to conceptual comparability as we collect and analyse a large amount of empirical data. Here, in this chapter, it has also involved assessing our approach against a broad set of methodological literature from comparative law and social science disciplines. This has also been an exercise in methodological transparency as we practice articulating the decision-making processes involved in our project. Such transparency is aimed at improving our own comparative approach, but also at suggesting ways in which other researchers may orient their own research designs. We began this chapter by noting the relative rarity of qualitative fieldwork-based comparative legal research due to the practical and theoretical difficulties involved in designing and executing such research. We have certainly not resolved these difficulties here, but we have discussed them in relation to three heuristic sub-disciplinary categories of ‘traditional comparative law’, ‘socio-legal comparative law’ and ‘comparative socio-legal studies’. Research designs may not necessarily fit within these categories – ours does not, and in adopting additional flexibility in our research design, our project has shifted further along the continuum between ‘socio-legal comparative law’ and ‘comparative socio-legal studies’. However, we find these categories useful for situating and articulating the range of possibilities for incorporating or basing comparative legal research on qualitative fieldwork. These categories help to explain the choices that need to be made in relation to the definition and selection of fieldsites as well as the means of dealing with rich empirical data on context and the development of comparator concepts to enable meaningful analysis. Key choices relevant to all of these themes are whether to adopt pre-set or fixed approaches rather than flexible and iterative decision-making, or otherwise to adopt some combination of the two. We have found that some degree of flexibility and dynamism is necessary to encompass the inevitable messiness of researching the complex social world, where each ‘people researching people’ event or circumstance necessarily leads to contingencies and challenges to comparability. Perhaps the only way out of this morass of complex choices is tolerance or even the encouragement of a degree of idiosyncrasy in research design, and acceptance that there is no clear end point where all issues or problems of comparability have been resolved. The observation that much comparative legal research fails to make its methodology explicit holds true for many of the studies examined in this chapter. We add our voices to the case for providing clear explanations of comparative and fieldwork methodology, and the important implicit choices that must be made including the various pragmatic and personal factors that are likely to arise. We should accept that fieldsite selection and other aspects of fieldwork and comparability cannot be free of personal values and practicalities, and promote the inclusion of ‘confessional accounts’ of both pragmatics/practicalities and researchers’ subjective reflexivity in research publications.
Almond and Connolly, above n. , p. . Koen Lemmens, ‘Comparative Law as an Act of Modesty: A Pragmatic and Realistic Approach to Comparative Legal Scholarship’ in Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (Cambridge: Cambridge University Press, ).
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New Institutional Economics Olive Sabiiti*
This chapter explains how New Institutional Economics (NIE) presents an innovative, interdisciplinary approach for topics of comparative law. It discusses the core principles of NIE and how they relate to the principles of comparative law. New Institutional Economics is a natural partner to comparative law and is especially useful in the study of law in context. The chapter discusses the contribution that the combined approach of NIE and comparative law brings to the scholarship of law. NIE provides ‘institutions’ as an easily understandable tertium comparationis. The chapter concludes with a call to add NIE to the comparative law methodological toolbox as a strategy to develop a sound analytical framework through which to better understand and more aptly rationalise the divergences and convergences observed in the laws of different countries.
A. INTRODUCTION
New Institutional Economics (NIE) is concerned with how institutions influence behaviour by modifying the choice set and how institutions change over time. It has existed as a speciality within economics since , when Oliver Williamson introduced the term ‘new institutional economics’. NIE arose in response to the alleged ‘blackboard’ economics of neoclassical economics, the mainstream, most prominent and dominant tradition of economic thought. Neoclassical economics is an offshoot of classical economics associated with the work of Adam Smith and John Stuart Mill. Indeed, it has gradually replaced the latter over the last seventy years. It is ‘classical’, as it is based on the idea that free markets or perfect competition result in efficient resource allocation which regulates economic activities and establishes * Cavendish University Uganda. All websites cited in this chapter were last accessed on December . O. E. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (New York, The Free Press, ). Ibid. at pp. , . R. H. Coase, ‘The New Institutional Economics’ () Journal of International and Theoretical Economics . G. M. Hodgson, ‘The Reconstruction of Economics: Is There Still a Place for Neoclassical Theory?’ () Journal of Economic Issues ; A. C. Finlayson et al., ‘The Invisible Hand: Neoclassical Economics and the Ordering of Society’ () Critical Sociology . D. Colander, ‘How Economists Got It Wrong: A Nuanced Account’ () Critical Review at .
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Olive Sabiiti
equilibrium through market forces of demand and supply or through the self-regulating individual ambition of market players – which Adam Smith called the ‘invisible hand’. The ‘neo’ is due to the significant departure in its methodological approach – shifting from the classical viewpoint, which focuses on economic production and the factors influencing it, to a formal and analytic approach that places great emphasis on individual choices and the maximisation of utility through the adoption of mathematical techniques for economic analysis. The focus on individual preferences and decision-making, the marginalist revolution, the utilitarian theory of value and the successful penetration of mathematical formalism into neoclassical economics all paved the way for a break from classical economics. Neoclassical economics, with its price theory, disregards the friction inherent in making an economy ‘work’. For example, it assumes away transaction costs and overlooks the political aspects of the economic world. Richard Posner explained that, in order to facilitate mathematical formulation and exposition, neoclassical price theory routinely adopts what appears to be, and often are, from both a physical and psychological standpoint, highly unrealistic assumptions: that individuals and firms are rational maximisers, that information is costless, that demand curves facing firms are infinitely elastic, that inputs and outputs are infinitely divisible, that cost and revenue schedules are mathematically regular, and so forth.
Some economists tried to modify the model to make it more useful for understanding the real world, hence NIE. NIE does not reject neoclassical price theory but rather recognises that the neoclassical model suffices for many purposes, and retains the model as part of its search for a better understanding of the problems that the unaltered model gives rise to. NIE relaxes the assumptions of neoclassical price theory by augmenting the model in several different ways, distinguishing it from the old institutional economics proposed by scholars such as Thorstein Veblen, John R. Commons, John Kenneth Galbraith, and Willard Hurst who affirmatively rejected economic theory. Ronald Coase posited that the original institutionalists were ‘anti-theoretical, particularly where classical economic theory was concerned. Without a theory they had nothing to pass on except a mass of descriptive material waiting for a theory, or a fire’. In order to distance themselves from the original institutionalists, the new economic institutionalists embrace the adjective ‘new’ in the description of their field. The appropriate definition of institutions is far from settled but many authors adopt some variant of North’s definition that institutions are the rules of the game in a society or, more
A. O’Sullivan and S. M. Sheffrin, Economics: Principles in Action (New Jersey: Pearson Publishing Ltd, ); Finlayson et al., above n. . J. Amariglio and D. F. Ruccio, ‘Modern Economics: The Case of the Disappearing Body’ () Cambridge Journal of Economics . Ibid., and D. L. Kjosavic, ‘Methodological Individualism and Rational Choice in Neoclassical Economics: A Review of Institutionalist Critique’ () Forum for Development Studies . D. C. North, ‘Institutions’ in Institutional Change and Economic Performance (Cambridge: Cambridge University Press, ), p. . R. A. Posner, Overcoming Law (Cambridge, MA: Harvard University Press, ), p. . J. N. Drobak, ‘Introduction: Law & The New Institutional Economics’ () Washington University Journal of Law and Policy . Ibid., at . Posner, above n. , p. . Coase, above n. , p. . C. Kingston and G. Caballero, ‘Comparing Theories of Institutional Change’ () Journal of Institutional Economics .
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New Institutional Economics
formally, that they are humanly devised constraints that shape human interaction. As a consequence, they structure incentives in human exchange – whether political, social, or economic. Institutions comprise formal rules such as laws and constitutions, informal constraints such as unwritten conventions, norms of behaviour and self-imposed codes of conduct, as well as their enforcement mechanisms. Acemoglu and Robinson define institutions as ‘the rules influencing how the economy works’, while Ostrom defines institutions as the working rules applying to the agents making decisions relating to a common property resource and the payoff to the individuals dependent on their actions. Institutions have also been defined as ‘regularities in repetitive interactions among individuals’. They provide a framework ‘within which people have some confidence as to how outcomes will be determined’. Organisations are groups of individuals bound together by a common objective function (economic organisations are firms, trade unions, cooperatives; political organisations are political parties, legislative bodies, etc.). The term ‘institutions’ is sometimes used to refer to both ‘the rules of the game’ as well as ‘the teams playing the game’, namely organisations. In this chapter, we shall follow North and use the term in the first sense to refer to rules and not to organisations. I propose adding NIE to the comparative law methodological toolbox, because it enables subtle legal-economic analysis that is grounded in social reality. Combining NIE and comparative law offers an innovative, interdisciplinary methodology that is able to overcome the shortcomings of each of the disciplines taken separately and inject the field with new analytical power. There seems to be a consensus that although comparative law has made great strides in accumulating vast amounts of valuable knowledge, it has not developed into a coherent and intellectually convincing discipline. The functional method of comparative law has long been criticised for its failure to accurately account for the richness of legal reality. Its focus on black letter rules and total disregard for other factors such as culture and politics remains a major criticism. Yet, ‘if comparative law ignores the significance of cultural diversity and difference, it can only approach the matter in a bookish or technical fashion’. In fact, deliberations on the inadequacy of the method remain central to almost every comparative law debate.
North, above n. , p. . D. C. North, ‘Institutional Change: A Framework for Analysis’ in S. Sjostrand (ed.), ‘Institutional Change: Theory and Empirical Findings (Armonk, NY: M.E. Sharpe, ), p. . D. Acemoglu and J. Robinson, Why Nations Fail: The Origins of Power, Prosperity and Poverty (London: Profile Books, ), p. . E. Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, ). D. North, ‘The New Institutional Economics’ () Journal of Institutional and Theoretical Economics at . A. Angelsen, The Evolution of Private Property Rights in Traditional Agriculture: Theories and a Study from Indonesia (Bergen: CHR. Michelsen Institute, ), p. . North, above n. , p. . North, above n. , p. . North makes what he considers ‘a crucial distinction’ between organisations (such as firms, universities or political parties) and institutions. For the purpose of analysing overall societal change, he impliedly treats organisations as entities within which collective action and agency problems have been solved, so that he can abstract away from their internal governance and decision-making processes, and treat them as unitary actors. Therefore, for North, organisations are ‘players’ of the game and as they pursue their objectives, they act as agents of institutional change. M. Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’ () American Journal of Comparative Law at . M. Graziadei, ‘Comparative Law, Transplants, and Receptions’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. .
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Olive Sabiiti
The growing methodological debate has not yielded consensus. There is a failure to recognise comparative law’s possible wider reach. Comparative law is not merely about highlighting similarities between legal systems as interesting and pointing to differences between legal systems; it also presents an opportunity to adopt different viewpoints and tools for enriching mainstream law and economics scholarship. ‘Comparative’ thus takes on the broader meaning of crossing not only geographical or cultural boundaries, but also methodological ones. Comparative law is therefore still in need of stronger methodological foundations. Extending the boundaries of both the research subject matter and the methodological approaches can enrich the core of the discipline. The field of comparative law needs to expand its methodology to engage in deeper and more critical comparison. The functional method may only provide a relatively surface-level understanding of differences and similarities, hence the need for a deeper analysis of the respective laws as well as deeper forms of comparison. A more openly critical approach would also be needed given the belief that the traditional method leads to flawed results, for example, when it overlooks how cognitive biases and preconceptions influence our understanding of foreign legal systems. This chapter discusses NIE as a useful addition to the comparative law methodological toolbox. I argue that a sound combination of the functional comparative method and NIE can help to make the complexity of different legal systems conceptually more manageable. The arguments will flow as follows. First, I shall explain the meaning of NIE. Second, I shall centre on the aspirations of comparative law through NIE. Third, I shall explore the theory of property rights as a tool that may be used in comparative law and NIE research. Finally, I shall draw some conclusions – including a call to add NIE to the comparative law methodological toolbox as a strategy for a sound analytical framework through which to better understand and more aptly rationalise the divergences and convergences observed in the laws of different countries. B. THE MEANING OF NEW INSTITUTIONAL ECONOMICS (NIE)
. Core Principles and Authors NIE has been referred to as ‘an ambiguous term’ and there is no consensus on its precise components. There are several alternative theories of NIE, with transaction cost economics, agency theory, property rights theory, and a mix of resource-based and evolutionary perspectives as the leading approaches. However, nearly all attempts to define the field recognise three constituent strands of literature that address three core sets of problems: transaction costs,
R. Michaels, ‘Comparative Law’ in J. Basedow, K. J. Hopt and R. Zimmermann (eds), Max Planck Encyclopaedia of European Private Law (Oxford: Oxford University Press, ), p. . G. B. Ramello, ‘The Past, Present and Future of Comparative Law and Economics’ in Theodore Eisenberg and Giovanni B. Ramello (eds), Comparative Law and Economics (Cheltenham: Edward Elgar, ), pp. –. R. Michaels, ‘The Second Wave of Comparative Law and Economics?’ () University of Toronto Law Journal at , . M. Siems, ‘New Directions in Comparative Law’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. . M. Van Hoecke, ‘Deep Level Comparative Law’ in M. Van Hoecke (ed.), Epistemology and Methodology of Comparative Law (Oxford: Hart Publishing, ), p. . J. N. Drobak and J. V. C. Nye, ‘Introduction’ in J. N. Drobak and J. V. C. Nye (eds), The Frontiers of the New Institutional Economics (San Diego: Academic Press, ), p. xv.
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New Institutional Economics
principal-agent problems, and collective action dilemmas, with information costs and opportunism as common concerns when theorising about these relationships. NIE is concerned with the way institutions influence behaviour by modifying the choice set, and how institutions change over time. NIE places institutions into focus and endogenises them, hence the statement ‘institutions matter’. Institutions are therefore the framework within which human interaction takes place. The function of institutions is to reduce uncertainty in human interaction by providing structure to everyday life. This is made possible by the stability of the institutional framework which is ‘accomplished by a complex set of constraints that include formal rules nested in a hierarchy, where each level is more costly to change than the previous one’. The hierarchical structure, descends ‘from constitutions, to statute and common laws, to specific by-laws, and finally to individual contracts’. The lower the level of rules in this hierarchy, the less general and therefore easier to modify they are, and vice versa. The constraint set also includes informal constraints which are probably the most important source of stability in human interaction. They possess tenacious survival ability, because they become an integral part of habitual behaviour. Law in its various forms (constitutions, statutes, common law, contract terms, etc.) is the most important and prevalent type of formal institution, so the focus on institutions is often a focus on the law. To many new institutionalists legal issues are at the core of their scholarship. According to North, the ‘theory of institutions is constructed from a theory of human behaviour combined with a theory of the costs of transacting’. The rational choice framework for the study of human behaviour is maintained from neoclassical economics. NIE is essentially another extension of the more than a century old neoclassical research agenda, and in many ways may also be said to be a return to the political-economy origin of modern economics. New institutional economists recognise the value of neoclassical price theory in explaining many real-world markets, but they are willing to relax core neoclassical assumptions about perfect information and rationality and, thus, perfect markets. They tend to modify the model variously. NIE recognises the potential benefits of institutions for overcoming the consequences of imperfect information and bounded rationality. Whereas conventional neoclassical economic theory assumes costless exchange and perfect information, NIE adds the concept of transaction costs in order to clarify and explain institutions and their change. ‘“Transaction costs” are charges
T. Eggertsson, Economic Behaviour and Institutions (Cambridge: Cambridge University Press, ), pp. –. North, above n. , p. . Ibid., p. . Ibid., p. . Ibid., p. . Ibid., p. . D. C. North, ‘Institutions and Economic Growth: An Historical Introduction’ () World Development . North, above n. , p. . Angelsen, above n. , p. . T. Lawson-Remer, Essays on Economic Development, Property Rights, and Natural Resource Governance (New York: New York University Press, ), p. . Drobak, above n. , p. . For more comprehensive descriptions of the wide scope of new institutional economics, see Drobak and Nye, above n. , pp. xv–xx; R. Richter, ‘The New Institutional Economics: Its Start, its Meaning, its Prospects’ () European Business Organisation Law Review . Two excellent sources for the concepts and scholarship in NIE are E. Furubotn and R. Richter, Institutions and Economic Theory: The Contribution of The New Institutional Economics (Ann Arbor, MI: University of Michigan Press, ); C. Ménard (ed.), The International Library of The New Institutional Economics (Cheltenham: Edward Elgar, ). North, above n. , pp. –. North, above n. .
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Olive Sabiiti
imposed on contracting parties by the process of exchange itself such as imperfect information and enforcement costs to prevent opportunistic behaviour.’ They are the costs involved in ‘addressing bounded rationality and potential opportunistic behaviour’. NIE also elaborates on assumptions of utility maximisation by bringing in strategic calculations from game theory; individuals are not just self-regarding, but opportunistic or ‘self-interest seeking with guile’. Institutions such as property rights significantly reduce transaction costs, and are therefore an imperative for efficient transactions. NIE also assumes that individuals have incomplete information and limited mental capacity and therefore face uncertainty about unforeseen events and outcomes and incur transaction costs to acquire information. To reduce risk and transaction costs, humans create institutions, writing and enforcing constitutions, laws, contracts and regulations (formal institutions), and structuring and inculcating norms of conduct, beliefs and habits of thought and behaviour – or informal institutions. For new institutional economists, the performance of a market economy depends upon the formal and informal institutions and modes of organisation that facilitate private transactions and cooperative behaviour. A key source of influence for NIE was Coase’s contributions to the theory of the firm and externalities. Coase highlighted the role of contracts and transaction costs in the vertical boundaries of the firm and later examined how the problem of externalities can be solved through bargaining without any government intervention provided the transaction costs are zero. Oliver Williamson considered factors affecting transaction costs such as hold-up and asset specificity. The contributions of Coase and Williamson focused on the role of transaction costs, property rights and incomplete contracts. Williamson was keen to develop a broader theory framework for analysing institutions. He therefore proposed a framework comprising four levels of social analysis, with each level being characterised by how quickly change was expected to occur in the various economic phenomena (norms, contracts and incentives). An important feature of this framework is the interactions between the phenomena across different levels. Williamson also pointed out that much of the work from the NIE relates to level two, covering formal rules of the game (institutions), and level three governance, in the framework. Douglass North has been central to the revival of economists’ interest in institutions. His contribution has been to elevate the analysis of institutions to a more macro-level – linking institutions to economic growth and development by focusing on the determinants of institutions – why institutions emerge, prevail and change in societies. This has led to at least two important dimensions in the analysis of institutions, namely the role of politics and, perhaps even more fundamentally, informal constraints such as norms and belief systems that are shaped
Lawson-Remer, above n. , p. . O. Williamson, The Mechanisms of Governance (New York: Oxford University Press, ), p. . Ibid. Lawson-Remer, above n. , p. . R. H. Coase, ‘The Nature of the Firm’ () Economics . R. H. Coase, ‘The Problem of Social Cost’ () Journal of Law and Economics . C. Ménard and M. Shirley, ‘The Future of New Institutional Economics: From Early Intuitions to a New Paradigm?’ () Journal of Institutional Economics . O. Williamson, ‘The New Institutional Economics: Taking Stock, Looking Ahead’ () Journal of Economic Literature . Ibid. Ibid. North, above n. .
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New Institutional Economics
by cognitive factors. North et al. put forward a macro-level framework to analyse the long-term change in human societies. The theory of institutional change advanced by North seeks to explain ‘how the past influences the present and the future, the way incremental institutional change affects the choice set at a moment in time, and the nature of path dependence’. One of the central puzzles that drives North’s analysis is the dramatic divergence in economic performance and development between different countries in the world. North empirically demonstrates that inefficient institutions prosper, and deviation between developing and developed countries in efficiency terms even increases. North explains the puzzle by highlighting the constraining force of institutions and their propensity to persist over time. Nations may follow a particular institutional path, not because it is efficient but because change is costly. Institutions tend to produce incentives for creating organisations, which then depend on the institutional framework and contribute to the latter’s stability (institutional symbiosis). Arrow observes that NIE consists of answering new questions as to why economic institutions emerged the way they did and not otherwise. North asserts that NIE aims to understand change by understanding human incentives and intentions and the beliefs, norms and rules that they create in pursuit of their goals. Answering new questions requires institutionalists to devise new methodologies. . The Role of Informal Institutions in Particular It is increasingly being recognised that formal institutions alone do not shape human behaviour, but that much of what goes on can also be explained by informal institutions. The notion that overall institutional quality depends on formal and informal institutions may be traced back to the writing of John Stuart Mill in . He observed that, ‘much of the security of person and property in modern nations is the effect of manners and opinion [. . . and of] the fear of exposure rather [than] the direct operation of the law and the courts of justice’. Indeed, informal rules have long been of interest and many scholars draw a distinction between formal and informal institutions. Some even argue that informal institutions may be the more important of the two, as a source of stability in human interaction. In North’s works, equal importance is attached to both informal and formal institutions. He says that, ‘formal rules [. . .] make up a small (although very important) part of the sum of constraints that shape choices; [. . .] the governing structure is overwhelmingly defined by codes of conduct, norms of behaviour and
D. North, J. Wallis and B. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Cambridge University Press, ). North, above n. , p. . J. K. Arrow, ‘Reflections on the Essays’ in G. Feiwel (ed.), Arrow and the Foundations of the Theory of Economic Policy, (New York: New York University Press, ), p. at p. . North, above n. , p. . Ibid., p. ; I. de Soysa and J. Jütting, ‘Informal Institutions and Development: Think Local, Act Global?’ (OECD Development Centre and Development Assistance Committee – Network on Governance, , see https://instruct .uwo.ca/economics/b-/Institutions_worldbank.pdf), p. . J. S. Mill, Principles of Political Economy (London: John W. Parker, ), pp. –. S. Knowles and C. Weatherston, ‘Informal Institutions and Cross- Country Income Differences’ in CREDIT Research Paper (University of Nottingham: Centre for Research in Economic Development and International Trade, University of Nottingham, see https://core.ac.uk/download/pdf/.pdf), p. . M. Rauf, ‘Innovations and Informal Institutions: An Institutionalist Approach to the role of Social Capital for Innovation’ (Development Research Institute, Tilburg University, see www.jare-sh.com/volume-issue/innovations .pdf), p. .
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Olive Sabiiti
conventions’. North posits that people in the Western world tend to think of life as being ordered by formal rules, when in fact their actions are guided to a greater extent by informal constraints. Yet, these informal institutions, although important, are an ‘underdeveloped part of the story’. They are often taken as exogenous and excluded from the analysis. Consequently, they have not been rigorously conceptualised and are rarely theorised into mainstream studies of institutions which largely focus on formal institutions. The term ‘informal institutions’ has been applied broadly and diversely in the literature to include culture, corruption, personal networks and a wide range of legislative, judicial and bureaucratic norms – thus creating serious conceptual ambiguity. It is therefore essential to elaborate a more precise definition of informal institutions. I try to explain the meaning of the term ‘informal institution’ from a conceptual perspective and explore some of the practical challenges inherent in research on informal institutions, including issues of identification, measurement and comparison. Conventionally, informal institutions tend to lack official recognition and protection. In some cases, informal property rights may be illegal, that is, held in direct violation of the law. For example, squatters may occupy a parcel of land in contravention of an eviction notice or where there is unlawful conversion of agricultural land to commercial purposes. In other cases, informal institutions may be ‘extra-legal’ or non-legal, that is, not contrary to the law, but not recognised by the law. Customary land tenure among rural indigenous communities in some countries may be classified as such. Another approach views informal rules as implicit in that they are usually unwritten and emerge, and are enforced, outside the scope of government. North refers to informal institutions as ‘typically unwritten codes of conduct that underlie and supplement formal rules’. Yet, some other authors employ a state-societal distinction, based on a governmental or nongovernmental dichotomisation of institutions. According to this view, informal institutions of society are ‘traditions, customs, personalised trust, strong social ties, affective commitment, relational contract, clan control, religious beliefs, moral values, culture and norms’. Still others categorise informal institutions as self-enforcing. They understand informal institutions as ‘non-legal rules or obligations that influence individual decisions despite the lack of formal legal sanctions’. They rely on social norms, which are often framed as codes of behaviour, to enforce rules and are thus said to be enforced endogenously by the members of a particular community. Their enforcement characteristics are ‘self-enforcement mechanisms
North, above n. , p. . Ibid. Williamson, above n. , at . S. Estrin and M. Prevezer, ‘The Role of Informal Institutions in Corporate Governance: Brazil, Russia, India and China Compared’ () Asia Pacific Journal of Management ; B. Seyoum, ‘Informal Institutions and Foreign Direct Investment’ () Journal of Economic Issues . G. Helmke and S. Levitsky, ‘Informal Institutions and Comparative Politics: A Research Agenda’ () Perspectives on Politics at ; Seyoum, above n. , at . FAO, ‘Land Tenure and Rural Development’ in FAO Land Tenure Studies Food and Agriculture Organisation of The United Nations FAO, , see www.fao.org//ye/ye.htm, p. . Ibid. Estrin and Prevezer, above n. , at . North, above n. , p. . S. P. K. Kugonza, Influence of Formal and Informal Institutions on outsourcing Public Construction Projects in Uganda (Ph.D. thesis, University of Birmingham, ), p. . A. E. Carlson, ‘Recycling Norms’ () California Law Review . C. Kingston and G. Caballero, ‘Comparing Theories of Institutional Change’ () Journal of Institutional Economics at .
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New Institutional Economics
of obligation, expectations of reciprocity, internalised norm adherence (standard operating procedures) . . . boycotting, shaming, threats and the use of violence’. The self- enforcement mechanisms may include sanctions such as alienation from the community, loss of reputation, ostracism (shunning) by family and community members, verbal disapproval and opprobrium, or negative gossip. Still another strand in the literature posits that the major difference between informal and formal institutions is that the informal rules develop spontaneously, while the formal constraints are centrally designed and enforced. Informal institutions therefore remain in the private sphere and are not part of a government-decreed and-enforced legal system. Thus, we have at least five definitional categories, not one. This is not surprising given North’s insightful observation that informal institutions ‘defy, for the most part, neat specification’. Nevertheless, each conceptualisation above fails to cover important informal institutions. For instance, although informality takes place beyond the confines of the law, the informal is not necessarily against or in violation of the law. Informal institutions do not necessarily refer to illegality. Although the self-enforcing definition of informal institutions is analytically useful, it has been discounted by some scholars. It does not recognise that informal rules may be externally enforced, for instance by clan and mafia bosses. Darden gives examples of state enforcement of informal arrangements where organised or institutionalised corruption is used as ‘. . . a means through which state leaders buy compliance from subordinate officials – i.e. an informal contract – and also provides the basis for control through systematic blackmail and the threat of selective enforcement of the law’. The self-enforcement definition of informal institutions also does not allow for the possibility of informal third-party enforcement, for example, where people seek the intervention of elders or respected personalities to help them resolve landrelated conflicts. Thus, the nature and location of the enforcement criterion is not entirely conclusive in distinguishing between formal and informal institutions. The limitations of the above definitional approaches can be overcome if we follow Helmke and Levitsky and define informal institutions as: ‘socially shared rules [and norms], [that shape human behaviour], usually unwritten [and therefore inaccessible through written documents] that are created, communicated, and enforced outside of officially sanctioned channels’. Norms are defined in much of the literature as informal, non-legal obligations. Informal institutions are widely accepted as legitimate even though they are usually uncodified. Informal institutions ‘have never been consciously designed’ but are still ‘in everyone’s interest to
Johannes Jutting et al. (eds), Informal Institutions: How do Social Norms Help or Hinder Development? (Paris: Development Centre of the Organisation for Economic Co-operation and Development OECD, ), p. . S. Pejovich, ‘The Uneven Results of Institutional Changes in Central and Eastern Europe: The Role of Culture’ () Social Philosophy and Policy . G. Hodgson, ‘What Are Institutions?’ () Journal of Economic Issues at . C. R. Williamson and C. B. Kerekes, ‘Informal Institutions Rule: Institutional Arrangements and Economic Performance’ () Public Choice at . North, above n. , p. . E. Panaritis, Prosperity Unbound: Building Property Markets with Trust (London: Palgrave Macmillan, ), p. . Helmke and Levitsky, above n. , p. . K. Darden, ‘Graft and Governance: Corruption as Informal Mechanism of State Control’ Department of Political Science, Yale University, , see www.files.ethz.ch/isn//-.pdf, p. . Helmke and Levitsky, above n. . R. H. McAdams, ‘The Origin, Development, and Regulation of Norms’ () Michigan Law Review . R. Sugden, The Economics of Rights, Co-operation, and Welfare (Oxford: Basil Blackwell, ), p. .
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keep’. They are rules in use rather than just rules on the books, or what Ostrom terms ‘rules in force’. While formal institutions define the ‘blueprint for behaviour’, informal institutions define the actual behaviour of players. Informal institutions are rules based on implicit understandings and exist in the shared subjective knowledge of a society. Informal institutions are upheld by mutual agreement, or by relations of power or authority, and rules are thus enforced endogenously. The enforcement of informal rules may be by means of sanctions such as expulsion from the community, ostracism by friends and neighbours or loss of reputation. Informal rules may also be understood as ‘extensions, elaborations, and modifications of formal rules, [outside the official framework]; socially sanctioned norms of behaviour, [attitudes, customs, taboos, conventions and traditions]; and internally enforced standards of conduct’. Such informal institutions might include the private mechanisms that exist to secure property, such as agreements about defining plot boundaries, maybe by using physical landmarks and living human witnesses, by having those agreements drawn and witnessed by lawyers or local administrative officers, identifying and enforcing individuals’ claims, and protecting the community from the threat of eviction by the government. De facto property rights may also include subdivisions of registered land not reflected in the register. The recognition of informal institutions is usually limited to the members of the community or region within which they emerge. Informal institutions guide the members’ everyday interactions and shape their way of life. Further examples may include land rights that are not properly licensed or registered and may also refer to land that is bought, sold, owned or leased without registering the transaction. . Specifically: Informal Institutions versus Culture, Informal Organisations and Other Behavioural Regularities Some scholars equate informal institutions with cultural traditions. Pejovich defines informal institutions as: ‘traditions, customs, moral values, religious beliefs, and all other norms of behaviour that have passed the test of time. Informal rules are often called the old ethos, the hand of the past, or the carriers of history . . . Thus, informal institutions are the part of a community’s heritage that we call culture’. North also argues that informal institutions ‘are a
Ibid. E. Ostrom, Understanding Institutional Diversity (Princeton, NJ: Princeton University Press, ). W. R. Scott, Organisations: Rational, Natural, and Open Systems (Englewood Cliffs, NJ: Prentice Hall, ), p. . T. R. Zenger, G. Lazzarini and L. Poppo, ‘Informal and Formal Organisation in New Institutional Economics’ in P. Ingram and B. S. Silverman (eds), The New Institutionalism in Strategic Management (Bingley: Emerald, ), p. . A. N. Licht and J. I. Siegel, ‘The Social Dimensions of Entrepreneurship’ in M. Casson et al. (eds), The Oxford Handbook of Entrepreneurship (Oxford: Oxford University Press, ), p. . M. Leach, R. Mearns and I. Scoones, ‘Environmental Entitlements: A Framework for Understanding the Institutional Dynamics of Environmental Change’ (Brighton: Institute of Development Studies IDS, ), see www.ids.ac.uk/publications/environmental-entitlements-a-framework-for-understanding-the-institutional-dynamicsof-environmental-change, p. . Pejovich, above n. , at –. North, above n. , p. . J. Lanjouw and P. Levy, ‘Untitled: A Study of Formal and Informal Property Rights in Urban Ecuador’, Economic Growth Centre Discussion Paper No. , , see www.econ.yale.edu/growth_pdf/cdp.pdf, p. . Panaritis, above n. , p. . Williamson and Kerekes, above n. , p. . Helmke and Levitsky, above n. , p. . Pejovich, above n. , p. .
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New Institutional Economics
part of the heritage that we call culture’. Knowles and Weatherston have similarly likened informal institutions to what others have labelled social capital or culture. However, though some informal institutions are undoubtedly rooted in cultural traditions, many others such as legislative norms have little to do with culture. Noteworthy is that some informal institutions are not trans-generational, as Pejovich implies. Informal institutions are not synonymous with culture; they have a narrower scope and are defined in terms of shared expectations rather than shared values. Shared expectations among parties may or may not be based on broader societal values. It is important not to treat informal institutions as a residual category because they are not synonymous with all other informal behavioural regularities. Although informal institutions respond to an established rule or guideline similar to a behavioural regularity, their breach engenders some kind of external sanction, unlike the latter. For example, removing one’s hat in church is an informal institution, whereas removing one’s coat in a restaurant is simply a behavioural regularity. The latter, unlike the former, is in response to physical discomfort and not a social norm likely to elicit social disapproval. In practice, it is often difficult to distinguish informal rule-bound behaviour from other informal behavioural regularities. Public graft is another example of informal behaviour which is not necessarily an informal institution. Where graft is embedded in widely shared expectations of the community and where failure to comply with the practice is perilous in terms of potential costs, corruption may indeed be an institution. However, where graft is neither externally sanctioned nor embedded in shared expectations, it is a behaviour pattern but not an informal institution. Informal institutions also differ from informal organisations. Institutions are the underlying rules of the game, while organisations such as family farms, micro credit schemes, clans and mafias are the ‘players of the game’ and therefore not institutions. They can be agents of institutional change. However, their activities may contain codes and rules of behaviour that could be considered informal institutions. C. ASPIRATIONS FOR COMPARATIVE LAW THROUGH THE LENS OF NIE
The ‘functional method’, which is the conventional method of comparative law, has been the subject of regular criticism in the literature. Drawbacks regarding its limits and likely alternative methods have been suggested. Siems states that ‘a plurality of methods may be used in a
North, above n. , p. . Knowles and Weatherston, above n. , at . Seyoum, above n. , at . G. Helmke and S. Levitsky, ‘Informal Institutions and Comparative Politics: A Research Agenda’ Working Paper, (Kellogg Institute, ), see https://kellogg.nd.edu/sites/default/files/old_files/documents/_.pdf, pp. –. Seyoum, above n. , at . Helmke and Levitsky, above n. , at . Helmke and Levitsky, above n. , at . M. Manion, ‘Corruption by Design: Bribery in Chinese Enterprise Licensing’ () Journal of Law, Economics and Organizations . Helmke and Levitsky, above n. , at . Seyoum, above n. , at . K. E. Young, Enforcing Liberalism: Political Advisory Networks and New Economic Institutions Case Studies of Bulgaria and Ecuador (Ph.D. thesis, The City University of New York, ), p. . J. Husa, Chapter (in this volume), pp. –; J. Husa, A New Introduction to Comparative Law (Oxford: Hart Publishing, ), pp. –; G. Samuel, An Introduction to Comparative Law Theory and Method (Oxford: Hart Publishing, ), pp. – and –.
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fruitful way’ because ‘comparative law serves various purposes’. Hence, the functional method has to be complemented by other methods. ‘Comparative Law’, which initially referred only to openness to studying different institutional settings, has now taken on a broader set of research directions and methodologies. I propose the addition of NIE to the comparative law methodological toolbox. Comparative law and economics are well-established legal specialities. The field ‘Comparative Law and Economics’ employs principles from the area of law and economics to study issues of comparative law and extends beyond the choice of subject matter to also cover the methodological approach. This new discipline not only openly advocates a comparative attitude, but also adopts a broader methodological mindset that embraces the recent advances in behavioural research and empirical legal studies. Its most innovative feature is its use of external methodological pivots that provide a more complex and multifaceted understanding of legal institutions and their dynamics. It is a relatively recent method that was developed by economists and not by comparative lawyers. Although comparative law and economics is very far from constituting a new and separate discipline, it marks a new awareness of how extending the boundaries of both the research subject matter and methodological approaches can enrich the core of the discipline. However, it has had a hard time forming a recognisable agenda and attracting scholarly attention. A number of reasons have been suggested to explain the malaise of this speciality, but methodological problems have been identified as the main obstacle. I therefore propose broadening the economics in comparative law and economics beyond ‘law and economics’ to include NIE and thereby bridge the identified methodological gaps. . Shortcomings of Comparative Law That NIE Seeks to Cure First, some scholars criticise functionalism for its lack of in-depth analysis of the broader cultural context. Yet, others celebrate it for the same reason, and argue that it is more accessible to the legal researcher because it reduces the complexity of comparing legal systems. However, the downside of increasing accessibility is that the explanatory force of research using the functional method is reduced and that more creative work can be done, for example, by using the law-incontext method. It is necessary for comparative research to simplify reality in order to be able to explain it. However, the functional method is not a theory about society and, thus, is not equipped to frame social problems. Real-life problems need to be presented in terms that are easy to understand and identify in practice. New Institutional Economics offers especially useful analytical frameworks to account for complex social realities in stylised, but realistic manners. Second is the criticism that relates to the assumption of the functional method that social problems are universal. Due to this assumption, functional comparative lawyers implicitly
M. Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), p. . Ramello, above n. , at –. Ibid., at . Ibid., at . N. Garoupa and T. S. Ulen, ‘Comparative Law and Economics: Aspirations and Hard Realities’ () American Journal of Comparative Law at . E. V. Weil, ‘Map and Territory in Comparative Law and Economics’ () Global Journal of Comparative Law at . Weil, ibid., p. ; M. Van Hoecke, ‘Methodology of Comparative Legal Research’ () Law and Method at . Van Hoecke, above n. , at . Ibid. Ibid., at . Ibid., at and .
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take the view that the solutions to problems are inherent to the problems, and that the problems already call for a certain solution. Critics question this, arguing that human needs are not universal, but reflect the different priorities that can be found across different jurisdictions. Thus, the universal nature of social problems is an illusion, driven by the incapability of the observer to see other societies without the lens of his own typically Western culture. The severity of this criticism depends on the level of abstraction at which social problems are defined. Recent versions of the functional method have sought to resolve this by separating functionalism from universalism. Hence, the universalism criticism does not challenge the core assumption of functionalism that law is there to solve social problems, but only forces it to acknowledge that social problems are culturally construed rather than given. Again, NIE can fill this void because functionalism is not particularly well-equipped for framing social problems. NIE contributes to comparative law research in the way that the analysis proceeds. It makes it less abstract and more sensitive to the actual facts. NIE takes the concept of transaction costs seriously, considering them not merely as obstacles to exchange to be removed but as the result of particular institutional arrangements in the specific context which themselves need to be analysed. Relatedly, some scholars point to the inherent tension between the approaches of comparative law and law and economics. Whereas good legal comparison attempts to develop rich descriptions of the law in action, economic analysis aims to reduce the complexity of the real world through modelling. Therefore, integrating both in a single approach could lead to the adoption of a superficial approach to the legal system or a model unable to make any predictions. This tension can be solved by ensuring that each approach focuses on different stages of the comparative inquiry. The rich approach of comparative law should find functional equivalents, describe them in intelligible terms and then reveal their relationship with the broader legal, social and historical context. Economic concepts should concentrate on presenting the research problem in functional, yet realistic, terms and provide a common language for the analytical comparison stage. Consequently, the opposite approaches of economic and legal analysis could represent a methodological advantage. The use of economic models can aid lawyers in identifying legal practices that are overlooked because they do not reach courts; while a detail-oriented approach to the law can provide evidence that challenges exist with current economic models, forcing them to improve. Van Hoecke argues that ‘[C]ourts are the hospitals of social ordering. Only “ill” cases come to court. The healthy ones remain invisible
R. Michaels, ‘The Functional Method of Comparative Law’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), pp. –; Husa, above n. , at p. . Weil, above n. , at and . G. Dannemann, ‘Comparative Law: Study of Similarities or Differences?’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), pp. –, describing this view. D. Nelken, ‘Comparative Law and Legal Studies’ in E. Örücü and D. Nelken (eds), Comparative Law: A Handbook (Oxford: Hart Publishing, ), pp. –. L. Gramcheva, ‘Comparative Institutional Law and Economics: Reclaiming Economics for Socio-Legal Research’ () Maastricht Journal of European and Comparative Law at . Michaels, above n. , at . F. Wagner-von Papp, ‘Comparative Law & Economics and the Egg-Laying Wool-Milk Sow’ () The Journal of Comparative Law at . G. Calabresi, The Future of Law and Economics. Essays in Reform and Recollection (New Haven, CT: Yale University Press, ), pp. –.
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in the records of judicial decisions.’ Therefore, for a full account of legal reality, an analysis of court decisions in comparative research should be complemented by NIE and other disciplines. After all, NIE, as a branch of contemporary economics, has a key interest in real-life institutions. Actual institutions are at its core, and it offers analytical tools that allow for much more realistic analysis. Third, functionalism does not really offer any normative theory to assess which is the ‘better law’. Yet, scholarly research should be able to prove the possible superiority of some legislation over others. Thus, any attempt to make a comparative evaluation of the law must rely on a theory outside functionalism. NIE can complement comparative law research projects, so as to explicitly or implicitly, adopt the better law approach. NIE can play a role in the normative evaluations intended by many comparative inquiries by offering a clear normative standard in the form of the promotion of efficiency and other variables relevant to determining reduced transaction costs and therefore the better solution. Furthermore, ‘Comparative law and Economics’, broadened by adding NIE to economics, provides a powerful, modern way of working. Its most interesting feature is the adoption of multiple, alternative and complementary methodologies, to view a given research object through diverse analytical lenses. . Other Contributions of NIE to Comparative Law Research Beyond curing the deficiencies already shown, adding NIE to the comparative law methodological toolbox could benefit comparative law in, at least, five ways. First, NIE can provide comparative law with a ‘tertium comparationis’ for comparing legal doctrines and institutions. NIE can prove its value to the functional method at the analytical comparison stage by providing a powerful conceptual structure – ‘institutions’ – that can serve as a substantial tertium comparationis. Siems suggests that ‘a comparison of legal institutions, values, categories, concepts, ways of reasoning or languages . . . can be the “tertium comparationis” that links diverse legal systems’. Comparatists emphasise that in order to successfully and effectively compare, we need a tertium comparationis. Husa explains that, For the comparison to make sense, the objects compared must have at least some common characteristics or features, which form the common denominator for comparison . . . it is not a question of the similarity of the objects compared but of the fact that certain qualities are compared from different points of view . . . In the mainstream theory of comparative law this common feature is referred to with the . . . Latin expression tertium comparationis. It is necessary not only in comparative law but in all comparative research in general. Tertium is not equal to some comparative common denominator, but is instead a methodological term of a higher
Van Hoecke, above n. , at . Drobak, above n. Van Hoecke, above n. , at . Michaels, above n. , at . F. Faust, ‘Comparative Law and Economic Analysis of Law’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. . Ramello, above n. , at . R. A. Posner, ‘The Future of the Law and Economics Movement in Europe’ () International Review of Law & Economics at . Husa, above n. , pp. –; Samuel, above n. , pp. – and –; Siems, above n. , pp. – and –. Van Hoecke, above n. , p. .
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New Institutional Economics
abstraction level that is not actually concretely connected with the object compared and is used as the common denominator that makes comparison possible. It refers to a common quality that two things, which are being compared, share. Importantly, without it, comparison in a disciplined sense is not possible.
Comparatists should not look at a foreign legal system through the eyes and doctrinal framework of their own legal system, but try to transcend it. Institutions, a core conceptual tool in NIE, could effectively serve as an external and neutral element for comparing legal systems. Husa, in this Handbook, also attests that comparatists need the tertium comparationis to ensure they are aware of their bias and to try to limit the influence of the researcher’s conceptual framework. Second, NIE provides a superior methodology to that provided by neoclassical economics and so would be a suitable addition to the comparative law and economics approach. There is a generalised failure to recognise the potentially broader reach of comparative law. The comparative method is not just useful for highlighting differences between legal systems; it also represents an opportunity to adopt different viewpoints and tools for enriching mainstream law and economics scholarship. ‘Comparative’ thus takes on the broader meaning of ‘crossing boundaries’ – not only geographical or cultural boundaries, but also methodological ones. NIE is valuable for research in comparative law because of its idea that the institutional framework, of which the legal framework is a part, matters for economic performance. Institutions determine the level of transaction costs at the micro-level of contracting between private parties and at the macro-level of the economy as a whole. Economists assume a complex set of institutions which promote the efficient operation of the market. The efficiency of the market depends on the institutional structure. Therefore, improvement in economic performance requires an investigation of how different institutional frameworks enhance efficiency. The analysis in the neoclassical economics approach proceeds on the assumption of zero transaction costs and the identification of a hypothetical legal rule that would enable the parties to achieve the outcome in the optimal model. Where the hypothetical legal rule differs from the existing legal rule, the latter is deemed to be a rule that leads to a non-optimal result and a need for reform. The problem with this neoclassical economics approach is the inflexible emphasis on the optimal model. The ideal world is approximated by replicating it as if it actually exists. If parties cannot achieve the efficient allocation of property rights as a result of transaction costs, the law should help them attain the outcome as if there were no barriers to exchange. The neoclassical economic models are normative constructions that largely assume a non-existent state of the world. Costs are minimised by assuming zero costs and assigning rights and liabilities as if this assumption were correct. The rights go to the party that would have purchased them as the highest value user; the liabilities go to the party that would have borne them as the least effective cost avoider. Yet, the
Husa, above n. , p. . Also see Husa, above n. , pp. and . See a discussion on the meaning and approach of NIE and how it differs from neoclassical economics in Section B above. Ramello, above n. , at . North, above n. , pp. –. Ibid., pp. –. N. Mercuro and S. G. Medema, Economics and the Law. From Posner to Post-Modernism and Beyond (Princeton, NJ: Princeton University Press, nd ed., ), pp. –. Unlike Posner’s work, much of the current mainstream scholarship is sceptical of such grand claims. See for example R. Cooter and T. Ulen, Law and Economics (Boston, MA: Pearson, th ed., ).
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assumption is incorrect because transaction costs cannot be completely eliminated. There will always be costs in defining and enforcing property rights. NIE operates differently and its methodology is preferred. New institutional economists acknowledge that the neoclassical assumptions and scenarios are impractical. They study existing alternative institutions and aim to minimise transaction costs by approving the institution which facilitates exchange at the lowest cost. Choice of the ideal institutional environment is decided by choosing the real-life workable arrangement that is the most cost advantageous and not by mechanically reproducing the situation parties would be in if transaction costs were absent. Moreover, as transaction costs depend on the particular institutional framework, the recommended solution is also determined with regard to the specific context. NIE moves away from the ‘economic nirvana’ and adopts an analytical technique that enables more accurate conclusions. Third, the development of ‘comparative law and economics’ has been stymied, possibly because of its stronger European leanings. These are similar to comparative law, but make it more difficult for the discipline to penetrate the American scholarly environment, which is the focal point of the global scientific community. The comparative approach offers new opportunities to enrich its scholarship with an interesting addition. Whereas law and economics is an American approach with European roots, comparative law and economics reverses the perspective to provide a European standpoint, enriched by the participation of American scholarship while NIE is a non-aligned methodology (initially it was dominated by Americans, popularised in the rest of the world and especially in Europe). Fourth, NIE, can help to identify variables other than efficiency that play a key role in explaining the dynamics of legal change. Neoclassical economic models tend to leave out important variables which do not appear as crucial within the ideal world because the researcher may be keen to make clear-cut recommendations. Institutions do not necessarily change in response to changes in relative prices. Nor does institutional change necessarily happen when we expect it to. Other factors such as vested interests of political actors and interest groups within a society can interfere with and delay change or stop it altogether. Relative price changes only lead to institutional change when the price change coincides with the interests of the state and powerful groups in society. Even when institutions such as property rights mutate in response to relative price changes as predicted, it may not be towards greater specification, efficiency and tenure security. Property rights change may follow multiple trajectories and culminate in common property, state property, other restrictive property arrangements or even a mix of individualised and communal tenure. Moreover, even where private property is witnessed,
S. Cheung, ‘On the New Institutional Economics’ in S. Cheung (ed.), Economic Explanations: Selected Papers of Steven Cheung (Hong Kong: Arcadia Press Ltd., ), pp. –. Coase, above n. , pp. –; Coase, above n. , pp. –; R. Coase, ‘Law and Economics and A. W. B. Simpson’ () Journal of Legal Studies . R. Caterina, ‘Comparative Law and Economics’ in J. M. Smits (ed.), Elgar Encyclopaedia of Comparative Law (Cheltenham: Edward Elgar, ). Ramello, above n. , p. . Ménard and Shirley, above n. . J. T. Mahoney, Economic Foundations of Strategy (Thousand Oaks, CA: Sage Publications, ), p. . E. G. Furubotn and S. Pejovich. ‘Property Rights and Economic Theory: A Survey of Recent Literature’ () Journal of Economic Literature at . R. A. Posner, ‘A Theory of Primitive Society with Special Reference to Law’ () Journal of Law and Economics at –. S. F. Joireman, Institutional Change in the Horn of Africa: The Allocation of Property Rights and Implications for Development (Ph.D. thesis, UCLA, ), pp. –.
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New Institutional Economics
rights may not be clearly defined and enforced, and there may be a prevalence of overlapping and conflicting rights on the same piece of land. NIE adopts a framework where new variables are incorporated into the theory of institutional change as well as the weight of history (path dependence). By path dependence we mean the inclination of events towards a set trend where what existed yesterday largely determines what happens today and what is likely to occur tomorrow. The other variables include the objectives of political actors and interest groups within a society, the primary influence being the role of the state, and may even include mitigating variables such as the type of resource which is involved, and the role of culture and ideas in conditioning the institutional changes which occur. The incorporation of political factors into the model of changing institutions leads to a less parsimonious, but more accurate description of the progression of land rights in developing countries in particular. It more closely resembles the process of property rights change in the developing world. As Nathan Rosenberg remarked, institutional changes are sometimes ‘driven by nationalist, religious or imperialist motives so intense as to sacrifice economic gain’. Although we can identify the role of each of these variables, we can neither ascertain the exact influence of each nor appreciate ex ante how particular political pressures will affect state decisions. This is because we do not know how interest groups and state agendas will interact on a particular issue. However, we should be able to make an educated guess regarding the impact of the political variables based on () the importance of the interest group (whether external or internal to the state) and () the importance of the issue to the interest group. Thus, the assumption that institutional change is linear, that the movement of legal systems is towards efficiency, is not necessarily valid. Deviations may mean inefficiencies, but this is not necessarily the case. Different equally efficient or inefficient institutional change trajectories are possible. NIE rejects the evolutionary path of law predicted by the neoclassical economics model. Instead, it provides a framework to analyse comparative legal change which allows for a trend of convergence but also considers variables other than efficiency; it also accounts for the diversity of national laws and for the different ways transplanted legal rules play out in different legal systems. The identification of variables other than efficiency mitigates a criticism that comparatists express about economics and the Comparative law and Economics field – namely, that there is an ideological disconnect between them. Comparatists view law and economics as opposing some of their deepest-held views about law. Whereas comparatists perceive law as being about fairness, social justice and morality, they believe that law and economics holds efficiency as the outstanding legal norm. Comparatists feel that law and economics has no room for collective norms and feelings of kindness towards others.
Posner, above n. ; S. Beaulier and D. Prychitko, ‘Disagreement Over the Emergence of Private Property Rights: Alternative Meanings, Alternative Explanations’ () The Review of Austrian Economics . A. Portes, ‘Institutions and Development: A Conceptual Reanalysis’ () Population and Development Review at . R. Nathan, ‘Review of the Unbound Prometheus’ () Journal of Economic History at . Joireman, above n. , p. . U. Mattei, Comparative Law and Economics (Ann Arbor, MI: The University of Michigan Press, ), pp. , –. A. Nicita and U. Pagano, ‘Law and Economics in Retrospect’ in É. Brousseau and J. M. Glachant (eds), New Institutional Economics: A Guidebook (Cambridge: Cambridge University Press, ). Garoupa and Ulen, above n. , p. .
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Fifth, because of its inherent preoccupation, NIE can help comparative inquiries in finding and explaining the reasons behind the differences and similarities across jurisdictions. NIE is concerned with how institutions influence behaviour by modifying the choice set, and how institutions change over time. NIE would greatly help with a comparative measuring and understanding of legal similarities and differences. The focus would be on how different rules create incentives that determine behaviour, and how institutional alternatives develop in historical contexts. NIE thus enables comparative lawyers to redirect their attention from the comparative study of black letter rules to the comparative study of legal ideas and jurisprudence. It requires a careful examination of institutions, related actors and institutional evolution. Methodologically, it invites in-depth process tracing and an evolutionary approach rather than large-scale statistical approaches. The combined NIE and comparative law approach provides useful applications in comparative legal analysis. It provides a toolbox for comparative studies of institutional choice and design between national legal systems. It also provides a way of improving understanding of the interaction between legal systems in the form of legal transplants, legal emulation and supranational legal and economic cooperation. D. PROPERTY RIGHTS: A TOOL IN COMPARATIVE LAW AND NEW INSTITUTIONAL ECONOMICS RESEARCH
In order to understand the divergence of legal systems, we need some instruments to compare rules and rights that are expressed in different terms in different legal systems. The theory of property rights – as developed by NIE – is usually perceived as a very useful tool for comparative law in carrying out this task. . Property Rights as an Institution Property rights are an important institution that regulate the behaviour of actors in an economy. They shape the incentives of individuals, and are, therefore, critical for economic efficiency and growth. Property rights as an institution can be better understood when placed in the context of the overall institutional structure of both society and economy. There are three basic categories of institutions: () the constitutional order, or ‘the rules for making rules’; these are fundamental rules about how society is organised and they are designed to specify the structure of property rights and control of the state; () operating rules or institutional arrangements which are created under rules specified by the constitutional order. They specify terms of exchange within the framework of the constitutional rules. Property rights are key rules in this category. Other arrangements include statutes, common law, regulations, associations and contracts; () normative or moral behavioural codes, alternatively referred to as ideology or
North, above n. ; Eggertsson, above n. , pp. –. S. Wolfgang and K. Thelen, ‘Introduction’ in S. Wolfgang and K. Thelen (eds), Beyond Continuity: Institutional Change in Advanced Political Economies (Oxford: Oxford University Press, ), p. . Angelsen, above n. , p. . D. North, Structure and Change in Economic History (New York & London: W.W. Norton & Company, ), p. . D. Feeny, ‘The Demand and Supply for Institutional Arrangements’ in V. Ostrom, D. Feeny and H. Picht (eds) Rethinking Institutional Analysis and Development (San Francisco: Institute for Contemporary Studies Press, ), p. . North, above n. , p. .
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culture. These are codes of behaviour aimed at legitimising the constitutional and operating rules and constraining behaviour. The constitutional order is intended to be more costly to modify than operating rules and, like cultural rules, is more stable as it evolves slowly. Feder and Feeny make an important observation that in developing countries where all three categories of institutions are evolving, there is a high likelihood of disharmony existing among the various institutions. For example, the constitutional order and formal laws may guarantee private property rights and yet the requisite registration and enforcement systems may be grossly inadequate, inefficient and missing. Similarly, whereas the formal legal system may provide for alienability, transfer of land to those outside certain groups such as clans may be considered a breach of cultural norms. As a social institution, property rights ‘define or delimit the range of privileges granted to individuals of specific resources, such as parcels of land or water’ and imply ‘a system of relations between individuals (. . .) [involving] rights, duties, powers, privileges, forbearance, etc. of certain kinds’. Contemporary legal scholarship broadly defines property rights as ‘sticks in a bundle’, clarifies that people have rights to a resource in relation to others rather than to the resource itself, and regards the main function of property law as allocating and enforcing these rights among competing users. Property rights to land should therefore be understood as a bundle of characteristics, formally and informally constructed, including exclusivity, inheritability, transferability, appropriability and systems for enforcement. ‘[T]hey link not merely a person to an object, but rather a person to an object against other persons.’ Property rights institutions range from formal arrangements, including constitutional provisions, statutes and judicial rulings, to informal conventions and customs regarding the allocation and use of resources. To illustrate, private property rights to land are ‘a set of formalized rules governing the acquisition, inheritance, use rights and dispossession of land’. Such institutions critically influence resource-use decisions and, thereby, affect economic behaviour and economic performance. Thus, property rights are an institution in the sense that they are ‘humanly devised constraints that shape human interaction’. . The Function and Enforcement of Property Rights The conventional property rights approach assumes that, ‘[p]roperty rights are an instrument of society and derive their significance from the fact that they help a man to form expectations
Angelsen, above n. , p. . F. Gershon and D. Feeny, ‘Land Tenure and Property Rights: Theory Implications for Development Policy’ () World Bank Economic Review at . Ibid. Ibid., at . Mahoney, above n. , p. . I. Hallowell, ‘The Nature and Function of Property as a Social Institution’ () Journal of Legal and Political Sociology at . Lawson-Remer, above n. , p. . The right to appropriate the stream of economic rents from use of and investments in the resource. A. A. Alchian and H. Demsetz, ‘The Property Right Paradigm’ () The Journal of Economic History . D. W. Bromley, Economic Interests and Institutions: The Conceptual Foundation of Public Policy (New York & Oxford: Basil Blackwell, ). Mahoney, above n. . Joireman, above n. , pp. –. Mahoney, above n. . North, above n. , p. .
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which he can reasonably hold in his dealings with others’. According to economic theory, the function of property rights is to create incentives to use resources efficiently or, stated differently, to guide ‘incentives to achieve a greater internalization of externalities’. Property rights are human-created devices that reduce transactions costs and organise exchange, thereby setting the basic personal and group incentives of the economic system. Libecap suggests that property rights affect economic behaviour through incentives and they: . . . delineate decision-making authority over economic resources, determine time horizons, specify permitted asset uses, define transferability, and direct the assignment of net benefits. Because they define the costs and rewards of decision making, property rights establish the parameters under which decisions are made regarding resource use.
Thus, property rights provide the basic economic incentive system that shapes resource allocation. When and why states enforce or violate property rights and contracts are among the crucial questions for institutional economists. Property rights can be enforced via legal and extra-legal mechanisms. Legal mechanisms involve the use of sanctions by states to force compliance with property rights, while extra-legal mechanisms range from informal dispute resolution in the shadow of the law to parties’ reputations for upholding contracts. Such reputation-based processes can be alternatives to formal mechanisms. Whereas formal enforcement is associated with constitutions and courts of law, informal enforcement is associated with societal and religious conventions, among other things. Property rights are enforced by the state, which in doing so relies on a wide range of supporting mechanisms such as courts, police, financial institutions, the legal profession, land surveys, record-keeping systems and titling agencies, in addition to the social legitimacy of property rights to land. Formal rules have to be monitored and enforced by the participants, officials or both in order to be effective and change behaviour. Most economists agree that the enforceability of formal contracts and agreements supports economic development. The difference between rich and poor countries is that wealthier economies have a neutral entity to enforce complex contracts. Ideally, the neutral enforcer is a formal entity tasked to execute this. Where a state entity is unable to enforce, informal institutions substitute for these functions. A plural system involving both formal and informal mechanisms is common. However, these contracts are generally constrained by incompleteness due to individuals having imperfect information and bounded rationality. This results in transaction costs to implement a contract because all potential eventualities involved in the agreement cannot be anticipated. The incompleteness necessitates regulation to reduce uncertainty in the case of various
H. Demsetz, ‘Frischmann’s “Toward a Theory of Property Rights”’ () Review of Law and Economics . A. J. Jaffe and D. Jr. Louziotis, ‘Property Rights and Economic Efficiency: A Survey of Institutional Factors’ () Journal of Real Estate Literature ; R. Posner, Economic Analysis of Law (Boston, MA: Little Brown, ); A Reeve, Property (London: Macmillan, ). Demsetz, n. at ; A. B. Carter, The Philosophical Foundation of Property Rights (London: Harvester, Wheatsheaf, ). G. D. Libecap, ‘Property Rights in Economic History: Implications for Research’ () Explorations in Economic History at . Mahoney, above n. , p. . Ibid. E. Ostrom, Understanding Collective Action (Vision Focus Brief ), see www.ifpri.org/publication/understandingcollective-action, p. . R. R. Nelson and B. N. Sampat, ‘Making Sense of Institutions as a Factor Shaping Economic Performance’ () Journal of Economic Behaviour & Organisation at .
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contingencies. Hence, the critical issue is that enforcement mechanisms established by the state or the agents themselves must be in place to protect formal institutions. Furthermore, this determines the cost and incentives of doing business in an economy. The cost of enforcement increases when formal and informal institutions clash. . Why Do Property Rights Change? Property rights changes do not always manifest in response to relative price changes. There are two possible variations to this causal model. The first variation occurs when relative prices change, but institutional changes are delayed or do not manifest at all, because of vested interests that prevent proper institutional adjustment. The second alteration to the theory comes about when no relative price change occurs but institutional change is imposed from above. Institutional change from above is a change in the rules of the game implemented by the state to alter an institutional structure so that it corresponds with the state’s ideology or goals. Such forms of institutional change can appear in two variants: it can be aimed at pre-empting both relative price changes and the transaction costs that may occur prior to the institutional change. Alternatively, it can be completely independent of any relative price change and motivated by ideology or the agenda of the state. Colonialism, which coincided with the commercialisation of agriculture, is an example of institutional change from above and is another important variable when considering property rights change, as it affected most of the developing world and the whole of Africa – with the exception of Ethiopia and Liberia. The influx of British, French and Portuguese settlers, and the development of an imposed formal legal structure, modified the economic incentives in societies because of the expropriation of land resources that colonialism necessarily brought. This seems to be the likely explanation for the emergence of private property rights in some countries, where private property rights were established not as a result of native demand but rather by the action of the colonial government. Eggertsson concludes in line with North that there is compelling historical evidence to support the view that states do not normally supply property rights that ensure economic efficiency and growth. In fact, according to North, ‘one of the most evident lessons from history is that political systems have an inherent tendency to produce inefficient property rights which result in stagnation or decline’. Libecap argues that property rights are formed and enforced by political entities and that they reflect the conflicting economic interests and bargaining strength of those involved.
E. G. Furubotn and R. Richter, ‘The New Institutional Economics – A Different Approach to Economic Analysis’() Economic Affairs at –. S. Pejovich, ‘The Effects of the Interaction of Formal and Informal Institutions on Social Stability and Economic Development’ () Journal of Markets and Morality . Joireman, above n. , p. . Ibid. Ibid. Ibid., p. ; also, as noted by North, above n. . Joireman, above n. , p. . Ibid., p. . Eggertsson, above n. , pp. –; North, above n. . D. North, ‘Institutions and Economic Growth: An Historical Introduction’ () World Development . G. D. Libecap, ‘Distributional Issues in Contracting for Property Rights’ () Journal of Institutional and Theoretical Economics .
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In particular, Libecap explains that distributional conflicts present political risks to politicians, giving them incentives to propose regulations that do not seriously upset status quo rankings and that offer only limited relief from property rights economics inefficiencies due to common pool resource losses. Furthermore, it is important to distinguish between de jure (formal) and de facto (informal) property rights when trying to understand and explain property rights change. This is because de jure and de facto property rights change for different reasons. De facto property rights institutions refer to the rules that actually apply and constrain individuals in their use of, and transactions in, land. De facto rights originate among resource users without government recognition while de jure rights are legally recognised by the government. The concept of de jure and de facto is also related in the legal literature to the difference between possession (the de facto exercise of a claim) and ownership (the de jure recognition of one). We underscore the difference between de jure and de facto property rights institutions because each category emerges and changes for different reasons. It is the intentional decisions by actors that may change de jure (formal) attributes of the institution of property rights. The perception of political actors is the most critical variable in effecting de jure property rights. The de jure conditions of property rights are changed through a political process of policy reform. Thus, while it is the deliberate decisions of political actors that may change formal property rights, informal property rights are more likely to be the consequence of the designer’s cognitive limits and unintended consequences. It must be conceded that, whatever the substantive merits and demerits of the property rights approach of NIE to aiding the study of Comparative Law, the field has contributed to opening a cross-disciplinary debate and taken important steps towards overcoming the insulation of social disciplines and comparative law. Ultimately, it has had in some instances the unintended but very welcome effect of prompting comparative lawyers to think more about policy problems, and to think more like social scientists. E. CONCLUSION
As both NIE and Comparative Law conventionally employ the functional methods of comparison, they naturally merge in the Comparative Law and NIE approach. In the past, comparatists have often slipped into merely descriptive exercises in which they observed similarities and differences between legal systems without providing convincing theoretical explanations. Comparative law can now benefit from a mature economic framework, broadened with NIE, which provides it with the possibility of better rationalising the empirical data and measuring more accurately the common core and the dissimilarities between national laws. In addition, unlike common law lawyers who master inductive analysis, economists tend to engage in deductive thinking. Based on certain assumptions, they construct models that they test against empirical data to draw conclusions. Thus, legal scholars can benefit from economic reasoning, forcing them to understand and explicitly make systemic assumptions about the law. No doubt, civil lawyers are accustomed to deductive analysis starting from abstract legal norms
Ibid. E. Schlager and E. Ostrom, ‘Property-Rights Regimes and Natural Resources: A Conceptual Analysis’ () Land Economics . T. C. Giannoni, The Evolution of Property Rights in Argentina – (Ph.D. thesis, George Washington University, ), p. .
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and overarching principles. This, however, does not mean they are proficient in spelling out their premises. On the contrary, determined mainly by legal tradition, these premises are often taken for granted and thus remain tacit in the reasoning of civil lawyers. Nevertheless, the increase in technical legislation, as well as in the standing of the judiciary, progressively stimulates inductive legal thinking in civil law jurisdictions. Thus, continental legal scholars can also learn lessons from economists in clarifying their presuppositions when searching for the correct answer to a problem. Comparative law has not ‘upstage[d] interdisciplinary approaches to legal scholarship and jurisprudence as the theoretical engine of legal studies in an era of transnational legality’. However, its mixed methods, when combined with innovative approaches such as the adding of NIE to its methodological toolbox, and passion for understanding the why, when and how of foreign law, have much to offer. Economic analysis enriches comparative law, yet the latter’s contribution to economics, particularly to NIE, should not be underestimated. Comparative law provides much empirical data, thus enhancing realism in economic analysis. It has accumulated rich knowledge about the legal orders integrating the different legal solutions and hence, of the variables affecting transaction costs. Comparative law is enabled by NIE to surmount the difficulties arising from the different sources-of-law in common law and civil legal systems. In return, comparative law contributes an inexhaustible pool of alternative legal solutions to economic problems, making economics less abstract, more engaged with the real world and simultaneously more capable of generalising about the working of law, not as local background but as a universal social phenomenon. Reading various aspects of NIE and comparative law methods, one gets a sense of the richness of New Institutional Economics. Its different analytical procedure, view of the market as not efficient in itself and development of a convincing theoretical explanation of change over time constitute real methodological differences between neoclassical economics and NIE, which ultimately translate into a different stance with regard to the concept of efficiency. Notwithstanding the diversity in themes and approaches from the different disciplines, a hard core emerges. Transaction costs are a key concept that have surpassed the limited role they initially played in economics, nurturing new avenues of research in political science, sociology, legal studies, management and so on. Also, at the core of NIE is a common methodological concern with comparative analysis of institutions at all levels, from broad societal norms or rules governing the polity to specific details of contracts and all that lies in between. This chapter raises questions that leaders in the field consider crucial, and supplies scholars with tools for exploring answers to these questions. Yet it also leaves gaps which future research may want to fill. This account of the advantages of NIE does not mean that all research, which builds on the claim that institutions matter and uses an inter-jurisdictional comparative analysis of legal
K. Zweigert and H. Kötz, Introduction to Comparative Law (Oxford: Clarendon Press, rd ed., ), p. . See M. Pargendler and B. Salama, ‘Law and Economics in the Civil Law World: The Case of Brazilian Courts’ () Tulane Law Review at . Conventional wisdom still holds that the legal profession in civil law jurisdictions is impervious to economic reasoning. A. Riles, ‘Wigmore’s Treasure Box: Comparative Law in the Era of Information’ () Harvard International Law Journal at . Ibid. at . U. Mattei and F. Cafaggi, ‘Comparative Law and Economics’ in Peter Newman (ed.), New Palgrave Dictionary of Economics and the Law, vol. (London: Macmillan Reference, ), pp. , .
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institutions, automatically avoids all theoretical and methodological problems. Whatever approach researchers may use, some issues will remain. However, where the researcher is aware of its limitations, NIE is especially well-suited to provide analytical frameworks that increase our ability to compare real-life legal institutions by reducing the complexity of the law in action. A sound combination of the functional comparative method and NIE can help make the complexity of different legal systems conceptually more manageable.
Some of the issues which could remain include the limits of functional equivalence, the extent of knowledge needed to appreciate legal, political, social and cultural contexts and differences, appreciation of cross-cultural concepts, transplants and the use of foreign models, language and translation difficulties, cross-cultural terminology, etc.
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Empirical Methods Mathias Siems*
This chapter follows the definition of ‘empirical legal studies’ as research which applies quantitative methods to questions about the relationship between law and society, in particular with the aim of drawing conclusions about causal connections between variables. Comparative law does not typically phrase its research as being interested in questions of causal inference. Yet, implicitly, it is very much interested in such topics as it explores, for example, the determinants of legal differences between countries or when it evaluates how far it may be said that one of the legal solutions is preferable. It is thus valuable that significant progress has been made in empirical approaches to comparative law that may be able to show robust causal links about the relationship between law and society. This chapter outlines the main types of such studies: experiments, cross-sectional studies, panel data analysis and quasi-experiments. However, it also shows that such studies face a number of methodological problems. This chapter concludes that often it may be most promising to combine different methods in order to reach a valid empirical result.
A. INTRODUCTION
Terms such ‘empirical legal studies’, ‘empirical legal research’ and ‘empirical methods in law’ can be understood in a wide or narrow sense. In a wide sense, such research includes both qualitative and quantitative methods and thus it overlaps to a large extent with research on ‘law and society’, ‘socio-legal studies’ and ‘legal sociology’. By contrast, a narrow definition focusses on research which applies quantitative methods to questions about the relationship between law and society, in particular with the aim of drawing conclusions about causal connections between variables. * European University Institute, Florence, Italy. This chapter builds on ideas outlined in Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), pp. –. All websites cited in this chapter were last accessed on February . See, for example, Catrien Bijleveld, Research Methods for Empirical Legal Studies: An Introduction (The Hague: Eleven Publishing, ); Herbert M. Kritzer, Advanced Introduction to Empirical Legal Research (Cheltenham: Edward Elgar, ); Peter Cane and Herbert M. Kritzer, The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, ). See, for example, Robert M. Lawless, Jennifer K. Robbennolt and Thomas Ulen, Empirical Methods in Law (New York: Aspen, nd ed., ); Lee Epstein and Andrew D. Martin, An Introduction to Empirical Legal Research
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This chapter follows such a narrow definition for pragmatic reasons, given that other chapters of Part I of this Handbook also address some topics of empirical legal studies in a wider sense (notably the chapters on ‘Qualitative Fieldwork’, ‘Linguistic Approaches’, ‘New Institutional Economics’ and ‘Machine-Learning Methods’). Thus, this chapter mainly discusses research that employs methods of inferential statistics, such as regression analysis. In its most basic form, a formal regression model consists of ‘dependent’ and ‘independent’ (or ‘explanatory’) variables – the former being the variable the analysis tries to explain and the latter being the possible causal factors. In the application of such methods to comparative law (i.e., ‘empirical comparative law’), the starting point is typically a hypothesis about the relationship between law and society, whereby law is either the dependent variable (‘what explains law?’) or one of the independent variables (‘does law matter?’) of the regression analysis. The term ‘society’ can, in this regard, be understood in a narrow or wide way. For example, for law as a dependent variable, researchers may examine whether broad cultural differences matter (e.g., do religious countries have different laws than more secular ones?) or they may focus on something more specific (e.g., do different law-making procedures determine differences in a certain topic of substantive law?). Where law is one of the independent variables, the question may also be either very broad (e.g., do certain laws tell us why some countries are rich and others are poor?) or more concrete (e.g., how is the positive law on a particular issue applied in courts?). To actually test the hypothesis, empirical data are needed. In natural sciences, data are often derived from experiments. In the social sciences (including empirical legal studies), controlled human experiments are only feasible in some instances. Thus, observational data are more frequently used. These can be cross-sectional, namely where data points are from different subjects at the same point in time, or without regard to differences in time. Particularly when research aims to show causal inference, however, it is preferable to have data with a time dimension. We will see in the following discussions how this can be applied in studies of empirical comparative law. This chapter is structured as follows. Section B presents the main types of studies of empirical comparative law depending on the type of data used: experiments, cross-sectional studies, panel data analysis and quasi-experiments. Section C responds to some of the current literature that emphasises the problems with this line of research – in particular, how far comparative information can demonstrate causal regularities. Section D concludes. B. TYPES OF STUDIES
This section starts with a discussion of experiments, given that experiments may be best able to provide robust evidence of causal relationships, though they are not feasible for all questions that involve legal variables. The subsequent sub-sections then turn to three types of empirical comparative law (cross-sectional studies, panel data analysis and quasi-experiments) that all use observational data.
(Oxford: Oxford University Press, ). This is also the case for the Journal of Empirical Legal Studies (JELS) and the annual Conferences on Empirical Legal Studies (CELS). Technical details of regression analysis are beyond the scope of this chapter, for example, whether the causal relationship is expected to be linear or non-linear or how far different explanatory variables are additive or interactive.
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. Experiments Today, a large number of empirical legal studies use experiments. Some research in development economics also uses experiments in order to establish by way of randomised controlled trials which precise legal tools are most suitable, and some research from cross-cultural psychology addresses questions which include legal topics. The following will outline some studies of experimental comparative law that have all used experiments with law as an explanation (i.e., as an independent variable). Some of these studies have been conducted in one location, while using scenarios that reflect different legal traditions. For example, three studies from the Max Planck Institute (MPI) in Bonn, Germany, compare how participants react to (i) differences in company law (consideration of stakeholder interests in German but not US corporate law), (ii) different remedies for breach of contract (specific performance in civil law and damages in common law countries) and (iii) different approaches to unilateral promises (common law but not civil law countries applying the doctrine of consideration). They find that the participants (German students) trade less if there is no specific performance, while in the other two studies no significant difference was observed. There are also some studies which make use of cross-country experiments. Here, another MPI study conducted an experiment in two countries with students from Bonn (Germany) and Shanghai (China). It dealt with the question of whether variations in punishment for bribery make a difference to behaviour, which was then found to be the case for both groups of participants. Three further experimental studies, not affiliated with the MPI, also include China as one of the countries of interest. The first one compared potential violations of copyright by US and Chinese students, finding that threat of enforcement reduces the violations in both countries (while in China violations are at a higher level than in the US). The second examined the question of whether laws affect social norms. Using experiments with different scenarios, it found that in both the UK and in China the strength of the effect varies across these scenarios. The third study asked judges in Argentina, Brazil, China, France, Germany, India and the US to judge a hypothetical international criminal appeals case. This study included,
Kees van den Bos and Liesbeth Hulst, ‘On Experiments in Empirical Legal Research’ () Law and Method . See Abhijit V. Banerjee and Esther Duflo, Poor Economics: A Radical Rethinking of the Way to Fight Global Poverty (New York: Public Affairs, ), and see www.povertyactionlab.org. For example, Simon Gächter and Jonathan F. Schulz, ‘Intrinsic Honesty and the Prevalence of Rule Violations Across Societies’ () Nature (dealing with the possible link between the level of corruption of a country and the frequency of cheating in experiments); H. Clark Barrett et al., ‘Small-Scale Societies Exhibit Fundamental Variation in the Role of Intentions in Moral Judgment’ () Proceedings of the National Academy of Sciences (on the question of whether communities with a weak rule of law are more willing to punish pro-social behaviour). Sven Fischer, Sebastian J. Goerg and Hanjo Hamman, ‘Cui Bono, Benefit Corporation? An Experiment Inspired by Social Enterprise Legislation in Germany and the US’ () Review of Law & Economics ; Christoph Engel and Lars Freund, ‘Behaviorally Efficient Remedies – An Experiment’, MPI Collective Goods Preprint, No. /; Christoph Engel and André Schmelzer, ‘Committing the English and the Continental Way: An Experiment’, MPI Collective Goods Preprint, No. /. Christoph Engel, Sebastian J. Goag and Gaoneng Yu, ‘Symmetric vs. Asymmetric Punishment Regimes for Collusive Bribery’ () American Law and Economics Review . Benjamin Van Rooij et al., ‘Comparative Compliance: Digital Piracy, Deterrence, Social Norms, and Duty in China and the United States’ () Law and Policy . Tom Lane, Daniele Nosenzo and Silvia Sonderegger, ‘Law and Norms: Empirical Evidence’ () American Economic Review .
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among others, a random assignment of a precedent disfavouring or favouring the defendant; yet, it did not find that this information made much of a difference in any of the countries. These cross-country experiments have been conducted with a limited group of participants. This focus on individuals is advantageous insofar as it enables researchers to precisely understand individual behaviour. However, it can raise concern as to whether, for example, any difference between students from universities in two countries may really be due to country differences and not differences between the specific student groups (including differences in their universities, social background, etc.). In other words, it is a core feature of experiments that they randomise their subjects into treatment and control groups and, in doing so, can control for other differences, which implies that they have a higher internal but lower external validity than observational studies. A similar trade-off exists within experimental studies: lab experiments tend to have higher internal validity but lower external validity as compared to field experiments. The highest level of external validity may be achieved in survey experiments; yet, here too, it may be hard to achieve fully random samples of citizens in each country. It is also worth noting that cross-country experiments cannot provide conclusive proof of whether differences in the national context matter for the results. For example, if an experiment produces different results with participants in China and Germany, this could mean that some societal differences between these countries are a determinant for the differences in the experimental result. However, country characteristics are not randomly assigned. Thus, it is impossible to say for certain whether such societal factors would also make a difference if the same experiment were conducted in further countries. It may also lead to the conclusion that observational studies (as discussed in the following section) also have their advantages, as they typically use data from many countries. . Cross-Sectional Studies In empirical comparative law, cross-sectional studies make use of variations between laws across countries or other units of comparison. Law may be on either side of the causal equation, as an explanation (i.e., as an independent variable) or as the phenomenon which is to be explained (i.e., as the dependent variable). In addition, the following will discuss attempts to control for the problem that causality between law and society seems to go both ways (i.e., the problem of law’s ‘endogeneity’). (a) Does the Law Matter for Other Phenomena? The most prominent line of research which has examined whether law matters for other phenomena is called ‘Law and Finance’, based on the title of one of the first studies of this
Holger Spamann et al., ‘Judges in the Lab: No Precedent Effects, No Common/Civil Law Differences’ () Journal of Legal Analysis (a further finding is that the way judges view documents differs between countries, while not showing a clear common–civil law divide). For examples of survey experiments on questions of comparative law see Sebastian Sternberg, Sylvain Brouard and Christoph Hönnige, ‘The Legitimacy-Conferring Capacity of Constitutional Courts: Evidence from a Comparative Survey Experiment’ () European Journal of Political Research (survey in France and Germany); Katerina Linos, The Democratic Foundations of Policy Diffusion: How Health, Family, and Employment Laws Spread Across Countries (Oxford: Oxford University Press, ), pp. – (on the desirability of legal transplants in the US). For a further analysis of this problem see Section C , below.
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research. In this study from , Rafael La Porta and colleagues coded the law on shareholder protection (as well as creditor rights) across countries. Drawing on these numbers as independent variables for statistical regressions, they then found that good shareholder protection leads to more dispersed shareholder ownership, which can be seen as an indicator of developed capital markets. This line of research subsequently expanded its scope considerably. In a -year review paper, La Porta et al. summarise it as having dealt with procedural formalism, judicial independence, regulation of entry, government ownership of the media, labour laws, conscription, company law, securities law, bankruptcy law and government ownership of banks as independent variables. In parallel, the dependent variables have also become increasingly broad and varied as legal aspects were shown to explain a large number of outcomes such as the control premium on sales of blocks of shares, private credit, interest rate spread, labour market participation rates, unemployment levels, corruption, the size of the unofficial economy, the time to evict a nonpaying tenant and the time to collect a bounced cheque. Recently, La Porta et al. and affiliated researchers have added further aspects of a country’s legal system to the explanatory model and applied this model to new outcome variables. For example, they find that tax law impacts investment and levels of entrepreneurship, they uncover evidence for a relationship between cost of compliance with law and the size of the informal sector and they relate the perception of the quality of government to Eastern European peoples’ happiness. Further studies also shifted towards more general measures of economic development including the impact of tax law on FDI, investment and entrepreneurship, and the impact of legal trade restrictions on the volume of trade, regional income level convergence and growth. This line of research is mainly based on the numerical coding of black-letter rules, with only some papers considering socio-legal data, and others often only including data on the ‘rule of law’ as a control variable. Other researchers have explored how far the effect of the same laws may differ between countries due to other reasons, for example, familiarity with the transplanted rule and differences in statehood experience. Worth mentioning is a study by Howell Jackson and Mark Roe which used resource-based enforcement data (e.g., the budget of securities regulators per GDP) as indicators for the strength of public enforcement, finding that it is more important than private liability rules, and about as important as disclosure rules, in explaining financial outcomes.
Rafael La Porta et al., ‘Law and Finance’ () Journal of Political Economy . For a critical review of the Law and Finance literature, see Gerhard Schnyder, Mathias Siems and Ruth V. Aguilera, ‘Twenty Years of “Law and Finance”: Time to Take Law Seriously’ () Socio-Economic Review . La Porta et al. (). The same result was reached in Simeon Djankov et al., ‘The Law and Economics of SelfDealing’ () Journal of Financial Economics (using different variables for company law). Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer ‘The Economic Consequences of Legal Origins’ () Journal of Economic Literature , . See references in Schnyder et al., above n. , at . For example, Simeon Djankov et al., ‘Courts’ () Quarterly Journal of Economics . For a review of the main indicators, see Mila Versteeg and Tom Ginsburg, ‘Measuring the Rule of Law: A Comparison of Indicators’ () Law and Social Inquiry . Daniel Berkowitz et al., ‘Economic Development, Legality, and the Transplant Effect’ () European Economic Review (familiarity with the transplanted rule); James B. Ang and Per G. Fredriksson, ‘Statehood Experience, Legal Traditions and Climate Change Policies’ () Economic Inquiry . Howell E. Jackson and Mark J. Roe, ‘Public and Private Enforcement of Securities Laws: Resource-Based Evidence’ () Journal of Financial Economics . This challenged the finding by Rafael La Porta et al., ‘What Works in Securities Laws?’ () Journal of Finance that it is effective private enforcement of investor protection, and not public enforcement, which stimulates financial market development.
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Some studies have also considered the role of legal origins (i.e., whether a system falls into the English ‘common law’, or French, German or Scandinavian ‘civil law’ model) as an independent variable. In the original Law and Finance study, legal origins were added as an additional legal variable, with the result being that the common law also fosters financial development. And even more generally, another paper found that common law countries experience faster economic growth than civil law countries. By way of explanation, this research suggests that case law – said to be more typical in the former countries – is more efficient than statute law, since it enables a decentralised, bottom-up construction of the legal order. Moreover, it may be of benefit to the common law that it relies more on markets than the state – as La Porta et al. express it, ‘when markets do or can work well, it is better to support than to replace them’. Parallel to the Law and Finance studies, research in economics (including law and economics) has scrutinised the effect of law on economic and other outcomes. Some of those studies deal with specific legal institutions: for instance, as a large number of specialised high courts may lead to an incoherent legal system, a paper finds that having more high courts has a negative economic effect. More general research has been conducted on property rights and the rule of law. Here, some studies have established that variations in property rights are more decisive for economic development than, for example, geographic and cultural differences, whereby they understand the term property as referring to fairly wide indicators such as risk of expropriation and political stability. With respect to the rule of law, it is also found that performing well in indicators of the rule of law promotes economic prosperity and happiness (though with some doubts about the direction of causality). A common challenge of all of the studies discussed here is that many causal factors may potentially be relevant to the phenomenon under investigation. Missing one or more of those can reduce the explanatory power of the model (R-squared). More severely, it may lead to an omitted variable bias that makes even the findings of the included variables unreliable. Such a bias occurs when the omitted variable is a confounding factor to the equation, that is, it is correlated with the dependent variable and at least one of the independent variables. For example, in the studies which aim to examine whether specific legal rules matter for the economy, any factor that influences both these rules and the economy leads to an omitted
La Porta et al., above n. . In other studies, it was included as an instrumental variable, see Section B (c), below. Paul G. Mahoney, ‘The Common Law and Economic Growth: Hayek Might Be Right’ () Journal of Legal Studies . Similarly, Carmine Guerriero, ‘Endogenous Legal Traditions and Economic Outcomes’ () Journal of Comparative Economics (also considering further complications). Mahoney, ibid. See also Todd J. Zywicki and Edward Peter Stringham, ‘Common Law and Economic Efficiency’ in Francesco Parisi (ed.), Production of Legal Rules (Cheltenham: Edward Elgar, ), p. . La Porta et al., above n. , at . Stefan Voigt, ‘On the Optimal Number of Courts’ () International Review of Law and Economics . Daron Acemoglu, Simon Johnson and James A. Robinson, ‘The Colonial Origins of Comparative Development: An Empirical Investigation’ () American Economic Review ; Dani Rodrik, Arvind Subramanian and Francesco Trebbi, ‘Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development’ () Journal of Economic Growth ; Mahoney, above n. . Daron Acemoglu, Francisco A. Gallego and James A. Robinson, ‘Institutions, Human Capital, and Development’ () Annual Review of Economics ; World Development Report, Governance and the Law () www .worldbank.org/en/publication/wdr; Ruut Veenhoven, ‘Does Happiness Differ Across Cultures?’ in Helaine Selin and Gareth Davey (eds), Views of Happiness and Quality of Life in Non-Western Cultures (Dordrecht: Springer, ), pp. , –. R-squared (or R) refers to the proportion of the variance in the dependent variable that is explained by the independent variables. See, for example, Jeffrey M. Wooldridge, Introductory Econometrics: A Modern Approach (Mason, OH: SouthWestern, th ed., ), pp. –.
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Empirical Methods
variable bias. There are some indications that this could be the case here, as other researchers have challenged the findings of the Law and Finance studies, showing that colonial duration, open trade, financial openness and political factors, such as a competitive party system and political stability, are what really drives institutional and economic differences. (b) What Explains Legal Differences? The Law and Finance studies can also serve as a starting point for empirical research which aims to explain legal differences. In a review article, La Porta et al. display a chart that relates all measured legal differences to legal origins. This claim of a strong path dependency of legal origins is often merely based on an assessment of group differences. Only some of the Law and Finance research uses regression analysis in order to examine the reasons for legal differences. For example, studies on the burden of entry regulations, the regulation of labour markets, the incidence of military conscription and the level of formalism in civil procedure all find that legal origins are a significant explanatory factor, in addition to other factors such as GDP per capita, the system of government, the left-wing orientation of government and the average age of the population. Empirical research has also examined other reasons that may explain legal differences today, some dealing with specific rules and others with more general legal indicators. For example, a study on the death penalty identifies political and religious differences as the main explanations. A number of studies show how measurements of national culture can be related to differences in rule of law indicators as well as specific legal rules. Differences in geography are also found to be relevant: in one paper it is good to be an island; and another line of research – to be discussed further in the next sub-section below – claims to show that colonial powers which settled in unappealing environments with high settler mortality tended to install extractive political institutions with weak protection of property rights and rule of law standards. This latter research has also been considered in a study which uses an interaction term of these data
Daniel M. Klerman et al., ‘Legal Origin or Colonial History?’ () Journal of Legal Analysis ; Menzie D. Chinn and Hiro Ito, ‘What Matters for Financial Development? Capital Controls, Institutions, and Interactions’ () Journal of Development Economics ; Douglass C. North, John J. Wallis and Barry R. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Cambridge University Press, ); Mark J. Roe and Jordan I. Siegel, ‘Political Instability: Effects on Financial Development, Roots in the Severity of Economic Inequality’ () Journal of Comparative Economics . La Porta et al., above n. . Typically, a t-test that compares the means of two groups. Simeon Djankov et al., ‘The Regulation of Entry’ () Quarterly Journal of Economics ; Juan Carlos Botero, Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer, ‘The Regulation of Labor’ () Quarterly Journal of Economics ; Casey B. Mulligan and Andrei Shleifer, ‘Conscription as Regulation’ () American Law and Economics Review ; Aron Balas et al., ‘The Divergence of Legal Procedures’ () American Economic Journal: Economic Policy . See also Anu Bradford et al., ‘Do Legal Origins Predict Legal Substance?’ () Journal of Law and Economics (legal origin significant for differences in property law but not competition law). David Greenberg and Valerie West, ‘Siting the Death Penalty Internationally’ () Law & Social Inquiry . Amir Licht et al., ‘Culture Rules: The Foundations of the Rule of Law and Other Norms of Governance’ () Journal of Comparative Economics ; Amir Licht, Chanan Goldschmidt and Shalom Schwartz ‘Culture, Law, and Corporate Governance’ () International Review of Law and Economics ; Lewis S. Davis and Claudia R. Williamson, ‘Culture and the Regulation of Entry’ () Journal of Comparative Economics ; Giuseppe Dari-Mattiacci and Carmine Guerriero, ‘Law and Culture: A Theory of Comparative Variation in Bona Fide Purchase Rules’ () Oxford Journal of Legal Studies . Heather Congdon Fors, ‘Do Islands Have Better Institutions?’ () Journal of Comparative Economics . Acemoglu et al., above n. ; Acemoglu et al., above n. .
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on settler mortality and legal origins in order to determine the sources of legal differences, while another one finds that ethnic fractionalisation is more important than both of these factors. Further research has addressed differences as regards court decisions. Some of it has again a focus on legal origins. For example, one study relates low judicial resolution rates to countries of French and socialist legal origin, and another study relates the success rate of the European Commission in the Court of Justice of the EU to the French legal origin of the reporting judge. Differences between cross-citations can also be examined empirically: here, my joint work with Martin Gelter on supreme courts of European countries has found that the variables of population of the cited country, low level of corruption, and knowledge of the language of the cited court have the primary bearing on which courts are likely to be cited (with factors such as legal traditions, culture and politics being of secondary importance). (c) Law’s Endogeneity and Use of Instrumental Variables Does law influence society or vice versa? The foregoing seems to indicate that causality often goes both ways. Econometrically, this possibility of reverse causality is an example of the problem of ‘endogeneity’. The occurrence of endogeneity means that the regression results are biased, since any independent variable needs to be exogenous to the causal model that the regression aims to test. For instance, it is therefore said that such cross-sectional studies ‘will hardly ever be sufficient to establish a causal claim’. However, in principle, it is possible to use an instrumental variable (IV) in order to address the problem of an endogenous independent variable. Such an IV needs to be highly correlated with this endogenous variable but exogenous to the dependent variable. When several IVs are available, it is possible to apply a two-stage least squares (SLS) regression in order to determine a single IV estimator. Some of the Law and Finance studies suggest that ‘legal origin’ can be an IV for such endogenous legal variables and this IV has subsequently also been applied to questions of constitutional law. The rationale is that being a common or civil law country influences the
Daniel Oto-Peralías and Diego Romero-Ávila, ‘The Distribution of Legal Traditions around the World: A Contribution to the Legal-Origins Theory’ () Journal of Law and Economics . Meghana Ayyagari et al., ‘What Determines Protection of Property Rights? An Analysis of Direct and Indirect Effects’ () Journal of Financial Econometrics . Stefan Voigt and Nora El Bialy, ‘Identifying the Determinants of Judicial Performance: Taxpayers’ Money Well Spent?’ () European Journal of Law and Economics . Angela Huyue Zhang, Jingchen Liu and Nuno Garoupa, ‘Judging in Europe: Do Legal Traditions Matter?’ () Journal of Competition Law & Economics . Martin Gelter and Mathias Siems, ‘Language, Legal Origins, and Culture before the Courts: Cross-Citations between Supreme Courts in Europe’ () Supreme Court Economic Review . The general definition of endogeneity is that the independent variable is correlated with the error term (e.g., Wooldridge, above n. , p. ). Holger Spamann, ‘Empirical Comparative Law’ () Annual Review of Law and Social Science , . Similarly, Jonathan Klick, ‘Shleifer’s Failure’ () Texas Law Review , (cross-sectional comparisons as ‘close to worthless in terms of having confidence in causality’). On IV estimation and SLS in general see, e.g., Wooldridge, above n. , pp. –. For example, Djankov et al., above n. ; La Porta et al., above n. ; Djankov et al., above n. . See also Mahoney, above n. , at –. For constitutional law, see Lanse Minkler and Nishith Prakash, ‘The Role of Constitutions on Poverty: A Cross-National Investigation’ () Journal of Comparative Economics (then also, e.g., applied in a study that examines the role of constitutions on poverty); Adam S. Chilton and Mila Versteeg, How Constitutional Rights Matter (Oxford: Oxford University Press, ), p. (for IVs for the ratification of human rights treaties).
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Empirical Methods
country’s specific rules on a particular matter, and that for most countries of the world it was the (exogenous) colonial impact which made a country a member of the common or civil law family. However, there are serious concerns about this IV. To start with, it is based on a misguided understanding of the notion of legal families, in particular the perception that all countries clearly (and regardless of the area of law) belong either to the common or the civil law. In addition, as acknowledged by the authors of the Law and Finance studies, the variable of legal origins may capture a variety of ways as to how, say, being a common law country – or even wider, being a former British colony – has influenced its economic and social life today. Thus, legal origins are unreliable IVs. Another prominent and controversial example of an IV is suggested in the research by Daron Acemoglu and colleagues on the colonial origins of comparative development. The main interest of this research is also a ‘law matters’ question, namely the relationship between good law – here: property rights and the rule of law – and economic growth. The IV for law is settler mortality, as it is assumed that colonial powers which settled in unappealing environments with high settler mortality tended to install extractive political institutions with weak protection of property rights and rule of law standards. Yet, here too, this causal relationship can be very weak: it is likely that the conditions of high settler mortality also had a long-term impact elsewhere, for example through the human capital of the settlers or direct environmental constraints. It has also been found that the estimations of settler mortality rates are based on unreliable evidence for more than half of the countries. Thus, here too, results using this IV are likely to be unreliable. With respect to research that aims to explain legal differences, the main example of IVs are the studies which explain these differences by reference to culture. The problem of endogeneity here is that the causal relationship between culture and law is likely to go in both directions. Thus, these studies use information about linguistic variations as IVs for the cultural variables – the argument being that culture and language are correlated and that language and law are uncorrelated (i.e., language is exogenous). Most of the recent studies applying this approach are conducted by economists. Yet, the possible link between culture and language has actually been developed by linguists and psychologists – who call it the ‘linguistic relativity hypothesis’ (or ‘Sapir-Whorf hypothesis’). Thus, in these latter fields this link is, so far, a hypothesis with only some empirical evidence – not a proven theory. It is therefore also suggested that this IV is rather speculative.
For details, see Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), pp. –. La Porta et al., above n. , at , . See also Chilton and Versteeg, above n. , pp. , (legal origins can affect outcomes directly or through multiple legal channels; thus, it is unlikely that they affect, say, growth exactly through the specific laws they aim to instrument in a study). For a similar assessment see Spamann, above n. , at . Acemoglu et al., above n. ; Acemoglu et al., above n. . See also Section B (b), above. Gani Aldashev, ‘Legal Institutions, Political Economy, and Development’ () Oxford Review of Economic Policy ; Edward L. Glaeser et al., ‘Do Institutions Cause Growth?’ () Journal of Economic Growth . David Y. Albouy, ‘The Colonial Origins of Comparative Development: An Empirical Investigation: Comment’ () American Economic Review . See references in above n. . See, for example, ‘The Linguistic Relativity Hypothesis’ ( February ), see https://plato.stanford.edu/archives/ sum/entries/relativism/supplement.html and the criticism by John H. McWorther, The Language Hoax: Why the World Looks the Same in Every Language (New York: Oxford University Press, ).
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The quest for suitable IVs has produced many more, and often more specific, examples related to either the law or other variables included in the regression analysis. An alternative approach is to acknowledge that there is endogeneity and that the regression results should therefore be understood as showing a mere correlation between variables. Subsequently, nonquantitative methods may come into play, in particular, for example, if fieldwork or interviews show that there seems to be indeed a particular causal relationship between law and society. In addition, data with a time dimension – and thus the topics of the next two sections – can be a (more) robust means of establishing the existence of (more) causal relationships. . Panel Data Analysis Panel data refers to data sets that contain observations about different units across time. Of course, any data point for a particular country and year is likely to be correlated with the data of the same country for the other years. Thus, the empirical analysis needs to account for the possibility of autocorrelation. For the legal variables in particular, it can be a problem of panel data analysis that the law often remains the same for many years. This reduces the variance of the variable and thus the probability of identifying a significant effect. It also means that panel data involving legal variables do not work well if the time frame is very short or if there has not been considerable variation across time. A main advantage of panel data is that the availability of two dimensions (in the present case, typically countries and time) facilitates the ability to control for confounding factors and thus reduces the risk of omitted variable bias. For example, using country-fixed effects automatically considers all factors that have remained unchanged in each of the countries. This use of panel data can be seen in many studies of empirical comparative law with both country and year fixed effects, for example, as they deal with the causal links between effective state institutions and democracy, the availability of the death penalty and the murder rate, labour rights and de facto worker protection, and divorce laws and divorce rates. Panel data can also be helpful in tackling the problem of endogeneity. In some studies of empirical comparative law (as well as other fields) this is simply done by lagging the values of the
For example, Anu Bradford and Adam Chilton, ‘Trade Openness and Antitrust Law’ () Journal of Law and Economics (predicted trade as IV for trade openness); John J. Donohue, ‘Empirical Evaluation of Law: The Dream and the Nightmare’ () American Law and Economics Review , – (for discussion about IVs for crime policy intervention); Filippo Belloc, ‘Law, Finance and Innovation: The Dark Side of Shareholder Protection’ () Cambridge Journal of Economics (government’s independence and rule of law as IVs for market capitalisation). For an example, see Carsten Gerner-Beuerle et al., ‘Why Do Businesses Incorporate in other EU Member States? An Empirical Analysis of the Role of Conflict of Laws Rules’ () International Review of Law and Economics . Cf., for example, Daniel J. D’Amico and Claudia Williamson, ‘Do Legal Origins Affect Cross-Country Incarceration Rates?’ () Journal of Comparative Economics , (for a short time series, noting ‘the difficulty in claiming strong causal inferences’). For this problem see Section B (a), above. Haakon Gjerløw et al., ‘Stairways to Denmark: Does the Sequence of State-building and Democratization Matter for Economic Development?’, V-Dem Working Paper () ; Mark Gius, ‘The Impact of the Death Penalty and Executions on State-Level Murder Rates: –’ () Applied Economics Letters ; Wade M. Cole, ‘Strong Walk and Cheap Talk: The Effect of the International Covenant of Economic, Social, and Cultural Rights on Policies and Practices’ () Social Forces ; Libertad Gonzalez and Tarja Viitanen, ‘The Effect of Divorce Laws on Divorce Rates in Europe’ () European Economic Review . Other panel studies use a random effect model, for example, Niclas Berggren, Christian Bjørnskov and Therese Nilsson, ‘Do Equal Rights for a Minority Affect General Life Satisfaction?’ () Journal of Happiness Studies ; Robbert Maseland, ‘Is Colonialism History? The Declining Impact of Colonial Legacies on African Institutional and Economic Development’ () Journal of Institutional Economics .
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Empirical Methods
independent variables by one year (and, as a robustness check, using lags of two or three years), based on the intuitive reasoning that the past can explain the present, but not vice versa. For example, in studies of the does-law-matter variant, such a method has been used for the questions of whether stringent dismissal laws foster innovation and of whether the death penalty has an effect on the murder rate. A number of studies on law as a dependent variable also lag the independent variables to address endogeneity, for instance dealing with the determinants of military conscription, corporate tax rates, investor protection and labour standards. The same is also done in the research on the spread of constitutional provisions across countries and time, whereby some of the studies also include ‘spatial lags’ to capture factors such as a shared language between countries. However, concerns remain, in particular since the possibility often cannot be excluded that there are other unobserved sources of endogeneity (notably, autocorrelated errors). Thus, more advanced approaches of dynamic panel data analysis employ a general method of moment (GMM) estimator or equivalent methods (including SLS as a sub-category of GMM). Technical details are beyond the scope of this chapter, but some examples shall be provided: for instance, SLS has been used in panels concerning the impact of labour rights on de facto worker protection and the impact of a combined effect of an independent judiciary and property rights on economic growth; and GMM has been applied in studies on the relationship between law and finance, unaffiliated with the cross-sectional Law and Finance research discussed earlier. A number of papers originating from projects at the Centre for Business Research (CBR) of the University of Cambridge use two further approaches developed for panel data. First, research by Peseran et al. has found that GMM estimators are unreliable for studies with a low number of observations. Moreover, they may be unsatisfactory since they mostly capture
Viral V. Acharya et al., ‘Labor Laws and Innovation’ () Journal of Law and Economics ; Tomislav V. Kovandzic et al., ‘Does the Death Penalty Save Lives? New Evidence from State Panel Data, to ’ () Criminology and Public Policy . Victor Asal, Justin Conrad and Nathan Toronto, ‘I Want You! The Determinants of Military Conscription’ () Journal of Conflict Resolution ; Zhiyuan Wang, ‘Choosing a Lesser Evil: Partisanship, Labor, and Corporate Taxation under Globalization’ () Political Research Quarterly ; Marco Pagano and Paolo Volpin, ‘The Political Economy of Corporate Governance’ () American Economic Review ; Luca Messerschmidt and Nicole Janz, ‘Unravelling the “Race to the Bottom” Argument: Foreign Direct Investment and Different Types of Labour Rights’ () World Development Article . Benedikt Goderis and Mila Versteeg, ‘The Diffusion of Constitutional Rights’ () International Review of Law and Economics ; Tom Ginsburg and Mila Versteeg, ‘Why Do Countries Adopt Constitutional Review?’ () Journal of Law, Economics, and Organization . For example, Marc F. Bellemare, Takaaki Masaki and Thomas B. Pepinsky, ‘Lagged Explanatory Variables and the Estimation of Causal Effect’ () The Journal of Politics ; William Robert Reed, ‘On the Practice of Lagging Variables to Avoid Simultaneity’ () Oxford Bulletin of Economics and Statistics . Based on Manuel Arellano and Olympia Bover, ‘Another Look at the Instrumental Variable Estimation of ErrorComponents Models’ () Journal of Econometrics . Daniel H. Cole, ‘The Varieties of Comparative Institutional Analysis’ () Wisconsin Law Review ; Stefan Voigt and Jerg Gutmann, ‘Turning Cheap Talk into Economic Growth: On the Relationship Between Property Rights and Judicial Independence’ () Journal of Comparative Economics . Frederick S. Ahiabor et al., ‘Shareholder Protection, Stock Markets and Cross-Border Mergers’ () Economics Letters ; Daniel Oto-Peralías and Diego Romero-Ávila, Legal Traditions, Legal Reforms and Economic Performance: Theory and Evidence (Cham: Springer, ), pp. –; Emanuela Carbonara, Enrico Santarelli and Hien Tran ‘De jure Determinants of New Firm Formation: How the Pillars of Constitutions Influence Entrepreneurship’ () Small Business Economics . See www.cbr.cam.ac.uk/research/research-projects/completed-projects/law-development-finance-in-rising-powers/ and http://cbr.cam.ac.uk/research/research-projects/completed-projects/law-finance-development/.
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short run effects. Peseran et al.’s method corrects both of these points, which is useful for empirical comparative law given the relatively low number of countries and the often-delayed effect of law reforms. Second, to fully understand whether law matters for something else or whether there is a reverse causal relationship, it is possible to use Granger causality tests. Strictly speaking, Granger causality identifies precedence rather than causation, but it can be taken as a sign that causal relations may be present and may thereby help to indicate the general direction of a causal relationship. Applying these latter two approaches to data on shareholder protection, the findings of the CBR research differ sharply from the Law and Finance studies as they show only weak, if any, evidence of a positive effect of shareholder protection, while there is stronger evidence of reverse causality, in the sense of stock market development at the country level generating changes in shareholder protection law. . Quasi-Experiments In some cases, observational data can be regarded as forms of quasi-experiments. The core advantage that unites these quasi-experiments is that, as ‘real’ experiments, they distinguish between the treatment and control group and, in doing so, may reduce the problems of omitted variables and endogeneity. However, whether a situation that allows the method of a quasiexperiment is available is often a matter of luck: thus, quasi-experiments are unlikely to be a panacea for all studies of empirical comparative law. (a) Difference in Difference The main idea of a ‘difference-in-difference’ approach is that an event has had a different effect on two groups and that those groups can therefore be considered as treatment and control groups. Applied to empirical comparative law, this event may for example be a new law or court decision which affects some countries (or distinct parts of a particular country) but not others. This different effect of the law can simply be displayed graphically or with descriptive statistics. For example, a study on the possible effect of the death penalty on crime rates compares changes to the crime rates of US states which re-introduced the death penalty with states without the death penalty by way of calculating the means of these treatment and control
M. Hashem Pesaran, Yongcheol Shin and Ron P. Smith, ‘Pooled Mean Group Estimation of Dynamic Heterogeneous Panels’ () Journal of the American Statistical Association . Robert F. Engle and C. W. J. Granger, ‘Co-Integration and Error Correction: Representation, Estimation, and Testing’ () Econometrica . Simon Deakin, Prabirjit Sarkar and Mathias Siems, ‘Is There a Relationship between Shareholder Protection and Stock Market Development?’ () Journal of Law, Finance, and Accounting . In addition to the examples discussed in this section, some of the literature also includes the use of instrumental variables (see section B (c), above) as a category of quasi-experiments. See, for example, Jeffrey M. Wooldridge, Econometric Analysis of Cross Section and Panel Data (Cambridge, MA: MIT Press, nd ed., ), pp. –. For a recent example, see Angela Zorro Medina et al., ‘The Unintended Consequences of the U.S. Adversarial Model in Latin American Crime’, Working Paper , see https://ssrn.com/abstract= (examining the effect of Colombia’s staggered introduction of the adversarial model on crime). A classical study in labour (law and) economics is David Card and Alan B. Krueger, ‘Minimum Wages and Employment: A Case Study of the Fast-Food Industry in New Jersey and Pennsylvania’ () American Economic Review .
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Empirical Methods
states. Another example examines the case of UN diplomats, who used to be shielded from parking fines until this rule changed in . This rule change is the event and this study then displays graphically how diplomats from high/low corruption countries changed their behaviour accordingly. Other difference-in-difference studies often start with graphic displays and descriptive statistics but then continue with regression analysis. The reason why the former are usually not sufficient is that two groups of countries are unlikely to be fully identical. Thus, regression analysis adds control variables. A specific requirement of difference-in-difference analysis is the common (or parallel) trends assumption. It requires that the difference between the two groups has been constant over time but for the treatment. This is said to be a problem in empirical comparative law, since law reforms do not occur randomly in one country but not in others. However, there is also some variation between studies in this field. In some of them, the event is a court decision which had relevance for some units (e.g., countries) but not others. This is not because of any specific reason related to these units. For example, in a study from the US, the event is an unexpected judicial decision that affected the legal enforceability of debt contracts in some US states but not others, and a study from the EU uses the case law of the Court of Justice on corporate mobility as an event. Some other difference-in-difference studies are based on variations between law reforms across countries. For example, there are a number of such studies on topics of company and insolvency law; yet, only some of these studies explicitly state that the parallel trends assumption holds. (b) Matching The goal of matching is to relate each treated observation to an untreated one – in other words, to check the treated observations against counterfactuals. In the case of empirical comparative law, for example, the treatment may be whether countries have or do not have a particular law. The covariates (i.e., the other independent/control variables in the terminology of regression
John J. Donohue and Justin Wolfers, ‘Uses and Abuses of Empirical Evidence in the Death Penalty Debate’ () Stanford Law Review , –, ; Donohue, above n. , at . Raymond Fisman and Edward Miguel, ‘Corruption, Norms, and Legal Enforcement: Evidence from Diplomatic Parking Tickets’ () Journal of Political Economy , –. For example, Krishnamurthy V. Subramanian and Frederick Tung, ‘Law and Project Finance’ () Journal of Financial Intermediation , –; Reiner Braun et al., ‘Does Charter Competition Foster Entrepreneurship? A Difference-in-Difference Approach to European Company Law Reforms’ () Journal of Common Market Studies , –. See, for example, Michael Lechner, ‘Treatment Effects and Panel Data’ in Badi H. Baltagi (ed.), The Oxford Handbook of Panel Data (Oxford: Oxford University Press, ), pp. , –. Spamann, above n. , at n. ; Christoph Engel, ‘Empirical Methods for the Law’ () Journal of Institutional and Theoretical Economics (‘all legal choice is historically contingent’). Colleen Honigsberg, Robert J. Jackson Jr. and Richard Squire, ‘How Does Legal Enforceability Affect Consumer Lending? Evidence from a Natural Experiment’ () The Journal of Law and Economics . Marco Becht, Colin Mayer and Hannes F. Wagner, ‘Where Do Firms Incorporate? Deregulation and the Cost of Entry’ () Journal of Corporate Finance . Subramanian and Tung, above n. (stating that there is an ‘absence of differential trends’); Braun et al., above n. (employing different treatment groups); Rainer Haselmann, Katharina Pistor and Vikrant Vig, ‘How Law Affects Lending’ () The Review of Financial Studies (noting similarity of countries and that law reforms were largely exogenous); John Armour and Douglas Cumming, ‘Bankruptcy Law and Entrepreneurship’ () American Law and Economics Review . See Stephen L. Morgan and Christopher Winship, Counterfactuals and Causal Inference: Methods and Principles for Social Research (Cambridge: Cambridge University Press, nd ed., ) (advocating a ‘counterfactual approach to causal analysis’, with ibid. – on matching).
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analysis) are used to match the treated observation with the most similar untreated one. Subsequently, using the matched observations, it is possible to compare the means of the treated and untreated groups and evaluate them further with regression analysis. Until recently, there was only one example of a study that used matching techniques with comparative legal data. It dealt with the effect of patent protection on pharmaceutical innovations, using panel data from countries. In of these countries such patent protection was introduced in the period studied. This was then compared with the countries without such patent protection, as well as those which had always provided such protection. Matching has now also been applied in a study of empirical comparative law on the effect of human rights. This study matches ‘countryyear observations that include the relevant constitutional right to country-year observations that do not include the right’ (whereby, in order to account for the remaining problem that states which comply with human rights are more likely to provide for them in the constitution, it uses a measure of states’ preferences regarding treaty commitments). In economics and finance there are also some examples with a legal dimension: for instance, two studies match firms from common and civil law countries in order to evaluate how judicial quality may affect firm exports and commitment to statements about corporate social responsibility. As with other empirical tools, matching can only work as well as the data which are included. As a general requirement, matching assumes that all relevant covariates are included; thus, there should be no unobserved important confounders. Good data also matter in the sense that the matching process requires a substantial overlap between treatment and control groups (i.e., it may not work if there are too few or diverse observations). Finally, it is worth noting that matching can even be applied to cross-sectional data; yet, this also means that certain problems may remain: for example, without data that have a time-dimension, matching does not solve the problem that there may be endogeneity due to reverse causality. (c) Discontinuities Regression discontinuity design and matching both create subsets of comparable units. However, the former has the advantage over matching that it can account for unobservable
Yi Qian, ‘Do National Patent Laws Stimulate Domestic Innovation in a Global Patenting Environment? A CrossCountry Analysis of Pharmaceutical Patent Protection, –’ () Review of Economics and Statistics (using the ‘Mahalanobis matching’ technique as a way to manage missing data). A related approach is Alberto Abadie Alexis Diamond and Jens Hainmueller, ‘Synthetic Control Methods for Comparative Case Studies: Estimating the Effect of California’s Tobacco Control Program’ () Journal of the American Statistical Association (comparing the effect of California’s Tobacco Control Program with other US states using a ‘synthetic control method’). Adam S. Chilton and Mila Versteeg, ‘Do Constitutional Rights Make a Difference’ () American Journal of Political Science . However, Chilton and Versteeg, above n. , pp. – now use an event study methodology, with matching and other methods as robustness checks. Yue Ma, Baozhi Qu and Yifan Zhang, ‘Judicial Quality, Contract Intensity and Trade: Firm-Level Evidence from Developing and Transition Countries’ () Journal of Comparative Economics ; Marc Goergen et al., ‘The Relationship Between Public Listing, Context, Multi-Nationality and Internal CSR’ () Journal of Corporate Finance . See also Niels Petersen and Konstantin Chatziathanasiou, ‘Empirical Research in Comparative Constitutional Law: The Cool Kid on the Block or All Smoke and Mirrors?’ () International Journal of Constitutional Law , – (matching cannot solve the problem of omitted variables). These requirements are often called Conditional Independence Assumption (CIA), that is the potential outcomes need to be independent of treatment status; cf. Lechner, above n. , pp. –. See generally Daniel E. Ho and Donald B. Rubin, ‘Credible Causal Inference for Empirical Legal Studies’ () Annual Review of Law and Social Science , –.
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factors. Specifically, it is based on thresholds in the data set which allow us to compare whether the effect is similar or different for observations just below and above the threshold. The main requirement is that assignment of this threshold needs to be almost random (i.e., leading to treatment and control groups). As such, this approach is not feasible if agents can act strategically in order to decide whether they fall within or outside the threshold. Two examples from empirical comparative law illustrate regression discontinuity design with the threshold of national borders. The first paper examines the effect of formal property rights on de facto property protection in Ghana and Côte d’Ivoire. Considering that de facto property protection may also be due to social and cultural factors, it controls for these by way of considering closeness to the Ghana/Côte d’Ivoire border as a discontinuity of the formal law but not these other factors (ultimately finding that formal property rights have no legal effects). In a similar vein, the second paper starts with the observation that in Africa, weaker female marital property laws are correlated with higher female HIV rates. It then uses the distance to borders to control for social and cultural factors which may also play a role (finding that law does indeed matter). Another example, also of the ‘does-law-matter’ variant, is about the effect of minimum age-ofmarriage laws on child marriage, here using the threshold of the minimum age as a discontinuity. As with borders, the advantage is that individuals cannot influence whether they are below or above the threshold. It should be noted that in other situations with a legal threshold this assumption would not hold: for example, most company laws have various thresholds for the rights and obligations of shareholders based on the percentage of their share ownership; yet, this is not ‘random’ – thus, it is not suitable for a regression continuity design. C. METHODOLOGICAL PROBLEMS
Empirical comparative law faces a number of methodological problems, in particular insofar as it aims to show causal connections. The following categorises these under the headings of ‘problems with “law”’ and ‘problems with “comparison”’. This is not meant to imply that these problems are only relevant to empirical comparative law; indeed, as we will see, some of them relate to more general econometric debates. . Problems with ‘Law’ Previous sections already addressed the problem of ‘law’s endogeneity’ (i.e., that law may be on either side of the causal equation). A further general problem with ‘law’ is that it requires mechanisms to translate the content of the law into numerical values that can be used in regression analysis. Thus, studies of empirical comparative law often apply a procedure of index construction, coding and aggregation of variables. This introduces elements of subjectivity (or even flaws) which can influence the empirical outcome. For example, while the first key study in the field of Law and Finance found that better shareholder protection is associated with more
Ryan Bubb, ‘The Evolution of Property Rights: State Law or Informal Norms?’ () The Journal of Law & Economics . Siwan Anderson, ‘Legal Origins and Female HIV’ () American Economic Review . Matthew Collin and Theodore Talbot, ‘Do Age-of-Marriage Laws Work? Evidence from a Large Sample of Developing Countries’, Center for Global Development Working Papers /. See Section B (c), and , above. See also Ho et al., Chapter (in this volume).
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developed capital markets, subsequent studies that re-did the coding or used a different index did not confirm this association. With respect to some of the empirical research on the possible deterrence effect of the death penalty, it is also said that uncertainties of measurement and evaluation make it ‘difficult to conclude anything that would be relevant for policy purposes’. Econometrically, such shortcomings can either lead to a measurement error or to an omitted variable bias. For example, an empirical study on shareholder protection that only uses one country’s rules as a benchmark suffers from a systematic error affecting the measurement’s accuracy. It may also be the case that cross-country variations in laws make it difficult (if not impossible) to formulate a testable hypothesis about general statements on the relationship between law and society. In other words, ‘to put the issue plainly, there is no accepted theory of law that applies to every legal system and to which legal scholars in every country can appeal in explaining the particular institutions or rules of their own systems’. Such doubts can also be phrased as a matter of external validity: while the quantitative research discussed here aims to identify non-idiosyncratic causal relationships, it only holds when all other things are equal (ceteris paribus). In particular, any empirical regularity based on findings from data collected in the past may not necessarily work in the future given the dynamics of an ever-changing world. Law’s normative dimension also poses challenges for empirical comparative law. Recent years have seen claims about publication bias and a replication crisis in scientific research, due in part to the tendency to only publish research with significant results. In the context of the studies discussed in this chapter, it may therefore be no coincidence that almost all of the published papers claim to have found that ‘law matters’, possibly because those with a different result did not get published. It may be suggested that a ‘meta-analysis’ of studies on a particular topic could address this publication selection bias; yet, how precisely this could be implemented is also bound to be subjective. In the general statistical literature, some blame the crude approach of frequentist statistics, in particular the threshold of ‘statistical significance’, for the replication crisis. The standard procedure of frequentist statistics is that the alternative hypothesis is accepted if the results of the regression analysis are statistically significant at the per cent (or lower) level. With this approach, the aim is to be cautious about accepting the hypothesis; in other words, it is regarded as more important to avoid false positives (‘type I errors’) than false negatives (‘type II errors’). However, it is doubtful whether this is always good advice for legal and policy questions: ‘if there is a serious normative problem, not doing anything because one cannot choose between two
See Section B (a), above. Holger Spamann, ‘The “Antidirector Rights Index” Revisited’ () Review of Financial Studies ; John Armour et al., ‘Shareholder Protection and Stock Market Development: An Empirical Test of the Legal Origins Hypothesis’ () Journal of Empirical Legal Studies ; Deakin et al., above n. . Gebhard Kirchgässner, ‘Econometric Estimates of Deterrence of the Death Penalty: Facts or Ideology?’ () Kyklos . For the distinction between systematic and random errors see, for example, Wooldridge, above n. , p. . This can also be phrased as a problem of ‘sample heterogeneity’, Ha-Joon Chang, ‘Institutions and Economic Development: Theory, Policy and History’ () Journal of Institutional Economics , . Thomas S. Ulen, ‘A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method of the Study of Law’ () University of Illinois Law Review , . For the discussion see, for example, ‘Reproducibility of Scientific Results’, December , see https://plato .stanford.edu/entries/scientific-reproducibility. For an example, see Philipp Heimberger, ‘Does Employment Protection Affect Unemployment? A Meta-analysis’ () Oxford Economic Papers . See, for example, Blakeley B. McShane et al., ‘Abandon Statistical Significance’ () The American Statistician, – (with further references).
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interventions may not be acceptable’ – or, even more generally, ‘it depends on the normative purpose whether avoiding false positive decisions is indeed paramount, or whether false positives and false negatives have to be balanced out differently’. Fundamentally, as legal scholarship deals with competing values, some even claim that it may regard itself as unable to use objective scientific methods. The difficulty of developing normative suggestions from empirical comparative law can also be seen in some of the criticism directed against the Law and Finance studies. For example, it can be objected that simple reliance on ‘what works’ for financial development is insufficient; in other words, just asking about ‘what works’ disregards the fact that legal systems are also about what is ‘right’. It is also not self-evident that financial development should be law’s only aim: for example, if one uses measures of low poverty rates and income equality as dependent variables, the finding of Law and Finance research may be reversed as civil law countries outperform common law ones. Thus, comparative lawyers need to be sensitive regarding the extent to which empirical research can support their conclusions and its possible limitations. In particular, it is clear that empirical facts can, at best, ‘only’ confirm or refute causal relationships, while the ultimate decision of what this means from a policy perspective hinges on the question of whether the dependent variable is seen as something positive or negative. Another way to link the ‘is’ and the ‘ought’ may be to say that certain normative arguments are based on assumptions about the empirical world; thus, confirming or refuting those assumptions can contribute to an assessment of these normative arguments. . Problems with ‘Comparison’ Empirical comparative law usually examines countries as units. Compared to studies in other fields, including their growing desire to evaluate ‘big data’, it is clear that the number of observations in empirical comparative law is relatively low, even if all countries of the world are included. The
Engel, above n. , at –, (also ibid. at suggesting the use of Bayesian statistics). For further criticism, see also Spamann, above n. , at –. Nancy Levit, ‘Listening to Tribal Legends: An Essay on Law and Scientific Method’ () Fordham Law Review , . Similarly, Madhav Khosla, ‘Is a Science of Comparative Constitutionalism Possible?’ () Harvard Law Review . Cf. David Nelken, Comparative Criminal Justice (Los Angeles: Sage, ) (‘in Anglo-American countries something is right because it works; in other countries a response works because it is right’); David Nelken, ‘Defining and Using the Concept of Legal Culture’ in Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (Oxford: Hart Publishing, ) , – (‘different popular ideas in different countries about the purposes of law and what is to be expected from it’). John Ferguson et al., ‘Shareholder Protection, Income Inequality and Social Health: A Proposed Research Agenda’ () Accounting Forum ; Giuseppe Maggio, Alessandro Romano and Angela Troisi, ‘The Legal Origin of Income Inequality’ () Law and Development Review ; Illan Barriola, Bruno Deffains and Olivier Musy, ‘Law and Inequality: A Comparative Approach to the Distributive Implications of Legal Systems’ () International Review of Law and Economics Article . While David Hume famously claimed that you cannot derive an ‘ought’ from an ‘is’, others have shown that some connection may be possible: for example, John R. Searle, ‘How to Derive “Ought” from “Is”’ () The Philosophical Review ; Xiangyang Qian, ‘On Truth as the Source of Good: An Is/Ought Reinterpretation’ () Filosofi a Unisinos (on the position of Chinese philosophy). For an example of such a reasoning, see Martin Gelter and Mathias Siems, ‘Citations to Foreign Courts: Illegitimate and Superfluous, or Unavoidable? Evidence from Europe’ () American Journal of Comparative Law , (for the question of citations of foreign courts). Cf., for example, Roland Vogl (ed.), Research Handbook on Big Data Law (Cheltenham: Edward Elgar, ). Note that even if all countries are included, these are regarded as a sample, not an analysis of the entire population, see Spamann, above n. , at n. (the relevant population is an ‘abstractly defined set of possible countries rather than the set of presently or formerly existing countries on earth’).
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general econometric literature suggests that one needs to have – observations for each independent variable. In studies of empirical comparative law, however, often many causal factors are potentially relevant to the phenomenon under investigation. Thus, in the context of cross-sectional studies, this can create the problem of omitted variables, as mentioned earlier. If data for only some countries are available, these countries need to include a control group where the main variable of interest is absent. Ideally, the selection of countries should also be a random sample. If the data concern a particular group of countries, the findings have limited external validity: for instance, a study of the securities law of countries with the most developed stock markets would not tell us what matters for stock markets in other countries. Another problem is that countries may not be independent units of analysis. This is often known as ‘Galton’s problem’. It derives from a disagreement between Sir Edward Tylor and Francis Galton at an event in : Tylor presented his anthropological research in order to show deep commonalities between cultures, but Galton objected that these similarities could equally be due to cross-cultural borrowing. A paper from examined this issue empirically: based on cultural data from cultures, it confirmed tests for ‘spatial and phylogenetic autocorrelation’ (i.e., that cultures in nearby locations and with related languages are more similar), with the consequence that simple linear regressions would violate the requirement that standard errors need to be independent of each other. For empirical comparative law in particular, it has been noted that the lack of fully independent units has not received much attention. This may be particularly relevant for empirical studies which aim to explain legal differences given the importance of legal transplants for much of legal evolution. These problems with countries as units of comparison can invite different types of responses. To some extent they can be addressed at the level of the design of the project. For example, in order to reduce the risk of omitted variable bias, it can be helpful to design an empirical study so as to assess a fairly close causal relationship. Thus, a study may be designed to ask about the specific outcome of a particular law rather than its effect on economic growth. Although much of empirical comparative law is focussed on countries, it is also possible to consider other units. For example, variations in the law at the sub-national level, or private legal norms, can provide a larger number of observations than mere cross-country studies – and such studies also fall under the heading of (empirical) comparative law. It is also possible to
See Section B (a), above. Cf., for example, Donohue and Wolfers, above n. , at – (Canada as control group for studies that examine the impact of the death penalty in the US). If this is not the case, econometric tools such as the ‘Heckman correction’ need to be used. Raoul Naroll, ‘Galton’s Problem: The Logic of Cross Cultural Analysis’ () Social Research . E. Anthon Eff, ‘Does Mr. Galton Still Have a Problem? Autocorrelation in the Standard Cross-Cultural Sample’ () World Cultures . Spamann, above n. , at n. . See also Holger Spamann, ‘Contemporary Legal Transplants: Legal Families and the Diffusion of (Corporate) Law’ () BYU Law Review , – (showing how the diffusion within legal families confirms Galton’s problem for comparative law). See Cohn, Chapter , and Caffera et al., Chapter (in this volume). For example, Dionysia Katelouzou, ‘Worldwide Hedge Fund Activism: Dimensions and Legal Determinants’ () University of Pennsylvania Journal of Business Law (how differences in shareholder protection impact hedge fund activism). See, for example, Todd Mitton, ‘The Wealth of Subnations: Geography, Institutions, and Within-Country Development’ () Journal of Development Economics ; Charles R. Shipan and Craig Volden, ‘The Mechanisms of Policy Diffusion’ () American Journal of Political Science (panel analysis of antismoking policies in US cities). For the possibility of comparative law considering such units, see Mathias Siems, ‘The Power of Comparative Law: What Type of Units Can Comparative Law Compare?’ () American Journal of Comparative Law , –.
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use, for example, large data sets on firms or individuals and relate those data to legal differences between countries and legal families. Even if laws are regulated at the country level, it can also be considered that the effect may well differ: for example, it has been shown that differences in regional economic development in Europe are not due to differences in formal institutions but due to cultural differences at the regional level (e.g., indicators on ‘trust and respect for others, and confidence in individual self-determination’). Other responses would aim to address the aforementioned problems with advanced econometric methods. The econometric literature has developed means to deal with specific forms of autocorrelation: for instance, for spatial autocorrelation, researchers can apply a ‘spatial lag model’ or a ‘spatial error model’, which both require methods of maximum likelihood estimation. It is also possible to think about the relationship between countries as a network: here, there are also econometrical tools that can address the dependence country-pair relations in a network. Yet, if the number of observations is very small, it can also mean that econometric methods are simply not feasible. For example, a study on the laws of the EU Member States with no further variations (time, regional variations, etc.) would not invite the use of regression analysis. To be sure, other tools may be available to analyse such data. For example, the method of a Qualitative Comparative Analysis (QCA) uses a formalised logical tool, Boolean algebra, in order to identify causal regularities; yet, it is not only (or primarily) based on the data but also requires the expert knowledge of the researcher on plausible causal combinations. Thus, QCA is a mixture between quantitative and qualitative approaches and it has also been applied to some questions of comparative law. D. CONCLUSION
Non-empirical comparative law may not explicitly use phrases that would indicate causal inference. Yet, implicitly, it is very much interested in such topics. For example, as it explores
An early paper making the case for such studies was J. H. Beuscher, Agriculture in a Multi-State World: A Plea for Empirical, Comparative Legal Studies (Madison, WI: University of Wisconsin, ). See, for example, Luc Renneboog and Peter Szilagyi, ‘Creditor Rights, Claims Enforcement, and Bond Performance in Mergers and Acquisitions’ () Journal of International Business Studies ; Lars Hornuf et al., ‘The Economic Impact of Forming a European Company’ () Journal of Common Market Studies ; Stefan Angel and Karin Heitzmann, ‘Over-Indebtedness in Europe: The Relevance of Country-Level Variables for the Over-Indebtedness of Private Households’ () Journal of European Social Policy . Guido Tabellini, ‘Culture and Institutions: Economic Development in the Regions of Europe’ () Journal of the European Economic Association . For an application of these models see Eff, above n. . Such as a gravity model (e.g., Horst Eidenmüller, Andreas Engert and Lars Hornuf, ‘Where Do Firms Issue Debt? An Empirical Analysis of Issuer Location and Regulatory Competition’ () International Review of Law and Economics ) or a quadratic assignment procedure (e.g., Mathias Siems, ‘A Network Analysis of Judicial CrossCitations in Europe’ () Law & Social Inquiry . See, for example, Charles C. Ragin, The Comparative Method (Berkeley, CA: University of California Press, ); Charles C. Ragin, ‘The Logic of Qualitative Comparative Analysis’ () International Review of Social History ; Dirk Berg-Schlosser, Mixed Methods in Comparative Politics: Principles and Applications (Basingstoke: Palgrave, ), pp. –. For example, T.T. Arvind and Lindsay Stirton, ‘Explaining the Reception of the Code Napoleon in Germany: A Fuzzy-Set Qualitative Comparative Analysis’ () Legal Studies ; Catalina Goanta and Mathias Siems, ‘What Determines National Convergence of EU Law? Measuring the Implementation of Consumer Sales Law’ () Legal Studies ; Martin Gelter and Mathias Siems, ‘Letting Companies Choose Between Board Models: An Empirical Analysis of Country Variations’ () University of Pennsylvania Journal of International Law .
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the differences between legal systems in their historical context, it asks researchers to identify the determinants of these differences. Even more profoundly, non-empirical comparative law is typically not opposed to making policy recommendations: thus, it is (or at least should be) interested in knowing how far differences between legal systems impact their empirical effects. It is therefore valuable that, as shown in this chapter, significant progress has been made in empirical approaches to comparative law that may be able to show causal connections about the relationship between law and society. It also provides an opportunity for comparative law to develop closer links to other disciplines. To start with, as the references to the studies discussed in this chapter have shown, it is so far often research in comparative political science, sociology, finance and economics that has addressed legal topics with econometric methods. In addition, it is clear that empirical comparative law is dependent on methodological tools developed in econometrics and statistics – and here it is noteworthy that two of the recent Nobel prizes in economics have been awarded to research on improved methods for the empirical analysis of causal relationships. This chapter has also discussed some of the methodological problems of empirical legal studies. Some of these problems apply to most studies discussed here, for example, the need to code law and the limited number of countries in the world. Yet, we have also seen that some trade-offs are possible, for example, experiments having higher internal validity but observational studies having higher external validity. Sometimes it may also be a matter of good luck: for example, for some questions, certain data, say, from quasi-experiments, may be available – while for others this not the case. Practically speaking, it can sometimes also be feasible to combine different methods of empirical comparative law. For instance, if the data allow it, one may use an experiment (or quasi-experiment) on a particular topic in order to show the precise causal effect, but then also check whether these findings hold across time and space – for example, by cross-sectional or panel data analysis.
Cf., for example, Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Oxford: Clarendon, rd ed., ), p. (‘the comparatist is in the best position to follow his comparative researches with a critical evaluation (. . .) [i]f he does not, no one else will do it’). See https://nobelprize.org/prizes/economic-sciences//summary ( prize awarded to David Card, Joshua D. Angrist and Guido W. Imbens) and https://nobelprize.org/prizes/economic-sciences//press-release/ ( prize awarded to Abhijit Banerjee, Esther Duflo and Michael Kremer).
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Machine-Learning Methods Han-wei Ho,* Patrick Chung-Chia Huang** and Yun-chien Chang***
Comparative lawyers are interested in similarities between legal systems. Artificial intelligence offers a new approach to understanding legal families. This chapter introduces machine-learning methods useful in empirical comparative law, a nascent field. This chapter provides a step-by-step guide to evaluating and developing legal family theories using machine-learning algorithms. We briefly survey existing empirical comparative law data sets, and then demonstrate how to visually explore these using a data set one of us compiled. We introduce popular and powerful algorithms of service to comparative law scholars, including dissimilarity coefficients, dimension reduction, clustering, and classification. The unsupervised machine-learning method enables researchers to develop a legal family scheme without the interference from existing schemes developed by human intelligence, thus providing a powerful tool to test comparative law theories. The supervised machinelearning method enables researchers to start with a baseline scheme (developed by human or artificial intelligence) and then extend it to previously unstudied jurisdictions.
A. INTRODUCTION
Comparative law is going empirical. This chapter illustrates how comparative lawyers can benefit via quantitative analysis of a data set with information on dimensions of property * Assistant Research Scientist and Chief Executive Officer of the Center for Empirical Legal Studies, Institutum Iurisprudentiae, Academia Sinica, Taiwan. Ph.D. in Statistics, National Chengchi University, Taiwan. First author; contribution rate: per cent. ** Assistant Professor, College of Law, National Taiwan University. JSD, University of Chicago Law School. Second author; contribution rate: per cent. *** Jack G. Clarke Professor of East Asian Law, Cornell Law School. JSD, New York University School of Law. Correspondence author; contribution rate: per cent. I thank Academia Sinica, my former academic home, for the main funding (Career Development Award -H). The librarians at Cornell Law School and other universities that I have visited provided great help in identifying foreign law materials. I again thank all the RAs and colleagues who have provided help in understanding the laws in so many jurisdictions. All websites cited in this chapter were last accessed on September . H. Spamann, ‘Large-Sample, Quantitative Research Designs for Comparative Law?’ () American Journal of Comparative Law ; H. Spamann, ‘Empirical Comparative Law’ () Annual Review of Law and Social Science .
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law in jurisdictions, while the previous chapter of this Handbook discussed regression analysis. Comparative law should go empirical. The traditional method is not wrong, but limited, with marginal returns accruing to empirical methods likely increasing. Traditional methodology is limited by subjective categorisation of legal families and an often narrow scope. Conventional comparative lawyers consume voluminous materials and tease out the (dis)similarities among jurisdictions in order to make subjective claims which often result in scholarly disagreement over unobservable biases or differing, often implicit, weighting of attributes. Moreover, as mastering a jurisdiction requires great efforts, traditional comparative lawyers often focus on a few developed nations, leaving the rest under-researched. Given that traditional methodology relies on subjective judgements, the problem of scope is not easily solved by collaboration. Empirical comparative research offers advantages in tackling these issues. First, the coding process constrains researchers’ subjectivity. To collect original data, a researcher must design a codebook that asks exact questions and, within each question, offers a limited number of welldefined choices. The coding process often requires back-and-forth revisions to capture unexpected nuances, but the detailed questions and answers allow researchers to make claims based on objective data rather than subjective judgements. Subjective judgements are not entirely eliminated, as explained below, but their scope is constrained. Moreover, a transparent coding process facilitates scholarly discussions by breaking down high-level debate into manageable and verifiable issues. Previously, researchers might disagree on whether one jurisdiction is similar to another, or whether a jurisdiction belongs to the French civil law tradition. With comparative law data, researchers are able to spell out clearly where (i.e., under what doctrine) the two jurisdictions diverge. This specificity enables researchers to engage in more concrete dialogue. Second, empirical methods push comparative lawyers to broaden the research scope. To gain statistical power, empiricists have to increase the number of observations, and thus include previously understudied jurisdictions. One of us (Chang) has personally read civil codes, and his experience (though in this case N = ) is that the understudied jurisdictions do not necessarily have carbon copy versions of law from more developed jurisdictions. Instead, they often come up with novel solutions for age-old problems. The empirical turn in comparative law thus increases our knowledge of law in, for instance, Central Asia. Moreover, the objective and accurate coding process allows for collaboration and replication. Ideally, any scholar can use the codebook in coding jurisdictions with reformed law, or extend it to previously unstudied jurisdictions. To create panel data on property law, collaboration among scholars using the same coding criterion is necessary; a detailed and accurate codebook makes that collaboration feasible. Such a codebook also enables other researchers to examine the data set for coding errors. In what follows, this chapter will undertake two tasks. Section B offers both a road map to existing comparative law data sets and a delineation of the landscape of empirical comparative law today. It makes clear that many legal fields are still absent in empirical comparative law. Section C offers a toolbox of machine-learning methods, including supervised and unsupervised algorithms, to analyse and visualise comparative law data. Section D concludes.
One dimension, the co-ownership form of tenancy in common, happens to be a constant, as all jurisdictions recognise it. Thus, technically, there are only dimensions in the data set.
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Machine-Learning Methods
B. SUMMARY OF COMPARATIVE LAW DATA
The foundation of any empirical comparative law project is its data. As of July , there are vibrant empirical comparative law discussions in constitutional law and antitrust law with publicly available panel data sets. Corporate law attracts some attention. Property law and civil procedure law are gaining momentum, but other legal fields remain unexplored. Tables .–. provide an overview of existing comparative data sets containing original information about the substance of the law. These comparative law data sets have been used in numerous articles, though space limitations restrict footnote citation to a few exemplary articles. Many of the empirical comparative law projects, in addition to data sets on legal substance, use other law-related variables. Frequently cited data sets can be found in Table .. . Corporate and competition law data Data coder
Data coverage period
La Porta et al. Armour et al.
–
Armour et al.
–
Spamann
Lin and Chang
Bradford and Chilton
–
–
Contents of the data
Availability
Legal rules regarding investor protection and enforcement quality across jurisdictions Law regarding protection of shareholders, creditors, and workers, over variables in total, for five jurisdictions: UK, US, France, Germany, and India Labour regulation index, shareholder protection index, and creditor protection index in , , and countries, respectively Correcting the ‘antidirector rights index’ developed by La Porta et al. Corporate charters of sampled listed companies in Hong Kong, Shanghai, Shenzhen, and Taipei stock exchanges and Company laws in China, Hong Kong, and Taiwan + variables regarding competition laws in jurisdictions
Online Online Online Online Online
Online
M. Siems, ‘Legal Origins: Reconciling Law & Finance and Comparative Law’ () McGill Law Journal ; M. Siems, ‘Varieties of Legal Systems: Towards a New Global Taxonomy’ () Journal of Institutional Economics ; M. Siems, ‘Comparative Legal Certainty: Legal Families and Forms of Measurement’ in M. Fenwick et al. (eds), The Shifting Meaning of Legal Certainty in Comparative and Transnational Law (Oxford: Hart Publishing, ). R. La Porta et al., ‘Law and Finance’ () Journal of Political Economy –. The personal website of Andrei Shleifer, see https://scholar.harvard.edu/files/shleifer/files/data_.zip. The zip file contains two spreadsheets. The ‘legor’ variable in ‘Legal_origins_JEL.dta’ shows legal origins. J. Armour et al., ‘How Do Legal Rules Evolve? Evidence from Cross-national Comparison of Shareholder, Creditor and Worker Protection’ () American Journal of Comparative Law ; J. Armour et al., ‘Law and Financial Development: What We are Learning from Time Series Evidence’ () Brigham Young University Law Review . See www.cbr.cam.ac.uk/research/research-projects/completed-projects/law-finance-development. See www.cbr.cam.ac.uk/datasets/. H. Spamann, ‘The Antidirector Rights Index Revisited’ () Review of Financial Studies . See https://scholar.harvard.edu/hspamann/publications. Y. H. Lin and Y. Chang, ‘An Empirical Study of Corporate Default Rules and Menus in China, Hong Kong, and Taiwan’ () Journal of Empirical Legal Studies . See https://yunchien.lawschool.cornell.edu/data. A. Bradford et al., ‘Competition Law Gone Global: Introducing the Comparative Competition Law and Enforcement Datasets’ () Journal of Empirical Legal Studies . See www.comparativecompetitionlaw.org.
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Han-wei Ho et al. . Constitutional law data
Data coder Versteeg
Elkins and Ginsburg Versteeg and Zackin Gutmann et al.
Data coverage period – – – –
Contents of the data
Availability
Right-related provisions from written constitutions across jurisdictions Characteristics of national constitutions written since US state constitutions
Online
De jure constitutional rules and their de facto implementation
Online
Online
. Property and trust law data Data coder Dari-Mattiacci and Guerriero (through questionnaires answered by legal experts) Chang Hofri-Winogradow
Data coverage period –
As of except for China –
Contents of the data
Availability
Property law regarding adverse possession and good-faith purchaser in jurisdictions dimensions of property in jurisdictions
Online
Trust law in jurisdictions
Online
Online
D. S. Law and M. Versteeg, ‘The Declining Influence of the United States Constitution’ () New York University Law Review ; D. S. Law and M. Versteeg, ‘Sham Constitutions’ () California Law Review . See http://constitutions.org/. Z. Elkins, T. Ginsburg and J. Melton, The Endurance of National Constitutions (Cambridge: Cambridge University Press, ). The textual data are used in, for example, D. S. Law, ‘Constitutional Archetypes’ () Texas Law Review . See https://comparativeconstitutionsproject.org/download-data/. M. Versteeg and E. Zackin, ‘American Constitutional Exceptionalism Revisited’ () The University of Chicago Law Review . See https://sites.google.com/site/jerggutmann/data?authuser=. G. Dari-Mattiacci and C. Guerriero, ‘A Novel Dataset on Horizontal Property Rights in Countries’ () Data in Brief . See http://dx.doi.org/./j.dib.... Y. Chang, N. Garoupa and M. T. Wells, ‘Drawing the Legal Family Tree: An Empirical Comparative Study of Dimensions of Property Law in Jurisdictions’ () Journal of Legal Analysis ; Y. Chang, ‘Adverse Possession Laws in Jurisdictions: Proposals for Reform’ () University of Pennsylvania Journal of International Law ; A. Bradford et al., ‘Do Legal Origins Predict Legal Substance?’ () The Journal of Law and Economics ; Y. Chang, ‘The Good-Faith Purchase Doctrine in Jurisdictions’ () European Property Law Journal ; Y. Chang, ‘Wealth Transfer Laws in Jurisdictions: An Empirical Comparative Law Approach’ () Iowa Law Review ; Y. Chang and H. E. Smith, ‘Convergence and Divergence in Systems of Property Law: Theoretical and Empirical Analyses’ () Southern California Law Review . See https://yunchien.lawschool.cornell.edu/data. A. Hofri-Winogradow, ‘The Statutory Liberalization of Trust Law across Jurisdictions: Leaders, Laggards and the Market in Fiduciary Services’ () UC Davis Law Review . See https://osf.io/tbrz/
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Machine-Learning Methods
. Civil procedure law data Data coder
Data coverage period
Djankov (through questionnaires filled by Lex Mundi attorneys) Spamann
Chang and Klerman
–
–
Contents of the data Procedures to evict nonpaying tenants and to collect a bounced check in jurisdictions Eviction procedure in England, France, Germany, and the USA Settlement rates and features of civil litigation from the world’s top economies
Availability
Online Online
. Sources of law-related variables Dataset
Content
Availability
Polity Project
Characteristics of central governments of jurisdictions since International relations including trades, military, diplomacy, colonialism, etc. Detailed descriptions of the legal systems of more than jurisdictions Measures of government human rights practices for human rights for jurisdictions from to Various data sets, including distance, contiguity, common national language, common ethnic language, etc. Statistics on crime and criminal justice Values held by people around jurisdictions Human values held by people across European jurisdictions
Online
Correlates of War Project International Encyclopedia of Comparative Law CIRI Human Rights Data Set CEPII Database UN–CTS Data World Values Survey European Values Survey
Online Fee-based hard copies Online Online Online Online Online (continued)
S. Djankov et al., ‘Courts’ () Quarterly Journal of Economics . H. Spamann, ‘Legal Origin, Civil Procedure, and the Quality of Contract Enforcement’ () Journal of Institutional and Theoretical Economics . See https://scholar.harvard.edu/files/hspamann/files/spamann_civpro_legalorigins_extrafiles.zip. Y. Chang and D. M. Klerman, ‘Settlement Around the World: Settlement Rates in the Largest Economies’ () Journal of Legal Analysis . See https://yunchien.lawschool.cornell.edu/data. See www.systemicpeace.org/inscrdata.html. See https://correlatesofwar.org/data-sets. See www.humanrightsdata.com/p/data-documentation.html. These variables are from the dist_cepii.dta data set; see Center for Prospective Studies and International Information, ‘GeoDist’ www.cepii.fr/CEPII/en/bdd_modele/download.asp?id=. See www.unodc.org/unodc/en/data-and-analysis/crime-and-criminal-justice.html. Other data regarding cross-jurisdiction cultural values, see S. H. Schwartz, ‘A Theory of Cultural Values and Some Implications for Work’ () Applied Psychology: An International Review ; G. Hofstede, Culture’s Consequences: Comparing Values, Behaviors, Institutions and Organizations Across Nations (London: Sage, nd ed., ); G. Hofstede, Cultures and Organizations: Software of the Mind (London: McGaw-Hill, ). See www.worldvaluessurvey.org/WVSContents.jsp. See https://europeanvaluesstudy.eu/methodology-data-documentation/data-and-documentation/.
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Han-wei Ho et al. . (cont.)
Dataset
Content
Availability
World Bank Doing Business Project Klerman et al. Wimmer and Min
Investor protection, contract enforcement, insolvency, etc.
Online
Colonial history Coloniser–colony relation
Online Online
C. ANALYSING DATA VISUALLY
One major research question in comparative law considers the categorisation of jurisdictions into several legal families, or, more generally, how similar one legal system (in terms of a particular field) is to another. This motivates the introduction of machine-learning algorithms. All the empirical analyses in this section use the comparative property law data set that one of us (Chang) coded. To the extent that the algorithms used require pre-existing categories of legal families (below we use a dichotomy, a trichotomy, and a -group categorisation), they come from Chang’s book and are listed in Table .. Machine learning – a class of algorithms under artificial intelligence (AI) – includes dimension reduction (Section C.), unsupervised learning, and supervised learning. Unsupervised learning includes clustering (Section C.) – and some say including dimension reduction as well, while supervised learning targets classification (Section C.) and regression (see the previous chapter of this Handbook). Visualisation is a critical step in engaging with the theories of legal families. Machine-learning tools help researchers visualise data patterns. With dimension-reduction algorithms, researchers can observe potential grouping patterns among jurisdictions in a D scatter plot. The elimination of noisy dimensions generally improves accuracy in subsequent clustering analyses. (We did not do dimension reduction before clustering in this chapter, as doing so renders the Gower distance not intuitively interpretable.) Although both dimension reduction and clustering lead to groupings of similar jurisdictions in appearance, cluster analysis is indeed the systematic way to find groups in data. Clustering methods, specifically the hierarchical clustering methods, create the hierarchy of clusters in the form of a tree called dendrograms, which displays visually how jurisdictions as clusters are “merged” with one another and thus can be used to develop new legal-family typologies and evaluate existing comparative law theories. In addition, researchers can use existing legal-family categories as labels to do supervised learning and identify key attributes underlying the categories, which serves an explanatory function. Supervised learning
See https://archive.doingbusiness.org/en/doingbusiness. Data from D. M. Klerman et al., ‘Legal Origin or Colonial History?’ () Journal of Legal Analysis , see https:// academic.oup.com/jla/article////. The zip file includes ‘Klerman_etal_LO_v_CO.dta’. The ‘LO’ variable is the authors’ coding of legal origins, and the ‘CO’ variable is their coding of colonial power. A. Wimmer and B. Min, ‘From Empire to Nation-state: Explaining Wars in the Modern World, –’ () American Sociological Review . The data are available for downloading at Andreas Wimmer’s website, see www .columbia.edu/~aw/, under ‘FROM EMPIRE TO NATION-STATE (REPLICATION DATA) Territorial Data, –’. The ‘imppower’ variable identifies the imperial power at a territory. An easier to use dataset can be downloaded from https://github.com/owid/owid-datasets/blob/master/datasets/Colonial%Regimes%%Minner %and%Wim%()/Colonial%Regimes%-%Minner%and%Wim%().csv. K. Zweigert and H. Kötz, Introduction to Comparative Law (Oxford: Oxford University Press, rd ed.,); M. Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), pp. –. Y. Chang, Property Law: Comparative, Empirical, and Economic Analyses (Cambridge: Cambridge University Press, ) pp. –.
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Machine-Learning Methods
. Legal families Numeric label
Group name
Members
Socialist
French
English
German
Quasi-French
Quasi-German
Japanese South African Semi-French Chinese
Armenia, Belarus, Bulgaria, Cuba, Democratic Republic of Congo, Denmark, Finland, Iran, Kazakhstan, Kyrgyzstan, Laos, Lithuania, North Korea, Norway, Russia, Rwanda, Sweden, Tajikistan, Ukraine, Uzbekistan, and Vietnam Afghanistan, Algeria, Bahrain, Belgium, Burkina Faso, Burundi, Chile, Colombia, Comoros, Costa Rica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, France, Guatemala, Guinea, Haiti, Honduras, Iraq, Ivory Coast, Jordan, Kuwait, Libya, Louisiana, Luxembourg, Madagascar, Malta, Mauritius, Mexico, Monaco, Morocco, Nicaragua, Niger, Panama, Philippines, Puerto Rico, Qatar, Senegal, Seychelles, Spain, Syria, Togo, Tunisia, United Arab Emirates, Uruguay, and Venezuela Australia, California, Cyprus, England and Wales, Hong Kong, India, Ireland, Israel, Malaysia, New York, New Zealand, Nigeria, Ontario, Pakistan, Scotland, Singapore, and Uganda Azerbaijan, Georgia, Germany, Greece, Liechtenstein, Mongolia, Slovenia, Switzerland, Türkiye, and Turkmenistan Angola, Argentina, Bolivia, Brazil, Cape Verde, Guinea-Bissau, Indonesia, Italy, Macau, Moldova, Mozambique, Netherlands, Paraguay, Peru, Portugal, Quebec, Romania, São Tomé and Príncipe, Suriname, and Timor-Leste Austria, Croatia, Czech, Estonia, Hungary, Latvia, North Macedonia, Poland, Serbia, Slovakia, and Thailand Cambodia, Japan, South Korea, and Taiwan South Africa Albania, Eritrea, and Ethiopia China
algorithms can also be used to classify a previously unstudied jurisdiction, thus serving a predictive function. Most comparative law data sets, including the property data set used here, code n jurisdictions characterised by p binary (sometimes categorical or continuous) attributes. This n-by-p layout (picture an Excel spreadsheet) can be understood as an n-by-p matrix, in which the rows correspond to the jurisdictions and the columns to the variables. Comparative law data sets generally contain more than three variables (p > ), but plotting n jurisdictions in p-dimensional (one variable, one dimension) space is incomprehensible. Thus, researchers employ one or two approaches before visualising data: calculate similarity coefficients (Section C.), and reduce the dimensions of data (Section C.). Section C. introduces basic ideas regarding similarity coefficients, but can be as simple as elementary school calculations. After thousands of calculations, the n-by-p matrix is transformed into a n-by-n matrix, and each cell in the latter matrix shows the similarity coefficient of a given pair of jurisdictions. The similarity coefficients provide accurate information on the proximity of a given dyad. The shortcoming of the n-by-n matrix is that it cannot be presented in a visually clear manner. Of course, a heatmap like Figure . can be used, but a matrix of jurisdictions contains , cells (*/) below the anti-diagonal line. Human eyes can only see vague patterns.
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Armenia Belarus
ETH CHN
ALB ERI
ZAF
KOR TWN
JPN
KHM
SVK THA
SRB
MKD POL
HUN LVA
CZE EST
AUT HRV
TLS
STP SUR
QBC ROU
PER PRT
NLD PRY
MOZ
MDA
MAC
IDN ITA
CPV GNB
BRA
ARG BOL
TKM AGO
CHE TUR
MNG SVN
LIE
DEU GRC
AZE GEO
SGP UGA
PAK SCT
ONT
NZL NGA
MYS NYS
IRL ISR
HKG IND
ENG
CAL CYP
VEN AUS
ARE URY
TUN
SYR TGO
SYC ESP
QAT SEN
PHL PRI
PAN
NIC NER
MCO MAR
MUS MEX
MLT
MDG
LUX
LBY LA
JOR KWT
IRQ CIV
HND
GIN HTI
FRA GTM
SLV GNO
ECU EGY
DOM
COM CRI
CHL COL
BFA BDI
BHR BEL
DZA
VNM AFG
UKR UZB
SWE TJK
RUS RWA
NOR
LTU PRK
LAO
KGZ
KAZ
IRN
FIN
COD DNK
BGR CUB
ARM BLR
Han-wei Ho et al. 1
Bulgaria Cuba Democratic Republic of Congo Denmark Finland Iran Kazakhstan Kyrgyzstan Laos Lithuania North Korea Norway Russia Rwanda
0.95
Sweden Tajikistan Ukraine Uzbekistan Vietnam Afghanistan Algeria Bahrain Belgium Burkina Faso Burundi Chile Colombia
0.9
Comoros Costa Rica Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea France Guatemala Guinea Haiti Honduras Iraq Ivory Coast
0.85
Jordan Kuwait Libya Louisiana Luxembourg Madagascar Malta Mauritius Mexico Monaco Morocco Nicaragua Niger
0.8
Panama Philippines Puerto Rico Qatar Senegal Seychelles Spain Syria Togo Tunisia United Arab Emirates Uruguay Venezuela Australia
0.75
California Cyprus England and Wales Hong Kong India Ireland Israel Malaysia New York New Zealand Nigeria Ontario Pakistan Scotland
0.7
Singapore Uganda Azerbaijan Georgia Germany Greece Liechtenstein Mongolia Slovenia Switzerland Turkey Turkmenistan Angola
0.65
Argentina Bolivia Brazil Cape Verde Guinea-Bissau Indonesia Italy Macau Moldova Mozambique Netherlands Paraguay Peru Portugal
0.6
Quebec Romania Sao Tome and Principe Suriname Timor-Leste Austria Croatia Czech Estonia Hungary Latvia Macedonia Poland
0.55
Serbia Slovakia Thailand Cambodia Japan South Korea Taiwan South Africa Albania Eritrea Ethiopia China
0.5
. Heatmap on Gower similarity coefficients Note: The anti-diagonal line shows the Gower similarity coefficient of a jurisdiction with itself. The Gower similarity coefficient shows the percentage of agreement among dyads and equals minus Gower dissimilarity coefficient. This heatmap is symmetrical, so researchers can focus on cells below the antidiagonal line. The darker the cell, the more similar in terms of property law a pair of jurisdictions is. Jurisdictions on the Y-axis are sorted alphabetically within the legal families (Table .).
Section C. discusses several popular techniques to reduce variable space dimensions. The basic idea involves selecting fewer variables or creating a few (usually two or three) new variables that are linear or non-linear combinations of the original variables while keeping as much information as possible. For instance, a new variable X may equal .a+.b-.c+.d, where a, b, c, and d are the original variables. At the end of the day, all dimension-reduction algorithms project the observed jurisdictions in (pre-specified) a two- or three-dimensional plot for visual inspection. Such plots aim to preserve the distances between (the property laws of ) jurisdictions characterised in p variables. That is, the larger the distance in the original p dimensions, the larger the distance in the reduced dimensions (such as in D). While results from dimension reduction are easily visualised and are of mathematical rigour, one may be concerned with the interpretability of these results and potential information losses (even though such losses are often substantively very minor). Cluster analysis, on the other hand, is the methodical way that aims to detect groups of similar observations. Comparative lawyers may prefer to use all the p variables first to measure the pairwise similarities between (the property laws of ) jurisdictions and then to identify a limited number of legal families based on
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Machine-Learning Methods . Overview of methods Labelled data needed
Dissimilarity measures used†
Logistic PCA mMDS
No No
No Yes
t-SNE
No
Yes
UMAP
No
Yes
No No
No Yes
K (# of clusters)
Yes Yes Yes
No No No
K (# of neighbours)
Parameters specified
Dimension reduction # of PCs and parameter m # of reduced dimensions (typically ) Perplexity and # of reduced dimensions K (# of neighbours) and # of reduced dimensions
Clustering (unsupervised) k-Modes Agglomerative hierarchical clustering Classification (supervised) kNN Naïve Bayes SVM
Note: † Methods that are based on n*n dissimilarity measures ( minus similarity measures) instead of the original n*p data matrix. PCs stands for principal components.
similarities. Such cluster analysis is part of the unsupervised machine-learning methods (elaborated in Section C.). That said, the dimension reduction techniques, especially the nonlinear ones, are in general a better tool to find complex patterns in data and separate observations into multiple subgroups based on proximity. Thus, the dimension reduction techniques can help researchers visually confirm the performance of clustering algorithms. Once having the groupings and p variables, researchers can construct further classification rules to predict group membership, which is especially useful for classifying understudied jurisdictions. This task of classification is part of the supervised machine-learning methods (elaborated in Section C.). It is supervised because labels (Jurisdiction X belongs to Legal Family Y) have to be included in the training data. Table . summarises the methods used in this part. Before we proceed, readers should note that certain technical terms are synonyms or closely related concepts. Groups, classes, and labels refer to (in our context) the legal families. Attributes, dimensions, and independent variables refer to (in our context) the variables (denoted as p) that capture the substance of property law. Observations refer to the studied jurisdictions (denoted as n). Distance and dissimilarity can be used interchangeably. We follow the machine-learning literature in using these interchangeable terms. . Similarity Measures for Binary Data Quantitative methods as simple as similarity measures deepen our understanding of legal families. Traditionally, whether legal systems in two jurisdictions are similar has been left to knowledgeable comparatists reading copious materials. Their answers, however, have been
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Han-wei Ho et al. . Four categories of attribute comparison Jurisdiction j
Jurisdiction i
a c
b d
qualitative at best, and the task soon becomes impossible when comparing dozens of jurisdictions. With comparative law data, similarity becomes a quantitative question, and reliable and consistent comparisons across dozens of jurisdictions are feasible, and often illuminative. There are multiple measures of similarity. To illustrate with our data, this chapter focuses on binary data. Although the Euclidean distance formula is sometimes applied to binary data, as if they were continuous, other dissimilarity-based distance measures serve better. To compute the (dis-)similarity between jurisdictions i and j requires four values from a cross-tabulation (Table .), where a is the number of variables in jurisdictions i and j with the value of one, b is the number of variables where one jurisdiction is coded one whereas the other is coded zero, and so on. The Jaccard binary similarity coefficient is calculated as a/(a + b + c) and the Gower dissimilarity coefficient is calculated as (b + c)/(a + b + c + d). Figure . shows the distribution of each jurisdiction’s Gower dissimilarity coefficient with English property law. The Gower dissimilarity coefficient with England itself is of course . Other than England itself, Ireland has the lowest Gower dissimilarity coefficient with England: .. The Gower dissimilarity coefficient between England and Italy is ., the highest among any dyad with England. . Dimension Reduction The idea behind dimension reduction is to project data in a higher dimensional space into a new subspace of lower dimensions while retaining as many properties as possible. Dimension reduction enables data visualisation that aids in revealing intrinsic structures and generates new synthetic coordinates. Put plainly, post-reduction, the two-dimensional scatter plot must preserve similarities across jurisdictions. Accordingly, jurisdictions close to one another on the scatter plot are shown to be similar jurisdictions in the original high-dimensional data. Each variable here is a dimension. Originally, each jurisdiction is a data point in a -dimensional space. After the dimension-reduction process, each jurisdiction is shown in a two-dimensional space. In addition to facilitating visualisation, dimension reduction ameliorates the curse of dimensionality, meaning that with more attributes data points become sparser in the high-dimensional space. The gap between data points becomes wider, and apparently close neighbours in the lowdimensional space may be distant from each other in high-dimensional space. The sparseness in high dimensions prevents algorithms from identifying structures and patterns in the data
L. Kaufman and P. J. Rousseeuw, Finding Groups in Data: An Introduction to Cluster Analysis (New York: Wiley, ), p. . One can always return to similarities by computing s=-d, where s and d denote similar and dissimilar measures respectively. P. Jaccard, ‘Distribution de la flore alpine dans le bassin des Dranses et dans quelques régions voisines’ () Bulletin de la Société Vaudoise des Sciences Naturelles . J. C. Gower, ‘A General Coefficient of Similarity and some of Its Properties’ () Biometrics . G. James et al., An Introduction to Statistical Learning (New York: Springer, nd ed., ), p. . H. I. Rhys, Machine Learning with R, the Tidyverse, and MLR (New York: Manning, ), p. .
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https://doi.org/10.1017/9781108914741.012 Published online by Cambridge University Press
Gower Dissimilarity Coefficients 0.4 0.3 0.2 0.1 0.0 No information
. Gower dissimilarity coefficient with English property law
Han-wei Ho et al.
and stands in the way of classification, resulting in erroneous predictions and increasing the risk of overfitting. Another problem caused by the curse of dimensionality is that the distances between a point and its nearest and furthest neighbours are nearly equal in high dimensions, rendering distance meaningless and affecting all distance-based machine-learning algorithms. In most studies, increasing the number of meaningful variables raises the accuracy in classification and prediction, as the additional information reduces what is unexplained in the model. Thus attributes are a double-edged sword – it is not always better to have more attributes. In general, with the number of attributes increasing linearly, the number of observations must increase exponentially to maintain sufficient density in the attribute space. Mathematically speaking, there are generally two types of dimensional reduction techniques: matrix factorisation and neighbour graphs. The former includes many versions of the principal component analysis (PCA), WordVec, and GloVe, to name a few. The latter includes the three types of multidimensional scaling (MDS), t-distributed Stochastic Neighbour Embedding (t-SNE), Isometric Mapping (Isomap), and Uniform Manifold Approximation and Projection for Dimension Reduction (UMAP). Several well-known and popular dimension reduction techniques suitable for our binary attributes – the logistic PCA, metric MDS, t-SNE, and UMAP – are introduced in turn. The latter three algorithms are performed with by Gower distances (dissimilarity matrix), while we input by data matrix when applying logistic PCA. For all algorithms except PCA in this section, we will fit the parameters assuming two-dimensional representation (reduced from D to D) in the following illustrations. (a) Logistic PCA The point of PCA is to find ‘principal components’ (PCs) – linear combinations of the original variables – potentially open to interpretation. PCs have three useful properties: they are linearly uncorrelated, whereas the original variables may be correlated; original variables and PCs explain the same degree of variance, implying that PCs are representative; and parsimony. Reported PCs are automatically sorted in descending order by the proportion of variance explained. Researchers may predetermine a desired threshold of proportion, say per cent, and then choose the number of PCs that meet the threshold. Although the reconstruction of data unavoidably results in information loss, ideally sufficient variance will be explained by a small number of PCs.
Ibid. Ibid. James et al., above n. , p. . Rhys, above n. , p, . The family of auto-encoders, except the linear one, does not belong to the two types in the text. See PyData, ‘A Bluffer’s Guide to Dimension Reduction – Leland McInnes’ [Video], YouTube, February , :–:, see https://www.youtube.com/watch?v=iolLkkyU&t=s. For some, PCA is perhaps the algorithm that first comes to mind when it comes to dimension reduction. The number of new variables (i.e., principal components) PCA creates, however, is in fact equal to the number of original variables, as long as the data matrix is of full rank. Therefore, PCA is a tool of dimension reduction in the sense that users extract and use only some (first k) of the PCs that explain most of the variations. Technically speaking, PCs are found via an orthogonal linear combination of original features that keep the maximal variance successively within data. The PCs are weighted by the variances of original variables in terms of eigenvalues in new dimensional coordinates directed by the corresponding eigenvectors. PCA is explicitly structured as a tool to remedy multicollinearity among multiple independent variables.
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Machine-Learning Methods
The classic PCA proposed by Pearson is not suitable for binary data. Several approaches deal with binary data under PCA. In this chapter we employ the logistic PCA formulation proposed by Landgraf and Lee that retains the structure of classic PCA. Before running the logistic PCA, researchers have to set two parameters: k and m by crossvalidation, where k stands for the number of PCs, and m stands for the natural parameter approximation from the saturated model. For each k, researchers should pick m that produces the lowest negative loglikelihood. The upper-left plot in Figure . shows the negative loglikelihood for different values of m when k = . We choose m = . For each of the, say, different values of k, researchers (or the algorithm, automatically) select m under each k and then draw a ‘scree plot’ (analogous to such a plot for ordinary PCA), shown in the upper-right plot of Figure .. The X-axis is the number of PCs (k) used. The Y-axis is the marginal percentage of deviance explained by the additional kth component (rather than eigenvalues in ordinary PCA). Unlike in a scree plot under ordinary PCA, a line in a scree plot under logistic PCA may not be monotonically decreasing. The purpose of drawing a scree plot is to eyeball the changes in the values of Y for each k and researchers have to determine (somewhat subjectively) how many PCs to use. Here, we pick k = , as the rule of thumb is to pick the number of PCs when the line starts to flatten out. With k = and m = , we fit the logistic PCA and draw the first two PC scores in a scatter plot (the lower-left plot in Figure .). The first PC is shown in the X-axis, whereas the second PC is shown in the Y-axis. The dots are coloured by the three large legal families, so as to compare the results of PCA and hierarchical clustering. The first two PCs do an admirable job of distinguishing among them. Unreported tables show the list of variables that are the key variables in these two PCs. We are unable to identify a common theme in these variables. This is not uncommon in PCA – while the PCs are potentially interpretable, researchers in practice often find it hard to name the PCs. In what follows, we introduce three techniques designed to reduce dimensionality in the sense of mapping close (distant) points in a high-dimensional space to close (distant) points in a low-dimensional space. The units in the new X- and Y-coordinates obtained after performing the three distance-preserving methods are all ‘meaningless’, in the sense of being neither directly interpretable in terms of the original variables, nor useful in further distance calculations.
K. Pearson, ‘LIII. On lines and Planes of Closest Fit to Systems of Points in Space’ () The London, Edinburgh, and Dublin Philosophical Magazine and Journal of Science . See https://cran.r-project.org/web/packages/logisticPCA/vignettes/logisticPCA.html. A. J. Landgraf and Y. Lee, ‘Dimensionality Reduction for Binary Data through the Projection of Natural Parameters’ () Journal of Multivariate Analysis . The R. logisticPCA package has been provided by one of the authors to perform logistic PCA. See A. J. Landgraf, ‘R package “logisticPCA”: Binary Dimensionality Reduction (Version .)’ (), see https://github.com/andland/logisticPCA. ‘The principal component loadings matrices are not necessarily nested.’ That is, ‘the first k- columns of the k-dimensional loading matrices are not necessarily equal to the (k-)-dimensional loading matrix’. Landgraf and Lee, above n. , at . The first family includes the English group, the socialist group, and China. The second family contains the German group, the quasi-German group, the Japanese group, and South Africa. The third family consists of the French group, the quasi-French group, and the semi-French group. Using a supervised machine-learning method such as linear discriminant analysis could identify a few key variables, see below n. . Researchers should find them easier to understand.
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Marginal % of deviance explained by the additional kth component
Negative loglikelihood (in thousands)
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The second principal component (PC2)
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14
The first principal component (PC1)
. Results of logistic PCA Notes: In the lower-left plot, the two PCs are produced by logistic PCA, whereas the three different markers, representing three legal families, are from hierarchical clustering.
Machine-Learning Methods
(b) mMDS Multidimensional scaling (MDS) methods are linear, the simplest manifold learning techniques, and arguably a stepping stone to understanding the generalisation from linear to nonlinear dimension reduction using manifold learning. There are three common types of MDS: classical MDS (cMDS), which is a special case of metric MDS (mMDS) when the distance function (also called the metric) is the Euclidean distance, and non-metric MDS (nMDS). All types of MDS attempt to find optimal low-dimensional coordinates of data points such that their interpoint distances after scaling are as close as possible to the pairwise distances observed in high-dimensional space. As Euclidean distance is suitable only for continuous variables, we cannot use cMDS. Instead, we input the Gower distance (rather than the original binary variables) into mMDS, which also requires quantitative dissimilarities. The mMDS is designed to find an optimal set of data points in a reduced dimension such that the ‘fitted values’ are as close as possible to the original dissimilarities. It follows that the interpoint distances in the low dimension are not interpretable. The loss function that mMDS tries to minimise is called STRESS (Standardised Residual Sum of Square). The value of STRESS ranges between and , with indicating a perfect fit. STRESS serves as an index of goodness of fit. Ideally, STRESS , conditional probability kNN estimates can be thought of as following a majority vote of the k nearest neighbours. Assume that jurisdiction X is the object of research and its property law is mostly similar to Thailand, Cambodia, and
Rhys, above n. , p. ; Rencher, above n. , p. .
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Machine-Learning Methods . Confusion matrix by SVM Grouping by hierarchical clustering
Predicted grouping by SVM
Japan. When selecting k = , X is assigned to the quasi-German family (Table .), to which Thailand, X’s closest neighbour, belongs. When k = , X is assigned to the legal family to which the majority of the three closest neighbours belong. In this case, because both Cambodia and Japan – though not Thailand – belong to the Japanese family, X is still assigned to the Japanese family. As the previous example shows, the choice of k is critical. When k = , the decision boundary is flexible enough to have low bias but will be subject to very high variance. It is advised not to use k = . As k grows, the algorithm becomes less flexible and produces a decision boundary that is closer to linear. Nonetheless, low variance comes at the expense of high bias. A larger k is also computationally more demanding. Finding the ‘optimal’ value of k in kNN is not easy. It is advisable to choose an odd number for k in a binary classification task, and to set k equal to the square root of the number of observations in training data, or a half thereof. The ultimate criterion, however, is the accuracy derived from the train–validate–test process. kNN is said to be a lazy learner, as it simply stores training data and does its work in the prediction phase. Moreover, in order to provide accurate classification, kNN requires a lot of observations relative to the number of predictors, that is, n much larger than p. The results of kNN can be presented in different ways. Figure . shows the decision boundaries for k = and k = when the task is to learn to distinguish between three large legal families. kNN itself does not reduce dimensions. The two principal components used as the two axes derive from the results of logistic PCA (Figure .). Alternatively, researchers could use the scatter plot from t-SNE, UMAP, or mMDS. Figure . is only for expositional purposes. Table . shows the confusion matrix for kNN when k = . The accuracy rate is . per cent, higher than that of SVM, shown in Table ..
There are several ways to break a tie vote. Rhys, above n. , p. . James et al., above n. , p. . See https://stackoverflow.com/questions//value-of-k-in-k-nearest-neighbor-algorithm. Rhys, above n. , p. . Readers interested in the process of cross-validation may refer to ibid., p. . Ibid., p. . James et al., above n. , p. .
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Han-wei Ho et al. 5-nearest neighbour
The second principal component
1-nearest neighbour
The first principal component
. Decision boundaries under kNN Notes: The two dimensions are produced by logistic PCA, while the labels of three legal families come from hierarchical clustering. The winding lines are decision boundaries produced by kNN. As k increases, the decision boundary is smoothed.
(b) Naïve Bayes Classifier The naïve Bayes classifier is a simple but effective learning algorithm applying the Bayes theorem and a strong (thus the name ‘naïve’) assumption that for a given class the attributes are conditionally independent. The kNN algorithm estimates the conditional probability of an unlabelled jurisdiction belonging to one of groups based on class membership of its nearest k jurisdictions in the training set. By contrast, the naïve Bayes classifier estimates conditional probability by combining the likelihood of attributes given a particular class, the prior probability of the particular labelled class, and the prior probability of the predictors. The confusion matrix reported in Table . shows that naïve Bayes results in a perfect match. (c) SVM The history of SVM began with a desire to identify the maximal margin classifier. This algorithm seeks to find the ‘optimal separating hyperplane’ dividing data points in two. Multiple separating hyperplanes are possible, and the optimal one maximises the margin, which is the vertical distance between the hyperplane and the data point closest to the hyperplane. Thus, the optimal separating hyperplane is also called the maximal margin hyperplane. The purpose of maximising the margin in the training data set is to reduce the frequency of mis-classifying data points in the test data set. Support vectors refer to data points touching the margin because the optimal separating hyperplane can be considered to be supported by border data points. When support vectors move, the optimal separating hyperplane changes, meaning it remains unchanged despite nonborder data points changing.
We fit naïve Bayes model with the naïve Bayes function in the R package e. Rhys, above n. , p. . James et al., above n. , pp. –. Rhys, above n. , p. .
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Machine-Learning Methods
To understand SVM, one needs to first understand the distinction between hard and soft margins. The hard margin approach does not allow any misclassification and no data point is allowed to fall within the margin. It is applied when data are separable by linear boundaries. By contrast, the soft margin approach is applied when the data are linearly non-separable – that is, no optimal separating hyperplane can perfectly classify the two groups. The soft margin approach tolerates a certain extent of non-ideal classifications such as misclassification or data points falling within the margin. A hyperparameter must thus be set to specify the threshold of tolerable misclassification and its severity. The hyperparameter ‘penalises’ non-ideally classified data points. The less tolerant researchers are of non-ideal classification, the more heavily the penalty should be set – the heavier the penalty, the fewer support vectors, and the more similar the hyperplane identified will be to that identified under the hard margin approach. The optimal separating hyperplane identified under the soft margin approach is the support margin classifier. SVM goes a step further. Both the hard and soft margin approaches are applicable when the boundary for separating data points is linear. SVM, by contrast, is applied in non-linear decision boundaries. SVM projects the data through a kernel function to higher dimensions and ‘learns a hyperplane that best separates the classes, but it allows cases to fall inside its margin’ in the higher-dimension space, as data that appear to be non-linear in lower dimensions may be considered separable by linear boundaries in higher dimensions. In carrying out SVM, researchers should note that SVM is a binary classifier. When there are more than two groups, an unlabelled observation will be analysed in the one-against-one manner (that is, analysed times) and classified as belonging to the group to which it is most often assigned. Table . shows the confusion matrix by SVM. Most intriguingly, SVM ‘erroneously’ assigns the four East Asian jurisdictions in Group – Taiwan, South Korea, Japan, and Cambodia – to the French supercluster. SVM’s accuracy is ., which may be considered good enough. D. CONCLUSION
This chapter uses a new comparative property law data set as an example to demonstrate how to apply machine-learning methods to comparative law data sets. In particular, this chapter surveys various dissimilarity measures, dimension-reduction algorithms, and clustering and classification methods – thus covering both supervised and unsupervised machine-learning algorithms. The field of artificial intelligence is fast developing, and new algorithms will emerge. Nonetheless, the goals of the algorithms will be similar – understanding the data (often via visualisation) by reducing a large data set to two or three dimensions, categorising the studied objects such as legal systems into several clusters, and utilising what researchers already know or agree with to classify new objects such as a recently reformed legal system. The chapter starts by pointing out the shortcomings of the traditional, non-quantitative comparative law and properly ends with a caveat on the limitations of quantitative comparative law. At least as of now, quantitative comparative law is not the be all and end all. Not all supervised learners perfectly identify the grouping, and unsupervised algorithms come up with different groupings. When non-quantitative and quantitative methods come to the same conclusion, this gives researchers at least tentative peace of mind. When the findings diverge, researchers know their next step.
Rhys, above n. , p. . We used the SVM command in an R package to implement the analysis. D. Meyer et al., ‘e: Misc Functions of the Department of Statistics, Probability Theory Group (Formerly: E), TU Wien. R package version .-’ (), see https://CRAN.R-project.org/package=e.
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Legal Families and Geographical Comparisons
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Civil Law Andrea Ortolani*
This chapter develops along three lines. First, following a historical approach, it describes the birth and development of the civil law tradition – from the rediscovery of Roman law in the High Middle Ages to the enactment of the German Civil Code. The second part presents two cases where the civil law model has been transplanted outside of Europe: Latin America and Japan. The final part offers a critical outlook on what the civil law tradition means today.
A. INTRODUCTION
In modern comparative law, civil law refers to the legal tradition that originated in Western continental Europe and has developed since the eleventh century, and that from the sixteenth century began to take root in several other parts of the world. Romanic, Latin or other similar terms emphasising its Roman law origins are also used as synonyms for civil law. In this chapter, the term Roman law refers only to the body of rules and scholarship developed by Roman jurists between the fifth century BCE and the sixth century CE. Use of the phrase civil law to label the legal systems of continental Europe and civilians to describe the jurists of those systems is so widespread and taken for granted that it is not easy to trace their origins or first use. Roman jurists spoke of the ius civile and Justinian’s work is called Corpus Iuris Civilis. Medieval scholars studied and practised a law that was civil, in the sense of
* Associate Professor, University of Tsukuba, Japan. The author thanks Michele Graziadei for his precious comments on an early draft. Mistakes and inaccuracies are my own. For example, in Pic and Esmein wrote of a ‘group latin’: Paul Pic, ‘Rôle, Fonction et Méthode Du Droit Comparé Dans Le Domaine de La Législation Économique et Sociale et Spécialement de La Legislation Ouvriere. Memoire Au Congrès International de Droit Comparé de ’, Procès verbaux des séances et documents (Paris: Librairie générale de droit et de jurisprudence, ); Adhemar Esmein, ‘Le Droit Comparé et l’enseignement Du Droit. Rapport Au Congrès International de Droit Comparé de ’, Procès verbaux des séances et documents (Paris: Librairie générale de droit et de jurisprudence, ). Wigmore wrote about the ‘Romanesque’ legal system. John Henry Wigmore, A Panorama of the World’s Legal Systems (St Paul, MN: West, ). For an overview of the most influential taxonomies of the world’s legal systems presented by comparative law scholars, see Csaba Varga, ‘Taxonomy of Law and Legal Mapping: Patterns and Limits of the Classification of Legal Systems’ () Acta Juridica Hungarica .
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Andrea Ortolani
non-religious, but they did not define themselves as civilians. Outside observers, most likely English lawyers, coined such expressions in the Middle Ages, when they looked at the doctores juris civilis in continental Europe. One early documented use of leges civiles to refer to the continental legal tradition appears in Fortescue’s De laudibus legum Angliae in . The use of civil law as synonym for continental European legal tradition was common at the beginning of the seventeenth century, when William Fulbecke published A Parallele or Conference of the Civill Law, the Canon Law, and the Common Law of this Realme of England and Thomas Ridley published A View of the Civil and Ecclesiastical Law. This use took root, spread, and was eventually adopted by continental jurists themselves. Every comparative law scholar offers either an explicit or an implicit taxonomy of the world’s systems. Different taxonomies suggest different historical and geographical boundaries between traditions, reaching different conclusions on what the fundamental features of each are. Taxonomies are fluid and subject to revisions: traditions, legal families, and legal systems can converge, mix, or split. Scholars can identify and name new traditions or sub-traditions. Despite these disagreements, the civil law tradition, or its functional equivalent under a different name, has been a regular component of most, if not all, taxonomies presented in modern comparative law. Not all paint an identical picture. Within the wider notion of civil law, some scholars have identified sub-traditions such as, for example, the French or Roman tradition and the Germanic tradition. Opinions differ on matters such as turning points, milestones, and which legal system can be considered as the archetypical example of the civil law model. Some countries such as France, Germany, Italy, and Spain, are members of the civil law family in any taxonomy known to the author. There is, therefore, a largely overlapping consensus on the chronological, geographical, and theoretical notion of civil law. The cases of presentday Germany and Italy are particularly revealing. Despite the long political fragmentation lasting up to their unifications in the late nineteenth century, most scholars consistently classify the legal systems of their pre-unitary kingdoms, duchies, principalities, and other bodies together in the same tradition, as they see more common traits than differences. The goals of this chapter are three. The first is to offer a historical account of the birth and development of the civil law tradition, from the rediscovery of Roman law in the High Middle Ages to the enactment of the German Civil Code in . This is presented in Sections B and C. The second goal is to present an overview of the diffusion of the civil law model outside of Europe, with a focus on two paradigmatic examples. This is the subject of Section D. As regards the third goal, Section E and the Conclusion offer a critical take on what being a civil law system means nowadays. This is independent of the historical dimension of civil law outlined in Sections B, C, and D.
David Scott Clark, ‘The Idea of the Civil Law Tradition’ in David Scott Clark, Comparative and Private International Law: Essays in Honor of John Henry Merryman on His Seventieth Birthday (Berlin: Duncker & Humblot, ), p. . Luigi Moccia, ‘English Law Attitudes to the “Civil Law”’ () The Journal of Legal History ; FH Lawson, A Common Lawyer Looks at the Civil Law (Ann Arbor, MI: University of Michigan Law School, ). Richard J. Terrill, ‘The Application of the Comparative Method by English Civilians: The Case of William Fulbecke and Thomas Ridley’ () The Journal of Legal History . Clark, above n. . See Halpérin, Chapter (in this volume); Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ); Yun-chien Chang et al., ‘Drawing the Legal Family Tree: An Empirical Comparative Study of Dimensions of Property Law in Jurisdictions’ () Journal of Legal Analysis ; Mariana Pargendler, ‘The Rise and Decline of Legal Families’ () American Journal of Comparative Law ; Varga, above n. ; Jaakko Husa, ‘Classification of Legal Systems Today – Is It Time for a Memorial Hymn?’ () Revue Internationale de Droit Comparé .
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Civil Law
This chapter will follow traditional and largely accepted scholarship on the classification of the world’s legal systems. It is not lost on the author, and it should be clear to the reader, that by accepting and building on mainstream taxonomies because they are largely accepted, this chapter rests to some extent on a circular argument; however, neither critically assessing the legal taxonomies advanced previously, nor proposing an alternative notion of civil law and a new taxonomy are a primary goal of this chapter. Moreover, in this chapter the terms tradition, model, family, style, and other expressions related to the classification of legal systems are considered functional equivalents. The use of one term over another does not imply the acceptance or rejection of the theoretical frameworks sometimes associated with them. B. THE ORIGINS OF THE CIVIL LAW TRADITION
. The Fall of Legal Science in the Early Middle Ages The history and the identity of the civil law tradition is inextricably linked with the Corpus Iuris Civilis (the ‘Corpus’). The Corpus is a massive collection of legal texts: when it was completed, it was . times the length of the Bible, at that time the most known book in the West, despite including only a twentieth of all the sources its compilers began with. It was drafted under the emperor Justinian and organised into four parts. The first is the Codex, a collection of imperial rulings having force of law, first completed in , then replaced by a revised version in . The second is the Digest, an extensive compilation of fragments from various writings of classical Roman jurists, organised by topic into books and completed in . The subject of the Digest is mostly private law: property, obligations and contracts, family law, and inheritance make up the bulk of it, but there are a few books on procedure and criminal law. The third part is the Institutes, a law textbook replicating the Institutes of the second-century Roman jurist Gaius, completed in . Finally, Justinian’s legislation enacted after the completion of the Codex is collected in the Novels. Justinian considered the Corpus as the ultimate and unsurpassable achievement of Roman jurisprudence: he gave it force of law, prohibited jurists from making references to earlier sources, and banned all commentaries on it. Its fate, however, was different from what Justinian expected or wished for. After its enactment, the Corpus received less attention than anticipated, even where it had force of law. The diverging paths of Western Europe and the Byzantine Empire, including the schism between the Latin and the Orthodox Christian Church, resulted in an unanticipated trajectory for the Corpus. It was written in Latin, but Greek was the legal language in the East. For this reason, it was not easily accessible to the majority of Greek-speaking jurists in the Eastern Roman Empire, therefore restatements and summaries with comments appeared in the ensuing centuries. Through these works,
H. Patrick Glenn, ‘A Concept of Legal Tradition’ () Queen’s Law Journal ; George Mousourakis, Comparative Law and Legal Traditions (Cham: Springer, ), p. ; Siems, above n. , p. ; Esin Örücü, ‘Family Trees for Legal Systems: Towards a Contemporary Approach’ in Mark Van Hoecke, Epistemology and Methodology of Comparative Law (Oxford: Hart Publishing, ). Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, ), p. ; Alan Watson, ‘Justinian’s Corpus Iuris Civilis: Oddities of Legal Development, and Human Civilisation’ () Journal of Comparative Law ; John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, Fourth Edition (Stanford, CA: Stanford University Press, ), p. ; Tamar Herzog, A Short History of European Law: The Last Two and a Half Millennia (Cambridge, MA: Harvard University Press, ), p. . Stein, above n. , p. . Herzog, above n. , p. .
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Andrea Ortolani
Byzantine Roman law continued being practised in the Balkans and in Russia; in Greece it was considered the basis of the legal system until . In Western Europe the Corpus was enforced only briefly in the Italian peninsula, before the Lombard conquest. Under Lombard domination in Italy, classical Roman law was vulgarised and unsystematically absorbed into the Lombard codes. In other parts of Western Europe the Corpus never had force of law. Bits of Roman law survived as customs of the Romanised populations or were received by Germanic sources such as the Codex Theodosianus or the Lex Romana Visigothorum, and in Canon law documents. The Corpus, and with it classical Roman law as a body of rules and object of study, largely disappeared until its rediscovery around the eleventh century. After the fall of the Western Roman Empire, the study of law in Europe declined drastically. Jurisprudence had a marginal role in the society of the Early Middle Ages. Law was studied as a branch of ethics, not as an autonomous discipline. Of the major institutions, only two kept legal scholarship alive. The first was the Western Church. During the centuries when formal education was rare in the general population, the clerics were the only people consistently receiving a liberal arts education, and Roman law was a necessary part of it. In this period, a common source of legal knowledge throughout Europe was the Etymologiae of Isidore of Seville, an encyclopaedic work which also detailed the law of the Western empire. The other institutions where the study of law survived, albeit reduced to a minimum, were the courts of Germanic kingdoms. Parts of the Corpus were known in Carolingian Europe and to Lombard jurists in Pavia. They were the first to adopt a method of reading and studying the sources that in the twelfth and thirteenth centuries would be followed by virtually all jurists: taking notes on the text. . The Rediscovery of Roman Law: Glossators, Commentators, and Universities In the Early Middle Ages Roman law fell into oblivion, but the Corpus was not completely lost. Quotes appear in the late eleventh century in deeds of sale, exchange agreements, and other formal instruments, often drafted by notaries. Roman law was more than years old, yet in disputes, the party who could reference Roman sources easily had the upper hand. Adding quotes of Roman law to agreements provided sufficient legitimacy to make them legally binding. However, the use of Roman law was still occasional and uneducated. After centuries without legal professionals, there emerged a need for a class of jurists who could master a sophisticated system of law. This is what the rediscovery of the Digest after the year would provide. The rediscovery of the Digest could not happen without the discovery of a copy of the text. The oldest known copy of the Digest, from which all others derive, is a sixth-century manuscript kept in Pisa, and later seized by Florentines in . In the eleventh century it was transcribed,
Stein, above n. , p. . Charles Radding, The Origins of Medieval Jurisprudence: Pavia and Bologna, – (New Haven, CT: Yale University Press, ). Charles Radding and Antonio Ciaralli, The Corpus Iuris Civilis in the Middle Ages: Manuscripts and Transmission from the Sixth Century to the Juristic Revival (Leiden: Brill, ), p. ff.; Stein, above n. , p. . Stein, above n. , p. . Radding, above n. . Antonio Padoa-Schioppa, A History of Law in Europe: From the Early Middle Ages to the Twentieth Century (trans. Caterina Fitzgerald) (Cambridge: Cambridge University Press, ), p. . Ibid., p. .
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Civil Law
with the usual editing to correct scribal errors and produce a more intelligible text. The resulting copy is now lost, but it served as the source for another manuscript, called the Vulgata, that was completed by at the latest. The Vulgata would become the standard version for medieval legal scholars, starting with those in Bologna. Other parts of the Corpus would be recovered and put together through the twelfth century, when a complete version of Justinian’s work was finally restored. Writing in the thirteenth century, jurist Odofredus succinctly describes the rebirth of the study of Roman law in Europe. He writes about a certain Pepo, a consultant judge, who started teaching law in Bologna with no success. A little later, when a copy of the Corpus was transferred to Bologna, a liberal arts teacher by the name of Irnerius began studying it and teaching its contents. Being a teacher of grammar, he started with an explanation of difficult terms, and later commented on sentences. He wrote down comments between the lines of the text first, and later in the margins. He formed a small group of acolytes, and thanks to him personally, or to his entourage, the Corpus was recomposed in its entirety. As the founder of this school, Irnerius earned the name of lucerna iuris, the ‘lantern of the law’. This historical account and the very existence of a teacher called Irnerius have been questioned, but what cannot be denied is that in the first half of the twelfth century, in Bologna, Roman law was rediscovered and its study rapidly flourished. Irnerius had four pupils: Bulgarus, Iacobus, Martinus, and Ugo, who in turn passed down the teachings of Roman law to younger generations of learners. The fame of the teachers and the rapidly growing prestige of Roman law attracted young students to Bologna from all over Europe. After four to five years, upon completion of their studies, the fresh doctors of law obtained a license to teach (licentia docendi). Those who came from abroad could return to their home countries and start teaching there. In a few decades the study of the Corpus took root in several urban centres of Western continental Europe: Italy, southern France, Spain, Portugal, and even England. This renewed interest in learning spurred the emergence of the educational institution that would dominate higher education, and in particular legal education, in the civil law tradition: the university. Universities began to appear from the twelfth century, first spontaneously as institutions where the interests and needs of students and teachers could be met. Professors were paid directly by the students. Students formed associations to protect their interests vis-à-vis the professors and other parties who met the common needs of their daily lives:
James Gordley, The Jurists: A Critical History (Oxford: Oxford University Press, ), p. ; Stein, above n. , p. ; Radding and Ciaralli, above n. . Stein, above n. , p. . Andrea Padovani, ‘Alle Origini Dell’università Di Bologna: L’insegnamento Di Irnerio’ () Bulletin of Medieval Canon Law ; Radding, above n. , p. . Gordley, above n. , p. ; Mario Ascheri, The Laws of Late Medieval Italy (–): Foundations for a European Legal System (Leiden: Brill, ), p. . Ascheri, above n. , p. . In later times the studies took seven to eight years for secular law, and six years for canon law. Padoa-Schioppa, above n. , p. . Jean-Louis Halpérin, ‘Historical Landmarks in Mapping the Spread of Positive Law Teaching’ in Badouin Dupret and Jean-Louis Halpérin (eds), State Law and Legal Positivism: The Global Rise of a New Paradigm (Leiden: Brill Nijhoff, ), p. . Harold J. Berman, Law and Revolution, The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, ), p. ; Manlio Bellomo, Saggio Sull’università Nell’età Del Diritto Comune (Catania: Giannotta, ); Hilde de Ridder-Symoens, A History of the University in Europe: Volume , Universities in the Middle Ages (Cambridge: Cambridge University Press, ), vol. I; Antonio García y García, ‘The Faculties of Law’ in Hilde de Ridder-Symoens (ed.), A History of the University in Europe: Volume , Universities in the Middle Ages (Cambridge: Cambridge University Press, ), vol. I.
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Andrea Ortolani
mostly book merchants and the landlords of the inns where they were lodged. Later, as the attention that religious and secular authorities paid to higher education grew, more universities were founded by papal or imperial bulls. Teaching was based on the Corpus. While the written word was important, medieval culture was prevalently oral, hence discussions about the texts played a fundamental role. Parts of the Corpus were read, analysed, and discussed as if it was a sacred text, through a pattern that would become standardised and later be known as the mos italicus. Students took notes on the text, between the lines or in the margins. Some notes stressed important sections, others explained difficult sentences, others created connections between passages of the text. The notes were called glossae, and the jurists who followed this style came to be known as the School of the Glossators. Through ‘the resolution of every legal problem by a text and the explanation of every text by means of another’ their aim was to discover the general principles at the core of the Corpus. Legal knowledge was intimately connected with its physical embodiment: the Corpus. Books were expensive: around the beginning of the fourteenth century, an average manuscript cost as much as the yearly salary of a professor, or the room and board of a student for a year. City statutes regulated the circulation of books. Sometimes students sold them when they finished their studies, but most often the freshly minted doctors kept the books enriched by their comments. Once they became teachers, authors were jealous of their glossae – which they would emphasise were their own. When books were produced, the glossae were copied together with the text, however this meant they were accumulated in a disorderly manner. Accursius, a jurist from Bologna, decided to put this vast body of knowledge in order. He collected and reorganised the comments of four generations of Glossators in a work that came to be known as the Glossa Ordinaria: a monumental collection of around , glossae. It became the standard comment on the Corpus, and from that moment until the end of the eighteenth century it was routinely copied or printed alongside the original text. Its influence was so profound that legal scholars in Europe would ordinarily consult the Corpus through Accursius’ work. Courts would not recognise principles of law unless they were also recognised by Accursius’ Glossa. After Accursius, the method for studying the Corpus had to change. The school known as the Commentators put less emphasis on the exegesis of short, sentence-sized bits of text, and focused on longer comments about broader topics, often with an eye on current issues. The tendency to organise knowledge in a well-ordered and cross-referenced system is a distinctive trait of the civil law tradition which continues today. First active in the small university of Orléans from the end of the thirteenth century, these scholars took a critical stance towards the existing scholarship, pointing out the mistakes and the contradictions of the Glossators. Besides, the Commentators innovated the mos italicus – taking a more systematic approach to the text, focusing less on the reading, interpretation, and highlighting of important points, and more on the solution of real or invented cases. Among the first commentators from Orléans were Jacques
Bellomo, above n. . David S. Clark, ‘The Medieval Origins of Modern Legal Education: Between Church and State’ () American Journal of Comparative Law , . Gordley, above n. , p. . Ascheri, above n. , p. . Bellomo, above n. , p. . Padoa-Schioppa, above n. , p. ; Stein, above n. , p. . Gordley, above n. , p. .
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Civil Law
de Revigny and Pierre de Belleperche. This method was then followed and perfected in Italy by Cinus da Pistoia, Cinus’ pupil Bartolus and by Bartolus’ pupil Baldus. Bartolus was an immensely gifted and prolific author. His works were studied and respected in all civil law countries, to the point that Bartolism became a synonym of the School of Commentators. Baldus, in line with the changed political climate of the late fourteenth century, explored new fields besides the Corpus, such as canon law, feudal law and the emerging field of commercial law. The civil law tradition is the result of this revolution in legal education and in the system of sources of law. For centuries, this would remain the shared legal system, or in the language used by legal scholars of the time, Latin, the ius commune of continental Europe. Doctors in jurisprudence were the most typical product of universities. Some became clerics or professors, others were hired by sovereigns to work for them in the administration or as judges. They were not, however, the only experts of law in the late Middle Ages. From the mid-twelfth century, documents drafted according to certain formalities and signed by a notary started having full probative value in trials and the legal power of an enforceable title, making them efficient for litigation. Notaries started to play an important role in society, in particular in the Italian communes, from which they then spread to other European regions. In countries ruled by strong monarchies, the power of notaries was subject to royal control, but the idea that documents drafted following the criteria developed by notaries had a specific legal force became a distinctive feature of the civil law tradition. The standard education of notaries was not based on university training, but on a period of practice with a senior notary. Models of notarial acts were collected in formularia. The oldest formulary known today was created in Bologna and dates back to , but other formularies were drafted later, showing a deep knowledge of Roman law, local statutes and customs, canon law, and feudal law. In Rolandinus dei Passeggeri wrote the Summa totius artis notariae, a work divided in four parts devoted to contracts, wills, judicial acts and copies, and renewals of deeds, covering all the knowledge required by notaries. Rolandinus also added to his work a commentary, later continued by Petrus de Anzola and Petrus Boattieri. This came to be known as the Rolandina and served for centuries as the standard text for the education and daily practice of notaries. Like many other professions in the Middle Ages, judges and advocates were organised in guilds, regulated by city statutes. The two roles of defence lawyer and adjudicator were not clearly differentiated. With time, cities restricted access to the professions to aristocrats or wealthy citizens. University education was not always required: in some cases training was provided by other private schools. . Canon Law The fundamental traits of the civil law tradition are generally identified as the reception of Roman law through the Corpus, university education, primacy of written sources, and, in modern times, codification. Canon law however, though an autonomous legal system, also
Padoa-Schioppa, above n. , p. ; Ascheri, above n. , p. . Ascheri, above n. , p. . Halpérin, above n. , p. ; Clark, above n. , p. . Padoa-Schioppa, above n. , p. . Ibid., p. .
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exerted a significant and sometimes underappreciated influence on the birth and development of the civil law tradition. Canon law is the body of norms regulating the internal organisation and governance of the Western Church and its interactions with the people. Provisions from many sources have accumulated through the centuries since the birth of Christianity: the Bible, Church councils, writings of the Fathers of the Church, decisions of Popes. Several collections gathered these diverse legal sources, but these collections were not officially sanctioned, and canon law never had one single authoritative text. During the early years of the rediscovery of the Corpus in Bologna, a Bolognese monk called Gratian, possibly a pupil of Irnerius, collected and arranged , sources of canon law, solving their contradictions and adding his explanatory comments. He completed his work, the Concordantia discordantium canonum (The Concordance of Discordant Canons), which came to be known as the Decretum, in . Gratian’s Decretum became to canon law what the Corpus was to secular law: a well-organised, standardised, and, despite not being officially recognised, de facto authoritative text. This would soon provide canon law with an aura of prestige, gaining the respect of secular scholars and making it a discipline worthy of study in universities. Many doctors of Roman law also earned a doctorate in canon law, thus becoming doctores utriusque iuris, doctors of both laws. The reciprocal influences between canon and civil law run deep, making their histories inextricably intertwined. This is for many reasons. First, as the milieu in which Christianity appeared was the Roman Empire, the methods and technical language of canon law mirrored those of Roman law from its very beginnings. Some subjects, such as marriage and family relations, inheritance, and usury, were regulated, to an extent, by both the law of the Church and by secular law, making coordination between the two a pressing need. Moreover, it was clear that canon law could not encompass provisions on everything. The Decretum stated that when necessary, in the absence of provisions of canon law, general rules of secular law would apply. Just as the Glossators studied and commented on the Corpus, eventually producing a work that – by crystallising their knowledge – led to the end of the school, the scholars who studied and commented the Decretum, known as the Decretists, also reached their peak around the first half of the thirteenth century. Johannes Teutonicus, a Decretist from Bologna, wrote in the Glossa ordinaria for the Decretum. Since the law of the Church had the ultimate goal of ensuring the salvation of people’s souls, canon law shows a constant attention to the ethical aspects of law, even in the most technical areas. This is related to the rekindling of natural law by canonists. Natural law was a longestablished tradition in the Western world, dating back to Greece, but the canonist reflections on ius naturale and its relationship with positive law would later influence the development of secular law. Canonists held that natural law was substantially equivalent to divine law, henceforth superior to positive law. They would develop theories that would eventually flow into secular law, such as the doctrine of good faith, the idea of nudum pactum, and the notion of a fair price. Procedural law was an area in which the influence of canon law would have deeper and longer-lasting effects. The Fourth Lateran Council of limited trials by ordeal, paving the
Berman, above n. , p. . Ascheri, above n. , p. ; Clark, above n. . Padoa-Schioppa, above n. , p. . Ibid., p. .
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Civil Law
way for later reforms. The notions of written procedure and written judgment, of testimony under oath with heavy sanctions for perjury, of legal representation, the idea of differentiating between simple procedures based on equity and solemn or formal ones, and the principle of majority in court decisions can be ascribed to the influence of the procedure followed in ecclesiastical courts. In general, the inquisitorial approach to adjudication, or the idea that the judge has the power, and in certain circumstances, the legal and moral duty, to investigate ex officio the facts of the case in order to discover the truth supporting the verdict, was a product of ecclesiastical procedure. From the ecclesiastical courts, and with the rise of absolutism and of state power in the sixteenth century, this model spread to all secular courts of continental Europe. . Legal Humanism and Communis Opinio At the end of the fifteenth century, two conflicting trends appeared in continental law: an interest in a critical reassessment of the Corpus and of the scholarship based on it, and a turn in legal education towards the needs of practitioners. Legal humanism marked a sharp break from the legal culture of previous centuries. It developed as a reaction to the trend towards pompous academicism by the late Bartolists. The first humanist was the Italian Andrea Alciato, who taught in Italy and later in Bourges, France. He had little influence in Italy, and legal humanism reached its peak with another scholar from Bourges, Jacques Cujas. For this reason, this school took the name of mos gallicus, the ‘French style’, despite its followings in Germany and, to a certain extent, also in Italy. The humanists looked at the Corpus through the lenses of history and philology, and aimed first at reconstructing the original text, purging it of the mistakes introduced by the copyists and the jurists before them. In general, they wanted to situate the Corpus in its historical context, regardless of its practical use. In their works, the ‘cultured jurisprudence’ as it was also known, brought to light the many layers of law amassed together in the Corpus, identifying the law of the late Roman empire, classical Roman law, and even the law of the period of the Twelve Tables. This made them question the role of the Corpus as a source of law in their contemporary society. By relativising the significance of the Corpus, the humanists were undermining the universal validity of Roman law, so far uncritically accepted. In his Francogallia, François Hotman, another leading humanist, stressed the idea, unconventional at the time, that French law was not a product of Roman law, but of Frankish and feudal law. In the Antitribonian, figuratively addressed to the main drafter of Justinian’s Corpus Tribonian, Hotman argued that Roman law was inadequate to serve as the legal backbone of contemporary France. The ideological foundations of legal positivism and legal nationalism, and the beginnings of the long journey towards the codifications of the s, can be seen here in their primordial form. The second trend was the antithesis of legal humanism. It consisted of the preservation and perfecting of the method started by the Commentators. While the impact of the Humanist critique had far-reaching effects, in the short term it did not substantially change legal practice or
Berman, above n. ; Padoa-Schioppa, above n. , p. ; Adriano Cavanna, Storia Del Diritto Moderno in Europa. . Le Fonti e Il Pensiero Giuridico (Milan: Giuffrè ), p. . Merryman and Pérez-Perdomo, above n. . Mauro Cappelletti, John H. Merryman and Joseph M. Perillo, The Italian Legal System: An Introduction (Stanford, CA: Stanford University Press, ), p. . Stein, above n. , p. .
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legal education. For most practitioners, the works of Bartolus, Baldus, and their followers were much more relevant than the scholarly considerations of the humanists. In order to bring a degree of legal certainty to the plethora of interpretations, and to guide the decisions of the courts, an idea already envisaged by Baldus emerged: that the communis opinio, that is, the widely followed interpretation of previous scholars, had an authority equal to, if not greater, than the text of the Corpus. The gradual departure from the text of the Corpus, started by the Glossators, had reached its maturation – with the ‘ultimate triumph of the commentary over the text’. . The System of the Ius Commune The civil law model is characterised by a canon of documents, a method for acquiring and imparting the knowledge recorded in those documents, and a group of persons entrusted with preserving and transmitting that method. Romans ‘began to produce jurists’ in the second century BC. A part of the legal knowledge they developed is lost, but the information recorded in the Corpus would become the foundation of the civil law model. After the rediscovery of the Corpus, the doctores educated in universities became the ‘oracles of the law’ of Western Europe. In order to enjoy the social prestige and the political legitimation associated with an idealised past, they presented themselves as the successors of the Roman jurists, even if the texts they studied, the methods they used, and the context of their scholarship were fundamentally different. While the revived Roman law was the backbone of legal education and of private law, the Corpus was not the only source of law in medieval Europe. Other sources, in particular of public law, coexisted with Roman law – sometimes overlapping and contradicting each other. In general, the system was dualist: a body of law common to all of Western Europe, that is the private law rules of the ius commune and canon law, and local laws such as customs, feudal laws, city statutes, provisions of guilds, corporations, and other institutions. Additionally, commercial law was applicable to mercantile transactions. Monarchs aimed to put state legislation at the top, making it the only authoritative and legitimate source of law, leaving the ius commune to fill the gaps in the system. The cases of France, Germany, and Spain are representative of the slow but unstoppable shift towards statutory, national law after the s. Recent studies highlight the role of supreme courts in dispensing justice and in the elaboration of the law: the increasing role of legislation was also motivated by the perception that the complexity resulting from the build-up of case law was unsustainable. In France, the strengthening monarchy, seeking to improve the administration of justice, encouraged local courts and senior lawyers to identify and put into writing local customary laws. The undertaking was completed in the first half of the sixteenth century and the resulting works then became an object of interpretation and scholarly comment. In particular, the last three kings before the Revolution, Louis XIV, Louis XV, and Louis XVI, enacted legislative provisions at an increasing pace. Early ordinances focused on the justice system and mercantilist policies,
Ibid., p. . Gordley, above n. , p. . John Philip Dawson, The Oracles of the Law (Ann Arbor, MI: University of Michigan Law School, ). Andrew Mark Godfrey and C. H. van Rhee, Central Courts in Early Modern Europe and the Americas (Berlin: Duncker & Humblot, ). Padoa-Schioppa, above n. , p. .
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Civil Law
but later the areas covered increased to such a degree that these became the predominant source of law in France. Consequently, universities included national law in their curricula. An edict of Louis in provided that a chair of French law be established in all law faculties in France. Similarly, in the Low Countries, Germany, and Lombardy, universities started to teach local laws together with Roman law. The reception of Roman law in Germany was characterised by its fragmentation in several states, and by the presence of the Holy Roman Empire. Courts were staffed by Schöffen, laymen who did not have a proper legal training and who based their decisions on local customs. While many students from Germany had studied law in Italy and France since the thirteenth century, they were mostly clerics and had little influence on secular law. A shift towards the Romancanonical procedure at the end of the fifteenth century also stirred a change in substantive law, and in the sixteenth century, Germany adopted Roman law in its entirety. The emperors used the system of the ius commune as a unifying ideological factor, in order to counterbalance the lack of political unity. Especially after Friedrich Wilhelm I, Prussia reorganised its finances, military service, and the status of peasants, emerging as the first absolutist state in Germany. In , constitutions, ordinances, and other written provisions were systematised and collected, making statutory law the main source. In Spain the absolutist trend led to the decline of local assemblies and the centralisation of power under the Kingdom of Castile. The Royal Council produced statutory provisions and its administrative rulings were collected and published in official compilations. In general, by an order of Philip V in , national statutory law prevailed over other sources of law, thus becoming the main source of law in Spain. The same trend towards a rationalisation of the sources of law can be seen in Denmark and Norway, which in and respectively abolished privileges and drafted codes applicable to all subjects, in the Kingdom of Sardinia, where collections of statutory laws were published many times in the eighteenth century, in the Kingdom of the two Sicilies, in the Duchy of Tuscany, and in Portugal. The Netherlands, after gaining independence in , quickly rose to become one of the leading European centres of jurisprudence through the fervent activity at newly founded universities: after Leyden in , several others followed in the early seventeenth century. The so-called elegant jurisprudence, a refined mix of the Italian and the French approach, was a product of Dutch universities. Among the most important Dutch legal scholars of the time was the first modern theorist of public international law and natural law: Hugo Grotius. C. CODIFICATION
. Revolution and Continuity The French Revolution is a turning point in the history of the civil law tradition. In the two years (–) of activity of the Constituent Assembly, a massive number of new provisions were
Jean-Louis Halpérin, Five Legal Revolutions since the th Century: An Analysis of a Global Legal History (Heidelberg: Springer, ), vol. I, p. . Padoa-Schioppa, above n. , pp. , . Stein, above n. , p. . Halpérin, above n. , p. . Ibid. Ibid., p. .
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passed across all areas of the legal system: the Declaration of the Rights of Man and of the Citizen, administrative and judicial reforms, a criminal code, and indeed revolutionary notions regarding rights of property, marriage, and family. By replacing the Corpus and centuries of works by dozens of jurists with codified state law, the revolutionaries and Napoleon profoundly modified the structure of the sources of law in France, establishing the monopoly of the state on the production of statutory law. The same can be said for all the legal systems that in the ensuing years would follow the French example, abandon the model of the ius commune, and introduce modern codes. From this point of view alone, the departure from the previous tradition was so significant that the new system of sources based on state law could be seen as the birth of a new legal tradition. It could even be said that the French Revolution and the Napoleonic codifications effectively put an end to seven centuries of civil law tradition of ius commune and started a new legal tradition: the civil law of codified state law. However, this is not the traditional position of comparative law. Most scholars consider the aspects of continuity after the French Revolution to be greater than the changes it initiated, and conceive of the civil law tradition as an unbroken line from the Glossators, through the Napoleonic codes, to nowadays. This chapter will follow this view. In a sense, the codification meant simply the substitution of the Corpus with another foundational text: the civil code. National borders and language diversity meant that the pan-European legal science of the ius commune was split and became national, but the character of civil law as a tradition stemming from a text did not change. There was continuity in the legal professionals. For example, in Paris the Order of Barristers was abolished in . Some barristers were killed during the early years of the Revolution and during the Terror, others retired to private life. In however, the Order was restored, and even if they would not enjoy the prestige they had under the Ancien régime, with the Restoration, barristers could play again an important role in society. The same can be said of legal education: after the revolutionary fire subsided, just one week before the enactment of the French Civil Code, France established nine centralised écoles de droit, that reclaimed their name of Faculties of Law two years later in . Troubled years followed the Restoration, but soon after also universities, tasked with the crucial function of teaching state law and educating state bureaucrats, regained their position in society. By the s, French professors of law again played a significant political role. European countries that did not experience revolution show the same patterns. The end of the Ancien régime and the rise of the bourgeoisie rebalanced politics and power relations in the countries of continental Europe. Many countries adopted constitutions enshrining modern conceptions of rights and private property. The curricula at state universities across continental Europe shifted their focus to codified law, but the past was not rejected as a whole. Justinian’s
Padoa-Schioppa, above n. , p. . Michele Graziadei and Lihong Zhang, ‘On Civil Codes: A Twenty First Century Perspective’ in Michele Graziadei and Lihong Zhang (eds), The Making of the Civil Codes: A Twenty First Century Perspective (Singapore: Springer, ). Michael P. Fitzsimmons, The Parisian Order of Barristers and the French Revolution (Cambridge, MA: Harvard University Press, ); Jean-Louis Halpérin, Les Structures Du Barreau et Du Notariat En Europe: De l’Ancien Régime à Nos Jours (Lyon: Presses Universitaires de Lyon, ). Halpérin, above n. , p. ; Christine Musselin, The Long March of French Universities (London: Routledge, ), p. . Frédéric Audren and Jean-Louis Halpérin, La Culture Juridique Française. Entre Mythes et Réalités (Paris: Cnrs, ), p. ; Robert D Anderson, European Universities from the Enlightenment to (Oxford: Oxford University Press, ), p. . Halpérin, above n. , p. .
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Corpus and Roman law, the Glossators, and all the jurists of the past continued to inspire professors and practitioners. This was also possible thanks to the presence of a bright counterexample to the idea of law and legal order that emerged from the Revolution and the codifications it brought. The civil law jurisdictions of the nineteenth century can indeed be seen as swinging between two extreme, antithetic and, despite being both firmly rooted in the civil law tradition, atypical examples of civil law countries: France and Germany. . Forerunner: The French Civil Code The ius commune was an easy target for the philosophers of the Enlightenment. Intellectuals and reformists all over Europe stressed the need for radical reforms of substantive law and procedure. They popularised the idea that the intricate system of laws of the ius commune had to be reformed on rational foundations. In the words of Voltaire, it had to be burned down and remade anew from scratch. This project was not in disfavour with the monarchs, who were eager to exert and consolidate their power through the imposition of modern codes and the centralisation of justice. Besides, while Roman law was always held in great esteem, its position was increasingly challenged by natural law scholars and supporters of legal nationalism. The idea of codification spread throughout Europe, and with time, it became the preferred model among most intellectuals and scholars. However, the entrenched interests of the ruling classes made it a nearly impossible task in most European countries except for France, where the Revolution set the conditions for a profound reshaping of the system. Between and the fall of Napoleon in , the Revolution swept away the Old Regime and laid the foundations of a new and modern legal system. The Restoration aimed at turning back the clock to the political, ideological, and legal situation of Europe in , but the attempt failed, and the reforms introduced by France eventually spread across continental Europe, marking a new era for the civil law tradition. The highly volatile political and ideological situation in the first years of the Revolution prompted the enactment of several constitutions, but no code could win enough political support. When Napoleon took over at the end of the century, the situation changed. Napoleon appointed a commission of four jurists in August and the drafting of the civil code started right away. They presented the first draft in January . It was discussed and revised, with the personal involvement of Napoleon himself, until its final approval on March . Some of its parts were undoubtedly revolutionary: secularism and nationalism shaped the provisions on family law, in particular on marriage and divorce, matrimonial property, and inheritance. Its provisions on property, contract, and tort law are traditionally seen as the expression of modern bourgeois individualism. Nonetheless, many provisions were not in fact created from scratch, but had firm roots in the centuries-old tradition of the ius commune. The drafters took particular inspiration from the works of French jurists such as Jean Domat, who in Les lois civiles dans leur ordre naturel offered an overview of Roman law as received in France and coordinated with natural law, and Joseph Pothier, a magistrate from Orléans who rearranged Justinian’s Digest and French customary law in a logical and easily accessible way.
Clark, above n. , at ; John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition (Stanford, CA: Stanford University Press, rd ed., ). ‘If you want good laws, burn those you have and make new ones.’ Voltaire, Dictionnaire philosophique (), Lois. James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, ). Gordley, above n. , p. . Padoa-Schioppa, above n. , p. .
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In this sense, the ideals of the Revolution that French commentators of the nineteenth century claimed to see in the code, such as republicanism and egalitarianism, were not originally there – but were created posthumously by those same jurists. The undeniable novelty of the code, in particular of the parts on contracts and torts, lies not in the content of the rules, but in the fact that it excluded all other sources of law from the realm of private law, to an extent that went beyond even what the drafters wanted or expected. A law approved on the same day as the code provided that all sources of law such as ordinances, customs, Roman laws, and every other provision outside of the code would cease to be in force. This, together with Art. of the code, which forced judges to give judgment without referring to any external or supplementary source such as equity, established the ideological foundations of modern legislative positivism. In the ensuing years, France introduced a code of civil procedure, a penal code, a code of criminal procedure, and a commercial code. The notion that the code was a self-sufficient text covering all of private law meant that mainstream French legal scholarship in the early nineteenth century limited itself to mechanical and drab comments on the text of the codes, explaining their contents without recourse to doctrines derived from elsewhere such as natural law or equity. At least, this is what most authors declared as their manifestos, and for this the French jurists of the time have been nicknamed the ‘exegetical school’. This idea of ignoring all legal science outside the code was related to the project of subjugating scholars and judges to the legislator, which in the long run proved untenable. The prestige of the French model of legislation and doctrine reached its peak in the middle of the century, but its influence on the scholarship of countries who took France as a model for reforming the system extended beyond this period. At the end of the century, François Gény’s works built on the flaws of the exegetical school. He stressed the need to recognise the creative role of subjective intuition and the importance of social facts to complementing the strictly literal and logical interpretation of legal texts. Gény is considered as the forefather of French sociological jurisprudence and paved the way for the new trends in the French legal doctrine of the s. . Codification in the German-Speaking Areas (a) Austria: An Early Alternative to France In Austria, early attempts at regulating inheritance law were promoted by Charles VI between and . Maria Theresa sponsored a more comprehensive collection of the law in force at the time. The draft of the Codex Theresianus, published in and consisting of more than , articles, was an attempt at harmonising the customs of the many Austrian provinces with Roman law. As such, it was attacked by conservatives who feared losing their privileges, and by reformers, who deemed the code too ‘Roman’ and not in line with the new trends rooted in natural law. The revisions continued for many years and produced simpler and shorter versions, until finally in a code of , articles was enforced. This is the code formally in force nowadays in Austria.
James Gordley, ‘Myths of the French Civil Code’ () American Journal of Comparative Law . Gordley, above n. , p. . Padoa-Schioppa, above n. , p. . Gordley, above n. , p. . Stein, above n. , p. .
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(b) Codification Delayed: Germany In the areas corresponding to modern Germany, the first codes appeared in Bavaria between and : a criminal code, a code of civil procedure, and a civil code. The codes were systematic and well-organised, but they did not exclude recourse to the ius commune as a source of law. They can’t be considered as the first example of modern codes. In Prussia, projects of codifications were attempted from the beginning of the eighteenth century, but it was only Frederick the Great who posthumously succeeded, when in the Allgemeines Landrecht was enacted. It was made of , articles on public and private law, criminal law, feudal law, ecclesiastical, and commercial law, and was intended to replace the ius commune, but not local regulations. Additionally, it did not abolish the three-fold division of social classes that was typical of Prussian society: nobility, urban bourgeoisie, and peasantry. Some rules were applicable to all citizens equally, others depended on their status. For these reasons, and for its considerable size, it is considered a consolidation of rules of the Old Regime and not a modern code. When Napoleon fell in , Germany was not a unified political entity. It had a common legal culture that transcended state borders, but state law was not uniform. During the early s, some German states adopted the Prussian Civil Code, and under Napoleon, the French Civil Code was enforced in the Rheine regions. Saxony would introduce its civil code only in . At the beginning of the Restoration in , in many German territories, law was not codified and the private law system was effectively based on the ius commune. At that time, the debate on the need for a civil code for Germany became heated. Some argued that Germany needed a code, in order to modernise its several political entities, with the ultimate goal of unification. In this context Friedrich Carl von Savigny, professor of Roman law at the University of Berlin, published the short essay ‘On the Vocation of our Age for Legislation and Jurisprudence’. Savigny expressed his firm opposition to codification, stressing that law is not a product of the will, but of the spirit of the people, and that German jurists were not yet ready to draft a code. They had to perfect legal science, and only later think about codification. Savigny’s position rapidly became dominant, codification was shelved for decades, and German jurists turned to the study of Roman and Germanic law. Since the main subject of study was the Corpus’s Digest, or Pandects, mainstream German legal scholarship of the s came to be known as the ‘Pandectist’ school. It was also dubbed, somewhat derogatorily, as Begriffsjurisprudenz, the ‘jurisprudence of concepts’, for its abstraction and the extreme attention to conceptual accuracy in the building of a logically unassailable system. The Pandectist school had its critics, and among them Rudolf von Jhering was the most illustrious. He denounced, sometimes with spirit, the excessive formalism and conceptualism of the Begriffsjurisprudenz, and the delusion of conceiving of law as just an interconnected web of notions. Jhering stressed that law is a social phenomenon, and ‘that there is no legal rule which does not owe its origin to a purpose, i.e., to a practical motive’. In this sense, Jhering was a precursor to modern trends such as legal realism and the sociology of law.
Ibid.; Padoa-Schioppa, above n. , p. . Mousourakis, above n. , p. ; Padoa-Schioppa, above n. , p. . Rudolf von Jhering, ‘In the Heaven for Legal Concepts: A Fantasy’ () Temple Law Quarterly (translation of original from ). Gordley, above n. , p. . Mousourakis, above n. , p. ; Gordley, above n. , p. .
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While for a large part of the nineteenth century the French Civil Code was the dominant model for legislation, German jurisprudence and in particular the Pandectist school was by far the most prestigious doctrinal model in Europe and beyond. As many countries in Europe introduced codes, in Germany the push towards codification also became irresistible. In the s, German states approved a customs union and a uniform law on bills of exchange. In a Commercial Code was introduced for the whole Confederation. With political unification in , opposition to codification eventually faded. A first drafting commission was formed in . The document it prepared in was heavily criticised as too ‘Pandectist’. This led to the appointment of a second commission, which started working in and submitted a draft in . The two houses of the Imperial Diet approved it in the same year, and it came into force on January as the Bürgerliches Gesetzbuch, or BGB. The structure of the BGB is markedly different from that of the French Civil Code. It is made of five books. The first, the so-called General part, includes rules on personal status, capacity, and other rules common to all legal relations. In particular, it outlines the discipline of the Rechtsgeschäft, or legal transaction, that was developed and perfected by the Pandectist school and finally received in the text of the BGB. The other four books deal with the law of obligations, property, family law, and inheritance law. . Administration of Justice The philosophers of the Enlightenment exposed at length the shortcomings of contemporary administrations of justice. The changes started by the French Revolution also had an impact on the provisions regarding trials, in particular those on criminal trials. One of the most influential works on criminal law and procedure among the reform-oriented elites was the short essay ‘On Crimes and Punishments’ by Cesare Beccaria, published in . It denounced the dismal state of criminal justice and presented principles that would become central tenets of modern criminal procedure: that crimes and punishments must be clearly determined by law, and that punishments should be proportional to crimes. Beccaria also strongly rejected torture and the death penalty. The essay became popular and these principles inspired the reforms adopted in France and in other countries. Many reformers on the continent saw the English trial as a model to imitate, but the resistance to change was strong. As a result, the introduction of several piecemeal changes to procedure created a system in which preRevolutionary, inquisitory elements typical of the Roman-canonical procedure mixed with new ones inspired by the adversarial Anglo-American criminal procedure. The diffusion of the jury is a typical example of this trend. The swing between being influenced by the adversarial model and resisting it would be seen in many civil law countries, and continues today. As for civil trials, the absence of a jury and the influence of the Roman-canonical procedure meant that procedure was based mostly on written documents, and trials never needed to be concentrated. Therefore, private law trials also ended up being split into several hearings and exchanges between the parties and the judge. In general, in criminal and civil matters, the losing party has in principle the right to appeal the decision to a higher court, who can revise not only the interpretation of the law but also the
Merryman and Pérez-Perdomo, above n. , p. . Merryman and Pérez-Perdomo, above n. . Maximo Langer, ‘From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’ () Harvard International Law Journal .
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evaluation of the facts. The subject deciding all cases is the impersonal institution of the court, not the judge as an individual, hence it is unusual that in civil law countries judges write concurring or dissenting opinions. Procedural law is one area in which the influence of the traditional civil law model has declined over the last years. While the Roman-canonical procedure dominated the European continent for centuries, and even enjoyed some limited reception in England through the jurisdiction of equity, the influence of the Anglo-American adversarial justice system has been palpable, particularly in criminal matters. Several European countries reformed their criminal trials, introducing institutes and procedures typical of the adversarial model. Despite the intention of the legislator, the results are not always clear-cut: in some cases the transplants have been deeply modified by the receiving systems, and the models resulting from the reforms have been identified as hybrid or post-inquisitorial. D. RECEPTION OUTSIDE OF EUROPE
. Imposition and Prestige Since the seventeenth century, the continental European way of organising sources of law, educating lawyers, and administering justice has spread to many regions of the world. In many cases the transplant was due to colonisation. In other cases, the reception of the civil law model was not due to conquest or occupation, but to the prestige enjoyed by the laws of France, Germany, or other countries. It is beyond the goals of this chapter to cover the circulation of the civil law model in all the countries in which it occurred. Only the cases of Latin America and Japan will be examined in detail, as examples of a wide circulation rooted in colonialism, and of a reception based on the perceived prestige of the foreign models.
Stephen C. Thaman, ‘Criminal Courts and Procedure’ in David S. Clark (ed.), Comparative Law and Society (Cheltenham: Edward Elgar, ); Joachim Zekoll, ‘Comparative Civil Procedure’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ). Máximo Langer, ‘The Long Shadow of the Adversarial and Inquisitorial Categories’ in Markus D. Dubber and Tatjana Höernle (eds), The Oxford Handbook of Criminal Law (Oxford: Oxford University Press, ); Elisabetta Grande, ‘Comparative Approaches to Criminal Procedure: Transplants, Translations, and Adversarial-Model Reforms in European Criminal Process’ in Darryl K. Brown, Jenia Lontcheva Turner and Bettina Weisser (eds), The Oxford Handbook of Criminal Process (Oxford: Oxford University Press, ). On transplants in general: Michele Graziadei, ‘Comparative Law, Transplants, and Receptions’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ). Thomas Weigend, ‘Should We Search for the Truth, and Who Should Do It’ () North Carolina Journal of International Law ; Arie Freiberg, ‘Post-Adversarial and Post-Inquisitorial Justice: Transcending Traditional Penological Paradigms’ () European Journal of Criminology . Jan Kleinheisterkamp, ‘Development of Comparative Law in Latin America’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ); Matthew Campbell Mirow, Latin American Law: A History of Private Law and Institutions in Spanish America (Austin, TX: University of Texas Press, ); Kenneth L. Karst and Keith S. Rosenn, Law and Development in Latin America: A Case Book (Berkeley, CA: University of California Press, ), vol. XXVIII. Wilhelm Rohl (ed.), History of Law in Japan Since (Leiden: Brill, ); Wen-Yeu Wang (ed.), Codification in East Asia: Selected Papers from the nd IACL Thematic Conference (Cham: Springer, ); John O. Haley, Law’s Political Foundations: Rivers, Rifles, Rice, and Religion (Cheltenham: Edward Elgar, ).
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. Latin and Central America: Imposition and Circulation After the landing of Columbus in the West Indies in , the Treaty of Tordesillas of gave Portugal jurisdiction over the lands which now make up Brazil, while Spain obtained the rest of Latin and Central America. In the area under Spanish jurisdiction, Aztecs, Incas, and other populations had developed complex legal systems before coming into contact with the European powers. Many indigenous populations were decimated by war, genocide, and diseases, although not all regions faced the same tragic fate. Spanish law became the governing law in all the territories under the Spanish crown, but laws and customs of the indigenous people were not outlawed per se, and could be applied as long as they were compatible with Spanish and colonial law, and with Christian morality. Where native people survived, law among these communities was still based on local customs and institutions. Indigenous land rights were, to a certain extent, recognised. Local communities also engaged with the Spanish colonial system to defend their autonomy, especially in Mexico and Peru. While this section focuses on the learned, official law transplanted from Europe, it must be remembered that the law on the books in urban centres was radically different from the law in action in the countryside. Until , laws of Castile applied automatically to the American colonies; after that year, laws enacted in Spain had to state explicitly whether they were applicable. Several collections tried to put the many sources of law in order, but only the Recopilación de Leyes de las Indias would emerge as an authoritative and reliable document. It was enacted in by Charles II, who declared that all other previous sources were no longer in force. The first organic text having force of law in the colonies was Las siete partidas, a collection of laws and other provisions drafted in the thirteenth century, originally intended for the Kingdom of Castille and typically based on the ius commune. Later, the Nueva Recopilación de Castilla of became a primary source of general rules of private law and procedure. It was expanded and republished many times, until the end of Spanish rule. Legal education was based in universities following European models. The main topics were Roman and canon law; in the late eighteenth century, royal law was added to the curriculum. Admissions criteria and graduation requirements were strict: usually only around or fewer students per year could graduate. After graduation, a period of practical training, and an exam, graduates could be admitted to practice before the courts. Judges were also trained at universities and had a high social status. Many provisions insulated them from society in order to ensure their impartiality and allegiance to the crown, but these provisions were not always observed.
Mirow, above n. , p. ; John Henry Merryman, David S. Clark and John Owen Haley, Comparative Law: Historical Development of the Civil Law Tradition in Europe, Latin America, and East Asia (Lexis Nexis Matthew Bender, ), p. . Kleinheisterkamp, above n. . Tamar Herzog, ‘Colonial Law and “Native Customs”: Indigenous Land Rights in Colonial Spanish America’ () The Americas: A Quarterly Review of Inter-American Cultural History . José Carlos De la Puente Luna, ‘That Which Belongs to All: Khipus, Community, and Indigenous Legal Activism in the Early Colonial Andes’ () The Americas ; Yanna Yannakakis, ‘Indigenous People and Legal Culture in Spanish America’ () History Compass . Mirow, above n. , p. ; Rogelio Pérez-Perdomo, ‘Notes for a Social History of Latin American Law: The Relationship between Legal Practices and Principles’ in Ángel R. Oquendo (ed.), Latin American Law (New York: Foundation Press/Thomson/West, ). Mirow, above n. . Ibid., p. .
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Between and , the Spanish colonies in Latin America gained independence and the newly established republics started following their own path. However, the influence of centuries of legal tradition could not be easily erased, and the young states still shared many common features. Constitutional law was influenced by French and US models. French writers of the Enlightenment inspired the ideals of freedom, equality, and republicanism that animated the first constitutions. The US Constitution particularly influenced the Argentinean Constitution of , and its federal system served as a model for Mexico and Brazil. After independence, the old sources of private law remained in force as long as they were compatible with the values of the new constitutions. This added confusion to an already chaotic private law system, and codification looked even more necessary. The French codes influenced the first codification efforts, such as Bolivia’s Codigo Santa Cruz of . Peru, after a brief period in which Bolivia’s code was in force, enacted in the Peruvian Código Civil, the first Latin American attempt at producing an original code. The Civil Code of Peru shows mixed influences from both Spanish law and the Corpus. In Chile, the Minister of Justice in commissioned the drafting of a civil code by the illustrious jurist Andrés Bello. Bello combined Spanish sources, the Siete partidas, and Roman law, while also taking inspiration from French law and doctrine for the more modern aspects. Bello’s code was enacted in and is still in force in Chile. It would become the most influential code in Latin and Central America: El Salvador, Ecuador, Venezuela, Nicaragua, Colombia, and Honduras ultimately adopted it. In addition, it influenced the codes of Uruguay, Mexico, Guatemala, Costa Rica, and Paraguay. Argentina’s code of , drafted by Dalmacio Vélez Sarsfield, put together provisions taken mainly from other Latin American sources, including Brazilian ones, from the Corpus, and from French law and doctrine, to the point that ‘almost none of the Argentine Code’s , articles are original’. The codification efforts in Mexico were hampered by the federal structure of the state. The first Mexican state to have a civil code was Oaxaca in , but political turbulence prevented a legal unification of private law until , when the republic enacted the Mexican Civil Code in the Federal District and Baja California. It was introduced with minor modifications in states, and taken as a model by the civil code of . . Brazil and the Dialogue with Europe At the time of the first contact with the Portuguese, Brazil was relatively unpopulated and indigenous people had not developed complex societies. The law applied in Brazil was based on the ius commune of Portugal, integrated through colonial law. Portuguese monarchs tried to bring order by consolidating the provisions in ordinances: the first source applied in Brazil, predating the colonisation, were the Ordenações Afonsinas of . Later came the Ordenações Manuelinas in , and the Ordenações Filipinas in . As a response to the notorious and unsolved problem of chaos among the sources of law and the consequent legal uncertainty, the Marquis de Pombal introduced the Lei da boa Razão, that is, ‘the law of good reason’. It provided that Roman law could be consulted,
Kleinheisterkamp, above n. , p. . Mirow, above n. , p. . Karst and Rosenn, above n. , p. . Mirow, above n. , p. . Kleinheisterkamp, above n. .
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but not applied unless it was consistent with good reason, which was identified in the fundamental principles of natural law, in established rules of ius gentium, or in the modern laws of civilised nations. A product of the rationalist culture of the European Enlightenment, the law of good reason had a profound effect on the Portuguese and Brazilian legal systems, and stimulated a deep dialogue between Portuguese jurists and foreign scholars, in particular those schooled in Dutch, German, and Italian legal doctrine. Brazil gained independence in . In the Minister of Justice commissioned Brazilian lawyer Augusto Teixeira de Freitas to draft a civil code. Three years later Teixeira submitted the Consolidaçao, a ,-article consolidation of Brazilian law, after which he started working on the Esboço, a preparatory ‘sketch’ of private law. Some parts were completed and published between and , but the last part remained unfinished. The Esboço served as a main source for Clovis Bevilaqua during the drafting of the Brazilian Civil Code of . . Japan: Combining Pressures and Prestige Humans have inhabited the Japanese archipelago since , BCE. Between the fourth and the seventh century CE, the people living in Japan adopted various aspects of Chinese culture, such as the writing system, religion, and collections of criminal and administrative provisions. In the late sixteenth century, Japan had contacts with European missionaries and merchants, but there was no adoption of European law. From the early seventeenth century the country was sealed off from the outside world for more than two hundred years, until the mid-s, when the international situation made it impossible to keep the country isolated. By that time, Japan had developed an original system of law, based on provisions of central and local lords, and customs. Collections of substantive law, judgments, and manuals of procedure were known, but there were no institutions devoted to the study of law as an independent discipline, nor were there legal professionals. With the opening of the country everything changed. Japanese rulers earnestly launched the modernisation of the country by adopting Western models in virtually every field of knowledge, science, and technology. The legal system also had to be modernised as quickly as possible, to show that Japan was a state on a par with Western countries. The government invited Western legal advisors to help with the drafting of laws and the training of jurists. The need for a swift introduction of a constitution, codes, and other laws made looking to civil law countries inevitable. The Constitution of was modelled on the Prussian equivalent. The first codes generally followed the French models. The civil code of was the result of a troubled mix of French and German influences on the books governing general principles, property, and obligations, while the books on family and successions gave traditional Japanese family rules a Westernised guise. The first schools of law appeared in the late s. A modern system of courts was established in , then reformed with the enactment of the Constitution. The introduction of Westernised law was achieved at an incredibly fast pace. The sources of law, the education of lawyers, the legal professions, and most of the substantive and procedural law in all areas were the offspring of European civil law. The Constitution, the civil code, and remaining legislation were considered to be based mainly on German law. This was due to the
Ibid. Carl Steenstrup, A History of Law in Japan Until (Leiden: Brill, nd ed., ); John H. Wigmore, Law and Justice in Tokugawa Japan. Materials for the History of Japanese Law and Justice under the Tokugawa Shougunate – (Tokyo: University of Tokyo Press, ); Yoshiro Hiramatsu, ‘Tokugawa Law’ () Law in Japan . Wilhelm Rohl (ed.), above n. . Béatrice Jaluzot, ‘The Meiji Era: When Japanese Law Became Positivized’ in Dupret and Halpérin, above n. .
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international prestige of German jurisprudence – which meant that before , Japanese jurists looked primarily to Germany for inspiration, although dialogue with France or England, and sometimes with other countries, was not absent. Writing in , Nobushige Hozumi, a drafter of the civil code and one of the greatest Japanese jurists of the time, stated that ‘the new Japanese Civil Code stands in a filial relation to the European systems, and with the introduction of Western civilization, the Japanese civil law passed from the Chinese Family to the Roman Family of law’. Around the s, Japan completed the reception of doctrine and the creation of the legal language required to express in Japanese the notions of the transplanted jurisprudence, even though the transplant of Western practices to the Japanese substratum was a more delicate matter. The American occupation after World War II influenced large parts of the legal system. A new Constitution, co-authored with the occupying forces, entered into force in . Family law, criminal law and procedure were rewritten to fit into the new constitutional framework. This did not change the fundamental character of the legal system. Even today, despite how often the delicate uniqueness of Japanese culture, including its law, is stressed, most scholars in Japan and abroad would define the Japanese legal system as a civil law system, and its jurists as civilians. E. CIVIL LAW TODAY
The way of structuring sources of law, of educating lawyers and of solving disputes, the methods of interpreting the law and the substantive law developed and adopted in continental Europe since the eleventh century have been extremely successful. The system of the ius commune was the basis of European public and private law for more than seven centuries. When European states colonised other continents, all exported provisions were in line with their tradition, contributing to the diffusion of the civil law model all over the world. When the colonies gained independence, they did not turn away from many fundamental aspects of the law they received by imposition. The French Revolution initiated a remodelling of the civil law tradition, but as mentioned before, this did not mark its end. On the contrary, the rationalisation of the sources of law, the drafting of codes, and the other innovations brought about by the French Revolution and its reverberations in Europe had three major effects. First, in the countries that were already part of the civil law tradition, codification contributed to the reinforcement of national legal identities, generally with the new codes as their foundational documents. In addition, it deepened the
Zentaro Kitagawa, ‘Theory Reception-One Aspect of the Development of Japanese Civil Law Science’ () Law Japan ; Eiichi Hoshino, ‘L’héritage de G. Boissonade Dans Le Code Civil et Dans La Doctrine Du Droit Civil Au Japon’ () Revue internationale de droit comparé . Nobushige Hozumi, The New Japanese Civil Code, as Material for the Study of Comparative Jurisprudence. A Paper Read at the International Congress of Arts and Science, at the Universal Exposition, Saint Louis, . (Tokyo: Tokyo Printing Co. Ltd., ), p. . Shoichi Koseki, The Birth of Japan’s Postwar Constitution (New York: Routledge, ); Tsuyoshi Kinoshita, ‘Introduction the Reception in Japan of the American Law and Its Transformation in the Fifty Years since the End of World War II’ () Law in Japan . Andrea Ortolani, ‘Legal Systems and Legal Families: Italy and Japan in Comparative Perspective’ () Italian Law Journal ; Luke R. Nottage, ‘The Development of Comparative Law in Japan’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. ; Giorgio Fabio Colombo, ‘Japan as a Victim of Comparative Law’ () Michigan State International Law Review . Graziadei and Zhang, above n. .
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ideological rift between the European continental and English common law traditions, to the point that even today the presence of codified law, and in particular of a civil code, is often considered a strong marker of a civil law system. Third, the prestige associated with codified law, and the idea, simplistic but well-liked by political leaders, that for every branch of law it was possible to distil the essence of all legal information and encapsulate it in relatively short and accessible documents, encouraged the worldwide diffusion of the civil law model. For example, when many extra-European countries embarked on the modernisation of their legal systems, it was easier to take pre-existing civil law instruments as a model, translate them if necessary, and adapt to local conditions and enforce codes than to adopt the vast body of judicial precedents and practices of the other prestigious legal tradition of the West: the English common law. The example of Japan is paradigmatic. Other noteworthy examples in recent and not-so-recent times are Turkey, Egypt, Cambodia, Vietnam, and China. It is not only the codified law of civil models which lends itself to relatively easy adaptation and adoption by states belonging to different traditions. Legal education at universities or functionally equivalent institutions has also become common in most countries of the world.108 Likewise, an exam held after a period of study or of practice is a common way of selecting practitioners such as attorneys or notaries and public officials such as judges and prosecutors, not only in civil law countries, but in many parts of the world. Of course, the length, style, and object of mandatory training, conditions for access and graduation, and other details on the functioning of educational institutions, surely vary. Law schools in the US are different from French Faculties of Law, but the differences are not necessarily due to their belonging to a different legal family: there are differences, at times profound, even among educational institutions of countries firmly rooted in the same tradition. In general, several characteristics of the civil law tradition seem to be especially prone to transplantation. Adaptability to local conditions is a feature that made the spectacular circulation of civil law over the last two centuries possible. By looking only at conspicuous taxonomic markers such as the presence of codified law, of universities as major institutions of legal education, or of judges as state bureaucrats, a naïve observer could be tempted to conclude that most countries in the world today have become members of the civil law family. Yet at the same time, a converse phenomenon contributed to smoothing out fundamental differences between civil law and other traditions. After the French Revolution and state positivism placed an all-powerful legislator at the top of the pyramid of the sources of law, civil law systems became structurally more flexible and receptive to influences from other legal traditions. All that is needed is an approving legislator. The trends that brought civil law institutes to other systems also worked in the opposite direction, and civil law countries themselves have introduced institutes typical of other legal families. Several have provisions on trusts. Many have reformed their court practices and procedures. The binding force of judicial precedents, once considered to be one of the most typical traits of the common law system, has long been acknowledged de facto by civilian practitioners, scholars, and judges as well, even when it is
Merryman and Pérez-Perdomo, above n. , p. . Halpérin, above n. , p. ; David S. Clark, ‘Legal Education’ in David S. Clark (ed.), Comparative Law and Society (Cheltenham: Edward Elgar, ). Ugo Mattei et al., Schlesinger’s Comparative Law: Cases, Text, Materials (New York: Foundation Press; Thomson Reuters, ), p. .
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not mandated by law. Furthermore, several systems now have provisions explicitly giving binding force to principles expressed in decisions of superior courts. A major factor behind the reciprocal hybridisation of legal traditions is the internationalisation of legal education and the emergence of a global class of jurists. The growth of comparative law is facilitating the circulation of legal knowledge, and with it transplants, impacting on all formants of the law. Clinical legal education is becoming common worldwide. The foundational text of the civil law tradition, Justinian’s Corpus, included the first casebook of the Western legal tradition, the Digest, but in modern times casebooks are strongly associated with Anglo-American legal education, in particular with the case method first introduced by Langdell at Harvard Law School. The case method and casebooks are not unknown in universities in civil law countries, albeit with mixed fortunes. Civilian judges at all levels dialogue with their colleagues in other countries and this elicits the circulation of doctrines and solutions. Civil law countries are not only influenced by the teaching methods, institutes, doctrines, and precedents of other traditions, but also by the language. English, the language of the common law, is the vehicular language of international scholarship and of transnational practice. It is also being used for university programmes in countries where English is not the official language of the law. These factors may lead to the easy conclusion that the internationalisation of law and legal education is working predominantly in one direction, from the United States of America to other countries, producing a global Americanisation of law. The reality is in fact more complex than that, since American jurisprudence is in turn open to international influences,116 and because reception and translation in receiving countries oftentimes transforms the transplant into something new and original. F. CONCLUSION
The story outlined in these pages is just one of many possible stories. This chapter took a historical approach, and presented succinctly the cultural background, essential traits, and turning points of the civil law tradition. Many relevant issues have been left out of this chapter. Some are examined in closer detail elsewhere in this volume: the reception and development of civil law in Latin America, in
Also, in several systems, the decisions of the highest courts – such as constitutional courts, supreme courts, and the like – can nullify provisions of law and have effects beyond the case at hand. See Tan et al., Chapter (in this volume). See also Michele Graziadei, ‘Eppur Si Muove: La Rivoluzione Silenziosa in Corso Nell’educazione Giuridica’ () Diritto & Questioni Pubbliche ; Christophe Jamin and William Van Caenegem, The Internationalisation of Legal Education (Berlin: Springer, ), vol. XIX; William Van Caenegem and Mary Hiscock, The Internationalisation of Legal Education: The Future Practice of Law (Cheltenham: Edward Elgar, ); Jan Klabbers and Mortimer Sellers (eds), The Internationalization of Law and Legal Education (Berlin: Springer, ). Richard J. Wilson, The Global Evolution of Clinical Legal Education: More than a Method (Cambridge: Cambridge University Press, ). Susan Bartie and David Sandomierski (eds), American Legal Education Abroad: Critical Histories (Nework: NYU Press, ); see in particular the chapters on France and Japan. See Daly, Chapter (in this volume). Bartie and Sandomierski, above n. . Frank K. Upham, ‘IOLE in the United States: The Relationship between a Country’s Legal System and Its Legal Education’ in Jamin and Van Caenegem, above n. . Langer, above n. . See Zuloaga and Diaz de Valdes, Chapter (in this volume).
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Eastern Europe, and Central Asia, in the Middle East and North Africa, in Sub-Saharan Africa, and in South Asia. A complete portrait of the civil law tradition would include an analysis of other important topics not included in this chapter: the basic characters of constitutional, private, and procedural law; the parallel development of commercial law and its recent reunion with private law; the role of supreme courts and Rotas under the ius commune; the influence of natural law; civilian legal science after ; and civilian influences on socialist legal systems, Northern Europe, and mixed legal systems. Millions of individuals have lived for centuries with an idea of law shaped by civilian jurists, institutions, and rules. This idea, despite the recent globalisation trends, is still strong. Tens of thousands of students every year take their first steps in jurisprudence guided by civilian teachers. Courts, legislators, and practitioners all over the world reason and work according to traditional principles of civil law. Law reforms, codifications, and supranational institutions are other factors that extend the reach of civil law principles into national legal cultures across all continents. Legal traditions are dynamic. The civil law tradition not only influences, but is also influenced. Innovations, transplants, and hybridisations drive the evolution of its doctrines, principles, and institutions. The civil law tradition might change its appearance, but the risk of its disappearance is extremely low.
See Shirvindt, Chapter (in this volume). See Elsaman, Chapter (in this volume). See Fombad, Chapter (in this volume). See Abeyratne, Chapter (in this volume).
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Common Law Shivprasad Swaminathan*
This chapter outlines the workings of the common law. It starts out by providing a historical background to legal institutions, conceptual distinctions, pedagogy and literature constituting the common law tradition before going on to identify and discuss some of the core features of the common law’s method. The chapter also seeks identify factors causing convergences and divergences between the working of the law in many of the jurisdictions all over the world that tend to be classified as common law systems.
A. HISTORICAL BACKGROUND
. Evolution and Etymology While a historical study of any legal system is likely to be illuminating, it is indispensable for an understanding of the common law. William Holdsworth’s remark that the common law ‘bears upon it many marks of its origin’ is particularly apt, since the very label ‘common law’ – just as the system it denotes – is the result of a concatenation of historical events, as are its ‘conceptual divisions’, ‘special style’ and ‘technical expressions’. At the time of the Norman conquest in , there were no centralised courts in England, and consequently, no law common to all of the realm. The Norman conquest was to set into motion forces that ‘determined the whole future of English law’, starting with the label ‘common law’ itself. It is to the centralisation put in place by William I that the common law – or law ‘common to the whole of England’ – owes * Professor and Dean, Shiv Nadar Law School, Shiv Nadar University, Chennai. Many thanks are due to Srinjayee Gupta, Saifuddin Patel and Abhinav Shankarraman for their research assistance. K. Zweigert and H. Kötz, An Introduction to Comparative Law (Oxford: Oxford University Press, rd ed., ), pp. –. W.S. Holdsworth, A History of English Law: Vol. I (Boston: Little Brown ), p. . Ibid. R. David and J.E.C. Breirly, Major Legal Systems in the World Today (London: Stevens and Sons, rd ed., ), p. . J. Baker, An Introduction to English Legal History (Oxford: Oxford University Press, th ed., ), p. (quoting F. W. Maitland). Viscount Kilmur, ‘Introduction’ ‘Migration of the Common Law’ () Law Quarterly Review .
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its existence. The label was probably a conscious borrowing from the canon law’s term, jus commune which meant general law. The growth of the system that the term ‘common law’ denotes is, in the ultimate analysis, the work of the royal courts of justice. However, it all began with the feudal system put in place by the Normans for the collection of taxes and keeping the peace. The taxes were collected from the fiefs under the oversight of the King and the Curia Regis: the King’s court assisted by his closest officials. Gradually, in the twelfth and thirteenth centuries, this machinery came to involve itself in litigations concerning the general population. Three types of court – Exchequer (dealing with finances), Common Pleas (dealing with the ownership and possession of land) and King’s Bench (dealing with breaches of peace and criminal matters) – emerged therefrom. Of these, the Common Pleas was regarded, in the words of Coke, as the ‘lock and key of the common law’ as it dealt with matters between persons. In addition, the King also sent itinerant justices who travelled across the length and breadth of England and solved disputes in his name. It was this innovation in the form of delegating royal authority to decide cases that was eventually responsible for the birth of the common law. These royal courts were generally preferred to the local courts which used to decide cases according to local customs – to the point of gradually replacing them altogether. Centralisation led to unification and by the middle of the thirteenth century, the common law had become a fully-fledged legal entity. . Forms of Action In theory, a prospective claimant did not have automatic access to royal courts. Royal intervention was a privilege, not a right. It was initiated by a writ (breve in Latin) – which was a parchment containing a letter from the King. The plaintiff seeking to bring an action at one of the newly created common law courts – for instance, the King’s Bench or the Court of Common Pleas – had to have a writ issued by the Chancellor on the King’s behalf. At the beginning, the system of issuing writs was a flexible one. But gradually, as older writs began to be used as precedents in subsequent cases, it came to be incumbent upon the plaintiff to show how his case fit into a set formula. In the thirteenth century, there came to be an embargo on the issuance of any new writs without the consent of the King. The plaintiff had no choice but to fit his case into one of the pre-existing formulae. This procedural contingency was to mould the common law into an ‘immutable formulary framework’ and define and delimit the rights and remedies available to a litigant. These were the ‘forms’ into which ‘actions’ had to be
Viscount Kilmur, ‘Introduction: “Migration of the Common Law”’ () Law Quarterly Review . F. W. Maitland, Equity and the Forms of Action at Common Law (Cambridge: Cambridge University Press, ), p. David and Brierly, above n. , p. . Zweigrt and Kötz, above n. , p. ; Baker, above n. , p. . Zwigert and Kötz ibid. p. . Curia Regis literally meant the place where the King resided. Holdsworth, above n. , p. . Zweigert and Kötz, above n. , p. . Baker, above n. , p. . Ibid., p. . Ibid., p. David and Brierly, above n. , p. . Baker, above n. , p. . Holdsworth, above n. , p. . Baker, above n. , p. . Ibid. Ibid., p. .
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fitted – giving birth to the most peculiar of concepts of the common law, namely the ‘forms of action’, an expression used synonymously with the ‘writ system’. Forms of action and the formulary arrangement have had far-reaching consequences for the common law, both in terms of process and in terms of substance. Indeed, for a good chunk of its history, common law was ‘secreted’ in the ‘interstices’ of forms of action. Forms of action may have been formally abolished in the nineteenth century, but as Maitland famously remarked, they ‘they still rule us from their graves’. This historical smidgen goes a long way towards explaining why common law resists systematisation. Qua process, a system of law with a formulary heritage such as this was primed to be ad hoc and looked to solving the case at hand, rather than thinking in terms of first principles with a broad sweep. Qua substance, the formulary provenance explains why a number of common law concepts continue to have the seemingly haphazard shapes they do. Eric Descheemaeker’s assessment of the modern law of wrongs in the common law is a propos here. When the forms of action were abolished . . . the law did not become formless. The rules secreted by each action were scooped out of their actional husks and lumped together, still shaped by their original structure (rather like molluscs taken out of their shell). As a result, the modern law of wrongs is essentially made up of these surviving discrete liability-creating events inherited from the formulary age.
By way of an illustration of this feature, we cannot do better than take a look at the doctrine of consideration in English law. The doctrine of consideration comprises a fasciculus of rules which have been found to be illogical by a number of scholars and lawyers. At the heart of consideration is the idea that some detriment or loss to the promisee (the person seeking to enforce the promise) or some benefit to the promisor is a sine qua non for the enforceability of the promise. Contract law in the civil law world knows of no such requirement. But why insist on detriment or benefit, over and above what the parties have bargained for? This doctrine, like many others, takes this shape as a result of the formulary heritage of English law. The action of assumpsit – the formulary forbear of modern contract – was derived from the action called trespass on the case (a tort law action). Now, showing some damage or injury is a foundational requirement of tort law. When assumpsit branched away from its tort law ancestry, it continued to retain this vestigial requirement of detriment from its past. This, incidentally, also explains another seemingly odd doctrine, namely, the English rule of privity of consideration. This requires that consideration has to move from the promisee; in other words, only someone who has provided consideration can sue upon a contract. Again, this rule – and the privity of contract rule related to it (that only a party to a contract can sue upon it) – may come across as odd to the civil lawyer. This rule, again, becomes intelligible – if not justifiable – when understood as a vestige of the formulary past of English law.
Maitland, above n. , p. . H. S. Maine, Early Law and Custom (London: John Murray, ), p. . Eric Descheemaeker, The Division of Wrongs: A Historical Comparative Study (Oxford: Oxford University Press, ), p. . The Law Revision Committee (UK), Sixth Interim Report, Statute of Frauds and the Doctrine of Consideration (). S. Swaminathan, ‘Eclipsed by Orthodoxy: The Vanishing Point of Consideration, and the Forgotten Ingenuity of the Indian Contract Act, ’ () Asian Journal of Comparative Law . In the realm of private law, trespass and case were to be the most prolific forms of action. See David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, ), passim. S. Swaminathan, ‘The Great Indian Privity Trick: Misunderstanding Hundred Years of English Contract Law’ () Oxford University Commonwealth Law Journal .
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. Common Law and Equity The term common law as used up until this point ignores the intra mural distinction in English law between ‘common law’ and ‘equity’ understood as bodies of law evolved from the distinct sets of courts which differed in their workings. If the common law – in this compendious sense – and its workings come across as mysterious to the uninitiated, the workings of ‘equity’ and its precise relationship with ‘common law’ (in the narrow sense) are likely to come across as even more of an inscrutable enigma. To mark the distinction between the two, where the narrower sense of common law is intended, we will put it within quotations: ‘common law’. The fabled ‘gulf between common law and equity’ – captured in that pithy phrase ‘we do this at common law but that in equity’ – is a recurrent theme in the history of English law. The birth – and growth – of equity in many respects might be a case of the ‘common law’ having become a victim of its own success. As we have already seen, the ‘common law’ had eclipsed the local courts and virtually monopolised the adjudicatory function. But since relief at the ‘common law’ was dependent on fitting the relief under a pre-set formula, it ran the risk of becoming excessively rigid and inflexible. This combination of factors – ‘the sulkiness and obstinacy of the common law’, as Austin put it – brought in its wake a number of cases where a litigant was left with either no remedy at all, at the ‘common law’, or an ineffective one. In such cases, there was no alternative but to appeal to the King, ‘the fountain of all justice and favour’, to exercise his ‘prerogative’ and do what ‘good conscience’ required. The appeal was channelled through the Chancellor – a high-ranking official in the King’s court, who was the delegate exercising this royal jurisdiction. The Chancellor decided according to the ‘equity’ of the case. In due course, the exercise of this jurisdiction by the Chancellor (a majority of people holding this title were clergymen or trained lawyers, or both) led to the birth of a distinct body of law, ‘equity’, separate from the ‘common law’, which was administered by the Court of Chancery. The idea of equity took inspiration from Aristotle’s notion of epieikeia (or Roman aequitas) – something that functions as a ‘corrective of legal justice’ and mitigates the rigours of a rigid ‘common law’ jurisdiction. The term ‘equity’ came into currency much later – after the Court of Chancery came into existence – thanks to St. Germain’s Doctor and Student, which was published in the sixteenth century. The systems of common law and equity were to remain distinct until the nineteenth century, when they were unified. During the tumultuous seventeenth century, ‘common law’ and ‘equity’ reached an uneasy truce and arrived at a kind of equilibrium which
C. K. Allen, Law in the Making (Oxford: Clarendon Press, ), p. . Andrew Burrows, ‘We Do This at Common Law but That at Equity’ () Oxford Journal of Legal Studies . Tony Weir, ‘The Common Law System’ in René David (ed.), International Encyclopaedia of Comparative Law, Vol. II (Tübingen: Mohr Siebeck, ), pp. –, . David and Brierly, above n. , p. . David and Brierly, above n. , p. ; Baker, above n. , p. . John Austin, Lectures on Jurisprudence (London: John Murray ), p. . Allen, above n. , p. ; David and Brierly, above n. , p. ; Baker, above n. , p. . Maitland, above n. , p. ; The Chancellor was originally the King’s ‘natural prime minister’: Holdsworth, above n. , p. . Most notable of them being Francis Bacon (a polymath who also known as the father of philosophical empiricism) and Cardinal Wolsey (immortalised by Shakespeare in Henry VIII). Baker, above n. , p. . Allen, above n. , p. . For some time, English lawyers also tried using the Greek term Epiky which, however, did not stick: Frederick Pollock, Essays in the Law (London: Macmillan ), p. . Ibid.
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continued well into the nineteenth century, when the two systems were finally fused. This equilibrium was in part helped by a decision of Lord Coke that no new courts of equity usurping the jurisdiction of the ‘common law’ could be established. ‘Equity’ sat beside the ‘common law’ – with the understanding that it would be under the appellate supervision of the House of Lords. The early Chancellors had the advantage of delivering relatively swift justice – and at comparatively lower cost than ‘common law’ courts. Also, unlike the ‘common law’, which could only step in and provide relief after the event, equity could also give preventive relief (injunction); also, it could give specific relief, a more effective relief than damages which were de rigueur at ‘common law’. Moreover, it recognised some concepts not recognised by the ‘common law’ courts (e.g., uses and trusts). From equity sprouted a large number of maxims which also pithily capture its essence: ‘equity will not suffer a wrong to be without a remedy’; ‘he who comes into equity must come with clean hands’; ‘he who seeks equity must do equity’ ; and ‘equity looks to the intent rather than to the form’. The history of ‘equity’ is an oscillation between the extremes of permissiveness (where flexibility becomes a pathology) and ossification (where stability becomes a pathology). At one end point of this swing was the idea of equity being tied to doing justice in the individual case – a goal which is fundamentally at odds with the idea of ‘rulishness’, which requires the rule to be applied without considering justice in the individual case. This led to some Chancellors being so occupied with the individual case that justice varying according to the proverbial ‘Chancellor’s foot’ became inevitable. At the other end point of the swing was the idea – resulting from that uneasy truce reached between equity and the common law – that ‘equity’ was not meant to interfere in the common law; it was meant to ‘supplement’, not ‘supplant’ the ‘common law’. This eventually led to the ‘extraordinary jurisdiction becoming ordinary’. Equity ossified to a significant extent, leading to what C. K. Allen described as a ‘rigor aequitatis’. Back-breaking delays and expenses came to plague the Chancery court. The decay of the Chancery court has been immortalised by Charles Dickens in his novel, Bleak House, using the fictional case of Jarndyce v. Jarndyce. In , there was, finally, a fusion of the systems of law and equity – to be administered by a unified High Court of Justice. The High Court nominally had a ‘Chancery Division’, which it continues to have. This is, however, merely a label to mark out a class of matters the court deals with, but it bears no resemblance to the Chancery court of yore. Equity has since come to be a body of ‘rules’ just as much as the ‘common law’. In the rest of this chapter, the term common law will be used in the compendious sense of the term.
Baker, above n. , p. . Baker, above n. , p. . Allen, above n. , p. (quia timet actions). Allen, above n. , p. ; On grounds on comity, however, the Chancery court only gave this relief when the relief of common law damages was ‘inadequate’: Weir, above n. , p. . This modus vivendi continues to be a controlling rule for the granting of specific relief down to our present times. Maitland, above n. , p. Weir, above n. , p. . T. Endicott, ‘Impossibility of the Rule of Law’ () Oxford Journal of Legal Studies . Pollock, above n. , p. . Allen, above n. , p. .
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B. THE COMMON LAW METHOD
The common law is best seen as a process rather than a body of law or norms. It has also been described as the collective intuitions of the legal profession. Here, we will study some of the core features of the common law that give it this nature. . Casuistry Chief among the features – perhaps even the distinctive feature – of the common law is the casuistic or cautelary method. This involves movement from case-to-case, often by analogy (as will be discussed in further detail later). At the heart of it is moving analogically, which we will have more to say about later. But first, a word on the notion of casuistry itself. A casuistic system moves from case-to-case and seeks to reach solutions that are similar to solutions reached in past cases. The central idea of a ‘rationalist’ form of reasoning, by contrast, is reasoning from principle. The paradigm of rationalist systems is a logical-deductive one. The idea is for a principle or rule to anticipate a large number of cases and bring them under its sweep. The casuistic system is in many ways the antithesis of the rationalistic system. The common law tackles things as they arise instead of ‘anticipating them by abstract universal formulas’. Indeed, as the saying goes, common lawyers move ‘solvitur ambulando’. As Holdsworth notes, the outlook of the common law is ‘to be content simply to decide each case as it arises’. The rationale behind this was best explained by the seventeenth-century English judge Sir Mathew Hale. He argued that we cannot ‘lay down the simple rules of law for no other reason than that morals is not an exact science’. What this necessitated, per Hale, was the common law’s empirical approach, as opposed to the civil law’s rationalistic one. Zweigert and Kötz describe this as a ‘forensic and pragmatic’ approach which looks to ‘cross the bridge’ when one comes to it. In this respect, the comparison is often made with classical Roman law. Noting their similarity, William Buckand and Arnold McNair point out: Both the common lawyer and the Roman jurist avoid generalisations and, so far as possible, definitions. Their method is intensely casuistic. They proceed from case to case, being more anxious to establish a good working set of rules, even at the risk of some logical incoherence which may, sooner or later, create a difficulty, than to set up anything like a logical system.
Pierre Legrand reckons that this outlook is attributable to differences in the epistemological structures of civil law and the common law. The common law’s assumption, according to
Michael Lobban, The Common Law and English Jurisprudence – (Oxford: Clarendon Press ), p. . Kevin Gray and Susan Francis Gray, ‘The Rhetoric of Reality’ in Joshua Getzler (ed.), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths, London ), pp. –. Zweigert and Kötz, above n. , p. . Casuistry was once a respected tool in the philosophical repertoire, but has fallen into disrepute with the rise of PostCaterian rationalism: Albert Jonsen and Stephen Toulmin, Abuse of Casuistry: A History of Moral Reasoning (Berkeley, CA: University of California Press, ) passim. Zweigert and Kötz, above n. , p. . Ibid. Holdsworth, above n. , p. . J. G. A. Pocock, Feudal Constitution and the Ancient Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge: Cambridge University Press, nd ed., ), p. . Zweigert and Kötz, above n. , p. . See W. W. Buckland and A. K. McNair, Roman Law and Common Law (Cambridge: Cambridge University Press, , nd ed.), p. xvi
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Legrand is that ‘legal knowledge emerges from facts’, rather than ‘rules’ – accordingly, the reasoning of the common law is governed by a ‘situational logic’. By contrast, the civil law – with its penchant for codes – is governed by a ‘propositional’ logic which purports to impart a wide normative sweep for general rules. The common law with its situational sensibility eschews deciding once and for all about novel facts that may arise in the future. A precedent in the common law ‘does not purport to settle the result on relevantly different facts’. Common law judges are wary of transacting with general propositions. Holmes’s famous quote about ‘general propositions’ not ‘[deciding] concrete cases’ is particularly apt here. At first blush, this method of operation of the common law may come across as a form of ‘muddling through’. But as S. F. C. Milsom points out, that muddling through is calculated ‘to reach empirically’ and ‘peacefully’ results which ‘violent struggles for abstractions’ elsewhere have failed to yield. . Precedent and ‘Rules’ It would be trite to say that that the notion of a ‘rule’ is synonymous with the very idea of law. The central feature of law to a layperson, spanning across legal cultures, is perhaps the idea of its ‘rulishness’. The image of the rule this calls to mind is the commonsensical one of a rule being logically prior to its invocations. In other words, one identifies the rule before one turns to the facts and ‘applies’ the rule to it in a deductive fashion to get the result. This is how one would ordinarily reason with the rules found in a statute or code. This commonsensical notion of the rule is what John Rawls describes as the ‘mandatory conception’ of rules. But as Rawls warns us, the mandatory conception is not the only conception of rules. There is also a somewhat counter-intuitive, ‘summary’ conception of rules. Here, rules have no logical priority over the instances of their invocation. They are merely ‘summaries’ of past decisions. This allows the decision maker to alter the formulation of the rule in the course of invoking it. What this does is to lend the rule malleability, as it is open to being formulated in a way that accords with the present invocation. A summary rule, then, is a ‘rule’ only in an etiolated sense of the term because it is not normatively constraining in the way that a mandatory rule is. This is somewhat akin to throwing a dart first then drawing the bull’s eye around wherever it lands. The common law ‘rule’ is a summary rule; it is not logically prior to its instances of invocation. This is captured in Oliver Wendell Holmes Jr’s famous statement that the common law ‘decides the case first and determines the principle afterwards’. As Frederick Schauer points out, common law decisions which ‘purport only to be applying the existing rules are in fact changing those rules in the very process of applying them’. Viscount Kilmuir
Pierre Legrand, ‘European Legal Systems are Not Converging Legrand’ () International and Comparative Law Quarterly , . Ibid., at . Lawson F. H. Lawson, A Common Lawyer Looks at the Civil Law (Ann Arbor, MI: University of Michigan Press, ), p. Grant Lamond, ‘Do Precedents Create Rules?’ () Legal Theory , . Lochner v. New York () U.S. , (dissenting) (United States Supreme Court). S. F. C. Milsom, ‘Reason in the Development of the Common Law’ () Law Quarterly Review , . John Rawls ‘Two Concepts of Rules’ () The Philosophical Review . S. Swaminathan ‘Mos Geometricus and the Common Law Mind: Interrogating Contract Theory’ () Modern Law Review , . Dennis Lloyd, ‘Reason and Logic in the Common Law’ () Law Quarterly Review , –. O. W. Holmes Jr, ‘Codes and the Arrangement of the Law’ () Harvard Law Review . Frederick Schauer, Playing by the Rules (Oxford: Clarendon Press, ), p. ; Frederick Schauer ‘Is the Common Law Law?’ () California Law Review .
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expressed much the same opinion about the common law when he pointed out that the common law judge who purports to apply old rules to new circumstances, in effect, produces new rules. The rule is so formulated as to form the basis of the result being reached in the case at hand. As a result, there is no foolproof way of being able to tell beforehand if what a competent lawyer finds to be the rule will indeed be found to be dispositive of the case before the court. A common law judge has the latitude to arrive at the formulation of a rule which no one might have reckoned to be the rule beforehand. It this feature that prompted Edward Levi to describe the common law as ‘moving’ system of classification. In this respect, the common law rule is like the definitio of Roman law. This, as it happens, was one of Bentham’s biggest complaints about the common law. This also happens to be one of the principal reasons why it is misleading to equate the ‘ratio’ of a common law decision to a ‘rule’ which is binding in the same way as a statutory rule. While elementary student textbooks on legal method have no choice but to portray common law reasoning as capturing the objectively given ‘ratio’ of a case – what is not the ratio is dicta – the slightest of exposure to real-world cases would disabuse the student of this simple notion of precedent. As Grant Lamond argues, this oversimplified picture overlooks the latitude available to subsequent courts in dealing with precedents. As we will see later, this latitude allows common law’s analogical reasoning to take on the peculiar shape that it does. Reasoning of the common law is rather different from reasoning with rules. Although common law judges reason with past cases (precedent), it is not helpful to think of the text of this past case in terms of fixed rules (rationes) which are applied in a logical-deductive fashion. The ‘rule’ (ratio) in a precedent is not some text waiting to be picked out and applied. It necessarily falls to the subsequent court to play a role in determining what the ‘rule’ in a previous precedent is. And here, at this point, there is significant latitude available to the subsequent court. Law reports abound with examples of this phenomenon, but to point to just one, consider the recent decision of the UK Supreme Court in Cavendish Square Holdings, which discovered an entirely novel ratio in the century-old decision of Dunlop which generations of lawyers knew radically differently. This malleability is the consequence of two features of common law reasoning: (a) the idea of reasonableness; and (b) a lack of canonicity. To consider the idea of reasonableness first, a subsequent court will only find a ‘rule’ which it finds to be not unreasonable. If what is widely regarded as the ratio of a past cases is thought to lead to unreasonable results by the present judge, she reformulates the ‘rule’ in the past case. A common law judge carries this latitude into
Viscount Kilmuir, ‘Introduction “Migration of the Common Law”’ () Law Quarterly Review , . A. G. Guest, ‘Logic in the Law’ in A. G. Guest (ed.), Oxford Essays in Jurisprudence (First Series) (Oxford: Clarendon Press, ), p. at p. . E. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, ), pp. –. Peter Stein, ‘Logic and Experience in Roman and Common Law’ () Boston University Law Review , –. A. W. B. Simpson, Legal Theory and Legal History (London: Hambledon Press, ), pp. –. Lamond, above n. . Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, ) –. Cavendish Square Holdings v. Talal El Makdessi [] UKSC Dunlop Pnuematic Tyre Co. Ltd v. New Garage Motor Ltd; see S. Swaminathan, ‘De-Inventing the Wheel: Liquidated Damages, Penalties and the Indian Contract Act, ’, () The Chinese Journal of Comparative Law . Lloyd, above n. , at . Ibid.
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every new case, no matter how ‘easy’ or ‘hard’ it may ostensibly seem. This, incidentally, makes sense of the idea embodied in the phrase, ‘this is good law’, ubiquitous in the common law world, where ‘good’ not only connotes that this is a ‘valid’ proposition of law – incidentally, ‘valid’ derives from ‘valere’ which is the root for ‘good’ in Latin and Romance languages – but also that the proposition is sound and reasonable. The other factor contributing to this malleability is the absence of canonicity in the text of common law decisions. There is no portion of text in a judgment which can be marked out as being the rule or ratio. It is not given to a judge to italicise or underscore a designated portion of text as the ratio in a case. Besides, there are typically multiple opinions in appellate decisions, which would render such attempts otiose in any case. Furthermore, a ‘rule’ in a past case can always be pitched at different levels of generality or abstraction – from the very narrow to the very wide. To consider Julius Stone’s famous example, the rule in the celebrated tort law decision of Donoghue v. Stevenson could just as plausibly be made to yield a ‘rule’ for decomposing fauna in opaque food containers at the narrowest end, to a general rule on duty of care at the widest. It is this malleability of the common law rule that also makes sense of the commonly invoked practice of ‘distinguishing’. In distinguishing, the judge who has cited what collective wisdom regards to be the ‘ratio’ in a previous case, can nevertheless block that ‘ratio’ from ‘applying’ to the case at hand, by constricting the rule in the previous case. This is typically done by reading some further requirements into the ratio – which are absent in the case at hand. . Analogical Reasoning The foregoing discussion might also go some way towards demystifying ‘analogical reasoning’, which is widely regarded as the chief ‘organon’ of the common law method. Analogical reasoning has been said to be neither deductive nor inductive. It is thought to involve reasoning from case-to-case on the basis of their likeness or similarity, instead: similia ad similibus. It is engaged in all those the cases where a case is not brought squarely within the ratio of a previous precedent. If it is so brought within the ratio of a precedent, the case is it is so ranged under is called ‘authority’ – and this would be a case of reasoning with precedent. As we have seen previously, even the process of bringing the case within the ratio of a precedent should not be understood as a logical-deductive exercise involving a straightforward application – there is significant latitude to a judge in determining what the ratio of a previous case is. Now, if the case at hand cannot be ranged within a previous authority, the case is decided upon ‘analogy’. In analogical reasoning, one seeks to extend a past case to the case at hand. Since it involves an extension, it is in many respects, the obverse of ‘distinguishing’, which involves constricting the
Schauer, above n. (Playing by the Rules), p. . Maris Köpcke, A Short History of Legal Validity and Invalidity: Foundations of Private Law and Public Law (Cambridge: Intersentia, ), p. . Swaminathan, above n. , at –. A. W. B. Simpson ‘The Ratio Decidendi of a Case and the Doctrine of Binding Precedent’ in A. G. Guest (ed.) Oxford Essays in Jurisprudence (First Series) (Oxford: Clarendon Press, ), p. at p. . Julius Stone, The Province and Function of Law (Cambridge, MA: Harvard University Press, ), pp. –; Schauer, above n. (Playing by the Rules), pp. –. B. N. Cardozo, Nature of the Judicial Process (New Haven, CT: Yale University Press, ), p. . Gerald J. Postema, ‘A Similibus ad Similia: Analogical Thinking in Law’ in Douglas Edlin (ed.), Common Law Theory (Cambridge: Cambridge University Press, ), p. ; John Austin, Lectures on Jurisprudence (as revised and edited by Robert Campbell) (London: John Murray, ), p. . Austin ibid., p. ; Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, ), p. ; Joseph Raz Authority of Law (Oxford: Clarendon Press, ), p. ; Postema, above n. , p. .
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past case. The structure of the extension is as follows. Since the past case and case at hand have characteristic a in common, and the past case has characteristic b, the case at hand too is thought to share characteristic b. Standard accounts depict analogical reasoning as reasoning from a past case (source) to the case at hand (target). However, this standard depiction leaves much about analogical reasoning unaccounted for. Judgments of similarity hinge crucially on how one initially cognises or frames the case to which the other case is judged to be similar. However, it is problematic to presuppose – as standard accounts do – that the framing of the ‘source’ analogue is an objective exercise which does not involve any element of choice. Indeed, the framing of an analogy is just as malleable a process as gleaning the ‘ratio’ of a past case is. Judgments of similarity in the case of analogical reasoning, then, are not normatively constraining – just as pre-set ‘ratios’ in past cases are not normatively constraining when it comes to reasoning with precedent. If there is no normatively constraining pathway of extending a past case (the so-called source) analogically, and if independent choice is necessarily involved in what one picks as an analogy and how one frames it, the process which goes on under the rubric of analogical reasoning in the common law cannot possibly involve reasoning from a past case (the so-called source) to the present case (the so-called target). This indicates that the standard accounts of analogical reasoning have got the direction of fit between ‘source’ and the ‘target’ analogue scrambled. On a proper understanding then, the direction of fit between the ‘source’ and ‘target’ analogues is the reverse of what the standard accounts of analogical reasoning take it to be. The decision to invoke a ‘source’ analogue is not normatively constrained by the source analogue itself. Rather, it is the prior, independent decision to reach a certain result (thought to be reasonable in the case at hand) which informs the choice to frame the past analogue in a certain way. The choice of source analogue is at the service of whatever end result the judge might happen to have in mind. The ‘source’ analogue gets chosen, framed and invoked to justify a prior decision independently reached. This makes analogical reasoning a part of the ‘justification’, rather than the process of ‘discovery’ – as the standard accounts would have it. On the picture argued for here, the judge seeks to justify the decision in the case at hand by showing how it is similar to a previous case. Past cases, then, get used as rhetorical counters which are meant to persuade interlocutors about the decision in the present case. This relies on an age-old principle of rhetoric – that the transfer of force from one impression to another occurs through resemblance and contiguity. In other words, if X is shown to resemble or be contiguous with something (say Y) the interlocutor already regards as sound and therefore acceptable, X becomes more acceptable to the interlocutor. This involves framing the past case in a certain way so that it may provide rhetorical support to the conclusion reached in the case at hand. This account, therefore, makes sense of the leeway available to the judge in framing an analogue. An important caveat might be in order here. Some influential critics like Richard Posner point to the reverse direction of fit of analogical reasoning only to write off the enterprise of analogical reasoning in toto. However, this sceptical conclusion only follows if one supposes that a reverse direction of fit automatically translates to the activity of analogical reasoning being without any normative guidance whatsoever. As we shall see in the following discussion, this is far from being the case. There is indeed normative guidance available, although it does not come from past cases or ‘rationes’ inherent in them.
Cass Sunstein, ‘On Analogical Reasoning’ () Harvard Law Review . S. Swaminathan ‘Analogy Reversed’ () Cambridge Law Journal . L. F. Bitzer, ‘Hume’s Philosophy in George Campbell’s Philosophy of Rhetoric’ () Philosophy and Rhetoric , .
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. Tacit Knowledge and Communal Learning What emerges from the foregoing discussion of the common law is the undeniable latitude available to a judge to arrive at a reasonable result in the case at hand on its distinct set of facts. The common law ‘rule’ is defeasible in the service of a ‘wide domain of values’. Even the staple of common law, namely analogical reasoning, has a reverse direction of fit and involves the use of past cases as rhetorical counters and as a part of ‘justification’ – rather than being based on a ‘discovery’ of similarity between cases. If there are no rule-based criteria for determining what the rule is, and even analogical reasoning is rhetorical in nature, one might genuinely worry that there is nothing in the common law method to prevent a judge from ‘running away’ with a case and giving any judgment his whim dictates. It is this worry which finds expression in the famous American Legal Realist war cry that the law is what the judge had for ‘breakfast’. However, this worry is misplaced. The fact remains that the common law – to stick to the English version of the common law – is largely stable, predictable and known to change only very gradually. What explains this stability is that common law has non-rule-based normative constraints on legal reasoning, based on tacit knowledge. To understand tacit knowledge, we must first appreciate the difference between knowing that and knowing how. There are rule-bound spheres of activity where the participants may ‘know that’ – which is to say, identify and articulate the rules and comport their conduct based on them. But there are also spheres where the participants might ‘know how’ without ‘knowing that’ – in other words, they may know how something is to be done without being able to identify or articulate the rules or standards that constitute the activity. No ‘rules’ may constrain the activity, and the participants in the practice may be aware of the bounds to which they can go. Tacit knowledge is the key to unlocking the epistemology of a range of activities: from learning to swim, to mastering a language. However, there is a notable difference between the two – while the mastery of swimming is a solitary activity, mastering a language involves a communal practice. It is the latter to which we must pay closer attention if we are to unlock the working of tacit knowledge in the common law. As Michael Oakeshott explained, the epistemology of language acquisition is not to be understood in terms of mastery of a fixed set of utterances, but rather, as the sensibility to anticipate what is likely to pass muster with a group of language users. Theorists of the common law, such as Brian Simpson, have very similar things to say about the epistemology of the common law. They make a persuasive case that the common law ought to be understood as the collective tacit knowledge of the legal profession. It involves knowing the apt response to the case at hand. The apt response to the case in hand, in turn, is to be understood as anticipating what is likely to pass muster within the legal community. This is very similar to Thomas Kuhn’s depiction of the epistemology of scientific knowledge. In The Structure of Scientific Revolutions, Kuhn argued that in scientific research, tacit knowledge is held up by the collective gaze of the peer group of researchers. What it translates to in the context of the common law is the following. The common lawyer (whether at the bar or on
Schauer, above n. (Playing by the Rules), p. . Gilbert Ryle, The Concept of Mind (London: Routledge, ), pp. –. Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, ), p. . A. W. B. Simpson, ‘The Reflections of a Craftsman’ in Mads Andenas and Duncan Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford: Oxford University Press, ), pp. –. Simpson, above n. , p. . A similar view is also found in John Baker, Law’s Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford University Press, ), pp. –. Thomas Kuhn, The Structure of Scientific Revolutions (Chicago, IL: University of Chicago Press, nd ed., ), p. .
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Shivprasad Swaminathan
the bench) operates with a sense (know-how) of the extent to which they keep it within the bound of expectations of their peers. This kind of sensibility is internalised by lawyers in the course of training and their years at the bar. The practice of drawing judges from the pool of practitioners who have spent decades at the bar contributes to ensuring that by the time they are elevated to the bench, they tend to have internalised the gaze of the legal community. Common lawyers have been conscious of the centrality of tacit knowledge to their craft. This is the essence of what Sir Edward Coke described in the seventeenth century as the ‘artificial’ reasoning of the common law. The term ‘artificial’ here, it must be noted, comes from artifex or craftsman. It is reasoning acquired after long years of working on the craft. All this makes perfect sense of what might otherwise seem to be an odd pedagogical method of common lawyers. Common lawyers have always found apprenticeship to be a more reliable mode of transmission of knowledge than legal education at a university. The idea of tacit knowledge helps elucidate concepts in the common law that are otherwise likely to come across to the observer, as ‘abracadabra’. Consider for instance, concepts like ‘reasonableness’ or ‘just cause’, which one would fail to state in the form of rules and propositions. And yet, common lawyers tend to converge, seemingly without breaking a sweat, on classifying given fact patterns as cases of ‘unreasonableness’ or ‘negligence’. It is the idea of tacit knowledge that draws the boundaries for judges when it comes both to reasoning with precedent and analogical reasoning. In either case, we have seen that the ‘past’ case does not really provide any form of normative constraints at all. It is only through tacit knowledge that the process becomes predictable to a considerable extent despite the absence of any rule-based normative constraints. The idea of tacit knowledge sketched here also makes sense of two further ideas long associated with the common law – but only very poorly understood. First, the common law has for a long time been equated with ‘customary law’ – William Blackstone himself endorsed this depiction. This can be very misleading if what it calls to mind is a body of customary rules emerging out of the common law. What the term ‘custom’ captures dimly is that the common law has something to do with the idea of the communal: the relevant community here being the legal community. Second, in a similar vein, ‘lex non-scripta’ is a term often used to describe the common law. This, again, can be very misleading if it is read as denoting a ‘body’ of laws which is different in the only respect that the former is unwritten while the latter is written. From what we have discussed here, the common law is best seen not as a body of law at all, but rather as a practice of reasoning shared by the legal community. In other words, the correct view of the common law is to see it as the tacit knowledge or collective intuitions about responses to problems held by the legal community. On this picture ‘knowing’ the common law is akin to
Lamond, above n. , at –. Simpson, above n. , p. . Alan Cromartie and Quentin Skinner (eds), Thomas Hobbes: A Dialogue between a Philosopher and a Student of the Common Laws of England (Oxford: Clarendon Press, ), p. xxiii. Reinhard Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science’ () Law Quarterly Review , . It is this ability that Karl Llewellyn had described as ‘horse sense, the balanced shrewdness of the expert in the art’: Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little Brown & Co, ), p. . S. Swaminathan, ‘Common Lawyer as Practical Philosopher’ in Arvind Datar ed. Essays and Reminiscences: A Festschrift in Honour of Nani Palkhivala (Gurgaon: Lexis Nexis, ). William Blackstone, Commentaries on the Laws of England (London: Butterworth and Sons, ), p. . Postema, above n. , p. . Lobban, above n. , p. . Kevin Gray and Susan Francis Gray, ‘The Rhetoric of Realty’ in Joshua Getzler (ed.), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London: Butterworths, ), p. at p. .
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a sensibility . Accordingly, the idea of lex non-scripta properly denotes a legal system which is not rule-based or standard-based at all. Jeremy Bentham, the arch-critic of the common law was not completely off the mark when he depicted it as a ‘phantom’ – that was nowhere to be found – by which he meant that the common law did not have a body of rules like the civil law did. C. LEGAL LITERATURE, SYSTEMATISATION AND CODIFICATION
The front runner of codification on the continent was not a lawyer, but a philosopher, Rene Descartes, who famously claimed that no branch of learning could be called ‘science’ unless its laws could be arranged in a deductive system. After Descartes’s philosophical revolution, this rationalism was cemented further and formed the fulcrum around which the three axes of the civil law’s method – prominently visible even now – revolved: (a) pedagogy organised under the tutelage of University Chairs; (b) doctrinal writing by the professoriate; and (c) codification. Since law on the continent claimed to be a science, it sought to define itself based ‘on the model of classical geometry’. It is here that one finds the germ of the now ubiquitous civil law code; the law was meant to be reliably deduced so as to enable a judge to readily apply it to any situation that might present itself. In parallel, jurists were also attempting to do this with bodies of law – Robert Joseph Pothier’s Traite des Obligations being a case in point. Common lawyers were never ‘people of the book’, unlike civil lawyers. Not only did common lawyers not have the equivalent of the Roman Corpus Juris, they traditionally never even had the grand systematic legal literature that is the hallmark of the civil law world. Even the most influential literature in the history of the common law – consider Coke’s for instance – was never systematic. But this began to change in the nineteenth century with the birth of the systematic legal treatise – a form of literature which was very common in the civil law world, but new to the common law world. While traditionally, the prospect of rationalising the law was anathema to the average common lawyer, the idea began to be backed by some influential proponents in the eighteenth century – notably, Sir William Blackstone and Sir William Jones. Jones, following the Cartesian ideal, argued that the common law could only ever become a science if it followed the deductive paradigm. Blackstone, too, openly endorsed the deductive paradigm for the common law. Bentham’s later idea of codification is but the logical heir to Blackstone’s deductive system, the former’s intellectual antagonism towards the latter notwithstanding.
Ibid. Later, Thomas Kuhn was to term scientific training itself as a form of aesthetic training: Kuhn, above n. , passim. Jeremy Bentham and John Bowring (eds), Works of Jeremy Bentham, Now First Collected, Vol. IX (Edinburgh: William Tate, ), p. . Anders Wedberg, A History of Philosophy: Vol. (Oxford: Clarendon Press, ), pp. , . The view goes back to Leibniz: see Michael Hoeflich ‘Law & Geometry: Legal Science from Leibniz to Langdell’ () American Journal of Legal History , ; Merio Scatolla, ‘Scientia Iuris and Ius Naturae’ in Enrico Pattaro (ed.), A Treatise of Legal Philosophy and General Jurisprudence Volume (Dordrecht: Springer, ), p. at p. (natural lawyers such as Hugo Grotius and Samuel Pufendorf had to mimic this method of rational demonstration to lay claim for their accounts to be a ‘science’). Roger Berkowitz, Gift of Science (Cambridge, MA: Harvard University Press, ), passim. F. H. Lawson, A Common Lawyer Looks at the Civil Law (Ann Arbor, MI: University of Michigan Press, ), p. . Daniel J. Boorstin, The Mysterious Science of the Law (Chicago: University of Chicago Press, ), passim. David Ibbetson, ‘Sir William Jones and the Nature of Law’ in A. Burrows et al. (eds), Mapping the Law: Essays in Honour of Peter Birks (Oxford: Oxford University Press, ), p. . Lobban, above n. , p. .
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The assumptions underlying the legal treatise and the codification movement were identical and both gathered steam simultaneously. Both sought to create order out of the perceived morass of the common law and sought make it more rational and intelligible. While they were both rationalist in outlook, codification was far more radical than the legal systematisation movement. Bentham was among the earliest to see clearly that what made the common law opposed to rationalism was the peculiar nature of the system of common law precedent. Bentham thought that to have a rationalist system, one would first have to abandon the ad hocism of the common law, which moved one case at a time. In its stead, one had to embrace legal rules which were general, which is to say, ranging over a fair sweep of cases. The common law precedent – as we have seen, and as Bentham saw too – did not yield such rules. Second, the nature of the common law rule which allowed a judge to revise the formulation of the rule ‘every man for himself’ was to Bentham what made the common law into a ‘sham’ law. There was no reliable or objective method of identifying the rule which was then be applied to the facts of the case. He complained that in the common law, ‘there is no rule established, no measure to discern by, no standard to appeal to’. Codification was meant to remedy these twin problems at one go. It was meant to introduce rules that were generally applicable and reliably identifiable. But this did mean having to uproot the common law and replace it with a different system of reasoning. Unsurprisingly, Bentham was influenced in this by the civil law tradition. The codes in the civil law world were regarded as the apogee of rationalism. Codification hit fever pitch in England in the middle of the nineteenth century. The earliest and most famous of these codes were the Anglo-Indian codes on Contract, Crimes and Evidence. These were meant to be trial runs for eventual English codification in these areas. Consider the Indian Contract Act of for instance. It was overwhelmingly deduced from the will theory. At times, the format of the treatises mimicked that of the codes. For instances, treatises produced by Mackenzie Chalmers and J. F. Stephen were written with a code-like structure. Chalmers’s treatise actually became the Bills of Exchange Act, . Although it seemed at one time that codification would sweep over the common law, that never did happen. And by the end of the nineteenth century, calls for codification dried up. The rise and fall of codification closely mirror the rise and fall of its rationalist sibling, namely legal systematisation through the treatise. This was the rationalist sibling of the codification project. The treatise writers of the nineteenth century were inspired by the same goal of rationalising the common law, but the means they chose were far less radical than that of codification. They did not seek to uproot the very common law system of reasoning; instead, they sought to impose rational order on the
Ibid., p. . Roman J Hoyos, ‘A Providence of Jurisprudence? Invention of a Law of Constitutional Conventions’ in Angela Fernandez and Markus Dubber (eds), Law Books in Action: Essays on the Anglo-American Legal Treatise (Oxford: Hart Publishing, ), p. at p. . Lobban, above n. , p. . Ibid., (quoting Bentham). Ibid. Ibid. Hoeflich, above n. , at . W. Swain, The Law of Contract – (Cambridge: Cambridge University Press, ), pp. –, . A. W. B. Simpson, ‘The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature’ () University of Chicago Law Review , . Stephen also happened to be one of the drafters of the Indian Contract Act. And Chalmers happened to be the architect of the only major amendment () to the Indian Contract Act since its enactment. Ibid., at .
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Common Law
common law. They did this with the help of rationalistic theoretical models borrowed from civil lawyers. The second half of the nineteenth century was marked by a proliferation of rationalistic treatises which sought to put entire areas of common law into rational order. In doing so, they borrowed wholesale the civil lawyer’s method. Contract law treatises dominated this movement. The nineteenth century contract law treatises sought to reorganise the entire area of the common law under the influence of Pothier’s will theory. The nineteenth century contract law treatise proceeded on the assumption that ‘in the beginning there were principles, and that in the end these principles were found to cover a large multitude of cases deducible from them’. As David Ibbetson points out, this method was meant to deliver to the common law, ‘a measure of intellectual coherence’ that it traditionally ‘lacked’. Contract law treatises produced by Fredrick Pollock () and William Anson () followed this method. However, the neat systematisation the treatise writers attempted with the aid of will theory proved elusive. The courts simply did not deliver the rationalism the will theorist promised. Doctrines which were neat and logical on the leaves of the treatise, were messy and haphazard on the ground. The law in practice hardly resembled the neat systematisations of the treatise writers, and gradually it became increasingly difficult to make the treatise plausibly generate neat rationalistic accounts of contract law. The law-as-science idea of the nineteenth century was all but abandoned by the turn of the century. The modern textbook has, no doubt, continued the conceptual legacy of the nineteenth-century legal treatise. It does not, however, continue the nineteenth- century treatise’s rationalising project. While some of the old treatises, such as that produced by Anson, have editions running into the present day, they do so only nominally. In so far as systematisation and rationalisation are concerned, their structures look nowhere close to what they did during their inception in the nineteenth century. D. LEGAL TRAINING AND PEDAGOGY
The common law tradition’s approach to law and the legal academy was a far cry from the rationalism of civil law systems which were informed by the idea that the law is a ‘science’. From the eleventh century onwards, university law teaching began to take root in the civil law world. It was marked by the rationalistic method which comprehended the law as containing an ‘integrated and complete body of doctrine’. In sharp contrast to this was the common lawyer’s method, which involved picking up the law osmotically at the Inns of Court and spending time
Ibbetson, above n. , pp. –. Gareth Jones, ‘Traditional Legal Scholarship a Personal View’ in P. Birks (ed.), What Are Law Schools For? (Oxford: Oxford University Press, ), p. . Brian H. Bix, Contract Law: Rules, Theory, and Context (Cambridge: Cambridge University Press, ), p. . Ibbetson, above n. , p. . T. Plucknett, Early English Legal Literature (Cambridge: Cambridge University Press, ), p. . Ibbetson, above n. , p. . Stephen Waddams, ‘Nineteenth-Century Treatises on English Contract Law’ in Angela Fernandez and Markus Dubber (eds), Law Books in Action: Essays on the Anglo-American Legal Treatise (Oxford: Hart Publishing, ), pp. –. Swaminathan, above n. , at . Stephen Waddams, Principle and Policy in Contract Law: Competing or Complimentary Perspectives (Cambridge: Cambridge University Press, ), p. . Simpson, above n. , pp. –. Harold Berman, Law and Revolution I: Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, ), p. .
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reading in chambers. The Inns of court were medieval professional guilds that wielded significant political clout and monopoly over admission to the bar. The traditional universitiesof Oxford and Cambridge had little time for the common law. Admission to an Inn did not require any educational qualification as a pre-requisite. And if the input was not academically demanding, neither was the output. As Polden points out, the aim of training at the Inns of Court appears to have been that members be ‘respectable, even if they were not learned’. The Inns were so structured that the lawyers lived and fraternised together. It is quite apt then that the necessary qualification for common lawyers was expressed in non-academic, gastronomical terms – having had a certain number of number of ‘dinners’. After the Inns of Court declined by the eighteenth century, all that remained by way of pedagogy for common lawyers was the practice of reading in chambers. This, unlike modern pupillages, involved paying a certain sum of money to a ‘master’ to learn from him. This was, on the whole, an unsystematic and a laissezfaire method and what the student might glean from it was purely contingent and subject to numerous imponderables. As one commentator astutely observed, for ‘ guineas’, the pupil earned ‘the right of walking blindfold into a jungle’. No wonder then that Weber called it an ‘irrational’ method of training. Nevertheless, this remained the bedrock of common law pedagogy until not too long ago – even long after university pedagogy came to be introduced in England. Oxford instituted the first chair for teaching the common law late in the eighteenth century; and Cambridge did so only at the turn of the nineteenth century. Yet, until late in the nineteenth century, these chairs by and large –with rare exceptions – remained merely sinecures. Even though law was taught at these universities, a university law degree was not a requirement to enrol into practice. The aversion to university legal education seems to have been a conscious one. Albert Venn Dicey likened common lawyers to ‘brick makers’, since for the better part of its history, the common law was transmitted through apprenticeship, like any other quotidian craft. This ties in quite neatly with the epistemology of the common law, which we have had the occasion to consider earlier. Spheres dominated by tacit knowledge invariably prefer apprenticeship over ‘scientific’ university instruction. This is so because by its very nature tacit knowledge defies transmission in the form of rules and propositions which are more amenable to university instruction. By contrast, tacit knowledge can only be osmotically transmitted – making apprenticeship crucial. The Select Committee on Legal Education was charged in with the task of taking stock of the state of legal pedagogy in England and making recommendations. The Select Committee – which looked up to civilian pedagogy for inspiration – called for a ‘scientific legal
Zweigert and Kötz, above n. , p. . The Select Committee on Legal Education, House of Commons (). Patrick Polden, ‘The Education of Lawyers’ in William Cornish (ed.), Oxford History of the Laws of England: Volume XI (Oxford: Oxford University Press, ), p. . Ibid. Zweigert and Kötz, above n. , p. . Select Committee (), above n. , p. xi; W. Twining, Blackstone’s Tower: The English Law School (London: Sweet & Maxwell, ), p. . Christopher W. Brooks and Michael Lobban, ‘Apprenticeship or Academy? The Idea of a Law University, –’ in Jonathan A. Bush and Alain Wijffels (eds.), Learning the Law: Teaching and the Transmission of Law in England, – (London: Hambledon Press, ), p. (quoting Stephen Denison). The Vinerian Chair was established at Oxford University in . The Downing Chair was established in . A. V. Dicey, Can English Law Be Taught at the Universities? (London: Macmillan & Co, ), p. .
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education’ along the lines of what was available on the continent. This, it was hoped, would produce a ‘higher class of scientific work’ steeped in the ‘history and philosophy of law.’ A number of new chairs were instituted (e.g., the Chair in Jurisprudence at Oxford University, first held by Henry Maine) in the following decades and new law degrees were floated (e.g., the BA in Jurisprudence at Oxford University and the Law Tripos at Cambridge University). The goal was to nurture a professoriate which could equip students in the ‘science of law’. The Inns of Court, however, continued to guard their turf by regulating entry into the profession. A university law degree was not a requirement for admission to the bar and the best and brightest took the route of reading the classics at University and ‘picking up’ law in the course of practice. It remains possible to this day to qualify for the English bar without having earned a law degree. As I have argued elsewhere, this ‘made the University and the Profession a loose confederation of warring tribes rather than partners in a grand pedagogic vision’. As Christopher Brooks and Michael Lobban have pointed out, the tension between the court chamber and the lecture hall, which has its genesis in nineteenth century England, remains somewhat ‘unresolved’ to this day. This rationalist pedagogical innovation presupposed a model of the common law that was opposed to the model that was presupposed by common law practitioners. The aim of university law education was to teach the students the ‘science’ underlying their ‘craft’. But that scientific outlook required imagining the common law as a system of norms or rules rather than a practice of reasoning. In other words, it was turned from a lex non-scripta into a lex scripta. This has led to all forms of dissonance between the law in the book and law in action. For one, textbooks began to be written distilling the ‘rationes’ of cases as if these were fixed rules. Now, there is perhaps no better way of approaching a student textbook. However, what this does is to create the misleading impression that there are objective rules embedded in cases. Furthermore, this also led to an elusive search formulae for detecting the for rationes of cases from the late nineteenth century. A century and a quarter on, no surefire formula has yet been found. If common lawyers got by the better part of the last millennium without so much as bothering to figure out the formula for detecting the ratio of the case, it was because they were not looking for an objective rule embedded in the past case. Although the other rationalist innovations of the nineteenth century – codification and systematic treatises – died out by the turn of the twentieth century, this pedagogic rationalism is still with us as a vestige of that project and pervades our legal consciousness to such an extent that it goes virtually unquestioned. The most influential legal philosopher of the twentieth century (in the common law world, at any rate), H. L. A. Hart, doubly endorsed this. One prong of that endorsement was, Hart’s idea that ‘law’ – and here he did not take the common law to be any different – was a system of ‘rules’. And the other was Hart’s idea that rationes of precedents were nothing but
Select Committee, above n. , p. lvii. Ibid., p. xl. Although in other common law countries, a law degree has more or less become the default path to legal practice. S. Swaminathan, ‘Dicey and the Brickmaker: An Unresolved Tension between the Rational and the Reasonable in Common Law Pedagogy’ () Liverpool Law Review , . Also see Peter Birks, ‘Editors Introduction’ in Peter Birks (ed.), What Are Law Schools For? (Oxford: Oxford University Press, ), p. v. For the implication of this tension for legal theory and pedagogy, see Swaminathan, above n. . Swaminathan, above n. , at . A. W. B. Simpson argued that this ‘school rules’ concept of law has very wide academic support: A. W. B. Simpson, ‘Common Law and Legal Theory’ in A. W. B. Simpson (ed.), Oxford Essays in Jurisprudence (Oxford: Clarendon Press, nd ed., ), p. at pp. –. Rupert Cross and J. W. Harris, Precedent in English Law (Oxford: Clarendon Press, th ed., ), pp. –. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, nd ed., ), pp. –.
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rules, which could, for all practical purposes, be found in the headnote. There are legal theorists who believe this was effectively the superimposition of a Kelsenian framework, more suited to the civil law tradition, onto the common law where it did not belong. But it just goes to show the extent to which nineteenth-century rationalism has had an impact on the academic imagination of the law. Practice, however, remains at quite some distance from this picture. This rationalist pedagogical turn was connected to the legal systematisation in yet another way. It was the new professoriate emerging out of the nineteenth-century proliferation of university legal education that was the engine behind both the pedagogy and legal systematisation. Eminent treatise writers such as Pollock and Anson were also university professors – Pollock being Maine’s successor to the Oxford Jurisprudence Chair. Prior to this, as we have seen, a Professor of the Common Law was a rara avis, and before the establishment of the Vinerian Chair at Oxford in , practically non-existent. The common lawyers did not miss them. Common lawyers have always felt that the desk is a dangerous place from which to view the law and they did not take a very positive view of law handed down from university chairs. The engine of the development of the common law traditionally was the profession rather than the professor, as was the case on the continent. The academician or theoretician was not only viewed with a degree of suspicion, but with positive condescension. While the role of the legal academic has vastly improved from the days of the nineteenth century, it would be fair to say that on the whole, it is still a far cry from the status and privilege reserved for legal scholars in the continent. The trajectory taken by legal education in the United States of America, while sharing some things in common with the English system – including the late nineteenth-century ‘rationalisminspired’ push towards ‘scientific’ pedagogy – nevertheless varies from it on some salient points. Legal education in England is more liberal and abstract in nature, with professional aspects left to subsequent vocational training (which now, in part, takes the form of vocational training courses for barristers and solicitors) – in this, it is somewhat similar to continental systems. In America, on the other hand, legal education tends to imagine itself as also incorporating vocational aspects. The fact that American law degrees (Juris Doctor) are graduate-level degrees, unlike the undergraduate degrees in England, partly reflects this difference. Another reason for this vocational turn might be the legacy of American Legal Realism – a movement which moderated the ‘scientific’ and ‘rationalist’ turn that American law pedagogy took in the late nineteenth century by forcing it to focus on law in ‘practice’ or law in ‘action’. England never
Ibid., p. . There were Regius Chairs of Civil Law at Oxford University and Cambridge University which had been in existence since the sixteenth century, but the incumbents taught Roman law rather than the common law. And at any rate, these were mostly sinecures. The Bachelor of Civil Law degree at Oxford University had been around since the thirteenth century, but was not intended to impart common law education until the second half of the nineteenth century. Roscoe Pound, Formative Era of American Law (Boston: Little Brown & Co, ), p. ; Raoul Van Caenegem, European Law in the Past and the Future Legal Past: Unity and Diversity Over Two Millennia (Cambridge: Cambridge University Press, ), pp. –. Neil Duxbury, Jurists and Judges: An Essay on Influence (Oxford: Hart Publishing, ), p. . This was a far cry from the status of the civilian jurist. See John Henry Merryman, ‘Legal Education There and Here: A Comparison’ () Stanford Law Review , . William LaPiana, Logic and Experience: The Origin of Modern American Legal Education (Oxford: Oxford University Press, ), pp. –. For an overview of the movement called American Legal Realism, see Brian Bix, Jurisprudence: Theory and Context (London: Sweet & Maxwell, ), pp. –. The pantheon of American legal realists is thought to include a disparate bunch ranging from Oliver Wendell Holmes Jr to Jerome Frank and Karl Llewellyn. American Legal Realism is seen as an early precursor to Critical Legal Studies.
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Common Law
had a comparable scholarly movement. While the textbook remained the staple of the English system, the casebook became the fulcrum of the American system. And even if casebooks are now catching up in England, the structure of the casebooks reveals the above points of difference between the systems. An English casebook on contract law, for instance, reflects the traditional division of the subject, starting with ‘formation’ and ending with damages, while the American one typically begins with ‘damages’ – this, again, is a legacy of legal realism. E. SPREAD OF THE COMMON LAW
It is somewhat of a paradox that the common law, which ‘grew in rugged exclusiveness’, to borrow Pollock’s words, eventually went on to become the rugged traveller that it has. A law which resisted influences from elsewhere in the world ended up as the law for ‘half a world’ comparable ‘for the extent of [its] influence . . . with the law of the Roman empire’. The common law came to be transported, along with the British empire, to almost all of Australia and North America, vast swathes of Africa and Asia, and some countries in Europe. The rule of thumb was that in all such colonies acquired by settlement or conquest, English law was sought to be applied to the extent permitted by local conditions. The common law made its way into these countries in different ways, by long and, at times, imperceptible, steps. Some of these were settlements, others acquired by conquest; some were a mixture of both. Some of them had no prior organised legal systems, while others had an ancient legal heritage. Even long after breaking away from British rule, most of these jurisdictions have continued to retain the common law. While that, no doubt, speaks to the resilience of the common law, a two-fold caveat is in order. For one, while it is undoubtedly true that the common law has travelled far and wide, it is also an equally important fact that no country in the world has voluntarily chosen to adopt it. For another, while a number of these jurisdictions nominally remain in the ‘common law’ family, it also becomes important to examine the extent to which they diverge from the English paradigm. It should hardly come as a surprise that some of these jurisdictions, while still nominally answering to the label of being common law-governed, may have deviated significantly from the essence of the common law, at least in the eyes of the legal theorist, if not the law librarian. Here, we seek to identify the central factor causing convergences and divergences between the working of the law in many of these systems that go under
Frederick Pollock, Oxford Lectures and Other Discourses (London: Macmillan, ), p. . Ibid., p. . Australia, New Zealand, Papua New Guinea and Fiji. United States of America, Canada (excluding Quebec), Anguilla, Antigua & Barbuda, The Bahamas, Barbados, Bermuda, Belize, British Virgin Islands, Cayman Islands, Dominica, Grenada, Jamaica, Montserrat, St Kitts & Nevis, St Vincent & the Grenadines, Trinidad & Tobago and Turks & Caicos. Uganda, Liberia, Nigeria, Tanzania, South Africa, Sudan, Ghana, Botswana, Eswatini, Gambia, Kenya, Lesotho, Malawi, Zambia and Zimbabwe. India, Israel, Pakistan, Bangladesh, Bhutan, Myanmar, Malaysia, Singapore and Hong Kong. Ireland and Cyprus. Sir John Latham, ‘The Migration of the Common Law: Australia’ () Law Quarterly Review . Also. ‘Very often the term, “justice, equity, and good conscience”, which the courts were typically empowered to justice according to in British administered territories, was read to mean “rules of English law”’: Justice Vivian Bose, ‘The Migration of the Common Law: India’ () Law Quarterly Review , . This meant that, by and large, local family laws were left untouched, while invariably the common law was applied in civil, criminal and public law. It will be beyond the scope of this chapter to capture the unique historical pathway of the common law in each of those fifty-odd legal systems. A. L. Goodhart, ‘What Is the Common Law’ () Law Quarterly Review .
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the label ‘common law system’. But first a word on the essence of the common law system might be in order. To many a lawyer – and the informed layperson – the essence of the common law is that the bulk of it is comprised of judge-made case law rather than statute law. And it is both tempting and convenient to identify the difference between civil law and common law systems precisely at this point. However, this impression turns out to be inaccurate. Indeed, a common law system could retain its nature despite a heavy statutory component and likewise a civil law system can withstand a significant component of case law (such as the droit administratif in France). The real difference between the civil law and the common law then comes down to the modes of normativity underlying them. Civil law systems operate on a model of normativity, with norms. In other words, decisions of right and wrong are guided by a norm (this term includes principles, rules and standards), and a judge seeks to bring a case within the sweep of a norm (in other words, to ‘apply’ a norm to the case). The common law on the other hand operates on a model of normless normativity. Here, decisions of right and wrong are guided by the tacit knowledge of what is likely to pass muster within the legal community. This explains how, despite precedential and analogical reasoning in the common law not being norm-governed, they still continue to be rationally bound and do not become wildly unpredictable. Now, what brings about this different mode of normativity in the case of the common law system is a purely historical accident – namely, the English practice of appointing judges from among the leaders of the bar. What this practice ensured is that by the time judges came to be appointed to the bench – after having spent long years at the bar – they had thoroughly internalised the gaze of the professional group. What was identified as right or wrong for them was what passed muster within the professional group. The polymath Michael Polanyi went on to identify this feature as ‘polycentricity’ (not to be confused with Lon Fuller’s use of the term). Polanyi pointed out that it is this polycentricity which also explains the workings of markets and scientific research. Later, Thomas Kuhn, in The Structure of Scientific Revolutions, was to point out that the normless normativity of scientific research is constituted by the anticipation of what will pass muster within the scientific community – which is institutionalised in the peer review process. The famed ‘independence’ of the judiciary, so often cited as the hallmark of common law systems, is a manifestation of this feature. It is the professional legal community, rather than some political master, which common law judges regard themselves as answerable to. This feature lies at the root of the English common law system traditionally being thought of as a bulwark against both absolutism and tyranny. In civil law systems, judges, by and large, are career civil servants who commence their professional journey at the lower rungs of the system – as in any civil service – before ascending to the top. Seen thus, the principal difference in the models of normativity underlying the civil law and common law might have to do with its mode of appointment of judges. Indeed, the nature of normativity, rather than the dominant form the law takes (statute vs case law), might be a better marker of the difference between civil law and common law systems. This might go some distance towards making sense of why even in areas where the common law is ‘codified’, there is a pronounced tendency for the law to track the
Swaminathan, above n. . Goodhart, above n. , at . Another factor having a bearing on independence is the mode of appointment of judges. Here, there is quite a wide variation in common law jurisdictions ranging from self-appointment (e.g., India), to appointment by the executive (e.g., UK and Singapore), to appointment by the executive subject to confirmation of legislative bodies (e.g., US Supreme Court Appointments) to appointment by autonomous bodies (Hong Kong) to election (e.g., for some state-level judicial offices in USA).
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anti-diluvian common law. Examples abound, but the Indian Contract Act of is a great example of this phenomenon. The normless normativity of the common law has a way of beating the codes out of shape. This also holds the key to understanding why the codification movement died a natural death in England. Without changing the model of normativity underlying the common law, merely ‘codifying’ it is unlikely to change its nature. What this also shows us is that we would do well to seek the essence of the common law in the presence of such professional practice and arrange legal systems on a sliding scale of how strongly they instantiate this feature. The actual plotting of legal systems along this sliding scale will require significantly greater empirical research – which must await another occasion. The best we can do is present some hypotheses that could form the basis for further testing and refinement in the light of empirical data. The first hypothesis is that as we learn from work on polycentricity and the ‘tragedy of the commons’, the degree of cohesion in thought in a professional group is inversely related to the size of the group, so that the larger the group, the more difficult group cohesion becomes. Therefore, smaller legal systems with a greater degree of coherence in the legal community – such as Singapore and Hong Kong – are likely to have more a stable and predictable body of law in comparison with legal systems which have large legal communities (such as India and the United States). Since this professional cohesion and the tacit knowledge it brings is what tempers the malleability of the common law, in its absence – at the other end of this scale – one is likely to find a judiciary which will run away with the law, as it were, and start reaching unpredictable results. Some would argue, in fact, that such a thing is already, to an extent, happening in the Supreme Court of India – a court which has arrogated to itself a dazzlingly broad jurisdiction, including the administration of the game of cricket in India. Second, even within what are nominally common law systems, there may be large swathes of judicial personnel that may, in terms of their operation, be closer to the civil law judge than the common law judge. The lower judiciary in India, for instance, is comprised of judges who are career civil servants (as is the case in civil law countries), and who are not drawn from the bar (as is the case of most judicial appointees in appellate courts in India). Unsurprisingly then, the lower judiciary in India tends to operate under a norm-governed model of normativity, with judges viewing their role as that of ‘applying’ the law as found in the law codes and precedents – which also, in turn, tend to be read as if they were law codes. One might even be so bold as to suggest that if the appellate courts are filled up with career civil servants, it won’t be long before the legal system stops resembling a common law system.
S. Swaminathan, ‘Persistence of the Codeless Myriad: The Indian Contract Act and a Puzzle Surrounding Common Law Codification’, () Statute Law Review . Swaminathan, above n. . Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, ).
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Confucian Legal Tradition Ngoc Son Bui*
This chapter conceptualises the Confucian legal tradition as a historically extended and legally embodied Confucian argument. The Confucian legal tradition has three features. First, it is jurisprudentially founded on a set of Confucian concepts and principles justifying the importance of good men. Second, the Confucian argument is embodied in structural institutions and legal codes in premodern and modern East Asia (China, Japan, Korea, Vietnam). Third, legally embodied Confucian concepts and principles are historically extended for thousands of years from formation, consolidation, and transnationalisation to modernisation.
A. INTRODUCTION
In comparative law scholarship, the legal systems in East Asia (China, Japan, Korea, and Vietnam) are normally presented in legal groupings such as ‘Law in the Far East’, ‘the East Asian Legal Tradition, and ‘the Chinese Legal Circle’. Despite differing labels, that these legal systems are put together suggests that they have something in common. Many scholars have recognised one common feature: that the legal systems in premodern East Asia have been influenced by Confucianism. Geoffrey MacCormack explores the ‘Confucian spirit’ of traditional Chinese law. Marie Seong-Hak Kim states that ‘the entire legal system [of Korea’s Choso˘n] was justified in reference to Confucian ideals’. Harold G. Wren attributes the success of the Tokugawa shogunate, which governed Japan in the seventeenth to nineteenth centuries, to ‘the practice of Confucianism within the administrative organisation * Professor of Asian Laws, Faculty of Law, University of Oxford. Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Oxford: Oxford University Press, rd ed., ), p. . Teemu Ruskola, ‘The East Asian Legal Tradition’ in Mauro Bussani and Ugo Mattei (eds), The Cambridge Companion to Comparative Law (Cambridge: Cambridge University Press, ), p. . János Jany, Legal Traditions in Asia: History, Concepts and Laws (Cham: Springer, ), p. . For other labels, see Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), p. . Geoffrey MacCormack, The Spirit of Traditional Chinese Law (Athens GA: University of Georgia Press, ), p. . Marie Seong-Hak Kim, ‘Introduction: Searching for the Spirit of Korean Law’ in Marie Seong-Hak Kim (ed.), The Spirit of Korean Law (Leiden: Brill, ), p. .
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Confucian Legal Tradition
and the legal system’. Ta Van Tai recognises the Confucianisation of the law in traditional Vietnam. The Confucian influence on premodern legal systems in East Asia leads some scholars (such as H. Patrick Glenn, Marie Seong-Hak Kim, William Shaw, Jérôme Bourgon and PierreEmmanuel Roux) to characterise these legal systems as constituting a ‘Confucian Legal Tradition’ or simply ‘Confucian Law’. Joining these scholars, this chapter conceptualises the Confucian Legal Tradition. Adapting Macintyre’s concept of tradition, this chapter defines the Confucian legal tradition as a historically extended, legally embodied Confucian argument. The Confucian legal tradition has three features. First, it is jurisprudentially founded on a set of Confucian concepts and principles justifying the importance of good men. Second, the Confucian argument is embodied in structural institutions and legal codes in premodern and modern East Asia (China, Japan, Korea, Vietnam). Third, legally embodied Confucian concepts and principles are historically extended for thousands of years from formation, consolidation, and transnationalisation to modernisation. Section B provides a background to Confucianism, East Asian legal systems, and the concept of a legal tradition. Section C generalises features of the Confucian legal tradition. Section D then concludes. B. BACKGROUND: CONFUCIAN, LEGAL, TRADITION
To start with, it is necessary to clarify the meaning of the terms ‘Confucian’, ‘legal’, and ‘tradition’ before putting them together as a single concept. . Confucian By Confucian, this chapter refers to ‘Confucianism’ as a philosophy. Confucianism was created by Confucius (– BC) and developed by Mencius (– BC) and then Xunzi (– BC) during the late Spring and Autumn Period (– BC) and Warring States Period (– BC) in the history of China. Major Confucian works include: The Four Books (The Analects of Confucius, The Mencius, The Great Learning, and The Doctrine of the Mean); Five Classics (the I Ching or Book of Changes, the Shu Ching or Book of History, the Shih Ching or Book of Poetry), and the Yi Li or Book of Rites, and the Chunqiu or Spring and
Harold G. Wren, ‘The Legal System of Pre-Western Japan’ () Hastings Law Journal , . Ta Van Tai, The Vietnamese Tradition of Human Rights (Berkeley, CA: Indochina Research Monograph, University of California, ), p. . H. Patrick Glenn, Legal Traditions of the World. Sustainable Diversity in Law (Oxford: Oxford University Press, th ed., ); Marie Seong-Hak Kim, ‘Commensurability, Comparative Law, and Confucian Legal Tradition’ in Helge Dedek (ed.), A Cosmopolitan Jurisprudence: Essays in Memory of H. Patrick Glenn (Cambridge: Cambridge University Press, ); William Shaw, Legal Norms in a Confucian State (Berkeley, CA: Institute of East Asian Studies Publications Series, Korea Research Monographs ); Jérôme Bourgon and Pierre-Emmanuel Roux, ‘The Choso ˘ n Law Codes in an East Asian Perspective’ in Marie Seong-Hak Kim (ed.), The Spirit of Korean Law (Leiden: Brill, ) . See note and corresponding text. I follow Harold J. Berman, who clarifies the meaning of the three words ‘Western,’ ‘legal,’ and ‘tradition’ in his account of the Western legal tradition. Harold J. Berman, ‘The Western Legal Tradition in a Millennial Perspective: Past and Future’ () Louisiana Law Review . See generally, Xinzhong Yao, An Introduction to Confucianism (Cambridge: Cambridge University Press, ).
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Autumn Annals); and Xunzi’s writings. Confucianism is a tradition and a philosophy about a good way of life, including a good way of governing. Particularly, in response to the historical context of political chaos, the classical Confucians’ central concern was a good political order, which in their view depended on the personal cultivation of virtual values. Confucian philosophy, therefore, develops different moral, political, and legal ideas, concepts, and principles. Confucianism evolved in China and was subsequently diffused in Japan, Korea, and Vietnam. Tu Wei-ming, a leading Confucian scholar, distinguished three epochs of Confucianism. The first epoch, or ‘classical Confucianism’, was the creation of Confucianism in the classical age (Warring States and Han, China). The second wave, or ‘Neo-Confucianism’, was the revival of Confucianism during the Song, Yuan, Ming, and Qing dynasties.; This Neo-Confucianism, particularly as formulated by Sung Confucian philosopher Zhu Xi (–), was further diffused from China to Korea, Japan, and Vietnam. In Korea’s Choso˘n dynasty (–), Neo-Confucianism was adopted as a state ideology. In Vietnam, the Le Dynasty (–) and the Nguyen Dynasty similarly adopted Neo-Confucianism as an official ideology. In Japan, the golden age of Confucianism (Neo-Confucianism) was in the fifteenth century under the Tokugawa shogunate (–). Finally, the third wave, or ‘New Confucianism’, beginning in the early twentieth century in China, sought to integrate Confucianism with Western philosophy. . Legal By legal, I mean the positive systems of law in premodern and modern East Asia. The legal systems in premodern East Asia refer to legal systems created before the twentieth century. Particularly, they are the legal systems strongly influenced by Confucianism, including the legal systems of the Han dynasty ( BC– AD, – AD), the Tang Dynasty (–), the Sung Dynasty (–), the Yuan Dynasty (–), the Ming Dynasty (–) and the Qing Dynasty (–) in imperial China; the legal system of the Choso˘n Dynasty (–) in Korea; the legal system of Tokugawa government (–) in Japan; and the legal systems of the Le Dynasty (–) and the Nguyen Dynasty (–) in Vietnam. These highly sophisticated legal systems in premodernity share common concepts, a common structure, and a common substance. As elaborated later, these dynastic legal systems in premodern East Asia were jurisprudentially underpinned by common concepts rooted in Confucianism, considered by those relevant dynasties as the official ideology. In addition, these
The Four Books: Confucian Analects, The Great Learning, The Doctrine of The Mean, and The Works of Mencius, With English Translation and Notes, by James Legge (Shanghai: Chinese Book Co., ); M Nylan, The Five ‘Confucian’ Classics (New Haven, CT: Yale University Press, ); John Knoblock J, trans. Xunzi: A Translation And Study og the Complete Works, Vols. (Stanford, CA: Stanford University Press, , , ). Bui Ngoc Son, ‘The Law of China and Vietnam in Comparative Law’ () Fordham International Law Journal . Martina Deuchler The Confucian Transformation of Korea: A Study of Society and Ideology (Cambridge MA: Harvard-Yenching Institute Monograph Series , ); William Theodore de Bary and JaHyun Kim Haboush (eds), The Rise of Neo-Confucianism in Korea (New York: Columbia University Press, ). Liam C. Kelley, ‘“Confucianism” in Vietnam: A State of the Field Essay’ () Journal of Vietnamese Studies . Kiri Paramore, Japanese Confucianism: A Cultural History (Cambridge: Cambridge University Press, ), . See also James McMullen, The Worship of Confucius in Japan (Cambridge, MA: Harvard East Asian Monographs, , ). John B. Berthrong, ‘Riding the Third Wave: Tu Weiming’s Confucian Axiology’ () Dao –. On elements of a legal system (structure, substance, and culture or ideas and beliefs), see Lawrence M. Friedman and Grant M. Hayden, American Law: An Introduction (New York: Oxford University Press, ), p. .
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dynastic legal systems share a common legal structure, including a monarchy and dynastic institutions. The monarch centralises legislative, executive, and judicial power, although in practice the monarch retains the legislative power and delegates executive and judicial powers to various central and local magistrates. Like the legal systems of the Western civil legal tradition, the substance of the dynastic legal systems in East Asia mainly includes codified legal rules. There were two main kinds of law codes in dynastic East Asia: penal codes and administrative codes. The penal codes were the primary source of legal rules in premodern East Asia. In China, the Tang, Sung, Ming, and Qing dynasties all enacted a penal code. The Mongolian dynasty of the Yuan failed to enact a penal code, but legal instruments from that dynasty were strongly influenced by the Tang Code. In Korea, the Kyǒngguk Taejǒn was the penal code compiled by the Choso˘ n Dynasty in . In Vietnam, the Le Dynasty enacted the Le Code (or Ho`ˆ ng Đức ˆ Code), and the subsequent Nguyen Dynasty enacted the Gia Long Code (or Hoàng Vieˆ t Luat ˙ ˙ ˆ Le) in . In Eighth-century Japan, the Ritsuryō codes were comprised of both penal and ˙ administrative codes. The Taihō-ritsuryō () included volumes of criminal code, while the Yōrō-ritsuryō () included volumes of criminal code. In Eighteenth-century Japan, many Tokugawa penal codes were enacted, including the Draft Penal Law (Keiho sosho; ) of Kumamoto han; the Provincial Penal Code (Kokuritsu; –) of Wakayama han; the Catalogue of Penal Law (Go-keiho-cho; ) of Hirosaki han; the Criminal Rules (Keisoku; ) of the Aizu han in the northern province, Mutsu; and the New Penal Code (Shinritsu; ) of the Shibata han in Echigo province. The penal codes are the primary source of criminal law in premodern East Asia. However, the penal codes are not merely about criminal law, as they deal with many legal civilian issues (such as contract, marriage, inheritance, and property). The substantive contents of the legal rules cover differing aspects, not merely crimes and punishments, although the legal rules and norms are normally backed by criminal sanctions. Therefore, the penal codes should be considered as the source of both criminal law and civil law in premodern East Asia. To be sure, legal systems in premodern East Asia did not have a distinction between criminal law and civil law.
MacCormack, above n. , p. . Apart from law codes, the sources of law in premodern law in East Asia include case law and customary law (village law) which were also influenced by Confucianism. See Norman P. Ho, ‘Confucian Jurisprudence in Practice: PreTang Dynasty Panwen (Written Legal Judgments)’ () Pacific Rim Law & Policy Journal ; Monika Übelhor, ‘The Community Compact of the Sung and Its Educational Significance’ in William Theodore De Bary and John W. Chaffee (eds), Neo-Confucian Education: The Five Stages (Berkeley, CA: University of California Press, ), –; Marie Seong-Hak Kim, Law and Custom in Korea: Comparative Legal History (Cambridge: Cambridge University Press, ); Herman, Ooms Tokugawa Village Practice: Class, Status, Power, Law (Berkeley, CA: University of California Press, ). John Warren Head and Yanping Wang, Law Codes in Dynastic China: A Synopsis of Chinese Legal History in the Thirty Centuries from Zhou to Qing (Durham, NC: Carolina Academic Press, ); Brian McKnight Law and Order in Sung China (Cambridge: Cambridge University Press, ); The Great Ming Code / Da Ming lu, trans. Jiang Yonglin (Seattle: University of Washington Press, ); William C. Jones, The Great Qing Code: A New Translation (New York: Oxford University Press, ). MacCormack, above n. , p. . See generally, Nguyen ngoc Huy and Ta Van Tai, The Le Code: Law in Traditional Vietnam: A Comparative SinoVietnamese Legal Study with Historical-Juridical Analysis and Annotations (Athens, OH: Ohio University Press, ). Dan Fenno Henderson, ‘Chinese Influences on Eighteenth-Century Tokugawa Codes’ in Jerome Alan Cohen, Fu-mei Chang Chen and R. Randle Edwards (eds), Essays on China’s Legal Tradition (Princeton NJ: Princeton University Press, ), pp. –.
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The second kind of legal codes in premodern East Asia were administrative legal codes called dian in Chinese, cho˘n in Korean, and điển in Vietnamese. These terms ‘referred to a comprehensive compilation of all normative documents used by the state administration, classified according to its bureaucratic divisions’. The Chinese huidian, Korean taejo˘n, and Vietnamese hoˆ i điển, which ‘mean great administrative canons, featuring an overall survey and an outline of ˙ the administrative apparatus’, can be considered as administrative legal codes. In China, the Da Tang Liu Dian (The Six Codes of the Great Tang) compiled in – AD ‘listed out each bureaucratic office and organ, stipulating the precise number of officials in each office and their ranks, functions, powers, and responsibilities, and also included commentaries which explained the historical evolution of each office’. Under the Ming Dynasty, the Dà Míng Huì Diǎn (Collected Codes of Great Ming) was compiled from to . Following the Ming model, the Qing dynasty compiled the Dà Qi¯ng Huì Diǎn (the Collected Codes of Great Qing) in , which then experienced several revisions. In Korea, the founder of the Choso˘n dynasty enacted the Kyo˘ngje Yukcho˘n (Six Codes of Administration), which was the basis for the Kyo˘ngguk Taejo˘n (Great Code for Governing the State), completed in and promulgated in . In Vietnam, the Le dynasty compiled the Lê Triê`u Hoˆ i Điển (Collected Codes of the Le Dynasty), and the Nguyen dynasty compilied the ˙ Khâm Đinh Đai Nam Hoˆ i Điển Sự Leˆ (Collected Codes of Great Nam). The codification of ˙ ˙ _ _ administrative law also developed in premodern Japan. The Taihō-ritsuryō included volumes of administrative code; while the Yōrō-ritsuryō () included volumes of administrative code. The legal in the context of Confucian legal tradition also refers to the modern legal systems of East Asian and Confucian-influenced jurisdictions created in the twentieth century. These include the modern legal systems of mainland China, Taiwan, Hong Kong, Japan, South Korea, North Korea, Singapore, and Vietnam. Since the early twentieth century, the East Asian countries have modernised their legal systems, and the dynastic legal systems were abolished. Japan, South Korea, and Taiwan have since adopted a civil law tradition. The modern legal systems in China, Vietnam, and North Korea were also influenced by the civil law but were then dominated by socialist law when the three countries became socialist countries, following the Soviet model. Hong Kong and Singapore, on the other hand, adopted a common law system. The modern legal systems are relevant to the Confucian legal tradition because they operate within Confucian-influenced societies and hence they still partially embody Confucian values, as we will see later in this chapter.
Bourgon and Roux, above n. , p. . Ibid. Norman P. Ho, ‘A Look into Traditional Chinese Administrative Law and Bureaucracy: Feeding the Emperor in Tang Dynasty China’ () University of Pennsylvania Asian Law Review , . Bourgon and Roux, above n. , p. . Ibid. ˆ Vieˆ t Nam (từ the´ˆ kỷ XV đe´ˆ n XVIII) [Some Nguye˜ˆ n Ngoc Nhuaˆ n (ed.), Moˆ t so´ˆ văn bản điển che´ˆ và pháp luat ˙ ˙ ˙ ˙ _ ˆ Nhà Xuất bản Khoa hoc xã hoi ˆ Regulations and Laws in Vietnam (From Fifteenth to Eighteenth Century)] (Hà Noi: ˙ ˙ _ ); Khâm Đinh Đai Nam Hoˆ i Điển Sự Leˆ (Collected Codes of Great Nam) (Thuaˆ n Hóa ). ˙ ˙ ˙ _ _ Kan’ichi Asakawa, The Early Institutional Life of Japan; a Study in the Reform of AD (Tokyo: Shueisha, ), p. . For details and variations on this modernization, see Section C .(d) below. Ibid.
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Confucian Legal Tradition
. Tradition Regarding tradition, I adopt Macintyre’s definition that ‘(a) living tradition then is an [sic] historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition’. A legal tradition, therefore, can be defined as a historically extended, legally embodied argument. A legal tradition has three defining features. First, a legal tradition is an argument. A legal tradition is constituted by a set of concepts and principles justifying a good way of life and a good society. This set of concepts and principles can be legal, which means they are reasons directly justifying the nature of good law and the appropriate creation and function of a legal system. However, the substantive contents of concepts and principles underlying a legal tradition can be non-legal. Legal tradition can thus be constituted by a set of moral and political concepts and principles. Second, in a legal tradition the set of concepts and principles is legally embodied. Concepts and principles are presented and materialised in the structural and substantive elements of the positive system of law. The concepts and principles are embedded in the organisation, jurisdiction, and procedure of structural institutions of the legal system, such as legislative, executive, and judicial institutions. In addition, the concepts and principles are presented in ‘actual legal rules, norms, and behaviour patterns of people inside the system’. Third, a legal tradition involves the historical extension of the legally embodied argument. A legal tradition has its past, authoritatively presents in the present, and is transmitted from generation to generation. The following text will show how these elements of the legal tradition have materialised in the Confucian legal tradition. C. CONCEPTUALISING THE CONFUCIAN LEGAL TRADITION
Adapting Macintyre’s concept of tradition, I define the Confucian legal tradition as a historically extended, legally embodied Confucian argument. It contains the three following features. . Confucian Argument The Confucian legal tradition is based on a Confucian argument or a set of Confucian philosophical, normative concepts pertaining to the importance of virtuous characters in personal life, family, society, and government. In spite of differing interpretations, Confucianism generally prescribes that good people care for others in varying relationships, that they self-cultivate and observe rules of propriety, as well as take part in their self-government to educate the people with virtue and propriety – they also work for public welfare according to expected virtues and functions. (a) Virtue Ethics As a philosophy of virtue ethics, Confucianism synthesises the good qualities a person should have in order to live well in a secular world. Confucianism argues for a kind of ‘good man’ called Junzi (gentleman). The good characters of a Confucian gentleman include, among
Alasdair MacIntyre, After Virtue (London: Bloomsbury Publishing, ), p. . Friedman and Hayden, above n. . Martin Krygier, ‘Law as Tradition’ () Law Philosophy , . Bryan W. Van Norden, Introduction to Classical Chinese Philosophy (Indianapolis: Hackett Publishing Company, ), p. ; Linghao Wang and Lawrence B. Solum, ‘Confucian Virtue Jurisprudence’ in Amalia Amaya and Hock Lai Ho (eds), Law, Virtue and Justice (Oxford: Hart Publishing, ) p. .
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others, Ren (Humaneness), ‘Yi’ (Righteousness), ‘Li’ (Propriety), ‘Zhi’ (Wisdom), and ‘Xin’ (Trustworthiness). These virtues were originally articulated by Confucius and Mencius, and were later grouped together in a single principle called the Five Constant Virtues (Wǔcháng) by Dong Zhongshu in the Han dynasty. The most important, overarching quality of a Confucian gentleman is Ren – variously translated into English as ‘love’, ‘perfect virtue’, benevolence’, or ‘humaneness’. Ren is a central and foundational concept in Confucianism, which means that other concepts derive from Ren. Ren is variously defined throughout Confucian work, which has led to different scholarly explanations. Ren can be defined as the love of others or concern for others, that is, the distinctive characteristic of the socialised human, therein distinguishing human being from other beings. Ren is the foundation for the following four other virtues. The first, Yi, means to take the right actions to care for the others. The second, Li, is a code of moral, social, and institutional rules which one needs to observe so as to express one’s care for others in a proper manner. The third, Zhi, refers to the intellectual ability to care for others. Finally, Xin means keeping one’s promises: to care for others, one’s sayings must be consistent with one’s doings. Confucianism emphasises that to acquire the fundamental virtues and to subsequently become a gentleman, one must self-cultivate, which means to reflect on one’s conduct, and to learn from classical texts and moral exemplars. (b) Differential Humanism Ren presents a Confucian model of humanism: the view that one should have concern for others. Confucian humanism is differential rather than universal. Confucian humanism advocates not for universal love, but for ‘differentiated caring’ or ‘graded love’. Differentiated caring is ‘the doctrine that one has stronger moral obligations toward, and should have stronger emotional attachment to, those who are bounded to oneself community, friendship, and especially kinship’. An example is the norm of uprightness in the Confucian conception of filial piety, which requires the upright son to ‘remonstrate his father against his wrongdoing, and the best environment for the successful remonstration can be provided by non-disclosure of his father’s wrongdoing’. The Duke of Sheh informed Confucius, saying, ‘Among us here there are those who may be styled upright in their conduct. If their father has stolen a sheep, they will bear witness to the fact.’ Confucius said, ‘Among us, in our part of the country, those who are upright are different from this. The father conceals the misconduct of the son, and the son conceals the misconduct of the father. Uprightness is to be found in this.’ (‘The Analects’, XIII. )
Norden, above n. , at ; S¯ang¯ang Wu ˘ cháng, ‘Three Fundamental Bonds and Five Constant Virtues’ () Comprehensive Index Starts . In this study, I prefer to use the English term ‘humaneness’, which better captures the meaning of Ren. See Wei-Ming Tu, ‘The Creative Tension between Jen and Li’ () Philosophy East and West . Bui Ngoc Son, Confucian Constitutionalism in East Asia (London: Routledge, ), p. . Bui Ngoc, above n. , p. . Norden, above n. , p. . Ibid. Norden, above n. . Yong Huang, ‘Why an Upright Son Does Not Disclose His Father Stealing a Sheep: A Neglected Aspect of the Confucian Conception of Filial Piety?’ () Asian Studies . ‘The Analects of Confucius’, translated by James Legge, Analects of Confucius – Lun Yu XIII. . (), see http:// wengu.tartarie.com/wg/wengu.php?no=&l=Lunyu (accessed on October ).
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Confucian Legal Tradition
On the basis of the grand norm of Ren, Confucianism develops specific moral norms guiding how one should care for others in the different Five Relationships: ruler and subject, father and son, elder brother and younger brother, husband and wife, and friend and friend. In early Confucianism, the Five Relationships involve mutual love or caring. Mencius states: ‘between father and son, there should be affection; between sovereign and minister, righteousness; between husband and wife, attention to their separate functions; between old and young, a proper order; and between friends, fidelity’ (Mencius A.). The Confucian philosopher Dong Zhongshu (– BCE) of the Han dynasty, reduced the Five Relationships down to the ‘Three Bonds’, which was latter heavily emphasised by NeoConfucianism. While the Five Relationships are mutual, the Three Bonds underscore unilateral duty: the subject’s loyalty to their ruler; children’s filial piety to their parents; and a wife’s submission and chastity to her husband. The relationship within the Three Bonds framework is consequentially hierarchical: ruler, parents, and husbands are superior, while subjects, children, and wives are inferior. Neo-Confucianism believes that the maintaining of the hierarchical social and political structure in which one is expected to properly perform one’s duty, internal to one’s role, is necessary for social harmony and stability. As Tu Wei-ming explains, ‘(o)bviously, the Three Bonds, based on dominance/subservience, underscore the hierarchical relationship as an inviolable principle for maintaining social order. The primary concern is not the wellbeing of the individual persons involved in the dyadic relationships, but the particular pattern of social stability which results from the rigidly prescribed rules of conduct’. Family plays a central role in Confucian human relationships. Three of the Five Relationships are familial: father and son, elder brother and younger brother, and husband and wife. Two of the Three Bonds are familial: father and son, and husband and wife. Family plays an important role in Confucianism because family is the first place one learns to become good person. In addition, the three familial relationships are foundational to the two social–political relationships (friend and friend, ruler and subject). People who are good with their family will be good in society. An emperor who loves and is loved by his parents will know how to be kind to his subjects. Children who love and are loved by their parents will know how respect the emperor. One who loves and is loved by one’s brothers will know how to be kind to one’s friends. Family is, therefore, considered to be the root of Confucian relationships. Yu Tzu, a disciple of Conficious, said: They are few who, being filial and fraternal, are fond of offending against their superiors. There have been none, who, not liking to offend against their superiors, have been fond of stirring up confusion. The superior man bends his attention to what is radical. That being established, all practical courses naturally grow up. Filial piety and fraternal submission! – are they not the root of all benevolent actions?’ (‘The Analects’, :)
The Chinese Classics, Volume II: The Works of Mencius, trans. James Legge (Hong Kong: Hong Kong University Press, ), pp. –. MacCormack, above n. , at . MacCormack, above n. . Wei-Ming Tu, ‘Probing the ‘Three Bonds’ and the ‘Five Relationships’ in Confucian Humanism’ in Walter H. Slote and George A. DeVos (eds), Confucianism and the Family (New York: State University of New York Press, ), pp. –. Norden, above n. , p. . Norden, above n. . ‘The Analects of Confucius’, above n. .
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(c) The Rule of Virtue Confucianism advances the placement of virtuous people in government. Virtuous people should take part in government so that they can have a broader impact on the moral life of the population, as they can educate ordinary people through their own moral example. Confucianism also requires that virtuous people who are already in positions of authority must only further recruit virtuous people for their government. The gentlemen who run the government must act according to the expected virtues and functions implied by their positions. This is the central idea within the Confucian doctrine of Zheng Ming (the rectification of names). For example, rectified gentlemen of certain authority must perform their duties with reverence and trustworthiness, avoid excesses in expenditure, and love their fellow men (‘The Analects’, :). They must observe Li (propriety) because Li defines the expected virtues and functions internal to their positions. Confucius said: ‘If a prince is able to govern his kingdom with the complaisance proper to the rules of propriety, what difficulty will he have? If he cannot govern it with that complaisance, what has he to do with the rules of propriety? (‘The Analects’, :). Teleologically, gentlemen in government must work towards the welfare of the people. The people’s welfare is the telos, or purpose, of a Confucian government. This is captured by the Confucian doctrine of Minben (people as basis), which means that the government must work to ensure the people’s happiness. To work for the people’s welfare, gentlemen in authority must nourish the people, educate them, secure their trust, employ their labour only in the right seasons, tax less, punish lightly, etc. (‘The Analects’, :). Confucians argue that gentlemen in government should educate the people by virtue and through the rules of propriety, rather than punish them by law. Confucius states: If the people be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good. (‘The Analects’, II:)
This does not mean that Confucianism completely rejects the role of law. Rather, the Confucian argument is that virtue and rules of propriety should be central in governing, while law can be used as a supplementary instrument when virtue and rules of propriety fail to correct the people. Relatedly, to resolve disputes among the people, gentlemen in authority should encourage negotiation rather than litigation. Confucius states that ‘In hearing litigations, I am like any other body. What is necessary, however, is to cause the people to have no litigations’ (‘The Analects’, XI:). This argument on non-litigation (Wusong) stems from the Confucian concern for social harmony and moral self-cultivation rather than for seeking material interests.
Norden, above n. , p. . ‘The Analects of Confucius’, above n. . Ibid. Ibid. ‘The Analects of Confucius’, above n. . For further detail, see Norman P. Ho, ‘Legal Realism and Chinese Law: Are Confucian Legal Realists, Too?’ () Tsinghua China Law Review , –. ‘The Analects of Confucius’, above n. . Albert H. Y. Chen, ‘Mediation, Litigation, and Justice: Confucian Reflections in a Modern Liberal Society’ in Daniel A. Bell and Hahm Chaibong (eds), Confucianism for the Modern World (Cambridge: Cambridge University Press, ), pp. –.
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As a living tradition, Confucianism is embodied in social practices, government institutions, and law in premodern East Asia. People’s social practices were informed by Confucian moral norms. Major institutions of dynastic governments (such as the monarchy and ministerial institutions) were organised and functioned along the line of Confucian teachings. Dynamic legal codes legalised Confucian norms. Let us now turn to the legal aspect. . Legal Embodiment The second feature of the Confucian legal tradition is the legal embodiment of Confucian concepts and principles. Confucian concepts and principles are embodied in the structure and substance of Confucian legal systems. To illustrate, this section focuses on the embodiment of Confucian concepts and principles in the legal systems of imperial China. Confucian concepts and principles are embodied in legal structures which include the monarchy and government institutions. For example, the legal systems in premodern China embodied the Confucian argument for a moral king acting in accordance with the expected virtues and functions of an ideal king (Zheng Ming – the rectification of names) and working towards the welfare of the people (Minben), as we have seen. There are several distinctive institutions designed to hold the virtuous king accountable to Confucian concepts and principles, including: imperial lectures to teach the king, the censorate to remonstrate the king’s wrongdoings, and historic offices to record and pass critical judgements on the king’s conduct. In addition to the monarchy, the Confucian idea of ‘gentleman’ was also embodied in the dynastic institutions. The civic examination systems were designed to ensure that the government was staffed by gentlemen. Those taking civil exams to join the government were made to study Confucian texts. Consequently, the officials of the dynastic governments were Confucian scholar-officials. Given their Confucian background, it is understandable that rulers and officials ran the offices according to Confucian teachings. Noman Ho demonstrates that in the Tang dynasty, Confucian officials relied on Confucian texts to decide judicial cases. MacCormack writes in the context of Chinese traditional law that ‘Confucian rulers and officials had always expressed a reverence for education rather than law as the means by which the people should be guided’. A related Confucian norm embodied in the operation of the legal structure was non-litigation (Wusong). According to Albert Chen, in premodern China, Confucian magistrates generally agree that as far as civil disputes – what Qing law called ‘minor matters relating to family (household), marriage, and land’ (hu, hun, tiantu xishi) – are concerned, they should ideally be settled by mediation, preferably mediation conducted at the community level by neighbours, kin, elders, or gentry, or, if that fails, mediation conducted by the magistrate himself. Adjudication by the magistrate would only be a last resort when both kinds of mediation fail to persuade the parties to drop the litigation and arrive at a settlement.
Benjamin A. Elman, John B. Duncan and Herman Ooms, Rethinking Confucianism: Past and Present in China, Japan, Korea, and Vietnam (Los Angeles: University of California Press, ). See generally, Dingxin Zhao, The Confucian-Legalist State: A New Theory of Chinese History (Oxford: Oxford University Press, ). Bui Ngoc, above n. , ch. . Ho, above n. . MacCormack, above n. , p. . Chen, above n. , p. .
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In addition to structure, the Confucian concepts and principles were embodied in the substance of the legal systems in imperial China. For example, consider two excerpts (the ‘Ten Abominations’ and the ‘Eight Considerations’) from the Tang Code – the model for other penal codes in premodern China, Korea, Japan, and Vietnam. The Ten Abominations, or most serious offences, provided in Article of the Tang Code, was the substantive embodiment of the Neo-Confucian doctrine of the Three Bonds seen above. The Ten Abominations were plotting rebellion; plotting great sedition; plotting treason; contumacy; depravity; great irreverence; lack of filial piety; discord; unrighteousness; and incest. Four offences (plotting rebellion, sedition, treason, and great irreverence) refer to disloyalty to the king. The Code’s inclusion of these offences aims to protect not only the existing regime but also loyalty to the king specifically, as per one of the Three Bonds. Most of the other abominations (contumacy, lack of filial piety, discord, unrighteousness, and incest) seek to protect two family relationships of the Three Bonds. The Eight Considerations are an addendum which refer to the special legal privileges conferred to people accused of or having committed offences other than the Ten Abominations, because of their relationship, virtue, talent, social status, or achievement. The Eight Considerations, provided in Article of the Tang Code, include deliberations for relatives of the emperor, old retainers of the emperor, people with great virtuous conduct, people with great talent, people with great achievement, people in high position, people who are diligent in their work, and guests of the state (the descendants of previous dynasties). The Eight Considerations are the embodiment of the Confucian emphasis on differentiated caring for gentlemen (virtuous and talented people). Albert Chen provides many other examples of Confucian manifestations in Chinese penal codes, such as the heavier punishment of perceived inferiors compared with their superiors for the same crime (once again, differentiated caring); the husband’s right to divorce his wife, not vice versa (one of Three Bonds); the exception or reduction of punishment for the young, the old, the sick, and the mentally handicapped (humaneness); the emperors’ frequent granting of general and special amnesties (humaneness); and personal confession (self-cultivation). Confucian doctrine is also embodied in administrative legal codes. To illustrate, Noman Ho comments that: ‘the importance of ritual and ritual propriety (Li) is also apparent in Tang administrative law; Tang administrative law as seen through the TLD [Tang Liu Dian] was not only built on notions of ritual morality, but also helped to promote ritual morality as well’. In other words, Tang administrative law is the legal embodiment of the Confucian concept of Li. . Historical Extension The third feature of the Confucian legal tradition is the historical extension of the legally embodied Confucian concepts and principles. The Confucian legal tradition has existed for
The Tang Code, Volume I, General Principles, trans. with an Introduction by Wallace Johnson (Princeton, NJ: Princeton University Press, ), pp. –. Ibid., pp. –. Albert H.Y. Chen, The Changing Legal Orders in Hong Kong and Mainland China: Essays on ‘One Country, Two Systems’ (Hong Kong: City University of Hong Kong Press, ), p. . The Tang Code, above n. , pp. –. Albert H.Y. Chen, ‘Confucian Legal Culture and Its Modern Fate’ in Raymond Wacks (ed.), The New Legal Order in Hong Kong (Hong Kong: Hong Kong University Press, ) pp. –. Ho, above n. , p. .
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thousands of years. The historical extension of the Confucian legal tradition can be characterised by four patterns: formation, consolidation, transnationalisation, and modernisation. (a) Formation The formation of the Confucian legal tradition is defined by the mature embodiment of the Han–Confucian argument within Tang law. This complete embodiment represents the historical extension of the early embodiment of Han Confucianism in Han law. The process coined by T’ung-tsu Chü as ‘Confucianisation of the law’ began in the Han dynasty. Paul Goldin defines ‘the Confucianisation of the law’ as a ‘process by which the legal system, comprising not only statutes and ordinances, but also principles of legal interpretation and legal theorizing, came to reflect the view that the law must uphold proper interactions among people, in accordance with their respective relationships, in order to bring about an orderly society’. The Confucianisation of the law actually means the implementation of Han Confucianism, particularly as formulated by Dong Zhongshu, in the Chinese imperial legal systems. This process culminated in the Tang dynasty. Although most of the Tang emperors supported Buddhism, Confucianism continued to dominate the legal system. Structurally, a civic examination was institutionalised. Substantively, the Tang Code presents ‘the final product of the Confucianisation of the law’. In particular, the Han–Confucian doctrine of the Three Bonds was embodied in the Tang Code’s provisions on the Ten Abominations and Eight Considerations, as mentioned above. The full embodiment of the Han–Confucian argument in Tang law marks the formation of the Confucian legal tradition. (b) Consolidation The consolidation of the Confucian legal tradition refers to the continued extension of the legally embodied Neo-Confucian argument in subsequent dynasties in China. In particular, the Tang Code served as a model for the Ming Code, the Song Code, and the Qing Code in imperial China. China’s traditional legal order ‘was a resilient and continuous one, owing in part to the continuity in the statutory codes’. The continuity of statutory codes is not only formal but also substantive. MacCormack comments that ‘(t)he penal codes of all dynasties from the Tang to the Ching were dominantly Confucian inspiration’. The transmission of the legal codes throughout Chinese dynasties sustains the Confucian legal tradition. The later legal codes embodied concepts and principles of Neo-Confucianism which continued and further stressed some concepts and principles in Han Confucianism (such as Three Bonds). The legal structure of the subsequent dynasties had a stronger embodiment of Confucian doctrine. For example, civic examinations were used on a small scale in the Tang dynasty, but became the dominant channel for selecting Confucian officials for the bureaucracy
On Han Law, see Anthony François Paulus Hulsewé Remnants of Han Law (Leiden: Brill, ). T’ung-tsu Chü, Law and Society in Traditional China (Paris: Mouton, ). Paul R. Goldin, ‘Han Law and the Regulation of Interpersonal Relations: “The Confucianisation of the Law” Revisited’ () Asia Major . Zeng Chi, ‘“Confucianisation of Law” Revisited’ () Asian Philosophy . Xiaoqun Xu, Heaven Has Eyes: A History of Chinese Law (New York: Oxford University Press, ), p. . Ibid. MacCormack, above n. , p. . John D. Langlois, ‘Living Law in Sung and Yüan Jurisprudence,’ () Harvard Journal of Asiatic Studies . MacCormack, above n. , p.
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in the Sung dynasty. The embodiment of Confucian concepts and principles in the substantive legal rules was also stronger. For example, regarding the expression of Neo-Confucianism’s emphasis on proper behaviour within the family – compared to the Tang law, the Ming law and Qing law had more severe punishments for sextual intercourse between a man and his brother’s wife. (c) Transnationalisation The transnationalisation of the Confucian legal tradition is characterised by the extension of legally embodied Neo-Confucian doctrines beyond national borders. As with the Western civil law tradition, legal transplants are the major mechanism for the transnational propagation of the Confucian legal tradition. Marie Seong-Hak Kim compared the Tang Code with the Ancient Roman Justinian Code, stating that ‘(j)ust as the latter served as “written reason” (ratio scripta) but was implemented according to specific historical situations along with territorial laws, the former served as the model for future codes in China, Korea, Japan, and Vietnam, without stifling the development of local laws’. In Korea, the Kyǒngguk Taejǒn explicitly declared the Great Ming Code as the basis of Choso˘n criminal law. Tang codes served as models for the Taiho ( AD) and Yoro () codes in Japan. In eighteenth-century Japan, many Tokugawa codes were enacted, partially drawing on the Ming Code. In Vietnam, the Le Code was modelled after the Tang Code and Ming Code, while the Gia Long Code heavily drew on the Qing Code. The diffusion of Chinese codes in other East Asian countries was facilitated by the study of Chinese law and the dissemination of Chinese legal materials in these countries. In addition, the diffusion of Neo-Confucianism in premodern East Asia contributes to Confucian legal transplants and to the transnational extension of the Confucian legal tradition generally. The study of Neo-Confucianism, the dissemination of Confucian texts, and ultimately the endorsement of Confucianism as an official ideology in Japan, Korea, and Vietnam facilitated the incorporation of Confucian values into the legal systems of these countries. Furthermore, Chinese linguistic characters (Hanzi) were diffused and localised in Japan as Kanji, Korea as Hanja, and Vietnam as Chữ Hán. This linguistic spread facilitated the learning of Confucianism, Chinese law, and ultimately Confucian legal transplants in East Asia.
Zhao, above n. , p. . MacCormack, above n. , p. . Kim, above n. , pp. –. Kim, above n. , pp. –. Dan Fenno Henderson, ‘Chinese Legal Studies in Early th-Century Japan: Scholars and Sources’ () The Journal of Asian Studies . D. F. Henderson, ‘Chinese Influences on Eighteenth-Century Tokugawa Codes’, in Jerome Alan Cohen, Fu-mei Chang Chen and R. Randle Edwards (eds), Essays on China’s Legal Tradition (Princeton, NJ: Princeton University Press, ), pp. –. See generally, Insun Yu, Law and Society in Seventeenth and Eighteenth Century Vietnam (Seoul: Asiatic Research Centre, Korea University, ); Nguyn Ngc Huy, ‘The Ming Code in Vietnamese Legal History: Its Influence on the Vietnamese Codes and Other Legal Documents’ () Ming Studies . Alexander Woodside, Vietnam and the Chinese Model A Comparative Study of Nguyen and Ch’ing Civil Government in the First Half of the Nineteenth Century (Cambridge, MA: Harvard University Press, ), p. . Bourgon and Roux, above n. ; Henderson, above n. ; Frédéric Constant, ‘Circulation of Law and Jurisprudence in Korea and China: Homicide and the Notion of Requital for Life’ in Marie Seong-Hak Kim (ed.), The Spirit of Korean Law (Leiden: Brill, ), pp. –. Peter Francis Kornicki, Languages, Scripts, and Chinese Texts in East Asia (Oxford: Oxford University Press, ), p. .
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Altogether in consideration, shared Confucian values and Chinese literacy provided a cultural and linguistic background for Confucian legal transplants across East Asia. As a consequence of Confucian legal transplants, the legal embodiment of Confucian argument reached beyond national boundaries. As Chinese law embodied Confucian argument, its transplantation led to the transnational embodiment of Confucian concepts and principles in the legal systems of premodern Japan, Korea, and Vietnam. To illustrate, consider three examples below. Korea’s Choso˘ n law established the hierarchical relationship between husband and wife. Wives ‘lived in constant fear of divorce and desertion under a rule that defined seven vices considered to be valid reasons for divorce by the husband – but not by the wife. Those vices were disobedience to the husband’s parents, failing to bear a son, adultery, jealousy, contracting a harmful disease, malicious gossip, and theft’. The institution of ‘seven grounds for divorce’ (Qichu) was borrowed from Chinese law. This institution embodied the Neo-Confucian doctrine of the Three Bonds, which required a wife’s one-sided submission to her husband’s authority. In seventh- and eighth-century Japan, administrative law provided for the creation of Confucian academies to train government officials. To prepare for government office, one would study the Chinese Confucian classics. In addition, the administrative criteria for bureaucratic advancement reflected Confucian characters. Therein, ‘(a) review of performance reports and conduct (would) be made for every candidate for selection. On the day when decisions (were) made, first (was) consider(ed) virtuous conduct. If their virtue (was) equal, those who (were) more able (were chosen). If their ability (was) the same, those who (were) more useful (were chosen)’. Thus, the Confucian emphasis on the moral characters of gentlemen was embodied in the administrative criteria for bureaucratic advancement. The third example is from Vietnam. The Le Dynasty’s Ho`ˆ ng Đức Thieˆ n Chính Thư `ˆ Đức’s Book on Good Governance) provided that ‘(t)o be a˙ man, to teach (–?) (Hong and bring up virtuous fathers and filial children are the foremost tasks. Parents must provide their children with rice and clothes . . . Children must respect and support their parents . . .’ This provision embodied the Confucian norm of filial piety. Transnationalisation does not mean that Confucian argument was embodied across East Asian legal systems in the same way. Rather, there were considerable variations in the legal implementation of Confucianism across East Asia. Interaction between Confucian and
Chaihark Hahm, ‘Ritual and Constitutionalism: Disputing the Ruler’s Legitimacy in a Confucian Polity’ () American Journal of Comparative Law ; Chongko Choi, ‘Confucianism and Law in Korea’ () Seoul Law Journal ; Charles Holcombe, ‘Ritsuryō Confucianism’ () Harvard Journal of Asiatic Studies , ; VT Ta, ‘Confucian Influences in the Traditional Legal System of Vietnam, with Some Comparisons with China: Rule by_ Law and Rule of Law’ () Vietnamese Journal of Social Science . For a sceptical view, see Anders Karlsson, ‘Law and the Body in Joseon Korea: Statecraft and the Negotiation of Ideology’ () Review of Korean Studies (stating that not all actions of the Joseon can be understood from the viewpoint of Confucian ideology). Insook Han Park and Lee-Jay Cho, ‘Confucianism and the Korean Family’ () Journal of Comparative Family Studies –. Chen, above n. , p. . Holcombe, above n. , p. . Ibid. Vieˆ n Nghiên Cứu Hán Nôm, Điển Che´ˆ Và Pháp Luaˆ t Vieˆ t Nam Thời Trung Đai, Taˆ p I [Institutions and Laws in ˙ ˙ ˙ ˙ ˆ Nhà xuất bản Khoa hoc_ xã hoi ˆ ) Vietnam in the Middle Period] Volume I, (Hà Noi: ˙ ˙ _ see Henderson, For the Korean variation, see Bourgon and Roux, above n. ; For Japanese variation, above n. . For the Vietnamese variation, see Ta VT, ‘The Status of Women in Traditional Vietnam: A Comparison of the Code of _ Codes’ () Journal of Asian History . the Lê Dynasty with the Chinese
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indigenous values shaped the variations of Confucian embodiment in East Asian legal systems. For example, the Le Code, despite being influenced by the Tang Code and Ming Code, had a stronger protection of women’s rights, including the right to divorce. The indigenous matrilineal culture of Vietnam localised the legal embodiment of the Neo-Confucian view of the role of women within the Three Bonds framework. (d) Modernisation The modernisation of the Confucian legal tradition features the continued transnational extension of legally embodied classical Confucian principles in modern East Asia. Since the twentieth century, East Asian countries have modernised their legal systems. Modern East Asian societies are shaped by different systems of thought, such as liberalism, communitarianism, and Marxism–Leninism. They have operated various modern legal systems: common law (Hong Kong and Singapore), civil law (Japan, South Korea, and Taiwan), and socialist law (mainland China, North Korea, and Vietnam). Legal modernisation resulted in the collapse of the Confucian legal systems in East Asia, and Confucianism is no longer the dominant ideational source for modern East Asia. Dynastic institutions and law codes as the remaining reified legal embodiments of Confucian argument have since been abolished. While Confucian legal systems have been abolished, the Confucian legal tradition is nevertheless still alive. As Confucianism is no longer a dominant ideology, Confucian argument is not predominantly embodied in modern legal systems in East Asia. However, Confucian concepts and principles are still sporadically and partially embodied in modern legal systems in contemporary East Asia. Consider first the structural legal embodiment of Confucianism in modern law in East Asia. Legal systems in modern East Asia are virtually based on modern Western legal structures. However, in some cases, the Confucian concepts of moral leaders still inform the way people inside the modern legal structure are viewed. Zhang argues that in China, the Confucian concept of a humane government working towards the welfare of the people ‘maintains its influence in the country. For example, it is a commonly held belief in China that a good government is the source of a better life for the people, and the traditional concept of a “parental officer”, whose job is to make decisions for the people, remains intact in the minds of the public and the government’. In the same vein, Chongko Choi comments that the preamble of North Korea’s Constitution has ‘some striking “Confucian” expressions’. It states that: (r)egarding ‘The people are my Heaven’ as their maxim, the great leader Comrade Kim Il Sung and the great leader Comrade Kim Jong Il always mixed with the people, devoted their whole
`ˆ Đức’ [‘Positive Values of Confucianism in MT Nguye˜ˆ n, ‘Những giá tri tích cực của Nho giáo trong Boˆ luaˆ t Hong ˙ ˙ _ the Hong Duc Code’] () Tap chí Khoa hoc . _ _ See generally, Kim Sungmoon (ed.), Confucianism, Law, and Democracy in Contemporary Korea (London: Rowman & Littlefield Publishers, ); Chaihark Hahm, ‘Law, Culture, and the Politics of Confucianism’ () Columbia Journal of Asian Law ; Pham Duy Nghia, ‘Confucianism and the Conception of the Law in Vietnam’ in John Gillespie and Pip Nicholson (eds), Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Reform (Canberra: Asia Pacific Press at the Australian National University Press, ), pp. –. Mo Zhang, ‘The Socialist Legal System with Chinese Characteristics: China’s Discourse for the Rule of Law and a Bitter Experience’ () Temple International & Comparative Law Journal . Chongko Choi, ‘South Korean Law and North Korean Law: Comparison and Reunification’ () Seoul Law Journal .
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lives to them and turned the whole of society into a large family which is united in one mind by taking care of the people and leading them through their noble benevolent politics.
The preamble describes North Korean leaders as benevolent leaders working for the people, which embodies the Confucian concepts of Ren and Minben. In other cases, the Confucian argument is still embodied in the functioning of modern structural institutions. In a article, Tom Ginsburg argued that the Constitutional Courts in South Korea and Taiwan functioned in a Confucian style as remonstrant institutions. Recently, Kim Sungmoon explored the Korean Constitutional Court’s decision to uphold President Park Geun-hye’s impeachment, arguing that the Court had substantively promoted Confucian values. He wrote: The values that the Court aimed to promote were not limited to liberal democratic values. In fact, it upheld with equal enthusiasm key Confucian values such as benevolence (ren), capacity of empathy (ce yin zhi xin 惻隱之心), sincerity or faithfulness (cheng 誠), and trustworthiness (xin 信), although it never mentioned ‘Confucianism’ in so doing or made it its formal task to explicitly promote Confucian values. In a sense, it is by appealing to Confucian values that the Court was able to protect Korea’s democratic constitution that is liberal in its formal structure.
The substantive legal embodiment of Confucian concepts and principles in modern Law in East Asia is also evident. Confucian concepts and principles are still embodied in criminal law in modern East Asia. Woo-Jung Jon provided a useful comparison of the influence of Confucianism on modern criminal law in Japan and South Korea. He found that Japanese criminal law included four provisions influenced by Confucian filial piety in the sense that they imposed aggravated punishment on crimes against lineal ascendants. These provisions included Article (parricide); Article () (injury causing death of a lineal ascendant); Article () (abandonment of a lineal ascendant); and Article () (false arrest or imprisonment of a lineal ascendant). These provisions embodied Confucian filial piety, but they were abolished by the amendments to criminal law in . According to Jon’s findings, Korean criminal law includes provisions influenced by Confucian filial piety in the sense that they impose more severe punishment on crimes committed against lineal ascendants. These provisions include: Article (parricide); Article () (injury of a lineal ascendant); Article () (severe injury of a lineal ascendant); Article () (injury causing death of a lineal ascendant); Article () (assault of a lineal ascendant); Article () (abandonment of a lineal ascendant); Article () (severe abandonment of a lineal ascendant); Article () (cruelty to a lineal ascendant); Article () (abandonment causing death or injury of a lineal ascendant); Article () (unlawful capture of a lineal ascendant, confinement of a lineal ascendant); Article () (severe unlawful capture of a lineal ascendant, severe confinement of a lineal ascendant); Article () (unlawful capture or
Socialist Constitution of The Democratic People’s Republic of Korea, preamble (amendment through ). Tom Ginsburg, ‘Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan’ () Law & Social Inquiry . Sungmoon Kim, ‘From Remonstrance to Impeachment: A Curious Case of “Confucian Constitutionalism” in South Korea’ () Law & Social Inquiry . Ibid., . Woo-Jung Jon, ‘The Influence of Confucianism on the Criminal Laws of Korea and Japan’ () Korean University Law Review . Ibid., at –.
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confinement causing death or injury of a lineal ascendant); and Article () (intimidation of a lineal ascendant). Jon also explores the influence of Confucian filial piety in the provisions of criminal procedure laws in Japan and South Korea on the prohibitions of complaints and accusations by lineal descendants against lineal ascendants. The prohibition was abolished in Japan in , while such prohibition survives in South Korea despite a constitutional challenge. The Constitutional Court drew on, among other things, the Confucian tradition to uphold the constitutionality of Article of the Korean criminal procedure law prohibiting complaints and accusations by lineal descendants against lineal ascendants. In a decision in , in a case involving an alleged victim suing his mother, the Constitutional Court of South Korea stated: With regard to the family matter, traditional morality plays a more important role than the law does. Such traditional morality is forced to be affected by the nation’s distinct culture and tradition, which have been chosen and accumulated by the people of the nation and society, as well as universal values and ethics. In this way, the Confucian tradition continues to remain at the heart of our society since our country adopted and made it a part of our tradition. In this respect, Article of the Korean Criminal Procedure Law prohibiting a person as a victim from filing, with the police or the prosecutor, a complaint requesting initiation of prosecution against his/her lineal ascendant appears to be reasonable. It is because the prohibition is for the purpose of deterring such unethical acts and maintaining our tradition the filial duty of children to take care of their parents. Thus, Article of the Korean Criminal Procedure Law does not violate the rule of equality set by Article of the Korean Constitution.
Apart from criminal law, Confucianism is also embodied in modern family law in East Asia. The Confucian virtue of filial piety there becomes a legal duty. Some East Asian countries enacted laws requiring children to support their parents, including Singapore’s Maintenance of Parents Act of , Vietnam’s Law on the Elderly People of , and China’s Law on Protection of the Rights and Interests of Elderly People of . Given the Confucian emphasis on family, it is understandable that Confucian values are embodied in family law and family-related issues in criminal law in modern East Asia. However, Confucian values are also embodied in a wide range of other areas of modern law in East Asia, such as contract law, copyright law, international arbitration, corporate law, competition law, and anti-monopoly law.
Ibid., at –. Ibid., at . Edward Wong, ‘A Chinese Virtue Is Now the Law’ (The New York Times, July ), see www.nytimes.com// //world/asia/filial-piety-once-a-virtue-in-china-is-now-the-law.html?_r= (accessed on October ); Kiê`u Anh Vũ, ‘Chữ ‘Hie´ˆ u’ Trong Coˆ̉ Luaˆ t Và Luaˆ t Thực Đinh’ [‘Filial Piety’ in Ancient and Contemporary Law’] ˙ ˙ _ (Kiê`u Anh Vũ, November ), see https://kieuanhvu.wordpress.com////chu-hieu-trong-co-luat-va-luatthuc-dinh/ (accessed on October ). Wing-Cheong Chan, ‘The Duty to Support an Aged Parent in Singapore’ () Pacific Rim Law & Policy Journal . Mindy Chen-Wishart, ‘Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding?’ () International and Comparative Law Quarterly . William P. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilisation (Stanford, CA: Stanford University Press, ). Shahla F. Ali, ‘The Morality of Conciliation: An Empirical Examination of Arbitrator “Role Moralities” in East Asia and the West’ () Harvard Negotiation Law Review . Charles K. N. Lam and S. H. Goo, ‘The Intrinsic Value of Confucianism and Its Relevance to the Legal System in Hong Kong and China’ () The Chinese Journal of Comparative Law . Jingyuan Ma and Mel Marquis, Confucian Culture and Competition Law in East Asia (Cambridge: Cambridge University Press, ). Thomas J. Horton, ‘Confucianism and Antitrust: China’s Emerging Evolutionary Approach to Anti-Monopoly Law’ () The International Lawyer .
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The continued embodiment of Confucian values in modern law in East Asia is due to normative, social, and political factors. The normative factor is that classical Confucianism includes normative arguments compatible with modern law. Although throughout history the Confucian legal tradition involved the embodiment of Confucian concepts and principles in dynastic law, Confucian argument is not necessarily holistically embodied by dynastic law. Some hierarchical concepts of Neo-Confucianism (particularly the doctrine of the Three Bonds) are not embodied in modern law as they clearly contradict the modern principle of equality under the law. However, some classical Confucian concepts and principles (such as leaders as gentlemen, humaneness, and Minben government working for the public welfare) have a normative transcending appeal, which explains their continued presence in modern law in East Asia. In addition to normative attraction, since Confucian values have been socially embedded in East Asia for thousands of years, it is difficult to eradicate them after a few decades. Deeply rooted in societies, Confucian values have instead come to be re-incarnated in modern law in East Asia. Finally, the Chinese government’s top-down efforts to promote Confucianism in China, and beyond, facilitates the survival of Confucianism and its embodiment in East Asian modern law. D. CONCLUSION
This chapter defined the concept of the Confucian legal tradition and identified its common features: the shared Confucian argument; the embodiment of Confucian concepts and principles in East Asian law; and the historical extension of the Confucian legal tradition from formation, consolidation, and transnationalisation to modernisation. It concludes with some thoughts on the meaning and limitations of the concept of a Confucian legal tradition. The concept of a Confucian legal tradition is a model to explore the Confucian foundations of legal systems in East Asia. This concept does not exclude the embodiment of other systems of thought and belief in East Asian law. Qin Law in China, for example, dominantly embodied Legalism, a Chinese school of philosophy, arguably founded by Shen Buhai, Shang Yang, and Han Fei, which argued for the strict use of penal law as the tool for governance. The legalist spirit was embodied, in some ways, in Chinese imperial legal systems in which the Confucian spirit was nonetheless dominant. In addition, the concept of a Confucian legal tradition does not exclude the embodiment of Buddhism in East Asian law. For example, although Le Law in Vietnam was predominantly influenced by Neo-Confucianism, it also reflected Buddhist values. The concept of a Confucian legal tradition explores the legal embodiment of Confucianism in East Asia. Some legal systems in premodern East Asia amost fully embodied Confucianism. In such legal systems, the polity was committed to Confucianism as the main normative system of thought justifying that system; core structural institutions of the legal systems were based on Confucian concepts and principles; the people within legal structure were mainly Confucian officials; and its major legal codes substantively legalised key Confucian concepts and principles.
Daniel A. Bell, China’s New Confucianism: Politics and Everyday Life in a Changing Society (Princeton, NJ: Princeton University Press, ); Anja Lahtinen, ‘China’s Soft Power: Challenges of Confucianism and Confucius Institutes’ () Journal of Comparative Asian Development . Wejen Chang, In Search of the Way: Legal Philosophy of the Classic Chinese Thinkers (Edinburgh: Edinburgh University Press, ), p. . MacCormack, above n. , pp. –. Ta, above n. , p. .
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Legal systems that dominantly embodied Confucianism included Han Law, Tang Law, Sung Law, Yuan Law, Ming Law, and Qing Law in China; Choso˘n Law in Korea; Le Law and Nguyen Law in Vietnam; and Tokugawa Law in Japan. Other legal systems in premodern East Asia partially embodied Confucianism. These included, for example, Ly Law and Tran Law in Vietnam. Modern legal systems in contemporary East Asia also partially embodied Confucian values. The Confucian legal tradition is not an umbrella to cover all East Asian legal systems. There are many and diverse legal systems in premodern and modern East Asia which cannot be grouped together into a single category. Even legal systems within a single Asian country belong to different legal traditions in different periods of time. Legal revolutions animated by radical socio-political change (such as dynastic change, social revolution, colonialisation, and modernisation) have resulted in the transformation of legal systems in East Asia, leading to plural Asian countries’ experiences of different legal traditions. Some premodern legal systems in East Asia did not belong to the Confucian legal tradition. These included legal systems that were underpinned by jurisprudential foundations other than Confucianism (such as Qin Law based on Legalism). The current legal systems in modern East Asia do not belong to the Confucian legal tradition, although they partially embody Confucian argument. Rather, they belong to modern legal traditions: common law (Hong Kong), civil law (Japan, Korea, Macau, and Taiwan), and socialist law (mainland China, Vietnam, and North Korea). The Confucian legal tradition is a model to conceptualise formation, change, and continuity in legal development in East Asia throughout the past millennium. The concept of a Confucian legal tradition does not focus on the national legal system of an individual East Asian country. Rather, this concept conceptualises the transnational legal sphere in premodern East Asia. It suggests that, for thousands of years, legal systems in East Asia have shared common historical backgrounds, common concepts, common structural institutions, and common sources of substantive rules. The real interaction of these legal systems through legal transplants accompanied by cultural and linguistic diffusion enabled the historically extended existence of a transnational legal sphere in premodern East Asia. This chapter explored the co-existence of elements of the Confucian legal tradition and elements of modern legal traditions (common law, civil law, and socialist law) in contemporary East Asia. While elements of modern legal traditions are dominant in current East Asian legal systems, the intellectual elements of the Confucian legal tradition are still partially embodied in these legal systems. A complete understanding of modern law in East Asia requires taking into account the continued influence of the Confucian legal tradition.
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Former Soviet States of Eastern Europe, Caucasus and Central Asia Andrey Shirvindt*
The laws of the countries that emerged on the territory of the former Soviet Union show profound similarities due to a number of shared historical experiences. They have all been parts of the Russian Empire and the Soviet Union and have all gone, simultaneously albeit not uniformly, down the thorny path of post-socialist transition. The resulting common legacies concern deep-lying features of legal method as well as central structures of substantive law. The codification movement, institutional design, way of functioning and the role of the judiciary, and the extent of the professionalisation of law and the flaws of legal academia as well as the current state of property law and the law of legal persons provide prime examples. Disregarding these continuities results in distorted images based, in particular, on overemphasised formal similarities to the civil law family. Therefore, joint consideration of the formerly Soviet, but also formerly tsarist and formerly post-Soviet countries, remains an indispensable tool of legal comparison.
A. INTRODUCTION
The title of this chapter identifies both its geographical scope, that is to say, the national laws under consideration, and the viewpoint from which these laws are observed. Moreover, the label of ‘former Soviet states’, gives rise to an image of a certain epoch – marked by a tendency across these countries to try and depart from their Soviet past and start a new page of their national legal histories. Specifically, this chapter deals with the fifteen sovereign countries that emerged on the territories of the former Soviet republics upon the dissolution of the Soviet Union, officially the Union of Soviet Socialist Republics (USSR), in : Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan. When speaking of ‘former Soviet states’ the chapter sticks to common usage, given the lack of a better and a more neutral * Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Hamburg. All websites cited in this chapter were last accessed on February . Cf., for example recently Lucia Leontiev and Punsara Amarasinghe (eds), State-Building, Rule of Law, Good Governance and Human Rights in Post-Soviet Space: Thirty Years Looking Back (Abingdon: Routledge, );
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term that would embrace the countries of the region. In particular, the chosen language is not meant to imply any statements as to the relation of the existing states to the Soviet Union and Soviet republics from the perspective of public international law. Furthermore, addressing these fifteen states and fifteen legal systems as ‘formerly Soviet’ the chapter does not assume that this description captures their essence, but rather looks at them from a certain angle, asking what features they are likely to share due to their common past. Laws of these states may be classified into different groups depending on the purposes of comparison. Thus, Belarus, Russia and Ukraine as the least disputable parts of Eastern Europe are frequently included in regionally and historically oriented Eastern, or Central and Eastern European legal studies. Such projects often also encompass Estonia, Latvia, Lithuania and Moldova as well as an array of other European countries. This is different from efforts to identify a historical ‘Slavic, or Slavonic law’ allegedly common to all Slavs inhabiting Central and Eastern Europe, as well as attempts to carve out a specific ‘Slavic legal tradition’ or ‘Slavic legal family’. Popular mainly in the nineteenth and first half of the twentieth century and largely abandoned today, such work typically examined Belarusian, Russian and Ukrainian laws alongside those of Bulgaria, Czech Republic, Croatia, Poland, Slovakia, etc. Because of their socialist past, former Soviet states are often compared with other post-socialist (e.g., Czech Republic, Hungary, Poland, Serbia, Mongolia), or socialist countries (e.g., China, Cuba, Vietnam). Estonia, Latvia and Lithuania as Member States of the European Union are in many instances considered together with other European legal systems. Among further regional foci are Central Asia (comprising Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan) and Caucasus, with Armenia, Azerbaijan and Georgia. Due to its major developing economy, Russia can be compared with Brazil, India, China, and sometimes South Africa, together dubbed as BRIC(S) countries. Given that after the dissolution of the Soviet Union and the downfall of socialism former Soviet republics embarked on a process of comprehensive social, political and economic transformation, sweeping law reforms being its key element, they have also been examined together with other states experiencing a transition from one type of legal system to another (in Central and Eastern Europe, Asia, Africa and South America). A meaningful analysis of these, and only these, fifteen legal systems as a specific group of laws belonging under one heading places the main emphasis on their common Soviet past, its traces
William Partlett, ‘Post-Soviet Constitution Making’ in Hanna Lerner and David Landau (eds), Comparative Constitution Making (Cheltenham, UK; Northampton, MA, USA: Edward Elgar Publishing, ), pp. –; Jacek Zale´sny (ed.), Constitutional Courts in Post-Soviet States between the Model of a State of Law and Its Local Application (Frankfurt am Main: Peter Lang, ). On the various dimensions of the term ‘post-Soviet’, its continued validity and the lack of generally acknowledged alternative see, for instance: Maike Lehmann, Von der Hartnäckigkeit eines Attributs: Das (Post-)Sowjetische als politische und identitätsrelevante Ressource () Aus Politik und Zeitgeschichte . For discussion see, for example, Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR (Leiden, Brill Nijhoff, nd ed., ); Ineta Ziemele, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (Leiden: Martinus Nijhoff, ). For an overview of ‘Slavic legal history’ as a scholarly discipline, cf. Tomáš Gábriš and Róbert Jáger, ‘Back to Slavic Legal History? On the Use of Historical Linguistics in the History of Slavic Law’ () Frühmittelalterliche Studien . On the use of the category ‘Slavonic law’ by comparative lawyers (A. Esmein, J. H. Wigmore and A. F. Schnitzer among them) in their overarching classifications of the world’s legal systems, see William E. Butler, Russian Law and Legal Institutions (London: Wildy, Simmonds & Hill Publishing, nd ed., ), pp. –. For a comparative study taking this perspective, cf. for example, Rafael Mrowczynski, ‘Post-Socialist Legal Professions: Jurisdictional Volatility, Changing Regulatory Logics and the Return of Guilds’ in Richard L. Abel, Hilary Sommerlad, Ole Hammerslev and Ulrike Schultz (eds), Lawyers in st-Century Societies, Vol. : Comparisons and Theories (Oxford: Hart Publishing, ), pp. –.
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in their present, as well as their ways of, and their progress in, overcoming it. Regardless of where one stands on the ambitious classificatory endeavours of the twentieth century, which sought to assign the plethora of existing legal systems to just a few major families, traditions, cultures and suchlike, this scholarly debate remains instructive insofar as it highlights the undeniably peculiar character of the laws under consideration and attests to the need to pay careful attention to their specific features. For a long time, appropriate allocation of the Soviet Union’s law was one of the universally acknowledged challenges for legal cartography. Although Soviet law (as well as the laws of many other countries of the Communist Bloc) carried certain distinctive traits of the civil law family, the rise of state socialism and its expansion throughout the world led, according to the prevailing view, to the emergence of a new type of legal systems classified as ‘socialist’. After the collapse of the socialist world at the turn of the s, which was accompanied by a widespread belief that the former socialist countries had automatically joined the Western world of liberal democracies and market economies (or at least would inevitably do so in the nearest future), some scholars gave into the temptation to abandon this taxonomic unit without any replacement – as if the ‘new’ members of the civil law family did not deserve any special treatment. A famous example is the last edition of the legendary Introduction to Comparative Law by Konrad Zweigert and Hein Kötz which, published in its original German in , dropped the chapter of the previous edition on socialist legal systems altogether. The reasons for this decision given by Kötz in the Preface reflect an attitude popular at that time: ‘The “socialist legal family” is dead and buried, and although it will take a long time to erase the traces of more than forty years of total subjection to political ideology, it seemed right to discard the chapters on socialist law.’ This approach echoes the then progressivist view, often labelled with the title of Francis Fukuyama’s book of , The End of History and the Last Man. According to this view, the collapse of the Soviet Bloc sealed the final triumph of liberal democracy, with the market economy as the only viable societal model. Former socialist countries were seen as destined to arrive at this point sooner or later. Therefore, the final juncture of the tremendous transformation processes that unfolded in these countries was believed to be predetermined from the outset. It was against this background that scholars started to speak of, and to measure, the success and failure of transition according to the extent to which the supposedly non-optional ideal of liberal democracy with a market economy had been achieved in any given country. Another popular assumption was that the transition of formerly socialist countries to the new societal model could and should be fostered, or assisted, through the transfer of Western regulations and institutions. Both donors and recipients shared this view and it was put into practice with the help of numerous international cooperation programmes and expert bodies. Common law models backed by the economic and political power of the USA came into competition with solutions stemming from the civilian tradition, which were more connatural to
Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (Oxford: Clarendon Press, rd ed., ), p. v. Cf., for example, a recent volume with a telling title: Friedrich-Christian Schroeder and Herbert Küpper (eds), Ist die Transformation gelungen? Eigentum und Eigentumsordnung im postsozialistischen Europa (Frankfurt am Main: Peter Lang, ). See on that, for example, Veronica Taylor, ‘The Law Reform Olympics: Measuring the Effects of Law Reform in Transition Economies’ in Tim Lindsey (ed.), Law Reform in Developing and Transitional States (Abingdon: Routledge, ), pp. –. Among such organisations providing technical legal assistance to transition countries were, for example, the United States Agency for International Development (USAID), the German Foundation for International Legal Cooperation e.V. (IRZ), the German Technical Cooperation Agency (GTZ) before its merger into the German Agency for International Cooperation GmbH (GIZ), the Dutch Center for International Legal Cooperation (CILC), the European Bank for Reconstruction and Development (EBRD) and the World Bank.
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the receiving legal traditions and therefore preferred by the native professional legal communities. The decades that followed largely proved this simplistic and naïve vision wrong. Certainly, the former socialist countries experienced dramatic transformation processes accompanied by extensive borrowing of legal models. The resemblance of the laws of these countries to their Western counterparts increased. This convergence concerned, however, mainly the formal aspect of law comprising the statutory and institutional landscape – which is more easily observable and measurable. By contrast, assessments embracing the law in action and mindful of its actual role in society came to much more cautious conclusions, suggesting that outcomes of law reform in the region deviated drastically from the prophecies of the end of history. Nowadays, the suggestion that the lasting persistence of socialist legacies causes significant dissimilarities between the laws of formerly socialist countries and those of ‘old’ civil law systems can scarcely be contested. The resulting specific features of this group of laws are given proper weight by comparatists, who still reserve a special category for them, whether that be alongside the classical common law and civil law families or as a subdivision of the civil law family. For similar reasons, some general accounts accord a special place to Russia without assigning it to any group. Though united primarily by their recent socialist (as countries that have experienced state socialism) and Soviet (as former parts of the Soviet Union) past, the fifteen countries of the region share another period of their histories that appears to have left notable mark on various aspects of Soviet and contemporary law. Multifarious legacies of the Russian Empire, which gradually engulfed all these countries during the eighteenth and nineteenth centuries, are so tightly intertwined with the Soviet heritage that it is often almost impossible to neatly separate these two layers of legal tradition(s) from each another. Thus, because all the former Soviet states are also former territories of the Russian Empire (an experience that they share with Finland and Poland), their histories can be traced back through two common formative periods, distinct and very different and yet genetically interlinked. For this reason, although focused on post-Soviet dimensions of these fifteen laws and, accordingly, on how salient features of the Soviet legal past have impacted subsequent developments, this chapter also incorporates some glimpses into the legal history preceding the revolutions of . Formerly Soviet and formerly socialist, the fifteen countries explored here share a common past. Their paths parted, however, more than three decades ago. In the early s they started to develop independently from each other, moving, as it turned out, in diverging and not necessarily constant directions with varying pace. Additionally, the countries differ significantly as regards their pre-Soviet histories as well as their situation in the Soviet Union. The Baltic governorates of the Russian Empire enjoyed considerable autonomy in respect of their laws. Codification of the local laws published by the imperial government in and , the latter
For a nuanced assessment of the results of reception, see for example: Eugenia Kurzynsky-Singer, Transformation durch Rezeption? Möglichkeiten und Grenzen des Rechtstransfers am Beispiel der Zivilrechtsreformen im Kaukasus und in Zentralasien (Tübingen: Mohr Siebeck, ). Cf. Jaakko Husa, ‘The Future of Legal Families’ in Oxford Handbook Topics in Law (online ed., Oxford Academic, May ), see https://doi.org/./oxfordhb/.., with further references. René David, Camille Jauffret-Spinosi and Marie Goré, Les grands systèmes de droit contemporains (Paris: Dalloz, th ed., ); Uwe Kischel, Comparative Law (Oxford: Oxford University Press, ). For an argument in favour of embracing the imperial Russian history in order to understand legal developments not only in the formerly Soviet space but in the socialist or formerly socialist countries all over the world, cf. William Partlett, ‘The Historical Roots of Socialist Law’ in Fu Hualing et al. (eds), Socialist Law in Socialist East Asia (Cambridge: Cambridge University Press, ), pp. –.
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being the date when an orderly book of private laws appeared, was an important landmark in the legal histories of Estonia, Latvia and Lithuania. Their incorporation into the Soviet Union in after a short period of independence in the s–s was largely perceived by them as an illegal occupation. All in all, the three Baltic republics saw the dissolution of the Soviet Union as an opportunity to reconnect to their legal and political traditions. Pursuing their clear, Western path, Estonia, Latvia and Lithuania joined the European Union and NATO in . Circumstances in many other countries during the imperial and Soviet periods were much less conducive to preserving and developing autonomous legal traditions – yet nonetheless, national cultures and political orientations during their post-Soviet legal development undeniably diverged. Against this backdrop, it is natural that the laws of the former Soviet states differ in many respects and, in particular, as regards the extent to which they still qualify as post-Soviet and post-socialist. As far as continuities of Soviet legacies are concerned, the overall picture is disparate not just in terms of a geographical perspective. It has become a commonplace among legal studies focused on this region to recognise that the degree to which the laws of each of these countries has drifted from their Soviet past varies substantially between different elements, or aspects, of the legal system. Thus, Russia’s law enforcement and penitentiary systems seem to remain deeply rooted in the past, while its commercial law, in both substantive and procedural aspects, is, by contrast, predominantly new and retains only some clearly identifiable legacies of the Soviet period. This co-existence of heterogeneous elements rooted in different layers of the legal tradition, ranging from clearly Soviet through post-Soviet to those that bear hardly any notable stamp of the Soviet past at all, may cause distortions through profession- or specialisation-bias. A human rights or constitutional lawyer will often be inclined to place the Russian legal system much closer to its Soviet origins (and therefore much further from Western legal systems) than a Russian practitioner specialised in commercial law or, even more so, an internationally oriented business lawyer. The fall of the Soviet Union confronted the former republics with unprecedented challenges as regards just about every aspect of their legal systems. The original intention was to move away from Soviet authoritarianism with a single-party system to a liberal democracy with political pluralism, freedom of speech and separation of powers. Similarly, it was thought that there would be a shift away from the centrally planned economy based on public ownership to a free market based on private property and freedom of contract. Both government and the economy therefore needed an entirely new legal framework. More than that, the role of law, as well as the ways it was produced and applied, had to be thoroughly reconsidered. Additional difficulties stemmed from the fact that the dissolution of the Soviet Union, which was in fact a unitary, centralised state with only an insignificant measure of federalism, faced the former republics with the need to build not merely new systems of government but also to try to revive old historical forms of statehood where possible, or even to establish new statehoods nearly from scratch.
Marju Luts-Sootak, ‘Zur Verortung des Baltischen Privatrechts (/) unter den europäischen Privatrechtskodifikationen’ in Gábor Hamza, Milan Hlavačka and Kazuhiro Takii (eds), Rechtstransfer in der Geschichte. Internationale Festschrift für Wilhelm Brauneder zum . Geburtstag (Berlin: Peter Lang, ), p. : ‘das monumentalste Gesetzeswerk in der Geschichte des (deutsch)baltischen Rechts’. See, for example, Diane Skoda, La propriété dans le Code civil de la Fédération de Russie, un système entre deux traditions (Paris: Dalloz, ), p. : ‘En effet, le passage progressif du régime de propriété soviétique, essentiellement public et collectif, à un régime de propriété où la propriété privée prédomine, constitue une experience historique et juridique unique.’ Which invites revisiting these processes from a post-colonial perspective: William Partlett and Herbert Küpper, The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire (Cheltenham: Edward Elgar, ).
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The natural commonality of challenges suggests that a shared search for solutions might be an efficient approach to law reform in this context. Moreover, remaining economic and other connections made at least some measure of regional uniformity of laws an advisable goal. Beyond various informal mechanisms of coordination and professional exchange, an overarching institutional framework for legal harmonisation was provided by the Commonwealth of Independent States (CIS) and especially by the Interparliamentary Assembly entrusted inter alia with the drafting and publication of model laws. The CIS, that to some extent used to unite all the former Soviet states (except for the Baltics), has never become a powerful tool of regional integration. At the same time, multiple model laws issued by the Interparliamentary Assembly have had a non-negligible impact on the national legal systems in some areas. While their repercussions for procedural law remain modest, the civil codes of Armenia, Azerbaijan, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan were strongly influenced by the Model Civil Code for the CIS issued in three parts in , and . Additionally, a number of international treaties on international private law and procedural matters were adopted under the umbrella of the CIS. Further integration projects such as the Eurasian Economic Community and later the Eurasian Economic Union are of relatively little significance in terms of legal harmonisation. This chapter adopts a macro-comparative perspective and focuses on elements of the shared past of the fifteen countries of the region which still have a bearing on their present. As such, without any claim to exhaustiveness, it draws attention to several aspects of the legal method that transcend the history of the Russian Empire and the Soviet Union and have remained topical in the post-Soviet era. The history of the systematisation of statutory law, of the judiciary and of legal academia in the region sheds light on the ways the law has been produced and applied during the last centuries. Highly persistent and difficult to reform, these fundamental features of the legal systems under consideration help relate them to their past and to others, on the one hand, and provide a context against which formal aspects of law and findings of microcomparison can be assessed with due care, on the other. Additionally, historical transformations of key structures of private law are addressed. Of all the fields of law revealing far-reaching historical continuities, as for instance constitutional, criminal or family law, its fate appears particularly illustrative. This becomes apparent when it is borne in mind that state socialism, by definition antithetical to ‘classical private law’, developed a specific ‘socialist civil law’ instead. After the fall of the Soviet Union, this had to be swiftly dismantled and replaced, once again, by a new version of classical private law based on private property and freedom of contract. B. THE RUSSIAN EMPIRE
Among the key structural deficiencies that plagued the legal system of the Russian Empire in the eighteenth and nineteenth centuries, that is, throughout the historical period immediately preceding the Soviet era, were the following three: an unmanageable mass of partly outdated
Konstantin L. Branovickij, Sbliženie (garmonizacija) graždanskogo processual’nogo prava v ramkax Evropejskogo sojuza i na postsovetskom prostranstve: sravnitel’no-pravovoj aspekt [Convergence (harmonization) of civil procedural law within the European Union and the post-Soviet space: comparative-legal aspect] (Moscow: Statut, ); Eugenia Kurzynsky-Singer, ‘Commonwealth of Independent States (CIS)’ in Jürgen Basedow, Klaus J. Hopt and Reinhard Zimmermann (eds), Max Planck Encyclopedia of European Private Law (Oxford: Oxford University Press, ), Vol. I, pp. –. For recollections of several prominent experts involved in the CIS harmonisation project and the national codifications of civil law, cf. Issledovatel’skij centr častnogo prava imeni S. S. Alekseeva pri Prezidente Rossijskoj Federacii: let [Sergey Alexeev Research Centre for Private Law under the President of the Russian Federation: th anniversary] (Moscow: Statut, ), pp. –.
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piecemeal legislation at both imperial and local levels; a twisted and inefficient judicial system run predominantly by non-lawyers; and a weak legal academy showing little interest in either legislation or practice. Early on, the royal government identified these challenges, put them on the agenda and took significant measures to cope with them. However, for various reasons, drastic changes in the political climate among them, these measures were flawed in two respects – namely that many of the important steps took too much time and also that they remained half-hearted. Nevertheless, at the turn of the twentieth century, progress in all three fields was indisputable and future prospects appeared rather positive. It was the turbulent first years of the century that slowed the fundamental law reform, which was then ended by the Revolution of . . Systematisation of Statutory Law From the beginning of the eighteenth century, a dozen commissions were tasked one after the other to bring the historically grown patchwork of legislation into order. All failed to deliver any tangible result. It was only in that the Svod zakonov Rossijskoj imperii, that is, the Digest of Laws of the Russian Empire, appeared. Another remarkable product of this work, the Digest of the Local Laws of the Baltic Governorates was published in and . The more ambitious endeavour of genuine modern codification was nurtured for many decades and nearly realised at the beginning of the nineteenth century, but put on the shelf in the era of political reaction. The Svod zakonov was, by contrast, not a newly introduced system of law but an orderly collection of a great number of laws issued on various occasions in different epochs. True codification was seen as the next step, but this step turned out to be a long way away. Whereas criminal law was codified as early as (and then again in ), civil and criminal procedures only received their codes in and the Draft Civil Code, a cornerstone of the whole system, was published as late as and never became law in force. . Judicial System The judicial system of the Russian Empire suffered from being far too multi-layered, fragmented and obscure. The majority of judges, as well as of party representatives, had no legal training and lacked independence. Dispute resolution was broadly perceived as extremely costly, lengthy and unpredictable in respect of outcomes. The sweeping judicial reforms of reshaped court structure and procedure, relying on best practices of the time, and launched the process of professionalising the judiciary and party counsel. One can hardly think of another event in Russian legal history that was received with such great enthusiasm by the professional legal community, practitioners and academics alike. The reforms were seen virtually unanimously as a pivotal point in Russian legal development.
For an overview of the thorny systematisation of law in Russia, see the account by Michail M. Speranski, the father of the Svod zakonov (Mixail M. Speranskij, Obozrenie istoričeskix svedenij o Svode zakonov [A Survey of the Historical Data on Svod zakonov] (); nd ed. ()) and the classical historical presentations of the codification of civil law (Semën V. Paxman, Istorija kodifikacii graždanskogo prava [History of Codification of Civil Law] () Vols.; Gabrièl’ F. Šeršenevič, Istorija kodifikacii graždanskogo prava v Rossii [History of Codification of Civil Law] ()). Evgenij V. Vas’kovskij, Kurs graždanskogo processa [A Course of Civil Procedure], Vol. I (Moscow: Izdanie Br. Bašmakovyx, ), pp. –: ‘[. . .] the Judicial Statutes were as gigantic a step forward in the field of judicial administration as the abolition of serfdom had been in the field of all civil life in general [. . .] They have made a kind of geological revolution, put forward a new formation, which marked the beginning of a new era in the legal development of Russia [. . .] It is also natural that the Judicial Statutes were welcomed by the enlightened community
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Litigation conducted by professionals and subject to clear rational rules promised to, and in fact did, become attractive for bright and ambitious young people. They came to law faculties expecting their professors to concentrate on the positive Russian law that the courts (manned by trained professionals) would apply. It was hoped that this would in turn stimulate law reform, that case law produced by the new judiciary would become subject of scholarly interest and critique, and that transparent and impartial dispute resolution would enhance people’s trust in judicial system. Of course, not all these dreams immediately came true, but significant progress was undeniable. Quite importantly, the application of law was increasingly taken over by professionals with university training and a more and more self-confident professional community of lawyers emerged. Bar association was instituted. Another outcome of the reforms was that the role of decisions and other opinions of the Supreme Court (Pravitelstvuyushchiy senat, Governing Senate) increased and a trend towards a rise of judicial law-making became clear. . Legal Academia At the turn of the eighteenth century, the need for educated lawyers that could be involved in public administration and the judiciary was clear. However, it was not until the establishment of the Academy of Sciences in and the Moscow University in , both of which had legal scholars on board, that the foundations of Russian legal science and education were laid. Starting from this point and up to the beginning of the Soviet era, unity of legal research and teaching was the dominant model. The task of creating a legal academy from scratch was met by inviting professors from abroad. They introduced students to Western legal thought, and in particular to the then flourishing school of natural law. New generations of Russian scholars trained in this manner followed and took over. In their teaching and scholarly writings, they continued to adhere to imported ideas and approaches without paying much attention to the realities of domestic law. Close ties to Western legal thought were maintained over many decades by inviting foreign scholars to teach in Russia as well as by sending Russian students to study abroad, primarily to German universities. As the Russian academy became more and more mature and the German historical school replaced natural law as the leading paradigm, the focus shifted to domestic law, and especially to its history. The appearance of a systematic compilation of the statutory law in force in gave additional impetus for increased academic engagement with Russian legislation. During the eighteenth century, the number of law students remained so tiny that educated lawyers could not play any noticeable role in practice. Through the s and beyond, several new universities with law chairs and other institutions offering full-scale legal training were founded or re-established on the basis of older educational facilities: in Dorpat (modern Tartu,
with enthusiasm and received flattering reviews both in the Russian and foreign press [. . .]’. Cf. also Grigorij A. Džanšiev, Osnovy sudebnoj reformy: K -letiju novogo suda. Istoriko-juridičeskie ètjudy [Foundations of the Judicial Reform: To the th Anniversary of the New Court. Legal-historical essays] (Moscow: Tip. M. P. Ščepkina, ). Aleksandr N. Vereščagin, Kassacionnyj Senat (–). Očerki ustrojstva i dejatel’nosti verxovnogo suda Rossijskoj Imperii [The Senate of Cassation (–). Essays on the composition and activities of the supreme court of the Russian Empire] (Moscow: Izdatel’skaja gruppa ZAKON, ), pp. –. For historical overviews of legal science and legal education in the Russian Empire, cf. for example, Tat’jana F. Jaščuk, Juridičeskoe obrazovanie v vysšej škole [Higher Legal Education] (Omsk: Omskij gosudarstvennyj universitet im. F. M. Dostoevskogo, ), pp. –; Martin Avenarius, Fremde Traditionen des römischen Rechts. Einfluß, Wahrnehmung und Argument des ‘rimskoe pravo’ im russischen Zarenreich des . Jahrhunderts (Göttingen: Wallstein, ), passim; Gabrièl’ F. Šeršenevič, Nauka graždanskogo prava v Rossii [Science of Civil Law in Russia] (Kazan’: Tipografija Imperatorskogo universiteta, ).
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Estonia; ), Vilna (Vilnius, Lithuania; ), Kazan (), Kharkov (Kharkiv, Ukraine; ), Saint Petersburg (), Helsingfors (Helsinki, Finland; ), Kiev (Kyiv, Ukraine; ), Odessa (Ukraine; ), Warsaw (Poland; , ) and Tomsk (, law faculty since ). Among further important centres of legal instruction were the Lyceum in Yaroslavl (, the Demidov Juridical Lyceum since ), the Imperial Lyceum in Tsarskoye Selo (), the Imperial School of Jurisprudence in Saint-Petersburg () and the Bestuzhev Courses for women in Saint-Petersburg (, law faculty since ). Throughout the nineteenth century, the popularity of legal education grew and enrolment in law faculties constantly expanded – becoming comparable to those of the major universities of Western Europe. Trained lawyers were more and more present in public administration and the judiciary. Indigenous scholarly writings increased steadily in originality and number. By the dawn of the twentieth century, Russia wielded a strong sovereign legal academy, which though drawing extensively on the Western legal tradition, also revealed a good degree of independence and high potential for growth. . Private Law Private law in the late imperial era still bore traits of a class system and feudal landowning but these were gradually vanishing. Given that the revolutions of resulted in a total revision of the substance and functions of private law, more significant is that the conceptual framework, presentation schemes and patterns of reasoning assimilated by the professional community were, to a very large extent, in keeping with the German branch of the civilian tradition ultimately rooted in Roman law. This can be evidenced, for instance, by the leading textbooks of the epoch as well as by the Draft Civil Code of . Although not meant to ever become law, it influenced the Soviet codifications of civil law in the s and s as well as the post-Soviet codes. The German-style civilian character was even more striking as regards the private law of the Baltic governorates, which both in substance and in scholarly descriptions was largely shaped by ius commune and German academia. Thus, if not necessarily private law itself, the
To name just two bestsellers: [Dmitrij I. Mejer;] Aleksandr I. Vicyn (ed.), Russkoe graždanskoe pravo: Čtenija Dmitrija I. Mejera [Russian Civil Law: Lectures by Dmitrij I. Mejer] (Saint-Petersburg: N.K. Martynov, th ed., ) (first published in –); Gabrièl’ F. Šeršenevič, Učebnik russkogo graždanskogo prava [Textbook on the Russian Civil Law] (Moscow, Izd. Br. Bašmakovyx, th ed., ) (first published in ). For a general account, cf. Anton Rudokvas and Alexej Kartsov, ‘The Development of Civil Law Doctrine in Imperial Russia under the Aspect of Legal Transplants (–)’ in Zoran Pokrovac (ed.), Rechtswissenschaft in Osteuropa. Studien zum . und frühen . Jahrhundert (Frankfurt am Main: Klostermann, ), pp. –. For a brief overview of the private law in that epoch and of the Draft Civil Code, cf. Ferdinand J. M. Feldbrugge, A History of Russian Law. From the Council Code (Ulozhenie) of Tsar Aleksei Mikhailovich of to the Bolshevik Revolution of (Leiden: Brill, Nijhoff, ), pp. –. To quote two of the fathers of the Russian Civil Code of –, introducing it to their readership in : ‘Civil legislation and civil-law doctrine are now turning to their roots – to the pre-revolutionary Russian legislation, to the works of prominent Russian civil lawyers, and to the draft laws created by them. Indeed, as early as in the end of the last century, an Editorial Board was established in Russia, which prepared a brilliant draft of a Civil Code [. . .] one of the best examples of civilian thought. Many of the provisions of this draft law were already taken into account in the preparation of civil codes during the Soviet period: the Civil Code of the RSFSR of and the Civil Code of the RSFSR of ’ (Mixail I. Braginskij and Vasilij V. Vitrjanskij, Dogovornoe pravo. Obščie položenija [Contract Law. General Provisions] (Moscow: Statut, ), p. ). Hesi Siimets-Gross, ‘Das römische Recht in der baltischen Kodifikation des Russischen Imperiums: Geltung, Folgen einer Statusänderung und Wirkung’ () Rechtskultur −; Marju Luts-Sootak, ‘Die baltische Privatrechtswissenschaft im . Jahrhundert zwischen deutscher Rechtswissenschaft und russischer Politik’ in Zoran Pokrovac (ed.), Rechtswissenschaft in Osteuropa. Studien zum . und frühen . Jahrhundert (Frankfurt am Main: Klostermann, ), pp. –.
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discourse about it and systematic presentations thereof were by the end of the imperial era, distinctively civilian. C. THE SOVIET UNION
The beginning of the twentieth century found the legal system of the Russian Empire in a state of profound transformation as regards the ways that law was produced and applied and the role of law in the society. Far from being complete, this process had already yielded remarkable results and gave every reason to expect more. Yet a series of deep political crises, including the Russian revolutions of and February and the First World War that started in , were not conditions for further development. The October Revolution of entailed a rupture from the previous tradition and became a starting point of development that resulted in a legal system of a new type. The attitude of Soviet ideology towards law as such underwent substantial changes during the first decades following the Revolution. These views oscillated between dismissing it altogether and acknowledging its important role in a socialist society as a tool in the hands of the proletariat in the ongoing class struggle. In any event, law was doomed to disappear entirely as soon as the class struggle was over and socialism as a transitional form of society was replaced by communism, where no law is needed. In practical terms, the traditional elements of the legal method, such as legislation, the judiciary and legal academia, continued to exist but endured significant transformations. . Systematisation of Statutory Law By the end of the ‘laws of overthrown governments’ were unequivocally set aside. Concise piecemeal decrees, an instrument favoured by the Soviet government during the first postrevolutionary years, could not provide for a full-scale stable legal framework in the long run. In circumstances where old laws were dismissed, new laws were fragmentary and often of transitional character, and the legislator sought to reach lay judges and laymen in general, genuine codification of laws recommended itself as a means to promptly erect a new legislative framework. Indeed, the end of the s and the first half of the s brought forth a dozen codes of the Russian Soviet Federative Socialist Republic (RSFSR) on a wide range of subjects: Family Codes of and of ; Labour Codes of and of ; Criminal Codes of and ; Codes of Criminal Procedure of and and the Correctional Labour Code of ; the Civil Code of and the Code of Civil Procedure of ; the Land Code of ; and Forest Code of . At least three further codes were drafted but never became law. The emergence of the Soviet Union and the adoption of the Constitution of the USSR in put a new wave of codification on the agenda. A system of codes tailored to the federal
On codification of law in the Soviet epoch, see Tat’jana F. Jaščuk, Sistematizacija rossijskogo zakonodatel’stva v sovetskij period [Systematisation of the Russian Legislation during the Soviet Period] (Omsk: Izdatel’stvo Omskogo gosudarstvennogo universiteta, ). Cf. also a collection of papers by one of the fathers of the Model Civil Code for the CIS and the Russian Civil Code, and a member of various working groups responsible for the codification of Soviet law since the s: Aleksandr L. Makovskij, O kodifikacii graždanskogo prava ( – ) [On Codification of Civil Law ( – )] (Moscow: Statut, ). Daniel Guyot, ‘La révolution russe de et la naissance du droit soviétique. A l’occasion du centenaire de la Révolution russe de ’ () - Revue internationale de droit comparé : ‘Le droit soviétique a, dès l’origine, fait l’objet d’un important effort de codification avec l’adoption de différents codes [. . .]’.
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structure of the state was supposed to come to life. This undertaking was of only modest success, limited mainly to the fields of criminal law and criminal procedure where a novel twofold model of codification appeared. This was based on combination of a more concise federal code consisting of general and abstract rules (called ‘fundamentals of legislation’) and a fully-fledged code for each republic. Meanwhile, national republics broadly adopted the codes of the RSFSR as their own or, alternatively, took them as sources of inspiration and introduced their own codes that were largely similar to the Russian model. As the centralist appetite of the government grew and the Constitution of the USSR assigned broad legislative competence to the Union as far as codification of the principal branches of law was concerned, the s–s witnessed multiple projects of codification at the federal level. New codes of the Union were to replace the existing codes and other laws of the republics. The Second World War put federal codification endeavours on hold and the declared turn to real federalism after Stalin’s death in , and the landmark Twentieth Congress of the Communist Party of the Soviet Union in (which gave rise to a massive transformation of the political system), ultimately buried them. The failure of the codification projects of the s–s, the continued spontaneous and haphazard growth of legislation following the first wave of codes through several turbulent periods of collectivisation, industrialisation and the Great Terror of the s, the Second World War of the s and its aftermath, numerous profound changes in social systems after the s and in particular the de-Stalinisation of the s led to a need for legislative action on a large scale. During the second wave of successful codification in the late s–s, the federal structure of the Soviet Union was echoed in a peculiar combination of federal and republican laws that, this time, was consistently implemented through codification of all the major fields of law. At the federal level, the so-called fundamentals of legislation of the USSR and the Union republics, binding on republican legislators, were issued. These were essentially short versions of the respective codes and were there to ensure legal harmony within the Union. At the republican level, fully-fledged codes appeared. The far-reaching uniformity of these was ensured by mechanisms including such federal fundamentals, but also consultations of republican drafters with federal expert bodies in Moscow. In this manner, virtually all the major ‘branches of legislation’ were codified: criminal law (, ), criminal procedure (, ) and prison law (, ); law of regulatory offences (, ); civil law (, ) and civil procedure (, ); family law (, ); housing law (, ); land law (, ); water law (, ); forest law (, ); mining law (, ); and labour law (, ). . Judicial System The original policy that the Soviet government pursued in respect of the judiciary was based on the concept of ‘popular justice’. The application of law was entrusted to ‘popular courts’ composed predominantly of laymen and not of professional jurists. Additionally, the young Soviet government was disinclined to employ lawyers, who made their careers under the ancien régime, due to concerns that they would be ideologically hostile. Only a fraction of the prerevolution professional community was recruited under the new government. Between
The federal codes on criminal law and criminal procedure were issued in October . The numbers stand for the years when the respective federal fundamentals and, by way of example, the code of the RSFSR were issued.
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and , the share of judges with legal education ranged from roughly to . per cent. The democratic elements of ‘popular justice’, with elected judges allegedly representing the people and the general tendency of the Soviet government towards centralisation, were not easy to reconcile. Elected lay judges were not necessarily well-suited to fulfil the orders of the legislator loyally and accurately. At the same time, only the Soviet legislature, led by the Communist Party, was seen as a legitimate lawmaker expressing the will of the dominant class – meaning the courts were bound to faithfully observe the statutory framework. In sum, both the democratic character and the lack of professionalism on the side of judges were at odds with the centralist style of the government and the official doctrine of legal sources. These tensions gave birth to several distinctive, and particularly persistent, features of the administration of justice in the Soviet Union and to some extent the Soviet legal method in general. One aspect of the legal system’s response to the above tensions was institutional in nature. The judicial system was increasingly designed as a comprehensive hierarchical structure where judges might retain independence in relation to the parties but not to the president of the court (predsedatel’ suda) and the higher courts. Presidents of the courts, that is, the heads of each court of law, enjoyed considerable power and an array of formal and informal levers for exerting great influence over judges. These functionaries were usually members of the Communist Party and representatives of the nomenklatura, that is, the Soviet establishment. As such, they ensured that the judiciary remained faithful to the ‘Party line’ and stayed within the ambit of the ‘socialist legality’. Another vehicle of guidance was the Party itself, given that an overwhelming majority of judges were members. A number of further formal and informal structures existed that ensured judges’ exposure to influences from outside of the judicial system (the Ministry of Justice, the Communist Party) and from the higher courts within the judicial hierarchy. The institution of supervisory review (‘nadzor’) allowed the heads of the supreme courts and the Procuracy, and at times also other high-ranking officials of the court system and Procuracy as well as of the Ministry of Justice, to raise protests against court decisions that had become final (‘entered into force’) without time-limit. Thereupon certain highest courts could reopen the case and quash the judgment if it turned out to be vitiated by grave errors of law or of fact and, hence, not in accordance with ‘socialist legality’. Another track concerned the structure of the legal discourse. Non-professional judges entrusted with the application of law and, by extension, ordinary legal practitioners in general were passive recipients of the discourse rather than its active participants. They were assumed to need guidance and teaching from those who knew better, rather than being able to engage in discussion with their peers. As early as the s, the supreme courts of the Union and the republics started to issue instructions, or guidelines, explaining how to apply the law in force. These interpretative guidelines did not refer to particular cases and consisted of apodictic abstract statements with hardly any reasoning. Although officially denied the character of a source of law, these instructions were factually binding and, effectively, reinstated the hierarchic structure of both the judicial system and the legal discourse at large. A further manifestation of
Vadim Volkov, et al., Rossijskie sud’i: sociologičeskoe issledovanie professii [Russian Judges: A Sociological Study of the Profession] (Moscow: Norma, INFRA-M, ), p. . Robert S. Abdulin, ‘Rol’ Kommunističeskoj partii v sudebnom upravlenii (–)’ [The Role of the Communist Party in the Court Governance in –] () Pravo i politika [Law and Politics] ; Robert S. Abdulin, Sudebnoe upravlenie v Rossijskoj Federacii (– gg.). Istoriko-juridičeskoe issledovanie [Court Governance in the Russian Federation in –. A Historical Study] (Moscow: Jurlitinform, ). Alexander Vereshchagin, Judicial Law-Making in Post-Soviet Russia (Abingdon: Routledge Cavendish, ), pp. –. This peculiar type of activity of the highest courts has been widely received by other socialist countries and is often deemed as a distinctive feature of the socialist legal family (Jan Schröder, Recht als Wissenschaft:
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this specific feature of the Soviet legal discourse was the style of the legal commentaries and their purpose, at times explicitly stated by contemporary lawyers. The commentaries to the codes and other laws stemmed mostly from the legal establishment and addressed laymen or poorly educated professionals. Legal commentaries were also apodictic in style, supplying their readership with basics and preferring to avoid any debates. Rather, they delivered the one and only interpretation on every point. At least in the first decades of the Soviet era, practitioners with no proper legal education were not trusted to be able to resolve controversies on legal issues by themselves. The turn to a professional judiciary in the s and s, which went hand in hand with exponential growth in the share of judges with higher legal education (roughly per cent as early as in , and nearly per cent by the beginning of the s) only reinforced the model of the judiciary as a centralised hierarchical structure. Also noteworthy is another peculiar feature of the Soviet framework of dispute resolution, stemming from the very nature of the socialist system of property and planned economy. Obviously, in a society where all the assets of importance are owned by the state (or the people) and an overwhelming majority of economic entities follow instructions issued by a single owner, disagreements between these actors differ substantially from commercial disputes between independent private owners. The settlement of arguments between socialist economic entities is more akin to mediation and resolution of conflicts within the same enterprise than to fullyfledged adversarial litigation. Not surprisingly, this task was performed not by courts but by special bodies called ‘arbitration commissions’, later ‘state arbitrazh’. Of no less importance is a further limitation on the jurisdiction of the Soviet courts. Being an agent of undivided state power in a system that did not adhere to the rule of law, the Soviet judiciary had no general jurisdiction over the executive. Instead, controversies concerning the operation of state bodies and public officials were, to a great extent, dealt with beyond the judiciary. . Legal Academia The massive outflow of lawyers trained under the ancien régime left the young Soviet government with a twofold deficit. The most pressing issue of the first order was to refill the yawning shortage of lawyers in all fields of public administration. That, however, required an efficient
Geschichte der juristischen Methodenlehre in der Neuzeit (–) (Munich: C. H. Beck, rd ed., ), Vol. II, p. ; Knut Benjamin Pißler, ‘Sozialistisches Recht’ in Jürgen Basedow, Klaus J. Hopt and Reinhard Zimmermann (eds), Handwörterbuch des Europäischen Privatrechts (Tübingen: Mohr Siebeck, ), Vol. II, p. ; René David, ‘Sources of Law’ in International Encyclopedia of Comparative Law, Vol. II, Ch. (Tübingen: Mohr Siebeck, ), p. ; Norbert Reich and Hans-Christian Reichel, Einführung in das sozialistische Recht (Munich: C. H. Beck, ), p. ). For a discussion of these guidelines as a characteristic element of the authoritarian discourse typical of socialist legal systems based on the experiences of the Czech Republic, cf. Zdenek Kühn, ‘All-Pervasive Legacies of Socialist Constitutionalism? The Case of Judiciary’ () Russian Law Journal –. Andrey Shirvindt, ‘Die juristische Literaturlandschaft Russlands. Eine Kommentarwüste’ in David Kästle-Lamparter, Nils Jansen and Reinhard Zimmermann (eds), Juristische Kommentare: Ein internationaler Vergleich (Tübingen: Mohr Siebeck, ), pp. –. Volkov et al., above n. , p. . On the state arbitrazh in the USSR as well as in several other socialist countries, see Tamara E. Abova, Arbitraž v mexanizme socialističeskogo xozjajstvovanija stran-členov SÈV [Arbitrazh in the Mechanism of the Socialist Economy of the Country Members of the Council for Mutual Economic Assistance] (Moscow: Nauka, ). Cf., for example, Elena Bogdanova, Complaints to the Authorities in Russia: A Trap between Tradition and Legal Modernization, Ph.D Thesis, University of Eastern Finland , see https://erepo.uef.fi/bitstream/handle/ //.pdf, pp. –.
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Andrey Shirvindt
system of legal education – bearing in mind that again, the drain of old-school law professors was enormous. This task was all the more arduous since the general design of socialist legal training, as well as the social functions of law and its professionals, remained subject to ongoing debate. Not surprisingly, the numerous reforms, initiatives and doctrines adopted in the first years of the Soviet era boiled down to a broad use of pieces of pre-revolutionary heritage, including the employment of old law professors that were willing and allowed to teach under the changed circumstances. This course of action, virtually non-optional in the circumstances, led to hidden continuities that bound later Soviet academia to the imperial tradition. The acute shortage of trained lawyers remained a constant concern of the Soviet government and an array of experiments and reforms followed – none of which, however, even came close to fully satisfying the felt need. Perhaps the most peculiar feature of the new system of legal education that had emerged by the end of the s was that an overwhelming majority of law students received their training through various forms of distance, or part-time, learning (approximate parity with full-time learning was not achieved until the late s). These students were usually practitioners who were earning their law degrees while continuing their work. This kind of legal education was more accessible but of an obviously lesser quality, yet it co-existed with classical full-time learning at law faculties of universities. Another characteristic trait of this system was the specialisation of students in one of several major fields of law. The most popular specialisation was the one corresponding to the main career paths of Soviet lawyers, that is, criminal law and law enforcement. At the institutional level, the separation of research (which was concentrated in scientific institutes) from teaching marked a notable break with the pre-revolutionary tradition. A number of new law faculties and institutes were established throughout the Soviet Union, some of them with multiple branches. As for substance, Soviet academia, unlike its imperial predecessor, largely disconnected from Western legal scholarship, albeit while still making daily use of its previously assimilated conceptual framework. Beyond favouring criminal law and its related disciplines, it placed much weight on abstract legal theory, both in research and teaching. The ‘Theory of State and Law’, dominated by the mandatory Marxist-Leninist doctrines, dealt with most fundamental and general legal phenomena at a high level of abstraction and thus scarcely ever took a critical stance on the contents of the law in force, yet developed into a key element of university curricula and scholarly debate. The focus on producing dutiful civil servants rather than independent judges or lawyers apt to operate in adversarial and competitive settings, coupled with a virtually total disregard of case law, made the Soviet legal academy ‘theoretical’ in yet another sense of the word. . Private Law One of the pillars of state socialism was the abolition of private property of land and other ‘means of production’. These assets were subjected to nationalisation, socialisation, or collectivisation and constituted ‘socialist property’ with the state property being its main form and the so-called cooperative property playing a subordinate role. ‘Personal property’ belonging to citizens could comprise only a very limited range of assets meant mainly for individual consumption. After a short period of concessions to private capital during the New Economic Policy (NEP) in the s, a scheme based on the complete abolition of private property was implemented in full
On legal education in the Soviet Union, see Tat’jana F. Jaščuk, Juridičeskoe obrazovanie v vysšej škole [Higher Legal Education] (Omsk: Omskij gosudarstvennyj universitet im. F.M. Dostoevskogo, ), pp. –.
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Former Soviet States
and remained an essential element of Soviet socialism until its fall. Obviously, the introduction of this system entailed drastic changes to the contents and conceptual framework of private law. In fact, the concept of private law was discarded altogether. Both socialist and personal property differed from ‘bourgeois’ private property, meaning that traditional theories of property were abandoned and many aspects of classical property law needed reframing. The transfer of all land and virtually all buildings to state ownership made the idea of ‘rights in rem’ largely obsolete and the distinction between movables and immovables vanished. Since most assets were in public hands, there was no need for a developed system of legal persons to facilitate cooperation between private investors and their participation in commercial activities. As the absolute majority of economic transactions took place between different entities owned by the public, freedom of contract ceased to be an appropriate tool of coordination. A new civil law, the civil law of the socialist state, emerged. Along with rules for the fairly simple economic lives of citizens, it provided for a framework within which the ‘socialist organisations’ operated. These were mainly legal persons created to manage public assets without becoming their owners. Thus, in order to deal with the unprecedented nationalisation, or socialisation, of property, new types of legal persons and a new type of rights in rem were invented. Publicly-owned assets were allocated to state enterprises with the ‘right of operational management’ assigned to them. These entities exercised their ‘rights’ and entered into ‘contracts’ with each other on behalf of the public owner and followed its binding instructions. Here, the institution of contract was downgraded to a merely technical tool of the administrative plan. The number of contract types in use was extremely modest. In every way, it was a contract law without freedom of contract. D. POST-SOVIET DEVELOPMENTS
When, at the beginning of the s, the fifteen former republics (and then: new countries) were faced with the challenge of developing their own legal systems that would function in an entirely new type of society, they found themselves to be recipients of a specific Soviet and to some extent even tsarist legacy as regards legal method. Though rough generalisations, several distinctive features marked the tradition behind them. Both the Russian Empire and Soviet Union had a strong predilection for statutes as the main source of law. The nascent rise of judicial law-making at the dusk of the imperial era was interrupted by the Revolution(s), and the Soviet regime was clearly reluctant to entrust judges with the creation of law. At the same time, supreme courts were vested with the power to issue interpretative guidelines that gave general instructions to the courts and wielded considerable authority, being binding in all but name. The systematisation of statutory law became a constant element of the legal tradition in both the Russian Empire and the Soviet Union. Although originating in the ancien regime, it survived the October Revolution of and was an overarching project. In fact, Soviet legal scholarship even made explicit references to pre-revolutionary systematisation experiences as models to be taken into account. The imperial era brought about significant progress in this enterprise, but the process of genuine codification took a very long time and remained incomplete (in particular, a civil code was still missing by ). The true heyday of codification was the Soviet epoch. The Soviet state had to ensure, reflect and get to grips with profound changes in
Apollon N. Iodkovskij, ‘Istorija sovetskoj kodifikacii’ [History of Soviet Codification] in Apollon N. Iodkovskij and Viktor M. Čxikvadze (eds), Voprosy kodifikacii [Questions of Codification] (Moscow: Gosjurizdat, ), pp. –.
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Andrey Shirvindt
the legal system at least twice, that is, between the end of s and the first half of the s, and in the s to s. The first time, a completely new legal framework had to be established rapidly and largely from scratch. The second time, the historically grown law of ‘actually existing socialism’, which differed strongly from that designed by the first wave of codification, had to be put in order. A strong, professional and independent judiciary never became a component of this legal tradition. The reform of gave birth to a state-of-the-art judicial system, operated by professionals, and launched a mighty process of change that embraced nearly every aspect of legal method in the Russian Empire. The Revolution(s) put an end to this development and the Soviet state opted for a predominantly non-professional judiciary. Despite its theoretically democratic elements, this judicial system was shaped as a hierarchical structure where ordinary judges were at the bottom tier and subject to the presidents of the courts and the higher courts. Legal education was obtained at law faculties of universities or at specialised higher education institutions similar to the classical law faculties. This model is based on the idea that lawyers should receive their training within the academy, led by scholars and not in practice. Though adopted in the imperial period, it has been preserved over the following centuries. In the Soviet era, it experienced, however, two important modifications. Distance, or part-time learning as a newly instituted type of legal education became quantitatively predominant, enabling practitioners to earn their law degrees while continuing to work. Specialisation within the law faculty was also introduced, so that students could focus on the field of law that corresponded to their future career path. These characteristic features of the legal method, rooted in different historical layers of the tradition, have left distinctive imprints on transformation processes in the fifteen formerly Soviet countries and their present laws. . Systematisation of Statutory Law The multiple great challenges of the s and s, following the demise of the Soviet Union, brought the codification of law into the spotlight once again. Comprehensive codification, sought since the beginning of the imperial era, was used twice by the Soviet government as a response to, and a tool of, profound transformation in the societal system. As another dramatic shift arrived, national legislators resorted to the proven remedy. An explosive surge of chaotic piecemeal legislation, the need to replace the codes inherited from the Soviet era, as well as the vast experience with codification accumulated by legal experts able to support legislative reform (law professors and other academics among them), offered fertile ground for a new wave of codification. Self-identification with the continental, or civil law, tradition and the use of particular legal systems with codified laws (e.g., Germany, the Netherlands) as models pointed in the same direction. All in all, the former Soviet, and the former socialist countries in general, have become a geographical centre of the renaissance of the codification idea.
Cf., for example, for Belarus: Valerija V. Sedel’nik and Svetlana E. Čeburanova, ‘Kodifikacija kak instrument formirovanija postsovetskogo belorusskogo prava’ [Codification as a Tool for Forming of Post-Soviet Belarusian Law] () () Vesn˙ık Grodzenskaga dzjarža˘ynaga y˘ n˙ıvers˙ıtèta ˙ımja Jank˙ı Kupaly. Series . Pravazna˘ystva [Herald of the Yanka Kupala State University of Grodno. Series . Legal Science] –; Tajikistan: Akmal R. Nematov, Pravotvorčestvo v Respublike Tadžikistan: aktual’nye voprosy teorii i praktiki [Law-making in the Republic of Tajikistan: Current Issues of Theory and Practice], PhD Thesis, Institute for State and Law of the Russian Academy of Sciences, Moscow, , pp. –. In respect of civil codes, cf. Wilhelm Brauneder, ‘Kodifikationsbewegungen’‘ in Leibniz-Institut für Europäische Geschichte (IEG) (ed.), Europäische Geschichte Online (EGO), Mainz --, see www.ieg-ego.eu/braunederw-de.
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Former Soviet States
National legislators have therefore replaced the multiple Soviet codes with new ones, therein reintroducing codification to the ‘classical’ fields of civil law and civil procedure, criminal law and criminal procedure, etc. In addition, an array of the other ‘branches of legislation’ shaped in the Soviet era have received new codes in many countries: land law, water law, forest law, building law and the like. The pattern of expanding codification to new areas reflects the way it was seen as a virtually universal tool for the orderly development of statutory law. Tax codes, budgetary codes but also banking codes, electoral codes, bankruptcy codes and migration codes appeared in various jurisdictions. A further important tangible manifestation of the central role attributed to codification as a means of systematic and coherent development of law is a peculiar technique of self-proclaimed prevalence of the codes over ordinary statutes which became popular in the region. Pursuant to Art. () of the Model Civil Code for the CIS, statutes, other than the Civil Code, shall conform to it. Verbatim or effectively identical provisions are entrenched in many national civil codes: of Armenia (Art. ()); Belarus (para. of Art. ); Kazakhstan (Art. (.)); Kyrgyzstan (Art. ()); Lithuania (Art. .()); Russia (Art. ()); Tajikistan (Art. ()); Ukraine (Art. ()); and Uzbekistan (Art. ). Similar clauses were included in other codes as well. While in some countries, for example Russia, this controversial approach, repeatedly questioned from the perspective of constitutional law, could not gain unanimous support and resulted in inconsistent case law, it has, in other jurisdictions, become an element of the officially established hierarchy of legal sources. Thus, Art. . of the constitutional law of Azerbaijan ‘On normative legal acts’ provides that the Civil Code shall prevail over any other code or ordinary statute thats include civil law rules and the Belarusian law of ‘On normative legal acts’ (para. of Art. ()) and the Kyrgyzstani law of ‘On normative legal acts of Kyrgyz Republic’ (Art. (), ()) go even further – placing codes, distinguished through their systematic character, over ordinary laws in general. . Judicial System In view of the described historical heritage and the daunting challenge of establishing a legal system of a new type, professionalisation of the delivery of justice, as well as establishing the independence of judiciary and judges, were among the key issues of judicial reform. The late Soviet era had already witnessed a turn towards professional courts. Full professionalisation of the bar was a further step to consider. Judicial independence in all its aspects was, surely, a much more ambitious goal. The judiciary needed to be converted from a tool of the political agenda of the Communist Party, forming part of an undivided conglomerate of state agencies alongside the executive, into a separate branch of government able to subject the executive to the rule of law and serve the law rather than public interest. Individual judges, to this end, needed to be emancipated from the multifaceted forms of subordination that relegated them to the bottom of the bureaucratic hierarchy. The complexity of these tasks was further amplified by the need to go beyond the formal regulatory and institutional framework in order to achieve a factual increase
On the use of this technique in various codes in Turkmenistan, cf. Daniil V. Čuxvičev and Begenč S. Aširov, Zakonodatel’naja texnika [Legislative Techniques] (Ashgabat) OSCE Centre in Ashgabat, ), see www.osce.org/ files/f/documents//c/.pdf, pp. –. For an overview of the case law of the Russian Constitutional, Supreme, and Supreme Arbitrazh Courts as well as of lower courts, cf. Aleksandr A. Petrov, ‘Voprosy preodolenija kollizij norm kodeksov, ustanavlivajuščix sobstvennyj prioritet’ [Questions of Overcoming of Conflicts between Rules of the Codes that Stipulate their Own Prevalence] () Vestnik Sankt-Peterburgskogo universiteta. Pravo [Herald of the Saint-Petersburg University Law] –.
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Andrey Shirvindt
in the quality of legal training, a reorientation of the judiciary in respect of its social functions and the values it serves, and a true emancipation of judges from the often informal web of external and internal influences. Separation of the judiciary from the executive and ensuring the independence of judges turned out to be extremely problematic as regards both technical feasibility and political will. For one, subjecting actions of the executive to judicial review could not rely on experience since it was lacking. Establishing administrative law and procedure, as well as respective judicial procedure, was a particularly burdensome task and remains in many countries a work in progress. For another, the idea of independent justice in general and the comprehensive subjection of the executive to judicial review clashes with authoritarian and super-presidential trends common to several countries of the region. While some of the formerly Soviet countries seem to have made significant progress towards establishing the independence of judiciary (Estonia), many others, contrary to initial hopes and declarations, have failed to achieve a fundamental shift in this regard and have confined themselves to half-way reforms (Belarus, Kyrgyzstan, Moldova, Russia). Thus, in Russia, both the formal institutional design of the judicial system and actual practices, in particular the selection and promotion procedures and policies, reinstate its dependence on the executive, this time represented by the presidential administration, and the inner centralised hierarchical structures. Just as in many other countries of the region, the powerful presidents of the courts, a legacy of the Soviet judiciary, play a key role. As a result, sociological studies reveal a patchy picture of the institution of justice – stating in particular that highly politicised or otherwise politically sensitive cases, as well as disputes between private persons and the executive, suffer
A sociological study focused on Russia but encompassing several other transitional countries supports the finding that establishing a formal framework for the independence of judges was a much easier and a much more successful endeavour than ensuring independence in practice (A. K. Gorbuz et al., Transformacija rossijskoj sudebnoj vlasti. Opyt kompleksnogo analiza [The Transformation of the Russian Judiciary. A Comprehensive Analysis] (Moscow, Saint-Petersburg: Norma, ), pp. –, passim). Cf., for example, ECtHR January , Oleksander Volkov v. Ukraine, No. /: ‘[. . .T]he present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary. In particular, the violations found in the case suggest that the system of judicial discipline in Ukraine has not been organised in a proper way, as it does not ensure sufficient separation of the judiciary from other branches of State power. Moreover, it does not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence, the latter being one of the most important values underpinning the effective functioning of democracies’. See on this issue also Caroline von Gall, ‘Beyond Legal Amendment. The Ukrainian Judiciary Needs More Than a Change of Laws’ in Eugenia Kurzinsky-Singer and Rainer Kulms (eds), Ukrainian Private Law and the European Area of Justice (Tübingen: Mohr Siebeck, ), pp. –. Jörg Pudelka and Jens Deppe, ‘Allgemeines Verwaltungsrecht in Zentralasien in der Entwicklung’ () Verwaltungsarchiv ; Otto Luchterhandt, Russlands Rückkehr zur Autokratie. Verfassung, Recht und Rechtskultur in der Ära ‘Putin’. Teil (), see www.ostinstitut.de/documents/Luchterhandt_Russlands_Rckkehr_zur_ Autokratie_Teil__OL__.pdf. Cf. Anja Seibert-Fohr (ed.), Judicial Independence in Transition (Berlin, Heidelberg: Springer-Verlag, ), with reports on Armenia, Belarus, Estonia, Kazakhstan, Kyrgyzstan, Moldova and Russia as well as general accounts by Angelika Nußberger, ‘Judicial Reforms in Post-Soviet Countries – Good Intentions with Flawed Results?’ in ibid., pp. – at p. (‘What is generally deplored in post-soviet countries is the dependence of the judiciary on the presidential administration as well as the existence of hierarchical structures within the judiciary, not leaving enough room for the independent adjudication of individual cases’) and Lydia F. Müller, ‘Judicial Administration in Transitional Eastern Countries’ in ibid., pp. –. Kathryn Hendley and Peter H. Solomon, Jr, The Judicial System of Russia (Oxford: Oxford University Press, ); Peter H. Solomon, Jr, ‘Revisiting Judicial Reform in Russia’ () () Demokratizatsiya: The Journal of Post-Soviet Democratization ; Aryna Dzmitryieva, ‘Becoming a Judge in Russia: An Analysis of Judicial Biographies’ () Europe-Asia Studies ; Volkov et al., above n. , pp. – and pp. –.
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Former Soviet States
from grave structural flaws, whereas ordinary disputes between individuals may often receive fair and efficient treatment. The history of the arbitrazh courts in Russia reflects a vivid patchwork of challenges, conflicting trends and missed opportunities for judicial reform. While the present Russian system of general courts may be deemed a reformed version of its Soviet predecessor, the commercial courts that have jurisdiction over all economic disputes involving legal persons or individual businesspersons constitute an essentially new system. Of course, the state arbitrazh in charge of dispute resolution between socialist organisations during the Soviet era served as a foundation for the erection of this new branch of the judiciary (hence the misleading name of the state commercial courts, which have nothing to do with commercial arbitration – ‘arbitrazh courts’). The new system has, however, outgrown its predecessor so rapidly and in so many respects that even if one can identify certain continuities, by the s the arbitrazh courts were effectively a brand-new institution whose Soviet pedigree hardly bore on its further development. Arbitrazh courts headed by the Supreme Arbitrazh Court of the Russian Federation became a salient point of growth for the legal system at large. While obviously not entirely free from drawbacks, the new branch of the judiciary has swiftly evolved into a modern and efficient institution of justice delivery, in many ways leaving the general courts far behind. With good reason, assessments of the Russian judicial system frequently identify the arbitrazh courts as a positive exception from the system’s structural flaws and dubious connections to the Soviet past. The Supreme Arbitrazh Court has become more and more active in judicial law-making, be it through the interpretative guidelines inherited from the Soviet tradition or individual decisions. The Court and its judges started to exert considerable influence on the legislative process as regards, in particular, the Civil Code. For a long time, the two expert bodies responsible under the President of Russia for the codification of civil law and the scrutiny of draft legislation in this field – the Research Centre for Private Law (established in ) and the Presidential Council for Codification and Enhancement of Civil Legislation (established in ) – were headed by Veniamin F. Yakovlev, the founding president of the Supreme Arbitrazh Court. Arguably, an important factor enabling the independent development and remarkable rise of this institution was that, unlike the general courts, the commercial courts dealing with the seemingly autonomous sphere of economic controversies had no jurisdiction over politically charged disputes and thus were not of primary interest to the re-emerging autocratic regime. Furthermore, the operation of powerful state agencies not necessarily enthusiastic about the rule of law – frequently referred to collectively as siloviki (the military, the Federal Security Service, the Investigative Committee and suchlike) – fell principally outside the jurisdiction of the commercial courts. It should also be noted that due to its limited jurisdiction, the system of commercial courts is much more compact as far as the numbers of courts and judges are concerned and was therefore much easier to improve than the huge system of general courts. In , for no clear reason, the Supreme Arbitrazh Court was abolished and the lower arbitrazh courts were subordinated to the Supreme Court. This unexpected course of action, as well as the modalities thereof – including the indecent way the former justices of the dissolved court were dealt with – appear quite telling as regards the attitude of the political leadership towards having a strong independent judiciary.
Marina Kurkchiyan and Agnieszka Kubal (eds), A Sociology of Justice in Russia (Cambridge: Cambridge University Press, ); Gorbuz et al., above n. , pp. –, passim. On the history of the state arbitrazh courts in post-Soviet Russia, see Anton A. Ivanov (ed.), Pravosudie dlja èkonomiki: gosudarstvennye arbitražnye sudy Rossii [Justice for the Economy: State Arbitrazh Courts of Russia] (Moscow: Pravo. Ru, ), pp. –.
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Andrey Shirvindt
The two peculiar manifestations of the hierarchical structure of the Soviet judiciary, supervisory review and interpretative guidelines of the highest courts, have proven persistent. The indigenous institution of nadzor, allowing the re-opening of finally determined cases, was in its original Soviet version obviously incompatible with the precepts of the reformed judicial procedure. It was repeatedly denounced by the European Court of Human Rights as infringing the principles of legal certainty and res judicata, as well as by the Venice Commission on the same grounds but also as detrimental to the internal independence of the judiciary, the latter reproach being addressed to both the supervision and adoption of guidelines by the highest courts. While several countries in the region abandoned the supervisory review altogether soon after the dissolution of the Soviet Union (Georgia, Estonia, Moldova and Ukraine), others preferred to substantially transform it (Azerbaijan, Armenia, Kazakhstan, Latvia, Lithuania and Russia) or have kept many crucial remnants of the Soviet original throughout the post-Soviet decades (Belarus, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan). Interpretative guidelines of the highest courts as a tool of top-down unification of case law were retained by many countries in the region (Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan). Pursuant to Art. () of the Constitution of the Republic of Kazakhstan ‘normative resolutions’ of the Supreme Court of the Republic belong to the law in force alongside the Constitution, statutes, secondary legislation, etc. This language has fuelled a debate which goes back to the Soviet epoch as to whether the guidelines of the supreme courts can be deemed as sources of law. Symptomatically, recent publications on the subject refer extensively to the Soviet scholarship and post-Soviet Russian experiences. The wording of the Kyrgyz Constitution of is even clearer, as Art. () states: ‘The Plenum of the Supreme Court gives explanations on issues of court practice, which are binding for all courts and judges of the Kyrgyz Republic’. At the other end of the spectrum, the Law of the Republic of Moldova ‘On the Supreme Court of Justice’ vests the Court with the power to issue ‘on its own motion, explanations on questions of case law that are not interpretative in nature and are not binding on judges’ (Art. (d); cf. also Art. (c)). The national supreme courts make active use of their powers and have generated considerable bodies of
Vladimir L. Vol’fson, Neprinuždennaja neustojčivost’. O sud’bax publičnogo interesa v peresmotre vstupivšix v zakonnuju silu sudebnyx aktov [Free and Easy Instability. On Destinies of Public Interest in Review of Judgments Which Have Become Final] () Vestnik Sankt-Peterburgskogo universiteta. Pravo [Herald of the Saint-Petersburg University. Law], at : ‘Russian nadzor, having lost any chance of being converted into foreign languages, is now simply called nadzor, just like “sputnik” and “perestroika”, but unlike them, it it is not a symbol of progress’. On fate of nadzor in the region, cf. Nazar Stetsyk, ‘Supervisory Review in Post-Soviet Legal Systems: Forward to the Rule of Law or Back to Soviet Survivals?’ () Wrocławsko-Lwowskie Zeszyty Prawnicze . Cf. also Anatole I. Kovler, ‘L’instance de supervision (Nadzor) dans la procédure civile en Russie. Regards de Strasbourg’ () Revue internationale de droit comparé ; Kirill Koroteev and Sergey Golubok, ‘Judgment of the Russian Constitutional Court on Supervisory Review in Civil Proceedings: Denial of Justice, Denial of Europe’ () Human Rights Law Review . ECtHR October , Brumarescu ˘ v. Romania, No. /; July ; Sovtransavto holding v. Ukraine, No. /; March ; Ro¸sca v. Moldova, No. / as well as July ; Ryabykh v. Russia, No. / etc. Paras – and – of the Report on the Independence of the Judicial System Part I: The Independence of Judges adopted by the Venice Commission at its nd Plenary Session (Venice, – March ) (CDL-AD()-e), see www.venice.coe.int/webforms/documents/?pdf=CDL-AD()-e. On the fate of the supreme courts’ guidelines in the region cf. Nazar Stetsyk, ‘Case Law of the Supreme Courts in Post-Soviet Legal Systems’ () Journal of the University of Latvia. Law at –. Cf., for example, Musabek T. Alimbekov (ed.), Juridičeskaja priroda normativnyx postanovlenij Verxovnogo Suda Respubliki Kazaxstan [Legal Nature of the Normative Resolutions of the Supreme Court of the Republic of Kazakhstan] (Astana, ) and the contributions published in the issues and of the Kazakh journal ‘Jurist’ (‘Lawyer’) in .
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judicial guidelines. In the case of Russia, for instance, the instructions issued by the Supreme Court and the Supreme Arbitrazh Court, although not officially recognised as a source of law, amount to a key means of legal development through judicial law-making. Other countries have abandoned this remnant of the Soviet legal tradition. Thus, Art. () of the Latvian law ‘On Judiciary’ of stipulated in its original version that ‘[t]he Plenum [of the Supreme Court] shall adopt explanations on the application of laws that are binding on the courts’. About two dozen guidelines were issued on this basis. Later on, however, the legislator not only abolished this provision with effect from December , but in addition the Constitutional Court of Latvia declared it unconstitutional on February . The Court argued that the institution of binding guidelines issued by supreme courts was introduced in the Soviet Union and was characteristic of a socialist legal system that ignores the separation of powers and served to impose the political guidance of the Communist Party on the lower courts. As such, this institution could not be reconciled with the principles of fair trial, separation of powers and independence of judges as entrenched in, or stemming from, Art. and of the Constitution of Latvia. . Legal Academia The transition from both a planned economy administratively managed by the state and an authoritarian government to a society with a market economy based on private property and freedom of contract, democratic institutions, rule of law and a strong independent judiciary necessitated a qualitatively new and significantly larger corps of legal professionals. Even by the s, but especially after the fall of the Soviet Union, legal education became the most popular route. Soaring demand, coupled with the liberalisation and commercialisation of education systems, led to a mushrooming of law faculties and an exponential growth in enrolment. Yet at the same time, the attractiveness of academic careers diminished dramatically. Poor salary conditions meant that those who were still prepared to teach had to do so at several universities, tutor, or take side jobs in practice. Corruption in education institutions flourished. The urgent need for ground-breaking revision of the content of legal education topped it all, given that a majority of the existing disciplines had to be redesigned almost completely and many new subjects had to be embraced. Marxist-Leninist teachings had to give way to new philosophic perspectives and the focus had to shift from training predominantly prosecutors, investigators and the like to producing in-house lawyers, counsel and civil officers, etc. New textbooks were needed. This left national education systems with an almost impossible task, as professors who had been trained in the Soviet times – or rather those of them who remained in academia despite the lack of incentives – had to offer a conceptually new legal training to a vastly increased student population with drastically changed preferences and expectations. They faced an uphill struggle, with no articulated vision as to the contents, objectives and methods of the new type of training, a lack of up-to-date teaching materials and the backdrop of a rapidly changing legal environment. It is only natural that the extreme surge in graduates at the beginning of the s was accompanied by a steep decline in the quality of training, with the state of legal education
Andrey Shirvindt, ‘Zum Verhältnis von Gesetzgebung und höchstgerichtlichen Richtlinien in einer postsozialistischen Rechtsordnung: am Beispiel der Erläuterungen vom Obersten Gerichtshof Russlands zur Reform des Zivilgesetzbuches’ () Deutsch-Russische Rechtszeitschrift . Decision of the Constitutional Court of the Republic of Latvia of February in case No. --. English translation available at www.satv.tiesa.gov.lv/wp-content/uploads///--_Spriedums_ENG.pdf.
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commonly described as deeply critical. Myriad law faculties opened at specialised teaching institutions whose main profile was in no respect related to law. Numerous local branches of universities offering legal training appeared. In such cases, the teaching provision was not backed by qualified staff except for rare instances, for example if a professor from a renowned university agreed to take up a part-time position. According to some assessments, while in the USSR legal training was provided by fifty-two higher education institutions, the number of providers in Russia alone amounted to in ; in ; and in , more than half of them being private facilities. The government campaign aimed at ‘cleaning up’ substandard institutions from the legal education system in the s has brought about a considerable reduction in numbers, but the overall amount remains quite impressive. Enrolment rates skyrocketed as well, rising from approximately , to , graduates annually in Russia from to . Roughly estimated, since the sum total of lawyers in Russia has gone up at least tenfold – reaching . million in . In other countries, for instance Azerbaijan, Georgia and Kazakhstan, the respective numbers have also grown. It is a thread common to many national discourses that there is an overproduction of lawyers in terms of quantity but that the quality of training leaves much to be desired for a majority of graduates. These developments have only reinforced and broadened the Soviet tendency towards unevenness in the quality of legal education. Though formally equal, law degrees can be based on a variety of distance and evening learning programmes, a type of training inherited from the previous era, on the one hand, or earned from an institution that is hardly equipped to ensure an adequate level of training, on the other. The peculiar yet hidden interweaving, or interplay, of different Soviet legacies is illustrative of how far-reaching the implications of these features of the legal education systems may be. By the
On legal education in Azerbaijan, cf. Charles Robert Davidson and Nancy Sharp Nti Asare, ‘Legal Education in Azerbaijan: Past, Present and Future Challenges’ in Christopher P. M. Waters (ed.), The State of Law in the South Caucasus (London: Palgrave Macmillan, ), pp. –; Azar Aliyev, ‘The Impact of the Court of Justice of the European Union on Azerbaijan’ in Arie Reich and Hans-W. Micklitz (eds), The Impact of the European Court of Justice on Neighbouring Countries (Oxford: Oxford University Press, ), p. : ‘Azerbaijani science and education was severely damaged in the s. Even the oil boom of the s could not improve the situation. On the contrary, talented young lawyers were in demand in the private sector and they had no interest in remaining in the law schools. However, the situation is changing slowly but steadily’; Georgia: Caucasus Research Resource Center – Georgia. The Judicial System in Georgia: Views of Legal Professionals, July , pp. –, –, see https://crrc.ge/uploads/ tinymce/documents/Projects/CRRC-PROLoG_StudyofLegalProfessionalsReport_Oct_ENG.pdf; Christopher P. M. Waters, Counsel in the Caucasus: Professionalization and Law in Georgia (Leiden: Brill, Martinus Nijhoff, ), p. –; Kazakhstan: Alua S. Ibrayeva et al.,‘Development of the Legal Science of Kazakhstan: Problems and Prospects’ () Journal of Actual Problems of Jurisprudence ; Russia: Timur Ju. Bočarov and Arina V. Dmitrieva, Juridičeskoe obrazovanie v Rossii I za rubežom: meždu universitetom, professiej, gosudarstvom i rynkom [Legal Education in Russia and Abroad: Between University, Profession, State and Market] (Moscow: Norma, ), pp. –; Jaščuk, above n. , pp. –. Jaščuk, above n. , p. –. Bočarov and Dmitrieva, above n. , pp. –. Jaščuk, above n. , p. . Bočarov and Dmitrieva, above n. , p. . Davidson and Sharp Nti Asare, above n. , pp. –. Waters, above n. , p. –. Ibrayeva et al., above n. , p. . Ibrayeva et al., above n. , p. who advocate for the abolition of distant legal education in Kazakhstan. In Russia, a strategy of abandoning distance and evening education has been in place since the late s (Bočarov and Dmitrieva, above n. , pp. –). Ibrayeva et al., above n. , p. : in Kazakhstan ‘[m]ost higher education institutions which train lawyers are not professional. Many graduates of legal higher education institutions cannot find work due to low-quality preparation’.
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mid-s, well over half of Russian judges had obtained their law degrees through distance learning ( per cent) or evening classes (. per cent). At the same time, more than two thirds of the candidates who were recommended for the office of judge in – had jobs in court administration as the main, or even sole, practical experience behind them. As such, Sovietstyle distance learning and the actual recruitment policies of the judiciary produce results that deviate substantially from the declared model. It is the courts themselves rather than academia that, to a significant extent, take on the training of future judges. This, in turn, allows for a preselection of candidates based on non-transparent criteria, where loyalty to superiors might arguably play some role, especially given that a supporting letter of reference from the president of the court is statistically of decisive weight. Over the last three decades, attempts to adapt Soviet academia to the changed agenda have co-existed alongside a chaotic growth of new facilities and an array of experiments. Apart from a few exceptions, it was mainly the former that had dominated the field. Inherited centres of research and teaching with law professors trained in the Soviet era have continued to shape the face of legal academia in the region. The gradual transformation of the Soviet legacies, coupled with generational change (delayed by the gap of the s–s when young people refrained from academic careers, but increasingly gaining momentum now), led inevitably to a final departure from the Soviet heritage. Yet, it seems too soon to celebrate the birth of a brand-new legal academia considering that few countries in the region can claim to have developed a clear vision and a stable working model thereof. . Private Law Given the modest and very specific role of private law in Soviet times, it was an immense challenge for the former Soviet republics when at the turn of the s they needed to swiftly reinstate private laws based on private property and contractual freedom. Accordingly, a new approach to, and a new legal framework for, public asset management in the context of the expanding domain of private property and emerging market economy became necessary. From what has been said, it is self-evident that property law, including the law of rights in rem, contract law and the law of obligations in general, as well as the law of legal persons, had to be redesigned almost entirely. This is, of course, not to mention the need to set up a whole range of major areas of law that were virtually absent previously but of paramount importance now – for instance consumer law, insolvency law and land registry law.
Volkov et al., above n. , pp. –. Arina Dmitrieva and Denis Savel’ev, Istočniki popolnenija sudejskogo korpusa RF i rol’ apparata sudov [Sources of judicial personnel in the Russian Federation and the role of the administration of courts], , p. et passim, see https://enforce.spb.ru/images/infographics/IRL_judiciary_of_Russian_Federation.pdf. Ibid., p. . The developments and the state of the legal academia depicted here are largely in keeping with the larger picture of the post-Soviet education systems in general: Jeroen Huisman, Anna Smolentseva and Isak Froumin (eds), Years of Transformations of Higher Education Systems in Post-Soviet Countries (Cham: Palgrave Macmillan, ). For a recent account of there-establishment of private laws in the region, see a collective volume with contributions of experts from all the fifteen countries: Lidija Ju. Mixeeva (ed.), Častnoe pravo v stranax byvšego SSSR: itogi -letija [Private Law in the Countries of the former Soviet Union: Thirty-Year Results] (Moscow: Statut, ). Cf. also Rolf Knieper, Lado Chanturia, Hans-Joachim Schramm, Das Privatrecht im Kaukasus und in Zentralasien: Bestandsaufnahme und Entwicklung (Berlin: BWV, ).
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Quite importantly, it was not only a brand-new system of rules that had to be introduced by the legislator. It was also essential that the judiciary and professional community at large adopted new values and reconsidered the social functions of private law. They had to rethink numerous concepts that, although formally identical to those previously employed by the Soviet legal discourse, changed meaning in this new context. The creation of rules and institutions went hand-in-hand with rapid, largely spontaneous and often unforeseeable changes in the economy and society in general. Little went according to plan. Obviously, massive factual developments had their own trajectories and did not wait for carefully thought through regulations. Very often the legal system had to adjust to the conditions of the moment and was forced to act at lightning speed, driven by unfolding events. Even if the legislator hesitated, day-to-day contractual practice and the courts could not afford to remain inactive and had to find fragmented solutions that often lacked uniformity. Moreover, the transformation processes passed through various stages. This meant that the solutions found, and the laws adopted, frequently became obsolete soon after their birth. This is the setting that has largely shaped the national civil laws of post-Soviet countries and has left deep marks still noticeable today. Typically, post-Soviet countries have witnessed an exponential growth of chaotic piecemeal legislation on private law matters. The statutes adopted were often of poor technical quality and did not form any coherent system. One source of inconsistencies was that the drafters had sometimes adopted approaches recommended by foreign and international experts with differing backgrounds too easily. The traditional response to this statutory chaos was codification. Civil Codes were adopted by all fifteen countries in the s and s: Armenia (); Azerbaijan (); Belarus (); Estonia (, , , , ); Georgia (); Kazakhstan (, ); Kyrgyzstan (); Latvia (, , ); Lithuania (); Moldova (); Russia (, , , ); Tajikistan (, , ); Turkmenistan (); Ukraine (); and Uzbekistan (, ). Approaches of the national legislators ranged from the reintroduction of a historical code (Latvia) to drafting a new code partly based on the Soviet tradition and to some extent borrowing from the most respected and most recent models – namely the civil codes of Germany, the Netherlands and Quebec (the Model Civil Code for the CIS and the majority of the countries in the region) – simply drawing from multiple models (Estonia), or relying mainly on one model (Georgia and Turkmenistan taking inspiration from the German BGB). Yet, it was too soon to claim that national systems of civil law had reached a stable point in their development. In many respects, the civil laws entrenched in the codes were transitional in nature – suitable at a certain stage but not meant as the final point of transformation. The codes were a major breakthrough in the formation of a new statutory framework which left behind the legislative disorder of the years immediately after the fall of the Soviet system and provided for an array of working regulations. However, alongside the fields where the solutions of the codes complied with the standards of a modern private law based on private property and freedom of contract, there were spheres obviously calling for substantial and often immediate amendment. Despite the measures taken to uphold the coherence of the system and the central role of the codes, it was, thus, only natural that piecemeal legislation and case law continued to develop beyond the codes and unsystematic amendments to the codes themselves grew in number.
On thetroublesome adjustment of the concept of ownership in post-Soviet Russia, see Eugenia Kurzynsky-Singer, Transformation der russischen Eigentumsordnung (Tübingen: Mohr Siebeck, ). Reintroduction of an amended version of the Civil Code of .
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Accordingly, shortly after the adoption of the codes, their large-scale reform came up on the agenda. The principal goals were to bring core areas of the civil law back under the codes and to make further steps in the transformation process where necessary. Speaking of the principal parts of the civil law that needed ground-breaking revision, one can observe that developments took different paths in property law, contract law and the law of legal persons. While reforms of contract law and the law of obligations proved to be relatively straightforward, at least at the statutory level, the other two matters have caused and still cause significant problems. Post-Soviet countries have clearly stated their commitment to contractual freedom and have introduced extensive contract laws and laws of obligations – often adopting state-of-the-art approaches. Inspiration was drawn from various esteemed sources like the United Nations Convention on Contracts for the International Sale of Goods of , the UNIDROIT Principles of International Commercial Contracts and many others. Specific contracts and payment methods stemming from foreign and international commercial practices like leasing, franchising, factoring, independent guaranty and letters of credit were entrenched in the codes. Later reforms in this field were not rare but predominantly entailed fine-tuning amendments. The creation of a statutory framework for a modern contract law was, at least in theory, largely accomplished through the adoption of the codes in their original versions. A look at the case law and commercial practice reveals a less rosy picture. Not surprisingly, the courts and academia needed time to adopt the new philosophy of contractual freedom and to assimilate its methodical and practical implications. Another closely related challenge was, and still is, to identify and master various tools of policing unfair contract terms. Much less homogenous and much more complicated is the situation of the law of persons and property law. First, one of the fundamental questions for every post-Soviet country was, insofar as problems with these two fields of law belong together, how to deal with the specific types of legal persons and rights in rem that, under the socialist system, constituted the legal machinery of public property management. Some former Soviet states abandoned these socialist legacies right away and replaced them with novel institutions (the Baltics, Georgia), while others are still looking for an acceptable solution, in the meantime using these peculiar remnants of the past and testing experimental models (Kazakhstan, Russia). In any event, reconsidering state participation in the economy and the legal forms it takes remain overarching topics for the whole region. This has led to a pronounced mutual interest between different formerly Soviet countries, and international exchange and cooperation projects focused on regional comparison as an aid to legislative reform. Second, the massive privatisation, and restitution (as in the Baltics), of previously public property that marked the transition to the new societal system was particularly sensitive and
See the discussion of the reform of civil codes as a common challenge to all post-Soviet states that have extensively borrowed from the Model Civil Code of the CIS (Lado Čanturija, O neobxodimosti reformy graždanskix kodeksov v gosudarstvax SNG [On the Necessity of Reform of the Civil Codes in the CIS States], () () Vestnik Permskogo universiteta. Juridičeskie nauki [Herald of the Perm University. Legal Sciences] . On the large-scale reform of the Russian Civil Code that started in , see Andrey Shirvindt, ‘Reforming the Russian Civil Code – A Search for Better Law-Making’ in Jürgen Basedow, Holger Fleischer and Reinhard Zimmermann (eds), Legislators, Judges, and Professors (Tübingen: Mohr Siebeck, ), pp. –. For an overview of Russian experiences with freedom of contract and unfair contract terms see Artyom Karapetov and Andrey Shirvindt, ‘Freedom of Contract in Respect of Price Terms in Russian Law: With a Special Focus on Price Terms in Standard Form Contracts’ in Ye¸sim M. Atamer and Pascal Pichonnaz (eds), Control of Price Related Terms in Standard Form Contracts (Cham: Springer, ), pp. –. Cf., for example, Majdan K. Sulejmenov et al. , O ponjatii i pravovom statuse juridičeskix lic publičnogo prava v zakonodatel’stve nekotoryx razvityx inostrannyx gosudarstvax [sic] i byvšix sovetskix respublikax [On the Concept and
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controversial in respect of land. From a purely technical legal point of view, the necessary steps were to acknowledge private property of land, fix a design for the right of ownership and develop a system of lesser rights in rem. Where the legislator hesitated, or still hesitates, to make the ultimate political decision and resorted to half-measures, unseen legal forms mushroomed. Thus, the Russian government, at first reluctant to allow for outright private property in land, introduced singular half-way property rights as an interim compromise and vested the building owners with unclear titles in plots underneath their real estate. Additionally, the interplay between legislation, case law and commercial practice produced several variations of leasecontract that are functionally equivalent to the missing rights in rem. Solutions adopted by various countries oscillate between the swift installation of a system of rights in rem inspired by the civilian tradition and the invention of specific domestic forms understood as more or less interim. The co-existence of provisional legal institutions with different pedigrees and fuzzy outlines, competition between and incoherence of applicable statutes, as well as the tendency to develop statutory frameworks outside civil codes and frequent reforms are, thus, characteristic of post-Soviet experiences with real-estate law. Third, the rise of legal persons serving private businesses (including foreign investors), public owners and non-profit endeavours of all kinds was accompanied by chaotic law-making informed by powerful stakeholders, advisors with different geographic and professional backgrounds, as well as the frequent prevalence of political choices over technical legal considerations. Here again, multifarious forms of legal persons came and went. Specific institutions of Soviet provenience co-existed alongside those inspired by various foreign models and domestic inventions. Excessive diversity and richness of forms were coupled with frequent profound reforms and an unorderly growth of statutory law. The initial approach taken by the Model Civil Code for the CIS and adopted by many national legislations was to provide for the extensive statutory regulation of the law of legal persons within the civil code. Subsequent developments of this field of law have, however, unfolded mainly outside the codes – meaning that the tension between recodification and decodification of the law of legal persons has become topical in many countries. At this point it should be emphasised that the clearest legacies of the Soviet era and the marks or unsolved problems of transition highlighted here are not the only dominant features shaping the physiognomy of post-Soviet legal systems. In many contexts, the Soviet and transitional past are scarcely noticeable, if at all. An external observer, when looking at the statutory and case law, the textbooks and scholarly discussions, the conceptual framework and patterns of legal
Legal Status of Legal Persons of Public Law in the Legislation of Certain Developed Foreign Countries and Former Soviet Republics], , see https://online.zakon.kz/Document/?doc_id=. On the developments in Russia, see Koncepcija razvitija zakonodatel’stva o veščnom prave [Concept for the Development of Legislation on Property Law], () Vestnik Vysšego Arbitražnogo Suda Rossijskoj Federacii [Herald of the Supreme Arbitrazh Court of the Russian Federation] –; Marija A. Aleksandrova et al., ‘Zaključenie kafedry graždanskogo prava SPbGU na proekt izmenenij razdela o veščnyx pravax GK RF’ [Expert Opinion of the Chair of Civil Law of the Saint-Petersburg University on the Draft Amendments to the Section of the Civil Code on the Rights in Rem], () Vestnik èkonomičeskogo pravosudija Rossijskoj Federacii [Herald of Economic Justice of the Russian Federation] –; Ekaterina Ju. Ivanova, ‘Problemy stroitel’noj arendy v sudebnoj praktike i proekt vvedenija prava zastrojki v otečestvennoe zakonodatel’stvo’ [Problems of the Lease for Construction Purposes in Case Law and the Bill on Introducing the Building Right into Russian Law], () Vestnik graždanskogo prava [Herald of Civil Law] –. On developments in Azerbaijan, Belarus, Moldova, Russia and Ukraine see cf., for example, contributions by Èl’čin Arif ogly Usub, Elena A. Salej, Sergiu B˘aie¸su, Tat’jana V. Efimceva and Natal’ja S. Kuznecova in Svetlana P. Moroz (ed.), Sub”ekty graždanskogo prava i reforma sistemy juridičeskix lic [Subjects of Civil Law and Reform of the System of Legal Persons] (Almaty, ).
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reasoning, or when talking to their colleagues specialised in private law, will often conclude that, to a considerable though varying extent, the respective laws are close relatives of their Western counterparts. Similarly, national academic communities tend to emphasise that their private laws belong to the continental European tradition, this self-identification being often accentuated in order to oppose borrowings from common law jurisdictions (the institution of trust is a prime and symbolic example). E. CONCLUSION
Deep and persistent legacies of the socialist era have induced some scholars to identify a postsocialist legal family or a socialist legal tradition that survived the demise of the Communist Bloc, a ‘socialist legal tradition without socialism’. In a similar vein, disregarding the continuities that link the fifteen legal systems of the post-Soviet region to their shared past leads to overlooking their distinctive features and results in distorted images based, in particular, on overstated formal similarities to (other) members of the civil law family. Numerous unresolved tensions and recurring topical issues common to these countries can only be understood against the backdrop of their historical developments and will often puzzle external observers from ‘old’ civil law cultures. Codification debates and the prominence of codes, the institutional design, the way of functioning, the role of the judiciary, the extent of professionalisation of law and the challenges to legal academia – as well as the current state of property law and the law of legal persons – provide only some, albeit prime, examples. The relevant historical background should not, however, be reduced to the Soviet era. Both pre-revolutionary heritage and the post-Soviet transition are also part of the picture. Histories of the fifteen countries bearing upon their present include the unprecedented and profound transformations of their legal systems (endured twice within a relatively short span of time), overt distancing from and hidden continuities with previous epochs and reconnections to prerevolutionary, or otherwise pre-Soviet, legal traditions. Many of the legacies that formerly Soviet countries have been largely determined to overcome in recent years, like legal nihilism, the utter instrumentalisation of and extremely positivist approach to law, and the semi-professional way of dealing with it coupled with a shortage of duly qualified lawyers as well as weakness of the judiciary, are rooted not in just one particular epoch of legal history but often in all of them at once. Even though a term that would do justice to these multi-layered traditions collectively still seems lacking, joint consideration of the formerly Soviet but also formerly tsarist and formerly post-Soviet countries remains a useful tool of legal comparison.
Husa, above n. : ‘To a greater or lesser extent, paradoxically, it would appear that we may claim that the socialist legal family is dead and buried, but the same does not apply to the socialist legal tradition’; Skoda, above n. , p. : ‘Une distinction à part entière apparaît à l’intériuer de la famille de droit romano-germanique, constituée par la famille des droits post-socialsites qui a succédé à la famille des droits socialistes [. . .]’; William Partlett and Eric C. Ip, ‘Is Socialist Law Really Dead?’ () New York University Journal of International Law and Politics ; Rafał Manko, ´ ‘Survival of the Socialist Legal Tradition? A Polish Perspective’ () Comparative Law Review ; Alan Uzelac, ‘Survival of the Third Legal Tradition?’ () Supreme Court Law Review . Accordingly, it has been argued, the need for a scholarly discipline previously focused on socialist laws is still there (Stefan Pürner, ‘Der ‘rote’ Osten ist tot. Muss deshalb auch die Ostrechtswissenschaft sterben?’ in Herbert Küpper (ed.), Von Kontinuitäten und Brüchen: Ostrecht im Wandel der Zeiten. Festschrift für Friedrich-Christian Schroeder zum . Geburtstag (Frankfurt am Main: Peter Lang, ) pp. –).
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Latin America Isabel Zuloaga* and José Manuel Díaz de Valdés**
This chapter explores the current landscape of Latin American legal systems from a private law and public law perspective. The aim is to show the influences that have shaped each of these fields and their current state of development. The focus is on countries which are leading jurisdictions within the region, or that represent a particular trend or characteristic. Within the private law analysis, after a historical overview of the milestones in its formation process, some select topics are addressed. First, we consider how Latin American legal systems fit into the traditional categories of legal families; then, whether they can form a unique legal family; and, finally, current efforts to harmonise private law. The public law section centres on constitutional law and, in particular, on the New Latin American Constitutionalism (NLAC) movement. We identify the main features of the original NLAC Constitutions and then test them against the recent Chilean experience. The chapter concludes that interesting trends have developed within private and public law in the region but questions their distinctiveness and success.
A. INTRODUCTION
In Latin American jurisdictions, the division between private law and public law continues to dominate the analysis and treatment of legal trends and developments. This explains why it is difficult to find links between private and public law – traditional comparative law topics are not found in the same way in both the public law and private law spheres. For instance, the legal families classification has not traditionally been relevant in public law. Thus, this chapter separates the current landscape of Latin American legal systems into private law and public law and explores them from both perspectives. The aim is to show the influences that have shaped each of these fields and their current state of development. The focus is on countries
* Assistant Professor of Civil Law at the Faculty of Law of Universidad de los Andes (Chile). Doctor of Philosophy in Law (DPhil) from the University of Oxford. ** Professor of Constitutional Law at the Faculty of Law of Universidad del Desarrollo and at the Faculty of Law of Pontificia Universidad Católica de Chile. Doctor of Philosophy in Law (DPhil) from the University of Oxford. All websites cited in this chapter were last accessed on February .
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Latin America
which are leading jurisdictions within the region, or that represent a particular trend or characteristic. Within the private law analysis, we first conduct a historical overview of the milestones in its formation process and then address some select topics. In particular, we consider how Latin American legal systems fit into the traditional categories of legal families and whether they can form a unique legal family. We then look at the movement to unify Civil Law and Commercial Law that has taken place in some jurisdictions in the region and, finally, we review current efforts to harmonise private law. The public law section centres on Constitutional Law and, in particular, on the New Latin American Constitutionalism (NLAC) movement, as this is where we find a distinct Latin American trend that has led to intra-regional reception. We identify the main features of the original NLAC constitutions and then test them against the recent Chilean experience. B. PRIVATE LAW
. Historical Overview (a) Pre-Colonialism and Colonisation Before their colonisation by European empires, particularly Spain and Portugal, what are now Latin American countries were governed by the indigenous laws of the different tribes that inhabited each territory. The level of development of these laws varied greatly but some reached very high levels of sophistication, particularly the Mayas and the Aztecs. With the colonisation of large parts of the Americas by the Spanish empire from (spreading to North, Central and South America), Spanish law began to govern the conquered territories. However, it is important to understand that the term ‘Spanish law’ involved legislation that was specially drafted to be applied to the newly discovered territories, such as the Capitulaciones de Santa Fe of April , and the Castilian law of the reign of the Catholic Monarchs. This Spanish law (Derecho indiano) had priority in its application to the new territories, but it did not eliminate the indigenous law and customs that were not in conflict with Spanish and Canonical law. The Portuguese empire colonised what is now the territory of Brazil, and consequently, Portuguese law became the governing law. However, Portuguese law was made up of many
We use the terms ‘empires’ and ‘colonies’ for descriptive purposes, but caution that there is debate about the accuracy of this terminology. Some prefer to refer to the European ‘monarchies’ and American ‘kingdoms’, for example, Eduardo Andrades Rivas, El Ocaso del Reino: Origen del Mito Fundacional de la República de Chile (Madrid: Dykinson, ). Jan Kleinheisterkamp, ‘Development of Comparative Law in Latin America’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, nd ed., ), p. at p. ; José Luis Soberanes Fernández (ed.), Memoria del II Congreso de Historia del Derecho Mexicano () (Mexico: Universidad Nacional Autónoma de México, ). Castilian law was in turn formed by a disorganised mixture of Royal law, Roman law and Canonical Law; see Alejandro Guzmán Brito, La Codificación Civil en Iberoamérica: Siglos XIX-XXI (Lima: Jurista Editores, nd ed., ), pp. –; Kleinheisterkamp, above n. , pp. –. Guzmán, above n. , p. ; Kleinheisterkamp, above n. , p. ; Jorge Sánchez Cordero, ‘The Reception of Legal Systems in the Americas: Diversities and Convergences’ () Tulane European and Civil Law Forum at . Their claim to it was settled by the Tratado de Tordesillas of , signed between representatives of the Spanish and Portuguese monarchs.
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Isabel Zuloaga and José Manuel Díaz de Valdés
different types of norms which resulted in a complex and confusing legal system. There were several attempts at consolidation in different Ordenações, until the Lei da Boa Razão, which established a hierarchy in the applicable law, subject to the principle of rationality. (b) Independence The independence movement from colonial empires in Latin America took place between (with Haiti’s independence from France) and (with the battle of Ayacucho which secured the independence of South America). In , Brazil proclaimed its independence from Portugal without the need for a war. Despite the new states’ political independence, there was a continuity in the law in force before and immediately following their independence. However, there was much criticism of this ‘inherited’ law, especially the significant amount of legislation, its incoherent and scattered nature, the fact that large sections of this law were in disuse, and the out-of-date language it was written in. These features, among others, led to difficulties in knowing what the law was, uncertainty when applying it and, overall, resulted in a faulty administration of justice. There was also a strong criticism of the Derecho patrio generated by the new states, mainly due to its inorganic and contingent character and the fact that it had increased pre-existing confusion as to which was the applicable law. Thus, there were strong incentives to codify the private law of each new state, and the newly formed republics looked to Europe for inspiration. Spanish private law was not codified at the time (although commercial law was codified in , the Código Civil was only enacted in ) and, in any case, it was the law of the former colonial power, which was considered feudal, despotic and inherently contradictory to the newfound freedom of Latin American states. The French Civil Code of was the great model for the civil codes of the Romanistic legal family, among which the states of Central and South America (and Mexico in North America) are considered to belong. There are many reasons that explain the reception of the Code civil in Latin America. In chronological terms, it was the only available model of codification at the time. But also, with regard to its substance, Latin
For instance, Visigoth law, Castilian law, Royal law, Roman law and Canonical law; see Silvio de Bastos Meira, ‘O Direito Colonial no Brasil’ in José Luis Soberanes Fernández (ed.), Memoria del II Congreso de Historia del Derecho Mexicano () (Mexico: Universidad Nacional Autónoma de México, ), p. at pp. –. Kleinheisterkamp, above n. , p. ; de Bastos Meira, above n. , pp. –. Alejandro Guzmán Brito, ‘La influencia del Código Civil francés en las codificaciones americanas’ in Christian Larroumet and Mauricio Tapia (eds), L’avenir de la codification en France et en Amérique latine (Paris: Association Andrés Bello des juristes franco-latino-américains, ), p. . Guzmán, ibid., p. . As Guzmán, ibid., explains, in the former Spanish territories there was an order of precedence in the law, established by the Ordenamiento de Alcalá in , revised in by the Ley I de Toro (compiled in the Nueva Recopilación of and then in the Novísima Recopilación of ), which made the law of Castile applicable to the American territories. After their independence, the new national law generated by the new independent states (Derecho patrio) took the first order of precedence. Guzmán, ibid., pp. –; Kleinheisterkamp, above n. , p. ; Sánchez, above n. , pp. –. Guzmán, above n. , p. . Guzmán, ibid.; Fernando Hinestrosa, ‘El Código Civil de Bello en Colombia’ () Revista de Derecho Privado at . Also, Caffera, Momberg and Morales, Chapter (in this volume). Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir tr., Oxford: Oxford University Press, rd ed., ), pp. , . Zweigert and Kötz, ibid., p. . Although the Code of Prussia () and the Code of Austria () were also available at the time, their structure, which differed from the traditional system of the Institutes of Justinian to which Latin American legal scholars were accustomed, and the fact that they were written in German, a language which was not widely spoken in Latin America, did not make them attractive, Guzmán, above n. , p. .
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American drafters appreciated its quality and perceived it as being intellectually and culturally the most developed private law code of its time. The fact that it was written in French, a language closer to Spanish and that many American legal scholars were fluent in, was another attractive feature of the Code civil. An important political factor was that the Code civil was seen as reflecting the ideas of the French Revolution, which echoed deeply in the former Spanish colonies’ fights for independence. In addition, Napoleon was a figure that inspired many Latin American liberators and military chiefs who, after exchanging their military career for politics, felt that they should incorporate the Napoleonic Codes into the legislation of the new states whose governments they headed. As well as these practical and ideological reasons, the most important legal factor was that the Code presented concepts and institutions, stemming from Roman law, within an order and structure that were familiar to the way that this system was known and studied in Latin America. . How Latin American Legal Systems Fit into the Traditional Categories of Legal Families Traditionally, Latin American legal systems have been considered as belonging to the French Romanistic legal family. More broadly, Merryman views legal systems in Western Europe and Latin America as very much alike, as they are all more or less influenced by Roman law. However, it must be recognised that the ‘Romanistic’ character of the French legal system is rather misleading in that the French Civil Code of contains more Germanic legal ideas (from the droit coutumier that was one of its sources) than the BGB of , which in turn belongs much more to the Roman law tradition due to the influence of the Pandectists and the Historical School of Law. In this section we review the reception process of the original Code civil in Latin American legal systems, the Code’s influence over time and depending on the subject matter, and the features that these systems share with the leading jurisdictions of the civil law tradition, France and Germany. (a) Reception Although Latin American civil codes were generally heavily influenced by the Code civil, the degree of influence varied from state to state and also according to the time period when codification took place. A group of legal systems whose civil codes were very close to the Code civil, being to some extent translations of it, includes Haiti (Code civil de la Republique d’Haïti of
Zweigert and Kötz, above n. , p. ; Guzmán, above n. , pp. –. Guzmán, above n. , p. . Zweigert and Kötz, above n. , p. . Guzmán, above n. , p. . Zweigert and Kötz, above n. , p. ; Guzmán, above n. , p. . Zweigert and Kötz, above n. , pp. –. John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (Stanford: Stanford University Press, rd ed., ), pp. , –, . Zweigert and Kötz, above n. , pp. –. Zweigert and Kötz, above n. , p. ; Guzmán, above n. , p. . For a classification of Latin American codes into first-, second- and third-generation categories, see Agustín Parise, ‘Harmonisation of Private Law in Latin America and the Emergence of Third-generation Codes’ in Rodrigo Momberg and Stefan Vogenauer (eds), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law (Oxford: Hart Publishing, ), pp. –.
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Isabel Zuloaga and José Manuel Díaz de Valdés
), Bolivia (Código Civil Santa Cruz of ) and the Dominican Republic (Code civil of , enacted in Spanish in ). They correspond to the initial period of Latin American codification (–), when the decision to simply adopt the Napoleonic Code was prevalent. A second group of legal systems are those of Perú and Chile, where French influence is still present – especially in the drafting of specific norms – but coexisting with other sources, in particular the pre-existing Castilian–Indian law, and operating within a structure that differs from that of the Code civil, being closer to the Roman system of the Institutes of Gaius and Justinian. This group corresponds to a second period of codification that began with the Project of Código Civil of Perú of (which became law in ) and culminated with the Chilean Código Civil of (which entered into force in ). The author of the Chilean Civil Code, Venezuelan Andrés Bello, took a Roman law-based approach to structuring and drafting the code which, consequently, belongs to the Roman law legal tradition. He relied on different sources, among which the Code civil had great influence, particularly with regard to the law of obligations, and he also drew inspiration from French legal scholars (especially Pothier). However, other important sources were the Siete Partidas (a thirteenth-century compilation of Castilian law), the Corpus Iuris Civilis (a sixth-century Justinian Roman law codification), the writings of legal scholars (from Germany, especially Savigny, and from the common law, particularly Bentham), and the Prussian and Austrian Civil Codes. A third group of legal systems is that of Uruguay and Argentina, where the drafters took inspiration from an eclectic collection of sources, among which the Code civil did not occupy a prevalent place. The Civil Code of Argentina of was drafted by Argentinian legal scholar Dalmacio Vélez Sarsfield, who had also participated with Uruguayan legal scholar Eduardo Acevedo in the drafting of the Argentinian Commercial Code of . The sources of the Argentinian Civil Code are varied, ranging from the Code civil, French legal scholars (such as Aubry and Rau), German legal scholars (such as Savigny, from whom indirect Roman law influence was received), the Chilean Civil Code, Castilian law, García Goyena’s draft Spanish Civil Code of , and preparatory materials of the Brazilian Civil Code (especially those of Augusto Teixeira de Freitas). This third group corresponds, in turn, to a third period of codification that began with the Civil Code of Uruguay of and the Argentinian Civil
It was in force until (with the exception of one year when the Código Ballivián was in force from November until November ) when the current Civil Code (Código Banzer) entered into force. The three different civil codes take the names of the presidents under whose presidency the respective code was enacted. See Salvador Romero Ballivián, ‘Una Visión Sintética sobre la Evolución de la Codificación Boliviana’ in Christian Larroumet and Mauricio Tapia (eds), L’avenir de la codification en France et en Amérique latine (Paris: Association Andrés Bello des juristes franco-latino-américains, ), pp. –; Guzmán, above n. , pp. , –. Zweigert and Kötz, above n. , p. ; Guzmán, above n. , pp. –. Guzmán, above n. , pp. –, . Guzmán, above n. , pp. –. Guzmán, above n. , p. . Alejandro Guzmán Brito, Andrés Bello Codificador: Historia de la Fijación y Codificación del Derecho Civil en Chile, vols. (Santiago: Ediciones de la Universidad de Chile, ) vol. I, p. . Guzmán, above n. , pp. –. Guzmán, above n. , p. ; Guzmán, above n. , p. ; Zweigert and Kötz, above n. , p. ; Gerardo Caffera, Anglo-American Legal Ideas in the Formation of South-American Private Law: - (unpublished Ph.D thesis, University of Oxford, ). For the sources of each of the articles of the Chilean Civil Code, see Carlos Amunátegui Perelló, Código Civil de Chile: Edición Anotada, Concordada y con Fuentes (Valencia: Tirant lo Blanch, ). Guzmán, above n. , p. . Zweigert and Kötz, above n. , p. ; Kleinheisterkamp, above n. , p. . Zweigert and Kötz, above n. , pp. –; Kleinheisterkamp, above n. , p. .
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Code of , and ended at the beginning of the twentieth century, when the fourth period of codification began. The fourth period is characterised by the decline in the influence of the Code civil, which continued throughout the twentieth century. A leading example is the codification process in Brazil, which took place at the beginning of the twentieth century, when the German Civil Code (BGB) had already come into force in . Although the structure and sources of the first Brazilian Civil Code of were mainly of Pandectist origin, some argue that the BGB itself did not seem to have had much impact on the content of the Brazilian code. What is not subject to debate is that German influence continued and intensified in the second and current Brazilian Civil Code of . An important phenomenon that took place during the second half of the nineteenth century is the influence that the ‘older’ Latin American civil codes exerted on the codification processes of other Latin American countries. Here, we find a form of intra-regional reception. In this respect, the Chilean Civil Code was particularly influential. Some countries adopted it in its entirety with only minor changes, for instance, El Salvador (in ), Ecuador (in ), Nicaragua (in ), Colombia (in ), Panama and Honduras (in ). It also had great influence on the Civil Codes of Venezuela () and Uruguay (). Other examples are the Argentinian Civil Code of , which was received by Paraguay in , and the Project of Código Civil of Perú of (that became law in ), which was adopted by Guatemala in . The degree of influence of the Code civil varied not only from a chronological perspective but also depending on the subject matter. The treatment of contract law in the Napoleonic Code followed the droit écrit, which was ‘nearly pure Roman law’. This led the Latin American drafters of the civil codes to follow the French Code civil in their reception of the law of contracts and obligations. However, in other areas, the drafters declined to follow the French solution and adhered to Roman law. This is clear in the system adopted for the conveyance of property, which distinguishes between the title that allows the transfer of ownership (título de transferencia del dominio, typically a sales contract) from the manner of acquiring ownership
Guzmán, above n. , p. . Particularly visible in having a ‘General Part’, following the BGB. Especially the BGB and the Swiss Civil Code of . Also relevant was Teixeira de Freitas’ Esboço and pre-existing law. Other sources are the Portuguese Civil Code of and the Italian Civil Code of (through which there is an indirect influence of the Code civil). See Zweigert and Kötz, above n. , p. ; Guzmán, above n. , p. ; Kleinheisterkamp, above n. , p. . Kleinheisterkamp, above n. , p. . Zweigert and Kötz, above n. , p. ; Guzmán, above n. , p. . Guzmán, above n. , pp. –. Miguel Luis Amunátegui Reyes, Don Andrés Bello y el Código Civil (Santiago: Imprenta Cervantes, ), pp. –. Because it was part of Colombia, Panama was governed by the Colombian Civil Code (based on the Chilean Civil Code) and this continued to be the case even when Panama separated from Colombia in . The Civil Code of Panama of was also based on the Chilean Civil Code. See Guzmán, above n. , p. ; Octavio del Moral, ‘El Código Civil de Bello en Panamá’ () Estudios Socio-Jurídicos at –. Guzmán, above n. , p. ; Zweigert and Kötz, above n. , p. ; Hinestrosa, above n. , at ; Sánchez, above n. , pp. –. Ramón Silva Alonso, ‘Vélez Sarsfield en el Nuevo Código Civil Paraguayo’ [] Revista de la Facultad de Derecho y Ciencias Sociales (U.N.A.), –, . Guzmán, above n. , p. . Zweigert and Kötz, above n. , p. . For example, Rodrigo Momberg, ‘The Process of Harmonisation of Private Law in Latin America: An Overview’ in Rodrigo Momberg and Stefan Vogenauer (eds), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law (Oxford: Hart Publishing, ), p. at .
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(modo de adquirir el dominio, typically the act of delivery called tradición). In this area, German influence is found in the real-estate registration system established by Bello in the Chilean Civil Code. Inheritance law is another area of civil law where Latin American drafters declined to follow the Code civil, remaining faithful to Castilian law or to other civil codes. (b) Commonalities with the Leading Civil Law Jurisdictions From a macro-comparative perspective, Latin American legal systems share with the FrancoRoman and Germanic legal families the use of Civil Codes that contain the general framework of their civil law, often using abstract legal norms or general principles that must be applied by lawyers and judges in a deductive exercise to solve specific cases. This framework, which aspires to be complete, reflects a systematic taxonomy of defined areas within the civil law (persons, legal act, property, obligations, contracts, civil liability, family and succession law) that operates under legal or doctrinal institutions, definitions and classifications. The primary source of law is also legislation and, as is true in France and Germany, but perhaps to a lesser degree in Latin America, the activity of legal scholars and judges in their interpretation of the written law has led to the effective existence of judge-made law. This is particularly true with regard to the law of delict, which in the original French Civil Code was regulated by only five articles (Arts. –) from which judges and legal scholars built a detailed system that was able to adapt to changes over time. Latin American Civil Codes followed this succinct regulation, but with a slightly more generous extension. Another example is found in the doctrine of abuse of rights, which is not expressly regulated in some Latin American Civil Codes, but is widely accepted by legal scholars and courts. The notion of good faith in contract law, only recognised in the Code civil (and the Latin American Civil
Zweigert and Kötz, above n. , p. ; Guzmán, above n. , p. . Rodrigo Barcia Lehmann, ‘La Influencia del Code Civil y del Derecho Alemán en el Sistema Patrimonial Chileno: Sistema de Derechos Reales y Personales’ in Juan Andrés Varas Braun et al. (eds), Estudios de Derecho Civil: Jornadas Nacionales de Derecho Civil – (Santiago: Abeledo Perrot Legal Publishing Chile, ) vol. I, p. . Such was the case with the Bolivian Código Civil Santa Cruz of , Guzmán, above n. , p. . For example, the Civil Code of Panama of follows in this matter the Spanish Civil Code of ; del Moral, above n. , at . Zweigert and Kötz, above n. , pp. , . In reality, however, these systems have needed the aid of specific legislation to cover issues that were not regulated by their respective Civil Codes, which has led to the ‘decodification’ phenomenon. See Atilio Aníbal Alterini, ‘Los Nuevos Códigos Latinoamericanos en el Siglo XXI’ in Christian Larroumet and Mauricio Tapia (eds), L’avenir de la codification en France et en Amérique latine (Paris: Association Andrés Bello des juristes franco-latino-américains, ), p. at pp. –. Zweigert and Kötz, above n. , pp. , ; Nicolo Lipari, Las Categorías del Derecho Civil (Agustín Luna Serrano tr., Madrid: Dykinson, ). Zweigert and Kötz, above n. , p. ; Jan Peter Schmidt, ‘The “Principles of Latin American Contract Law” Against the Background of Latin American Legal Culture: A European Perspective’ in Rodrigo Momberg and Stefan Vogenauer (eds), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law (Oxford: Hart Publishing, ), p. at pp. –. Now in articles (Arts. –) after the reform of the law of contract, the general regime of obligations and proof of obligations (Ordonnance no. - of February ) and the new articles introduced by Loi n - of August . Zweigert and Kötz, above n. , pp. –. For example, twenty-one articles in the Chilean Civil Code (Arts. –) and twenty articles in the Colombian Civil Code (Arts. –). For example, for Colombia, Hinestrosa, above n. , at ; for Chile, Fundación Fernando Fueyo Laneri, Estudios sobre Reformas al Código Civil y Código de Comercio. Tercera Parte: El Abuso del Derecho ante la Constitución (Santiago: Editorial Jurídica de Chile, ), p. .
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Codes that followed it) as a requirement in the performance of contracts, has been developed into a general principle of private law, which permeates all stages of the life of a contract. Another example can be found in the theory of enrichment without a cause (enriquecimiento sin causa), which has been recognised as a source of obligations, despite it not being mentioned in the Latin American Civil Codes that closely follow the Code civil. Moving from one legal family to another, or at least becoming closer to another legal family, is not an unusual phenomenon because the stylistic factors of a legal system can change over time. The examples of the Netherlands, Italy and Portugal, whose original Civil Codes followed the French Civil Code, but were considerably influenced by the German school of Pandectists and the BGB when reforming them, are well-known. In Latin America, the case of Brazil is to some extent similar. Although French influence was watered down in the Brazilian Civil Code of , it was still considered as belonging to the French legal family. However, after its reform in , influenced by German, Italian and Portuguese law, Brazilian civil law seems much closer to the German legal tradition. Also relevant are the cases of the current Código Civil of Bolivia of and the current Código Civil of Perú of , which were influenced by the Italian Civil Code of . . Whether Latin American Legal Systems Can Form a Unique Legal Family From a micro-comparative perspective, it becomes clear that in the Latin American Civil Codes there are significant departures from the Code civil, which leads us to query whether these legal systems still fit neatly within the French legal family. It seems that it is an ‘oversimplification’ to unambiguously put Latin American legal systems into the box of Franco-Roman legal families. Thus, the question arises of whether Latin American countries can form a separate, unique legal family or whether they remain a subvariant of French law. (a) Differentiating the Areas of Private and Public Law The first point that must be addressed is that the grouping of Latin American legal systems within a ‘parent’ legal family varies depending on the division between what is identified as ‘private’ and ‘public’ law. Also, much depends on the area of law one has in mind within the private or public law sphere and the time period that is used for the comparison. As is the norm in the civil law tradition, in Latin American legal education students are taught that, stemming
For example, for Colombia, Hinestrosa, above n. , at ; for Chile, Jorge López Santa María and Fabián Elorriaga De Bonis, Los Contratos: Parte General (Santiago: Legal Publishing Chile, th ed., ), p. . For example, for Colombia, Hinestrosa, above n. , at ; for Chile, Antonio Vodanovic Haklicka, Tratado de Derecho Civil. Fuentes de las Obligaciones, Parte Especial: De las Fuentes de Origen No Convencional, vols. (Santiago: Ediciones Jurídicas de Santiago, nd ed., ), vol. III, p. . Dutch Civil Code (Burgerlijk Wetboek) of , Italian Civil Code (Codice civile) of and Portuguese Civil Code (Código Civil) of . Dutch Civil Code of (Nieuw Burgerlijk Wetboek, NBW), Italian Civil Code of and Portuguese Civil Code of . Zweigert and Kötz, above n. , pp. –, , , argue that in the case of the NBW, it cannot be allocated either to the German or the Romanistic legal family, because it has a style of its own, founded on the European ius commune; in the case of Portugal, they wonder whether it still belongs to the Romanistic legal family; while they consider that Italy continues to belong to the Romanistic legal family. Guzmán, above n. , p. ; Schmidt, above n. , p. . See the text on notes – above and the text on note below. Kleinheisterkamp, above n. , p. . Zweigert and Kötz, above n. , p. .
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Isabel Zuloaga and José Manuel Díaz de Valdés
from Roman law, the first great classification of the law as a subject is between public and private law. It is important to note that the distinction between public and private law remains essential, as they are generally guided by different principles, although it must be conceded that some branches of the law fall into a grey area where principles and rules of private and public law coexist (such as Labour Law) and that sometimes public law has a direct impact on private law (as is the case in the phenomenon of the ‘constitutionalisation’ of private law). With regard to private law, following the French example – which laid down the basis of the division of private law in the narrow sense (codified in the Code civil of ) and commercial law (codified in the Code de commerce of ) – ‘private law’ in the wide sense of the term in Latin America came to be understood as being divided into two great areas: Civil Law and Commercial Law, each with its own Code. Although some countries have debated whether to unify private law in one code and some have indeed done so, the theoretical distinction between Civil Law and Commercial Law remains. Even though comparatists traditionally assert that private law in Latin American countries undoubtedly belongs to the Franco-Roman legal family, Civil Law is really the area where this appears to continue to be the case. Regarding Commercial Law, while the original Latin American commercial codes were influenced by solutions from French law and other countries belonging to the civil law tradition, the growing influence of the common law, especially from England and the United States, is clear. Regarding public law, its main traditional areas are Administrative Law and Constitutional Law (though a more contemporary approach may also include Public International Law, Regulatory Law and even Criminal Law). Although founded on its Hispanic past, Latin American Administrative Law incrementally parted from the Spanish model, following French (and to a lesser extent, German) doctrines, only to see a revival of the Spanish influence during recent decades. Similarly, Constitutional Law has followed mainstream liberal constitutionalism, particularly French and US versions. Thus, even though Latin American states have been very active in the enactment of Constitutions, their structure and contents have shown little deviation from ‘Western’ standards, until now – as we will discuss later.
Merryman and Pérez-Perdomo, above n. , p. . Also, Hernán Corral Talciani, Curso de Derecho Civil: Parte General (Santiago: Legal Publishing Chile, ) pp. –; Alejandro Vergara Blanco, ‘La Summa Divisio Iuris Público/Privado de las Disciplinas Jurídicas’ () Revista de Derecho Universidad Católica del Norte . For example, private autonomy is a principle that inspires private law while legality (‘legalidad’) is a principle that governs public law. See Corral, above n. , p. ; Enrique Alcalde, Principios Generales del Derecho: su función de garantía en el derecho público y privado chileno (Santiago: Ediciones Universidad Católica de Chile, ), pp. –; Vergara, above n. , pp. –. Corral, above n. , pp. –. See Hernán Corral Talciani, ‘Constitucionalización del Derecho Civil, Neoconstitucionalismo y Activismo Judicial’ () Revista de Derecho Aplicado LLM UC . Zweigert and Kötz, above n. , p. . See Section B (a) below. For example, Zweigert and Kötz, above n. , p. . Whether this assertion still holds is analysed in Section B (b) below. For example, the Bolivian Commercial Code of , the Brazilian Commercial Code of , the Argentinian Commercial Code of and the Chilean Commercial Code of . For details, see Kleinheisterkamp, above n. , pp. –. Cf. Nuria Belloso Martín, ‘El neoconstitucionalismo y el nuevo constitucionalismo latinoamericano: “dos corrientes llamadas a entenderse”’ () Cuadernos electrónicos de Filosofía del Derecho . Uwe Kischel, Comparative Law (Andrew Hammel, tr., Oxford: Oxford University Press, ), p. . Gabriel Negretto and Javier Couso, ‘Constitution-Building Processes in Latin America’ () International Institute for Democracy and Electoral Assistance . See Section C below.
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(b) A Latin American Legal Family? Several legal scholars argue that Latin American legal systems form a distinct group within the civil law tradition. For instance, Guzmán Brito refers to the subsystem or subfamily of IberoAmerican law, considering that the fact that Latin American jurisdictions received European influence and also influenced each other is sufficient for them to be identified as a legal subsystem. Spanish legal scholar Castán Vásquez highlights the legal transplant of Spanish law during the colonisation of the Americas as a uniting element of Latin American legal systems as a group or legal family. Romanist legal scholar Saccoccio, in turn, identifies a Latin American sub-legal system within the broader Romanistic legal tradition, characterised by a Latin American identity and a shared reception of the Corpus Iuris Civilis. By the end of the nineteenth century, the drafter of the Brazilian Civil Code, Clovis Bevilacqua, had already argued that Latin American legal systems were sui generis and could not be classified within the three categories of legal families developed at the time by Glasson (strong Roman law influence, exempt from Roman law influence, and combined Roman and Germanic influence), ‘because they combined a Spanish and Portuguese heritage with European (and notably French) legal influence while displaying a “strong boldness” typical of young nations’. A question that comes to mind when discussing the topic of legal families is whether the idea of a legal family serves a purpose. We agree that the idea serves an explanatory purpose, but we also believe that it has an additional utility when conducting comparative research, especially at the crucial step of selecting the jurisdictions which will be the object of study. Although different criteria (not only legal but also sociological, economic and historical, for example) can be used to connect different legal systems, we agree with Zweigert and Kötz’s view that the notion of the ‘style’ of a legal system is critical when grouping them into legal families. The meaning of ‘style’ as ‘a congeries of particular features which the most diverse objects of study may possess’ may be criticised for being too vague, but it provides much-needed flexibility and fluidity when categorising legal systems into families, especially because the weight given to these stylistic factors varies according to the circumstances. The essential factors that they identify (historical background and development, predominant and characteristic legal mode of thought, especially distinctive institutions, types and use of legal sources, and ideology) can be used to determine whether Latin American legal systems can be considered as a unique legal family.
For an analysis of European authors, especially Spanish, see Diego P. Fernández Arroyo, ‘Sobre la Existencia de una Familia Jurídica Latinoamericana’ () Revista da Faculdade de Direito da UFRGS . Guzmán, above n. , pp. –. See Section B (a) above. José María Castán Vásquez, ‘El Sistema de Derecho Privado Iberoamericano’ () Estudios de Derecho at , –. Antonio Saccoccio, ‘Il Sistema Giuridico Latinoamericano: Storia di una Storia’ in Antonio Saccoccio and Simona Cacace (eds), Sistema Giuridico Latinoamericano (Torino: G. Giappichelli Editore, ), p. at pp. , –. Kleinheisterkamp, above n. , p. ; Fernández, above n. , at . Mariana Pargendler, ‘The Rise and Decline of Legal Families’ () American Journal of Comparative Law at . Zweigert and Kötz, above n. , p. , citing David. Zweigert and Kötz, above n. , p. . Zweigert and Kötz, above n. , p. . Zweigert and Kötz, above n. , p. . Zweigert and Kötz, above n. , p. .
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From a historical point of view, the Chilean Civil Code of and the Argentinian Civil Code of are considered as ‘the most independent and original product of Latin American legislation’. Bello’s Civil Code has been assessed as superior to the Code civil of in its structure, following the system of the Institutes of Gaius and Justinian. Thus, it is divided into a Preliminary Title, Book I ‘Of Persons’, Book II ‘Of Assets and their Ownership, Possession, Use and Enjoyment’, Book III ‘On Succession by Cause of Death and Inter Vivos Donations’, Book IV ‘Of Obligations in General and of Contracts’ and a Final Title. It was the first to devote a special title in Book I to the regulation of legal persons, although it only applies to non-profit organisations (called corporaciones and fundaciones), and not to for-profit companies (called sociedades, which are regulated as a contract in Title XXVIII of Book IV). It also regulates fiduciary ownership (propiedad fiduciaria, in Title VIII of Book II) and contracts for the benefit of third parties (in Book IV), which were not recognised by the Code civil. Highlighting the intra-regional influence of the Chilean Civil Code, in , Manuel Ancízar, a distinguished diplomat and politician who had represented Colombia before the Chilean government, wrote to Bello requesting a copy of the Chilean Civil Code in order to ‘benefit from the knowledge developed in other countries and to prefer the legal doctrines held in South America, as a first step in the desired social unity of this continent’. As to the legal mode of thought and legal sources, we already saw that Latin American jurisdictions share these with the leading civil law jurisdictions. Thus, where can we find the originality of Latin American legal systems? What are the crucial common elements that allow us to group them beyond extrinsic factors such as geography or race? A feature of Latin American legal systems that is sometimes mentioned by European legal scholars is that the written law is not very significant in practice. This seems an ‘embedded prejudice’ rather than a factual truth. As in many jurisdictions throughout the world, there are cases where legal practice and judges shape the law through uses, customs and interpretation, leading to the phenomenon of a divergence between the ‘law in the books’ and the ‘law in action’. This is also sometimes the case in some areas of public law. For instance, Latin American Constitutions normally incorporate inspirational contents and ambitious lists of rights, which may contrast with reality. Thus, grandiloquent proclamations, as well as social and
The Chilean Civil Code of is still in force today but has been significantly reformed, especially in the areas of family law and succession. The Argentinian Civil Code of was repealed and replaced by the Código Civil y Comercial de la Nación in . Zweigert and Kötz, above n. , p. . Also, Caffera, Momberg and Morales, Chapter. (in this volume). Some include the Brazilian Civil Code of as well, for example, Castán, above n. , at –; Alejandro Garro, ‘Unification and Harmonization of Private Law in Latin America’ () American Journal of Comparative Law, –, . Zweigert and Kötz, above n. , p. . Guzmán, above n. , p. . Zweigert and Kötz, above n. , p. . Zweigert and Kötz, above n. , p. . For academic commentaries on each article of Book IV of the Chilean Civil Code, see Carlos Amunátegui Perelló (ed.), Comentario Histórico-Dogmático al Libro IV del Código Civil de Chile, vols. (Valencia: Tirant lo Blanch, ). Cited by Hinestrosa, above n. , at –. See Section B (b) above. Criterion emphasised by Zweigert and Kötz, above n. , p. , citing Esmein. Criteria highlighted by Zweigert and Kötz, above n. , pp. –, citing Arminjon, Nolde and Wolff. For example, Zweigert and Kötz, above n. , p. ; Kischel, above n. , pp. , –. Using the terminology from Diego López-Medina, ‘The Latin American and Caribbean legal traditions’ in Mauro Bussani and Ugo Mattei (eds), The Cambridge Companion to Comparative Law (Cambridge: Cambridge University Press, ) p. at p. . See text to notes – above.
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economic rights, may have scarce enforceability. However, these and other examples cannot lead to an assertion that non-compliance with the written law is a regional characteristic of Latin American jurisdictions. Having certain distinctive legal institutions, such as the doctrine of consideration in the common law world or the doctrine of the collapse of the legal foundation of the transaction in the Germanic legal family, can also contribute to the characteristic style of a legal system. Therefore, are there any legal institutions that are innate to Latin American legal systems? There are certainly doctrines that have developed in different countries, but there do not appear to be institutions that are common to all Latin American legal systems which differ from those received under the influence of European or US law. However, within the realm of public law, and in particular in Constitutional Law, an original regional doctrine or movement has been identified in the so-called Bolivarian Constitutionalism. Latin American legal systems undoubtedly have some legal and extra-legal factors in common. From a legal perspective, they have a shared private law basis in Roman law and an original private law codification process influenced by comparative law. But is this historical connection enough to bind them as a unique legal tradition? We agree with Kleinheisterkamp’s argument that the trend in Latin American jurisdictions has been a shift away from searching for the best modern reformulation of Roman law, towards a direct interest in and sometimes legal transplant of foreign legislative solutions. With this in mind, it seems that the evolution that most Latin American legal systems have had since their private law codification must also be included in any effort to connect them as a legal family beyond a historical link. With regard to extra-legal factors, a common language and culture are usually mentioned as uniting these legal systems. Spanish and Portuguese are the predominant languages in the region, but there are many others – as well as regional dialects and even local colloquialisms. There is a ‘linguistic distance’ between countries that were former Spanish, Portuguese, English and Dutch colonies. Contrary to what is sometimes assumed, it is not evident that there is in fact a common Latin American culture (localisms and nationalisms remain pervasive) and establishing that there is a shared Latin American legal culture would require a comprehensive socio-legal study that is beyond the scope of this chapter. Schmidt recognises that ‘it is by no means clear whether there is such a thing as “the” Latin American private law culture. . .’ Indeed, it seems that beyond the historical and geographical factors, there is little that could truly differentiate a
Kischel, above n. , pp. –. Zweigert and Kötz, above n. , p. . For example, the theory of ‘rights over rights’ (derechos sobre derechos) in Chilean private law under Art. no. of the current Constitution of combined with Art. of the Civil Code. See Section C below. Kleinheisterkamp, above n. , pp. –; Fernández, above n. , at –, citing René David’s L’originalité des droits de l’Amérique latine. See Section B (a) above. Kleinheisterkamp, above n. , p. . For example, in the acceptance of a different form of laesio, following the BGB and the Italian Civil Code of , see Caffera, Momberg and Morales, Chapter (in this volume). For example, Fernández, above n. , at , ; Castán, above n. , at ; Parise, above n. , pp. , ; Garro, above n. , at ; Alfredo Ferrante, ‘ ¿Quimera o Fénix? El recorrido europeo y latinoamericano hacia un derecho común de contratos’ () Revista de Derecho Privado at . López-Medina, above n. , p. . Even within the Caribbean nations there is no common legal tradition, as the Spanish Caribbean countries fall into the realm of civil law (also the French and Dutch Caribbean nations), while the English Caribbean countries follow the common law, see López-Medina, ibid. Schmidt, above n. , pp. –.
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so-called Latin American legal family, at least from a private law perspective. This might in turn explain why harmonisation initiatives in the region have had limited success. . Harmonisation Efforts Not only politicians (starting with Simón Bolívar), but also many Latin American legal scholars put forward the idea of a Latin American nation (nación or patria latinoamericana) that is rooted in our common history as former Spanish colonies and as recipients of the Roman law tradition through the Code civil. There are calls to preserve this legal tradition and to ‘resist the siege of globalization’. However, despite there being elements in the region that supposedly offer fertile ground for unification or at least harmonisation, such as the common legal history, language and culture, the success of these efforts has been rather sparse. Before we look at some instruments and projects of harmonisation of private law, we will refer to the lingering question of whether private law should be regulated in a single code or in separate civil and commercial codes. (a) Unification or Separation of Civil and Commercial Law? As previously mentioned, the division of these two major areas of private law was adopted in the post-independence codification but, by the twentieth century, there was already extensive debate as to the foundation and usefulness of maintaining the division. Many arguments against maintaining the division have been advanced, for example, that the distinction is obsolete, that it only creates confusion between two separate systems that usually overlap, particularly the sometimes difficult to define criterion that separates civil contracts from commercial contracts. In Europe, some jurisdictions opted to abandon the distinction between Commercial Law and Civil Law, incorporating most aspects of private law in their Civil Codes. While in some Latin American countries the debate continues, others have come to unify the law governing civil and commercial matters. A clear example is Argentina with its Código Civil y Comercial de la Nación, in force since , which replaced the Civil Code of
For a critical view of the usefulness of the existence of a Latin American legal family, see Fernández, above n. , at –. Hinestrosa, above n. , at ; Castán, above n. , at –. Hinestrosa, above n. , at . Garro, above n. , at , . See Section B (a) above. As Kleinheisterkamp, above n. , p. explains, in the case of Brazil, in Teixeira de Freitas had already considered that the codification of civil law without the integration of commercial law did not make sense. Zweigert and Kötz, above, n. , p. . For example, Ricardo Sandoval López, Derecho Comercial: Tomo I (Santiago: Editorial Jurídica de Chile, ), pp. , –; Luis Oscar Herrera Larraín, ‘Comentario Crítico’ in Fundación Fernando Fueyo Laneri, Estudios sobre Reformas al Código Civil y Código de Comercio. Quinta Parte: Obligaciones y Contratos en los Códigos Civil y de Comercio, Unificación de las Reglas (Santiago: Editorial Jurídica de Chile, ), p. at p. . Such is the case of the Swiss Civil Code of (in force since ), the Italian Codice Civile of and the Dutch Civil Code of ; Zweigert and Kötz, above n. , pp. , , . For example, in Colombia, see Hinestrosa, above n. , at –. In Chile, in a group of academics initiated a project to reform the Civil Code and the Commercial Code; they held seminars and published books with their research, see Fundación Fernando Fueyo Laneri, Estudios sobre Reformas al Código Civil y Código de Comercio. Quinta Parte: Obligaciones y Contratos en los Códigos Civil y de Comercio, Unificación de las Reglas (Santiago: Editorial Jurídica de Chile, ), and in another group, with the backing of the Ministry of Justice, was formed to reform the Commercial Code, see http://codificacioncomercial.cl/inicio/. So far, no comprehensive reforms have been implemented.
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and the Commercial Code of . Another example is the current Brazilian Civil Code of , which includes the regulation of company law. (b) International and Regional Organisations and Instruments of Unification and Harmonisation Several instruments of unification and harmonisation of specific areas of private law developed by international organisations have been embraced by Latin American countries. In the case of international treaties, UNCITRAL’s Vienna Convention on Contracts for the International Sale of Goods (CISG) is in force in sixteen Latin American countries and is enthusiastically considered by some legal scholars as evidencing a new and modern law of contract. UNIDROIT’s Cape Town Convention and its Aircraft Protocol are in force in eight Latin American countries, and this has had an important legal and economic impact, boosting the Brazilian, Colombian and Panamanian aircraft industries. Regarding soft law instruments prepared by international organisations of harmonisation, the UNIDROIT Principles of International Commercial Contracts (PICC) have been the most influential in Latin America. They have generally been welcomed by academics and practitioners and have inspired reforms of national contract law, as was the case with the Argentinian Civil and Commercial Code. As for regional organisations, with regard to private law, the Organization of American States (OAS) has been key to promoting the development of private international law in the region (mainly through the Specialized Conferences on Private International Law, known as CIDIP for its acronym in Spanish) rather than substantive law. However, it has prepared some interesting soft law instruments in the areas of commercial and company law that could have a harmonising effect if they were to be followed by Latin American legislators. Examples include the Principles for Electronic Warehouse Receipts for Agricultural Products, developed in by OAS’s Department of International Law with some input from UNIDROIT, which serve as the basis for drafting a future model law, and OAS’s Model Law on the Simplified
United Nations Convention on Contracts for the International Sale of Goods, Vienna, April , in force January . Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Paraguay, Peru and Uruguay; see https://uncitral.un.org/en/texts/salegoods/conventions/ sale_of_goods/cisg/status. For example, Íñigo de la Maza Gazmuri and Álvaro Vidal Olivares, Cuestiones de Derecho de Contratos: Formación, Incumplimiento y Remedios. Doctrina y Jurisprudencia (Santiago: Legal Publishing Chile, ). Convention on International Interests in Mobile Equipment, Cape Town, November , in force March . Argentina, Brazil, Colombia, Costa Rica, Cuba, Mexico, Panama and Paraguay, see www.unidroit.org/instruments/ security-interests/cape-town-convention/states-parties/; www.unidroit.org/instruments/security-interests/aircraft-proto col/states-parties/. Isabel Zuloaga Ríos and María Ignacia Vial Undurraga, ‘UNIDROIT and Latin America’ in Ben Koehler, Thomas John and Rishi Gulati (eds), The Elgar Companion to UNIDROIT (Cheltenham: Edward Elgar, in press). This was already evidenced by Bonell only a few years after the publication of the PICC, see Michael Joachim Bonell, ‘The UNIDROIT Principles in Practice: The Experience of the First Two Years’ () Uniform Law Review . José Angelo Estrella Faria, ‘The Influence of the UNIDROIT Principles of International Commercial Contracts on National Laws’ () Uniform Law Review , . See www.oas.org/en/sla/dil/private_international_law.asp. Text available at www.oas.org/en/sla/iajc/docs/CJI-doc_-_rev.pdf. For details, see Zuloaga and Vial, n. .
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Corporation (), which is based on the Colombian legislation on simplified corporations (Law of ). Other regional or intra-regional groups and organisations, for instance the Mercado Común del Sur (MERCOSUR), the Asociación Latinoamericana de Integración (ALADI), the Comunidad Andina (CAN) and the Association of Caribbean States (ACS), correspond to economic integration initiatives. These have had varying degrees of success, and, as such, have had a limited impact on the harmonisation of private law. An interesting case is that of the Organisation for the Harmonisation of Business Law in the Caribbean (OHADAC), because it is a project that aims to consolidate the economic integration of the whole Caribbean region through the harmonisation of Commercial Law. In the OHADAC Principles on International Commercial Contracts were completed with the goal of harmonising the law of Caribbean countries within the exclusive framework of international commercial contracts (BB). They correspond to a soft law model that brings them close to the UNIDROIT PICC. However, whether they truly represent a regional distinctiveness is unclear, especially considering that they were drafted by European academics. (c) Academic Projects of Harmonisation The movement to unify or at least harmonise private law (and ultimately only contract law) in Europe, which had its heyday during the first decade of the twenty-first century, was closely monitored and commented on by many Latin American legal scholars. It seemed an exciting prospect and, as is the pattern in the development of private law in Latin America, the European trend was emulated. Two projects stand out. Probably the most well-known outside of the region is the initiative that produced the Principios Latinoamericanos de Derecho de los Contratos (Principles of Latin American Contract Law, or PLACL). Starting work in , a group of legal scholars from Argentina, Colombia, Chile, Paraguay, Uruguay, Venezuela, Brazil and Guatemala prepared these principles, the general purpose of which is ‘to provide a source of
See www.oas.org/en/sla/dil/docs/Model_Law_on_the_Simplified_Corporation.pdf. Francisco Reyes Villamizar, ‘The Organization of American States’ Model Law on Simplified Corporations’ (Oxford Business Law Blog, September ), see www.law.ox.ac.uk/business-law-blog/blog///organization-ameri can-states-model-law-simplified-corporations. Regional integration process, with Argentina, Brazil, Paraguay, Uruguay, Venezuela (currently suspended) and Bolivia (in the process of adherence) as Member States, see www.mercosur.int/quienes-somos/paises-del-mercosur/. Latin American integration group formed by Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela, see www.aladi.org/sitioaladi/quienes-somos-/. Formerly known as the Pacto Andino; it is an integration organism formed by Bolivia, Colombia, Ecuador and Peru, see www.comunidadandina.org/quienes-somos/. It uses the political concept of the ‘Greater Caribbean’ to include numerous countries that border the Caribbean Sea. Its Member States considered as Latin American are Belize, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Colombia, Guyana, Suriname, Venezuela, Cuba, Dominican Republic and Haiti, see www.acs-aec.org/index.php?q=content/members-and-associate-members. The Caribbean Community (CARICOM) is another regional integration group of the Caribbean that encompasses mostly English-speaking countries, as well as French and Dutch and variations of these; its Member States considered as Latin American are Belize, Guyana, Suriname and Haiti, see https://caricom.org/member-states-and-associate-members/. For details on some of these initiatives, see Momberg, above n. , pp. -. Latin American States that are part of the OHADAC Zone are Belize, Colombia, Costa Rica, Cuba, Guatemala, Guyana, Haiti, Honduras, Mexico, Nicaragua, Panama, Puerto Rico, Dominican Republic, Suriname and Venezuela, see https://ohadac.com/article//ohadac-and-acp-legal.html. See https://ohadac.com/textes//ohadac-principles-on-international-commercial-contracts.html#noteen. For details, see Reiner Schulze and Fryderyk Zoll, European Contract Law (Munich: C. H. Beck, Hart, Nomos, ), pp. –. Also, Ferrante, above n. , at –.
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inspiration for the reform and modernisation of contract law in Latin America’. It is a commendable task and certainly the principles themselves offer high-quality and up-to-date solutions that can indeed be used as inspiration for legal reform. However, they do not evidence a shared Latin American contract law, but rather desired best solutions that have been influenced by international instruments such as the CISG and the PICC. Another relevant academic initiative has been undertaken by the Grupo para la Armonización del Derecho en Latinoamérica (GADAL) (Group for the Harmonisation of Law in Latin America). It was formed in by academics from Argentina, Brazil, Colombia, Chile, Mexico, Peru and Venezuela, with the goal of proposing harmonised instruments that ‘reflect the specificity and richness of the Latin American legal subsystem as a development of the Roman law legal system’. The group’s activity is wider than that of the PLACL, aiming at the harmonisation and modernisation of the law of obligations in Latin America. They have produced a draft ‘Código Marco de Obligaciones para América Latina’ (Framework Code of Obligations for Latin America). Again, although this project is laudable, it recognises that to obtain its goal, it is necessary to not only take into account the Romanist tradition and the distinctive features of the region but also the developments in other jurisdictions outside of the region and, in particular, other experiences of private law harmonisation. C. PUBLIC LAW
. Overview of the Regional Trends A recurrent question is whether there is something unique about Latin American public law, and in particular its constitutions. Loewenstein referred to these constitutions as ‘nominal’, because their enforcement was partial at best due to the lack of social and economic preconditions. Others have highlighted their strong version of presidentialism, or the early inclusion of social rights (starting with the Mexican Constitution). More recently, there have been interesting threads that should be considered. First, the notion of ‘conventionality control’. This doctrine has been adopted by the Interamerican Court of Human Rights (the ‘IC’), and requires the judges of all states party to the American Convention of Human Rights to decide cases according to the Convention (and arguably to the IC case law). This doctrine has been
Momberg, above n. , p. . The PLACL are published in Íñigo de la Maza, Carlos Pizarro and Álvaro Vidal (eds), Los Principios Latinoamericanos de Derecho de los Contratos (Madrid: Boletín Oficial del Estado, ). See Schmidt, above n. , pp. –; Pilar Perales Viscasillas, ‘The Principles of Latin American Contract Law and the CISG’ in Rodrigo Momberg and Stefan Vogenauer (eds), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law (Oxford: Hart Publishing, ), p. at pp. , –; María Ithurria, ‘Principios Latinoamericanos de Derecho de los Contratos: ¿Dónde está lo latinoamericano?’ () Latin American Legal Studies . ‘que reflejen la especificidad y riqueza del subsistema jurídico latinoamericano como desarrollo del sistema jurídico de derecho romano’, as per GADAL’s website, see https://gadal.uexternado.edu.co/. The draft Code is published in Antonio Saccoccio and Simona Cacace (eds), Europa e America Latina Due Continenti, Un Solo Diritto: unità e specificità del sistema giuridico latinoamericano, vols. (Torino, Valencia: G. Giappichelli Editore, Tirant lo Blanch, ) vol. I. As per GADAL’s website, see https://gadal.uexternado.edu.co/. Karl Loewenstein, Teoría de la Constitución (first published , Alfredo Gallego tr., nd ed., Barcelona: Ariel ), p. . José A. Cheibub, Zachary Elkins and Tom Ginsburg, ‘Still the Land of Presidentialism? Executives and the Latin American Constitution’ in Almut Schilling-Vacaflor and Detlef Nolte (eds), New Constitutionalism in Latin America: Promises and Practices (Abingdon: Routledge, ), pp. –.
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controversial for, inter alia, transferring power from the national courts to the IC; imposing a kind of international judicial supremacism; lacking coherency in its application; and having scarce enforceability. Second, the adoption of compulsory electoral quotas for women. Starting with Argentina in , most Latin American countries have guaranteed, by law, a minimum gender diversity in the ballot. Although electoral quotas have also appeared in other regions, this specific kind (legally binding, and no fixed results or reserved seats), has become predominant in Latin America. Third, the Max Planck Institute (Heidelberg) has promoted the notion of Ius Constitutionale Commune. This doctrine (also linked to the conventionality control) would seek incremental transformations of Latin American Public Law ‘mixing national and international law, resorting to principles and the importance of rights’. However, this is controversial among local scholars. Fourth, there have been some interesting approaches and experiences regarding phenomena that have emerged in other regions, and even globally. For example, the notion of abusive constitutionalism has found support in the experiences of Colombia and Venezuela. Similarly, the idea of unconstitutional constitutional amendments has been relevant in countries such as Brazil, Colombia and Chile. Notwithstanding the above, the strongest candidate for regional novelty is the emergence of the New Latin American Constitutionalism (‘NLAC’) movement, also called Boliviarian Constitutionalism or ALBA Constitutionalism.
For example, Ariel Dulitzky, ‘An Inter-American Constitutional Court? The Invention of the Conventionality Control by the Inter-American Court of Human Rights’ () Texas International Law Journal at ; Ximena Fuentes, ‘International and Domestic Law: Definitely and Odd Couple’ () RevJur UPR . Updated information, as well as specialised scholarship, can be found at www.idea.int/data-tools/data/gender-quotas. See Armin von Bogdandy et al., Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford: Oxford University Press, ). Armin von Bogdandy, ‘Ius Constitutionale Commune en América Latina: una mirada a un constitucionalismo transformador’ () Revista Derecho del Estado at (free translation). For example, Alejandro Rodiles, ‘The Great Promise of Comparative Public Law for Latin America: Toward Ius Commune Americanum?’ in Anthea Roberts et al. (eds), Comparative International Law (Oxford: Oxford University Press, ), p. at p. ; Juan Herrera, ‘La idea de un derecho común en América Latina a la luz de sus críticas – The idea of a common law in Latin America in light of its critiques’ () International Journal of Constitutional Law . David Landau, ‘Abusive Constitutionalism’ () UC Davis Law Review . Yaniv Roznai, ‘Constitutional Unamendability in Latin America Gone Wrong?’ and Carlos Bernal Pulido, ‘Constitution-Making (Without Constituent) Power: On the Conceptual Limits of the Power to Replace or Revise the Constitution’ in Richard Albert et al. (eds), Constitutional Change and Transformation in Latin America (Oxford: Hart Publishing, ), pp. – and pp. –; Po Jen Yap, ‘The Conundrum of Unconstitutional Constitutional Amendments’ () Global Constitutionalism ; David Landau, ‘Presidential Term Limits in Latin America: A Critical Analysis of the Migration of the Unconstitutional Constitutional Amendment Doctrine’ () The Law & Ethics of Human Rights . Roberto Viciano Pastor and Ruben Martínez Dalmau, ‘El nuevo constitucionalismo latinoamericano: Fundamentos para una construcción doctrinal’ () Revista general de derecho público comparado . Carlos De La Torre, ‘Populist Citizenship in the Bolivarian Revolutions’ () Middle Atlantic Review of Latin American Studies ; Phoebe King, ‘Neo -Bolivarian Constitutional Design: Comparing the Venezuelan, Ecuadorian, and Bolivian Constitutions’ () Social and Political Foundations of Constitutions . ALBA stands for Alternativa Bolivariana para Latinoamérica y el Caribe. See José Manuel Díaz de Valdés and Sergio Verdugo, ‘The Alba Constitutional Project and Political Representation’ () International Journal of Constitutional Law .
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NLAC is a category created to label a set of innovative ideas that found their way into the Constitutions of Venezuela (), Ecuador () and Bolivia (). Although several scholars have analysed the NLAC, there has been a recent turning point that compels its revisitation. The Constitutions above were enacted one or even two decades ago. Whatever their virtues and vices, no other Latin American country has enacted a NLAC constitution since. In fact, there has not been any other constitutional-making process in the region, until now. Since , Chile has been undergoing a constitution-making process. For the first time since the enactment of the NLAC constitutions, there might be a new constitution in the region. Thus, this section addresses the following question: Is the NLAC spreading throughout the region? To answer this question – applying a doctrinal and textual analysis – we plan to identify the main features of the original NLAC. Then, we will contrast them with the recent Chilean experience. . The New Latin American Constitutionalism NLAC constitutions share many features. Although some of these traits are common to most of Latin America, this section will briefly discuss those that may show a distinct Boliviarian identity. (a) Democratic Revolution or Populist Authoritarianism? There are two competing discourses about the NLAC. One presents its ideas and texts as the result of a radical democratic revolution. The other considers NLAC as an updated version of Latin American populism, which in turn leads to authoritarianism. To the first group, Latin American constitutions used to be unflavoured copies of European or US ideas. Worse, they were unable to crack a ‘corrupt, elitist and marginalizing political system’, where democracy was thin due to widespread corruption, radical libertarian (‘neoliberal’) policies, and the exclusion of vast groups of the population. Thus, a far-reaching change was needed, a ‘deconstruction of the philosophy, the state apparatuses and the symbolic representations of the neoliberal capitalist model’. For
Some scholars also include Colombia (), mostly because of the case law of the Constitutional Court. See Juan Daniel Giraldo, ‘Reformas al Estado Social en América Latina: un análisis desde el desarrollo en el nuevo constitucionalismo latinoamericano’ () Justicia y Derecho ; Milton Quiroz Villalobos, ‘Participación popular y presidencialismos fuertes en el Nuevo Constitucionalismo Latinoamericano’ () Revista Derecho del Estado . See Rodrigo Uprimny, ‘The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges’ () Texas Law Review ; Carlos Hakansson, ‘Una aproximación al constitucionalismo latinoamericano, características principales y nuevas tendencias’ () Revista de derecho político . Zachary Elkins, ‘Constitutional Revolution in the Andes?’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Cheltenham: Edward Elgar, ), p. . See Arturo Escobar, ‘Latin America at a Crossroads: Alternative Modernizations, Postliberalism, or Postdevelopment?’ () Cultural Studies at . Albert Noguera, ‘What Do We Mean When We Talk about Critical Constitutionalism? Some Reflections on the New Latin American Constitutions’, in Almut Schilling-Vacaflor and Detlef Nolte (eds), New Constitutionalism in Latin America: Promises and Practices (Abingdon: Routledge, ), p. . Nuria Belloso Martín, ‘El neoconstitucionalismo y el nuevo constitucionalismo latinoamericano: “dos corrientes llamadas a entenderse”’ () Cuadernos electrónicos de Filosofía del Derecho ; Carlos Villabella Armengol, ‘Constitución y democracia en el nuevo constitucionalismo latinoamericano’ () IUS. Revista del Instituto de Ciencias Jurídicas de Puebla AC . Noguera, above n. , p. .
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real – popular – democracy to take place, a rebellion was required, against both the political elite and the neoliberal system. The NLAC would be the result of such a rebellion, transforming mere subjects into citizens, energised by grassroots organisations and not by politicians or academics. In contrast with this view, there is the opinion that NLAC is just a new face of populism, that is, ‘a form of political incorporation to the political community based on rhetorical appeals to and the mobilization of the people’. Populism assumes a rhetoric of friends (the marginalised people) versus enemies (the selfish elites), and delivers a promise of a bright future that requires the obliteration of the status quo. It also fosters an active and mobilised citizenship, often through direct democracy mechanisms (referendums, recall, etc.). All the features above could be found in the NLAC countries, where a powerful caudillo (Hugo Chávez in Venezuela, Rafael Correa in Ecuador and Evo Morales in Bolivia) confronted the established elites, reached power through elections, and then dismantled the political and economic system. More than a decade has passed since the NLAC Constitutions were enacted, and experiences have varied significantly. Whereas Venezuela has degenerated towards a non-democratic State, in Ecuador, after the despotic temptations of Correa, there have been regular elections, with change in who holds power. Bolivia is somewhere in between: although Morales was ousted from power, his party continues to rule the country. Notwithstanding these differences, both Ecuador and Bolivia still suffer from weak institutions and high levels of poverty and inequality. (b) The Role of the Constituent Power and of Constitutions By adopting a radical approach towards (original) constituent power, caudillos acquired a tool powerful enough to reshape the political, social and even cultural landscape. A limitless
Mark Tushnet, ‘The New “Bolivarian” Constitutions: A Textual Analysis’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Cheltenham: Edward Elgar, ), p. . Roberto Viciano Pastor and Rubén Martínez Dalmau, ‘Fundamento teórico del Nuevo Constitucionalismo Latinoamericano’ in Roberto Viciano Pastor (ed.), Estudios sobre el nuevo Constitucionalismo Latinoamericano (Valencia: Tirant Lo Blanch, ), p. . De La Torre, above n. , at . See also Paul Blokker, Bojan Bugaric and Gábor Halmai, ‘Introduction: Populist Constitutionalism: Varieties, Complexities, and Contradictions’ () German Law Journal . See David Landau, ‘Populist Constitutions’ () The University of Chicago Law Review ; Anthony Spanakos, ‘New Wine, Old Bottles, Flamboyant Sommelier: Chávez, Citizenship, and Populism’ () New Political Science . Spanakos, above n. , at –. See Roberto Viciano Pastor and Rubén Martínez Dalmau, ‘Los procesos constituyentes latinoamericanos y el nuevo paradigma constitucional’ () IUS. Revista del Instituto de Ciencias Jurídicas de Puebla ; David Landau, ‘Constitution-Making Gone Wrong’ () Alabama Law Review ; Nina Massüger, Sánchez Sandoval and Yanina Welp, ‘Legality and Legitimacy: Constituent Power in Venezuela, Bolivia and Ecuador’ in Jonathan Wheatley and Fernando Mendez (eds), Patterns of Constitutional Design: The Role of Citizens and Elites in Constitution-Making (Abingdon: Routledge, ), p. at p. . ‘CEPALSTAT Bases de Datos y Publicaciones Estadísticas’, see https://statistics.cepal.org/portal/cepalstat/index .html?lang=es. This approach shares some features of what Gargarella calls ‘radical constitutions’ typical of the XIX century in Latin America. Roberto Gargarella, ‘Towards a Typology of Latin American Constitutionalism, –’ () Latin American Research Review ; Quiroz, above n. , at . Sergio Verdugo and Marcela Prieto, ‘The Dual Aversion of Chile’s Constitution-Making Process: Bolivarian Constitutionalism and the Pinochet Constitution’ () International Journal of Constitutional Law . See also Noguera, above n. , p. .
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power that belonged to the people, but was exerted by the new elites, allowed them to redesign the whole system with no regard for the established order or political opposition. Unsurprisingly, the prompt enactment of new constitutions was a key feature of the NLAC. As Elkin states, ‘the Bolivarians are committed constitutionalists, which means that their hopes and aspirations are built into the constitution’. Constitutions allow for a top-down reconstruction of the political system, the adoption of new symbols, and the replacement of the political status quo. They became an ever-present tool, regulating a broad array of topics, permeating not only the legal system, but whole areas of social and economic life. The ‘rule of law’ became ‘the rule of the Constitution’. Nonetheless, the NLAC’s understanding of constitutions and their functions does not entirely accord with the traditional liberal approach. Views of constitutions as social pacts and democratic guarantees (i.e., a means for enforcing the popular will over political elites) are prevalent. Other liberal functions of constitutions, notably limiting power, are downplayed. Moreover, there is an ambiguous approach to the legal nature of constitutions. On the one hand, the legal factor is subservient to the political function, and thus the requirements imposed by the former are disregarded (e.g., precision, nature of contents, specific knowledge). On the other hand, the desire to regulate broad aspects of political, economic and social life results in a text full of detailed regulations, which are presented as legally binding. In sum, although the NLAC does appreciate the usefulness of the constitution being a legal rule (mandatory, self-executing, etc.), it refuses to see the constitution (and the law in general) as a limiting framework. Rather, it is only a vehicle for its ideas, and at least rhetorically, the empowerment of citizens. This particular approach towards constitutions is reflected in NLAC’s texts. They are remarkably long, even by Latin American standards, and they contain a mixture of: (i) ambitious and ambiguous – and sometimes contradictory – principles, declarations, aspirations, symbolic statements, desires and rights, and (ii) highly specific regulations on a variety of topics, sometimes more akin to a governmental manifesto.
Sergio Verdugo, ‘The Fall of the Constitution’s Political Insurance: How the Morales Regime Eliminated the Insurance of the Bolivian Constitution’ () International Journal of Constitutional Law ; David Landau, ‘Constituent Power and Constitution-Making in Latin America’ in David Landau and Hanna Lerner (eds), Comparative Constitution Making (Cheltenham: Edward Elgar Publishing, ), p. . Elkins, above n. , p. . Elkins, above n. , p. . See also King, above n. , p. . De la Torre, above n. , p. . Cf. David Esborraz, ‘El modelo ecológico alternativo latinoamericano entre protección del derecho humano al medio ambiente y reconocimiento de los derechos de la naturaleza’ () Revista Derecho del Estado at ; Viciano and Martínez, above n. , pp. –. Hakansson, above n. , at –; Pedro Salazar Ugarte, ‘El nuevo constitucionalismo latinoamericano (una perspectiva crítica)’ in Luis Raúl González Pérez and Diego Valdés (ed.), El constitucionalismo contemporáneo. Homenaje a Jorge Carpizo (México: Universidad Nacional Autónoma de México, ) pp. –. Cf. Hakansson, above n. , at –. See Jeremy Waldron, ‘Constitutionalism – a Skeptical View’ in Thomas Christiano and John Christman (eds), Contemporary Debates in Political Philosophy (Oxford: Wiley-Blackwell, ), pp. –; Loewenstein, above n. , pp. –. Tushnet, above n. , p. . Salazar, above n. , p. , affirms that the NLAC is a ‘factory of aporias’. See also Salazar, ibid., p. ; King, above n. , p. ; Roberto Gargarella, ‘Lo “viejo” del “nuevo” constitucionalismo latinoamericano’ (For paper , see https://law.yale.edu/sites/default/files/documents/pdf/SELA_Gargarella_CV_Sp.pdf, pp. –); Quiroz, above n. , p. ; Villabella, above n. , p. . Hakansson, above n. , at – sees this as a trend of Latin American constitutions.
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Isabel Zuloaga and José Manuel Díaz de Valdés
An additional feature of the NLAC constitutions, revealing of its views about constituent power, is their rigidity. They are difficult to amend, normally requiring qualified majorities in Parliament, plus a willing President, plus a referendum. There are two main explanations for this cumbersome procedure. One is the NLAC’s distrust of political elites and their abuse of the derivative constituent power, thus all constitutional reforms should be consented to by the original constituent power (the people). The alternative explanation is the NLAC’s willingness to impose the new constitutions as a governmental plan, which should not be changed, incidentally reinforcing the power of the political leader. (c) Participatory and Inclusive Constitution-Making Process (and Politics in General) The NLAC strongly relates to popular participation. Its leaders came to power by appealing to a revolutionary rhetoric, and for their constitutions to play the ambitious role they were expected to perform, a strong source of legitimation was required. Thus, NLAC resorted to constituent power through participatory mechanisms. Referendums were used both for starting the constitution-making process (CMP) and for approving the final draft of the new constitutions.196 Moreover, the drafting process was entrusted to elected – and unconstrained – assemblies, which were selected using inclusive tools – such as reserved seats for ethnic minorities and parity – and with the participation of social movements. Unsurprisingly, the NLAC constitutions contained several participatory mechanisms, additional to elections, such as popular legal and constitutional reform initiatives, recall, consultation processes, local autonomy, ‘communal’ democracy and ‘social controlling power’ through novel institutions, etc. These mechanisms have been frequently triggered, although there is criticism of their instrumentalisation by political leaders.
See Arts. and of the Bolivian Constitution; Art. – of the Venezuelan Constitution; and Arts. – of the Ecuadorian Constitution. Salazar, above n. , p. ; Viciano and Martínez, above n. , at . Salazar, above n. , pp. –; Quiroz, above n. , pp. –. Ecuador did not hold a second referendum for approval of the constitutional text. See also Landau, above n. , pp. –. Bolivia did not hold a referendum to launch the constitution-making process. See Jorge Ordoñez, ‘Neoconstitucionalismo, nuevo constitucionalismo latinoamericano y procesos constituyentes en la región andina’ () Ius Humani. Law journal . For example, in Venezuela, three seats were reserved for representatives of indigenous peoples; in Ecuador six seats were reserved for nationals residing abroad; and finally, in the case of Bolivia, the requirement of a percentage of elected women was incorporated. See Camilo Leiva et al., Mecanismos de cambio constitucional en el mundo, Análisis desde la experiencia comparada (Programa de las Naciones Unidas para el Desarrollo (PNUD), ), p. at p. . De la Torre, above n. , p. . See Arts. , –, among others of the Venezuelan Constitution, about popular participation; Arts. , , , , , among others of the Bolivian Constitution, related to elements of direct democracy and regional autonomies; and Arts. , , , among others of the Ecuadorian Constitution, about indigenous consultation and other popular participation mechanisms. However, Uprimny, above n. , pp. –, sees this phenomenon as a trend for Latin America as a whole. De la Torre, above n. , p. ; Cf. Quiroz, above n. , p. ; Elkins, above n. , pp. –. See Alfredo Ramírez-Nardiz, ‘Nuevo constitucionalismo latinoamericano y democracia participativa: ¿progreso o retroceso democrático?’ () Vniversitas .
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(d) Indigenism The NLAC fosters a new kind of relationship between the State and the original peoples. This is a thorny subject in Latin America, particularly in countries where original peoples (‘OOPP’) account for a substantial percentage of the total population. Although the recognition of OOPP – in the form of multiculturalism and special status for certain purposes – had already appeared in other Latin American countries (e.g., Mexico), the NLAC took this further. States were declared as plurinational and intercultural, not only with a descriptive aim, but also as a mandate for the inclusion and equal treatment of OOPP. Several consequences may arise from this, such as: (i) reserved seats and other guarantees of political representation; (ii) judicial and legal pluralism: the coexistence of several legal systems and sources of laws (including indigenous customary law), and special courts for OOPP; (iii) distinctive bills of rights, including collective rights; (iv) special regulations regarding their lands and natural resources; and (v) consultation rights. This new constitutional approach towards OOPP has been controversial. For some, it is insufficient and hypocritical; an attempt to accommodate original cultures within the framework of Western constitutionalism, but far from acknowledging equal standing of the OOPP. Even worse, only certain kinds of indigenous behaviour are tolerated (the notion of the ‘allowed indian’). For others, this constitutional indigenism destroys national unity, revives racial lines in ethnically mixed countries, damages equality before the law, and creates sources of corruption and balkanisation. (e) Ecocentrism The NLAC advances a reinterpretation of nature and its relationship with humanity. Although there was an incremental reception of environmental matters in Latin American constitutions, NLAC shows a qualitative leap. Partly drawing from indigenous cosmogony, nature is seen both as a semi-impersonated entity and also as ‘the whole’. The liberal dichotomous approach that separates nature and human beings is discarded and constitutional androcentrism is questioned.
For example, Tushnet, above n. , pp. –. See Víctor Bretón, David Cortez and Fernando García, ‘En busca del sumak kawsay’ () Íconos-Revista de Ciencias Sociales . See http://centroestudiosinternacionales.uc.cl/medios/-ranking-infolatam-indigenas-en-latinoamerica. For example, articles , and of the Colombian Constitution contain provisions on reserved seats in congress, jurisdiction and indigenous territories, respectively. In Mexico, the constitutional reform of declared the Nation to be multicultural and ‘originally based on indigenous peoples’ (currently Art. of the Mexican Constitution). Daniel Bonilla Maldonado, ‘El constitucionalismo radical ambiental y la diversidad cultural en América Latina. Los derechos de la naturaleza y el buen vivir en Ecuador y Bolivia’ () Revista Derecho del Estado ; Uprimny, above n. , at –; Villabella, above n. , pp. –. For example, the Venezuelan Constitution, Chapter VIII; the Ecuadorian Constitution, Chapter IV; and the Bolivian Constitution, Title II, Chapters IV and VII. Lidia Rodríguez, ‘El indio permitido en el estado multicultural. patrimonio cultural y etnofagia en la tardomodernidad’ () Boletín de Antropología Americana at . Cf. Esborraz, above n. , at and –. See Tushnet, above n. , pp. –. Cf. Bonilla, above n. , at –; Esborraz, above n. , at . Joel Colón-Ríos, ‘The Rights of Nature and the New Latin American Constitutionalism’ () NZJPIL ; Salazar, above n. , pp. –. Eduardo Gudynas, ‘La ecología política del giro biocéntrico en la nueva Constitución de Ecuador’ () Revista de estudios sociales .
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Moreover, in addition to the individual right to a clean environment, nature is recognised as having its own rights, which could be claimed by anybody. Having rights, nature is no longer at humanity’s carefree disposal. Strong environmental protections are laid down, as well as watchdog institutions, and a pro natura interpretation principle emerges. In some contexts, ecocentrism has given rise to anti-extractivism, that is, the opposition to an economic model built on the exploitation of natural resources (e.g., mining). Although this rhetoric seems to have had little practical effect, it relates to a more general feature of NLAC. Based on indigenous notions, the Ecuadorian and Bolivian constitutions have incorporated the concept of a ‘good life’ or sumak kasay. This is a slippery idea. At the least, it demands a harmonic relationship with nature and questions whether production, consumption and accumulation are critical or even desirable activities. (f ) The Ambivalent Approach towards the Courts: Empowerment and Submission The NLAC promotes citizenship empowerment vis-à-vis institutions and elites. These constitutions foster direct democracy mechanisms and strong presidential and legislative powers (focused on the lower chamber). Thus, it would be expected that courts, often contramajoritarian, elitist and expert-based, should be downplayed. But the role of the courts is strengthened by the NLAC. First, because of the inclusion of dozens of principles, which require courts for their interpretation and enforcement. Second, because NLAC constitutions grant every person the right to file claims in defence of human rights, nature, etc., fostering litigation. Third, the strengthening of social and economic rights would demand that the courts play a key role in their enforcement. Fourth, the use of ambiguous and undefined language may advance judicial activism. In sum, courts should wield more power due to the contents and language of NLAC constitutions. Courts, however, become less independent. Their appointment and removal mechanisms, as well as their tenure periods, are reformed, decreasing their isolation from partisan politics. For example, the members of the Supreme Tribunal of Bolivia are elected directly by the people, as well as the members of the Judicial Council in Ecuador, who are in charge of the appointment
For example, Art. of the Venezuelan Constitution; Art. of the Bolivian Constitution; Art. of the Ecuadorian Constitution. For example, Art. of the Bolivian Constitution; Art. . of the Ecuadorian Constitution. Esborraz, above n. , at –. Cf. Belloso, above n. , at . Esborraz, above n. , at . Esborraz, above n. , at . See Art. . of the Ecuadorian Constitution. Esborraz, above n. , at . See Arts. and of the Ecuadorian Constitution. De la Torre, above n. , p. , p. ; Bonilla, above n. , at . See Arts. , , and of the Bolivian Constitution; Arts. and of the Ecuadorian Constitution. Bonilla, above n. , at -. Salazar, above n. , pp. –. According to Belloso, above n. , at , this is a shared feature with neoconstitutionalism, also strong in Latin America. Belloso, above n. , at , and ; Salazar, above n. , p. . King, above n. , p. . For example, Arts. and of the Venezuelan Constitution; Arts. , , , , , and of the Bolivian Constitution; Arts. , , , , and of the Ecuadorian Constitution. Belloso, above n. , at . Javier Couso, ‘Las Democracias Radicales y el “Nuevo Constitucionalismo Latinoamericano”’ (Paper , see https://law.yale.edu/sites/default/files/documents/pdf/sela/SELA_Couso_CV_Sp_.pdf), pp. –, –; David Landau, ‘Populist Constitutions’ () The University of Chicago Law Review .
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of judges. Additionally, the CMP on the NLAC countries often resorted to the dismissal of serving judges, thus weakening the standing of the courts vis-à-vis the political branches. Moreover, after the enactment of the new constitutions, courts were ‘packed (. . .) with loyal followers’ of the powerful presidents and have been subservient to them. To reinforce the submission of the Courts to the new order, an originalist approach is recommended, or even ordered, and constitutional review is a power reserved for the Supreme or Constitutional Court only. . Chile as the Testing Case Chile has embarked on a CMP, which, according to Verdugo and Prieto, was deliberately designed so as to distance itself from the NLAC. This section discusses whether this purpose was fulfilled by comparing the salient features of the NLAC identified in Section , with the Chilean CMP and its results. (a) Democratic Revolution or Populist Authoritarianism In , after weeks of severe civil unrest, the main Chilean political parties reached an agreement to replace the Constitution. This pact was then translated into a constitutional reform, triggering a three-stage CMP. First, a popular referendum would decide on whether to draft a new constitution or keep the Constitution, and what kind of convention should draft the new constitution. Second, the Convention would draft a proposal for a new constitution. Third, a popular referendum would approve or reject the proposal. This final referendum took place on September , and the proposal for a new constitution was rejected by . per cent of the population. However, the main political forces succeeded in launching a second CMP according to new regulations and timetables, with a new proposal set to be subject to popular referendum at the end of . At first view, it seemed as if, in , a popular rebellion demanded a new constitution, following the script of the NLAC. However, this demand was not among the protesters’ main concerns, focused as they were on pensions, health, living costs and other socioeconomic issues. It was the political elite who thought that constitutional change could be a way out
See Arts. and of the Bolivian Constitution; Art. . of the Ecuadorian Constitution. Andrea Castagnola and Aníbal Pérez-Liñán, ‘Bolivia: The Rise (and Fall) of Judicial Review’ in Gretchen Helmke and Julio Rios-Figueroa (eds), Courts in Latin America (Cambridge: Cambridge University Press, ), p. at p. ; Beatriz Viteri et al., ‘El poder político en el Ecuador y su injerencia en la independencia judicial’ () Dilemas Contemporáneos: Educación, Política y Valores ; David Landau, ‘Constitution-Making Gone Wrong’ () Alabama Law Review . De la Torre, above n. , p. . See Raúl Sánchez Urribarri, ‘Between Power and Submissiveness: Constitutional Adjudication in Latin America’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Cheltenham: Edward Elgar, ), pp. –. See Art. of the Ecuadorian Constitution. See also Couso, above n. , p. . Couso, above n. , p. ; Villabella, above n. , p. . Verdugo and Prieto, above n. . See https://obtienearchivo.bcn.cl/obtienearchivo?id=documentos/.///Acuerdo_por_la_Paz.pdf. Modifica el Capítulo XV de la Constitución Política de la República, Ley No ., December . César Jiménez Yañez, ‘#Chiledespertó: Causas del estallido social en Chile’ () Revista mexicana de sociología .
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of a tense political situation. Thus, the CMP was an idea coming from the elite, not the mobilised people. Is there populism behind the Chilean CMP? There are some hints of this: friends versus enemies rhetoric, the recourse to a mobilised citizenship, the promise of a brighter future that sharply departs from current reality, etc. However, there is a key component missing. In the NLAC countries, there was always a caudillo, a leader that defied the political elites and pushed for comprehensive changes. Chavez, Correa and Morales – all of them were elected against the political elites and were able to impose a CMP. Moreover, they were crucial players throughout those processes, and their power was reinforced after the new constitutions were enacted. By contrast, there is no caudillo in Chile leading the CMP. It started during the administration of Sebastián Piñera, whose government was targeted by the ‘rebellion’ as one of the enemies. The next administration assumed position in March , headed by President Boric. Although he may be considered among the leaders of the revolt, he was never hegemonic, and has had little influence upon the drafting process. Consequently, even though there might be some populist factors in the Chilean CMP, the absence of an influential caudillo differentiates it sharply from the CMP in the NLAC countries. (b) The Role of the Constituent Power and of Constitutions As in the NLAC countries, constituent power is regarded as the only tool powerful enough to reshape society, change reality and install a new set of symbols. There is also a common rhetoric about decolonisation and bottom-up democratisation. Moreover, the political/social pact function of constitutions is emphasised over its legal counterpart. Similarly, the constitution’s role as a limiting power is downplayed in favour of a citizens’ empowerment approach. Finally, the text is long, full of principles, rights and desires, and includes specific regulations on several topics. However, the Chilean CMP developed an approach towards the constituent power that deviates from that of the NLAC. Although the original constituent power was invoked, the Convention was subject to several limitations. Indeed, the whole CMP was designed and regulated through a constitutional amendment. Thus, the new constitution has been made according to the rules set down by the old one. Among the limitations imposed on the Convention, there were prohibitions on: (i) any claim to sovereign power; (ii) interference with the powers of other magistratures; and (iii) change to its internal procedures and quorums as set down by the Constitution or in its ‘general agreements’ (any infringement could be challenged before a special chamber of the Supreme Court). Additionally, the Convention should automatically dissolve after twelve months. Substantive limitations were also set upon the draft Constitution. It should ‘respect’ the republican and democratic political regime, final judicial decisions and international treaties.248
Boaventura De Sousa Santos, Refundación del Estado en América Latina: Perspectivas desde una epistemología del Sur (Lima: Instituto Internacional de Derecho y Sociedad, ), p. at p. . Roberto Viciano Pastor and Ruben Martínez Dalmau, ‘El nuevo constitucionalismo latinoamericano: Fundamentos para una construcción doctrinal’ () Revista general de derecho público comparado . Arts. to of the Constitution (plus several transitory provisions). Art. of the Constitution. Art. of the Constitution. This remedy loosely draws on the South African experience during the drafting of the Constitution. Art. of the Constitution. Art. of the Constitution.
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Elected authorities’ terms should also be abided by unless their offices were abolished or ‘substantially modified’. Considering all of the above, it is hard to argue that the Convention exercised an all-powerful constituent power, as happened in the NLAC countries. Although the Convention drafted a constitution (original constituent power), it was subject to several limitations (derivative constituent power). (c) Participatory and Inclusive CMP There are three different moments to consider. First, the origin of the CMP. As stated, this process was not spontaneously demanded by mobilised groups, but was a response of the political elite to cope with widespread civil unrest. The second moment was the process itself. It followed the participatory pattern of the NLAC: a referendum to launch the process, an elected assembly to draft the Constitution, and a referendum to approve the text. Moreover, the assembly was elected according to rigid parity rules, reserved seats for indigenous people ( out of ) and relaxed requirements for independent candidates. Thus, many of those elected came from grassroots organisations and most were distrustful of traditional political parties. Popular participation was also advanced through local meetings to discuss constitutional contents (cabildos) and popular initiatives, which had to be discussed and voted on by the Convention’s committees if signed by at least , people. Nonetheless, the real influence of cabildos and popular initiatives is controversial. The third moment would have been after the enactment of the proposal for the new Constitution. Following the NLAC, the text provides for several direct democracy mechanisms, such as legal and constitutional popular initiatives, consulting processes with local communities and original peoples, local autonomies, etc. (d) Indigenism The concern for indigenous peoples has been prevalent during the CMP. For the first time in Chilean history, OOPP were granted reserved seats in an elected political assembly and, again for the first time, they would have a say in the drafting of a constitution. When the Convention was installed, the original peoples’ momentum was at its peak, ensuring the presidency of the
The entry referendum was held on October , . Voting was voluntary and included two questions: (i) Do you want a new constitution?, and (ii) What body should draft the new constitution? The results were: (i) . per cent for approval option and . per cent for rejection, (ii) . per cent for a constitutional convention and . per cent for a mixed convention. See https://historico.servel.cl/servel/app/index.php?r=EleccionesGenerico&id=. These were not electoral quotas, as was traditional in Latin America, but a rigid mechanism ensuring half of the seats for each gender, applied after the votes were tallied. Curiously, it benefited more male than female candidates. See Art. of the Constitution and the thirty-first transitory provision. According to the National Institute of Statistics, indigenous peoples account for . per cent of the population (National Census ), see www.censo.cl/descargas/home/sintesis-de-resultados-censo.pdf. Art. of the constitutional project provides for the popular initiative of law; Art. for the popular initiative to repeal laws; Art. for the popular initiative for constitutional reform; Art. for the popular initiative to call a referendum for the replacement of the constitution. Arts. and of the constitutional project. Arts. and . of the constitutional project. Arts. and of the constitutional project.
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Convention, the creation of a special committee for indigenous affairs and the undertaking of a consulting procedure for OOPP. Although the influence of the OOPP waned during the functioning of the Convention (they lost their presidency, whereas the consulting procedure was tardy and participation negligible), they secured crucial provisions. The State was declared to be plurinational, following Bolivia and Ecuador, and eleven OOPP were recognised. Political autonomy (short of secession) was granted, as well as reserved seats, special courts, the recognition of customary law, extended consulting rights, specific prerogatives over land, water and national resources, cultural rights, etc. The most controversial provision mandated the restitution of lands, which is complex for many reasons, not least the uncertain delimitation of indigenous lands as well as their current occupancy by non-indigenous people. Thus, similar to the Bolivian constitution – and beyond the Ecuadorian and Venezuelan texts – indigenism is firmly entrenched in the Chilean proposal for a new constitution, not only as an idea expressed through principles and rights, but also through institutional arrangements. (e) Ecocentrism The proposal proclaims Chile to be an ‘ecological state’ that must face a global climatic crisis. It also includes several environmental principles (e.g., progressivity, precautionary, preventive). Similar to some NLAC constitutions, there is a novel approach towards nature as interdependent with human begins, and also as a holder of rights (i.e., respect, protection, restoration) that could be claimed by anybody before the courts. Individuals would have the right to a healthy and balanced environment. Education should foster ecological awareness. Property and lands would have an ecological function. Local communities would have rights to participation and access to information on environmental matters. Novel institutions are created, like a Nature’s Ombudsman. A notion of ‘good living’ is also included, similar to the Ecuadorian and Bolivian constitutions. However, there is no clear indigenous antecedent for that notion in Chile, and its
See www.pauta.cl/politica/consulta-indigena-participacion-pueblos-originarios-nueva-constitucion. Art. of the constitutional project. Art. of the constitutional project. Arts. . and of the constitutional project. Arts. and . of the constitutional project. Arts. and of the constitutional project. Art. of the constitutional project. Art. of the constitutional project. Cf. Tushnet, above n. , pp. –. Art. of the constitutional project. Art. of the constitutional project. Art. of the constitutional project. Arts and of the constitutional project. Art. . of the constitutional project. Art. of the constitutional project. Art. of the constitutional project. Arts. . and of the constitutional project. Art. of the constitutional project. Arts. – of the constitutional project. Art. of the constitutional project.
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content is narrower, and focused on the ‘harmonic balance between people, nature and the organization of society’. All of the above should result in more stringent environmental obligations, requirements, oversight and sanctions, as well as an increase in litigation. Thus, as a whole, the proposal seems highly responsive to the ecocentrism of the NLAC. (f ) Ambivalent Approach towards the Role of the Courts The proposal shares the NLAC’s ambivalent approach towards the courts. Several of its provisions strengthen the courts, such as the inclusion of dozens of principles that would require judicial interpretation; popular standing to file claims before the courts; novel rights and undefined language. Contrastingly, the courts’ standing and independence are eroded. A Judicial Council, with a majority of non-judge members, would replace the Supreme Court and other branches of government in the appointment, removal and evaluation of judges. The mandatory retirement age would be reduced from to years. Parallel systems of justice would be created for the OOPP (although the Supreme Court retains a supervisory role). The Constitutional Court would see at least some of its members replaced and its powers reduced. Moreover, the Court’s deference to the legislator is ordered and an originalist approach has also been suggested. D. CONCLUSIONS
From this general overview, we can see that interesting trends have developed in private and public law in Latin America, but their distinctiveness and success remain to be seen. From a private law perspective, we can conclude that there is a historical legal communality between Latin American legal systems, rooted in Roman law, by virtue of their codification and intraregional reception processes which were founded on comparative law. But the different paths that each jurisdiction has taken in the reform of its private laws (sometimes opting for the unification of Civil Law and Commercial Law), alongside a variety of foreign legal influences, has led to diverse degrees of development that have altered this ius commune to the point that it is doubtful whether it still exists today. Thus, in light of this historical legal connection and their geographical proximity, Latin American legal systems may be considered as a group within the civil law tradition, or a sub-group within the Franco-Roman legal family, but it seems that in the substantive aspects of their laws there is little novelty when compared with European civil law. As for the unification of private law in the region, there are some successful examples of international instruments that have attracted support, but they are limited in scope and adherence. The regional academic harmonisation efforts of private law that took place during the first decades of the twenty-first century in Latin America, despite their quality and timeliness, have so far remained purely theoretical and their impact in practice is hard to foresee, especially considering that prevalent sources of these projects correspond to already existing globalised efforts of harmonisation.
For example, Arts. ., ., , ., , and of the constitutional project. Arts. . and . of the constitutional project. Arts. – of the constitutional project. Art. of the constitutional project. Art. and of the constitutional project. Arts. – of the constitutional project.
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Isabel Zuloaga and José Manuel Díaz de Valdés
From a public law perspective, the NLAC movement shows innovative features that do not conform to traditional Western constitutionalism. It adopts a reinvigorating approach towards constituent power and popular participation. It also exalts the importance of nature and original peoples. However, it is not clear whether these innovations should be considered as an improvement or as a threat to democracy. Chile is the first country in the region to undertake a CMP after the core NLAC countries finished theirs, more than a decade ago. The draft constitution proposed by the Constitutional Convention, as well as the CMP, shared most of the NLAC novelties and characteristics, with the exception of the key role played by caudillos. While these findings are not enough to label the Chilean constitutional proposal as a NLAC text, they show that at least some of the most notorious ideas of the NLAC are spreading throughout the Latin American region. Although the constitutional proposal was rejected by a popular referendum on September , it is likely that a number of its contents, as well as the NLAC ideas behind them, will resurface during the next stages of the Chilean CMP. It is difficult to identify a unifying thread that is present in both of the great areas of law in Latin America. It appears that while in private law we start from convergence rooted in the common Roman law basis, changes have led to divergence in the current landscape. In public law, particularly in Constitutional Law, there was no ius commune to begin with, so the starting point was divergence, but now, with the NLAC movement, some degree of convergence has been achieved. How desirable these changes have been is debatable. Perhaps the truly overarching feature in Latin American legal systems is the use of comparative law to design and generate legal evolution.
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Middle East and North Africa Radwa S. Elsaman*
Globalisation has brought the world closer and urged nations to consider the differences between their various legal systems. Comparative law is vital to facilitating this. There are many reasons for the discipline to consider the legal systems of the Middle East and North Africa (MENA) region. The MENA population does not only represent a large part of the world, but the MENA region also has attractive markets with active investment opportunities. Recent studies indicate a remarkable move towards foreign investment in the MENA region business market. This chapter provides an overview of the fundamentals of the MENA region’s legal systems. What is new about this study is that it does not adopt the classical approach of examining Islamic law as the legal cornerstone in this area of the world. Rather, the chapter provides a comparison between the impact of Western laws – founded initially on either the Napoleonic Code or common law doctrines – versus the impact of Islamic law ‘Shari‘a’ on building the legal systems of the MENA countries. The chapter also gives examples of the role of comparative law in shaping some contemporary issues in the MENA countries today, such as migration and women’s rights.
A. INTRODUCTION
Many factors justify considering the different legal aspects of the Middle East and North Africa region (MENA). The term ‘MENA’ is sometimes used in a broader context to cover states in Asia that have made positive contributions to Islamic legal thought and practices such as Persia/Iran, Turkey, Pakistan, Afghanistan, Indonesia, Malaysia, and others. Nevertheless, this chapter adopts a narrow definition of the MENA region, focusing on the practices of the member states of the Arab League. This criterion of inclusion takes into account several objective facts that have had an impact on the development of comparative law since the adoption of the UN Charter. There is, for example, the decision of countries in the region to form an Arab League as the framework for their cooperation. Additionally, these countries operate in conjunction with * Professor of Commercial Law, Faculty of Law, Cairo University; Adjunct Professor, Cornell Law School. All websites cited in this chapter were last accessed on February . Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A Comparative Study (London: British Institute of International and Comparative Law, ).
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Radwa S. Elsaman
the UN and the region is identified as such in the work of many UN agencies (e.g., the UNDP Arab Human Development Report). In short, in the context of comparative law, limiting the scope of the following chapter to the member states of the Arab League has a stronger analytical bite than any other plausible alternative relying on other regional/geographical markers. Throughout the last millennium, the countries of the MENA have become the focal point of many developments (intellectual, political, legal, financial, and other) of global significance. As explained later in this chapter, the current scholarly work in comparative law focusing on the MENA region is very fragmented and mostly inconclusive. One reason may be that Arab states generally do not publish their practices in a systematic form. Another reason is the challenge of language and translation, in the broad sense of both terms. But most crucially, it is a result of the fact that most scholarly work on comparative law usually offers, when dealing with the MENA region, a fundamental introduction to the system and its basic ideas, but not the answers to specific questions such as the role of the MENA countries in the formation, development, and practice of public international law; global economy; trade issues; and social justice with an emphasis on complex issues. In addition, given the political complexity worldwide, an understanding of Islamic law and the role of Muslims in the contemporary world is increasingly vital. Notably, though the degree to which Shari‘a rules are adopted as a source of internal law and regulations among MENA states is not the same – most countries use the Shari‘a as guidance for their laws and regulations. Also, some Muslim countries within the MENA region have attractive markets with promising investment opportunities. There has been a remarkable move towards foreign investment in certain Muslim states. Failure to consider the impact of Islamic finance rules, for example, may jeopardise this. As such, this chapter will provide significant added value to the field of comparative law by redressing this notable gap in global legal studies of the MENA countries; an area of the world that is less examined. Given these observations, Section B of this chapter provides a systematic overview of the fundamentals of the MENA countries’ legal systems – principally, the main legal concepts that have shaped the law in MENA states. It will show that Western laws, founded initially on either the Napoleonic Code or common law doctrines, have left a deep imprint on the laws and regulations in the MENA region. Similarly, so has the Islamic law ‘Shari‘a’. Section C of the chapter then moves to focus on contemporary issues in the MENA countries today and the role of comparative law in settling these issues. They include, for example, the ongoing debates on the politics of religion; the ‘Arab Spring’ and the unfolding uprisings in the Arab World and their relationship to global political economy matters such as migration, particularly after the Arab Spring and the massive number of refugees moving from the Arab region worldwide. Another important issue is related to women’s rights in the MENA states and the role of comparative law in enhancing gender equality. B. THE IMPACT OF WESTERN LAWS VERSUS ISLAMIC LAW ‘SHARI‘A’
Following the fall of the Ottoman Empire, the MENA region witnessed significant changes that formed its modern legal systems. European legal systems, mainly the British legal and French legal systems, replaced those of the Ottoman Empire. For instance, Iraq and the Gulf countries followed the British legal system, while Egypt and the North African countries followed the French system.
Sara Razai, ‘Law and Legal Systems in the Arab Middle East: Beyond Binary Terms of Traditionalism and Modernity’, The Institute of Law and Justice in Arab Societies (), see https://iedja.org/en/law-and-legal-systems-in-the-arabmiddle-east-beyond-binary-terms-of-traditionalism-and-modernity/.
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Islamic law rules and principles are derived from the holy book (‘Qur’an’) which was dictated word for word by God to Prophet Muhammad. The term Shari‘a is usually used interchangeably with Islamic law. Fiqh then means the technical process of applying the rules of Shari‘a, relating its different sources to real or hypothetical situations. According to the majority of jurisprudence, Shari‘a must be distinct from Fiqh. The main sources of Islamic law include primary sources and secondary sources. Primary sources include both the rules incorporated in the Qur’an and the Sunna. Important secondary sources include the Ijma’ and the Qiyas. The Qur’an is the main source of Shari‘a or Islamic law. For Muslims, the Qur’an is not a spiritual book, rather it is a legal code. The Qur’an is divided into Suras (chapters) and each chapter is divided into verses. Since the Qur’an is the highest source of Shari‘a or Islamic law, its rules are not arguable and cannot be modified by those derived from any other source of Shari‘a. The second primary source of Islamic law is the Sunna. Sunna means the practice of Prophet Muhammad (PB), namely actions or oral statements made by the Prophet himself, as well as practice by others if approved by the Prophet. The Sunna mainly explains the principles revealed in the Qur’an. This implies that the Sunna cannot be contradictory to the Qur’an. The Sunna is usually narrated and recorded by one of the famous jurists, being () Sahih Al-Bukhari, () Sahih Muslim, () Sunan An-Nasa’I, () Sunan Abi Dawud, () Sunan AtTirmidhi, and () Sunan Ibn Majah.
‘Glossary of Islamic Legal Terms’ () Journal of Islamic Law , . The word ‘Islam’ is an Arabic word literally meaning submission or surrender to the will of God and it refers to the religion of Muslims. See also Irshad AbdalHaqq, ‘Islamic Law: An Overview of Its Origin and Elements’ () Journal of Islamic Law and Culture , . The Arabic word for God, used by Muslims is Allah, which refers to the Islamic name of the creator, the one and only deity. Prophet Muhammad (PB) is the Prophet of Islam. When the name of Prophet Muhammad (PB) is mentioned, it is followed by the sentence Peace Be Upon Him (PB) as a mark of respect and veneration. According to Abdal-Haqq, above n. , at : ‘Muhammad had a very difficult time establishing Islam among the Arabs of his day. Ultimately he succeeded. Though born an orphan and unable to read or write, he was able to combine the religious with the secular in one of the most backward concerns of the earth to establish a civilization that ushered in the Renaissance in Europe among other things, and for his accomplishment, he has been called the most influential person in the history of the world by a non-Muslim historian’. Abdal-Haqq, above n. , at . Ibid., at (Fiqh is an Arabic word that refers to Islamic Jurisprudence and sometimes to the collection of decisions reached by a specific individual or institution). Some authors use the words Islamic law, the Shari’a and Fiqh as simultaneous words which may confuse readers, ibid., at . Mashood A. Badrin, International Human Rights and Islamic Law (New York: Oxford University Press, ). Mohamed Cherif Bassiouni and Gamal Mohamed Badr, ‘The Shari’ah: Sources, Interpretation, and Rule-Making’ () UCLA Journal of Islamic and Near Eastern Law , –. The word Sunna is an Arabic word that refers to the sayings and deeds of Prophet Muhammad (PB) and is sometimes referred to as Hadit, Abdal-Haqq, above n. , at . Ijma’ is an Arabic word that literally means the unanimous agreement or consensus of opinion and it refers to the consensus of opinion of learned Muslim scholars. Also, Qiyas is an Arabic word that literally means analogy and it refers to the process of deducing legal decisions on the basis of analogy by reference to the Qur’an and the Sunna, ‘Glossary of Islamic Legal Terms’, above n. , at . Bassiouni and Badr, above n. , at . Ibid., at . Sunna is an Arabic word which literally means method and it refers to the second source of the Shari’a, which is the sayings of Prophet Muhammad (PB), ‘Glossary of Islamic Legal Terms’, above n. , at . Bassiouni and Badr, above n. , at . Ibid. Ibid. Abdal-Haqq, above n. , at .
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Radwa S. Elsaman
If the Qur’an and the Sunna do not provide for a certain question, the supplementary sources apply. Ijma’ means the convergence of opinion on a particular issue that is not provided for by the Qur’an or the Sunna. Of course not any convergence of opinion constitutes Ijma’. After Prophet Muhammad (PB) peace be upon him, the knowledgeable supporters had to be unanimous for this to be recognised. Subsequently, Ijma’ has been established through the unanimous opinions of the professional and knowledgeable Muslim jurists of each era. The bottom line is that any conclusion reached through Ijma’ must be in conformity with the primary sources of the Shari‘a, the Qur’an and the Sunna. Qiyas means analogical reasoning, which aims to regulate a new issue with an old rule as long as this new issue is similar to that governed by the old rule. Qiyas derives its reliability as a source of the Shari‘a from the Qur’an and the Sunna. A good example of Qiyas is prohibiting drugs due to their negative impact on the body – just as the Qur’an prohibited alcohol. The Middle East and North African countries’ reactions towards the Shari‘a as a source of law varies from one country to the another. Some countries do not provide for the Shari‘a as a source of their national laws and, accordingly, the effect of the Shari‘a on their laws and regulations is not very clear. Examples include Lebanon. Some other countries consider the Shari‘a as the main source of their national laws but with limited acknowledgment of applying it to the different aspects of their legal system. Examples include Algeria, Egypt, Jordan, and Yemen. Egypt is the best example of this category of countries, since its legal system was the first Arab and Middle Eastern system to be influenced by Western laws in the nineteenth century, with most Arab countries subsequently following their approach. On the one hand, the Egyptian legal system is founded on the Napoleonic Code in addition to Islamic law. This means that the Egyptian Civil Code is heavily influenced by the French Civil Code, laying down general rules governing contracts and property. Additionally, the Commercial Law provides general rules on the conclusion of commercial transactions. Finally, Egypt’s administrative law is also attributed to France. Administrative law is created by administrative judges and exists where there are administrative courts. Thus, Egypt followed the French in adopting a dual court system. Egypt established administrative courts – the Egyptian State Council – identical to their French counterpart (the Conseil d’État.)
Abdal-Haqq, above n. , at . Ibid., at . Bassiouni and Badr, above n. , at . Islamic law countries are the countries where the majority of the population are Muslims and where the state is a member of The Organisation of Islamic Cooperation (formerly the Organisation of the Islamic Conference) with its states which represent the collective voice of the Muslim world, Abiad, above n. . Ibid. Samir Saleh, Commercial Arbitration in the Arab Middle East, Shari’a, Lebanon, Syria, and Egypt (Oxford: Hart Publishing, nd ed., ). Giuseppe De Palo and Mary B. Trevor (eds), Arbitration and Mediation in the Southern Mediterranean Countries (Alphen aan den Rijn: Kluwer Law International, ). Many Egyptian scholars argue that administrative law in Egypt did not exist until the establishment of the Egyptian State Council in , see Tharwat Badawy, The Administrative Law (Cairo: Dar Al-Nahda Press, ) (published in Arabic). This opinion argues that the emergence of administrative Law is linked to the existence of administrative courts. Administrative law, as will be shown later, is created by administrative judges and can only exist where there are administrative courts. Another opinion argues that Egypt did have administrative law even before the establishment of the Egyptian State Council. The advocates of this latter opinion rely on the existence of some awards and legislative texts that existed prior to the creation of the Egyptian State Council. A modest opinion rightly considers that Egypt did have administrative law prior the establishment of the Egyptian State Council; however, not as we know it today. Badawy, ibid., p. .
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In addition, Egypt embraced the administrative law principles that were enacted and applied by the Conseil d’État at that time. As a result, Egyptian administrative law is judge-made law. Administrative judges continue to be obliged to apply the law whenever they have it. However, in the absence of legal rules, administrative judges have more discretionary power; more freedom to interpret the existing law; and more abstract administrative law rules that allow them to mould new rules and theories, than ordinary court judges. In brief, administrative law in Egypt heavily depends on judicial decisions as one of its primary sources. Yet on the other hand, the Egyptian Constitution provides in its Clause that Islam is the religion of the state, Arabic is the official language, and the rules of Islamic Shari‘a law are the main source of legislation. In addition, the basis of family law has always been Muslim law or Shari‘a Law, as the majority of Egyptians are Muslims. Another example is Yemen. Article of the Yemeni Constitution provides that Yemen is an Arab Muslim and independent country, Article provides that Islam is the religion of the country and Arabic is its official language, Article provides that Shari‘a is the main source of legislation, and Article requires that inheritance is granted in accordance with Shari‘a. Finally, the third category of Muslim countries not only recognises the Shari‘a as the main source of their national laws, but also considers Shari‘a, particularly the Qur’an, as the constitution of their countries. Examples include Bahrain and Saudi Arabia. Thus, Clause of the Bahraini Constitution provides that: ‘The Kingdom of Bahrain is a fully sovereign, independent Islamic Arab State whose population is part of the Arab nation and whose territory is part of the great Arab homeland.’ Similarly, Article of the Basic Law of of Saudi Arabia provides that: ‘The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital.’ Similarly, the Qatari Constitution provides that: ‘Qatar is an independent sovereign Arab State. Its religion is Islam and Shari‘a law shall be the main source of its legislation. Its political system is democratic. The Arabic Language shall be its official language. The people of Qatar are a part of the Arab nation.’ The same rule is provided by the Constitution of the United Arab Emirates: ‘Islam is the formal religion of the country; the Shari‘a is the main source of its legislations and Arabic is its official language of the Union.’
The Constitution of the Arab Republic of Egypt (), Al-Jarida Al-Rasmiyya; for the English translation, see www .constituteproject.org/constitution/Egypt_.pdf. It is important to mention here that minorities in Egypt (which make up less than per cent of the population) such as Christians are subject to their own rules, see Maitre Attiat El-Kharboutly and Aziza Hussein, ‘Law and the Status of Women in the Arab Republic of Egypt’ () Columbia Human Rights Law Review . The Constitution of Yemen (); for the English translation, see www.constituteproject.org/constitution/Yemen_ .pdf. Abiad, above n. , at . The Constitution of Bahrain (); for the English translation, see www.servat.unibe.ch/icl/ba_.html. The Constitution of Saudi Arabia (); for the English translation, see www.servat.unibe.ch/icl/sa_.html. The Constitution of Qatar (); for the English translation, see www.constituteproject.org/constitution/Qatar_ .pdf. The Constitution of the United Arab Emirates (); for the English translation, see www.constituteproject.org/ constitution/United_Arab_Emirates_.pdf.
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C. CONTEMPORARY ISSUES IN THE MENA REGION AND THEIR INTERACTION WITH COMPARATIVE LAW
. International Trade and Its Relationship with Migration Policies Trade and migration are related to development. Trade policies could provide tools to improve migration governance. For instance, trade liberalisation could lower migration, as opening the markets of developed countries to exports from developing countries would reduce the pressure to migrate. In the MENA region, however, the political dynamics, particularly after the Arab Spring, mean the relationship between trade and migration may not be so straightforward. According to the most recent survey by the International Organization for Migration (IOM), the Arab region had around . million migrants in , including refugees, while . million Arabs (also including refugees) were living outside the region. Various classifications of migration patterns in the MENA region have been developed. Most common is the IOM approach, which classifies Arab migrants into three categories: forced migration and internal displacement; irregular and mixed migration; and labour migration. (a) Forced Migration and Internal Displacement Though voluntary migrants are defined as the individuals who optionally change their country of living, while refugees are the individuals who move as a result of protracted crises in their countries, the distinction between voluntarily migration and forced migration in the MENA region is not sharp. Additionally, there is a discrepancy between states regarding their commitment to receiving refugees. Forced migrants in the MENA region include migrants who were displaced internally or outside the region due to protracted crises in their countries. Examples include Syria, Iraq, Libya, Sudan, and Yemen. Currently, the MENA region is the world’s largest source of refugees with more than . million refugees detected in , in addition to. million internally displaced persons. The uprisings in the MENA region resulted in families fleeing war and persecution. Despite the above facts and the increasing number of refugees in the region, the number of MENA states that have participated in and ratified the existing international conventions and legal instruments that confer protection on refugees and stateless persons are very few. Only six states ratified the Convention Relating to the Status of Refugees concluded in Geneva on July and entering into force on April with signatories and parties: Algeria (), Egypt (), Morocco (), Sudan (), Tunisia (), and Yemen (). Additionally, some of these states have made reservations to many of its clauses. The
Heba Nassar and Ahmed Ghoneim, ‘Trade and Migration, Are They Complements or Substitutes: A Review of Four MENA Countries’, Economic Research Forum Working Paper No. (). International Organization for Migration (IOM), the UN Migration Agency, ‘IOM Middle East and North Africa Regional Strategy (–)’, see https://publications.iom.int/system/files/pdf/mena_regional_stategy.pdf. Philippe Fargues notes that in , . per cent of the refugees worldwide lived in countries that are not parties to the Refugee Convention, meaning that they are sheltered in countries where the status of refugees does not exist and are therefore dealt with as voluntary migrants. See Philippe Fargues, ‘Advancing Knowledge on International Migration: Data and Research Needs’, IUSSP Policy & Research Papers N (), see https://publications.iom.int/ system/files/pdf/mena_regional_stategy.pdf. Philippe Fargues and Christine Fandrich, ‘Migration after the Arab Spring’, Migration Policy Centre Research Report /, European University Institute (), see https://cadmus.eui.eu/handle//. Convention Relating to the Status of Refugees, Geneva, July , in force April , UNTS , see https:// treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-&chapter=&Temp=mtdsg&clang=_en.
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same applies to the Protocol Related to the Status of Refugees concluded in New York on January . Also, only three states ratified the Convention Relating to the Status of Stateless Persons concluded in New York on September , with parties and signatories: Algeria (), Libya (), and Tunisia (). Similarly, only two states ratified the Convention on the Reduction of Statelessness concluded in New York on August with its parties and signatories: Libya () and Tunisia (). Though the legal protection conferred by international conventions to refugees coming from the MENA region is not strong enough to protect refugees in this region, the United Nations High Commissioner for Refugees (UNHCR) has been working hard to promote enhanced protection throughout the region and to foster support for refugees among the Arab states. Recently, the UNHCR and the League of Arab States (LAS) signed a Memorandum of Understanding aimed at establishing a global cooperation framework for an effective response to the needs of refugees in the MENA region and to facilitate better humanitarian access and emergency response. In particular, the UNHCR estimates that more than half of the refugee population worldwide and some per cent of internally displaced persons are being hosted in the MENA region. Half of UNHCR’s annual budget, approximately, is allocated to operations in the Middle East and North Africa. (b) Labour Migration Migrant workers represent the largest group of migrants (regular and irregular) within and from the MENA region. Labour migration includes workers in the informal sector. The Gulf Cooperation Council (GCC) is a huge destination for labour migration in the region. Meanwhile, as the problem of unemployment is decreasing in the West some migrant workers may suffer from increasingly unfair working conditions. Labour migrants legally access the GCC through the Kafala (sponsorship) system, which is an official policy with the purpose of controlling and supervising all GCC-based migrants. Under this system, all migrants are required to have local sponsors who become responsible for their visa and residency documents in any of the GCC countries. This system usually requires migrants to work for two years with a probation period where their employers can always release them at no cost. Equally, a worker can terminate the contract during this period. This usually does not happen, however, since most workers finance their migration costs using loans, which restricts their power to leave their employers. Kafala is accused of not only allowing sponsors to control migrant workers but also creating a barrier to movement by obliging all foreign workers to have a national ‘kafeel’
Protocol relating to the Status of Refugees, New York, January , in force October , UNTS . Convention Relating to the Status of Stateless Persons, New York, September , in force June , UNTS , see https://treaties.un.org/Pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-&chapter=& Temp=mtdsg&clang=_en. Convention on the Reduction of Statelessness, New York, August , in force December , UNTS , see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-&chapter=&clang=_en. The League of Arab States, formed in March , is a regional organisation made up of countries of Arab states in North and Northeast Africa, and Southwest Asia. See www.unhcr.org/en-us/news/press///cd/unhcr-league-arab-states-sign-agreement-address-refugeechallenges-arab.html. Fargues and Fandrich, above n. . Froilan Malit and George Naufal, ‘Asymmetric Information under the Kafala Sponsorship System: Impacts on Foreign Domestic Workers’ Income and Employment Status in the GCC Countries’, IZA Discussion Paper No. , The Institute of the Study of Labor (), see http://ftp.iza.org/dp.pdf.
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(sponsor), who levies part of the migrant worker’s income. The Kafala system is a rigid one that gives employers absolute control over workers. In many cases, regular labour workers end up as irregular workers due to the rigid restrictions imposed by the Kafala system. Many MENA states are parties to various bilateral labour migration agreements with other Western countries. However, the relevant international entities monitoring labour conditions in the MENA region are not optimistic about the working conditions for migrants. The International Trade Union Confederation Global Rights Index reported the MENA region as the worst region for working people. The ILO Decent Work Country Programmes show similar results, particularly in the GCC. Around , migrant workers are in an irregular situation, many of whom have entered the country through exploitative recruitment practices. (c) Irregular and Mixed Migration Irregular migrants are those who belong to one of three categories: individuals who lack authorised entry; individuals who lack authorised stay such as overstaying a temporary visa; and unauthorised employees. Irregularity is not a permanent status but a transient situation that could change in either direction from regularity to irregularity or the opposite. These people can also be called transit migrants. Transit migrants include the individuals who lack an entry visa. In the MENA region, irregular migration is driven by economic, political, social, and other factors. Most irregular migration takes place towards Europe, particularly from North African countries (Morocco, Algeria, and Tunisia). Some other irregular migrants go to the GCC. Irregular migration to the GCC has always been a debated topic, with huge research gaps and limited available data. The number of irregular migrants in the Gulf was estimated in to represent at least per cent of the population and per cent of the workforce, most of whom are lower-skilled workers and domestic workers. The GCC is the top destination for irregular migration in the MENA region, with migrants mainly coming from Egypt, Syria, Jordan, Lebanon, and Yemen. Shah describes five types of irregular migration in the GCC: (i) entering unlawfully into a country; (ii) overstaying a valid residency permit; (iii) being employed by someone who is not the sponsor; (iv) running away from an employer, or absconding; and (v) being born in the Gulf to parents with an irregular status.’
Philippe Fargues, ‘Immigration vs. Population in the Gulf’ in Luigi Narbone and Martin Lestra (eds), The Gulf Monarchies beyond the Arab Spring, Changes and Challenges (Florence: European University Institute, ), p. . Examples include the Agreement on labour cooperation for domestic service workers recruitment between Saudi Arabia and India; the memorandum of understanding between the United Arab Emirates on the one hand and India and Philippines; the agreements between Qatar on the one hand and Nepal, Philippines, India, Tunisia, and Sudan concerning manpower employment in Qatar on the other; the agreement between Morocco and Spain; the agreements between Kuwait on the one hand and Egypt and Philippines on the other; and others. See International Labour Organization, ‘Bilateral Labour Arrangements (BLAs) on Labour Migration’, see www.ilo.org/ global/topics/labour-migration/policy-areas/measuring-impact/agreements/lang–en/index.htm?facetcriteria=GEO= &facetdynlist=WCMS_. See www.ituc-csi.org/IMG/pdf/--ituc-global-rights-index--report-en-.pdf. International Labour Organization, ‘Decent Work Country Program Iraq: Recovery and Reform, –’, p. , see www.ilo.org/wcmsp/groups/public/—arabstates/—ro-beirut/documents/genericdocument/wcms_.pdf. Fargues and Fandrich, above n. , p. . Ibid. International Organization for Migration (IOM), the UN Migration Agency, ‘IOM Middle East and North Africa Regional Strategy –’, see https://publications.iom.int/system/files/pdf/mena_regional_stategy.pdf. Nasra M. Shah, ‘Introduction: Skilful Survivals – Irregular Migration to the Gulf’ in Philippe Fargues and Nasra M. Shah (eds), Skilful Survivals: Irregular Migration to the Gulf (Cambridge: Gulf Research Center, ), p. .
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One of the most common reasons behind irregular migration in the GCC is the ‘free visa’ system. The free visa system refers to the system whereby the kafeel (sponsor) sells visas to migrants in return for levying an amount of money and/or annual levies. The sponsor does not plan to employ the migrant but, rather, give them access to the country where they can work for another employer. Nevertheless, working for another employer is in conflict with the Kafala system, as explained above. In this way, migrants become in breach of immigration laws and could be jailed or deported, if detected. Sometimes, migrants are not aware that they are under a free visa system until they enter the country. Various MENA states are signatories to bilateral as well as multilateral trade agreements. Thus, most Arab states are members of the Pan-Arab Free Trade Area Agreement, which aims to liberalise trade exchange among Arab states. Moreover, the six countries of the GCC are members of the GCC Economic Agreement that regulates trade exchange among the GCC countries. Meanwhile, the GCC, as a union, is a member of various free trade agreements including the European Free Trade Association. Finally, many Arab states have a bilateral free trade agreement with the European Union such as Algeria, Egypt, Lebanon, Morocco, and Syria. It is notable here that very few agreements to which MENA states are signatories refer to workers’ protection or the movement of workers. For instance, the only agreements that use the words ‘movement of workers’ are those concluded between the European Union and Morocco, the European Union and Egypt, and the European Union and Algeria. These agreements clearly require the contracting parties to engage in dialogue about social issues relevant to the field of movement of workers and equal treatment of social integration for nationals. This dialogue should particularly cover the issues of living conditions for migrant communities, migration, illegal migration, and programmes to promote equal treatment and prevention of discrimination. Moreover, the US/Bahrain free trade agreement and Canada/Jordan free trade agreements have separate chapters on labour rules. These chapters require the contracting parties to respect their obligations as members of the International Labour Organization. They also require the contracting parties to effectively enforce their national labour laws. Most importantly, they require the contracting parties to encourage trade by reducing the protections afforded in domestic labour laws. To enforce these rules, the US/Bahrain agreement provides for the establishment of a joint committee to consider issues and review activities related to the operation of the said rules. Comparative studies of migration and trade policies between the MENA states’ practices and Western countries’ practices could work side by side to help promote stability and development not only in the region, but also worldwide. Bilateral as well as multilateral trade agreements are usually the outcome of such comparative studies.
Examples include Algeria as a member to an agreement with the EU; Bahrain is a member to agreements with the Gulf Cooperation Council, Pan-Arab Free Trade Ara (PAFTA), and the United States; Egypt is a member to the Agadir Agreement, COMESA, EFTA, agreements with Turkey, the EU, the global system of trade preference among developing countries, PAFTA, and MERCOSUR; Iraq is a member to the GSTP and PAFTA; Jordan is a member to around agreements; Kuwait is a member to three agreements; Morocco is a member to eight agreements; and others. For all free trade agreements in the Arab states, see the WTO Regional Trade Agreements Database, see http:// rtais.wto.org/UI/publicPreDefRepByCountry.aspx. Article of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ No. L, March , pp. –. United States–Bahrain Free Trade Agreement, Washington, D.C., September , in force January , ch. , see https://ustr.gov/trade-agreements/free-trade-agreements/bahrain-fta/final-text. Ibid. OECD/ILO, How Immigrants Contribute to Developing Countries’ Economies (Paris: OECD Publishing, ).
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Radwa S. Elsaman
. The Legal Status of Women in the MENA Region The MENA region ranks low in gender equity compared to other countries worldwide, especially in terms of economic rights. Meanwhile, the majority of national laws are still not in line with constitutional guarantees on women’s empowerment. Having said that, debates about gender equality are not new to MENA. The lack of relevant legislation could therefore be a reason for gender inequality in the region. Other essential obstacles include the radical social practices and stereotypes that prevent the application of the rule of law, the lack of community support, and the misconception of Islamic religious rules. Though most constitutions in the region make specific reference to gender equality or at least provide for equality among citizens in terms of rights and obligations, including economic rights, MENA laws and practices still do not promote gender equality. For instance, a study by UN Women on the status of women migrants in three central receiving states – namely Bahrain, Jordan, and the United Arab Emirates – shows that female migrants are usually excluded from labour laws and have limited access to legal redress mechanisms. Discrimination, poverty, and joblessness remain the main drivers of internal migration within the region, particularly for domestic workers. In their countries of destination, women migrants suffer from issues such as non-payment or underpayment, denial of access to medical care, long working hours, lack of leave, confiscation of passports, restrictions on movement, and physical or sexual abuse. Even those who are covered by the law have insufficient information about their rights. Additionally, existing social practices are sometimes strong enough to prevent the application of the rule of law. For instance, the Egyptian Constitution, which followed a revolution, provides explicitly for gender equality between men and women in terms of work opportunities and civil, political, economic, social, and cultural rights. Nevertheless, the Egyptian judiciary is still reluctant to accept female judges. The prevailing social norms that prevent women from being judges in Egypt include the difficulty of judicial work, a lack of stability in the workplace, the massive social commitments of women, as well as the conservative nature of Egyptian society. Though they are not laws, social norms are informal rules that individuals feel obliged to follow either because they have an inner feeling of duty towards them, or because they are avoiding the social sanctions that are attributed to them. Consequently, defective social norms can deprive a nation of various chances for development. Moreover, social pressure and the conflicting demands of work and family are considerable challenges facing women in the MENA region. Recently, various employment laws in the MENA countries have sought to enable women to balance work and family. These rules include, for example, prohibitions on discrimination in employment opportunities, work conditions, and salaries. Women are also sometimes granted other rights related to their physical nature, such as paid maternity leave, childcare, breastfeeding hours, and protection against dismissal during these times. Though the legal framework should have ensured equal payment for men and women, statistics show inequality in payment by gender, particularly in the private sector. Also, favourable working rights granted to women by employment laws sometimes result in discrimination against them. Employers are overloaded with obligations towards women employees, causing them to prefer male workers.
For this point and the comparative information in the subsequent paragraphs see also Radwa Elsaman, ‘Sustainable Development Goals: Women’s Economic Empowerment in the Middle East and North Africa’ (), see https:// corporatelawacademic.wordpress.com/category/corporations-and-feminism-broadly-defined-a-symposium/.
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Finally, the majority of MENA countries have a general reservation that drafting or interpreting laws and regulations, or adopting international agreements, cannot conflict with Islamic law or Shari‘a law. The dilemma with the implementation of Islamic law as a source of legislation in most MENA countries is the interpretation of its rules. Generally speaking, the rules of Shari‘a law sound like a flexible dogma, since they could be adapted according to time and circumstance if necessitated by changes in society. However, outdated beliefs and traditions, individual state policies, an absence of female Muslim jurists, and a low rate of education lead to misconceptions about Islamic rules and accordingly discriminatory provisions against women that are claimed to be derived from the Shari‘a law. For example, most countries in the region have adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Nevertheless, the majority have reservations about many of the Convention’s clauses. Most reservations require the absence of conflict with Islamic law rules. According to various scholars and gender practitioners, such reservations have rendered the Convention devoid of meaning or unenforceable in the region. For instance, the issue of equality between Muslim men and women arises because of verse of Surah An-Nisa in the Qur’an which provides: ‘Men are the protectors (Qawwamun) and maintainers of women, because Allah has given them more strength and because they support them from their means.’ The confusion arises from the word Qawwamun. Conservative scholars translate Qawwamun as ruler or one in charge, while reformist scholars understand Qawwamun to mean protector and maintainer. Mohamed Abduh, one of the liberal Muslim authors, translates the verse to mean that a husband’s Qawwama over his wife consists not of acts of tyranny but of guidance towards righteous behaviour, education, domestic efficiency, and fiscal commitment to his budgetary guidelines. Allah has not ‘preferred’ men over women. In individual cases, wives can even surpass their husbands in knowledge, work, bodily strength, and earning power. When the Qur’an gives men a slight edge over women, this interpretation explains that it is not due to any inherent weakness of the female sex, but to the social context. It is due to the social functions traditionally performed by the two sexes. Since man earns and spends his wealth on women, he, by virtue of this fact, acquires functional leadership over women. Similarly, AI-Hibri believes the basic point of the verse is moral guidance and caring, and contends that there are two conditions for being Qawwamun: () that the man be someone whom God gave more in the matter at hand than woman, and () that he be her provider. If either condition fails, then the man is not ‘Qawwam’ over that woman. If both are fulfilled, then all that this entitles him to is caring for her and providing her with moral guidance. Because of these divergent interpretations, the reaction of legislators in the MENA region regarding equality between Muslim men and women or Qawwama varies. For instance, the majority of MENA states interpreted Qawwama in a conservative way and accordingly made reservations to the CEDAW, such as Article requiring governments to take measures to eliminate discrimination against women (for instance by pursuing equality in constitutions, amending legislation, and repealing penal provisions). Examples include Algeria, Egypt, Qatar, UAE, Syria, Iraq, and Libya. In summary, many factors negatively impact gender equality in the MENA region, leading to female labour force participation rates in the region that are the lowest in the world, which
Ibid. See Niaz A. Shah, ‘Women’s Human Rights in the Koran: An Interpretive Approach’ () Human Rights Quarterly at citing Azizah Al-Hibri, ‘A Study of Islamic Herstory: or How Did We Ever Get into This Mess?’ in Azizah Al-Hibri (ed.), Women and Islam (Oxford: Pergamon Press, ), pp. , .
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reduces the chances of the region achieving gender equality. Comparative law could contribute to providing solutions. Legal reforms and complementary policy actions by local governments and relevant non-governmental organisations that are compatible with international practices, laws, and regulations would be of added value. Teaching gender studies in schools and universities, as in the West, could also be a great solution. These could help redress the radical traditions, problematic societal practices, and misunderstandings about women’s rights which impede the acceptance of new attitudes in practice. D. CONCLUSION
Islamic law (‘Shari‘a’) is both a religion and a means of establishing a legal and social order in civil, commercial, and criminal matters that is of divine origin. As such, it comprises rules concerning devotional obligations as well as rules that create a comprehensive and integrated guide to all aspects of political, economic, national, and even international affairs. Islamic law is, therefore, increasingly seen as a sine qua non for the study of comparative law in Muslim majority countries. Nevertheless, the MENA region is not only influenced by Islamic law. On the contrary, the majority of legal systems are founded on either the French legal system or English common law doctrines. Apart from a few exceptions (such as the GCC states), Middle Eastern legal systems are founded upon principles of civil law (primarily derived from Egyptian law which, in turn, was derived from the Napoleonic Code) and are therefore codified. This variety of sources of legislation confirms that comparative law has managed to create its own important space within the MENA region. The outcome is that comparative law has not only enhanced doctrinal legal analysis in the region and reshaped domestic legal norms, but it has also challenged social practices and powerful religious rules, resulting in their reshaping. For instance, and as we saw in this chapter, comparative law dynamics (represented in international conventions and initiatives) have, at least to some extent, changed cultural, societal, and religious attitudes towards women’s rights in the region. We have also seen the same impact on the interpretation of domestic laws and international treaties when it comes to migration and its relationship with global political economy. It is common for domestic laws to reflect national values and cultural preferences, particularly in conservative countries where legal systems are mainly influenced or even dominated by religious rules. Nevertheless, comparative studies help combine Eastern heritage and Western legal doctrine to inform and reform local practices and advance the formulation of legal norms, particularly regarding common issues such as human rights, financial transactions, and the like.
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South Asia Rehan Abeyratne*
This chapter examines the development of public law in South Asia: a legal family that has been defined by its history of British colonialism and continued adherence to the common law legal tradition. It traces the evolution of constitutionalism in four countries – India, Bangladesh, Pakistan and Sri Lanka – since their independence from Britain, focusing on two common regional themes. The first is the judicialisation of politics through the adoption (or at least consideration) of the basic structure doctrine, which permits courts to define and enforce implicit limits on constitutional amendments. The second is the centralisation (and abuse of ) executive power, which has imperilled democratic rule in all four countries. While neither of these developments is specific to South Asia, the interplay between them, resulting in separate spheres of unchecked judicial and executive domination, is perhaps unique to the region and warrants further attention from comparative scholars.
A. INTRODUCTION
This chapter explores the development of public law in South Asia. Home to more than a billion people, South Asia geographically refers to countries in and around the Indian Subcontinent including Afghanistan, Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka. As a legal family, ‘South Asia’ is usually defined with reference to commonalities in the history and legal systems of these (mostly) postcolonial states. Indeed, the four countries covered in this chapter – India, Bangladesh, Pakistan and Sri Lanka – have common law legal systems, and share a history of British colonialism, followed by a Dominion period, and finally independent (and ostensibly democratic) national constitutions.
* Professor of Law, Western Sydney University. All websites cited in this chapter were last accessed on February . Rohit De, ‘South Asian Legal Traditions’ in Neil Smelser and Paul Baltes (eds), International Encyclopedia of the Social & Behavioral Sciences (Amsterdam: Elsevier, nd ed., ), vol. XXIII; Mitra Sharafi, ‘South Asian Legal History’ () Annual Review of Law and Social Science . Other authors use wider categories such as that of an ‘Asian legal family’, see for example the review of legal families in Mathias Siems, Comparative Law (Cambridge: Cambridge University Press, rd ed., ), pp. –.
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The chapter traces the evolution of constitutionalism in these four countries since their independence from Britain, focusing on two common regional themes. First, along with the entrenchment of written constitutions, we have seen the judicialisation of politics. While many factors have contributed to the rise of courts in the region, the basic structure doctrine (BSD) is perhaps chief among them. Originally adopted by the Supreme Court of India (SCI), the BSD first migrated to Bangladesh and later to Pakistan in the guise of the ‘salient features’ doctrine. The BSD has also been considered (though not adopted) in Sri Lanka. Thus, in all four countries, courts have at least opined on the constitutionality of amendments to their respective constitutions, and, in so doing, have become central players in constitutional politics. Second, executive power in the region today is effectively unmoored from legislative and other institutional checks. In India and Bangladesh, this is a recent development. Over the past decade, Prime Ministers Narendra Modi and Sheikh Hasina, respectively, have centralised power, neutralised the opposition, and now effectively govern as authoritarian leaders of single-party states. In Pakistan and Sri Lanka, unfettered executive power has long been the norm, though both countries have sought to limit executive discretion – with limited success – through constitutional amendments over the past few years. As the chapter will show, while South Asian courts have stood firm in defence of their own institutional interests, they have done little to curb the expansion of executive power, nor to bolster the institutional standing of their respective parliaments. B. INDIA
India gained independence from the British Empire in and, following a brief dominion period, adopted a republican Constitution in . The Constitution established a parliamentary democracy with a bicameral parliament. Executive power is formally wielded by the President of India, who is largely a ceremonial figure. Indeed, the Forty-Second Amendment to the Constitution () altered the constitutional text to require the President to act on the advice of the Council of Ministers (Cabinet), headed by the Prime Minister. The President, in consultation with the Chief Justice and other justices, wields the formal power of judicial appointments to the SCI and High Courts of India. Since the President must act on the advice of the Prime Minister, the latter should have the ultimate say on appointments to these courts. However, using the BSD, the SCI has gradually taken over the appointments process and has refused to allow any external oversight thereof. Meanwhile, the SCI has done little to prevent Prime Minister Narendra Modi from gaining unfettered power; rather, it has upheld his government’s use of constitutionally suspect means to circumvent parliament.
Public interest litigation is another major doctrinal innovation in South Asia that has aggrandised judicial power. See Surya Deva, ‘Public Interest Litigation in India: A Critical Review’ () Civil Justice Quarterly ; Ridwanul Hoque, ‘Taking Justice Seriously: Judicial Public Interest and Constitutional Activism in Bangladesh’ () Contemporary South Asia ; Maryam S. Khan, ‘Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Towards a Dynamic Theory of Judicialization’ () Temple International and Comparative Law Journal ; Mario Gomez, ‘The Modern Benchmarks of Sri Lankan Public Law’ () South African Law Journal . For comparative accounts of South Asian public law, see Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge: Cambridge University Press, ); Sunil Khilani et al. (eds), Comparative Constitutionalism in South Asia (Oxford: Oxford University Press, ). Constitution of India (), Article (). Ibid., Articles , .
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. Basic Structure Doctrine The BSD is arguably the most renowned constitutional development in post-colonial India. It is a judicial doctrine, created by the SCI, that permits courts to strike down duly enacted constitutional amendments that violate unamendable core principles and structures within the Constitution. The SCI first declared that it could invalidate constitutional amendments in Golak Nath v. Punjab (). The SCI, in that case, ruled that three amendments were unconstitutional for violating fundamental rights under Article of the Constitution. However, it lessened the impact of the judgment by clarifying that the ruling would only apply to future constitutional amendments. The Indian Parliament responded by enacting the Twenty-Fourth Amendment (), which effectively overruled Golak Nath by asserting that Parliament had plenary power to amend the Constitution, including fundamental rights provisions. This case set the stage for Kesavananda Bharati v. State of Kerala (), which is arguably the most significant judgment in Indian constitutional law. Perhaps surprisingly, Kesavananda upheld the Twenty-Fourth Amendment in its entirety. But the SCI issued two other rulings that were more significant. First, it overruled Golak Nath. Constitutional amendments, the Court ruled, could not violate fundamental rights because Article of the Constitution provided only that ordinary, legislative acts were subject to fundamental rights review. Second, the Court held that constitutional amendments could still be ultra vires if they violated the Constitution’s ‘basic structure’. Justice Khanna’s majority opinion focused on the phrases ‘this Constitution’ and ‘the Constitution shall stand amended’ in Article . These terms suggested the existence of a core constitutional identity that Parliament could not alter through amendments. Chief Justice Sikri, in a separate opinion, identified five aspects of the Constitution that were immune from amendment: secularism, democracy, rule of law, federalism and the independence of the judiciary. This is a nonexhaustive list, and the Supreme Court has expanded the scope of basic structure review in ‘common law’ fashion on a case-by-case basis. Judicial appointments became politicised following this landmark judgment. One day after the judgment was released, Prime Minister Gandhi recommended to the President that the progovernment Justice AN Ray should be Chief Justice. This violated the tradition of seniority, as Ray was promoted ahead of three more senior justices. This clearly was a political move: while Ray had dissented in Kesavananda, the three justices he supplanted were in the Kesavananda majority. When Ray retired, Gandhi advised the President to nominate the pro-government Justice Beg as his replacement over the more senior Justice HR Khanna, who had written a
() SCR . Ibid., . Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford: Oxford University Press, ), pp. –. Kesavananda Bharati v. State of Kerala () SCC , . Article of the Constitution provides that amendments must be passed by a majority of the total membership of each house of Parliament and a two-thirds majority of members of each house present and voting. Ibid., . Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford: Oxford University Press, ), p. . Granville Austin, Working a Democratic Constitution (Oxford: Oxford University Press, ), pp. –. Ibid.
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Rehan Abeyratne
scathing dissent in a judgment that upheld the suspension of habeas corpus during the Emergency period (–). In , the Allahabad High Court found Prime Minister Gandhi guilty of election fraud in the general elections. Facing widespread criticism and demands for her resignation, she declared a state of emergency in June . During the ensuing Emergency period, Gandhi’s government suspended fundamental rights, including habeas corpus, and jailed political opponents. In this period, Gandhi’s government also passed a slew of statutory amendments to reverse the High Court’s decision. Notably, all these statutory changes were also made retrospective, thereby absolving Gandhi from all criminal liability. Her pliant Parliament also passed the Thirty-Ninth Amendment, which insulated the Prime Minister’s election from any judicial inquiry and rendered pending proceedings in respect of such elections null and void. In Indira Gandhi v. Raj Narain (), the SCI once again forged a political compromise. Strategically, the Court unanimously upheld Gandhi’s election. Parliament had made the statutory changes retrospective and the Court upheld its right to do so. But, by a majority of four justices to one, the Court also invalidated the Thirty-Ninth Amendment. For Justice Chandrachud, this constitutional amendment had negated the right to equality, as it had discriminated in favour of the Prime Minister; Justice Khanna held that this amendment infringed upon the ‘principle of free and fair elections’; and Justice Mathew opined that the amendment had attempted to undermine ‘the exercise of judicial power [to] ascertaining the adjudicative facts’. Even Chief Justice Ray – who had dissented in Kesavananda and had been specially picked to supersede three more senior judges as Chief Justice – invalidated the amendment on the basis that it was not ‘applying any law and it, therefore, offended the rule of law’. The Emergency period witnessed further attempts to curb judicial power. The Forty-Second Amendment (), for instance, made nearly sixty changes to the Constitution, including one that expressly barred the judicial review of constitutional amendments. During the Emergency period, Gandhi also had sixteen high court judges transferred without their consent as ‘retribution’ for their rulings against her government. But the SCI was undeterred, and the BSD would be reaffirmed in Minerva Mills v. Union of India (). As in Kesavananda, this case concerned the constitutionality of several constitutional amendments that sought to shield redistributive programmess and laws from judicial review. Among other provisions, Section of the Forty-Second Amendment was at issue. It explicitly aimed to nullify the Kesavananda judgment by barring constitutional amendments from judicial review. The SCI held, inter alia, that Section violated the Constitution’s basic structure by assigning unfettered amendment authority to Parliament. As Chief Justice Chandrachud wrote in the majority opinion, ‘a limited amending power is one of the basic features of our Constitution, and therefore, the limitations on that power cannot be destroyed’.
Ibid., at pp. –; ADM Jabalpur v. Shiv Kant Shukla AIR SC (opinion of Khanna, J). Austin, above n. , pp. –. () SCR . Ibid., . Ibid., . Austin, above n. , pp. –. Indira Gandhi, above n. , . Austin, above n. , pp. –. () SCC . Ibid., .
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Parliament has not seriously challenged the legitimacy of the BSD since the s. However, the question of which institution controls appointments to the higher judiciary remains a thorny constitutional issue. In the Second Judges’ Case (), the Supreme Court assumed final authority over judicial appointments. This judgment reversed the First Judges’ Case (), which concluded that while the Chief Justice and other judges must be consulted on appointments, the President need not follow that advice. Justice Verma’s majority opinion in the Second Judges’ Case redefined the term ‘consultation’ to mean that the President must take ‘into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who . . . is best suited to know the worth of the appointee’. This judgment, therefore, established the ‘collegium’ system, where senior Supreme Court justices, led by the Chief Justice, have the final say on judicial appointments and transfers. The Third Judges’ Case () entrenched this arrangement and mandated that the collegium would consist of the Chief Justice and the next four most senior justices. The SCI also made clear that ‘if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed’. This judgment shifted the power of appointments away from the Chief Justice to a majority of the collegium, but maintained judicial control over the appointment process. Following criticisms of the collegium system, including allegations of horse-trading and a lack of transparency, Parliament amended the Constitution and enacted legislation creating a National Judicial Appointments Commission (NJAC) in . The NJAC was designed to replace the collegium in recommending nominees to fill vacancies in the high courts and SCI. It comprised six members: three SCI justices (including the Chief Justice), the Union Minister of Law and Justice, and two ‘eminent persons’ drawn from civil society. However, before the Commission could commence its work, the SCI invalidated both the constitutional amendment and legislation that created it. The Court’s principal holding in Supreme Court Advocates-on-Record Association v. Union of India () (NJAC Judgment) was that by removing judicial primacy in the appointments process – only three out of the six of the Commission’s members were judges – the NJAC compromised the independence of the judiciary, which is part of the Constitution’s basic structure. This judgment has been heavily criticised, especially since it neither explains why the Constitution requires judges to have the final word on appointments, nor addresses the serious flaws with the collegium system. Indeed, the most plausible argument in favour of the NJAC Judgment is a self-serving one: the SCI was simply unwilling to relinquish its monopoly over appointments to the higher judiciary.
Advocates-on-Record Association v. Union of India AIR SC . SP Gupta v. Union of India () SCC . Ibid., . Ibid., . In re: Appointment and Transfer of Judges AIR SC , [-]. Ibid., . Rehan Abeyratne, ‘Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective’ () George Washington International Law Review , –. The Constitution (Ninety-Ninth Amendment) Act, ; National Judicial Appointments Commission Act, , No. , Acts of Parliament, . The Constitution (Ninety-Ninth Amendment) Act, , Article . Supreme Court Advocates-on-Record v. Union of India () SCC . See Arghya Sengupta, ‘Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment’ () Economic and Political Weekly ; Abeyratne, above n. . Abeyratne, above n. , at .
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. Consolidation of Executive Power and Removal of Constraints Aside from the Emergency period (–) discussed above, parliamentary democracy had functioned relatively well in post-colonial India. The Indian National Congress (INC) dominated parliamentary elections until . Thereafter, India entered a period of splintered political power, leading to – often fragile – coalition governments and relatively weak Prime Ministers. The s also witnessed the emergence of Hindu nationalism as a serious political force. In December , Hindu mobs demolished the Babri Masjid mosque in Ayodhya – which they claimed stood in the birthplace of the Hindu god Ram – setting off widespread communal violence. In the aftermath of Ayodhya, the Bharatiya Janata Party (BJP), the standard-bearer of Hindu nationalism, rose to become one of the two major national political parties (along with the INC) in the s and s. In this period, it led coalition governments twice: briefly (for less than two weeks) in , and then from to under Prime Minister Atal Behari Vajpayee. Then, following two consecutive terms of INC-led coalition governments, the BJP swept back into power in . The BJP won a landslide victory that year: the most dominant victory in thirty years and the first time since that a single party won a majority of seats in Parliament. But it was not merely the scale of this electoral victory that marked as inaugurating a new era in Indian politics. The new Prime Minister, Narendra Modi, was fundamentally different to his predecessors. Unlike the previous BJP Prime Minister Vajpayee, who was a moderate within his party, Modi was best known for serving as Chief Minister of Gujarat during the pogroms that resulted in more , Muslim deaths. Once in power, Modi systematically disempowered parliament and other checks on his authority. A full account of these measures is beyond the scope of this chapter, but they include failing to appoint a leader of the opposition, politicising the previously independent Election Commission (and thus ensuring victory in the general elections), and co-opting Supreme Court justices with the lure of prestigious government posts upon their retirement. As Tarun Khaitan has argued, these measures, taken collectively, constitute a systematic assault on democratic institutions in India that is unprecedented in the country’s independent history. With respect to Parliament specifically, the Modi government has circumvented institutional constraints therein without any judicial pushback. Consider, for instance, the use of ‘money bills’. Generally, bills that are passed in the lower house (Lok Sabha) of Parliament must also be approved by a majority of the upper house (Rajya Sabha). The upper house in India is predominantly elected by state legislatures, which has made it less vulnerable to BJP capture. Indeed, since , the BJP has not been able to secure a majority in the upper house. But with
Milan Vaishnav and Jamie Hintson, The Dawn of India’s Fourth Party System (Washington, D.C.: Carnegie Endowment for International Peace, ), pp. –. Neelanjan Sircar, ‘Religion-as-Ethnicity and the Emerging Hindu Vote in India’ () Studies in Indian Politics , –; Brenda Cossman and Ratna Kapur, ‘Secularism’s Last Sigh? The Hindu Right, the Courts, and India’s Struggle for Democracy’ () Harvard International Law Journal , –. Vaishnav and Hinton, above n. , p. . Christophe Jaffrelot, Modi’s India: Hindu Nationalism and the Rise of Ethnic Democracy (tr. Cynthia Scoch, Princeton, NJ: Princeton University Press, ), pp. – Tarunabh Khaitan, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ () Law & Ethics of Human Rights , –. Jaffrelot, above n. , pp. –. See Madhav S. Aney, Shubhankar Dam and Giovanni Ko, ‘Jobs for Justice(s): Corruption in the Supreme Court of India’ () Journal of Law and Economics . Khaitan, above n. , –.
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the backing of a robust majority in the lower house, whose members face expulsion if they do not toe the party line, the Modi government has circumvented the upper house. Article of the Indian Constitution enables the Speaker of the lower house to designate bills relating to financial matters as ‘money bills’. Once certified as such by the Speaker, these bills can be passed solely with the support of a majority in the lower house – the upper house’s approval is not required. The Modi government has used this mechanism to pass sweeping legislation outside the realm of ordinary financial matters. The most glaring example is the Aadhar Bill , which implemented a nationwide biometric identification scheme. Certified by the Speaker as a ‘money bill’, the bill was signed into law with no involvement of the upper house. A five-judge bench of the Supreme Court upheld the constitutionality of the Aadhar Act. The judgment focused on whether the Act violated the constitutional right to privacy and other fundamental rights, effectively ignoring that its passage as a ‘money bill’ was constitutionally suspect. In dissent, Justice Chandrachud strongly opposed the judgment and made clear the constitutional stakes involved. He wrote: Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution. Passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution.
The Modi government has gone on to use this mechanism more frequently than any past government to pass legislation on controversial issues without any oversight from the upper house. And while Justice Chandrachud raised concerns about the constitutionality of the practice, the SCI does not seem like it will hold the Modi government to account on this issue, nor indeed on its other abusive constitutional practices. C. BANGLADESH
Bangladesh was part of British India until , when it split to become East Pakistan. Following a bloody war of independence, involving West Pakistan (known as Pakistan today) and an intervention from India, Bangladesh gained its independence in and adopted a republican constitution in . That Constitution (with substantial amendments) remains in force today. Article of the Constitution established a unicameral legislature in Bangladesh, with executive power wielded by government led by the Prime Minister and Cabinet who are drawn from Parliament. In the Westminster mould, the Prime Minister must maintain the confidence of a majority of Members of Parliament to remain in power. Unlike India, parliamentary democracy in Bangladesh has broken down on several occasions. The country was ruled under martial law from to and from to . Emergency rule has also been declared four times, each resulting in the suspension of
Madhav Khosla and Milan Vaishnav, ‘The Three Faces of the Indian State’ () Journal of Democracy , . Ibid.; Khaitan, above n. , at . Justice KS Puttuswamy v. Union of India () SCC (opinion of Sikri, J). Ibid. (opinion on Chandrachud, J.), . Khaitan, above n. , at ; Devyani Chhetri, ‘As Justice Chandrachud Calls Aadhaar Law “Unconstitutional”, Government Increases Use of Controversial Short Cut’, Bloomberg Quint, October . See Gary J. Bass, The Blood Telegram: India’s Secret War in East Pakistan (Noida: Random House India, ). Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Oxford: Hart Publishing, ), p. . Po Jen Yap, Courts and Democracies in Asia (Cambridge: Cambridge University Press, ), p. .
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fundamental rights. Following India’s example, however, the Supreme Court of Bangladesh (SCB) has recognised the basic structure doctrine, which it has used to defend its institutional prerogatives. And, as in India, the Court has failed to prevent or to stand against the aggrandisement of executive power in recent years. . Basic Structure Doctrine The SCB Appellate Division (AD) – its chamber of final adjudication – first recognised the basic structure doctrine in Anwar Hossain Chowdhury v. Bangladesh (). The case concerned the constitutionality of the Eighth Amendment to the Constitution, which sought to formalise a proclamation from the previous martial law period (–). The Eighth Amendment established six additional permanent benches of the Supreme Court’s High Court Division, each with exclusive jurisdiction over a designated area. This structural change had the effect of weakening the High Court Division, which was previously a unitary court based in Dhaka. In Anwar Hossain, the AD limited the amendment power in much the same manner as the SCI in Kesavananda. Justice Chowdhury, who wrote the main opinion, held that constitutional amendments could not be used to destroy the Constitution itself or any of its core elements. As he put it, ‘[T]he structural pillars of Parliament and Judiciary are basic and fundamental. It is inconceivable that by its amending power the Parliament can deprive itself wholly or partly of the plenary legislative power over the entire Republic.’ Similarly, the creation of new High Court Division benches ‘destroyed’ the ‘basic structural pillar, that is [the] judiciary’. The Chief Justice further emphasised that it was the province of the judiciary to hold amendments unconstitutional if they violated the basic structure. He said, ‘Now if any law is inconsistent with the Constitution . . . it is obviously only the judiciary which can make such declaration. Hence the Constitutional Scheme if followed carefully reveals that these basic features are unamendable and unalterable’. In a concurring opinion, Justice Ahmed similarly concluded that the additional judicial benches had ‘broken the “oneness” of the High Court Division and thereby damaged [the] basic structure . . . as such, it is void’. In recent years, the AD has forcefully intervened in Bangladeshi constitutional politics to preserve judicial independence. In , the AD held the Sixteenth Amendment to the Bangladesh Constitution unconstitutional for violating judicial independence. The Sixteenth Amendment restored a provision from the original Constitution that permitted a two-thirds majority of Parliament to remove judges for ‘misbehaviour or incapacity’. It replaced the Supreme Judicial Council, which gave select judges the power of judicial removal. In holding this amendment unconstitutional the AD, at first glance, appears to have followed the SCI’s judgment in the NJAC case.
Ibid. () DLR (AD) . Yap, above n. , p. . () DLR (AD) , . Ibid., . Ibid., (emphasis added). Ibid., . Bangladesh v. Asaduzzaman Siddiqui, Civil Appeal No. of (AD). Constitution (Sixteenth Amendment) Act .
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However, on closer inspection, the Sixteenth Amendment judgment in Bangladesh is more defensible than its Indian counterpart. For one thing, in India, judges would have constituted half of the NJAC’s members; the Sixteenth Amendment in Bangladesh removed judges from the process entirely. This amendment was, therefore, worrisome for democracy in Bangladesh, which has experienced periods of martial law and regular political interference with the judiciary. For another, Bangladesh had entrenched the basic structure doctrine into its constitutional text in the Fifteenth Amendment. This amendment made the Constitution’s preamble, fundamental rights, fundamental principles of state policy, and ‘provisions of articles relating to the basic structures’ immune from amendment. The Fifteenth Amendment also retained the Supreme Judicial Council as the mechanism for judicial removals, which provided the Council with greater legitimacy than the Indian collegium, which was never entrenched through a constitutional amendment. . Consolidation of Executive Power towards Single-Party Rule The aggrandisement of executive power in Bangladesh has come about largely because of the removal of the Non-Party Caretaker Government (NPCTG). Following allegations of fraud in a by-election, the Thirteenth Amendment to the Constitution was enacted to create the NPCTG to preside over the general elections and all general elections thereafter. Headed by the most recent former Chief Justice of Bangladesh, the NPCTG would serve as an interim government to ensure the fair conduct of elections and the smooth transfer of power to a new government. However, in , the NPCTG became embroiled in controversy. That year, the Bangladesh National Party (BNP) government passed the Fourteenth Amendment to the Constitution, which raised the retirement age of Supreme Court justices from to . This change was thought to be motivated by BNP’s desire to permit one of their former leaders, Chief Justice KM Hasan, to retire on the eve of the general election so he could helm the NPCTG in that critical period. The main opposition party, the Awami League (AL), strongly opposed what it believed was political interference with the NPCTG, leading to violent clashes between its supporters and those of the government. Eventually, a state of emergency was declared from to during which Bangladesh was ruled by a military-backed caretaker government. General elections were finally held in . Sheikh Hasina, daughter of Bangladesh’s first President Sheikh Mujibur Rahman, led the AL to victory and became Prime Minister for a second time – a post that, as of , she has not relinquished. Meanwhile, the constitutionality of the Thirteenth Amendment (which had established the NPCTG) was challenged before the SCB. In a preliminary ruling (‘Short Decision’) issued in May , the AD found that the NPCTG was undemocratic and therefore prospectively invalidated the Thirteenth
For a comparative account of the constitutional law and politics of judicial appointments in the region, see Po Jen Yap and Rehan Abeyratne, ‘Judicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia’ () International Journal of Constitutional Law . Constitution (Fifteenth Amendment) Act . Ibid., Article B. Ibid., Article . Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Abingdon: Routledge, ), p. . Ibid. Yap, above n. , pp. –.
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Amendment. The Court, however, permitted the NPCTG to be used for the next two general elections and suggested reforms to the mechanism. The Court noted that Parliament was ‘at liberty to bring necessary amendments excluding the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the [NPCTG]’. Following this preliminary judgment, the AL – which controlled a supermajority in Parliament – moved to amend the Constitution to abolish the NPCTG. The Fifteenth Amendment () fundamentally altered the constitutional landscape in Bangladesh. Among more than fifty changes to the constitutional text, this amendment added ‘secularism’ to the values listed in the Preamble, made it an offence to abrogate or suspend the Constitution in Article A, and placed the Constitution’s ‘basic structures’, including the chapter on fundamental rights, beyond the scope of amendment in Article B. As discussed above, it also retained the Supreme Judicial Council to handle judicial appointments – a point stressed by the SCB AD in its Sixteenth Amendment judgment. Most importantly for present purposes, the Fifteenth Amendment abolished the NPCTG. Its abolition led to months of protests from opposition parties in Parliament, followed by a boycott of the elections. As a result, the outcome of that election was a foregone conclusion. More than half the seats were uncontested, and the AL won a landslide victory. While the opposition participated in the subsequent general elections in , the AL won out of seats in an election that has been described as a ‘stage-managed show’ and ‘transparently fraudulent’. In addition to election-related chicanery, the AL government under Prime Minister Sheikh Hasina has systematically targeted opposition politicians and the media. Corruption is rampant in Bangladesh, with both the government and opposition leaders engaged in illegal activities. However, law enforcement has been politicised such that it targets only opposition figures, while incumbent leaders are free to operate with impunity. Indeed, all the cases (fifteen in total) filed by the BNP and the NPCTG against Sheikh Hasina were dropped by . Meanwhile, opposition leader Khaleda Zia was placed under house arrest prior to the elections, and the government filed thirty-six criminal cases against her from to . In , she was found guilty of a corruption-related offence and sentenced to five years in prison – a sentence later increased to ten years by the High Court. Opposition critics in the media, including bloggers, have been targeted under the Information and Communication Act (amended in ), which criminalises the publication of materials which are ‘false’, ‘prejudicial to the state or person’ or that hurt ‘religious beliefs’. Prior to the elections, the Bangladesh Parliament passed the Digital Security Act , enabling the AL government to more effectively silence critics engaging in online speech.
Abdul Mannan Khan v. Bangladesh () DLR (AD). Ibid. Constitution (Fifteenth Amendment) Act . Hoque, above n. , p. . Ali Riaz, ‘The Pathway of Democratic Backsliding in Bangladesh’ () Democratization , . ‘Obituary of a Democracy: Bangladesh’, The Economist, January . Riaz, above n. , at –. Ibid., at . Ibid. Ibid., at . ‘Bangladesh: New Digital Security Act Is Attack on Freedom of Expression’, Amnesty International, November , see https://amnesty.org/en/latest/press-release///bangladesh-muzzling-dissent-online/.
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As Sheikh Hasina and the AL have consolidated power and eroded parliamentary democracy in Bangladesh, the SCB has not intervened on the side of parliament or democracy. To the contrary, the Court’s ‘Short Decision’ declaring the NPCTG unconstitutional precipitated Bangladesh’s democratic decline. The AD later issued a full judgment on this issue. It held that the Thirteenth Amendment, which created the NPCTG, violated two pillars of the Constitution’s basic structure: democracy and judicial independence. On democracy, the Court noted that the NPCTG was an unelected government, contrary to democratic principles. The Court further pointed to the – constitutional crisis, when Bangladesh experienced widespread unrest and emergency rule in the build-up to general elections, as evidence that the caretaker mechanism was ineffective. On judicial independence, the AD found that the BNP government’s manipulation of judicial appointments to have their preferred candidate helm the NPCTG had ‘erode[d] the people’s perception towards the independence of the judiciary’. For these reasons, the AD ruled that the Thirteenth Amendment was unconstitutional, thereby lending legitimacy to the AL government’s decision to abolish the NPCTG, and enabling the single-party, executive-led dominance that has followed. D. PAKISTAN
In August , British India was divided into the Dominions of India and Pakistan. Pakistan’s Dominion period (–) would entrench two pillars of the country’s post-independence constitutional order: () broad executive powers; and () a prominent role for the military. Pakistan was governed in this period under the Indian Independence Act, , along with the Government of India Act, . The latter had served as the Constitution of British India during the final years of the colonial period. This constitutional framework instituted parliamentary democracy modelled on the Westminster system, but with significant power vested in a Crownappointed Governor-General. Muhammad Ali Jinnah, Pakistan’s independence leader, notably chose to assume the position of Governor-General rather than Prime Minister in , thereby affirming the relative importance (and power) of the two roles. Indeed, in the colonial era, the Governor-General wielded almost plenary power. Centralised executive power would continue to be a feature in republican Pakistan, with the judiciary in recent years attempting – with little success – to serve as a check against abusive constitutional practices, including with respect to judicial appointments and removals. Pakistan has cycled through three post-Dominion constitutions. Adopted in , and , respectively, each of these constitutions has been suspended for prolonged periods during which Pakistan was ruled under martial law or similar emergency measures. The Constitution, which remains in force today, initially restored parliamentary democracy to Pakistan by vesting executive power in the largely ceremonial figure of the President, who
Abdul Mannan Khan, above n. . Abdul Mannan Khan v. Bangladesh, Civil Appeal No of . Ibid. (opinion of SK Sinha, J), . Ibid., . On dominion constitutionalism in Pakistan, see Mara Malagodi, ‘Dominion Status and the Origins of Authoritarian Constitutionalism in Pakistan’ () International Journal of Constitutional Law . Indian Independence Act, , ss. –. Government of India Act, , ss. –. For an overview of Pakistan’s constitutional history, see Sadaf Aziz, The Constitution of Pakistan: A Contextual Analysis (Oxford: Hart Publishing, ).
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would act on the advice of the Prime Minister and Cabinet. However, following a military coup led by General Zia-ul-Huq in , the Constitution was held in abeyance until . When Zia finally lifted martial law and reinstated the Constitution on December , he did so only after it had been substantially altered by the Eighth Amendment to the Constitution. This amendment conferred constitutional validation on all the military orders and regulations issued during the martial law period and provided immunity to all those involved in the execution of those orders and regulations. Most significantly, it inserted Article ()(b) into the Constitution – a provision that harkened back to Pakistan’s Dominion period. Article ()(b) enables the President ‘to dissolve the National Assembly in his discretion where, in his opinion, the Government of the Federation could not be carried on in accordance with . . . the Constitution’. Thus, it conferred independent and broad executive power on the President, who hitherto under the Constitution had been largely limited to acting on the advice of the Prime Minister and Cabinet. . Salient Features Doctrine Zia’s death in a plane crash in , followed by general elections later that year, returned Pakistan to democratic rule. The late s and s witnessed two political parties vying for power: the Pakistan People’s Party (PPP) led by Benazir Bhutto and the Pakistan Muslim League (PML-N) led by Nawaz Sharif. However, while both leaders served multiple terms as Prime Minister, they did so in the shadow of an unaccountable presidency, backed by the military. Three successive parliaments – two controlled by the PPP and one by the PML-N – were dissolved under Article ()(b), with Prime Ministers Bhutto and Sharif, respectively, being removed from power prior to the end of their five-year terms. In a series of judgments in the s, the Supreme Court of Pakistan (SCP) upheld these dissolutions. The doctrinal tests and reasoning deployed in these judgments were haphazard and inconsistent. As Moeen Cheema put it, ‘By the end of the decade, no consistent constitutional logic or doctrine rationalizing the political cases was discernible, as the Supreme Court appeared to be relying on changing interpretations of various constitutional provisions at stake.’ From a constitutional perspective, the most significant of these judgments was Mahmood Khan Achakzai v. Federation of Pakistan (). The petitioners in that case not only challenged the President’s dissolution order but further contested the constitutionality of the Eighth Amendment, which inserted Article ()(b) into the Constitution. Specifically, petitioners argued that this provision unconstitutionally altered the Constitution’s basic structure by impairing parliamentary democracy. This case, therefore, raised the fundamental question of whether the SCP would recognise implicit limits on constitutional amendments as its Indian and Bangladeshi counterparts had done.
Constitution of Pakistan (), Article . Yap, above n. , p. . Constitution (Eighth Amendment Act), . Moeen Cheema, Courting Constitutionalism: The Politics of Public Law and Judicial Review in Pakistan (Cambridge: Cambridge University Press, ), pp. –. Aziz, above n. , p. . Yap, above n. , pp. –. Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD SC ; Ahmad Tariq v. Federation of Pakistan PLD SC ; Nawaz Sharif v. President of Pakistan PLD SC ; Mahmood Khan Achakzai v. Federation of Pakistan PLD SC ; Benazir Bhutto v. President of Pakistan PLD SC . Cheema, above n. , p. .
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The SCP’s judgment in this case categorically rejected the argument that the Constitution contained an unamendable basic structure. However, it noted that all of Pakistan’s constitutions included the same Preamble, drawn from the Objectives Resolution that had been adopted by the Constituent Assembly of Pakistan. Thus, the SCP held that the ‘salient features and basic characteristics’ of this Objectives Resolution were beyond the pale of constitutional amendment. The Court upheld the Eighth Amendment after ruling that it did not violate any salient features, but it left the door open to future legal challenges against constitutional amendments. Following the general elections, Prime Minister Nawaz Sharif sought to put an end to the presidential practice of dissolving parliament. His PML-N party secured a two-thirds majority in both houses of Parliament – the threshold required to enact constitutional amendments. Sharif’s government pushed through the Thirteenth and Fourteenth Amendments to the Constitution, which returned Pakistan to a parliamentary democracy. The Thirteenth Amendment abolished Article ()(b), thereby preventing the President from unilaterally dissolving Parliament. The Fourteenth Amendment inserted Article (A) into the Constitution, which provided for the disqualification of members who defected or breached party discipline. Article (A)() further provided that ‘no court including the Supreme Court . . . shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article’. Both the anti-defection and judicial ouster components of the Fourteenth Amendment were challenged in Wukala Mahaz Barai v. Federation of Pakistan (). The SCP reaffirmed its ruling in Mahmood Khan Achakzai that salient features of the Constitution could not be amended. While the Court did not strike down the Fourteenth Amendment, it read down Article (A)(), holding that courts may review whether acts were ‘performed without jurisdiction, coram non judice and mala fide’. It also partially read down the anti-defection provision to, inter alia, preserve ‘the right of freedom of speech of a member in the House subject to reasonable restrictions’. The SCP’s gradual embrace of the salient features doctrine was interrupted by another military coup. In , General Pervez Musharraf overthrew Sharif’s government, suspended parliament and instituted emergency rule. The Constitution was once again held in abeyance as Musharraf assumed the newly minted role of Chief Executive of Pakistan. In , Musharraf removed the incumbent President – who was merely a figurehead at this point – and took on the position himself. He then staged a popular referendum in which he received per cent of the vote and ‘legitimised’ his five-year presidential term. As President, Musharraf issued a Legal Framework Order in that barred both the PPP and PML-N from contesting the elections to be held in October that year. Perhaps most significantly, this Order
Achakzai, above n. . Ibid., –; Yap, above n. , p. . The unamendable features and characteristics include ‘federalism, parliamentary democracy and Islamic provisions including independence of judiciary’. Constitution, Article . Constitution (Thirteenth Amendment) Act, . Constitution (Fourteenth Amendment) Act, . PLD SC . Ibid., . Ibid., . Yap, above n. , p. . Ibid., p. .
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also revived Article ()(b), which had been abolished by the Thirteenth Amendment, permitting Musharraf (and future presidents) to dissolve Parliament at will. With these changes in place, and following the passage of the Seventeenth Amendment in by a pliant Parliament, Musharraf finally restored the Constitution. The Seventeenth Amendment granted immunity to the military for its actions since the coup, validated all the orders and regulations taken under emergency rule, and permitted Musharraf to remain in power until . The constitutionality of the Seventeenth Amendment was challenged before the SCP, which did not attempt to stand against the military regime. In Pakistan Lawyers Forum v. Federation of Pakistan (), the Court upheld the Seventeenth Amendment and, in a departure from prior cases, ruled that ‘no constitutional amendment could be struck down by the superior judiciary’ for violating the Constitution’s salient features. In , facing public pressure to return to civilian rule, Musharraf permitted general elections to be held that year. This time, the PPP and PML-N were allowed to participate, and they won more seats in the National Assembly than the pro-Musharraf parties. PPP leader Yousuf Gillani became Prime Minister, and the military gradually withdrew from the government. In the face of united political opposition, and with fading military support, Musharraf finally resigned as President in August . Benazir Bhutto’s widower and PPP co-chairman Asif Ali Zardari was elected as the next President. The Eighteenth Amendment () once again removed Article ()(b) from the Constitution, reducing the discretionary powers of the President and making the executive more accountable to Parliament. This Amendment also inserted Article (A) to the Constitution, which created an independent Judicial Commission. The Commission was empowered to recommend nominees to the higher judiciary for confirmation by a Parliamentary Committee. The Nineteenth Amendment () further required the Parliamentary Committee to provide ‘reasons to be recorded’ if it rejected any of the Commission’s judicial nominees. The role of the Parliamentary Committee in judicial appointments was challenged before the SCP in Munir Hussain Bhatti v. Federation of Pakistan (). The Court ultimately upheld the Nineteenth Amendment but defanged the Parliamentary Committee. It held that the Committee could not reject appointments put forth by the Judicial Commission, as that would violate judicial independence. In , the SCP once again considered the constitutionality of the Nineteenth Amendment, along with the Eighteenth and Twenty-First Amendments, in the landmark judgment District Bar Association v. Federation of Pakistan. The SCP rehabilitated the salient features doctrine, stating: ‘The Parliament, in view of Articles and , is vested with the power to amend the Constitution as long as the Salient Features of the
Cheema, above n. , p. . Constitution (Seventeenth Amendment) Act, ; Yap, above n. , pp. –. PLD SC . Ibid., . Yap, above n. , p. . Benazir Bhutto was assassinated in on December shortly after leaving a PPP campaign rally. Yap, above n. , p. . The Constitution (Eighteenth Amendment) Act, . The Commission is responsible for appointments to the Supreme Court, High Courts and the Federal Shariat Court. The Constitution (Nineteenth Amendment Act, . PLD SC . The Twenty-First Amendment created temporary military tribunals to try civilians accused of religious terrorism. PLD SC .
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Constitution are not repealed, abrogated, or substantively altered’. The Court ultimately upheld all three amendments, but the principal judgment made clear that Article (A) did ‘not offend against the Salient Features’ only in light of ‘the provisions of the th Constitutional Amendment’. Thus, the SCP ultimately stood firm in defence of judicial independence. As in Bangladesh – and unlike in India – the District Bar Association judgment is defensible in light of Pakistan’s history of democratic breakdowns and political interference with the judiciary. . The Latest Abuse of Executive Power Pakistan has been governed by elected governments since – the longest period of civilian rule in its history. The Eighteenth Amendment () has proved vital in protecting democracy in Pakistan from its latest threat: an attempt by Prime Minister Imran Khan to have the President dissolve Parliament so that Khan could avoid a no-confidence vote. Following the Panama Papers leak in , Imran Khan, then a Member of Parliament, petitioned the Supreme Court to investigate the financial dealings of Nawaz Sharif, who was serving his third term as Prime Minister (–). Article ()(f ) of the Constitution requires those standing for elections to Parliament, as well as sitting parliamentarians, to be ‘ameen’ (trustworthy in a Quranic sense). The Supreme Court had interpreted this provision broadly to disqualify several members of Parliament who had been found guilty of dishonesty by the lower courts. In Prime Minister Sharif’s case, the Court disqualified him from holding public office for life under Article ()(f ) after its investigation revealed that he possessed millions of dollars’ worth of property in the UK and in several offshore companies. Imran Khan became Prime Minister in after his party – Pakistan Tehreek-e-Insaf (PTI) – upset the PML-N and PPP to win a majority of seats in the general elections that year. Khan ran as a populist outsider, promising to reform the government from the corruption and mismanagement that characterised the PML-N and PPP governments. After becoming Prime Minister, Imran Khan systematically targeted other opposition leaders through corruption-related charges, including former President and PPP co-chairman Asif Ali Zardari.
Ibid., (c) (opinion of Azmat Saeed, J). Ibid., (e). On the significance of this judgment, see Matthew J. Nelson, ‘Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion’ () Asian Journal of Comparative Law . Yap and Abeyratne, above n. , at –. ‘Pakistan: Supreme Court Hears Panama Leaks Case’, Al Jazeera, November , see https://aljazeera.com/news/ ///pakistan-supreme-court-hears-panama-leaks-case. For a detailed account of the constitutional law and history of this provision, see Matthew J. Nelson, ‘Amending Constitutional Standards of Parliamentary Piety in Pakistan? Political and Judicial Debates’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Abingdon: Routledge, ). Imran Ahmed Khan Niazi v. Mian Muhammad Nawaz Sharif PLD SC . Omar Waraich, ‘Pakistan’s Populist Triumph’, The Atlantic, July , see https://theatlantic.com/international/ archive///imran-khan-pakistan-election//. Abid Hussain, ‘Imran Khan: A Year Facing Pakistan’s Harsh Realities’, BBC, August , see https://bbc.com/ news/world-asia-; Salman Masood, ‘Ex-President of Pakistan Is Indicted on Money Laundering Charges’, New York Times, September , see https://nytimes.com////world/asia/pakistan-asif-ali-zardari-imrankhan.html.
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In early , Pakistan faced a balance of payments crisis, leading to public outrage over rising fuel and food costs. Meanwhile, the military had soured on Imran Khan’s government, after it had backed him in . With the public and the military turning against Khan, the PPP and PML-N – whose leadership he had targeted – were determined to remove him from power. They planned to hold a no-confidence vote against the Prime Minister in April . However, citing baseless accusations of foreign interference, the Deputy Speaker of Parliament – a member of the PTI party – refused to allow the vote to proceed, citing the overriding importance of national security. Shortly thereafter, Prime Minister Khan asked President Arif Alvi to dissolve parliament and call for new elections. The SCP intervened on its own accord – before any petitions were filed before it – using its extraordinary suo motu powers. The Court noted that the Deputy Speaker’s actions were prima facie unconstitutional and claimed that it ‘acted . . . with the sole purpose of preserving constitutional order in the country’. Article of the Constitution sets forth the procedures for a vote of no-confidence in the Prime Minister. It provides that if a resolution for a no-confidence is moved by percent or more of the total membership of the National Assembly, then it must be voted upon between three and seven days thereafter. The Court held that once moved, it is mandatory to hold a no-confidence vote. In refusing to permit that vote, the Deputy Speaker violated Article of the Constitution and his order was ruled ‘devoid of legal effect’. The SCP proceeded to consider the constitutionality of the Prime Minister’s advice to the President to dissolve parliament. Article () of the Constitution permits the President to dissolve the National Assembly on the advice of the Prime Minister. However, the Eighteenth Amendment – which was intended to limit the President’s power in this area – had included an explanation with this provision. It stated: Reference in this Article to ‘Prime Minister’ shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a vote of no-confidence has been given in the National Assembly but has not been voted upon.
As the SCP noted, this explanation was intended to cover precisely the situation at issue here: a Prime Minister, fearing the loss of power, who seeks to have parliament dissolved to avoid a noconfidence vote. Thus, the Court ruled that Imran Khan’s advice to the President was unconstitutional and the President’s order dissolving the National Assembly had no legal force. Following this landmark judgment, Imran Khan was removed from office through a vote of no-confidence. He was replaced as Prime Minister by Shehbaz Sharif, who had taken over as President of the PML-N after his brother Nawaz Sharif’s disqualification from office. Pakistan,
Khalid Qayum, ‘What Led to the Downfall of Pakistan’s Prime Minister’, Washington Post, April , see https:// washingtonpost.com/business/energy/what-led-to-the-downfall-of-pakistans-prime-minister////fcfbb-ec-ad-cdec_story.html. Ibid. Ibid. Pakistan People’s Party Parliamentarians v. Federation of Pakistan, Suo Motu Case No of /Constitutional Petitions Nos – of , . Ibid., . Ibid., . Constitution, Arts. (), (). Pakistan People’s Party Parliamentarians, above n. , –. Ibid., . Ibid. Qayum, above n. .
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therefore, remains under civilian rule, with the SCP – not the military – intervening in response to a constitutional crisis. The guardrails supplied by the Eighteenth Amendment worked to prevent Imran Khan’s blatantly unconstitutional attempt to dissolve parliament. Of course, the military’s forbearance – due to its rift with Khan – was crucial in enabling the SCP to intervene as it did. It seems unlikely, based on Pakistan’s constitutional history, that the Court would have taken a similar stand in defence of the Constitution if it were opposed by the military. It also remains to be seen whether the Court will further develop its salient features doctrine to strike down abusive constitutional amendments in the future. E. SRI LANKA
Sri Lanka (then Ceylon) gained independence from the British in but it retained Dominion status until . The Constitution of that era – widely referred to as the ‘Soulbury Constitution’ – emerged from the recommendations of a constitutional reform commission, led by Lord Soulbury, who would later serve as Ceylon’s first Governor-General. The Soulbury Commission’s recommendations, in turn, were drawn from a Ministers’ Draft Constitution that was largely the handiwork of British constitutional scholar Sir Ivor Jennings. As a result, the Soulbury Constitution effectively transplanted the Westminster system to Ceylon, with a bicameral parliament exercising legislative power. It vested executive power in a Governor-General, appointed by the British Monarch, who would act on the advice of the Prime Minister and Cabinet. The elite, colonial nature of the Soulbury Constitution would ultimately be its undoing. Not only did the constitution-making process lack any broad-based public consultation – and therefore alienated the Tamil and Muslim minorities – but it also enabled the rise of Sinhala nationalism. It fed the perception that Ceylon as a dominion lacked sovereignty over its own affairs, which was exploited by nationalist politicians to engineer its downfall. In , Ceylon became Sri Lanka and adopted its first republican constitution. Following major amendments, Sri Lanka effectively adopted a new Constitution six years later. The Constitution, which remains in place today, retained core features of the original republican Constitution. It confers special status on the majority religion and language (Buddhism and Sinhala, respectively). It also limits the Supreme Court of Sri Lanka (SCSL) to pre-enactment review: the SCSL cannot review bills after they are passed into law. Further, a two-thirds majority in Parliament may amend the Constitution as well as enact bills into law notwithstanding their inconsistency with provisions in the Constitution. The main import of the Constitution was to convert Sri Lanka from a parliamentary to semi-presidential democracy. To wit, the Sri Lankan President is directly elected and does not
Ceylon (Constitution) Order in Council . Colonial Office, Ceylon: Report of the Commission on Constitutional Reform () (‘Soulbury Commission Report’). Harshan Kumarasingham (ed.), The Road to Temple Trees: Sir Ivor Jennings and the Constitutional Development of Ceylon: Selected Writings (Colombo: Centre for Policy Alternatives, ), pp. –. Soulbury Commission Report, above n. , pp. –. Ibid., pp. –. For an account of constitutionalism under the Soulbury Constitution, see Rehan Abeyratne, ‘Uncertain Sovereignty: Ceylon as a Dominion –’ () International Journal of Constitutional Law . Constitution of Sri Lanka (), Articles , . Ibid., Article (). Ibid., Articles , .
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depend on parliamentary confidence to remain in power. The President presides over a Cabinet of Ministers, which like the Prime Minister, is drawn from the majority party in Parliament. The President is empowered to nominate the Prime Minister and Cabinet of Ministers, who serve at the President’s pleasure. Moreover, the President may assign him or herself any portfolio or function and may dissolve Parliament at any time except during the first year after a general election. Faced with a powerful executive, and limited powers of judicial review, the Sri Lankan judiciary has not influenced the path of constitutionalism as much as its counterparts across the region. It has adopted only a limited jurisprudence on constitutional amendments and, except for ruling against blatant abuses of power, has largely stood on the sidelines as recent presidents have become increasingly authoritarian. . Judicial Review of Constitutional Amendments The SCSL has taken a cautious approach to adjudicating constitutional amendments. The Court first considered whether the Constitution contained an unamendable basic structure in the Thirteenth Amendment Case (). The proposed Thirteenth Amendment would have devolved significant powers to provincial councils, thereby weakening the central government. This amendment was challenged on the grounds that it violated, among other things, the sovereignty of the people as protected in Articles and of the Constitution, the unitary state (Article ) and Article . The latter lists several entrenched provisions that may only be amended by a two-thirds majority in Parliament, followed by a public referendum. Articles and of the Constitution were among those listed in Article . Since the Thirteenth Amendment affected these provisions, petitioners argued that the Thirteenth Amendment must be subjected to a referendum. The Thirteenth Amendment further sought to add entrenched provisions to Article , which petitioners argued was unconstitutional. They contended, relying on the SCI’s judgment in Kesavananda, that Article constituted part of the Constitution’s basic structure and was, therefore, unamendable. A divided SCSL rejected this argument. The majority noted that the amendment provision in the Indian Constitution (Article ) was significantly different from that in the Sri Lankan Constitution (Article ). Article does not define or delimit the term ‘amendment’ – a crucial factor for a majority of the SCI bench in Kesavananda. As Justice Khanna wrote in that case: The word ‘amendment’ postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of
Ibid., Article (). Ibid., Article . Ibid., Articles –. Ibid., Article , . In Re the Thirteenth Amendment [] Sri LR . Ibid., –. Constitution of Sri Lanka (), Article . Under Article , all other parts of the Constitution can be amended by a two-thirds majority in Parliament. In Re the Thirteenth Amendment, above n. , . Ibid., . Ibid.
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the amendment, the old Constitution cannot be destroyed and done away with; it is retained though in the amended form.
In other words, because Article is silent on whether an amendment can replace or repeal the existing Constitution, the SCI read implied limitations into that provision to prevent amendments from being used destructively. By contrast, Article () of the Sri Lankan Constitution expressly defines amendment to encompass ‘repeal, alteration, and addition’. Therefore, according to the SCSL majority in the Thirteenth Amendment Case, there was no scope for implied limitations. As the majority put it, ‘[I]f the Constitution contemplates the repeal of any provision or provisions of the entire Constitution, there is no basis for the contention that some provisions which reflect fundamental principles or incorporate basic features are immune from amendment’. Thus, they made clear, ‘we do not agree with the contention that some provisions of the Constitution . . . are unamendable’. In , the SCSL revisited this issue. The case concerned the constitutionality of the proposed Nineteenth Amendment to the Constitution, which, among other things, would have limited the President of Sri Lanka’s power to dissolve Parliament. Petitioners argued that this new scheme would violate Article of the Constitution, when read together with Article (b). Article , which places sovereignty in the Sri Lankan people, is an entrenched clause listed in Article . Thus, it may only be amended with the support of a two-thirds majority in Parliament, followed by a public referendum. Article , which lays out the separation of powers scheme in the Constitution, is not an entrenched clause. Article (b) provides, ‘The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People.’ The Court held that a transfer of the President’s powers to Parliament – which the Nineteenth Amendment would have effectuated – would constitute an ‘alienation of sovereignty which is inconsistent with Article read together with Article of the Constitution’. As such, the Court concluded that the Nineteenth Amendment must be subject to a public referendum for approval, as required by Article . The Court, in effect, gave Article entrenched status, making it much more difficult to amend. In , the SCCL once again considered the constitutionality of the Nineteenth Amendment and conferred this higher status on Article more explicitly. Petitioners, in this case, argued that the proposed amendment altered the ‘basic structure’ of the Constitution by ‘diminishing the final discretionary authority of the President’ in violation of Articles and . The Court initially conceded that the ‘Sovereign people have not chosen to entrench Article . . . and not all violations of Article will necessarily result in a violation of Article ’. Nonetheless, the Court held that the Nineteenth Amendment sufficiently altered the exercise of the President’s executive power under Article that some of its provisions ‘require the approval of the People at a Referendum in terms of . . . Article of the Constitution’.
Kesavananda, above n. , . In Re the Thirteenth Amendment, above n. , –. Ibid., . In Re the Nineteenth Amendment, [] Sri LR . Ibid., . Constitution of Sri Lanka (), Article (b). In Re the Nineteenth Amendment, above n. , . Ibid., . In Re the Nineteenth Amendment, SD Nos –/ ( May ) . Ibid., . Ibid., .
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Thus, while the basic structure doctrine was explicitly rejected in the Thirteenth Amendment Case, the SCSL enforced an implied limitation on amendments to executive power in its two Nineteenth Amendment judgments. While the Court did not declare any parts of the Sri Lankan Constitution unamendable, it placed a thumb on the scale against structural changes to the presidency by subjecting the Nineteenth Amendment to the additional requirement of a public referendum. . (Failed) Attempts at Reining in the Executive Presidency In , Mahinda Rajapaksa was elected President of Sri Lanka. Under his leadership, the government finally – and brutally – prevailed in the civil war against the Liberation Tigers of Tamil Eelam (LTTE) in . In the aftermath of the war, Rajapaksa’s popularity soared, and he moved to consolidate his (and his family’s) control over Sri Lanka. His government pushed for the enactment of the Eighteenth Amendment to the Constitution in , which greatly expanded presidential power and removed independent checks on that authority. It abolished term limits for the President, who was previously limited to two six-year terms. This would allow President Rajapaksa to contest elections (and to potentially remain in power) indefinitely. This amendment also repealed vital constraints that the Seventeenth Amendment had placed on executive power. Enacted in with multi-party support, the Seventeenth Amendment aimed to depoliticise certain areas of governance. It created an independent Police Commission, Human Rights Commission and Election Commission, among others. The President was permitted to appoint members of these commissions, but only with the consent of an independent Constitutional Council. The Eighteenth Amendment replaced the Constitutional Council with a five-member Parliamentary Council that consisted of the Prime Minister, the Speaker, the Leader of the Opposition, and two Members of Parliament nominated by the Prime Minister and the Leader of the Opposition. This not only politicised the appointments process, but also guaranteed that the President’s appointees would be approved, as three of the five Parliamentary Council members represented the majority party or coalition. The Eighteenth Amendment further empowered the President to appoint the Chairman and members of the following commissions: the Police Commission, the Human Rights Commission, the Permanent Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission and the Delimitation Commission. In effect, it rendered these commissions ‘independent’ in name only. Not content to simply control and aggrandise the presidency, the Rajapaksa family’s tentacles extended across Parliament and Cabinet positions. In addition to Mahinda Rajapaksa serving as
Sumit Ganguly, ‘Ending the Sri Lankan Civil War’ () Daedalus . Rohan Edrisinha and Aruna Jayakody (eds), The Eighteenth Amendment to the Constitution: Substance and Process (Colombo: Centre for Policy Alternatives, ). Seventeenth Amendment to the Constitution (). The Constitutional Council consisted of ten members including the Prime Minister, the Speaker of Parliament, the Leader of the Opposition, one person appointed by the President, one person appointed by Parliament (representing a party other those of the Prime Minister and the Leader of the Opposition), and five eminent persons nominated by the President with the consent of both the Prime Minister and the Leader of the Opposition. Its main function was to recommend nominees for appointment to the independent commissions with a view to depoliticising key areas of governance. Eighteenth Amendment to the Constitution (). Ibid.; Edrisinha and Jayakody, above n. .
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President from to , Gotabaya Rajapaksa, Mahinda’s younger brother, served as Defence Minister from to and was elected President from to . Elder brother Chamal Rajapaksa was Speaker of the Parliament from to ; another younger brother, Basil Rajapaksa, was appointed Minister of Economic Development from to and Minister of Finance from to ; and finally, Mahinda’s son, Nemal Rajapaksa, has been an MP since and served as Minister of Youth and Sports from to . Yet, in this era of Rajapaksa family dominance, there was a brief period of respite in which Sri Lanka appeared to transition to a more accountable and representative government. In the presidential election, Maithripala Sirisena, who had served as President Mahinda Rajapaksa’s Secretary of Health, ran as the unified opposition candidate against Rajapaksa. His victory – considered a huge upset – ushered in a unity coalition government committed to reform. Within a few months of President Sirisena’s term, the Sri Lankan Parliament enacted the Nineteenth Amendment. It restored some aspects of the pre-Eighteenth Amendment Constitution, including a two-term limit on presidents and a Constitutional Council to vet appointments to independent commissions and the higher judiciary. While there was political pressure to abolish the executive presidency and return to a parliamentary system, the Nineteenth Amendment () struck a compromise. The presidency would remain, but the President would be barred from dissolving Parliament within the first four and a half years of its term. Moreover, the President could no longer remove the Prime Minister at will, nor hold any Cabinet portfolios. The Nineteenth Amendment also made the President accountable to the judiciary: official acts of the President would hereafter fall within the Supreme Court’s jurisdiction over fundamental rights. Empowered by the Nineteenth Amendment, the Supreme Court – which is institutionally weaker and has historically been more circumspect than other apex courts in South Asia – stood firm against a blatantly illegal attempt by President Sirisena to make Mahinda Rajapaksa Prime Minister. This constitutional crisis occurred in October , when the coalition government formed by Sirisena’s United People’s Freedom Alliance (UPFA) and the United National Party (UNP), headed by Prime Minister Ranil Wickremesinghe, fell apart. The rift between these leaders was caused, among other things, by anaemic economic growth; trouble repaying debts to foreign lenders, including China; and the Rajapaksa party’s dominant victory in the local elections. On October , the UPFA left the unity government and President Sirisena appointed Mahinda Rajapaksa as the new Prime Minister. The sitting Prime Minister, Ranil Wickremesinghe, refused to relinquish his position. On November, with Wickremesinghe
Mario Gomez, ‘Constitutional Struggle in Sri Lanka’ () Federal Law Review , . Nineteenth Amendment to the Constitution (). Ibid. For a comparison of the Seventeenth and Nineteenth Amendments, see Gehan Gunatilleke, ‘The Structural Limits of Depoliticisation in Sri Lanka’ () Round Table . Gomez, above n. , at . Nineteenth Amendment to the Constitution (). For a summary of all these changes, see A Brief Guide to the Nineteenth Amendment to the Constitution (Colombo: Centre for Policy Alternatives, ), see https://cpalanka.org/ wp-content/uploads///A-Brief-Guide-to-the-Nineteenth-Amendment.pdf. Asanga Welikala, ‘Paradise Lost? Preliminary Notes on a Constitutional Coup’, Groundviews, October , see https://groundviews.org////paradise-lost-preliminary-notes-on-a-constitutional-coup/. Dinesha Samararatne, ‘Losing a Paradise We Never Had?’, Groundviews, November , see https://groundviews .org////losing-a-paradise-we-never-had/. In , the Sri Lankan government handed over a newly built port – built with Chinese investment – to Beijing on a ninety-nine-year lease as a form of payment of the debt it had incurred from China. Samararatne, above n. .
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continuing to insist that he was the rightful Prime Minister, Sirisena issued a proclamation dissolving Parliament and calling for snap elections. The proclamation was promptly challenged before the SCSL. The lead petitioner, an MP and leader of the opposition, argued, inter alia, that the proclamation, by illegally dissolving parliament, violated his and other MPs’ right to equality under Article () of the Constitution. A seven-judge bench of the SCSL unanimously ruled in the petitioners’ favour. The Court noted that, following the Nineteenth Amendment, Article () of the Constitution provided that the President ‘shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting’, unless dissolution is requested by / of the total membership of Parliament. Since that period had not expired and no request for dissolution came from a supermajority of MPs, the President was barred from dissolving Parliament. The SCSL went on to hold that the proclamation violated the petitioner’s right to equality under Article (). In response to the government’s contention that Article () required a showing of differential treatment based on classification, the Court referred to its expansive past jurisprudence in this area wherein it held that Article () encompassed mala fide and arbitrary executive acts as well as ‘the protection of the rule of law’. It said: It is a misnomer to equate ‘Equal Protection’ with ‘reasonable classification’. It would clothe with immunity a vast majority of executive and administrative acts that are otherwise reviewable . . . if this Court were to deny relief merely on the basis that Petitioners have failed to establish ‘unequal treatment’, we would in fact be inviting the State to ‘equally violate the law’.
Thus, the SCSL concluded that the petitioners’ rights, both as parliamentarians and citizens, should be protected from the ‘arbitrary exercise of power’. It quashed the proclamation with a declaration that it was null and void. Following the Court’s judgment, Rajapaksa sent a letter of resignation to President Sirisena, and Wickremesinghe was reinstated as Prime Minister. The judgment was hailed not only for ending a constitutional crisis, but for upholding the rule of law and separation of powers. Yet, the SCSL was only able to intervene due to the Nineteenth Amendment, which limited presidential power vis-à-vis parliament and subjected presidential acts to judicial review. In the election, Mahinda’s younger brother and former Defence Secretary Gotabaya Rajapaksa was elected President, with Mahinda appointed Prime Minister. The Rajapaksas, with full control of government again, swiftly went about removing the guardrails put in place by the Nineteenth Amendment. The Twentieth Amendment, passed in October , permitted the President to remove the Prime Minister at will and to dissolve Parliament after two and a half years (as opposed to four and a half years under the Nineteenth Amendment). It abolished the
‘Sri Lanka’s President Calls Snap Election in Bid to End Power Struggle’, The Guardian, November , see https://theguardian.com/world//nov//sri-lanka-president-dissolves-parliament-in-bid-to-end-power-struggle. Sampanthan v. Attorney General SC FR Application No / (). Ibid., . Article () of the Constitution gives the Supreme Court exclusive jurisdiction to review executive acts that infringe fundamental rights. Ibid., . Ibid., . Ibid., . ‘A Historic Judgment’, Groundviews, December , see https://groundviews.org////a-historic-judg ment-supreme-court-holds-dissolution-of-parliament-illegal/. Twentieth Amendment to the Constitution ().
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Constitutional Council and replaced it with a partisan Parliamentary Council comprising the Speaker of the House and four Members of Parliament. It therefore gave the President untrammelled authority to appoint members of independent commissions and the higher judiciary. Gotabaya Rajapaksa resigned as President in July and fled the country amid the worst economic crisis in Sri Lanka’s postcolonial history. The Sri Lankan Parliament is now on the verge of enacting the Twenty-First Amendment to the Constitution. Like the reformoriented amendments that preceded it, the Twenty-First Amendment aims to constrain executive power once again. Elected representatives in Sri Lanka have been playing what Dinesha Samararatne has called ‘constitutional ping-pong’ over the past two decades, oscillating between more accountable and more authoritarian forms of executive power. The Seventeenth and Nineteenth Amendments were countered by the Rajapaksas through the Eighteenth and Twentieth Amendments, respectively. Given Sri Lanka’s history of authoritarian-leaning presidents, and its relatively weak judiciary, it seems unlikely that the Twenty-First Amendment will end the ‘ping-pong’ cycle. F. CONCLUSION
This chapter has traced the development of public law in South Asia from the late s to the present day. It has highlighted the expansion of judicial power through an exploration of the ‘basic structure’ doctrine in India and Bangladesh, the analogous ‘salient features’ doctrine in Pakistan, and pre-enactment review of constitutional amendments in Sri Lanka. The Supreme Courts of all four countries have judicialised constitutional politics and shaped the trajectory of constitutionalism in their jurisdictions. In three of them – India, Bangladesh and Pakistan – the courts have issued strong rulings in defence of judicial independence, especially with respect to political interference (both real and perceived) in the appointment and removal of judges. At the same time, however, the chapter has shown how executive power in the region has been aggrandised, with little to no judicial pushback. Prime Ministers Narendra Modi and Sheikh Hasina in India and Bangladesh, respectively, have centralised power in the executive, quashed the opposition, and appear set to rule indefinitely without any significant institutional checks on their authority. The SCI has, inter alia, upheld the Modi government’s circumvention of parliament, while the SCB, in striking down the Thirteenth Amendment, politicised the conduct of elections in Bangladesh, which hastened the country’s slide towards autocracy. In Pakistan, executive power has been abused regularly in the country’s postcolonial period. The Constitution was suspended twice (–, –) following military coups, and even during civilian periods, presidents would routinely dissolve parliament and dismiss elected governments before they completed their terms. The Eighteenth Amendment () sought to insulate Parliament from such executive conduct. It proved successful when the SCP
Gomez, above n. , at ; see A Brief Guide to the Twentieth Amendment to the Constitution (Colombo: Centre for Policy Alternatives, ), see https://cpalanka.org/wp-content/uploads///A-brief-guide-to-the-thAmendment-to-the-Constitution-English-CPA-compressed_compressed-.pdf. Mahinda Rajapaksa had resigned as Prime Minister two months earlier. Ishaan Tharoor, ‘How One Powerful Family Wrecked a Country’, The Washington Post, May , see https://washingtonpost.com/world////raja paksa-family-sri-lanka/. ‘Sri Lanka Cabinet Passes Twenty-First Amendment Aimed at Empowering Parliament over President’, Hindu, June , see https://thehindu.com/news/international/sri-lankan-cabinet-passes-st-amendment-aimed-atempowering-parliament-over-president/article.ece. Dinesha Samararatne, ‘Constitutional Ping-Pong: Sri Lanka’s Crisis and the Rediscovery of Political Agency’ Verfassungsblog, May , see https://verfassungsblog.de/constitutional-ping-pong/.
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prevented Prime Minister Imran Khan’s attempt to have the President dissolve Parliament to avoid facing a no-confidence vote. But the precarity of democratic institutions, and the everlooming threat of a military coup, does not augur a bright future for public law in Pakistan. Finally, in Sri Lanka, the Constitution established a powerful executive presidency, which became increasingly authoritarian under Presidents Mahinda and Gotabaya Rajapaksa. The SCSL used its fundamental rights jurisdiction over executive acts, which it obtained through the Nineteenth Amendment (), to prevent the removal of Prime Minister Wickremasinghe. Like the SCP, the SCSL protected Parliament in this instance from a blatantly unconstitutional use of executive power. With the Rajapaksas removed from power (for now), it appears that Sri Lanka can return to a more accountable presidency. Yet, as long as the semi-presidential system remains in place and the SCSL is largely limited to pre-enactment review, it seems unlikely that executive power will be constrained for long. From a broader perspective, this chapter shows that South Asia as a legal family has purchase beyond the historical legacy of British colonialism and the common law legal tradition. The judicialisation of politics and the aggrandisement of executive power, to be sure, are global phenomena. But the interaction between these phenomena, wherein courts have claimed the extraordinary power to adjudicate the legality of (and in some cases strike down) constitutional amendments, while simultaneously failing to prevent democratic decline, may be unique to this region and should be the subject of further study.
Ran Hirschl, ‘The Judicialization of Mega-Politics and the Rise of Political Courts’ () Annual Review of Political Science . Tarunabh Khaitan, ‘Executive Aggrandizement in Established Democracies: A Crisis of Liberal Democratic Constitutionalism’ () International Journal of Constitutional Law .
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Sub-Saharan Africa Charles Manga Fombad*
For a variety of reasons, countries in Sub-Saharan Africa have retained the legal systems that had been imposed on them during the colonial period. The question that this chapter tries to respond to is whether, after six decades of independence, particularly after the fairly fundamental constitutional reforms that started in the s, there have been any significant changes made to these legal systems. In other words, have the recent legal reforms resulted in the emergence of laws that are distinct and better suited to meeting the peculiar challenges of the sub-continent and have a distinct identity within or without the legal traditions they inherited? The chapter, among other things, examines the main trends in legal reforms, and highlights the nature and scope of legal changes in certain key areas. It is against this background that a comparative analysis is undertaken to assess the impact of the different legal reforms on the quality of justice and respect for the rule of law. The chapter concludes by pointing out that although there remains a clear common law/civil law divide on the continent and that no Sub-Saharan African legal system is emerging, there are some distinct sub-regional features, such as a special mix of RomanDutch/English common law in operation in southern Africa.
A. INTRODUCTION
At independence, African countries, particularly those in Sub-Saharan Africa, opted to retain the legal systems that had been imposed on them during the colonial period. For diverse reasons, it was convenient to do so. In spite of this, it is unavoidable that laws must be modernised if they are not to have a regressive impact on economic development. Six decades after independence the question that needs to be examined here is whether there have been any significant changes made to these legal systems in the course of these legal reforms. Are there any signs that legal developments during the past decades have resulted in these countries adopting laws that are better suited to their environment and have a distinctive identity within or without the legal traditions they inherited at independence? Or put differently, to what extent, if at all, have these * Professor of Law, Director, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, South Africa. All websites cited in this chapter were last accessed on February .
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legal developments moved these countries beyond the inherited legal systems and set them on the path to charting new and independent courses? In trying to respond to these questions, this chapter will proceed in Section B to examine the main legal traditions that were received in Sub-Saharan Africa during the colonial period. In doing so, it considers why foreign legal traditions were retained when these countries gained independence. Section C looks at the main trends in legal reforms in these countries. It highlights the nature and scope of legal changes in certain key areas. It is against this background that a comparative analysis is undertaken in Section D to assess the impact of the different legal reforms on the quality of justice and respect for the rule of law. It also assesses the prospects for the future of inherited legal traditions in Sub-Saharan Africa. The chapter ends with some concluding remarks in Section E. B. MAIN PATTERNS OF TRANSPLANTED LEGAL TRADITIONS
All African countries were, with the exception of Ethiopia and Liberia, completely occupied by European imperial powers in the nineteenth century. Insofar as Sub-Saharan Africa is concerned, the main colonial powers were Belgium, France, Germany, Great Britain, the Netherlands, Italy, Portugal and Spain. Germany, however, lost all its colonial territories in Sub-Saharan Africa (Cameroon, Namibia, Tanzania and Togo) after the First World War. During the colonial period, each of the colonial powers transplanted its administrative and legal systems to the territories it occupied. Three main legal systems were transplanted during this period: the civil law, the common law and a combination of these two, usually referred to as mixed systems. The two dominant legal traditions in the region are the civil law and the common law, which was transplanted mainly by the two most active colonial powers on the continent, the British and the French. These two powers, along with the Netherlands, also contributed to the mixed systems that exist. The civil law, which is predominantly based on or influenced by Roman law (the ius civile), was developed during the Roman Republic by inter alia praetorian edicts, which spread throughout Europe. This is the basis of the legal systems of the European countries that had African colonies, such as Belgium, France, Germany, Italy, the Netherlands, Portugal and Spain. This was also the legal system that they transplanted to their colonial territories. By contrast to the civil law, the common law system originated in England and was transplanted by
These territories were seized by the Allied forces during the First World War and confiscated under the Treaty of Versailles. One could include Islamic law amongst the transplanted laws. However, although Islam arrived in Africa as early as the seventh century, Islamic law has not had the influence on legal systems in Sub-Saharan Africa that other legal traditions, that were transplanted to Africa much later, have had. One reason for this is that apart from a few countries in the region, such as Nigeria and Sudan which have large Muslim communities, in most other countries Muslims are in the minority. The main reason, though, is that because the application of Islamic law, like indigenous African customary law, was severely restricted during the colonial period, it now only regulates certain aspects of personal life such as marriage and succession. Besides this, in most countries in this region, Islamic law has become largely indigenised to the extent that it is often classified as a type of indigenous African customary law. The countries in Sub-Saharan Africa that inherited the civil law system from Belgium are Democratic Republic of Congo, Burundi and Rwanda. Those that inherited this system from France are Togo, Gabon, Republic of Congo, Central African Republic, Comoros Island, Madagascar, Mauritania, Cameroon, Ivory Coast, Burkina Faso, Niger, Benin, Burundi, Guinea, Chad, Rwanda, Congo, Mali, the Seychelles, Djibouti and Senegal. Eritrea and, to a limited extent, Ethiopia inherited their civil law systems from Italy, while the system in Equatorial Guinea is based on the Spanish civil law tradition. Finally, the legal systems of Angola, Cape Verde, Mozambique and Guinea Bissau are based on the Portuguese civil law system.
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the British to all its former colonies in Sub-Saharan Africa. Save for those countries where the British and French had been preceded by a former European power, both the civil law and common law systems became the dominant legal systems in their colonies. As regards the mixed jurisdictions in Sub-Saharan Africa, it is necessary to note that the very concept of ‘mixed systems’ is contested and there is no generally accepted definition of it. It is important to make this clarification because there are some jurisdictions in the region that appear to be mixed but cannot properly be categorised under any of the three main legal systems that I have identified. For the purposes of this discussion, I have adopted the definition or description of the mixed system offered by Vernon Palmer. According to him, a mixed system must have at least three characteristics. The first characteristic concerns the specificity of the mixture and requires that the system should be built upon dual foundations of common law and civil law materials. This therefore excludes diverse mixes in Sub-Saharan Africa, such as those between either the civil law or common law and religious law (mainly Islamic law), and indigenous customary laws. The second characteristic is quantitative and psychological, and requires a significant mix of both. Hence, the occasional borrowing or transplantation of some elements from one system to another will not on its own transform that system into a mixed jurisdiction. The final characteristic is structural. As Vernon Palmer puts it; ‘in every case the civil law will be cordoned off within the field of private law, thus creating the distinction between private continental law and public Anglo-American law’. In other words, there has emerged a pattern where, in such systems, the common law predominates in the public sphere and the civil law in the private sphere. Guided by Vernon Palmer’s definition, it can be said that in Sub-Saharan Africa, there are presently two groups of countries that fit this description of a mixed system. The larger of the two groups consists of countries that have a mixed common law/ Roman-Dutch legal heritage. This consists of the countries that make up what was referred to as the South Africa Law Association, namely, Botswana, Eswatini, Lesotho, Namibia, South Africa and Zimbabwe. It must, however, be noted that the ‘reception’ of the common law and Roman-Dutch law in these southern African states, with the exception of South Africa, is different from the way the common law and civil law were received in the rest of Africa. Whereas South Africa received this mixed system directly from both the Dutch and, later, the British, the other countries in the region received it largely indirectly through South Africa. In the other category are Mauritius and Seychelles, where there is a mix of the common law and French civil law.
The common law jurisdictions in Sub-Saharan Africa are: The Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Sudan, Tanzania, Uganda and Zambia. See Kenneth G.C. Reid, ‘The Idea of Mixed Legal Systems,’ () Tulane Law Review ; Vernon Valentine Palmer, ‘Mixed Legal Systems’ in Mauro Bussani and Ugo Mattei (eds), The Cambridge Companion to Comparative Law (Cambridge: Cambridge University Press, ), p. . See Vernon V. Palmer, Mixed Jurisdictions Worldwide. The Third Legal Family (Cambridge: Cambridge University Press, ), p. . For this topic, see also the chapter by Diala, Chapter (in this volume). See Palmer, above n. , p. See Justice Schreiner, in Annah Lokudzinga Mathenjwa v. R. (–) Swaziland Law Reports . In this era of increasing sensitivity to the grave injustices of colonialism, the word ‘reception’ is used in this chapter with reservations. There is no evidence to suggest that there was any willing acceptance of these European legal systems by Africans or that the process was anything less than a manifestation of cultural imperialism by the powerful colonial nations. See further, John R. Schmidhauser, ‘Legal Imperialism: Its Enduring Impact on Colonial and PostColonial Judicial Systems’ () International Political Science Review . The Dutch initially settled in large parts of what eventually became South Africa and introduced the Roman-Dutch law in the mid-seventeenth century but when the British took over the colony in , they retained this law while
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Charles Manga Fombad
Two anomalous cases do not fit within the threefold classification of Sub-Saharan African countries according to their inherited legal traditions. The first is Cameroon. This country presents the image of a unique bi-jural jurisdiction in which the common law (applied in the two English speaking regions) and the French civil law (applied in the eight French speaking regions) co-exist harmoniously. However, the reality is that the dominant francophone leadership has – since the English-speaking and French-speaking communities came together in a federal union in – undertaken legal reforms designed to replace the common law with the civil law in the anglophone regions. It is a question of time until the mask of bi-juralism is lifted to reveal the fact that the country is fast becoming a civil law jurisdiction. The other country with a similar history is Somalia. What eventually became Somalia was a union between the former British Somaliland and Italian Somaliland in . Unlike Cameroon, there were attempts to adopt an eclectic approach to legal reforms that would integrate elements of its English common law and Italian civil heritage. However, the unity of the two parts came to an end when the dictatorship of its former President, Siad Barre, was toppled in . Following this, the former British region separated from the rest of the country to form the Republic of Somaliland, which is still largely unrecognised. Another part of the country seceded and declared itself independent as the Republic of Puntland in . The rest of Somalia has remained in a protracted civil war, despite numerous efforts by the international community and the United Nations to broker peace between the warring clans in the country. The continuous turmoil in Somaliland has virtually ended a brave attempt to combine the common law and civil law into one system of law applicable to the whole country. The retention by of colonial legal systems at independence by African countries was to some extent a surprise. After all, the colonial administration and the legal system that came with it had come to symbolise subordination, exploitation, repression and violence against Africans. Three main reasons might explain why the new ruling African elites retained the legal system that had been imposed on their countries. The first problem was the extreme haste with which many European powers withdrew and their lack of advance planning for political transition. Since very few Africans had been actively involved in colonial administration, especially in the judiciary, their knowledge of the legal system that they inherited was fairly superficial. Second, there was the realisation that to achieve the objectives of economic development there was a need to, among other things, maintain public order, regulate commerce, and ensure a proper functioning of the administrative and judicial services. The new ruling African elites therefore, as a
also introducing the common law. Because the British eventually took control over the other countries in the region, and actually administered them from South Africa, they simply extended the mixed common law/Roman Dutch law that was already in place in South Africa to those territories. See in general, J.H. Pain, ‘The Reception of English and Roman-Dutch Law in Africa with Reference to Botswana, Lesotho and Swaziland’ () Comparative and International Law Journal of Southern Africa ; A. J. G. M. Sanders, ‘Legal Dualism in Lesotho, Botswana, Swaziland: A General Survey,’ () Lesotho Law Journal ; Eduard Fagan, ‘Roman-Dutch Law in Its South African Historical Context’ in Reinhard Zimmermann and Daniel Visser (eds), Southern Cross. Civil Law and Common Law in South Africa (Oxford: Clarendon Press, ), p. . See further, Charles M.. Fombad, ‘Managing Legal Diversity: Cameroonian Bijuralism at a Critical Crossroads’ in Vernon Palmer et al. (eds), Mixed Legal Systems, East and West (Farnham-Burlington, VT: Ashgate, ), p. ; Charles M. Fombad, ‘An Experiment in Legal Pluralism: The Cameroonian Bi-Jural/Uni-Jural Imbroglio’ () University of Tasmania Law Review . See Aline Wauters, ‘Research into a Harmonised Legal System for Somalia and Analysis of Its Different Systems’, see https://libstore.ugent.be/fulltxt/RUG////RUG-___AC.pdf. In some cases, such as Algeria, this was because the colonial power was forced out after a war of independence, and in other cases, such as Guinea, the French left abruptly after trying to destroy every remnant of their presence because the Guineans would not accept independence on French terms.
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matter of convenience, retained and used the only legal system that they had known and had some familiarity with. They could not experiment with traditional systems because they had been indoctrinated into believing that these were primitive and out of place in modern society. Third, the departing colonial powers did not entirely rupture their links with these countries and allow the new ruling elites a free hand. The key instrument of statehood, the independence constitutions, were substantially drafted by the departing colonial powers and were again based on their legal traditions. The foundations for continuous dependence and interference in the future affairs of the newly independent states was laid down in arrangements such as the Commonwealth of Nations that grouped the former British colonies and the Francophonie for the former French colonies together. This was reinforced by monetary unions that, in the case of France, continue to this day. In addition to this, France entered into so-called military cooperation agreements with its former colonies and this has formed the pretext for its frequent intervention to remove or support the removal of leaders whose policies threaten French interests and its culture in any francophone country. In short, unequal power relationships and the economic and political dependence of the newly independent African states limited the ability of their leaders to undertake radical changes such as replacing the legal systems of the former metropoles. Has this changed? C. TRENDS IN LEGAL CHANGE AND DEVELOPMENT
In the last six decades, governments in Sub-Saharan African countries have had the opportunity to adapt and change the legal systems that they inherited at independence in order to address the contemporary economic, social and political realities of their countries. Given the complex and broad nature of the developments that have taken place and the thematic richness and variations within and between the diverse legal systems in Sub-Saharan Africa, the modest aim here is to present a comparative overview of the major trends in legal reforms in three main areas. The first of these is the attempt to entrench a culture of constitutional governance; the second, the efforts to strengthen judicial institutions; and the third, an examination of some of the efforts to modernise laws, especially in the area of private law. Besides the normal parliamentary processes for enacting laws, most of the countries in SubSaharan Africa established law reform commissions with powers to review laws and recommend changes. In some cases, some commissions were established on an ad hoc basis or by relying on commissions of inquiry legislation to investigate and recommend revisions in specific areas of the law. Until the s, there was extensive reliance by most of the commissions on the expertise of foreign legal experts from the former colonial powers. Unsurprisingly, while there
It is worth pointing out that in the early years of colonial rule, the legal system of the colonial powers was reserved for whites only, while Africans were subject to their customary laws which were applied under the supervision of the white administrators. The general application of the laws of the metropole to all came at a much later stage and towards the end of the colonial period. For example, the impact of the British Sterling Area in was limited because it came to an end in . By contrast, the CFA franc (African Financial Community franc), comprising all francophone countries in West and Central Africa, has been used by the French Treasury to directly control the monetary policies of all these countries to this day. See further, I. Coulibaly, ‘Costs and Benefits of the CFA Franc’, see https://web.archive.org/web/ /http://worldpolicy.org////costs-and-benefits-of-the-cfa-franc/; Ndongo Samba Sylla, ‘The CFA Franc: French Monetary Imperialism in Africa’, see www.africamustchange.com/the-cfa-franc-french-monet ary-imperialism-in-africa-by-ndongo-samba-sylla/. See, Anna Sundberg, ‘France – A Continuing Military Presence in Francophone Africa’, see www.foi.se/rest-api/ report/FOI%Memo% works; Shaun Gregory, ‘The French Military in Africa: Past and Present’ () () African Affairs .
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Charles Manga Fombad
were efforts to adapt the laws to the local environment, there was also significant continuity. Some analysts have suggested that these foreign experts often had no interest in complicating their lives by seeking original solutions. This approach perfectly suited the interests and philosophy of the ruling elites. Under the pretext of promoting national unity and economic development, the limited legal reforms that were introduced made few significant changes and, in fact, often did nothing more than perpetuate the harsh authoritarian systems handed down by colonial powers. There was thus more continuity than change. However, the most serious and profound efforts at law reforms in Sub-Saharan Africa only began after the so-called third wave of democracy. This marked the beginning of concerted efforts to dismantle the repressive dictatorial regimes that had emerged shortly after independence. The first changes were therefore aimed at promoting democratic and accountable governance that would pave the way for constitutionalism. . Promoting an Ethos of Constitutionalism and Respect for the Rule of Law Colonial rule was completely preoccupied with exploiting the colonies for the benefit of the metropole and did not bother about the niceties of constitutionalism, the rule of law and respect for human rights. Although harsh at the best of times, countries such as Belgium, France and Germany gained notoriety for the exceptional brutality of their policies. The independence constitutions imposed by the departing colonial powers introduced European liberal democracy and constitutionalism with important features such as the diffusion of powers, checks and balances, limited government, and the protection of individual and minority rights for the first time. Inexperienced African leaders, seduced by the trappings of power, progressively dismantled the few liberal principles contained in these constitutions. By the end of the s, these constitutions had become completely dysfunctional and did no more than perpetuate the authoritarian, paternalistic style of colonial rule and resulted in what one writer aptly termed ‘constitutions without constitutionalism’. A new era of constitutionalism in Africa appeared to have emerged during the so-called third wave of democratisation in the s and the almost contagious fever surrounding the making, remaking and unmaking of constitutions. The key feature of this period has been the involvement, often for the first time, of ordinary citizens in the constitution-making processes of various countries, particularly in anglophone and francophone Africa. In the latter case, this occurred mainly in various national conferences that began in Benin and spread to many other
See, for example, Etienne Le Roy, ‘Thirty Years of Legal Practice in the Shadow of the State: The Taming of Leviathan’ in Anthony Kirk-Greene and Daniel Bach (eds), State and Society in Francophone Africa Since Independence (New York: St. Martin’s Press, ), p. . Samuel Huntingdon coined the expression in The Third Wave: Democratization in the Late Twentieth Century (Norman, OK: University of Oklahoma Press, ), p. . See, Filip Reyntjens, ‘Authoritarianism in Francophone Africa from the Colonial to the Postcolonial State’ () Third World Legal Studies ; Hochschild Adam, King Leopold’s Ghost: A Story of Greed, Terror and Heroism in Colonial Africa (New York: Houghton Mifflin Co., ); Henk Wesseling Divide and Rule: The Partition of Africa, – (tr. Arnold Pomerans, Westport, CT: Praeger, ); Frantz Fanon, The Wretched of the Earth (New York: Grove, ). In Okoth-Ogendo, ‘Constitutions without Constitutionalism’ in Issa Shivji (ed.), State and Constitutionalism in Africa (Harare: SAPES, ). For a more general account, see GN Barrie, ‘Paradise Lost: The History of Constitutionalism in Africa Post-independence’ () Journal of South African Law .
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francophone countries. Nevertheless, the nature and extent of popular participation varied considerably from country to country. For instance, it ranged from the symbolic – as was the case in the Cameroonian process that led to the constitutional revision – to the substantive – as was the case in the run-up to South Africa’s Constitution – a process that involved some of the most extensive popular participation in constitution-making the continent has yet seen. Some of the studies on the influence of transplantation and borrowing on modern post- African constitutions show that the two main legal traditions that have taken hold in the continent, the common law tradition in anglophone Africa and the civil law tradition in francophone, lusophone and hispanophone Africa have played a dominant role in shaping the form and content of constitutions in Sub-Saharan Africa. Nevertheless, it must be said, from a taxonomic point of view that, while African constitutional systems are not necessarily coextensive with the legal traditions within which they were adopted, they are closely linked. The features that justify making a distinction between those that belong to the common law constitutional tradition and those that belong to the civil law tradition warrant separate detailed treatment. In this chapter, it will suffice to briefly illustrate this with a few examples. In the main, these constitutions can be distinguished from each other in terms of their general structure and their approaches to issues such as the judiciary, separation of powers, and independent regulatory and watchdog organisations. As regards the overall structure, since the s, the constitutions of anglophone African countries have generally been much longer, more detailed and explicit compared to other constitutions, especially those of francophone African countries which were usually shorter and often set out issues in broad outline, leaving the details to be fleshed out in ‘organic laws’. Since the s, most constitutions in both civilian and common law models, have increased in length to reflect new issues such as the wide range of human rights that are recognised and protected, environmental protection, and, as we shall soon see, new institutions designed to promote democracy and accountability. Nevertheless, anglophone constitutions have remained quite long and are more elaborate, for example the Constitution of Zimbabwe with sections, Nigeria’s Constitution with sections and Ghana’s Constitution with
Between and , national conferences were held in francophone countries. See further, Pearl T. Robinson, ‘The National Conference Phenomenon in Francophone Africa’ () Comparative Studies in Society and History . For a discussion of this, see, Charles M. Fombad, International Encyclopaedia of Laws, Constitutional Law: Cameroon (The Hague: Kluwer Law International ), p. . Indeed, Heinz Klug, The Constitution of South Africa: A Contextual Analysis (Oxford: Hart Publishing, ), p. , has suggested that the degree of public participation in the constitution-making process in South Africa was probably without historical precedent anywhere in the world. See the discussion of this in Charles M. Fombad, ‘The Evolution of Modern African Constitutions: A Retrospective Perspective’ in Charles M. Fombad (ed.), Separation of Powers in African Constitutionalism (Oxford: Oxford University Press, ), p. . Because of its oral nature, only certain elements of the British constitutional tradition could be incorporated into the written constitutions that were drafted in Whitehall for anglophone Africa. Many other elements were borrowed from the US constitutional system. To this extent it can be said that what was effectively adopted in anglophone Africa and referred to in this study as the common law constitutional tradition is actually a mix of the British and US constitutional traditions. See further, Fombad, above n. , p. . Organic laws in the civilian system have an intermediate status between the ordinary law and the constitution itself. They have a constitutional scope and force and therefore override ordinary statutes. They are however more flexible because they can be enacted by Parliament without going through the cumbrous process of amending the constitution. See further, Francis Haman and Michel Troper, Droit Constitutionnel (Paris: LGDJ, st ed., ) . For an example of such a provision, see article of the Constitution of DR Congo of , which states inter alia that: ‘An organic law establishes the status of the political opposition.’
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Charles Manga Fombad
articles. Although some civilian constitutions have now increased considerably in length as compared to the past, with the Constitutions of Burundi (), Angola (), Democratic Republic of Congo () and Rwanda () having , , and articles respectively, they are still relatively shorter, with some being very short, such as Cameroon’s Constitution which has only articles. Even for those post- civilian style constitutions that have become lengthy, this increase in length is mostly in terms of the number of provisions adopted, not with respect to their scope, depth or the details of issues covered. Another area of difference, as discussed further below, concerns the structure and role of the judiciary. Four significant differences stand out when comparing common law- and civil lawstyled constitutions in Sub-Saharan Africa. First, most anglophone constitutions have maintained the common law approach of a single hierarchy of courts with jurisdiction to deal with all types of disputes but with specific courts to deal with certain matters such as labour and family disputes. By contrast, most constitutions with civilian roots provide for a hierarchy of at least three streams of courts, namely, ordinary courts, administrative courts and audit courts. The ordinary courts deal with disputes between private individuals; the administrative courts deal with disputes between private individuals and the state or para-public agencies; and the audit courts deal with disputes concerning financial matters. Sometimes, a court of conflicts is provided to deal with disputes over which one of these three jurisdictions has the power to deal with a certain matter. Such conflict may arise where, for example, more than one of them claims jurisdiction over the matter or declines jurisdiction to entertain the matter. Second, whereas the ordinary courts have powers to entertain disputes concerning the interpretation and application of the constitution in anglophone countries, in civilian-style constitutions, the courts that have exclusive jurisdiction to deal with these disputes are specialised, centralised courts which do not form part of the hierarchy of courts. Third, there are significant differences in the way the two constitutional traditions deal with the issue of separation of powers and the checks and balances that go with it. Most anglophone constitutions have adopted the common law approach which, as pointed out earlier, is a mix of British and US constitutional approaches. The crux of this is that the primary responsibility for discharging certain functions is shared between the three branches of government, but with each of the other two having a right of limited interference as a matter of checks and balances to ensure that the branch to which primary responsibility has been given does not abuse its powers. By contrast, the civilian approach epitomised in the French Fifth Republic Constitution, and substantially retained in most of the revised post- civilian constitutions, makes the legislature and judiciary subordinate to the executive, particularly the President. This limits the ability of the legislature and judiciary to check against executive excesses. Fourth, a major innovation in modern African constitutions has been the entrenchment of independent watchdog institutions to promote democracy, transparency and accountability. This is becoming a common feature of post- anglophone constitutions and it actually
Except perhaps the Angolan Constitution of . For examples of provisions regulating ordinary courts, administrative courts and audit courts, see articles – and of the Constitution of Angola of , articles – of the Constitution of Cameroon of , articles – and of the Constitution of DR Congo () and articles – of the Constitution of Tunisia of . See further, Charles M. Fombad, ‘An Overview of Contemporary Models of Constitutional Review in Africa’ in Charles M. Fombad (ed.), Constitutional Adjudication in Africa (Oxford: Oxford University Press, ), p. . See further, Fombad, above n. , at p. .
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started with the South African Constitution. The most elaborate examples of similar institutions now appear in articles – of the Constitution of Kenya and sections – of the Constitution of Zimbabwe. By contrast, it is only fairly recently that some civilian-style constitutions are beginning to provide for similar institutions, but these are not welldeveloped. In spite of these distinctive features there is some evidence that as a result of the internationalisation of constitutional law principles and the cross-fertilisation of ideas, there is increasing similarity and even possible convergence in terms of content and approaches in some constitutional content in Africa today. This is also evident from the fact that, unlike in the past, most constitutional courts in Sub-Saharan Africa have powers of both abstract and concrete review. The approach to human rights protection has also changed. Whereas before the s most civilian-styled constitutions mentioned human rights mainly in their preambles, today, save for a few exceptions, there are elaborate provisions recognising and protecting human rights. The effectiveness of this depends on the effectiveness of the courts, a matter to which we will now turn. . Strengthening of Judicial Institutions Although the independence constitutions, at least in anglophone Africa, allowed for some judicial independence, during the long years of authoritarianism up to the s judges were progressively stripped of their independence, to the point where they were appointed and dismissed at the whim of presidents. As a result, the judiciary was reduced to the docile accomplices of repressive regimes and was unable to function as the impartial enforcer of law and the defender of constitutionalism. Since the s, however, a major preoccupation among constitutional reformers on the continent has been to construct judicial systems designed to restore confidence in the judiciary. Major strides were made during the constitutional reforms of the s to make the judiciaries in Sub-Saharan Africa more independent, effective and efficient. Once again, the approach taken to judicial independence has been, and continues to be, shaped by the legal traditions inherited at independence. Despite wide diversity in the detail of judicial regulation, the two dominant approaches are the common law approach in anglophone Africa and the civil law approach in francophone and lusophone Africa. The collapse of judicial integrity soon after independence affected each of these legal traditions, though the extent of this varied from one legal tradition to another and, within these, one country to another. Nevertheless, significant differences remain apparent between the inherited common law tradition in anglophone Africa and the inherited civil law tradition in francophone and lusophone Africa.
See further, Charles M. Fombad, ‘The Role of Emerging Hybrid Institutions of Accountability in the Separation of Powers Scheme in Africa’ in Charles M. Fombad (ed.), Separation of Powers in African Constitutionalism (Oxford: Oxford University Press, ), p. . See ibid. See Fombad, above n. . See Fombad, above n. . The best example of a country where human rights protection is provided only in the preamble rather than the substantive part of the constitution is the Cameroon Constitution of .
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Charles Manga Fombad
The relatively tolerant attitude that much of anglophone Africa adopts towards independent judiciaries can be traced to the common law approach to the judiciary in England. In contrast, the model of judicial independence adopted in francophone Africa was fairly limited due to executive influence shaped by obsessive Gallic fear of legal dictatorship through a ‘government of judges’. A similar system of judicial dependence on the executive operated in lusophone and hispanophone Africa. Despite the considerable progress made in the last three decades to make the judiciaries in Sub-Saharan Africa more independent and effective, most analysis of the reforms have shown that huge challenges remain. Some of the difficulties that have emerged are sufficiently serious to raise doubts as to whether the momentum towards more genuinely independent and effective judiciaries is sustainable. This has been hampered by factors such as weaknesses in the regulatory framework, the non-implementation of relevant laws, the threat posed by an increasingly overbearing executive, and judicial corruption and ineptitude. The design flaws in the constitutional provisions dealing with judicial independence are particularly manifest in civilian jurisdictions. For example, in spite of the much-vaunted transformation of the judiciary from a ‘judicial authority’ to a ‘judicial power’, judicial independence in civilian jurisdictions is limited because of the extensive control the executive has over the appointment, promotions and transfer of judges. This is because the appointment systems in most of these jurisdictions is entirely under the control of the President of the republic. In contrast, in anglophone Africa most judicial positions are publicly advertised, appointment criteria are spelled out, applicants are interviewed in public and an evidence-based approach to selection is adopted. Second, a key factor in building public confidence in the judiciary is the extent to which those on the bench reflect the composition of society in terms of race, gender, religion, ethnicity, legal tradition and the like. The legal framework in most francophone and lusophone countries ignores this. In an era of heightened sensitivity to issues of representation, especially concerning gender and minorities, it is surprising that so many francophone constitutions are silent on the matter. Third, under most civilian constitutions, the provisions designed to recognise and protect the independence of the judiciary are often couched in claw-back clauses that leave the detailed laws that regulate the judiciary to the whim of parliamentary majorities. There is often no guarantee that the laws enacted by Parliament, based on constitutional claw-back clauses, will effectively protect the independence of the judiciary. This raises the problem of non-implementation of constitutions, to which we now turn. Many of the progressive provisions to enhance the independence of the judiciary have either been ignored, distorted or repealed. For example, in Cameroon, articles – of the Constitution provided for a Constitutional Council, but it was established, and its members appointed, only in ; that is, years later. In some anglophone countries, recent
Robert Stevens, ‘Judicial Independence in England: A Loss of Innocence’ in Peter H. Russell and David O’Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (Charlottesville, VA: University of Virginia ), p. . See Denis Tallon, ‘The Constitution and the Courts in France’ () American Journal of Comparative Law ; John H. Merryman, ‘The French Deviation’ () American Journal of Comparative Law . See Fabrice Hourquebie, ‘Indépendence de la Justice dans les Pays Francophones’, see https://cairn.info/revue-lescahiers-de-la-justice---page-.htm, who discusses instances where judges were arbitrarily dismissed or transferred on the basis of an anomalous civil law principle of ‘imperatives of service’. For example, the Senegalese HJC is made up of members, none of whom is female. For examples of such claw-back clauses, see articles , and of the Burundian Constitution of and articles () and of the Cameroon Constitution of .
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amendments have reversed changes designed to ensure that judicial appointments are based on merit rather than extraneous political considerations. For example, in , the fairly liberal Zimbabwean Constitution of was amended to give the President sole responsibility for appointing the Chief Justice, his deputy and the Judge President of the High Court, imposing on him only an obligation to inform the senate if he does not act in accordance with the recommendations of the Judicial Service Commission. In Zambia, a bill has recently been introduced in Parliament that seeks to replace article (a) of the Constitution. The proposed change increases the risk of judges being removed on politically motivated grounds. In many respects, the repeal of or failure to implement constitutional provisions for protecting judicial independence is a form of ‘executive fight-back’ to regain control of the judiciary. Political interference in the judiciary and the threat this poses to its ability to function independently, objectively and fairly is probably the most invidious problem to have survived the post- reforms. Weak appointment systems, particularly in francophone and lusophone Africa, afford executives an easy opportunity to manipulate the judiciary. Judges are appointed and promoted not on merit but their perceived or actual loyalty to the government and, as a result, feel beholden to the executive, deciding matters less on the basis of the law than on the desire to curry favour with those who appointed them. In fact, many commentators worry about the growing trend towards executive-mindedness or predisposition to favour the government. Generally, as the courts have striven to assert their independence, particularly in divisive and politically sensitive cases, this has frequently set them on a collision course with the executive branch. The tactics commonly used by governments today are to instigate criticism of, or hostile verbal attacks on, the judiciary by way of state-owned media or NGOs which they fund. Examples have been reported in Namibia, Zambia and Zimbabwe. Sometimes even senior government officials have been embroiled in these attacks. For instance, Uganda’s President Museveni accused the judiciary of ‘unprofessional bias against the Movement government [the ruling party] and corruption’. In September , when the Kenyan Supreme Court, in an unprecedented decision, declared the presidential elections null and void, it came under immediate attack from the executive. An irate President Kenyatta declared the decision by the majority of four on the bench ‘a coup in Kenya carried out by four people in the court’. Calling the judges ‘crooks’, he added, ‘Who even elected you? . . . We have a problem and we must fix it.’ His deputy, William Ruto, described the ruling as evidence of ‘[the] tyranny of the judiciary which . . . has no place in Kenya’. In recent decades, judges across the continent have been paid well, with salaries and pensions substantially above those of the average civil servant. Yet, after the police, the judiciary is generally considered to be the most corrupt institution in Africa.
The original section of the Constitution provided that the President may appoint only those who had been recommended to him by the Commission. See Gerald N. Rosenberg, The Hollow Hope. Can Courts Bring about Social Change? (Chicago: University of Chicago Press, ), p. . See ibid., p. ; and Jennifer Widner, ‘Building Judicial Independence in Africa’ in Andreas Schedler and Larry Diamond (eds), The Self-Restraining State (Boulder, CO: Lynne Rienner, ), p. . See Linda Van De Vijver (ed.), The Judicial Institution in Southern Africa (Cape Town: Siber Ink, ), p. . See ‘Kenya President Slams Annulled Poll as Judicial “Coup”‘, News, September , see www.news.com/ Africa/News/kenya-president-slams-annulled-poll-as-judicial-coup-; Maggie Fick, ‘Kenyan President, Election Overturned by the Court, Attacks the Judiciary’, Reuters, September , see www.reuters.com/article/ us-kenya-election/kenyan-president-election-overturned-by-court-attacks-judiciary-idUSKCNBDES. See, for example, David Mugwe, ‘Africa: Courts amongst the Most Corrupt Institutions in Eastern Africa’, see http:// allafrica.com/stories/.html; Zachary Ochieng, ‘Guilty as Charged: Corruption Rife in the Judiciary’, see https://africa.peacelink.org/newsfromafrica/articles/art_.html; and Tichaona Sibanda, ‘Attorney-General
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Charles Manga Fombad
African judicial institutions are today more independent than they have ever been, and in some jurisdictions their powers have been reasonably expanded. However, because of the increasingly volatile political situation, the ability of judicial institutions in Sub-Saharan Africa to decide cases freely and fairly, without succumbing to political pressure, is limited. From a comparative perspective, the situation in anglophone Africa is much improved compared to that in the civilian jurisdictions where political interference remains a serious problem. . Modernising the Law Besides developments in the area of public law, law reforms have been undertaken in various areas of private law in response to the economic and social needs of the people. The extent and scope of the changes have varied from one inherited legal tradition to another. Extensive revision of most of the inherited colonial laws in private law started shortly after independence. The main changes saw the integration of aspects of customary law into the modern legal system. These reforms not only led to the integration of customary courts in the hierarchy of courts but also saw the introduction, for example, of customary laws on marriage, customary laws of succession and customary land rights. The main challenge has concerned the modernisation of colonial laws to take account of rapid economic, social and technological developments. The trend of changing laws within the specific legal system has remained the same, perhaps with slight differences of degree. Two illustrations of this will suffice. The first and perhaps fairly significant one is that of developments within the Organisation for the Harmonization of Business Law in Africa (OHADA). Created on October in Port Louis, Mauritius, OHADA is made up of , mostly francophone countries in west and central Africa and includes Comoros which is from outside the region, Guinea Bissau which is lusophone, Equatorial Guinea which is hispanophone and Cameroon which, in principle, has a bi-jural system. The objective of OHADA, according to article of the founding treaty, is the ‘harmonisation of business laws in the contracting states by the elaboration and adoption of simple modern common rules adapted to their economies, by setting up appropriate judicial procedures, and by encouraging arbitration for the settlement of disputes’. Nine OHADA Uniform Acts have been adopted. One of OHADA’s major goals, as stated in its preamble and article of the founding treaty, is to make common business laws which are simple, modern and adaptable to present economic realities. It appears to have accomplished this goal, as some have praised its ‘clarity and sophistication’. The new uniform laws have not only introduced a single, modern, flexible and predictable legal framework adapted to the legal and economic system in member
Admits Judicial Corruption Rife in Zimbabwe’, February , see www.swradioafrica.com/News_archives/files/ /February/Mon%%Feb/ts-tomana.html. In addition, the two ECA African Governance Reports referred to earlier describe corruption as one of the three most serious problems in Africa. See generally, Charles M. Fombad (ed.), Constitutional Adjudication in Africa (Oxford: Oxford University Press, ). See, for example, A. N. Allott, ‘The Changing Law in a Changing Africa’ () Sociologus . OHADA is the French acronym for this, which is known as ‘Organisation pour l’Harmonisation en Afrique du Droit des Affaires’. The other countries are: Benin, Burkina Faso, Central African Republic, Congo, Ivory Coast, DR Congo, Gabon, Guinea, Mali, Niger, Senegal, Chad and Togo. See, OHADA Uniform Acts, see https://ohada.org/index.php/fr/actes-uniformes-de-l-ohada. See, Claire Moore Dickerson, ‘Perspectives on the Future’ in Claire Moore Dickerson (ed.), Unified Business Laws for Africa: Common Law Perspectives on OHADA (Philadelphia: GMB Ltd, ), p. ; and in general Gbenga Bamodu, ‘Transnational Law, Unification and Harmonization of International Commercial Law in Africa’ ()
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countries, but most importantly, they provide an indication of the critical areas in which harmonisation is possible and give a reasonable guide on how this can be done. An important innovation that lies at the heart of the OHADA system is the Common Court of Justice and Arbitration (CCJA) – which provides both judicial and arbitral jurisdiction – and the Regional Training Centre for Legal Officers (ERSUM). There is no doubt that, since its establishment, OHADA has made a significant difference in the regulation of commercial matters among its member states. There are nevertheless a number of weaknesses in the framework and the regime. First, there is a question about its legitimacy. This goes not only to show how it originated, but also how it operates and its goals. Although a number of influential international institutions and countries were instrumental in the creation of OHADA, the main actor was France. The French provided not only most of the funds, but also the ideas. Unsurprisingly, the most significant influence on the OHADA Acts is French law. However, to probably disguise the fact that it was a ‘top-down, French-led reform’, a distinguished African legal scholar and former Vice President of the International Court of Justice, the late Judge Keba Mbaye, was given the responsibility of driving the process that led to the establishment of the organisation. The early drafts of the main treaty as well as the early OHADA Uniform Acts were prepared in France by French experts and African ‘partners’ were only required to comment on the drafts. Second, one of its possible strengths, the establishment of the CCJA to ensure the uniform interpretation and application of the treaty, is also a potential source of problems. It is fairly unrealistic to expect that a single supranational court based in Abidjan will handle all cases dealing with the OHADA regime given the perennial problems that afflict the administration of justice in Africa – namely, huge case backlogs, a lack of trained judicial staff and the high cost of litigation that makes justice inaccessible to many, especially the poor. Finally, as Hans-Werner Wabnitz rightly points out, though many of the OHADA Uniform Acts are perfect technical legal texts, at least in France, many of the provisions have turned out to be unsuitable to cater for the development needs of the OHADA countries. The second example looks at the situation of the mixed systems in southern Africa. As pointed out above, while the reception of these mixed systems in South Africa was direct, it was indirect, from South Africa, in the other countries. This has had an impact on the way the mixed system has evolved in the different countries, giving rise to what one may say is potentially a unique subcategory of the mixed system. In this respect, two points are worth noting with respect to the way the mixed systems in these countries have developed and evolved over the years. Despite its strong colonial roots, it is now generally agreed that South African law has now evolved to a point where it may be considered to have acquired its own identity, which is neither purely Roman-Dutch nor purely English common law. Eduard Fagan goes even further, to suggest that South African law is a legal system in its own right. This is perhaps not merely due to the fact that its pure Roman-Dutch moorings had been cut off by time, history and circumstances going as far back as the s when the Netherlands adopted the French
Journal of African Law ; Boris Martor, Nanette Pilkington and David S. Sellers Business Law in Africa: OHADA and the Harmonization Process (Philadelphia: GMB Ltd, nd ed., ). See, Hans-Werner Wabnitz ‘Reforming Legal Reform in Francophone Africa: World Bank’ Project Experience’, Islamic Law and Law of the Muslim World Paper No. -, see https://ssrn.com/abstract=. Eduard Fagan, ‘Roman-Dutch Law in Its South African Historical Context’ in Reinhard Zimmermann and Daniel Visser (eds), Southern Cross. Civil Law and Common Law in South Africa (Oxford: Clarendon Press, ), p. .
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Charles Manga Fombad
Napoleonic Code, but also the fact that it represents a major example of a jurisdiction where the civilian tradition survives in its original uncodified form. On the other hand, besides this decoupling there have, since independence, been shifts within mixed systems such as Botswana, Eswatini and Lesotho where, since independence, their national legislation relies more on English law than on Roman-Dutch law. Differences in social and economic conditions meant that the laws of each of these countries had to be adjusted and adapted to deal with their specific needs. Perhaps more importantly, the system of apartheid that operated in South Africa until discouraged many countries in the region who had received the mixed system from South Africa – where the law was more developed – from relying on or referring to its laws. However, since the end of apartheid in South Africa, the transformation taking place within its legal system is such that it is bound to have an impact on legal developments in the region. An example is its Constitution, which has incorporated the best elements of both the common law and the civil law legal systems as well as adapting these to its historical, social and cultural environment. This has not only been copied by states in the region, such as Zimbabwe in its Constitution, but also by Kenya in its Constitution. Generally, in spite of the increasing influence of the English common law in contemporary reforms in southern Africa, the civilian substratum of the legal system is firmly entrenched to ensure that they will remain a blend of the common law and Roman-Dutch law. Ultimately, the critical question is whether these changes have had a positive impact on the quality of justice in these countries, an issue to which we will now turn. D. COMPARATIVE OVERVIEW OF THE IMPACT OF LEGAL CHANGES ON THE QUALITY OF JUSTICE AND PROSPECTS FOR THE FUTURE
Any examination of how the inherited legal systems in Sub-Saharan Africa have evolved in the past six decades cannot be complete without some consideration of how these developments have affected the quality of life of ordinary citizens. This raises a variety of questions. Have the legal reforms enhanced the quality of justice? Have the reforms provided citizens with adequate protection and given them the space and opportunity not only to advance economically but also participate in the running of their governments? Have the reforms dismantled the harsh, repressive and exploitative systems that operated during the colonial era? More pertinently, and from a comparative perspective, how effectively and efficiently have the different legal traditions performed vis-à-vis each other? . Impact of Legal Change on the Quality of Justice The rule of law and the proper administration of justice were never part of the colonial project. Proof of this can be seen in the notorious indégenat system that the French enforced in Africa until its abolition in . Despite the significant legal reforms that have taken place in the different countries since independence, changes have largely remained within the general style,
See, Reinhard Zimmermann, ‘Roman Law in a Mixed Jurisdiction’ in Robin Evans-Jones (ed.), The Civil Law Tradition in Scotland (Edinburgh: The Stair Society, ), p. . See Charles M. Fombad, ‘Mixed Systems in Southern Africa: Divergences and Convergences’ () Tulane European and Civil Law Forum .
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ideology and overall framework of the received legal traditions. The only exception to this, and a rare example at that, is Rwanda. It inherited the Belgian civil law system at independence but has voluntarily adopted the common law system. There has, however, been much debate in last few decades – among scholars of legal-origins theories – about which of the two dominant legal systems, the common law and civil law, has been more effective in enhancing justice. Most of those who have compared the performance of these two legal systems in Africa have concluded that the common law system has performed better in terms of promoting justice, respect for the rule of law and constitutionalism. For example, Sandra Fullerton Joireman, in her comparative study of the two systems, argues that African common law countries have been more effective in promoting respect for the rule of law than the civil law countries. She concludes that ‘as a group African common law systems have become more effective over time while civil law systems have remained stagnant’. Federico Baldelli also argues inter alia, that the common law countries in Sub-Saharan Africa tend to have more efficient legal institutions and lower levels of poverty. For their part, Sara Mclaughlin, Jonathan Ring and Mary Spellman show that states with common law traditions engage in better human rights practices than states with other legal systems. Daniel OtoPeralías and Diego Romero-Ávila also argue that common law countries are associated with lower legal formalism, more efficiency of contract and debt enforcement, higher judicial independence, and, in general, a higher quality of legal systems than French civil law countries. A contrary view is expressed by Linda Keith and Ayo Ogundele. They argue that there is no solid evidence for suggesting that common law system countries have better human rights behaviour than civil law countries, or have fewer constitutional provisions for judicial independence and checks against the executive during times of emergency than common law countries. As we saw earlier, most of the comparative literature, especially studies assessing progress towards entrenching a culture of constitutionalism and promoting the rule of law and independence of the judiciary, support the view that a higher standard of justice obtains in common law countries compared to civil law countries in Sub-Saharan Africa. A clearer indication of the comparative level of the quality of justice within the different inherited legal traditions in Sub-Saharan Africa can be gauged by looking at the performance of
However, Maya Berinzon and Ryan Briggs, ‘Legal Families without the Laws: The Fading of Colonial Law in French West Africa’ () American Journal of Comparative Law , carried out a study of the colonial penal code of seven francophone countries and compared this with their contemporary penal code. They conclude that there is little support for the idea that current African laws are mere reflections of colonial legislation or that they are part of some coherent grouping of French, or African or even French West African legal systems. The evidence provided is not only weak but contradictory. For example, if their thesis was taken to its logical conclusion, the fact that there was nearly a total modification of France’s penal code between and would lead to the conclusion that this new code is no longer part of the French legal family! See, Global Legal Monitor, ‘Burundi; Rwanda: Possible Switch of Legal Tradition’, see https://loc.gov/law/foreignnews/article/burundi-rwanda-possible-switch-of-legal-tradition/; and Hogan Lowells, ‘The extraordinary case of Rwanda – or how a small country can take giant steps’, see https://lexology.com/library/detail.aspx?g=ecaeab-f-ce-ecb. Sandra Fullerton Joireman, ‘Inherited Legal Systems and Effective Rule of Law: Africa and the Colonial Legacy’ () Journal of Modern African Studies . Federico Baldelli, Legal Origins, Legal Institutions and Poverty (Master of Science in Law and Economics thesis , see https://tesi.luiss.it///baldelli-tesi-.pdf). Sara Mclaughlin, Jonathan J. Ring and Mary K. Spellman, ‘Domestic Legal Traditions and Human Rights Practices’ () Journal of Peace Research . Daniel Oto-Peralías and Diego Romero-Ávila, ‘The Distribution of Legal Traditions around the World: A Contribution to the Legal Origins Theory’ () The Journal of Law & Economics . See, Linda Keith and Ayo Ogundele, ‘Legal Systems and Constitutionalism in Sub-Saharan Africa: An Empirical Examination of Colonial Influences on Human Rights’ () Human Rights Quarterly .
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Charles Manga Fombad
these countries based on annual surveys conducted by many reputable international nongovernmental organisations in areas such as the rule of law, good governance, respect for human rights and dealing with corruption. Although most of these surveys show that most countries in the region have done reasonably well in these areas, three points are worth noting. First, all the indicators show that there has been a steady decline in respect for the rule of law and overall governance, particularly in the last decade. Second, and perhaps a matter of more concern, is that even the performance of countries such as Botswana, Mauritius, Cape Verde, South Africa and Namibia, which have formerly been consistently the best in the region, has also been in decline. Finally, in spite of evidence pointing to better performance by common law countries in the region, the reality is that the best performers are mainly states with mixed legal systems. . Prospects for the Future Apart from the South African mixed system which, probably due the detachment from its historical moorings for over a century, is possibly developing a distinctive identity, and Rwanda, which took the unusual step of moving from the civil to the common law system, the other Sub-Saharan African countries have modernised their laws largely within the legal systems they inherited. Nevertheless, in looking to the future, several issues are worthy of note. First, in spite of the general observation that hardly any of the legal reforms have led to a change of legal system, there is nevertheless some evidence of cross-systemic fertilisation. For example, many aspects of South Africa’s Constitution are borrowed from the civil law tradition. This is significant because, although it is a mixed system, its public law is largely regulated by common law principles. Similarly, a few constitutions of francophone Africa have adopted the procedure of concrete judicial review, which is usually only associated with common law jurisdictions. Perhaps more significant is the fact that some of the OHADA Uniform Acts have integrated some principles from other legal systems as a result of the involvement of experts from the International Institute for the Unification of Private Law (UNIDROIT) in the drafting of some of the Acts. A second observation that may be made is the problem of conservatism that has impeded the legal modernisation process, especially in francophone Africa. It has been suggested that the main reason why the prospects for constitutionalism have been far better in anglophone than francophone African countries is the tendency for the latter to rely almost entirely on an inherited constitutional system. Anglophone African countries have approached constitutional reforms with more openness and have looked far beyond England for inspiration and guidance. Not only have constitutional review commissions included foreign experts from different
For rule of law, see, ‘World Justice Project Rule of Law Index ’, see https://worldjusticeproject.org/sites/default/ files/documents/WJP-ROLI--Online_.pdf; for corruption, see, Transparency International, ‘Corruption Perception Index’ https://transparency.org/en/cpi/; for respect for civil and political rights, see Freedom House, ‘A Leaderless Struggle for Democracy’, see https://freedomhouse.org/report/freedom-world//leaderless-struggle-dem ocracy; and for an overview of governance, see Mo Ibrahim Foundation, ‘A decade of African governance –: Ibrahim Index of African governance. Index Report’, see www.congoforum.be/Upldocs/Afr.IIAG_.pdf. For a discussion of aspects of this, see Charles M. Fombad, ‘An Overview of the Crisis of the Rule of Law in Africa’ () African Human Rights Law Journal . An example of civilian influence is the mixed system of control of constitutionality of laws which is both centralised and decentralised, and provides for both abstract (preventive) and concrete (repressive) judicial review. See sections –, – and () and () of the Constitution. See for example, articles and of the Benin Constitution of . See Filip Reyntjens, ‘The Winds of Change. Political and Constitutional Evolution in Francophone Africa, –’ () Journal of African Law .
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constitutional systems, but members of these commissions have usually travelled to Europe, North America, Asia and India to learn more about modern constitutional developments. By contrast, many francophone African constitutional draftsmen have continued to rely almost slavishly on what they perceive as the most reliable and unassailable model: the Gaullist Fifth Republic and the timid amendments that have been made to it in the last years. Some francophone scholars have decried this ‘constitutional mimicry’ and attributed it not only to cultural enslavement but also intellectual laziness. Third, progressive legal reforms in the region have been hindered by an almost continuous reliance on legal education programmes that were designed in the early years of independence by the departing colonial powers. In spite of the popular clamour for the decolonisation and Africanisation of programmes, little was done to make this a reality until fairly recently. There is little space for the teaching of indigenous laws or the comparative study of African legal systems. Such ignorance provides fertile ground for suspicion, prejudice and distrust to take root and is particularly acute among academics who fear the unknown. Even today, when African legal academics from different legal systems meet the tendency has been to jealously defend and protect what they know and make little space to learn what other legal systems have to offer. Finally, it has to be noted that while the European Union has in many respects provided a platform for the progressive development of law at the continental and national level, not much of this is happening in Africa. Neither the African Union (AU) nor the Regional Economic Communities (RECs) have done much to promote progressive legal reforms, especially through the process of harmonisation of the diverse legal traditions on the continent. The absence of any specialised institutional arrangements either within the AU or the RECs to coordinate and facilitate the harmonisation of commercial laws on the continent is a problem that cannot be lightly ignored. The AU, as Africa’s premier institution and principal organisation for promoting inter alia socio-economic integration and economic development on the continent, should have taken the lead. The AU Commission on International Law (AUCIL), which could have played a leading role in doing this, is primarily concerned with only strengthening and consolidating common approaches to international legal development. Questions about the direction of legal reforms in Africa were firmly put on the agenda during the ‘Rhodes Must Fall’ (#RhodesMustFall) student protests of in South Africa. These protests led to calls for inter alia the decolonisation of the academic curriculum and its transformation to reflect the lived experiences of ordinary Africans throughout the continent.73 Many scholars are increasingly questioning the legitimacy of legal reforms on the continent and whether legal systems truly reflect the African identity and national priorities. The post-‘Rhodes
See further, Myriam Hunter-Henin, ‘Constitutional Developments and Human Rights in France: One Step Forward, Two Steps Back’ () International & Comparative Law Quarterly . See, for example, Clément Cayla-Giraudeau, ‘Le Mimétisme Constitutionnel en Afrique: Regards sur une Pratique Juridique Contestée’, see https://academia.edu//Le_mim%C%Atisme_constitutionnel_en_Afrique_ regards_sur_une_pratique_juridique_contest%C%Ae; and Gertie Hesseling, ‘La Réception du Droit Constitutionnel en Afrique Trente ans Après: Quoi de Neuf?’, see https://openaccess.leidenuniv.nl/bitstream/ handle///ASC__.pdf?sequence=. See Abdul Kayum Ahmed, The Rise of Fallism: #RhodesMustFall and the Movement to Decolonize the University’ (Ph.D thesis, Columbia University , see https://academiccommons.columbia.edu/doi/./d-nn-e; Roseanne Chantiluke, Brian Kwoba and Athinangamso Nkopo, Rhodes Must Fall: The Struggle to Decolonise the Racist Heart of Empire (London: Zed Books, ); and Achille Mbembe, ‘Decolonising Knowledge and the Question of the Archive’, see https://wiser.wits.ac.za/system/files/Achille%Mbembe%-%Decolonizing% Knowledge%and%the%Question%of%the%Archive.pdf. See, Alfheli Tshivhase et al. (eds), Decolonisation and Africanisation of Legal Education in South Africa (Cape Town: Juta & Co, ).
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Must Fall’ era raises the question of whether, at a practical level, existing legal paradigms, concepts and normative ideologies are suited to developing a stable and sustainable system of governance based on the fundamental challenges of our time. It is not yet clear whether governments in Sub-Saharan Africa have taken these issues seriously as a wake-up call to become more creative in reforming national laws. E. CONCLUSION
Legal developments in Sub-Saharan Africa for the last six decades following independence have been characterised by some discontinuities, but mainly continuities. In spite of numerous efforts to modernise the laws, the general framework, style, legal technique and ideology of the inherited legal system has been retained. It was understandable that the leaders of the newly independent countries, because of their limited knowledge, and experience of governance and the administration of justice, chose to retain what was handed down to them. Significant changes designed to eliminate most of the harsh and repressive laws that were in place at independence have been introduced. However, until the s, most of the leaders in Sub-Saharan Africa retained and, in some cases, reinforced, some of the repressive legislation they inherited. This was done under the pretext of promoting national unity and economic development, but in reality also served to perpetuate their own positions in power. However, the fact that the colonial legacy with its Eurocentric approach still dominates legal reform processes in the region is the result of a combination of lack of creative thinking and self-serving indulgence of African leaders. The wave of constitutional reforms that followed the new era of democratisation from the s made it possible for more profound legal reforms in most countries. Although these reforms have in most countries paved the way for governance systems based on the fundamental principles of modern constitutionalism, respect for human rights and the rule of law, there remain many portentous signs of a reversal of these gains. Despite increasing agitation for the decolonisation and Africanisation of the legal system, there are no significant changes of direction. Nevertheless, two things remain clear. First, unless the AU and RECs take the bold step to promote a cross-systemic harmonisation of laws on the continent, the common law/civil law divide on the continent is unlikely to change. Second, although a separate and distinct legal system in Sub-Saharan Africa may not emerge any time soon, two developments are worth noting. The progressive and transformative nature of the South African Constitution has influenced the and Kenyan and Zimbabwean Constitutions, respectively. Although this has not been replicated in an obvious manner by the post- constitutions of civil law countries in Africa, it may well just be a question of time before this happens. The other point is that South African law, especially after its Roman-Dutch component was cut from its Dutch moorings by time, history and circumstances, may have acquired a unique identity that is rooted in neither purely Roman-Dutch nor purely English law. There is no reason why this successful blend of English common law and Roman-Dutch law, which is now widely applied in other southern African countries such as Botswana, Eswatini, Lesotho, and Namibia, cannot be referred to as ‘Southern African law’. The challenge for the future is to ensure that further legal reforms in Sub-Saharan Africa take into account the region’s peculiar challenges and enhance the quality of justice in a manner that is capable of halting the ominous threat of a resurgence of authoritarianism.
See Fombad, above n. .
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Central Themes in Comparative Law
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