COMPARATIVE LAW, LEGAL HISTORY, AND
THE HOLISTIC APPROACH TO LEGAL CULTURES.
by
Michele Graziadei
3. Comparative Law as a Critical Perspective on the Historiographical Canon.
So
far, I have presented the obvious case for the use of comparative law research
by legal historians.
However,
despite these uses, the principal contribution of comparative law to legal
history probably lies elsewhere. Comparative law can operate as a critique of,
and an aid to overcome, the dominant modes of thought shared by the scholarly
community of legal historians.
Legal
historians trained solely in the study of their own legal tradition are
inclined to share the preconceptions that shape the legal culture they belong
to.[29]. Indeed, because historians (like the rest of the people) live in
society and partake its culture it is possible to argue that historiography is
a form of narrative driven by tradition, rather than an exercise in
objectivity[30]. This late critique of the Enlightment is now knocking at our
door[31]. It certainly knocks at the door of comparative legal studies when
their object is recast in subjective terms. To put it as Ewald[32] brilliantly
did: what was it like to try a rat ? Or, more explicitly, what is it like to
think like an American, or a German lawyer[33] ?
More
often than not, attempts to answer this questions embrace an holistic approach
to the understanding of legal cultures. By holism, in this context, I mean any
theory according to which an account or an interpretation of a part is
impossible, or at least inadequate, without reference to the whole to which
that part belongs to[34].
To
be sure, the radical version of holism holds that it is impossible to know what
is it like to think like an American or an Italian lawyer unless that condition
is experienced in the first person, that is to say, unless one actually becomes
an American lawyer, or an Italian lawyer[35].
Milder
versions of holism start from the premise that comparative law does not achieve
its aims if it fails to explain why lawyers belonging to a certain culture
think the way they do. This, however, cannot be discovered by pursuing the
study of legal rules alone because they are unintelligible without exposing the
factors influencing their understanding[36]. The key factor on which to focus
would then be the collective memory[37] of those engaged with the law. This
memory sets the stage for individual action in the law. Hence, to make sense of
the legal cultures of the world we should concentrate on this component of the
law, rather than on anything else. This theory has far-reaching consequences.
First, the holistic approach to legal cultures dispenses its proponents from
systematic investigation of the rules followed in a given society. Second, such
an outlook on the law downplays the role of legal transplants or the circulation
of legal models as a factor of legal change. From the holistic perspective, the
study of such phenomena cannot reveal much about the distinctive features of a
legal culture.
In
an sense, holism reverses the narrow approach which defines the law solely in
terms of rules. Yet, just like that approach, it also pays scarce attention to
aspects of the law that make up the legal world. It too, therefore, entails a
simplification of comparative law studies. In the end, therefore, this
predicament fails to tell us all that we can learn by comparing the world’s
legal systems[38].
Nevertheless,
the question raised by this proposal to rethink the comparative effort is far
too important to be ignored by comparative law scholars and legal historiians
alike.
Hence,
is it true that nobody can trascend the cultural horizon in which he or she is
immersed ?
As
long as a clear yardstick to measure an artifact like a "cultural
horizon" is not provided, the question cannot be answered as well with a
clear yes or no[39].
In
any case, the acquatic metaphor of "immersion" with regard to (legal)
culture dramatically underscores the multiplicity of cultural experiences that
we are constantly exposed to. Yet, under the lense of anthropology, the
integrity of ”culture” turns out to be a myth for most societies [40]. It is a
myth even though the intellectual life of the whole (or a segment) of the
population is unable to understand it as such. This conclusion holds true for
law as well. Comparativists know all too well that what can be properly termed
German, French, English or Italian law is actually only a fraction of what
currently goes under that name[41]. To a great extent, these legal systems
share a common stock of rules, institutions, legal concepts and ideas. None of
them is wholly and exclusively German, French, English or Italian . Tomorrow's
lawyers will be puzzled to learn that, on the verge of the third millenium,
there were still people who thought otherwise.
I
am neither saying that the myth of the integrity of (legal) culture – which
goes hand in hand with the holistic approach - is meaningless, nor that
mythology is not worth scientific study.
Quite
to the contrary, foundational myths are among the most powerful narratives
legitimizing the law. Moreover, to understand what the law is about it is
important to capture its mythological underpinnings, whatever we think about
them[42].
What
I am saying is that mythology cannot be taken as a substitute for historical
research[43]. Historical research must tackle all that has happened in the
past, in all its complexity. This may involve the investigation of facts that
are unsettling or disturbing for today’s understanding of who we are, or where
we stand, and eventually for our memory of the past[44].
This
brings me back to my main point: how can we free ourselves from the
conventional wisdom?
Tradition
is something that people accept, reject, shape troughout their lives[45]. One
of the ways in which this happens is through engagement in critical activities
that lead to reconsider traditional modes of thought. It is undeniable that
much history, including legal history, has been written along these lines. It
has been written against tradition, or against the current, by testing received
opinions against the findings of historical research[46].
Scholars
who have devoted their energies to comparative law are involved in the same
enterprise. When comparative lawyers argue that the ultimate aim of their
discipline is to acquire better knowledge of their own law, rather than of the
foreign law, they refer to this experience[47]. There is nothing paradoxical in
the claim that the main purpose of comparative law is to get a better knowledge
of the legal system in which the comparativist is situated[48]. Yet, this does
not happen because the legal system from which the comparative lawyer comes and
the foreign law are the same. It happens because they are different. Such
difference allows the comparative lawyer to approach his own law as a new
object of study. The exposure to the foreign law provides an exit or an escape
from the familiar intellectual landscape. Coming back to it, the comparative
lawyer appreciates things that he or she was bound to ignore before. Hence, the
praesumptio similitudinis, which is sometimes presented as the methodological
polar star of the comparativists[49], is really at loggerheads with one of the
main purposes of the comparative exercise: to fully realize the variety of
possible approaches to a given problem.
Those
who take this way out of tradition and enter the field of legal history can
have an enormous influence on the orientation, or re-orientation, of legal
historiography. The application of comparative law skills to historical
research has indeed contributed to the
critique and the re-orientation of legal historiography in my country. The most
remarkable instance of a fruitful exchange between the two disciplines concerns
the history of the courts of law in pre-unitary Italy.
From
the end of World War II until the late sixties, Italian legal historians paid
no attention to the existence and the activity of the courts of law which
operated in pre-unitary Italy. The legal historians’ lack of interest in the
courts that had dominated the life of the law during the last phase of the ius
commune was not inexplicable. Post-war Italian legal academia held the
conviction that court decisions were not a proper object of scientific study.
Legal historians shared this point of view. The scholar who eventually buried
this historiographical convention - the late Gino Gorla - held the chair of comparative law at the
University of Rome. Gorla, who devoted
the greatest part of his life to the comparative study of the common law and the
civil law, unveiled the importance of the activity of these courts between the
sixteenth and the nineteenth centuries[50]. After Gorla, Italian legal
historians stepped in and now we have a substantial literature on this
fascinating topic[51]. In this case the contribution of the comparativist to
legal history consisted mainly of taking the bold step that no lawyer educated
solely in the orthodoxy of post-war Italian legal thought could take: i.e. to
recognize that court decisions could be a source of law.
Today,
several comparativists and legal historians in Italy pursue this dimension of
comparison. Furthermore, the law curriculum in Italy now provides students with
many occasions to benefit from this approach[52]. But Italy may just be part of
a wider movement, as international research initiatives bringing together
comparative lawyers and legal historians flourish[53].
In
today’s Europe, the study of the past need not be the study of how we were or,
even worst, of how we shall be. It can be the study of how different they - our
ancestors, if you like - were from us[54]. The step in this direction - towards
the study of the past as another country - entails the same exit and return to
the familiar landscape of contemporary law that comparativists experience when
they approach contemporary foreign legal systems. The awareness of this common
experience may provide a firmer ground for our discussions, and open up new
fields of research.
[29]
Anthropology shows that we perceive the existence and the operation of cultural
models only when we are exposed to models different from our own. For a
classical introduction to the idea: Lewis H. Morgan, Systems of Consanguinity
and Affinity of the Human Family, 1871, p. 39. On the current the current
methodological debate: Francesco Remotti, Noi, primitivi. Lo specchio
dell'antropologia, 1990.
[30]
For an influential statement of this opinion see Hans-Georg Gadamer, Wahrheit
und Methode. Grundzüge einer philosophischen Hermeneutik, 1st ed. 1960, 6th
ed., 1990, at 281 ff., espec. 287 ff. To be sure, Gadamer's interpretive
boundaries are not sealed, because they can always adopt more inclusive
viewpoints (id., Truth and Method, 271 and 273). Yet, despite such assertions,
Gadamer considers tradition as an homogeneous whole, free from conflicting
orientations, dead ends, and clean starts. For historians’ evaluations of
Gadamer’s positions: Reinhart Koselleck, Hermeneutik und Historik, 1987; Hayden
White, The Question of Narrative in Contemporary Historical Theory, (1984),
reprinted in id., The Content of the Form. Narrative Discourse and Historical
Representation, 1987, p. 26 ff.
[31]
Where it asks to be welcomed because it has the merit of stating explicitly
what is otherwise all too often unconsciosly assumed. As Gadamer puts it:
"Every encounter with tradition that takes place within historical
consciousness involves the experience of the tension between the text and the
present. The hermeneutic task consists in not covering up this tension by
attempting a naive assimilation but consciously bringing it out." (my
citation is to Hans-Georg Gadamer, Truth and Method, 2nd ed., tr. by William
Glen-Doepel, 1979, 273).
[32]
Ewald, Comparative Jurisprudence I. What Was it Like to Try a Rat ?, 143
University of Pennsylvania Law Review 1889 (1995).
[33]Cp.
Ewald (n. 32), p. 1896, 1939 ff. The way the question is framed reflects what
leading American law schools are supposed to do, i. e. to teach their students
to "think like a lawyer".
[34]
Cp. Thomas Mautner, A Dictionary of Philsophy, 1996, 192-193; Robert Audi, The Cambridge
Dictionary of Philosophy, 1995, 335 ff.
[35]
See, e.g., Legrand, Europen Legal Systems are not Converging, (1996) 46
International and Comparative Law Quartely, 52, at 78: "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 trascend his acculturation.".
[36]
Ewald (n. 32), 1947, 2146.
[37]
I‘m referring to such shared notions that are the key to collective or national
identity. These notions are inherently selective, and therefore exclusionary of
actual events, ideas and memories that are at odds with the mainstream
representation of „who we are“. For a discussion of the distinction between
individuelles and kollektives Gedchtnis by a German author see Jan Assmann, Das
kulturelle Gedchtnis: Schrift, Erninnerung und politische Identitt in fruhen
Hochkulturen, 1992, 34 ff. The seminal contributions on this topic are by
Maurice Halwachws. See id., Les cadres sociaux de la mémoire, 1924 (German translation:
id., Das Gedchtnis und seine soziale Bedingungen, 1985). To be sure, aspects of
the cultural heritage or shared cultural events may be invented and then
naturalized as historical. Cp. Eric J. Hobsbawm and Terence Ranger (eds.), The
Invention of Tradition, 1983.
[38]
Cp. Sacco, Legal Formants (n. 9). Sacco insists on the multi – layered
structure of the law and the need to take into account all its formants when
comparing legal systems. With specific reference to Ewald’s essay: Zekoll, Kant
and Comparative Law - Some Reflections on A Reform Effort 2719 (1996), p. 2742
ff.
[39]
Nevertheless, those seeking light from philosophy in these matters can argue
for the possibility of (imperfect) communication among peoples having different
cultures: Popper, The Myth of the Framework, (1976), reprinted in Karl R.
Popper, The Myth of the Framework.. In Defence of Science and Rationality,
edited by M.A. Notturno, 1993, p. 33 ff.; Curran, Cultural Immersion,
Difference and Categories in U.S. Comparative Law, 46 American Journal of
Comparative Law 43 (1998) 50 ff.; or to recognize the possibility of
comparative evaluation of cultures: Alasdair MacIntyre, Whose Justice ? Which
Rationality ?, 1988. On MacIntyre' s approach to the problem of cultural
conmmensurability see Tate, The Hermeneutic Circle vs. the Enlightment, Telos,
1998, 9 ff.
[40]
The explicative value of "culture" as a category has come into
question among anthropologists. With specific regard to the legal context see:
Cotterrell, The Concept of Legal Culture, in David Nelken (ed.), Comparing
Legal Cultures, 1997, p. 13 ff.; Friedman, The Concept of a Culture: a Reply,
ibidem, p. 33 ff. But the present reservations about the validity of the
category do not concern the insight that "culture" is the resultant
of opposite tensions, rather than of factors pointing in the same direction:
Pietro Rossi (ed.), Il concetto di cultura, Torino, 1970.
[41]
The point is forcefully made by Gordley, Comparative Legal Research: its
Function in the Development of Harmonized Law, 43 AJCL 555 (1995), 561 ff.,
and, from a different angle, by Ugo Mattei, Comparative Law and Economics,
1997.
[42]
For various approaches and results on this issue: Gordley, Myths of the French
Civil Code, 47 AJCL 459 (1994); Peter Fizpatrick, The Mythology of Modern Law,
1992.
[43]
The birth of historiography in ancient thought is inextricably connexed with
the perception of this distinction. See, e. g., Dionysius of Halicarnassus on
Thucydides, who: "…differed from the earlier historians (…) by his exclusion
of all legendary material and his refusal to make his history an instrument for
deceiving and captivating the common people …" (Dionysius of
Halicarnassus, The Critical Essays in Two Volumes, I, with an English
translation by Stephen Usher, 1974, c. 6). On the place of myths among the
Greeks and in our culture: Carlo Ginzburg, Mito. Distanza e menzogna, first
published in S. Settis (ed.), I Greci, I, Noi e i greci, 1996, repr. in Carlo
Ginzburg, Occhiacci di legno - Nove riflessioni sulla distanza, 1998, p. 40 ff.
[44]
By the same token, the difference between collective memory and historiography
vanishes when the desire to roll history into the European flag guides the
discovery of a common European past: Osler, The Myth of European Legal History,
Rechtshistorisches Journal, 1997, 393. Yosef Hayim Yerushalmi, Zakor. Jewish
History and Jewish Memory, 1992, shows that even societies jealously preserving
the memory of the past as key to individual and collective identity may be
indifferent to historiography. Once more, this is evidence that collective
memory and historiography may have little in common.
[45]
The recent proposals aiming at the revision of the classification of the
world's legal systems into various families may be considered paradigmatic in
this respect. Such proposals do not merely reflect the need to take into
account the changes in the world's panorama produced by the fall of the Soviet
Union and its empire. They also spring from the desire to reformulate the place
occupied in the world by each jurisdiction along lines that demonstrate an
increased awareness of the common features of the "Western legal
tradition". Yet, just two or three decades ago the perception of those
features was hardly as acute as it is today. Cp. Mattei, Three Patterns of Law:
Taxonomy and Change in the World's Legal systems, 45 AJCL. 5; Gordley, Common
law und civil law: ein überholte Unterscheidung, (1993) 1 Zeitschrift für
europäisches Privatrecht 498. The current debate over the history of European
private law is also illustrative of the changing attitudes towards the
traditional boundaries of the subject. See on this topic the contributions by
Schulze, Strukturwandel des Privatrechts und Rechtsgeschichte, in: Pio Caroni
and Gerhard Dilcher, Norm und Tradition. Welche Geschichlichkeit für die
Rechtsgeschichte ?, 1998, p. 257 ff.; id., Vom Ius Commune bis zum
Gemeinschafstrecht - das Forschungsfeld der Europäischen Rechtsgeschichte, in
Reiner Schulze (ed.), Europäischen Rechts - und Verfassungsgeschichte, 1991, p.
3 ff.; Brauneder, Europäisches Privatrecht - aber was ist es ?, Zeitschrift für
neuere Rechtsgeschichte, 1993, p. 225 ff.; Zimmermann, Der europäisches
Charakter des englischen Rechts: historische Verbindungen zwischen civil law
und common law, (1993) 1 Zeitschrift für europäisches Privatrecht 4; id.,
Savigny's Legacy: Legal history, Comparative Law, and the Emergence of a
European Legal Science, (1996) 112 LQR. 576; Ascheri, Eine mittelalterliche
Rechtsordnung - für Heute ?, RJ 51 (book review of Paolo Grossi, L'ordine
giuridico medioevale, 1995); Reimann, Who is Afraid of the Civil Law ? -
kontinaleuropäisches Recht und Common Law im Spiegel der Englischen Literatur
seit 1500 (forthcoming in Zeitschrift für Neuere Rechtsgeschichte).
[46]
See the literature cited above, n. 3.
[47]
For a legal historian’s viewpoint, in a similar vein, Cordes, Was erwartet die
(mittelalterliche) Rechtsgeschichte von der Rechtsvergleichung ?, in this
Review; Paolo Grossi, L’ordine giuridico mediovale, 1995.
[48]
See, e.g., John H. Langbein, The Influence of Comparative Procedure in The
United States, 43 AJCL 545 (1995): “When teaching a course that emphasizes
comparative procedure, I remind students of the justification that was given
them when they were asked to learn Latin in school: we study Latin to learn
English. So with comparative law. American law students are not training to
become lawyers or judges in Berlin or Paris. The purpose of comparative law is
to help understand what is distinctive (and problematic) about domestic law.”.
in the same sense: Mary Ann Glendon, Michael Wallace Gordon, Christopher
Osakwe, Comparative Legal Traditions: Text, Materials and Cases, 2nd rev. ed.,
1994, p. 10.
[49]
Cp. Zweigert/Kötz (n. 7) who advance this presumption for relatively ”unpolitical”
areas of the law. For an enlightening analysis of the the historical context
which may have inspired this profession of faith: Curran (n. 37) p. 67 ff.
[50]
Among the first and most important of these studies see: Gorla, Die Bedeutung
der Präzedenzentscheidungen der Senate von Piemont und Savoyen im 18.
Jahrhundert, in Ius Privatum Gentium, Festschrift für Max Rheinstein, I, 1969,
p. 103 ff.; id., I Grandi Tribunali italiani fra i secoli XVI e XIX: un
capitolo incompiuto della storia politico-giuridica d' Italia, Quaderni de
"Il foro italiano" (supplement to: Il foro italiano, 1969, c. 629
ff.); id., L'origine e l'autorità delle raccolte di giurisprudenza, Annuario di
diritto comparato, 1970, 1, ff.; id., Appunti per una ricerca storico-comparativa
in tema di autorità delle decisioni giudiziali, (1970), Contratto e impresa,
1989, 605 ff.; id., I tribunali Supremi degli Stati italiani, fra i secoli XVI
e XIX, quali fattori dell' unificazione del diritto nello Stato e della sua
uniformazione fra Stati (Disegno storico-comparativo), in: La formazione
storica del diritto moderno in Europa, Atti del terzo Congresso internazionale
della Società italiana di storia del diritto, I, Firenze, 1977, p. 447 ff.;
id., La ”Communis opinio totius orbis”et la reception jurisprudentielle du
droit au cours de XVI, XVII et XVIII siècles dans la ”Civil Law”et la ”Common
Law” (Thèmes de recherche) in Mauro Cappelletti (ed.) New Perspectives for a
common Law of Europe - Nouvelles perspectives d’un droit commun de l’Europe, 1978,
p. 45 ff.; On Gorla's career and intellectual biography see the contributions
collected in Scintillae Iuris - Studi in Memoria di Gino Gorla, I, 1994, pp.
3-145, and his autobiographical notes, Gorla, Ricordi della carriera di un
comparatista, Foro italiano, 1980, V,1 ff.
[51]
For the recognition of the importance of Gorla's studies on the ancient Courts
of law of pre-unitary italy and the literature on theis topic see Ascheri, I
grandi tribunali e la ricerca di Gino Gorla, in Scintillae Iuris (n. 49), p. 76
ff.
[52]
Comparative law became a compulsory subject in the law school curriculum in
Italy five years ago. Sacco, L'Italie en tête (à propos de l'einsegnement du
droit comparé), RIDC), 1995, 131; id., La formation au droit comparé.
L'expérience italienne, RIDC, 1996, 273, explains why and how this happened.
Most comparative law courses which are taught to second or third year students
introduce them to the historical dimension of the comparison: cp. Antonio
Gambaro and Rodolfo Sacco, Sistemi giuridici comparati, in Trattato di diritto
comparato diretto da R. Sacco, 1996; Pier Giuseppe Monateri, Il modello di
civil Law, 2nd ed., 1997; Gian Maria Ajani, Il diritto dei paesi dell'Europa
orientale, Trattato di diritto comparato diretto da R. Sacco, 1996; id., Il
modello post-socialista, 1996; Ugo Mattei, Il modello di common law, 1996; id.,
Common law - il diritto anglo-americano, in Trattato di diritto comparato
diretto da R. Sacco, 1992.
[53]
See, e.g., Letizia Vacca (ed.), Vendita e trasferimento della proprietà nella
prospettiva storico-comparatistica, Atti del Congresso internazionale
Pisa-Viareggio - Lucca, 17-21 aprile 1990, I, II, 1991; La responsabilità
civile da atto illecito nella prospettiva storico-comparatistica, I° congresso
internazionale ARISTEC, Madrid, 7-10 ottobre 1993, 1995; Letizia Vacca (ed.),
Causa e contratto nella prospettiva storico-comparatistica, II Congresso
internazionale Aristec, Palemo, 7-8 giugno 1995, 1997; The series Comparative
Studies in Continental and Anglo-American Legal History/Vergleichende
Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen
Rechtsgeschichte and the Recueils de la Societé Jean Bodin pour l'histoire
comparative des institutions are the other oustanding examples in the field.
[54] In the same
vein, arguing for a larger place of comparative law and legal history in the
law school curriculum, Pennington, The Spirit of Legal History, 64 University
of Chicago Law Review 1097 (1997), 1115: "If legal history deserves such a
place in the curriculum of today's law schools, it must earn it by producing
books that not only restore memories of forgotten jurists, doctrines and
practices, but that also provide different ways of thinking about law.".
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