COMPARATIVE LAW - The holistic approach to legal cultures (part 2)

COMPARATIVE LAW, LEGAL HISTORY, AND THE HOLISTIC APPROACH TO LEGAL CULTURES.

by Michele Graziadei

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2. Comparative Law, Diffusionism, and Legal History.

 Any legal historian knows several examples of how institutions, doctrines and legal rules, which are present in a given territory, have their roots elsewhere. The best known examples of this complex phenomenon, in the history of law before the enactment of the civil codes, are provided by the diffusion of the Roman law in the Middle Ages[6]. Closer to us in time, the adoption of the civil codes by countries that have different social and economic structures[7] and the expansion of the common law throughout the world[8] are other illustrations of the dimensions of this dynamic.

From the comparative lawyer’s point of view, however, one may ask whether all the implications of the growth of the law by diffusion[9] have been really appreciated by legal historians. Could new historical discoveries be inspired by researches that make the most of the diffusionist thesis ? Possibly yes, provided that scholars are ready to acknowledge that the circulation of legal models and legal transplants may have taken place even across boundaries that today are perceived as difficult to cross.

The instances that come to my mind in this respect are the exchanges between the civil law and the common law world. Their study may cast new light not only on the history of English law, but also on the legal history of continental Europe. Obviously, the argument advanced by the examples that follow is worth considering for other geographical areas as well, not examined in this article.

I will not even try to give a complete picture of what has been achieved in this field already. I just wish to mention some studies that demonstrate the potential for discovering chapters of continental legal history by investigating sectors of English law that are commonly perceived to be rooted in English precedents, decided by English Courts, in accordance with English law.

Starting from the topic of contracts, the comparative study of the origins of the so-called ‘mailbox rule’ in the formation of contracts has generated interesting results. According to English law, acceptance of an offer by letter takes effect when the offeree despatches it by post rather than when it reaches the offeror[10]. Common lawyers consider this rule an exception to the principles governing the formation of contracts. Hence, it is frequently presented as an English peculiarity[11]. It now appears that the English rule was in tune with the communis opinio of the authors of the ius commune and with decisions of the courts of pre-unitary Italy[12]. In the same vein, the origins of the English undisclosed principal doctrine can be found in the civil law world. According to this doctrine, an undisclosed principal may sue or be sued on any contract made on his behalf by his agent acting within the scope of his actual authority[13]. The undisclosed principal doctrince is clearly at variance with the English rules of privity of contracts according to which only a party to a contract may sue or be sued on it. Even as an exception, however, the doctrine is unusual, since the principal is not mentioned, nor indeed contemplated by one of the contracting parties, and furthermore because he takes liabilities as well as rights under the contract[14]. The undisclosed principal doctrine also blatantly contradicts the “Offenkundigkeitsgrundsatz”, which governs the relations between principal agent and third party, in accordance with the theory of Stellvetretung, and the similar principle accepted in other civil law countries. Yet, from a historical point of view, the rules currently grouped together under the label ”undisclosed principal doctrine” are far from being an English peculiarity. They are not a deviation from the approach prevailing in continental Europe before the era of the Codes. Quite to the contrary, they correspond to rules and doctrines that have left traces in some continental codes[15], and that were an integral part of the ius commune[16]. Going further back in time, even the delictual origins of the English law of contract need rethinking after the relevant canon[17] and civil law[18] sources are examined. Once more, the development of contract law under the guise of delictual forms of actions has been presented as a very English achievement[19]. Yet, the comparative study of contract doctrines shows that the idea of sanctioning the deliberate breach of a promise as a wrong was also at work on the Continent in the thirteenth century, and beyond, whenever the requirements to make a naked pact binding were lacking.

All these studies tackle specific points of the history of contract law to show that the English experience is far less insular than it is commonly assumed. Yet, their importance for legal historians who investigate the past of continental Europe is that they cast light on forgotten episodes of our history. Other studies show how vast and how deep the communication of doctrines and rules related to contract has been across the Channel. I am referring to the works of Gordley[20], Simpson[21] and Zimmermann[22]. To be sure, one may argue that the law of contract is in itself a cosmopolitan subject[23], and that results obtained in that field cannot be easily duplicated in other fields. The reply to such an argument is twofold. First, we will simply not know what we miss until we map those other fields as well. Until then, we are left to mere speculation which is a rather poor substitute for actual knowledge. Second, the law of torts and the law of property are as promising as subjects of inquiry as the law of contract, judging by what has been done so far[24]. Indeed, Lupoi’s study of the roots of European law[25] invites us to consider under a new light the very problem of the origins of the distinction between English law and continental legal systems.

Do all these scholarly contributions mean that we already live in the best of all possible worlds?

Studies like those mentioned are still the exception rather than the rule. Furthermore, some of them are not comparative in the full sense of the word, because they do not systematically explore an area of the law with regard to two or more legal systems in order to draw comparative conclusions. Nevertheless, they are written by authors who make sense of their subject in the light of their knowledge of a different legal system, which is the basis of all comparison.

Another critical remark that is sometimes levelled against these studies is that they are too ‘narrow’[26]. Narrow they certainly are. They are narrow just as inquiries into lineage systems are ‘narrow’ compared to the general field of anthropology. But nobody thinks that the study of lineage systems should be abandoned because it is narrower than the study of anthropology in general. The alternative to the studies mentioned above is (or, rather, was) all too often contentment with vague generalities. Though ‘narrow’, the studies dedicated to technical aspects of some branches of the law should be taken seriously - especially by those who argue that legal change depends mainly on economic or social factors. Of course, this kind of research does not exhaust the field of comparative law. The focus can be on the wider picture, e. g. on the attitude towards foreign legal experiences as a factor shaping the legal consciousness of a given country[27], or on the problems involved in law reform by the import or export of legal models[28]. The examples collected above simply show that the writing of legal history is flawed if it fails to take into account the circulation of legal models. If this is correct, then we must critically assess the methodological assumptions that lead to underrate the impact of such phenomena on the evolution of the law.

[6] The series Ius Romanum Medii Aevi was launched to give a full picture of the topic, but it was left incomplete. The literature on the subject is now so vast that it cannot be compressed in a footnote. For references see: Hermann Lange, Die Anfänge der Modernen Rechtswissenschaft, Bologna und das frühe Mittelalter, 1993, on the later period: Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Rechtsgeschichte, 8 vols., 1973-1988.
[7] Pio Caroni, Saggi sulla storia della codificazione, 1998. Konrad Zweigert/ Hein Kötz, An Introduction to Comparative Law, I, 2nd ed., trans. by Tony Weir, 1987, ch. 8, pp. 100 ff., 159 ff., 184 ff.; Alan Watson, The Making of the Civil Law, 1981, ch. 8, esp. p. 121 ff.

[8] See the surveys by Rudolf B. Schlesinger, Hans W. Baade, Peter E. Herzog, Edward M. Wise, Comparative Law. Cases - Text - Materials, 6th ed., 1998, p. 292 ff.; Zweigert/Kötz (n.7) I, ch. 18, p. 226 ff.

[9] The study of the general features of this phenomenon is linked to the names of Alan Watson and Rodolfo Sacco. For some of Watson’s numerous works on the topic: Alan Watson, Legal Transplants, An Approach to Comparative Law, 1st ed. 1974, 2nd ed. 1993; id., Society and Legal Change, 1977; id., Sources of Law, Legal Change and Ambiguity, 1984; id., The Evolution of Law, 1985; id., Aspects of Reception of Law, 44 AJCL 335 (1996); Sacco's contributions include: id., Définitions savantes et droit appliqué dans les systèmes romanistes, Revue internationale de droit comparé (RIDC), 1965, 827 ff.; id., modèles français et modèles allemands dans le droit civil italien, RIDC, 1976, 225 ff.; id., Introduzione al diritto comparato, 1st ed. 1980, 5th ed., in Trattato di diritto comparato diretto da Rodolfo Sacco, 1992. (an abridged version of this essay was published French: id., La comparison juridique au service de la connaisance du droit, 1991 and in English, id., Legal Formants: A Dynamic Approach to Comparative law, 39 AJCL 1, 343 (1991)); id., La circulation des modèles juridiques, Rapport géneral, in: Académie internationale de droit comparé, Rapports généraux, au XIII congrès international, Montreal 1990, 1992, p. 1 ff.; The views of Sacco and Watson are compared by Ferreri, Assonanze transoceaniche, Quadrimestre, 1993, 172 ff.; Monateri, The ”Weak Law”: Contaminations and Legal Cultures, in: Italian National Reports to the XVth International Congress of Comparative Law, 1998, p. 83 ff., esp. at p. 90 ff. (a thought provoking-essay). For recent assessments of Watson's work see Ewald, Comparative Jurisprudence (II): The Logic of Legal Transplants, 43 AJCL (1995) 489.

[10] Adams v. Lindsell (1818) 1 B. & Ald. 680 = 106 E.R. 250. For the comparative discussion of this rule see Hein Kötz and Axel Flessner, European Contract Law, vol. 1, by Hein Kötz, trans. by Tony Weir, 1997, p. 22, according to whom it: "…is far from obvious why an acceptance should be effective any earlier than an offer or any other declaration of intention.".

[11] See, e.g., Eörsi, Problems of Unifying Law on the Formation of Contracts for the International Sale of Goods, 27 AJCL 311 (1979), 315, p. 317. Zweigert/Koetz (n.7), II, p. 38, refer to the mailbox rule as the "special rule of the Common Law".

[12] Carlini, La formazione del contratto tra persone lontane: un aspetto della revisione della comparazione tra common law e civil law, nel quadro di un diritto comune, Rivista trimestrale di diritto e procedura civile, 1984, 114 ff. Carlini's substantial study notes the agreement between the English rule and the ius commune solution, whereby acceptance becames effective the moment the declaration of the the offeree is formed. Thus, the ius commune shared the solution which today is considered to be "far from obvious" by distinguished comparative lawyers. The possibility of a civilian influence on this point of English contract law had been briefly addressed by Simpson, Innovation in Nineteenth Century Contract Law, (1975) 91 Law Quartely Review, 247, at 261 ff.; Nussbaum, Comparative Aspects of Anglo-American Offer and Acceptance, 36 Columbia Law Review 920 (1936) p. 922. James Gordley, The Philosophical Origins of Modern Contract Doctrine, 1991, at p. 45 ff., discusses the Glossators's and post Glossator's doctrines on this issue; Peter Goodrich, Oedipus Lex,. Psychoanalysis, History, Law, 1995, 198 ff., at 205 ff., points to Herny Swinburne, A Treatise of Spousals, or Matrimonial Contracts, 1st ed., London, 1686, 2nd ed., London 1711, p. 63, for an early English discussion of the rule with respect to marriage contracted inter absentes. On Swinsburne: John H. Baker, Monuments of Endless Labours: English canonists and their Work, 1300-1900, 1998, p. 57 ff.

[13] For a full statement of the rule and its analysis see Bowstead and Reynolds on Agency, 16th ed. by Francis M. B. Reynolds, 1996, p. 408 ff.

[14] Bowstead and Reynolds (n. 13), p. 410.

[15] See the Spanish cdigo de comercio, art. 287: ”El contrato hecho por un factor en nombre proprio, le obligar directamente con la persona con quien lo hubiere celebrado; mas si la negociacin se hubiere hecho por cuenta del principal, la otra parte contratante podrà dirigir su accin contra el factor o contra el principal.”.

[16] Lupoi, Elementi di ”civil law” nell’ ”agency”: la terminologia, Foro italiano, 1980, V, 137; id., ”Agency”, in Enciclopedia giuridica, I, 1988. Cp. Munday, A Legal History of the Factor, (1977) 6 Anglo- American Law Review 221.

[17] Helmolz, Assumpsit and Fidei Laesio, (1976) 91 Law Quartely Review (LQR) 406; id., Contracts and the Canon Law, in John Barton (ed.), Towards a General Law of Contract, 1990, p. 49 ff.

[18] Graziadei, Il patto e il dolo, in Scritti in onore di Rodolfo Sacco, I, 1994, p. 587 ff.

[19] See, e.g., René David, Les grands systèmes de droit contemporains, 5th ed., 1973, p. 333-334.

[20] Gordley, The Philosophical Origins of Modern Contract Doctrine, 1991.

[21] Simpson (n. 12).

[22] Reinhard Zimmermann, The Law of Obligations, 1990.

[23] This is a recurrent theme in the literature dedicated to the law of contract. See, most recently, Berger, International Arbitral Practice and the UNIDROIT Principles of International Commercial Contracts, 46 AJCL 129 (1998), p. 132: "Contract law has always been the most promising subject matter in comparative legal science.".

[24] On the history of the tort of defamation, Richard H. Helmholz, Select Cases on Defamation to 1600, Selden Society Publications, vol 101, 1985. The history of the tort of negligence also deserves to be considered from this perspective. For a first approach: Elliot, Degrees of Negligence, 6 Southern California Law Review 91 (1933). The aspect of property law which is now attracting attention is the law of trusts. See the recent collection of essays by Richard H. Helmholz and Reinhard Zimmermann (eds.), Itinera fiduciae, 1998. On the partitions of the law of property: Meijers, La realité et la personalité dans le droit du nord de la France et dans le droit anglais, in E. M. Meijers, Etudes d' histoire du droit, I, edited by R. Feenstra et H.F.W.D. Fisher, 1956, p. 228 ff. On English, French and Jewish practices of borrowing and security: Shael Herman, Medieval Usury and the Commercialization of Feudal Bonds, 1993. A vast program of investigations including other sectors of the law is outlined in Gorla and Moccia, A 'Revisiting' of the Comparison between 'Continental law' and 'English Law' (XVI-XIX Century), (1981) Journal of Legal History 147.

[25] Maurizio Lupoi, Alle radici del mondo giuridico europeo, 1994. The English translation of this book is forthcoming by Cambridge University Press.

[26] See, for example, Van Hoecke and Warrington, Legal Cultures and Legal Paradigms: Towards a New Model for Comparative Law, (1998) 47 International and Comparative Law Quarterly 495, p. 520 ff.

[27] See Mathias Reimann, Historische Schule und Common Law. Die deutsche Rechtswissenschaft des 19. Jahrhunderts im amerikanischen Rechtsdenken, 1993; Reiner Schulze (ed.), Französisches Zivilrecht in Europa während des 19. Jahrhuderts, 1994; Wolfgang Pggeler, Die deutsche Wissenschaft vom englischen Staatsrecht. Ein Beitrag zur Rezeptions- und Wissenschaftsgeschichte, 1748-1914, 1995; Reiner Schulze (ed.), Rheinisches Recht und Europäische Rechtsgeschichte,1998.

Rechtsgeschichte,1998.

[28] It is not difficult to predict that in order to understand how the law changed in transition countries, tomorrow’s legal historians will have to investigate the impact of pratices like those described and discussed by John C. Reitz, Reciprocal Influences and Evolving Legal Systems, General Report to the XVth International Congress of Comparative Law, Bristol, 1998; Ajani, By Chance and by Prestige: Legal Transplants in Russia and Eastern Europe, 43 AJCL 93(1995); Ann Seidman and Robert B. Seidman, State and Law in the Development Process, 1994, p. 44 ff.

[to be continued]