Advanced Introduction to Comparative Legal Methods (Elgar Advanced Introductions series)

145 Pages·2021·1.912 MB·English

by  Pier Monateri

Advanced Introduction to Comparative Legal Methods
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Alan M. Saks and Jamie A. Gruman Comparative Legal Methods
Pier Giuseppe Monateri
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Advanced Introduction to
Comparative
Legal Methods
PIER GIUSEPPE MONATERI
Professor of Comparative Law, Department of Law, University of Turin, Italy
Elgar Advanced Introductions
Cheltenham, UK • Northampton, MA, USA
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© Pier Giuseppe Monateri 2021
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
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Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
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Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2021945091
This book is available electronically on Elgar Advanced Introductions: Law
www.advancedintros.com
ISBN 978 1 78990 615 8 (cased)
ISBN 978 1 78990 617 2 (paperback)
ISBN 978 1 78990 616 5 (eBook)
Typeset by Cheshire Typesetting Ltd, Cuddington, Cheshire
P
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Contents
Preface vii
1. Comparative law as a discipline 1
1.1 The birth of the discipline 1
1.2 Analyzing functions 3
1.3 Discovering structures 8
1.4 Metaphors and methods 10
1.5 The different uses of comparative law 12
1.6 How to do projects with comparative law 15
1.7 Comparative law or global legal studies? 20
2. Comparative law and legal geography 22
2.1 A map of the law 22
2.2 Traditions and originality 23
2.3 Language, religion, and space 28
2.4 A panorama of the world’s systems 31
2.5 History, ideology, and styles 34
2.6 Values and hemispheres 40
2.7 A geography of efficiency? 42
3. Comparative law and legal history 48
3.1 The problem of culture 48
3.2 Roots and visions 51
3.3 Legal historicism 54
3.4 The myth of origins 55
3.5 The multicultural model 58
3.6 The Roman canon 63
3.7 A politics of comparison? 66
4. Comparative law and legal theory 71
4.1 Three modes of legal theory 71
4.2 The Classical Legal Thought 72
4.3 The rise of the Social 77
v
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vi ADVANCED INTRODUCTION TO COMPARATIVE LEGAL METHODS
4.4 The new paradigm 82
4.5 An abuse of reason? 87
5. Comparative law and legal reforms 91
5.1 The quest for the best 91
5.2 Attitudes, tastes, and endowments 98
5.3 Friendly landscapes 102
5.4 Quantitative methods? 109
References 112
Index 118
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Preface
There are many reasons to write a book on the methods of compara-
tive law. The one that motivated the writing of this book is that the
discipline of comparative law is characterized by several different and
conflicting projects. As it stands, comparative law is a multifarious
discipline where intellectual sensibilities coalesce in a variety of appro-
aches around two major issues: on one hand, the problem of identity
and difference in legal cultures, and on the other hand, the transplants
of institutions among cultures with the aim of producing more unifor-
mity and efficiency in law and legal reforms. In either case, a clear task
of comparative law is to provide a classification of the legal systems of
the world and analyze their performances and interactions. But it is a
task that can be pursued in many different ways.
The first concern of comparative law is to confront the question of
how similar or different two jurisdictions are. This question is often
addressed in comparative law by adopting the metaphor of the family
tree. Similarities and differences in contiguous or distant legal cultures
are usually explained via their legal origins. Legal systems distant in
space, such as the English, the Australian, and the United Statesean
legal systems are said to be cognates belonging to the same common
law legal family. Similarly, very different jurisdictions, such as the
French, the German, and the Spanish legal systems are seen as relatives
as they share the same Roman law origins. Consequently, legal systems
become representable as more or less stable families, each with their
own ancestors, pedigrees, and rows of family portraits. This form of
comparative law involves history as it seeks to understand the present
in terms of its past.
The second concern of comparative law may focus more on legal
reforms for the future. These reforms can be achieved through legal
transplants and borrowings, as processes of influence where a part of
the law of one country or jurisdiction can be adopted by another to pro-
mote legal change. In this case, the consideration of legal transplants
vii
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viii ADVANCED INTRODUCTION TO COMPARATIVE LEGAL METHODS
tends to represent legal institutions more like waves crossing cultures
than like trees rooted in tradition.
The contrasting metaphors of waves and trees help make more evident
the ambiguity that characterizes the discipline. It attempts both to sup-
plant national legal histories and to become a tool to shape the future,
through the recognition of how well or badly an institution performed
in other jurisdictions. However, the two metaphors seem to be incohe-
rent with one another. In particular, the occurrence of legal transplants
puts seriously into question the solidity of tradition and the inner con-
sistency of the law. If legal systems are porous to foreign waves, legal
traditions appear more as contingent contaminations, legal cultures as
hybrids, and jurisdictions more as unstable bundles of scattered traits
than logical and coherent blocks.
It is due to this very internal ambiguity that the recurrent themes in
the discipline have almost always remained the same. How is a legal
family defined? How are legal systems grouped together? How is it that
legal transplants are possible? And why do they happen? How may we
represent legal cultures? And what is the role of a legal culture in the
legal process?
Comparative law is an attempt to cope with the problem of defining
one legal system as different from others. Differentiating among legal
systems requires a theory, because similarity and difference are not
pure facts, but rather depend on the framework employed to assign
a weight to different variables. For example, if we say that civil law
is mainly characterized by the codification of the law, we overlook
the fact that civil law has existed for centuries without codification.
Even classical Roman law was not codified. What is more relevant, two
millennia of non-c odified law or the last two hundred years of codifica-
tion? If classical Roman law was not codified, was it not more similar to
common law than to current forms of civil law?
Another easy example is that Roman law was based on slavery. If we
say that modern civil law is most similar to Roman law we necessarily
convey the meaning that slavery as such is an unimportant factor in
the description of a legal culture, but is that really credible? Early
Roman law had no general theory of contract, and a father had the
right to sell his son. Modern civil law has a general theory of contract
and does not allow fathers to sell their sons. Is modern civil law an
example of the almost magic capacity of self-r enewal of Roman law,
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PREFACE ix
or is it rather the outcome of a deep historical fracture with its Roman
origins?
Thus, similarities and differences underlined in comparative analysis
are not bare facts but the outcome of a process of selection of certain
traits as relevant for the assertion of identity and of others as irrelevant.
Defining legal identities depends heavily on the framework assumed
for the demarcation.
This problem of the definition, and also self-d efinition, of a legal cul-
ture has become more relevant today, as projects of legal reform are
planned on a global scale. The problem is relevant because we still
lack a commonly accepted theory of legal identities. We also lack a
clear understanding of the role played by background legal norms that
constitute the enduring stuff of a legal tradition.
From this standpoint, the processes of defining identities, similarities,
and differences among legal cultures are often political, non-n eutral,
and purposive projects of governance. So- called identities are more
often than not an assertion of identity, and which differences are con-
sidered the most relevant are often motivated by the desire to be dif-
ferent or to mark a difference as a strategy of insulating a legal culture
from outside influences as well as of exoticizing the other.
Comparative law thus requires a critical reappraisal of the discipline
and its self- conception as a truly transnational discipline, disentan-
gled from the various identities it should investigate. A critical under-
standing of the discipline would show that its history has never been
fully transnational, but rather firmly embedded in national traditions.
I would say that in each country the discipline has grown within the
frameworks and the constraints of a specific legal culture. A glimpse
at classics like Raymond Saleilles, Harold Cooke Gutteridge, Roscoe
Pound, Ernst Rabel, or Édouard Lambert can easily illustrate how much
they stuck to the traditions they inherited, reinforcing the stereotypes
that comparative law should avoid. Saleilles condemned the German
civil code for not being as clear as the French one. Gutteridge praised
the flexibility of the common law vis- à-vis the stiffness of French legi-
slation. Pound viewed the United Statesean way of handling cases as
decisively superior to the rigidity of the traditional English approach.
For the German professor Rabel, the task of developing a workable law
was not the judge’s but the scholar’s. For Lambert, universalism meant
that any society would tend towards the Western sociolegal project.
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