New Directions in Comparative Law

New Directions in Comparative Law

New Directions in Comparative Law

Edited by

Antonina Bakardjieva Engelbrekt Professor of European Law, Stockholm University, Sweden

Joakim Nergelius Professor of Law, Örebro University, Sweden

Edward Elgar Cheltenham, UK • Northampton, MA, USA

© The editors and contributors severally 2009 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 The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2009936756

ISBN 978 1 84844 318 1

03

Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound by MPG Books Group, UK

Contents List of contributors List of abbreviations Preface by Joakim Nergelius

vii ix xi

Introduction Antonina Bakardjieva Engelbrekt and Joakim Nergelius

xiii

PART I COMPARATIVE LAW, LEGAL AID AND DEVELOPMENT 1. 2. 3.

4.

5.

Legal change and economic performance: an assessment Gianmaria Ajani Legal cartography and comparative law Per Bergling Development assistance in the legal field: promotion of market economy v human rights Michael Bogdan Can human rights be exported? On the very idea of human rights transplantability Claudio Corradetti ‘Cut-and-paste’? Rule of law promotion and legal transplants in war to peace transitions Richard Zajac Sannerholm

PART II 6.

7. 8.

3 19

33

40

56

COMPARATIVE CONSTITUTIONAL LAW

Ontological and epistemological complexity in comparative constitutional law Otto Pfersmann European constitutional law: its notion, scope and finalities Rainer Arnold Governmental accountability in autonomies: Åland Islands in comparison with select autonomies in Europe and elsewhere Markku Suksi

v

81 99

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9. 10.

The viability of constitutional/non-constitutional comparison Johan Lindholm Comparative aspects of fundamental rights in Germany and Central and Eastern Europe: the example of Ukraine Kateryna Karpova

PART III 11.

12.

13. 14. 15.

136

151

COMPARATIVE PRIVATE AND ECONOMIC LAW

Making the Principles of European Contract Law: theoretical and methodological aspects Ole Lando The questionable questionnaire: reflections on comparative law method in light of Principles of European Tort Law Mårten Schultz Legal services in conveyancing: a European comparison Christoph U. Schmid Constitutionalisation of private law Anna Lytvynyuk Toward an institutional approach to comparative economic law? Antonina Bakardjieva Engelbrekt

165

173 185 201 213

CONCLUSION 16.

Index

Modern comparative law: the forces behind and the challenges ahead in the age of transnational harmonisation Peter-Christian Müller-Graff

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Contributors Gianmaria Ajani, Professor of Law, University of Torino, Faculty of Law. Rainer Arnold, Dr, Professor of Public and Comparative Law, Jean Monnet Chair of European Law, University of Regensburg. Antonina Bakardjieva Engelbrekt, Professor of European Law, Stockholm University. Per Bergling, Professor of Law, Umeå University. Michael Bogdan, Professor of Law, University of Lund. Claudio Corradetti, Researcher in Political Philosophy and Bioethics, European Academy, Bozen; Temporary Lecturer, University of Rome II, ‘Tor Vergata’. Kateryna Karpova, Dr, University of Regensburg; M.A. in Foreign Policy, Diplomatic Academy, Kyiv; M.A. in Public Policy, University of Erfurt. Ole Lando, Dr, Dr H.H. Mult, Professor Emeritus, Copenhagen Business School; Chairman of the Commission on European Contract Law. Johan Lindholm, LL.D., Senior Lecturer, Umeå University. Anna Lytvynyuk, LL.M. Kyiv National University of Taras Schevchenko, Institute of International Relations; MA College of Europe, Warsaw, Poland; PhD Candidate, University of Regensburg. Peter-Christian Müller-Graff, Director of the Institute for German and European Economic Law, o. Univ.-Professor, Dr. Dres. h.c., University of Heidelberg. Joakim Nergelius, Professor of Law, Örebro University. Otto Pfersmann, Professor of Law, University Paris I Panthéon-Sorbonne. vii

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Christoph U. Schmid, Professor of European Private and Economic Law and Director, Centre of European Law and Politics at Bremen University. Mårten Schultz, Associate Professor, Stockholm University and Örebro University. Markku Suksi, Professor of Public Law, Åbo Akademi University. Richard Zajac Sannerholm, LL.D, Örebro University.

Abbreviations ABA ADB ADR AGOA CECL CEN CENELEC DfID ECHR ECJ EGTL EU FCC GAO GATT HGB IASC IBRD ICC IJC ILO IMF IPF IViR JICA JSAP LAD LAP LNA LOT NCE NGOs OECD OHADA

American Bar Association Asian Development Bank Alternative Dispute Resolutions African Growth and Opportunity Act Commission on European Contract Law Comité Européen de Normalisation Comité Européen de Normalisation Electrotechnique (European Committee for Electrotechnical Standardization) Department for International Development European Convention of Human Rights European Court of Justice European Group on Tort Law European Union Federal Constitutional Court General Accounting Office General Agreement on Tariffs and Trade Handelsgesetzbuch (Commercial Code) Inter-Agency Steering Committee The International Bank for Reconstruction and Development International Chamber of Commerce Independent Judicial Commission International Labour Organization International Monetary Fund Institutional Possibilities Frontier Institute of Information law in The Netherlands Japan International Cooperation Agency Judicial System Assessment Program Law on Administrative Disputes Law on Administrative Procedure Legal system needs assessment Legal Origins Theory New Comparative Economics Non-governmental organisations Organisation for Economic Co-operation and Development The Organization for Harmonization in Africa of Business Laws ix

x

PECL PETL SAR SIDA SIGMA UDHR UNCTAD UNDP UNIDROIT UNODC UNSG WB WHO WIPO WJP WTO

New directions in comparative law

Principles of European Contract Law Principles of European Tort Law Special Administrative Region Swedish International Development Authority Support for Improvement in Government and Management in Central and Eastern Europe Universal Declaration of Human Rights United Nations Conference on Trade and Development United Nations Development Programme International Institute for the Unification of Private Law UN Office on Drugs and Crime United Nations Report of the Secretary-General World Bank World Health Organization World Intellectual Property Organization World Justice Project World Trade Organization

Preface This edited volume has its foundation in the conference ‘New Dynamics in Comparative Law’ which was held at the University of Örebro in May 2007. It is, almost two years after the conference, a great pleasure to be able to present the rich material which the conference generated in book form. While the content as well as the methodology and ideas underlying the conference are presented elsewhere, I would here like to dwell briefly on what this conference meant for the topic of law at the University of Örebro. Since this is a very young university, where the first professor of law was installed in 2003 and the full legal education started as late as 2005, international conferences of this kind – of which this was the second to be held – are tremendously important, needless to say. Not only may they, hopefully, contribute to making Örebro more well-known as a venue for high-standing legal and scientific discussions. They will also inspire a small, young group of scholars and teachers, who strive to establish a new, untraditional centre of legal education and research. In fact, legal education in Örebro has always tried to have an international profile, paying more attention to European law, comparative law and public international law than any other Swedish university. Still, in a situation where resources are ever more scarce, old, well-established universities and law faculties may have certain advantages. To put it simply, these are not the easiest times to put new universities on the map. Against that background, it was a true pleasure to welcome a highly qualified group of international scholars focusing on comparative law, of different ages, gender and origin, to Örebro in May 2007. All the activities during the conference – plenary sessions, work groups and the purely social program – went down really well and the discussions were, undoubtedly, extremely constructive. Therefore, it is an even greater pleasure now to be able to bring the interesting papers and speeches from the conference together in this book, which will hopefully stimulate future debate in comparative law, its methodology, purpose, development and usefulness in various sectors, in the years to come. For the happy fulfillment of this editing process, I wholeheartedly wish to thank not only the writers but also the staff at Edward Elgar, who here once again show their advanced technical skills. For the scientific input, I am of course deeply grateful to my co-editor xi

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and former colleague Professor Antonina Bakardjieva Engelbrekt, then in Örebro, now in Stockholm, though still paying a lot of attention to producing this book. Finally, I wish to thank Maria Carlström-Puhakka for her efforts in preparing the conference and Ms Lise Wållberg for her valuable work in formatting the contributions. Joakim Nergelius

Introduction Antonina Bakardjieva Engelbrekt and Joakim Nergelius This book opens with a bold claim. It argues that a discipline with a long and reverent history such as comparative law is presently characterised by an important new dynamic that is taking it into new directions. Some may object that it is inherent to human nature that each generation perceives its experiences as new and unique, and that scholars are particularly susceptible to this proclivity to overemphasise novelty, given their vocation-related search for the new and the unconventional. At the same time scholarly work, at least theoretically premised on the notions of scrupulous research, rigorous methods and honest reporting, should allow for verifying and falsifying sweeping claims and vague intuitions. So, can we with a level of academic seriousness maintain that there is something significantly new and particular about the way comparative law is approached, employed and practised today, compared with the days of Montesquieu and Aristotle? The various contributions in this book give different and only partial answers to this overarching question. Our own intuitions when embarking on this project were based on a number of observations. The first is probably a trivial one, namely that the undeniable swings and sways of globalisation have unleashed a previously unseen mobility of human and economic resources. Supported by virtually instantaneous and ubiquitous communication networks, this mobility produces a dramatic increase of human interaction across geographical regions, and inevitably a corresponding interaction between different legal traditions, institutions and mindsets (Hughes, 2002–2003). Second, there is a well-reported exponential increase in the number of practical initiatives in the areas of legal aid and of harmonisation and unification of law. Following the end of the Cold War, which marked the triumph of the Western model of democracy, rule of law and (regulated) market economy, a flurry of activities has unfolded, seeking to engraft a largely successful blueprint onto developing, transition and crises-affected states (Hellman, Jones and Kaufmann 2002). Concerning legal assistance to such countries, scholars nowadays speak of saturation and note fierce competition between donor agencies willing to engage in rule-transfer and institution-building. At the same time, a monumental attempt to match xiii

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economic integration with legal harmonisation results in a stacking of adaptation and unification projects at both regional and global level. Third, even without systematic statistic enquiry, it seems safe to assert that the literature on comparative law has grown exponentially, not least in relation to the topics covered here. Those topics are law and development, private law and constitutional law. This means, in other words, that two very traditional areas within comparative law are being dealt with, together with a ‘new’, dynamic but hitherto less (scientifically) observed area, that of law and development. Consequently, the book contains traditional views as well as new perspectives on comparative law as a legal science. If the increase in legal interaction, exchange and comparative law research mentioned above can be taken as a sign of new dynamics, what have then been the starting premises of the project as to the new directions of the discipline? One significant new trend from a research perspective seems to be that the growing demand for comparative law has triggered critical reflection on the discipline’s theory and methodology. Previously, criticism of underdeveloped theory and methodology was frequently brushed away with reference to Gustav Radbruch’s now famous statement that ‘sciences that have to busy themselves with their own methodology are sick sciences’ (as quoted by Zweigert and Kötz, 1998: 29). The most influential contributions on the comparative law method used to be conspicuously concise and confined to the classical situation of national law comparisons (Zweigert and Kötz, 1998; see however Constantinesco, 1972). Today, however, we can lean on a remarkable number of new scholarly works which address the epistemology and methodology of comparative law seen as a discipline studying the interaction of laws, cultures and traditions in a globalised world (Ewald, 1994–95; Gerber, 1998; Reitz, 1998; Harding and Orücü, 2003; Legrand and Munday, 2003; Van Hoecke, 2004; Reimann and Zimmermann, 2006; Örücü and Nelken, 2007). Related to the above, we can note an increased interest in comparative law from neighbouring disciplines, notably legal sociology, legal history (Watson, 1993; Zimmermann, 2001), law and economics, as well as a reverse trend, that of an intensified recourse of comparative lawyers to social science methods and approaches. Given the abundance of practical harmonisation and legal assistance projects described above, in which comparative law typically is employed as a tool to promote societal change, it is not surprising that legal sociologists have developed a keen interest in exploring the feasibility, effects and desirability of such comparative exercises. The surge of studies on comparative legal cultures and traditions and on legal transplants is indicative of these interdisciplinary endeavours (Gessner, Hoeland and Varga, 1996; Nelken, 1996; Budak and Gessner, 1998; Van Hoecke and Warrington, 1998; Feest and Nelken, 2001; Glenn, 2004; Grillo, 2009). In a different vein, economists have been intrigued

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by the apparent influence of legal institutions on economic efficiency and on the divergent impact that different legal systems and regulatory traditions seem to exert on economic efficiency (Ogus, 2007; Djankov et al, 2003). Whereas economists have early been among the enthusiastic supporters of comparative law research (Buxbaum, 1996) we can now observe a more conscious and structured attempt at linking the two disciplines in theories of comparative law and economics (Mattei, 1998), new comparative economics (La Porta et al, 1998; Djankov, 2003; see also Berkowitz et al, 2003) and varieties of capitalism (cf Hall and Soskice, 2001; Lane and Myant, 2006). Another novel tendency can, in our view, be discerned in the expansion of the domain of comparative law studies and projects from the narrow ambit of private law to economic (regulatory) and constitutional law. Coming from the two doctrinal ends of the public/private divide, we have more recently observed a trend toward blurring the boundaries between public and private law and a growing acknowledgement of the need to investigate the interrelationships between the two. Only some decades ago, comparative law was an arena reserved chiefly for private lawyers. Contracts and torts were the typical topics of investigation (see e.g. Rabel, 1936, 57; Zweigert and Kötz, 1998) with occasional trespasses into non-private law areas. It is probably, again, the demise of the ideological East/West divide of the Cold War and the deepening and widening ambitions of political integration projects (notably the EU) that have opened up for unfettered comparative inquires in the field of constitutional law and political organisation (Favoreu, 1990; Tushnet, 1999; Jackson and Tushnet, 1999; 2002; Arnold, 2003). The search light has been redirected from the crude distinction between democracy and dictatorship to studying, in a comparative manner, more subtle nuances and variations on the democratic theme (Djankov et al, 2003). In a similar manner, the stage was cleared for broader approaches to exploring alternative – public, private and mixed – institutional arrangements for legally framing the economy, but also for recognising the impact of constitutional rights and governance design on economic and private law (cf Cafaggi and Muir Watt, 2008). Finally, the most challenging task for contemporary comparative law appears to be to redefine the role of the discipline in an era of Europeanisation and globalisation, where national law coexists and interacts with supranational and international law, and where legal rules are produced by a variety of institutions alongside and beyond the nation state. In this brave new world of legal pluralism, comparative law stands out as an indispensable tool for understanding and accommodating different legal cultures and institutional traditions. At the same time, comparative law with its preoccupation with municipal law of sovereign states (Twining, 2007) is, probably quite predictably, plagued by what has aptly been dubbed as ‘methodological nationalism’ (Beck, 2000; Joerges, 2004; Smits, 2008). It is therefore not

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surprising that a considerable scholarly effort is now vested into identifying and testing new methodological tools for adapting the discipline of comparative law to the study of multi-level governance (Joerges, 2004; Dehousse, 1995; Lenaerts, 2003; Nergelius, Policastro and Urata, 2004; Petersen, Kjær, Krunke and Rask Madsen, 2008). The contributions in this book take the pulse of these new dynamics in comparative law. Despite the large number of scholarly works that have recently been devoted to comparative law, what seems to be missing is a dialogue between scholars ‘doing’ comparative law and scholars ‘theorising’ about it. The theoretical and methodological discussion has so far largely remained the privilege of legal theorists who do not always personally engage in applied comparative law studies. And, conversely, comparatists are not necessarily closely following and getting involved in the theoretical debate. Our ambition has thus been to fill this important gap and to link the theoretical and methodological debate with insights from everyday comparative research. The contributions in the volume highlight a number of themes in the European and the international context, where comparative law can make a valuable contribution and where a discussion on the theory and methods of comparative law is particularly pertinent. The articles in the book are organised within three broadly defined problem areas. Within the first area, the focus is on the use of comparative law in legal aid programmes and in various instances of ‘export of law’. In his contribution Gianmaria Ajani revisits his earlier theme of legal transplantation (Ajani, 1995). He draws attention to a process of shifting allocation of the authority to change the law from national parliaments and judiciaries to foreign states (through country targeted legislation), international organisations (IMF, IBRD) and international business and transnational trade practices. Being increasingly conceptualised as instruments for societal change, legal rules thus do not derive their legitimacy from internally generated political bargaining between corporate groups and domestic actors, but rather from emulation of best practices, identified by foreign and supranational bodies on the basis of comparative assessment of the expected effect on economic performance. Ajani sees several problems with this development: first, new law remains out of touch with local epistemic communities and remains ineffective. An externally generated process of legal change reaffirms a formalistic, positivist understanding of law leading to the familiar ‘law in the books’ malaise. Ajani therefore calls for recourse to a broader comparative law methodology in line with Sacco’s legal formants approach (Sacco, 1991) and acknowledging the interdependence between legal frameworks and enforcing institutions. He sees the role of comparative law methodology in tempering perceptions about the neutrality of law and instrumental use of law. The linking of comparative law with the new institutional economics is suggested as a productive way of

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bridging the need for uniformity in international standards with sensitivity to local institutional design, ultimately correcting the flaws of normative optimism and indeterminacy. Per Bergling takes a critical look at legal assistance to developing countries. He identifies a need for a consistent holistic methodology for mapping legal systems and for more robust diagnostic of local needs for reform and legal aid. His contribution analyses the multiple information and communication problems plaguing legal development co-operation. Importantly, an emerging method of legal cartography is identified based on intense multistaged communication and exchange between aid providers and aid recipients. The method employs a variety of knowledge-gathering techniques – from the comprehensive study of available written material, through field interviews with target groups and qualitative interviews with identified respondents, to polls and other quantitative methods. At the stage of data analysis, a realistic ‘craftmanship’ approach is accepted and preferred rather than a perfectionist, overly ambitious stance. The latter is seen as poorly anchored in a reality of scarce resources and limited time frames for assistance projects and occasionally even threatening the success of the operation. The chapter provides an account of some of the most important methodological considerations for the articulation of better strategies, and discusses three recent efforts to map entire legal systems: ‘An Introduction to the Vietnamese Legal System’; ‘UNMIBH Judicial System Assessment Program’; and ‘Comprehensive Legal System Needs Assessment for Vietnam’. Michael Bogdan addresses the much debated issue of the interrelations between rule of law and market economy reforms. He argues convincingly that a functioning market economy, including its indispensable legal framework, is a necessary, albeit not always sufficient, precondition of democracy as we know it in the West. His chapter attempts to explain why supporting market-oriented legal reforms is a necessary element in the support for political democracy and human rights. The pragmatic approach taken in the chapters by Bergling and Bogdan is in sharp contrast to the predominantly theoretical contribution by Claudio Corradetti, trying to give an answer to the question of transplantability of human rights. Proceeding from Gunter Teubner’s autopoietical theory of law and in dialogue with the Habermasian theory of moral validity, Corradetti finds support for a two-tier approach to human rights transplantability, where human rights norms are first formulated through a top-down process of legal/cultural interpretation of universally justified formal human rights categories. In the second tier, international norms are reinterpreted through the activation of several social sub-systems, in the ‘legal irritants’ manner eloquently described by Teubner (1998), according to contextual patterns of interpretation and incorporation of the rule. Thus, Corradetti finds an intermediate position between

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Watson’s famous ‘pure theory of legal transplants’ that conceptualises law as an autonomous legal system (cf Ewald 1995), on the one hand, and a complete rejection of transplantability, based on conceptions of law as strictly embedded into and dependent on society, on the other. Clearly legal transplants and transplantability are central themes in this first part of the book. Richard Sannerholm continues the debate on the dichotomy of an autonomous versus a socially embedded perspective on law and the resulting opposite views on legal transplants, i.e. from full acceptance to formulating a ‘law of non-transplantability’ of law. Similar to Corradetti, Sannerholm seems to take an intermediate position, stressing in particular the importance of the process of transplantation. Together with Berkowitz, Pistor and Richard (2003), Sannerholm emphasises ownership and participation in law reform as crucial factors for the success of legal transplants, chiefly through enabling processes of trial and error, innovation and correction. When he then turns to the particular context of legal transplants in post-conflict states a dilemma becomes apparent. Exactly because of the still fresh scars of conflict, internal ownership and participation in reform are difficult to mobilise and trust is lacking. Transplants thus might be inevitable, but it is suggested that donors should look for benchmarks and best practices in countries where similar problems have been solved. International norms, standards and model legislation are also seen as possible solutions, or developing of standardised regulative frameworks at regional level (e.g. Organization for Harmonization of Business in Africa). The chapter provides a rich account of specific difficulties in post-conflict situations and attempts to resolve the problems in real-life initiatives of legal aid. The articles within the second area tackle some most important and controversial topics in comparative constitutional law. The article of Otto Pfersmann, represents a theoretically oriented attempt to define what the concept of comparative law actually entails. According to him, comparative law may never be just another field of study like ‘Swedish law or German law; instead, it should rather be seen as a ‘scientific discipline aiming at objective knowledge’, based on ‘the analytical expertise of a plurality of legal systems’. The article is an ambitious attempt to build bridges between comparative law and traditional legal theory. Rainer Arnold analyses the development within European constitutional law at a time when constitutional rules may be found at, at least, three different legal levels: in the national constitutions, within EU law and in the general principles of law developed by the ECJ, the European Court of Human Rights and also other international legal bodies. This development certainly calls for re-thinking and re-classification (or re-conceptualisation) of a number of crucial terms and concepts within the whole field of constitutional law, as shown clearly and convincingly by this contribution. More discussion on this issue is bound to follow.

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In his chapter, Markku Suksi deals with autonomy and independence of specific areas or regions in Europe, like the Åland Islands, compared to the Basque region, Scotland and other regions in Europe, all from a comparative perspective. Needless to say, this is a highly important but hitherto somewhat neglected area. Johan Lindholm addresses the well-known problem within comparative law of what is actually possible to compare, this time from a constitutional perspective. The question, then, is what to do concerning issues that are classified as constitutional in one legal order but not in others. Hardly surprising, there appear to be two basic approaches or schools, one universal (that seems to be gaining ground) and one more nationally oriented. In this context, Lindholm also touches on recent jurisprudence from the US Supreme Court in this somewhat sensitive area. Also, other comparisons are however important to conduct in the contemporary doctrine. Within the European context, the sometimes differing jurisprudence between national constitutional courts (of which the German one is the most influential) and the European Courts in Luxemburg and Strasbourg is of particular importance, notably in the area of human rights. As illustrated by the article of Kateryna Karpova, those courts have a special significance since they are perceived as ‘role models’ for national courts in Eastern Europe, who are now developing a jurisprudence of their own. The contributions within the third part of this book map and discuss recent trends in comparative private and economic law. Even though the contributions refer to global developments, as for instance Unidroit Principles of International Commercial Contracts, they also reveal a certain European bias by pondering mainly over the challenges of legally framing the internal market of the Member States of the EU. Due to the rather unique processes taking place in Europe, this bias is perhaps understandable. Two of the most fascinating and widely discussed projects of harmonisation of European private law, namely the Principles of European Contract Law (PECL, the Lando group project) and the Principles of European Tort Law (PETL, the von Bahr project) are discussed chiefly from a methodological perspective. The initiator and long-term co-ordinator of the PECL project, professor Ole Lando guides us into the intricacies of designing methodology for harmonisation of laws that is sufficiently attentive to national specificities and yet sufficiently effective to move the enterprise forward. While his contribution is inspired by a belief in the ‘need to unify or harmonise the laws of the world or a region of the world’, other authors like Mårten Schultz are more sceptical as to whether there is sufficient evidence for such a need of total harmonisation. Importantly, Schultz raises serious objections against the questionnaire method for mapping national laws and institutions, often used in big-scale harmonisation projects. He sees the questionnaire as a blunt tool unable to penetrate and

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reflect the complexities of national legal doctrine and thinking in a particular legal area. Yet another approach to harmonisation is demonstrated in the chapter by Christoph Schmid, reporting on a comparative project where a more functional, institutional stance is taken. A successful combination of legal and economic analysis produces a fascinating picture of widely divergent regulation in the vital sector of conveyance services across Europe. Although the contribution does not try to explain the reported discrepancies, entrenched positions of the legal professions at the national level transpires as one powerful explanatory factor. This chapter thus provides a helpful illustration to the contribution by Antonina Bakardjieva Engelbrekt which reviews some recent applications of institutional theory to comparative economic law. The focus is in particular on a series of contributions in institutional economics known as the ‘Legal Origin Theory’ (La Porta et al, 1998) and the New Comparative Economics (Djankov et al, 2003). After discussing the strengths and pitfalls of these theories, Bakardjieva Engelbrekt advances an alternative comparative institutional approach for the cross-country study of institutional choice and design in economic law and policy. Building on institutional theorists like Neil Komesar (participation-centred approach) and Douglass North (historical institutionalism) the approach emphasises the importance of comparing the modalities of actor participation in alternative decision-making processes as well as taking into account the conservative forces of institutional inertia. On a practical level the focus is on procedural and institutional rules which ultimately determine substantive outcomes. The implications of such an approach for the analysis of European integration, seen as a multi-level system of governance, are sketched out. Although the chapters are grouped following classical divisions between private and public law, the ambition has been to critically examine and challenge established categorisations. This is illustrated by the contributions of Anna Lytvynyuk and Lindholm. Whereas Johan Lindholm analyses the feasibility of a constitutional/non-constitutional comparison, Lytvynyuk presents the debate of the so-called ‘constitutionalisation’ of private law, signifying the reach of constitutional rights onto civil litigation. Her chapter presents the evolution of the German concept of Drittwirkung and suggests direct and indirect methods of subjecting private law to constitutional rights. Finally, it briefly touches upon the possible repercussions of the concept of Drittwirkung in the Central and East European Countries. The majority of contributions to a large extent confirm our initial intuitions and assumptions of a previously unseen new dynamic in comparative law. In a concluding chapter Peter-Christian Müller-Graff, after mapping the forces behind this new development of comparative law, succinctly analyses the challenges the discipline faces in the future. The author sees comparative law

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being increasingly burdened with a new task of developing transnational commonly acceptable legal standards. From this perspective the main challenge for comparative law is in his view to preserve a ‘careful scepticism towards the assumption of general universality’. In addition Müller-Graff warns against the risk that comparative law surrenders its distinction-sensitive approach in the quest for general principles. He argues compellingly that the chief responsibility of the discipline lies in strengthening tolerance for equivalent standards and respect for local responsibilities and autonomy. Still, and despite the new dynamics hopefully documented in this volume, there is also considerable continuity in the discipline’s tasks and self-identification. One persisting feature is the openness and vagueness of the very concept of comparative law. As incisively observed by Pfersmann in this volume, one can speak of comparative law in many contexts and imply many different meanings in the concept. The distinction between legislative and scholarly comparative law has also earlier been noted by comparative law scholars (Zweigert and Kötz, 1998: 52). It should here be stated that working with a broad and somewhat vague concept of comparative law and eschewing strict definitions has been a conscious choice and point of departure in this volume. This has helped us to keep an open mind and to accommodate a variety of viewpoints, in an attempt to present the many faces of modern comparative law. However, we are likewise aware that methodological and theoretical concerns should be carefully distinguished depending on whether one is operating in the field of legislative or of scholarly comparison. The normative ambition behind certain comparative endeavours would clearly require different strategies and invoke different methodological tools than the ones that we normally find in purely academic-driven projects. Finally, as some authors with long experience in the field remind us, the main driving force of comparative law remains the same. Human curiosity, which is ultimately at the core of any serious comparative enterprise, is a deeply seated human trait after all (Lando). And it is curiosity that will continue to prompt comparative lawyers to seek legislative, judicial and scholarly inspiration in other legal systems (Müller-Graff) in a quest for generating new knowledge and for enhancing our understanding about a changing and ever more interdependent world.

REFERENCES Arnold, Rainer (2003) ‘Constitutional Courts of Central and Eastern Europe as a Dynamic Source of Modern Legal Ideas’, Tulane European and Civil Law Forum, 99–118.

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Beck, Ulrich (2000) What is globalization?, Cambridge: Polity Press. Berkowitz, Daniel, Katarina Pistor and J-F. Richard (2003), ‘The Transplant Effect’, The American Journal of Comparative Law, 51, 163–203. Budak, Ali Cem and Volkmar Gessner (eds) (1998) Emerging Legal Certainty: Empirical Studies on the Globalization of Law, Aldershot: Ashgate. Buxbaum, Richard (1996) ‘Die Rechtsvergleichung zwischen nationalem Staat und internationaler Wirtschaft, RabelsZ, 60, 201. Cafaggi, Fabrizio and Horatia, Muir Watt (2008) The Making of European Private Law, Surrey: Edward Elgar. Constantinesco, Léontin-Jean (1972) Rechtsvergleichung II: Die rechtsvergleichende Methode, Köln-Berlin: Heymanns. Dehousse, Renaud (1994) ‘Comparing National and EC Law: The Problem of the Level of Analysis’, American Journal of Comparative Law, 761–781. Ewald, William (1994–95), ‘Comparative Jurisprudence I: What Was it to Try a Rat?’, University of Pennsylvania Law Review, 143, 1889–2149. Ewald, William (1995), ‘Comparative Jurisprudence II: The Logic of Legal Transplants’ American Journal of Comparative Law, 43, 489–510. Djankov, Simeon, Edward Glaeser, Rafael La Porta, Lopez-de-Silanes and Andrei Shleifer (2003) ‘The New Comparative Economics’, Journal of Comparative Economics, 31, 595–619. Favoreu, Louis (1990) ‘Constitutional Review in Europe’, in Henkin, L. and Rosenthal, A.J. (eds.) Constitutionalism and Rights: The Influence of the United States Constitution Abroad, New York: Columbia University Press, 38–59. Feest, Johannes and David Nelken (eds) (2001) Adapting Legal Cultures, Oxford: Hart Publishing. Gerber, David (1998) ‘System Dynamics: Toward a Language of Comparative Law?’ American Journal of Comparative Law, 719–738. Gessner, Volkmar, Armin Hoeland and Csaba Varga, European Legal Cultures, Aldershot, Dartmouth, 1996. Glenn, Patrick (2004), Legal Traditions of the World, Oxford: Oxford University Press. Grillo, R. (2009), Legal Practice and Cultural Diversity, Aldershot: Ashgate. Hall, Peter A. and David W. Soskice (eds) (2001) Varieties of Capitalism: The Institutional Foundations of Comparative Advantage, Oxford: Oxford University Press. Harding, Andrew and Ersin Örücü (eds) (2003) Comparative Law for the 21st century, Hague: Kluwer. Hellman, Joel, Geraint Jones and Daniel Kaufmann (2002) ‘Seize the State, Seize the Day. State Capture, Corruption, and Influence in Transition’, Journal of Comparative Economics, 31, 273–293. Hughes, Justin (2002–2003), ‘Internet and the Persistence of Law’, Boston College Law Review, 44, 359–396. Jackson, Vicki and Mark Tushnet (eds.) (1999) Comparative Constitutional Law, New York: Foundation Press. Jackson, Vicki and Mark Tushnet (eds.) (2002) Defining the Field of Comparative Constitutional Law, New York: Foundation Press Joerges, Christian (2004), ‘The Challenges of Europeanization in the Realm of Private Law: A Plea For a New Legal Discipline’, Duke Journal of Comparative and International Law 14, 149. Joerges, Christian and Ernst-Ulrich Petersmann (eds), (2006) Constitutionalism, multilevel trade governance and social regulation, Oxford: Hart Publishing.

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Kahn-Freund, Otto (1974), ‘On Uses and Misuses of Comparative Law’, Modern Law Review, 1–27. Lane, David and Martin Myant (2006) Varieties of Capitalism in Post-Communist Countries, Basingstoke: Palgrave Macmillan. Legrand, Pierre (1996–97) ‘Uniformity, Legal Traditions and Law’s Limits’, Juridisk Tidskrift, 306–322. Legrand, Pierre and R Munday (eds) (2003), Comparative Legal Studies: Traditions and Transitions, Cambridge: Cambridge University Press. Lenaerts, Koen (2003), ‘Interlocking legal orders in the European Union and Comparative Law’ International and Comparative Law Quarterly, 873–906. Mattei, Ugo (1998) Comparative Law and Economics, Ann Arbour: University of Michigan Press. Nergelius, Joakim, Pasquale Policastro and Kenji Urata (eds) (2004) Challenges of Multi-Level Constitutionalism, Cracow: Polpress Publisher. Nelken, David (ed.) (1996) Comparing Legal Cultures, Aldershot: Dartmouth Publishing Company. Ogus, Anthony (2007) ‘The Economic Approach: Competition Between Legal Systems’, in Örücü, Ersin and David Nelken (eds) Comparative Law A Handbook, Oxford: Hart Publishing, 155–167. Örücü, Ersin. and David Nelken (eds) (2007) Comparative Law: A Handbook, Oxford: Hart Publishing. Reitz, John (1998) ‘How to Do Comparative Law’, American Journal of Comparative Law, 617–636. Petersen, Hanne, Anne Lise Kjær, Helle Krunke and Mikael Rask Madsen (eds) (2008) Paradoxes of European Legal Integration, Aldershot: Ashgate. Rabel, Ernst (1936) Das Recht des Warenverkauf , vol. 1, (1957) vol. 2, Berlin. Reimann, M. and R. Zimmermann (eds) (2006) The Oxford Handbook of Comparative Law, Oxford: Oxford University Press. Sacco, Rodolfo (1991) ‘Legal Formants: A Dynamic Approach to Comparative Law’, American Journal of Comparative Law, 39, 1–34 (Installment I); 343–401 (Installment II). Smits, Jan (2008) ‘The Draft Common Frame of Reference, Methodological Nationalism and the Way Forward’, European Review of Contract Law, 271–281. Teubner, Gunther (1998) ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’, Modern Law Review, 61 (1), 11–32. Tushnet, Mark (1999) ‘The Possibilities of Comparative Constitutional Law’ Yale Law Journal, 108, 1225–1309. Twining, William (2007) ‘Globalisation and Comparative Law’ in Örücü, Ersin and David Nelken, Comparative Law. A Handbook, Oxford: Hart Publishing, 69–89. Van Hoecke, Mark (ed.) (2004) Epistemology and Methodology of Comparative Law, Oxford: Hart Publishing. Van Hoecke, Mark and Mark Warrington (1998) ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, International and Comparative Law Quarterly, 495–536. Zimmermann, Reinhard (2001) Roman Law, Contemporary Law, European Law: The Civilian Tradition Today, Oxford: Oxford University Press. Zweigert and Kötz (1998) An Introduction to Comparative Law, Oxford: Clarendon Press.

PART I

Comparative law, legal aid and development

1. Legal change and economic performance: an assessment Gianmaria Ajani I.

THE AUTHORITY TO CHANGE THE LAW

Within the Western legal tradition, norms are set through two different procedures: reiteration (case law) and parliamentary law-making. While the first one goes back to the origins of the common law in England, the second, in its actual practice, is historically indebted to the birth of parliamentary states and of democratic participation in France, following the 1789 Revolution. Parliamentary (and governmental) law-making has, however, increasingly contaminated the common law systems. The rest of the world, in spite of any possible contact in the past with the common law, shares the preference for statutory laws. Following this standard simplified conceptual dichotomy, those empowered to change the law are the judges and the legislators. The difference in the democratic legitimacy of judges and of legislators is compensated by asking the institution perceived as less legitimate (the judges) to provide extensive reasoning when they depart from a precedent. A similar burden has not, so far, been imposed upon legislators, even if a duty to provide reasons for lawmaking can be found in certain cases following national law. Furthermore, judges tend to conceal creativity by describing their role as one of ‘mere law-finding’, a concern which does not preoccupy the fully sovereign parliamentary assemblies. The simplicity of the above dichotomous conceptualisation is the result of a formalistic description of legal change, which is focused on the final outcome of the process, and not on the reasons for legal change, or on the results of law enforcement. It does not, however, exhaust all possible answers to the question as to who has the authority for legal change. What happens, then, if we leave the realm of formalism and embark on an analysis of the route of law-making? A different perspective can be taken if we leave aside the standard conceptualisation of legal change and move towards an analysis of the process, which leads to the final result of legal reform. The reason for this resides in 3

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the recognition that the moment T(x), when we identify a legal reform as being adopted, is usually the finalisation of a longer course of action, initiated at moment T(0). Such an action usually begins with the recognition of the ‘good’, or, comparatively speaking, ‘better’ state of the economy in an area of the world (often, but not necessarily, a State). This provides legitimacy for promoting the imitation of wide set of rules, such as statutes and codes. Constitutions are also part of the game: fundamental principles such as a multipartite political system, parliamentary democracy, protection of fundamental rights, in other words, the classical themes addressed by constitutional charters, are perceived as key factors for the proper functioning of the market.1 The process of identifying ‘best practices’ characterises today the action of many political actors in the several developing regions of the world. Those who are portrayed as the actors of the legislative process: the Governments and the Parliaments, however, do not seem to be in full control and command of the course of legal reforms. Several factors seem to be relevant in the process, such as the spread of economic theories, the action of international diplomacy, the challenge of economic competition among legal orders. All those factors play a role in the process of legal reform. Let us consider, for example, the so called ‘country targeted legislation’. The expression refers to the legislation adopted by a single country, which is meant to play its main effect within a different national legal order, such as, for instance, the US Federal Act entitled ‘Zimbabwe Democracy and Economic Recovery Act’, adopted in the year 2001,2 or the ‘Trade and Development Act’, adopted by the US Congress in the year 2000,3 better known as ‘African Growth and Opportunity Act – (AGOA)’. In spite of being pieces of domestic legislation, these laws have a direct effect on the action of the major international financial institutions (IMF, IBRD) as well as upon the planning of legal reforms in the targeted countries: within the scheme designed by the 2000 AGOA. The stabilisation of the rule of law, the recognition of pluripartitism and of due process, have been listed as prerequisites for the access of the concerned African countries to the benefits laid down by the Act.4 Within a relevant sector of a legal system (including private and procedural law, but also administrative, and occasionally constitutional law) the standard dichotomous conceptualisation of legal change we were used to seems to be overridden by a new mode, which grounds legitimacy for law-making neither in reiteration, nor in the domestic political debate about the assumed utility of a regulation, but rather in a technical appraisal of the necessity of a peculiar set of regulations. We can call this mode ‘functionalism’ (Graziadei, 2003: 100). Following a functionalist approach, legal rules are technical tools needed

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for a purpose (such as, in general, the modernisation of a given society or, in particular, the adoption of facilitating rules for institutions, such as corporate groups, small enterprises, etc.). This approach confers new legitimacy to the law at the same historical moment when the law is losing grip within the community which was local and has become supranational. This new kind of legitimacy, however, has a different nature from the one we used to recognize in a traditional parliamentary State: it is based on a comparative assessment and on the assumption that a certain regulation has direct effect on economic performance. There is no need to provide too much evidence that ‘functional’ type legal reforms have been occupying the agenda of both state governments and international institutions for the last 15 years. A major reason for the extensive legal change in four continents of the world can be found in the global transition form the ‘import substitution’ pattern of development (Edge, 2000) to the liberalisation of capitals, productions and trade. In Mexico, for example, between 1982 and 1996, 99 out of 198 federal laws have been profoundly reformed; 57 significantly amended; and only 42 remained untouched. In terms of the expansion of regulation, it has been calculated that about 80 per cent of the Mexican legislation has been modified in a span of time of 15 years (Fix-Fierro and Lopez-Ayllon, 1997). These data show an increasing awareness among local political elites of the connections between the general advantages that may flow from an explicit adherence to the rule of law principles, and economic growth in the long run. The impulse was given by the major international financial institutions whose representatives and consultants had brought the focus on the causal links between good governance and economic performance already during the late 1970s of the last century (Lowenfeld, 2002). Other voices joined the choir, and as a result public and private actors, state and non-state institutions have become pro-active in the global offer of new laws. Take for instance the US Foreign Corrupt Practices Act. After its adoption in 1977 some US nongovernmental organisations (NGOs) such as Transparency International, together with the major five accounting firms, supported the Act through lobbying towards non-American corporations, aiming at the adoption of the standards contained in the Act. Twenty years later, eventually, an Organisation for Economic Co-operation and Development (OECD) agreement required the signing parties to adopt regulations patterned on the 1977 Act. As it has been vividly described, ‘the standardisation of “best practices” or “efficient” law replaces the Schumpeterian process of “creative destruction” with the ideal of “perfect construction” of law’ (Pistor, 2002). Also while, in the past, the ‘creative destruction’ and the subsequent legal change were mainly a domestic process, the ‘perfect construction’ calls for the recognition of models originating from outside the national legal system.

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What is lost when passing from destruction to construction, is the role played by national epistemic communities. Legal change becomes effective, it has a hold over society, it influences behaviours as long as its meaning is governed in every national context by an élite of actors, an epistemic community, or a network of people who keep control on the direction and the results of legal transplants and ease the process of absorption of the new legal concepts. Involvement of epistemic communities explains how legal change was made possible (meaning, how it became effective), even in adverse conditions, in the past. Yet, it falls short today of explaining how legal change is operated in those (many) countries where there is neither a continued legal tradition, nor an élite ready to fill the new notions with agreed contents.5 To be sure, spreading of best practices and of good examples has always occurred. Today, however, we are not only experiencing a quantitative difference, but also a substantial change in the way the identification of the model for legal reforms is occurring. Main factors explaining the reasons for legal reform are derived from the practice of international businesses and from the strategies of international economics, while the actors promoting the new models are mostly international institutions and private groups, rather than national-States. All this generates a competition among principles for legal regulation of the economy which are supported by the different institutions or interest groups.6 The offer and demand of legal models can at the same time be described as a seller’s market (as the donors are in a position to promote their educational systems, their institutions providing technical assistance, their own laws), and a buyer’s market (as there is a wide range of possible models to be selected and used as samples for legal reforms, as well as legitimising devices). In most cases of dissemination of a new model which serves a legal reform agenda, we find an asymmetry between a demand for legal reform which is ignorant of the technical contents of the proposed model, and an offer of a sample which is ignorant of the local context. Proceeding from this recognition, this chapter argues that the increase in legal change, based upon a wide recourse to functionalist arguments, has: • reaffirmed a formalistic, positivist understanding of the law; • made use of indeterminacy7 in terminology, whereby indeterminacy opens the way to adhere to legal reforms without necessarily asking for implementation; and • expanded the concept of development to include law as an end in itself. Development scholars have not rejected instrumental arguments. They still think that law is important to constitute markets and to implement a host of policies. But they also see legal institutions as part of what is meant by devel-

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opment, so that legal reform is now justified whether or not it can be tied directly to growth. The combined play of these three factors leads to a ‘sterilisation’ of lawmaking from the socioeconomic development. Reformed laws remain distant from the process of adaptation and innovation which characterises the daily action of the law: ‘the process of legal innovation depends on the availability of information not only about the contents of the rules – something international legal standards do provide – but also about their functioning in the context of a living legal system. The perfect construction of law by legal experts for wide dissemination can deprive lawmakers and law enforcers in the receiving countries of the knowledge of living law, which is context specific’ (Pistor, 2002: 98). Moreover, the imposition of rules from outside may also lead to domestic resistance. What has comparative law to say, as a discipline, about that asymmetry? To some comparative lawyers, their discipline is nothing but the language of the communication among different legal systems. Its main significance is, therefore, epistemological. In the course of the time, however, the epistemological value of a discipline may change. For decades, comparative law’s main roles were: • an external one: the contribution to uniformisation (Markesinis, 1997) and • an internal one, namely, the challenging of the false perspectives of legal positivism (Muir Watt, 2000). More recently a new challenge has arisen: the contribution to a better understanding and, possibly, functioning of an array of legal transplants. The theory of dynamic comparative law, developed by Rodolfo Sacco through the observation of the several formants (Sacco, 1991)8 that compose the complex fabric of every legal system, stresses that the final result of comparative analysis is a realistic representation of the analogies and differences among legal orders. Following the technique of identification of legal formants, one may discover that even where different legal orders seem to be non-homogeneous as to the formal blueprint of the norms, the operational rules which guarantee the actual functioning of the system may offer a more consistent design. Within the realm of private law one may find important evidences of this result in the law of torts, where the actual operation of case law brings towards convergence even those legal orders, such as the German and the French, that appear very distant at the level of enacted legislation, as well as in the formation of contracts, or in the transfer of movables assets (Sacco, 1991: 363). Law is a cognitive institution. As such, the new laws have to be connected with other rules and institutions that are already in place. Without ensuring this

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kind of connection between the new rules and the pre-existing institutions, the modernisation efforts are forced to remain an abstract exercise. Making recourse to a wider use of comparative law methodology should set a new balancing in the appreciation of the interplay of legal formants among themselves and with the institutions called to provide implementation. This would allow lawmakers to get a better informed perception of the legal transplants they are seeking to promote in their countries, by looking at the different options practised in the world. From their side, institutional economists should provide further information by assessing the different institutional constraints that affect the variety of possible legal models. In doing this, the scholarly research would correct the flaws affecting legal transplants today, namely excess of normativistic optimism and lack of determinacy. This will eventually lead to the growing of a ‘market for information on the actual capacity of legal models to have an impact upon comparable situations’ (Pistor, 2002: 103) and to the recognition of the interdependence between the legal framework and the enforcing institutions. The following part of this chapter is organised as follows: section II focuses on the principle of indifference of law before local cultures, section III links the principle of indifference to the practice of using law as a substitute for economic reforms, and section IV draws some conclusions on the role that institutional law and economics might play in supporting the recognition of the several formants of the law as concurring elements in the formulation of the rules for legal reforms aimed at a better functioning of the market.

II.

NEUTRALITY OF THE LAW?

Historically, the idea of the indifference of law towards the specific social contents has been nurtured by the millennial success of Roman law. Later on, colonisation has confirmed that different societies may be ruled by similar laws. A more recent reappraisal of the idea occurred in the case of transition from the Soviet/planned economy to market economy, in the wide area that has formerly been under the communist rule. The belief that law can be independent, or neutral, in respect of a given society is tightly connected with the idea that law can have a predictable impact on economic performance (Lopez-de-Silanes, 2002). The idea is not new at all: it can in fact be traced back to the spreading of modern rationalism, which has changed natural law into rational law. Nor is the process of looking abroad for best legislative practice in order to support domestic modernisation new. One may recall the famous polemic originated two centuries ago between the two German great legal scholars, Thibaut, who suggested that the German states had to imitate French ‘rational’ codification of private law, to

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support modernisation, and von Savigny, who opposed the proposal, on the assumption of the momentary cultural inadequacy of German legal scholarship. Today, after the fading away of ideological confrontation, the rebirth of a search for national identities, based on culture and civilization, has made it, somehow, more difficult to defend the idea of neutrality of certain areas of the law. As a result, the recognition of what can be considered more neutral, or less dependent from the society, has changed. At the times of the East–West confrontation, family law was deemed to be more indifferent (and therefore the comparison was inspired by a search of similarity), while economic law was taken as absolutely incomparable. Moving closer to the point of the relevance of the principle of indifference as a starting point in legitimating legal change, one should at first differentiate between: • indifference as a political issue; and • indifference as a cultural issue. As a political question, the principle of indifference of law to the social context has been strengthened by the fall of the Soviet block. At the same moment when the idea of the total inutility of communist law ‘as a whole’ (tabula rasa principle) was affirmed, the principle of the neutrality of Western private law, the ‘good for all sizes’ slogan, was launched. The adoption of an ideal model of market development by neo-liberal economists has immediately become a political choice in the action of the EU and the international financial institutions to speed up the process of market integration. At the same time, this has brought the focus of the discussion far away from the institutional perspective: the ‘best’ legal transplant appears as a denationalised one, vested with the appearance of objectivity that circumvents local resistance in the name of cultural identity. This separation of the action of the law from the actual role played by institutions is central to understand the many failures of legal reform agendas. It is in fact hard to conceive a role for a legal transplant which is not based upon consideration of how local institutions work. For any single new rule that is introduced, role-occupants will necessarily consider, more or less consciously, a set of pre-existing conditions that are countryspecific, often non- or sub-formalized. As a cultural question, the idea of indifference is indebted to a set of phenomena that have significantly marked the last decades of the 20th century: The first is post-modernism: there is something paradoxical in the fact that by insisting on the incommensurability of phenomena such as culture and social behaviours, post-modernist theories, which were perceived as a defense of localism against globalization policies, have eventually contributed to

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weakening localism before the spreading of global formal regulations (Peters and Schwenke, 2000). The second is harmonisation of the law(s): the success (both in terms of absolute numbers of initiatives, and of number of adhering States) of the recourse to international conventions has brought the style of international law into the process of legal transplant. This has important effects for the issue of neutrality, as international law was traditionally characterised by indifference towards domestic diversity and cultural differentiations. The traditional approach to the cultural issue practised by international lawyers stresses the recognition of ‘similarities in economic development’ (in such a sense, for instance, Thailand and Kenya are similar, in spite of evident cultural differences). In other words, the technical side of neutrality is expressed by the language of performances and functions, while the cultural difference calls for an explanation in terms of history. International law deals with the former, while the latter is left to the concern of local policies. This approach, however, is exposed to the following critiques. A first argument points to the fact that it is almost impossible to discern local from foreign cultures. Even within a short span of time what was an alien culture may become local, as the important cases of languages, alphabets (Chinese characters in Japan), arts, show every time in the history and everywhere in the world. Secondly, the cultural exception has a relevance also in the context of economic issues. In particular, there are significant cases where the State actors use cultural issues to protect what are perceived to be national economic interests.9 Thirdly, legal culture is part of the more general definition of culture. The isolation of local legal culture from the process of legal transplants seems nothing but absurd. As the methodology of comparative law has demonstrated, dissemination of rules and legal change occur with the active involvement of legal doctrines.

III. THE INSTRUMENTAL USE OF THE LAW Applying a functionalist approach to the law is not a new story. It goes back to the 1920s of last century, when Ernst Rabel illustrated as a starting point for any comparison the social purpose of the law. Following Rabel, that same approach was brought in the US by Max Rheinstein, who repeatedly stated that comparative law must go beyond static taxonomies or analytical descriptions whatsoever of the existing legal systems; rather, it should investigate the reason for a norm to exist in its function with respect to the actual society (Markesinis, 2003).

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This approach has been dominant till today, and the ‘Comparative Law and Economics’ (Mattei and Monti, 2001) movement can also be considered as an updated version of Rabel’s approach, which pays tribute to the idea of efficiency. Those supporting the functionalist approach stress that with the spreading of a global society, the national/state traits will not be relevant anymore in a number of legal fields. Therefore, legal functionalism would be ready for the building of a theory on legal convergence. Notwithstanding the amount of essays and seminars devoted to investigate the impact of legal reform on economic performance, a generally valid theory, able to demonstrate that a good functioning legal system is conducive to solid economic results, and to reconcile the grand scheme with the important exceptions, is still missing. What we have is a set of fragmented reasons, which often leave us with the doubt that the direct causal link between good performance and good laws has yet to be proved. Many critical assessments of functionalism hint at its adverse effects. When adapted to the Human Rights and the Rule of Law discourses, functionalism is seen as a threat to the autonomy of the law and to its moral value. When applied to economic performance, it would conceal the distributive aspects intrinsic to private law. Within the context of EU law, many have noticed a recourse to functionalist argumentations by the European Court of Justice, in order to expand the jurisdiction of the EU institutions vis-à-vis the Member States. The instrumental use of law has then become an issue of significant confrontation; these are the main arguments one may find in the literature: • law is a policy science (‘legal process’ approach), (Eskridge and Frickey, 1994); • it is the society that creates the law, and not the other way round (‘law and society’ approach), (Trubek, 1972); • law is only the result of political decisions (nihilistic approach and Critical Legal Studies approach), (Hutchinson and Monahan, 1984); • as law is deep-rooted within society, any attempt to instrumentally use the first to change the second is an illusion (neo-savignist approach), (Legrand, 1999); • law is intrinsically indeterminate: any attempt to make social engineering through the law is therefore bound to unpredictable results (deconstructionist approach), (Kennedy, 1985); • legal change can not be conceived as a substitute for economic policy (Kennedy, 2003). Let us take this last argument: the process and the rhetoric of legal change are ingrained within the process and rhetoric of globalisation. This connection not only leads governments to overemphasise the actual impact of articulated

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reforms in the short run (because globalisation is per se a fast process that is supposed to speed up local economies exposing them to the opportunities of a global market), but it also leads to an undervaluation of the importance of informal institutions. Informal institutions, in fact, do not suit the globalisation agenda. Formal institutions can be better identified, measured and evaluated. They produce those outputs (enactments and regulations) that can be perceived and quantified by the external actor in the process of legal transplants. This situation has several effects on the legal discourse: • it influences the style of legal change, favouring an emphasis upon formalised, black-letter rules (neo-positivistic attitude); • it reduces the role of the commentator to a simple loudspeaker of the letter of the law (exegetic attitude); • it favours the duplication within the local laws of the myths and stereotypes elaborated within the Western legal tradition. As mentioned above, the spreading and imitation of laws from one country to another is not at all a new phenomenon. What is new is the wide acceptance (from both the promoting and the receiving end) of the principle of indifference of the legal norms towards the social context. The recognition of the principle of indifference entails the identification of the legal rule as an ‘ad hoc’ instrument and leads to the abandonment of the old perception of the rule as the reiterated answer to questions that originated locally. The move from the traditional, circular law-making to the linear belief in secure economic growth brings with it the trust in a permanent evolution of legal orders towards an ‘increasing better performance’. Such a dynamic applies either to situations of full harmonisation, or to situations of competition among legal orders. If, for instance, antitrust regulation and consumer protection are grounding principles inherent to an efficient economic system, such as the US market is assumed to be, then the imitation of those policies becomes mandatory. It is upon that pair of principles that the building of a single European market was established and later on the restoration of a market structure in the post-Soviet states was founded. One should at this point notice, however, that the imitation of the US institutional setting as to market functioning was, in the early case of European Community law, limited to the modelling of the macroeconomic device. It is useful to remember how different the legal design for the antitrust mechanism is between American and European law. A similar argument can be set forth as to consumer law: only very recently is an US-inspired mood changing the legal regime of consumer law from the judicial assessment of the legitimacy of contractual clauses towards the establishment of information duties.

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Those examples, however, belong to the past. In the more general and recent frame of legal globalisation the distinction between the economic model and its legal design(s), seems to be lost. There are different reasons that contribute to explain why this change in the way legal transplants operate has occurred. One relates to the spread of functionalist theories, which has supported the recognition of law (mainly, but not only, private law) as inherently indifferent to the social context, while law and economics has reinforced, since the popularisation of the Coasean theorem, the idea of indifference (scholarly reason). The other can be seen to lie in that the mandate of the international organisations mostly involved in the support to legal reforms normally excludes politics and local culture from their scope of action, so inducing a more ‘technical’ understanding of the role of law in the society (institutional reason). While these two sets of reasons seem to be, in principle, compatible with the acceptance of a proliferation of different legal solutions, as long as they reflect the content of an agreed economic agenda, a second set of reasons has contributed to reduce the options as to the modelling of legal transplants. Firstly, the emphasis over trade liberalisation that characterises both the phenomenon of globalisation in the 1990s and the finalisation of the single European market in the same period, has favoured the treatment of legal rules as an appendix of the market. As such they must offer identical opportunities for all traders and investors, and, therefore, have to be harmonised (ideological reason). Secondly, the whole process of globalisation, which was welcome as an opportunity to diffuse solid economic performance, has rapidly become a chance to avoid stagnation and economic crisis. This added hurry to a development that was already speedy in its nature. As a result, a permanent lack of time in the adjustment of legal reforms has favoured blind imitation (contingent reason 1). Finally, the fact that most of the legal systems interested in general legal reforms were not inscribed in a hall of fame as to the reputation of local juridical culture (at least as to the legal aspects of market functioning, if not in general), has contributed to a lack of trust from the side of the donors. The international institutions, as well as the European Union, managing a 14 years’ long process of enlargement, were so brought to believe that the best guarantee for a proper adaptation of the reforming legal regimes to the needs of market functioning was the imitation of a set of rules already established in the West (contingent reason 2). If one accepts that contingent reasons, per definition, are not permanent in the process of legal transplants, and that ideology has now entered a revision phase, for simplicity referred to as the ‘post-Washington consensus’ ([German] Federal Ministry for Economic Cooperation and Development,

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2004), it is logical to argue that there are no stringent arguments against a reorientation of the process in terms of a clearer distinction between economic recipes and legal design.

IV.

CONCLUSIONS

The belief in the neutrality of the law, which has been reinforced throughout the process of globalisation, is often combined with two different styles of drafting: that of non-technical language and the style that makes use of standards. Take for instance the European Union: if we consider the style of many EU laws, we can not avoid noticing that, while drafting directives and regulations, EU institutions do not consider to be obliged to adhere to the system of concepts and doctrines applied by national jurists.10 The main reason for this recourse to non-technical language is that it responds without too much resistance from the level of local legislation to the request for an increased harmonisation among legal systems. This is an aspect, not yet fully investigated, that characterises the actual phase of legal change. National legal orders are subject to a process of renewal which requires a renewed communication among institutions, actors, enterprises. This is not only true within the context of European integration, but also at the wider scale of global law. National laws are today assessed and evaluated also on the basis of their openness to the external world. It is not by chance that transparency in the procedure, reform of administrative law, access to justice have become recurring issues also in the technical field of harmonisation promoted by the WTO. As to the recourse to standards, their role seems to be opposite to the one played by non-technical language. The purpose they serve, however, is the same, namely to bypass domestic resistance through the recourse to ‘objective and technical standards’ (in the different fields of accountancy, safety, technology, and so forth). The question: ‘Who is empowered to change the law?’ becomes, then: ‘Who is empowered to set the standards?’ There is no systematic answer to this last question, as it depends on the specific area involved. While, for instance, the TRIPs agreement shows a unilateral pressure from the most industrialised countries to ensure a high level of protection for intellectual property rights, in other areas one may notice a flow of models within the circle of the international institutions. The EU Code for Social Security, for example, has been modelled on the ILO Social Security Convention No. 102 of 1952. In other cases we perceive a tight competition among several institutions: the OECD antitrust recommendations have superseded the UNCTAD programmes, while the UNCTAD code of behaviour on transfer of technology has been first absorbed within the sphere of interest of

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the WIPO, and finally has moved within the TRIPs agenda at the GATT/WTO. This happened because the negotiators of the TRIPs agreements paid special attention to the crucial connection between trade policies and competition policies. The result of all those strategies is a system of international relations where, beside the traditional instrument of international conventions, an extensive use is made of standardisation promoted by international institutions. This creates continuous links between the level of negotiation which occurs inside the organisations and the level of domestic laws, affected by those standards. It seems, therefore, that the Westphalian paradigm, which had informed the relations among sovereign states, has to be revised. What is needed is a new blueprint wherein the conflicting interests of transnational groups can be recognised and settled. The ultimate result of such a shift of focus would bring back more voice to the traditional actors of international law, to say the states, as their voice is, today, waning in the adjustment policies carried on by the financial institutions and implemented through overall legal reforms based on the modelling of Western best practices. The actual insistence on extensive harmonisation, shared by several international financial institutions and, at a regional level, by the EU Commission, is triggered by a deficit of confidence in the capability or in the willingness of local governments to put in place the enactments that are considered to ease a satisfactory economic performance. There are two approaches that, if set up together, can reduce the friction which characterises the process of legal transplants: a reduction of the emphasis on the absolute necessity to imitate the formal contents of the laws, and a recognition of the role played by national institutions in modelling the rules. In doing this, an important contribution may be derived from institutional law and economics. It is indeed crucial that, within the process which prepares legal change, every single macroeconomic recipe, for instance the recognition of freedom of competition as an element of good economic performance, is separated from the ‘n’ possible legal blueprints that it can assume. This should be based on the recognition that, historically, a successful transition from stagnation to economic development – in Taiwan and South Korea in the late 1960s, in Brazil, in the People’s Republic of China and in Turkey in the late 1980s, in India and Chile during the 1990s – was supported by a peculiar blend of mainstream economic theories and local regulations. Unlike formal legislation, institutional innovation cannot be smoothly imitated. The Chinese success in setting up a mixed economy could not be exported to other countries in transition from command economy to market. The standing of the People’s Republic of China within the international system can not be ‘exported’ or traded with another country. This has a direct influence on legal transplants and their effectiveness; this is one of the reasons, if not the main one why, after at least 15 years of insistence on legal change as

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a surrogate for institutional development, the rate of substantial success of legal reforms is still highly questioned.

NOTES 1.

2. 3. 4.

5.

6. 7.

8.

The EU 2004 enlargement, for instance, was grounded on the principles and criteria agreed among the 15 member States representatives at The Copenhagen European Council (2003). Those principles and criteria concern: • the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (political criterion); • the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the European Union (economic criterion); and • the ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union (criterion concerning adoption of the Community acquis). See 107th Congress, 1st session, available at http://thomas.loc.gov (accessed 10 July 2009). The African Growth and Opportunity Act was signed into law on 18 May 2000 as Title 1 of The Trade and Development Act of 2000. See for instance the Eligibility Requirements, as stated under s 4 of the AGOA: ‘(a) In general – A sub-Saharan African country shall be eligible to participate in programs, projects, or activities, or receive assistance or other benefits under this Act if the President determines that the country does not engage in gross violations of internationally recognised human rights and has established, or is making continual progress toward establishing, a market-based economy [. . .]’. See also the ‘Advance Democratic Values, Address Nondemocratic Countries, and Enhance Democracy Act of 2005’, also called ‘Advance Democracy Act of 2005’ A meaningful example is provided by the 1999 Chinese law on contracts. Searching a more systematic arrangement for contract law, People’s Republic of China has adopted a law that is heavily indebted to foreign models. This led to the introduction of the notion of ‘good faith’ which was alien to Chinese legal culture and to judicial practice. To fill the gap, the Chinese Supreme Court adopted a directive, to explain the meaning of good faith to the courts, a choice which was urged by the need to give predictability to case law, at the cost of denying the role played by good faith in the Western legal tradition, to say, giving flexibility to judicial action. States do still appear as promoters of legal change, and to underestimate their role would be a mistaken understanding of how globalisation works. In doing this, some governments endorse proposals of legal change in the support of national economic interests. The recourse to supranational standards as a starter for the activation of national legal reforms, detached as they are from the social and cultural context, is inducing a resurgence of legal positivism; a kind of normativistic optimism that leads the main actors of legal reforms to pay an increasing attention to the formal dynamics of the internal legal order rather than to the issues of the degree of effectiveness and of the costs of implementation. This has led, in the last ten years, to the multiplication of the listed set of ‘vague notions’ and to their comprehension within the rhetoric code of good governance for the market. And because broad formulas expressed in ordinary language are more palatable to the media, a bunch of concepts whose juridical/technical content is far from certain has become the paradigm for assessing the modernisation of a legal system. The notion of ‘legal formant’, as introduced by Rodolfo Sacco (1991), refers to the plurality of elements that, within one single legal system, are able of influencing the solution of a legal problem. All rules presenting the same characteristics, like, for instance, all judicial decisions, represent a legal formant of a given legal system. Legal formants can include formally issued legal rules (statutes, decrees), rules elaborated by the scholars, rules that are

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9. 10.

17

expressed by a judge in a judicial decision, rules that are actually applied by the judge in solving a case, that do not necessarily coincide with the rule that has been expressed; while a national lawyer, particularly within a civil law country, may like the idea that a rule has only one ‘correct’ interpretation, a comparativist is more keen to recognise that the several formants within a legal system are not necessarily coherent, neither among themselves, nor in comparison with analogous formants existing in a different legal system. See for instance the famous case brought by Canadian publisher against US magazines on the basis of ‘cultural diversity’: WTO Dispute Panel Report on Canada – Certain Measures Concerning Periodicals, WT/DS 31/R 14.3. 1997) re US magazines. A recently adopted EU Directive 2004/35/CE on environmental liability, for instance, states that ‘damage’ means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly’ (Article 2(2)); what we find here is the contamination of the legal language with the jargon practised among ecologist groups. I would hardly define this choice as a political (pro-ecologist movement) one: rather, as an attempt to bypass different scholarly doctrines and notions used at the level of member States on the definition of damage in the realm of environmental law.

REFERENCES Edge, I. (ed.) (2000), Comparative Law in Global Perspective, New York: Transnational Publishers Inc. Eskridge, W. and P. Frickey (1994), ‘The Making of The Legal Process,’ Harvard Law Review, 107, 2031–2055. Federal Ministry for Economic Cooperation and Development (2004), BMZ Diskurs. Post Washington Consensus: A Few Thoughts, Discussion paper, no. 4. Fix-Fierro, H and S. Lopez Ayllon (1997), ‘The Impact of Globalisation on the Reform of the State and the Law in Latin America’, Houston J. Int.l. L., 19, 785–819. Graziadei, M. (2003), ‘The Functionalist Heritage’, in P. Legrand and R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions, Cambridge: Cambridge University Press, 100–128. Hutchinson, A.C. and P.J. Monahan (1984), ‘Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought’, Stan. L. Rev., 36, 199–235. Kennedy, David (2003), ‘The Politics and Methods of Comparative Law’ in P. Legrand and R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions, Cambridge: Cambridge University Press, 345–431. Kennedy, Duncan (1985), ‘Critical Theory, Structuralism and Contemporary Legal Scholarship’, New England L. Rev., 21, 209–230. Legrand, P. (1999), Fragments on Law-as-Culture, Deventer: Kluwer. Lopez-de-Silanes, F. (2002), ‘The Politics of Legal Reform’, UNCTAD G-24 Discussion Papers Series, no.17. Lowenfeld, A.F. (2002), ‘The International Monetary System and the Erosion of Sovereignty: Essay in Honor of Cynthia Liechtenstein’, Boston College Int. & Comp. L. R., 25, 257–272. Markesinis, B. (1997), Foreign Law and Comparative Methodology, London: Hart Publishing. Markesinis, B.S. (2003), Comparative Law in the Courtroom and the Classroom: The Story of the Last Thirty Five Years, London: Hart Publishing. Mattei, U. and A. Monti (2001), ‘Comparative Law and Economics: Borrowing and Resistance’, Global Jurist Frontiers, 1 (2).

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Muir Watt, H., (2000), ‘La fonction subversive du droit compare’, in Revue Int. Droit Comp., 52, 503–527. Peters, A. and H. Schwenke (2000), ‘Comparative Law Beyond Post-modernism’, Int. Comp. L. Q, 49, 800–834. Pistor, K. (2002), ‘The Standardisation of Law and its Effects on Developing Economies’, Am. J. Comp. Law, 50, 97–134. Sacco, R. (1991), ‘Legal Formants: a Dynamic Approach to Comparative Law’, Am. J. Comp. Law, 39, 1–34, and 343–402. Trubek, D.M. (1972), ‘Toward a Social Theory of Law: An Essay on the Study of Law and Development’, Yale L. J., 82, 71–94.

2. Legal cartography and comparative law Per Bergling I.

INTRODUCTION

Diagnoses of entire legal systems are in great demand for purposes of programming aid, facilitating membership of international organisations, and rebuilding institutions shattered by war and crisis. Put simply, a range of promoters of legal and judicial reforms need to know that the problems discussed really exist and that proposed remedies will be effective in addressing them. However, most strategies and methods for diagnosing systems so far have produced either fragmented or flawed descriptions. This chapter provides an account of some of the most important methodological considerations for the articulation of better strategies, and discusses three recent efforts to map entire legal systems: ‘An Introduction to the Vietnamese Legal System’; ‘UNMIBH Judicial System Assessment Programme’; and ‘Comprehensive Legal System Needs Assessment for Vietnam’.

II. OUR NEED TO KNOW As any cartographer or physician would certify, a credible attempt at mapping or diagnosing a hitherto new or little understood body requires a systematic approach or methodology. This basic assumption must be considered valid also for the mapping of legal systems or cultures. Indeed, such methodologies are currently in great demand: Development agencies need them to underpin legal reform and rule of law programmes, peace-builders need them to guide the rebuilding of destroyed and disoriented judiciaries, and international organisations such as the EU and the Council of Europe need them to determine whether countries are ready for membership. While international organisations, developing agencies, and their experts have experimented with various assessment methodologies almost as long as they have sought to support legal and judicial reforms, most strategies and methods tried so far have produced either fragmented or flawed descriptions of the state of affairs. Furthermore, there seems to be a perception among 19

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New directions in comparative law

assistance providers that the ‘urgency’ and ‘uniqueness’ of each situation, in combination with the perceived ‘straightforwardness’ of the contemplated intervention, make serious pre-intervention assessment unnecessary or even impossible. Thus crude postulates about law and its relationship to development, peace, etc. tend to resurface when the international community has been confronted with a new type of crisis. Neither are ‘traditional’ comparative law methodologies well suited to describing and analysing the comprehensive and complex processes at hand. While they may be useful in the identification of the historical origins of laws and structures, and in the description of their relative character, they often have a point of departure in concepts of ‘Western’ law and may thus encounter difficulties when the object of study is a legal culture in which there is limited correspondence with familiar concepts and categories, or when the comparison must comprise factors such as history, mentality or ideology. Some commentators go as far as to argue that traditional comparative law, when viewed in its narrowest sense, is meaningful (in terms of the aims and objectives it can pursue) only when used for a comparison of legal systems that share fundamental conceptions or ‘paradigms’ of law.1 Therefore the search is on for new and supposedly better approaches to assessing and diagnosing entire legal and judicial systems. The recent establishment of the Millennium Development Goals and the ensuing need to systematically link international assistance to certain development targets (e.g. rule of law to poverty eradication) generate even more political pressure to rely on analytical and evidence-based approaches.2 Besides enhancing the precision of reform initiatives, such approaches are also believed helpful as pedagogical and constituency-building tools. For example, a comprehensive and inclusive assessment may bring conservative agencies, self-interested bureaucrats and even potential ‘spoilers’ on board.

III. WORKS IN PROGRESS A number of instruments have been developed, or are under development, to make the assessment of legal and judicial systems easier and more systematic, among them the World Bank-sponsored ‘Worldwide Legal and Judicial Indicators’ and ‘Legal and Judicial Sector Assessment Manual’, and the ‘Rule of Law Index’ created by the American Bar Association World Justice Project. There are also a range of instruments developed for helping in assessing subject-specific issues, for example indexes developed by Transparency International to measure the level of corruption within countries, and the Observer Human Rights Index and Freedom House’s Freedom in the World Rankings measure human rights compliance and levels of ‘freedom’.

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The most influential and frequently used among the general indexes, the Worldwide Legal and Judicial Indicators, was developed to make the definition of clear purposes and goals for international support to legal and judicial reform easier and more precise by providing a structured set of baseline data, impact indicators, performance indicators, etc.3 Project planners can thus find qualitative and quantitative information regarding a specific legal and judicial system, including information on the judicial career; the justice sector budget; personnel and salaries; and legal education system, in one source in the form of a database. The database also allows cross-country comparisons of specific indicators. The ABA/WJP Rule of Law Index similarly provides a tool (searchable on-line) to diagnose systems, assess specific needs and propose solutions. A special quality with the Rule of Law Index is that it evaluates the judiciary on the basis of around 100 variables derived from specific international agreements on judicial independence and accountability, notably among them the UDHR. In spite of considerable efforts at marketing these tools in the assistance community, the absence of references to them in strategy and project documents emanating out of other assistance providers indicates that many planners are still either unaware of their existence or unwilling to make use of them. Most of these new analytical and assessment tool are clear on the point that the mere study of ‘the law’ or ‘available written materials’ on a given topic or jurisdiction is not enough.4 It may be true that the opening of many formerly closed countries to the outside world, and the simultaneous emergence of the Internet as a tool of information and exchange, have remedied some of the problems as regards the quantity of data about formerly closed systems, but the quality of the information remains more than varied. Considerable caution must still be exercised in reading and interpreting the official materials that exist on legal and judicial issues in developing and transition countries, particularly where there is a one-party monopoly and limited transparency. Even where there are democratic government and genuine ambitions to reform the system, official statistics are often unreliable because adequate means for collection and analysis of input data are absent or because figures are juggled to promote other goals, for example encouraging investment or meeting membership requirements of international organisations. Donald Clarke (2004: 181) points out that this problem does not exist solely as a dichotomy between the written and the oral or ‘empirical’, but also within the field of written sources, where foreign researchers inquiring into legal conditions are often inclined to prefer to ask questions that can be answered with references to indexed sources or databases, instead of penetrating massive volumes of unstructured information, such as several years of newspaper articles, etc. Clarke uses as a metaphor the drunk who looks for his lost keys under the streetlamp because there is light there.

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New directions in comparative law

Further, what assistance providers and their consultants think carries significance is often a reflection of their pre-existing (‘internal’) knowledge about the subject matter (inter alia to emphasise contract law if the topic of discussion happens to be of a transactional nature) and may not be very important in the eyes of the actual beneficiaries of the contemplated reforms.5 Thomas McInerney (2004: 9–11) similarly argues that one of the principal reasons why legal reform projects that have been based on unilateral assessments of what is best for given society have so often failed is that it has been cognitively impossible for donors or small groups of analysts to determine ex ante appropriate legal solutions for a given problem or country when the life chances of reform are determined by complex socio-economic factors such as competing norms, courses of dealing, vested interests, education, etc. There is thus need for methodologies that go beyond establishing a quantifiable ‘truth’ about a given legal and judicial circumstance to analysing the ‘significance’ of various legal phenomena and how they relate to a greater social, political and economic surround. The way the system actually works, including matters such as inter-institutional relationships, individual agency organisation, and capacity issues, need therefore be discussed with judges, prosecutors, lawyers in public and private service, law enforcement staff, and others with first-hand knowledge. Besides enhancing the precision of reform initiatives, such collective and inclusive efforts would also help to build political opinion among key stakeholders for the ensuing reform recommendations. Yet, such discussions will only provide a fragmented picture, as provided by selective legal and social elites. Polls and other forms of broad-based field surveys may also be needed to contrast the official view of means and ends with the perceptions and reactions of those who are supposed to benefit from the legal reforms, whether the general public or a more narrowly defined target group (private businesses, women, children, etc.). At the same time, development planners and researchers need to be aware that errors caused by bad input data are commonplace in qualitative studies. Interviewer and respondent bias is another potential problem. For example, respondents who are suspicious of the motives for the study or suspect the interviewers of having a hidden agenda may provide a too rosy picture of the state of affairs. Questions on the role of the state could also spur respondents who are disappointed with the government or judiciary to exaggerate the problems. Issues of language in general, and the translation of questions and terms in particular, raise a particular set of problems. The most obvious problem, i.e. the rendering of questions asked in for example English in the same words when asked in Chinese, Bahasa Indonesian, or Swahili (lexical equivalence), can sometimes be dealt with by ‘back translation’ and similar methods.6 However, such methods may lull the analyst into believing that equivalence has been achieved when it has not, because words, as language terms, always

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depend on the context in which they are used. A good measure of knowledge of the local culture in the broad sense, enhanced further by the active participation of unbiased local lawyers and experts in the articulation of questions and analysis of answers, can help to ensure a reasonable degree conceptual equivalence, i.e. equivalence in meaning, and otherwise contribute to better data. While these difficulties may appear prohibitive and paralysing, it is important to remember that no research methodology will ever be perfect or produce a final and unchallengeable understanding of the issue. The important point is that any assessment is better than no assessment, and that even the most modest attempts will contribute to a growing body of substantive and methodological knowledge. Below a few selected real-world initiatives to map legal and judicial systems and sectors are presented, chosen among many because they represent various stages of development in assessment methodology and display important differences in goals, approaches and presentation.7 The first, ‘An Introduction to the Vietnamese Legal System’, may be described as a joint donor–host initiative. The second, ‘UNMIBH Judicial System Assessment Programme’, is an assessment commissioned by an international organisation (the United Nations Security Council). The third, ‘Comprehensive Legal System Needs Assessment for Vietnam’, is an essentially domestically promoted mapping and diagnosing initiative, although inspired by similar efforts in neighbouring countries and facilitated by support from a range of assistance providers. 1.

‘An Introduction to the Vietnamese Legal System’

In the wake of the economic reform programme called ‘doi moi’, Vietnam approached Sweden in 1991 with a proposal for assistance in the development of a ‘legal framework’ to consolidate the achievements made in the economic area and move the country towards a greater degree of rule of law. An agreement to this end was signed between the Swedish International Development Authority (SIDA), the Ministry of Justice in Hanoi and the designated consultant, the Department of Law at Umeå University, in 1992. Under the framework of the ensuing project ‘Strengthening the Rule of Law in Vietnam’, various forms of technical assistance (drafting assistance, training, hard-ware, etc.) were provided to the Ministry of Justice and other Vietnamese legal agencies in need of support. However, it soon became apparent that in order to effectively respond to the requests of the Ministry, there was need for some kind of agreed analysis and road map of problems and remedies. There was also concern in SIDA that the demand-driven approach, while being a precondition for the co-operation and instrumental in ensuring local commitment, could make it difficult for the

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Swedish government to ensure that important rule of law or human rights dimensions of the co-operation were duly considered in the elaboration of work-plans and implementation of specific activities. Therefore, SIDA and the Department of Law proposed to the Ministry of Justice that the parties to the co-operation should join forces to produce some kind of joint analysis of problems and their potential remedies in the rule of law and justice spheres. After lengthy discussions (including high level political consultations in Vietnam), the Ministry of Justice accepted the idea. A joint team of researchers from the Department of Law, the Ministry of Justice, and the Office of the Vietnamese Government could then join in a team and commence with the task. While the effort was initially described as a ‘sector analysis’ and expected by some to include the conventional elements of such instruments (inventories of problems, strategic plans, action plans, etc.), it soon became apparent that there were neither political acceptance nor skills on the Vietnamese side for such an approach. Politics and law were still essentially united in theory and practice, and the Vietnamese members of the team (who were civil servants and presumably Party members) felt uncomfortable describing and analysing aspects of their own system, particularly human rights issues and the role of the Communist Party and the mass organisations in legal and judicial affairs. The team therefore found it more feasible and useful to produce a general ‘description’ of the Vietnamese legal and judicial universe. However, before proceeding to describe the system, the absence of reliable statistics and other baseline data on the legal system, court organisation, the legal profession, etc., made it necessary for the team to spend much time and energy on collecting this information by means of interviews with representatives of various Vietnamese political, legal and judicial bodies, professional associations, and international and regional organisations. After an analytical and writing phase that stretched over more than a year, the work was concluded with the publishing in Vietnam and Sweden (in Vietnamese and English respectively) of a short book, An Introduction to the Vietnamese Legal System, consisting of eight topical chapters describing law-making; main areas of substantive law; civil and criminal procedure; legal education; international co-operation; etc.; and an appendix with a number of important Vietnamese laws and administrative instruments. 2.

UNMIBH Judicial System Assessment Programme

The UNMIBH Judicial System Assessment Programme (JSAP) in the fledgling state of Bosnia and Herzegovina (BiH) was essentially an international attempt at analysing systematic problems in a judicial system fragmented along ethnic and political lines. It was launched by UN Security Council resolution, became operational in late 1998 (three years after the end of the war

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that had cost about 150 000–200 000 lives), and was formally mandated to monitor and assess the court system in BiH as part of an overall programme of legal reform under the co-ordination of the highest international executive authority ‘in theatre’, the High Representative.8 The original impetus for establishing this body came from security considerations, namely that progress with internationally promoted police reforms in BiH needed to be followed with similar efforts to reform the clogged and biased court system. After some initial confusion as to whether JSAP was going to monitor and assess the work of the judiciary more generally or focus on high profile cases specifically, the Programme decided to devote most of its attention to assessing the general quality of ‘justice’ in BiH as compared to international standards of justice, particularly the European Convention on Human Rights. The Programme adopted a conceptual framework for assessing the judicial system in three main aspects: (1) technical, covering legislation and other legal norms and standards; (2) institutional, relating to the capacity of the system in terms of physical resources, personnel, etc.; and (3) political, i.e. the political framework and factors determining the operation and level of independence of the judicial agencies and their staff. Establishing a presence on the ground in post-war BiH was complicated for a variety of political and practical reasons, but recruiting staff proved easier than expected. When the UN advertised internationally for people with a suitable professional background and practical experience of work in transition countries, there were around 600–1000 applications for less than 20 international positions. Many local lawyers were also attracted by the chance of finding a comparatively high-paid job in an international organisation. In order to allow the mission to draw on the knowledge and resources of the UN presence in BiH, it was decided to organise the mission in teams and to deploy one team in each of the seven existing ‘UN Regions’ of BiH. Each team came to consist of two international Judicial System Officers, one National (Bosnian) Professional Officer (normally a lawyer with a background in the judiciary or prosecution service), and two language assistants. The teams worked under the guidance of the JSAP headquarters in Sarajevo, which consisted of an international Head of Programme (initially a Swedish judge, later a Norwegian judge), three international experts, one national expert, two language assistants, and an international administrative assistant. Besides guiding the work of the teams, the headquarters had an important function to liaise with other international agencies and Bosnian authorities, and to make sure that the goals and priorities of the programme were consistent with the overall goals and principles for the international support to the judicial reform effort as elaborated by the Office of the High Representative. Much initial effort was spent on collecting relevant data from courts and

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prosecution offices on staffing, material resources, budgeting, caseload, professional qualifications, etc., and on compiling these data into a computerised database. Once this work had been completed, the teams could shift attention to their core task of performing in-depth topical studies of matters of special importance for the independency and effectiveness of the judiciary. The results of these studies were compiled by the JSAP headquarters and published in a number of topical reports made available to the Office of the High Representative, the UN Special Representative, and others concerned with human rights and rule of law issues in BiH.9 While JSAP was well equipped to supervise and assess, it had neither mandate nor resources to make sure that its recommendations were actually implemented. The implicit – and in many respects naïve – idea, was that local agencies would be persuaded to accept the conclusions and recommendations emanating out of JSAP by means of persistent political dialogue. If that was not sufficient, they would be coerced to do so by the High Representative. However, BiH is a country where the international community fights an uneven battle with obstructionist factions determined to keep the judiciary manipulated or crippled. The High Representative also needs to be careful not to impose reforms too brutally or frequently, or stand the risk of completely eradicating the little domestic ownership there is in the greater process of state building. It eventually became clear that the ‘build-in’ problems in this construction rendered JSAP essentially impotent in the political sphere. In an attempt at reviving and energizing the judicial reform process, the High Representative established a new body, the Independent Judicial Commission for Bosnia and Herzegovina (IJC) in 2000, and tasked it to take the lead in both assessing the system and implementing important judicial reform projects.10 3.

Comprehensive Legal System Needs Assessment for Vietnam

The impetus for the Comprehensive Legal System Needs Assessment for Vietnam (LNA) came from a conclusion in the Vietnamese leadership that various important national development goals would not be possible to achieve without a facilitating and consolidating legal framework.11 The successful establishment of such a framework, in turn, was believed to require a strategic approach to legal and judicial reform and a method to allow prioritisation and allocation of scarce resources to the most important reform objectives. In coming to this conclusion, the Vietnamese government was also inspired by similar efforts in other developing and transition countries in Asia, among them Indonesia and Mongolia, and attracted by the support that international organisations, notably the World Bank and the UNDP, had provided for their implementation.12 A group of assistance providers comprising among others the World Bank, Asian Development Bank (ADB), United Nations

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Development Programme (UNDP), Swedish International Development Cooperation Agency (SIDA), Danı¯da, Japan International Cooperation Agency (JICA) and Australian Agency for International Development (AusAid) did indeed prove willing to provide money, equipment and advice to support the LNA. Most of the financial contributions to the LNA were designated for empirical research, workshops and conferences, in-country travel, secretarial support, communications, translation, interpretation, document production, and co-ordinating functions. Virtually all significant Vietnamese agencies concerned with legal and judicial issues participated in the LNA, inter alia the Ministry of Justice, Supreme People’s Court, Supreme People’s Procuracy, Office of the National Assembly, Office of the Government, Internal Affairs Commission of the Central Committee of the Communist Party, and the Ministry of Planning and Investment. At the request of the Government, the Ministry of Justice was designated as co-ordinator of the whole effort. Most of the work was carried out by four subject-area teams: Framework of laws and international instruments; Legal and judicial institutions; Legal education and training; and Legal information and dissemination. Each team consisted of 12 to 15 designated experts from the participating agencies. A fifth team was responsible for merging the subject area reports into one comprehensive report and action plan. The subject area teams also included auxiliary experts from legal education, training and research institutions.13 One or more international specialists with previous experience of Vietnam were also seconded to each team by the major donor agencies supporting legal and judicial reform in Vietnam. The role of these international experts was not to ‘lead’ or ‘drive’ the work of the teams, rather to provide insights and find materials that were not readily accessible to the Vietnamese team members.14 The five teams were overseen by, and received further instructions from, an ad hoc Inter-Agency Steering Committee (IASC) consisting of eight ministeror vice-minister level representatives of the key state agencies in the legal field. A Vice-Minister of Justice performed the day-to-day supervision of the progress of the LNA. A Secretariat for the IASC was formed within the Ministry of Justice to facilitate the practical work of the teams, inter alia by assisting in scheduling and holding meetings and workshops; preparing notes and minutes of team meetings; making regular reports to the Committee on team and other LNA activities; preparing for larger-scale external workshops; compiling a regular newsletter on LNA activities and news; and assisting the Committee and individual teams to establish and maintain contact with international donors and international experts. The work proceeded basically as follows: The LNA was kicked off with a two-day Launching Workshop in March 2001, with the participation of some 40 persons representing relevant Vietnamese agencies, donor organisations,

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and international experts. Besides signalling high-level and broad-based support for the LNA, the workshop served to introduce to the participants the specific objectives, activities, and proposed main outputs of the exercise. This meant that it was clear from the beginning that the LNA should be understood as a rather instrumental enterprise, aimed at making sure that resources devoted to future reforms would support specific priority goals rather than ‘justice’ or ‘rule of law’ generally. Another workshop to the same end was held in June 2001, in which particular attention was paid to consolidating a common and better understanding among the participants of the implications of the socio-economic strategy of Vietnam for 2001–2010 on long-term legal sector development on the one hand, and of the instrumental role of the legal system in achieving these broad goals on the other. Then the teams could proceed to develop and agree on a consistent procedure and methodology for analysing the aforementioned main areas of the legal and judicial system. The next step was fact-finding. The teams began with making an inventory of existing analyses, reports and statistics (international analyses were provided by embassies and international organisations represented in Vietnam) and summarising their main findings. The work then proceeded with gathering and compiling additional and in-depth ‘empirical’ information where needed by means of polls and interviews. After having completed the phase of fact-finding, the teams started to identify perceived problems and gaps, as well as any notable successes, in the functioning of each area of the system. They also sought to analyse the underlying causes, including linkages to official social and economic policies in Vietnam, for example whether economic policies were incompatible with legal structures. The final analytical step was to find and present effective solutions for the identified problems. The problems and reform recommendations were then compiled into thematic reports and merged by the high-level fifth team into a comprehensive synthesis report, setting out: a statement of the major needs for Vietnam’s legal system development in light of relevant priority social and economic policy goals; a proposed comprehensive strategy for Vietnam’s legal system development to 2010; a proposed action plan to carry out the strategy; and a proposed framework for international support to the implementation of the action plan. Draft versions of the thematic and overall reports were circulated for comment among state and local agencies, mass organisations, individual citizens, etc. A number of international conferences and workshops were also held in 2001 and 2002 to allow the teams to meet with donor agencies and other international stakeholders and discuss both the draft report and the LNA process more generally. The official version of the final draft was presented in April 2002. While the LNA would not have been possible without the strong backing of the Party, its involvement signalled that there were explicit and implicit

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restrictions as to what the teams could find and propose. Further, while an unprecedented number of Vietnamese agencies were encouraged to participate, the chances for political and bureaucratic ‘outsiders’ to influence the methodology or substance were slim. It was symptomatic that almost all the proposed ‘implementers’ of the action plan items were state or public agencies, or bodies affiliated to the Party. The political constraints were particularly palpable where the discussion touched upon issues of democracy and human rights. In most cases, the teams simply avoided these topics, or tried to confine the discussion to a non-committal minimum. When it was deemed necessary to open for some debate (because of foreign pressure, credibility considerations, etc.) the teams were careful to avoid clear definitions and unambiguous statements. There were also examples of ‘newspeak’, i.e. giving concepts that already have a more or less commonly accepted definition a new and uniquely ‘Vietnamese’ meaning (e.g. human rights becoming ‘legitimate and democratic human rights’ and rule of law becoming ‘Socialist Rule of Law State’). It could have been feared that the long Vietnamese tradition of fighting political ‘turf battles’ would have made the work in the inter-agency teams difficult or even impossible. While there probably were some such tendencies, the LNA leadership was rather successful in maintaining a façade of relative unity vis-àvis the donor community. Even in the synthesis of the various thematic reports, where policy and priority decisions had to be made in the face of interest advocacy, little leaked out of the participating agencies to indicate that painful battles were won or lost. On the other hand, there is a fairly consistent view, both domestically and in the donor community, that the resulting Strategy and Action Plan basically prioritised everything and omitted nothing. Although the LNA was launched as a domestic analytical enterprise, the ‘aid factor’ came to influence how the teams described problems and suggested remedies. This was only to be expected as the donor community (notably the World Bank and the UNDP) at an early point in the assessment phase opened up for a parallel discussion about how to link overseas development assistance to identified reform priorities. The teams took notice of this sideshow and sought to position themselves to get the most out of the opportunities it provided. The perceived need to compete for overseas resources also made the participating agencies suspicious of the co-ordinating role of the Ministry of Justice and made them fear that it would seek to channel as much as possible of the foreign support to its own pet projects.

IV.

CONCLUSION

The examples provided above, i.e. the Introduction to the Vietnamese Legal System, LNA and JSAP, underline the old truth that the outcome of an

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assessment is largely determined at the stage of assessment design. Assessment design, in turn, just like the whole process of legal and judicial reform, is dependent on a greater surround of political, economic, social and cultural factors. Of these, the expectations and preferences of the ‘ordering’ body are the most significant. Obviously, a Marxist–Leninist leadership struggling to retain its leading role in policy formulation can be expected to have rather different expectations about both policy outcomes and implementation modalities than a ‘protectorate style’ international territorial administration answering to an impatient Security Council and donor community. At the same time, perfection should not be allowed to stand in the way for good enough. Any assessment is better than no assessment, at least as long as it is not completely manipulated to serve the interests of an oppressive regime. The mere inception of an assessment exercise signals the presence of a political and substantive awareness among the leadership of the need for an analytical approach to legal and judicial reform. In ‘difficult’ political environments, even a controlled assessment will also provide a valuable opportunity for interagency discussion and exposure to new ideas. The presence of foreigners in the forum further means that the discussion, almost by definition, will be more open and critical than would otherwise be allowed. Yet another reason for not insisting on perfection is that ambitious assessments are very resource demanding and as such risk stretching the capacity of the participating agencies, particularly the host government, to a maximum. States and governments aware of their ‘weakness’ may consequently refute the initiative already at the stage of idea.

NOTES 1.

2. 3.

For example, Van Hoecke and Warrington (1998: 514–515) suggest that the differences between Asian and Western legal culture or ‘paradigms’ are so pronounced in regard to the degree of inclination to individualism and rationalism that there is little to be gained from a straightforward comparison. A ‘legal paradigm’ is defined as ‘[. . .] a hard core of shared understandings, of basic theories and concepts, a common language, a common methodology’. This paradigm or ‘common legal culture’, in turn, includes shared understandings on at least (1) a concept of law; (2) a theory of valid legal sources; (3) a methodology of law, both for making and for the adjudication of law; (4) a theory of argumentation; (5) a theory of legitimation of the law; and (6) a common basic ideology. See e.g. UNDP (2003:16). Available over a web-based database at www.worldbank.org/ljr (accessed 10 July 2009). The World Bank also hopes to encourage ‘interested organisations to design, plan and implement legal and judicial modernisation processes based on benchmarking techniques and best practices indicators’ [. . .] ‘the academic world and related institutions to carry out research projects in the area of legal and judicial reform’ [. . .] and ‘civil society organisations and NGOs to take a more active interest in the importance of legal and judicial reform and, especially, the rule of law.’ The World Bank, available at http://www4.worldbank.org/legal/ database/Justice/default.htm (accessed 10 July 2009).

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4. Some commentators argue that any research into law and its significance in social life which looks for ‘the law’ or ‘the effective law’ is futile because it sets out from the incorrect assumption that law exists and can be described and analysed independently of context, or, which amounts to the same thing, that it is the same in all contexts, see e.g. von BendaBeckmann (1989: 141). 5. Clarke (1996: 206–207) points out that people never investigate a subject in which they have no interest and since by hypothesis the interest precedes the investigation, it is clear that the interest must stem from something other than (extrinsic to) the object of investigation. 6. The material, e.g. a questionnaire, is translated from one language to another, and then translated independently, by another translator, back into the original language. The results are then compared to identify and correct semantic errors in the translation. 7. There are many other examples of comprehensive and careful assessments meriting discussion, for example World Bank and UNDP-sponsored initiatives in a range of Central American, African and Southeast Asian Countries. See for example Ethiopian Ministry for Capacity Building (2005), formally commissioned by the Ethiopian Ministry for Capacity Building and implemented with the assistance of the Center for International Legal Cooperation at Leiden University. 8. Established by UN Security Council Resolution 1184 (1998). 9. Inter alia Serving the Public: UNMIBH (2000a); (UNMIBH 2002b); (UNMIBH 2002c); (UNMIBH 1999a) and (UNMIBH 1999b). 10. This decision was made in accordance with the directives of the Peace Implementation Steering Board in Lisbon in May 2000 and was endorsed by UNMIBH, OSCE and the CoE. The IJC was also given an important role in providing opinions and advice in judicial reform and rule of law issued directly to the Federation and Republika Srpska ministries of justice, members of the judiciary, court administrators and members of the international community. The Director of the IJC could recommend to the High Representative the use of his powers as elaborated in the December 1997 Bonn Peace Implementation Council Declaration, e.g. regarding the need to impose legislation or to remove officials, including judges. Other than those circumstances, the Director could decide upon actions to be taken on the basis of powers authorised by the High Representative. 11. The national development goals are (1) building a state ruled by law as mandated by the 1992 constitution; (2) increasing democracy; (3) changing the economic system from central planning to a socialist-oriented market economy under state management; (4) integrating Vietnam into the regional and international economies; and (5) making Vietnam a modern industrialised state by the year 2020. 12. The first of these World Bank-sponsored assessments was completed in Ecuador in 1994, and involved reviewing different aspects of the administration of justice. As a result of the priorities identified, the ensuing Ecuador Judicial Reform Project came to include a broader range of components than previous World Bank legal and judicial reform projects. 13. Inter alia the Central Institute for Economic Management, Hanoi Law University, the Institute of State and Law, the Institute of Legal Research, and the Legal Professional Training School of the Ministry of Justice. 14. The General and Team-specific ToR spelled out that the teams should own and drive the processes of fact-finding, policy analysis, and drafting, while the role of the foreign experts should be advisory and catalytic.

REFERENCES Clark, D.C. (1996), ‘Methodologies for Research in Chinese Law’, U.B.C. Law Review, 30(1), 201–209. Clarke, D.C. (2004), ‘Empirical Research into the Chinese Legal System’, in E.G. Jensen and T.C. Heller (eds.), Beyond Common Knowledge: Empirical Approaches to the Rule of Law, Stanford: Stanford University Press.

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Ethiopian Ministry for Capacity Building (2005), ‘Baseline Study Report for the comprehensive justice system program in Ethiopia’. McInerney, T. F. (2004) ‘Law and Development as Democratic Practice’, Voices of Development Jurists, 1(1). UNDP (2003) Legal and Judicial Reform: Strategic Directions. UNMIBH – Judicial Assessment Programme (JASP) (2002a) – Thematic Report X, ‘Serving the public: The Delivery of Justice in Bosnia and Herzegovina’, November 2000. All UNMIBH reports were made available at the UNMIBH website, www.unmibh.org (accessed 10 July 2009). UNMIBH – Judicial Assessment Programme (JASP) (2002b), Thematic Report IX – ‘Political influence: The Independence of the judiciary in Bosnia and Herzegovina’, November 2000. UNMIBH – Judicial Assessment Programme (JASP) (2002c), Thematic Report VIII – ‘Prosecuting corruption: A study of the Weaknesses of the Criminal Justice System in BiH’, November 2000. UNMIBH – Judicial Assessment Programme (JASP) (1999a), Thematic Report: ‘On Arrest Warrants, Amnesty and Trials in Absentia’, December 1999. UNMIBH – Judicial Assessment Programme (JASP) (1999b), Thematic Report, II ‘Inspection of the Municipal Public Prosecutor’s Office in Livno’, September 1999. van Hoecke, M. and M. Warrington (1998), ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, International and Comparative Law Quarterly, 47, 495–536. von Benda-Beckmann, F. (1989),‘Scape-goat and Magic Charm – Law in Development Theory and Practice’, Journal of Legal Pluralism, 28, 129–48.

3. Development assistance in the legal field: promotion of market economy v human rights Michael Bogdan From a lawyer’s viewpoint, it is extremely satisfying that the importance of law as a pre-condition of desirable economic and social development is now generally recognised. The same developing countries, that used to ask Sweden for food, machines or medicines, ask now for assistance in producing a bankruptcy law, educating judges or publishing an official gazette. Development assistance in the field of law has become a large-scale industry, connected to the transition of many Third World countries and former communist states towards some kind of market economy and political democracy. This assistance creates, at the same time, a number of novel problems.1 Sweden is a relatively small donor in this context in comparison with some other countries and international organisations such as UNDP (United Nations Development Programme). Only about one percent of direct Swedish development aid, administered by the Swedish International Development Cooperation Agency (SIDA), relates to law and legal matters.2 Sweden used to differ from most Western countries by providing generous assistance to various ‘progressive’ regimes of preponderantly Marxist orientation, which makes Sweden a wellestablished donor in the same countries even now, after they have abandoned the Marxist economic and legal model. This does not mean, however, that the assistance to these countries’ legal development is uncontroversial. While aid in the field of promotion of human rights seems to be generally accepted, helping the recipient countries to replace their state-controlled economic systems with a ‘capitalist’ market economy is considered by some Swedish critics to be equivalent to helping the rich to get richer and abandoning the poor. This may be one of the reasons why the Swedish aid in the field of law is in SIDA’s documentation often listed under the heading ‘support for democracy and human rights’, which is in my opinion an excessively narrow way of looking at the role of law, since the creation of basic legal prerequisites of a functioning market economy should be seen rather as an element in securing economic growth, which is undoubtedly the most central purpose of our development assistance as a whole. 33

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There is, to my knowledge, no universally accepted definition of what is meant by ‘market economy’ (the critics of market economy often prefer to call it ‘capitalism’), but it is usually understood to mean an economic system based on private ownership of the means of production, freedom of individuals and groups of individuals to start and run private businesses in competition with others, and the right of individuals, including consumers, to take economic decisions and measures without state interference. Today, there is hardly any country where market economy is allowed to function in its 100 per cent pure form, as a certain degree of state intervention into the economy is commonplace – and necessary – even in countries strongly supporting the ideology of market liberalism. Thus, when we say that the European Union consists of countries having market-oriented economy, what we have in mind is that these countries have an economic system which is, to a prevailing degree, based on the principles of market economy. In this chapter, the term ‘market economy’ will be used in this sense, i.e., to denote a mixed economic system where market economy is the dominant feature. Market economy has proved its value as the most efficient economic order. At least at the present state of development of technology and other means of production, it can produce goods and services with the least possible cost of human labour, raw materials, energy and environment. Therefore, it is hardly surprising that almost all of the countries which used to have economic systems based on central planning have opted to transform their economies into market-oriented ones. This applies to both the former communist countries and many of the countries of the Third World, some of them traditionally large-scale recipients of Swedish development aid (such as the doi moi reforms which started in the 1980s in Vietnam). Of course, it can be hoped that economic growth will contribute to democratic development and increased respect for human rights as well, since experience shows that a functioning market economy is a necessary, albeit not always sufficient, precondition of democracy as we know it in the West. In this chapter, I shall make an attempt to explain why and how supporting economic reforms favouring market economy is a necessary element in the support for political democracy and human rights. In my opinion, there are basically three factors making a market-oriented economic system a necessary – albeit not sufficient – precondition of both a political democracy in the modern sense and an efficient protection of human rights. The first factor is connected with the above-mentioned superior economic efficiency of market economy in comparison with all the other presently known economic systems. A low standard of living is often the main reason of the general discontent which makes governments in planned-economy countries feel threatened and compelled to restrict, in one way or another, the civil

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and political freedoms of their citizens. The former German Democratic Republic would certainly not have felt the necessity of depriving its citizens of their freedom of expression and preventing them from visiting the West if the East German planned economy had provided the population with a standard of living comparable with that of the Federal Republic; the main purpose of these East German restrictions was to stop the mass exodus of discontent citizens and to uphold the public lie about the economic superiority of socialism (characterised by the public ownership of the means of production and central planning). In those countries where the prevailing economic system has the support of an overwhelming majority of the population, there is no need to fear that the economic system will be overthrown by a revolutionary upheaval. Therefore, the political system can afford to respect political democracy and human rights and freedoms. The second factor linking political democracy and human rights with market economy is related to the fact that a market-oriented economy prevents the State from gaining a total control of the everyday life of the citizens. Of course, a ruthless dictator can regardless of the economic system have his opponents arrested or even executed, but due to international pressures such instruments have become difficult to use. Besides, they are rather impractical if the oppression is to be used on a very large scale. In a planned-economy system, the State has at its disposal many other instruments which can be used against the whole population or very large segments thereof. In a country where the State is the only employer and the only provider of education, housing and medical care, each citizen is daily reminded of his total dependency of the regime and can be easily controlled by such pressures as the – usually tacit – threats that the opponent or his family will be denied access to higher education, employment, housing, etc. In a market economy, the citizen can often find some private alternatives, which makes him less vulnerable. The third factor, which is the most interesting one from a lawyer’s viewpoint, is that a market-oriented economic system simply would not function without a certain measure of legal certainty and rule of law. Under the worst years of apartheid in South Africa, when a white person and a non-white person were not even allowed to share the same bench in a public park, the economic sector was governed by legal rules that were practically colourblind. A white businessman acting in breach of his contractual obligations towards a non-white businessman (there were numerous non-white businesses, frequently owned by people of Asian descent) could not count on being treated more leniently by the courts than a non-white businessman would be treated in a corresponding situation. The Latin American experience shows that the various military dictatorships did not hesitate to violate the basic human rights of many of their citizens, including their right to life, but also that at the same time the rule of law was in principle respected in areas such

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as commercial law or tax law: the generals were simply compelled to respect the law in these areas in order not to paralyse the economy, which would stop functioning if e.g. contracts were treated with the same off-handedness as the lives and freedoms of political opponents. If and to the extent the generals wanted to preserve the market-oriented economic system (which, it seems, was one of the proclaimed aims of their war against ‘communist’ elements), they had no choice but to preserve and respect the rule of law as far as the economy was concerned. This is, naturally, not an acceptable excuse for their maltreatment of their citizens in other respects, but has turned out to be highly relevant for the process of re-introduction of political democracy and human rights. In the former market-oriented dictatorships, including those of very long duration such as Spain after Franco, the concept of Rechtsstaat was known and alive; it was rather the lack of it in some limited areas that was the exception which could be remedied relatively quickly. In Spain, for example, it was not any sensational news that a citizen could successfully sue the State or defend himself successfully in courts of law against the demands of the State, as this was commonplace in Franco’s time as well, for instance in tax disputes. The situation was more difficult in the former communist dictatorships in Eastern Europe, where after a lengthy period of planned economy the very concept of rule of law had to be re-introduced and implanted into the consciousness of both the leaders and the general population. From a legal point of view, the transition from a planned economy to a market economy is a very difficult task. Historical experience has demonstrated that, as far as legal regulation is concerned, it is very simple to abolish a market economy and replace it with an administrative planned system. A decree of just a few lines is sufficient to nationalise the means of production and subject enterprises to administrative control. The introduction of a marketoriented system is a much more complicated and long-term process in which law and lawyers play an important role. However, legal changes can only create favourable conditions for a functioning market economy, but cannot by themselves bring it about. In a market economy it is, for example, not possible to command the establishment of new business ventures. It is rather necessary to create a functioning legal framework adapted to the needs of a market-oriented economic system and hope that it will stimulate private initiatives in the economic field. It will take years before small local entrepreneurs grow into successful businesses. This means also that it is not possible to introduce market economy as an experiment; if it becomes known that the marketoriented economic reforms have been enacted by reluctant politicians as temporary measures, nobody will be willing to invest the necessary capital and effort to make the experiment work on a long-term basis. Market economy lives on confidence and stable rules. Sometimes one encounters the view that a transition towards market economy is a mere technicality and that the

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country concerned can even in the future be ruled as before, except that the State will refrain from prescribing what should be produced and what the products and services should cost. In reality, the transition means a veritable ‘mental revolution’ in the way of thinking of both the State leaders and the population, including thinking about such matters as the nature of the relationship between the State and the individual citizen. It would be wrong to assert that market economy presupposes democracy and human rights, as the large number of totalitarian and semi-totalitarian countries with market economy bear witness to the contrary, but a successful market economy requires that the governing regime abides by the law, at least in the economic sphere. It requires, furthermore, a certain measure of confidence on the part of the economic actors that the rule of law in the economic sphere is stable and will continue. To build up such confidence may take much more time than the restoration of the rule of law itself. What is the most efficient way in which the developed world can assist a developing country in creating the legal framework for the market-oriented economic reforms? The most obvious answer might seem to focus on new market-oriented legislation written by or with the help of Western experts. A functioning market economy needs many laws, and this has sometimes come as a surprise to the local leaders who had been taught that in comparison with the planned-economy system, the ‘free market’ is a kind of chaotic state where everything is permitted. It is true that the legal steering of a market-oriented economy does not normally work by means of simple administrative orders, but rather uses indirect incentives such as fees, taxes and customs duties. These indirect steering mechanisms need, however, often more laws and more lawyers than the direct orders used in centrally-planned economies. In addition, market economy requires numerous and complicated legal norms of many kinds. The market could not operate without the law about contracts. Laws on companies are absolutely necessary if the country wishes to make possible private investments exceeding the economic potentials of a single natural person and his family. Many investments can only be made thanks to credit, which will normally not be available unless there are some rules about security (such as mortgage or guarantee). It is inevitable that some of the ventures will fail, which requires legal rules about the handling of insolvency. Labour law – regarding both individual employment relationships and collective labour relations – must be adapted, for example in order not to hinder rationalisations. Criminal law must be changed in order to take care of new types of crimes. All this would be of limited value if there were no constitutional or other legal guarantees protecting private property and an independent judiciary. This list could be made very long. Even though the input of foreign legal expertise is necessary and of great value in this context, the resulting legal transplants give rise to problems as well, for example when the foreign

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advisors come from different legal cultures and the legal system of the recipient country begins to resemble an attempt to build a car from parts that are fully functional by themselves but do not work together because they are of different brands. It is submitted that even more important than the assistance provided by the legal experts is the help to build up a functioning legal infrastructure. This may include such elementary things as typewriters for courts (computers are often unsuitable due to non-existing or unreliable supply of electricity in the countryside and the unavailability of programmers and people able to service and repair the hardware), but also more sophisticated help such as financing the publication of an official gazette making the new laws known to the population. A particularly important element in international development assistance in the field of law should be the support to legal education for the local legal professionals. Experience teaches us that a market economy needs more lawyers than a centrally planned one. The problem is, however, that good legal education requires highly qualified teachers that are usually not available in the countries under transition. The core of the teaching staff consists mostly of upper-middle-aged law teachers who hold their positions since the pre-reform days. The degree of their adjustment to the new conditions varies. They feel they have a disadvantage compared to their younger colleagues, who have received a more open-minded legal training and possess a better knowledge of foreign languages, particularly English. The extremely low salaries at the state universities force them to earn additional income elsewhere, which leaves them with very little time for improving their qualifications, or for legal research. It is important that foreign donors give these teachers a chance to improve their professional knowledge and skills, both regarding the new laws in their own countries and regarding foreign law. As far as foreign law is concerned, short courses given by visiting foreign experts or participation in short courses abroad may be useful. Foreign travel is generally valued very much and having travelled abroad enhances the social and professional status of a person considerably (a tourist trip is usually quite beyond the economic means of an average civil servant). The prospect of travel may induce the teachers to improve their linguistic abilities, especially in English. Development assistance in the field of law is, generally speaking, much less expensive than the traditional development projects such as constructing roads or sending food. It follows from the aforesaid, that the building of a functioning market economy in the countries receiving development assistance means not only a decisive contribution to the fight against poverty but even towards the building of a fundament for political democracy and human rights. It is, in any case, clear that international development assistance focusing on marketoriented legal reforms is, in the long run, more conducive to democratic

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reforms and the protection of human rights than all conferences, courses and other efforts trying to introduce such rights into totalitarian countries with centrally-planned economies.

NOTES 1. 2.

Among my own articles (with some further references) on the subject see Bogdan (1994); (1997a); (1997b); (2004); (2006). A somewhat outdated presentation of the Swedish development assistance in the legal field is found in the official report (SOU 1999:32) by a committee called Kommittén för utvecklingssamarbete på rättsområdet.

REFERENCES Bogdan, M. (1994), ‘Some Reflections on Development Aid in the Field of Law’, in Festschrift für Jan Stepán, Zürich, 7–15. Bogdan, M. (1997a), ‘Common Law versus Civil Law in International Development Aid’, in Festskrift til Ole Lando, Copenhagen, 69–81. Bogdan, M. (1997b), ‘Some Reflections on Development Assistance in the Field of Legal Education’, in P. Sevastik (ed.), Legal Assistance to Developing Countries, Stockholm, 145–157. Bogdan, M. (2004), ‘International Development Aid as a Creator of New Small Mixed Legal Systems’, in Impérialisme et chauvinisme juridiques. Rapports présentés au colloque à l’occasion du 20e anniversaire de l’Institut suisse de droit comparé, Genève-Zürich-Bâle, 55–62. Bogdan, M. (2006), ‘International Development Aid in the Legal Field as a Vehicle for Globalization of Law’, in R. Blanpain and B. Flodgren (eds.), Corporate and Employment Perspectives in a Global Business Environment, Alphen aan den Rijn, 35–41. SOU 1999:32, Utvecklingssamarbete på rättsområdet, Kommittén för utvecklingssamarbete på rättsområdet.

4. Can human rights be exported? On the very idea of human rights transplantability Claudio Corradetti INTRODUCTION In order to formulate an answer to the question of human rights transplantability, it is essential to refer, first, to the idea of a conceptual-legal status of human rights, and then to provide an understanding of the notion of transplantability itself. These points can be validly argued only if a general precondition is first satisfied: general comparability among systems of rights. Indeed, it is only if the possibility of general comparability among legal systems can be admitted that the moral and political obligation might arise to expand, through legal transplantability, the system of protected liberties and fundamental rights. Now, as within one single system of fundamental rights there seem to arise several difficulties in commensurating between individual rights themselves, in the same way, between different right-systems there seems to be little utility in looking for a common neutral ground of commensuration assessing whether one exemplar liberty in a legal system S1 is better formulated than an analogous liberty exemplarily formulated in a legal system S2. And yet, a form of partial commensurability among different systems of liberty-rights can be conceived as taking the form of a general balance of satisfied freedoms. While exemplar rights per se remain reciprocally incommensurable, both at an infrasystem level and at an inter-system level, in relation to general balance of guaranteed freedoms it is still possible to provide a general assessment confronting the overall fulfilment of freedoms among different legal systems.1 A further reason for a preliminary clarification of the concepts at stake is that the correlation between rights and transplantability leads to apparently counterintuitive conclusions. Indeed, if the theory of legal transplants points to the transfer of legal norms from one legal system to another – a horizontal relation between two states’ legal systems – its application to human rights seems rather to involve a vertical relation between an international system of 40

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human rights protections and its reception within national boundaries. This would be true even in the case of an apparent horizontal, state-to-state, transfer of an internationally recognised human right norm, where the transnational element of bilateral advocacy is functional to the incorporation of a supra-ordinate norm for both systems. An additional difficulty connected to the first point would relate the dynamics of legal transplants to the evaluative aspect of transplantation and address the socio-cultural impacts that human rights transplants would produce together with the desirability of the produced effects. But, before entering into these problems, let’s discuss first some different approaches to the concept of law and its socio-cultural interconnections, and then evaluate how, from a multilayered concept of human rights, it is possible to reformulate the constrained plausibility of a notion of human rights transplantability. In order to deal with all these questions, I will first introduce briefly my view on human rights validity, and then consider three possible approaches to law which respond in different ways to the problem of transplantability.

I.

THE VALIDITY OF HUMAN RIGHTS

In what follows, I will address the issue of validity of human rights by starting from the conditions of inherent pluralism characterising modern societies and by referring, accordingly, to the problem of partial incommensurability among ethical theories. If one refers to the partially incommensurable plurality of the view of the goods which individual or collective purposive agents might advance, then the conditions for achieving goods might be placed precisely on the right-framing of those conditions of purposive agency which logically antecede any specific choice of the good or of any comprehensive plan of life.2 Generally speaking, moral incommensurability can be defined as the position which considers that, at any given two or more goods, no common measuring value can be found capable of establishing that either one of them is better or equal to the others. Goods can be taken as incommensurable in as much as they are refused the status as scalar unities sharing a third common property in different degrees. But if, contrary to this insight, an argument can be provided capable of showing goods’ subordination to an higher form of hierarchical ordering, in terms of a lexical ordering, then the problem for their total incommensurability vanishes. Higher ordering values would then seem to resubmit the problem of total incommensurability at a different level. In respect to the potentially unlimited kinds of goods which can be chosen, basic rights as enabling conditions do restrict the range of possibly morally allowed goods to the extent that these latter do not infringe the same enabling conditions of choice; and in terms of their hierarchical relation to goods, enabling

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basic rights do resubmit a form of incommensurability as a lexical ordering between them and other purported goods: in this sense, human rights ‘trump’ any consideration for the maximisation of the good (Dworkin, 1977). If goods are intended as subordinated to a system of basic rights bearing a hierarchical relation of status to them, then any possible attempt of partial commensuration among goods in such system would first evaluate whether any purported good constitutes a possible infringement of basic enabling rights. In as much as goods do not contradict basic enabling rights, then they can be said to be indirectly partially commensurable to a background system of enabling rights. In a pluralistic social community ordered through rights, there is no valid paternalistic advice which can be tolerated as a moral guide to action. There are rather spheres of liberties and of mutual responsibilities within which any citizen can freely cultivate her own passions and life-styles without having to bear the weight of any moral burden for the possible public justification of the right-protected choices. The disjoining of such two levels opens thus to the development of two parallel and conflicting standards of moral reasoning which do proceed, respectively, by confronting what is due reciprocally as a matter of intersubjective duty with what is morally due in face to face relations. Let us address this point by analysing some of the points of Habermas’s speech-act theory. In Habermas, the example is made of a professor asking one of his seminar participants to bring a glass of water. The validity of this request, says Habermas, can be criticised according to several speech-act validity claims, as for instance to its truth-validity (there is no water tap nearby), to its truthfulness (this request is just to reach perlocutory effects by putting him in a bad shadow towards other participants) or, finally, to its normative rightness (you are not entitled to treat me as your employee). In this latter case Habermas claims that: ‘[. . .] what is contested is that the action of the professor is right in the given normative context [emphasis added]’ (Habermas [1981], 2003: 141). Now, what is unconvincing about this explicatory strategy is that normative contextual validity is here claimed without its conformity to any previously established criterion of validity set either dependently or independently from any given context. It is true that the Habermasian central concern regards the non subordination of any communicative action to possible perlocutionary finalities of speech-acts, but it seems rather difficult to achieve such a goal without allowing subjects with some logically prior counterfactual argument grounding the normative rightness of communicative speech acts before any possible life-forms contextual structuring. In the above mentioned example, in fact, the agreement between the two interlocutors would be at most achieved in terms of socially convergent behaviour as conducted within a given lifeform and not as an argued form of normative rightness that remains

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autonomous from given contexts. It seems therefore necessary to reformulate, while maintaining the general features of a model of communicative action, those same constraints for normative rightness as well as to provide an argument capable of setting certain experiential constraints as preconditions to be attained by any illocutive speech act aimed at achieving understanding in all normatively valid language-games. In the attempt of reformulating the Habermasian normative validity condition of communicative action, I will claim that illocutive speech acts aimed at reaching, through understanding, action co-ordination force do raise two interconnected forms of normative rightness: (a) a formal universal intersubjective claim of recognition; (b) and an exemplar form of normative validity mediating between the counterfactual validity of universal recognition and the contextual appropriateness of practices embedded within any given life-form.3 I will begin with the first point and leave the explanation of the second to the next section. Illocutive speech acts raise, first, a form of normative validity in terms of a counterfactual scenario, setting the conditions for purposive action. Within the linguistic practice, such counterfactual conditions are presupposed as a form of a commitment to the recognition of otherness in terms of her capacity to self-determination.4 The idea of a commitment to the recognition of subjects as self-determining agents relies on the idea according to which individuals, by acting purposively, behave as if an agreement on equal terms of cooperation were anticipated. The preliminary commitment to an intersubjective dimension of validity is therefore raised by the same pretence of normative validity of any linguistic speech-act; it regards the mutual commitment of communicative agents to the definition of the boundaries of social interaction. Such commitment, viewed in terms of a meta-condition of communicative action, binds all purposive agents – acting for the satisfaction of different conceptions of the good – to presuppose, necessarily, a mutual recognition of the most extensive form of individual and collective rights as a system of equal freedoms compatible with that of all. Indeed, it is only by assigning priority to an intersubjective relation of mutual recognition, that each individual can become the depository of a system of formal enabling liberties which in their turn allow for the realisation of her preferred good: recognition indeed grounds an equal right to have liberty-rights. But, from the establishment of such immediate intersubjective relation, which any speech act that is oriented to mutual understanding must presuppose, it follows that its locutive aspect can always be criticised by the hearer who raises certain elements of exemplar relevance. This introduces a negative-critical element regarding the dialectical dynamics of a discursive form of recognition which intersects, also, the notion of exemplar universality. The immediate form of recognition which is advanced by an illocutive speech-act aimed at reaching mutual understanding

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does establish, provisionally, a relation of reciprocity, but while advancing such an hypothetical and formal claim, it specifies substantively how this or that right is to be understood for a ‘we’. Here, there are two interconnected notions of counterfactuality at play: an abstract one, as that grounding recognition of all potential participants to discursive practice and an ‘indexical’ one, that is, the pragmatic anticipation of a situated self entering into the dialogical process of exchange of reasons. Such a process, while declaring the specific form of exemplar universality that a discursive must take, leaves open the determinate option of critical rejection to the other communicative agents, so that negativity enters discursively within the process of recognition itself. What is to be re-established is a form of an ‘identity of identity and difference’, so to use an Hegelian expression, where each is recognised as an end in itself and where subjective wills merge dialectically into a universally concrete will. Such movement of being ‘in oneself’ and ‘for the other’ is what constitutes the domain of recognition within the domain of the ethical life, and consequently what transforms the natural law community of moral individuals into a political community. Since an overcoming of the abstract autonomy of the moral subject occurs in the intersubjective decentring of the self proper of the identity/difference movement, the affirmation of the general will cannot but take place within an institutionally grounded domain of social reflection. Within this higher form of recognition, the self relation to myself is mediated by the other, which is not anymore seen as an external element: this is, instead, an intersubjectively ‘mediated We’ that arises and determines a parallel intersubjective mediated form of autonomy. The notion of mediated autonomy is clearly a re-elaboration of the Kantian notion of autonomy. In the latter, particularly according to the Second Critique, the categorical imperative, through obligation, reduces manifest freedom to conscience. It is through the moral law that freedom is discovered as an element of our self-conscience. Through such a step, then, the subject becomes aware of his autonomy. However, Kantian moral imperative and autonomy in general, in order to function, must presuppose itself the idea of an intersubjective community as a community of ends. The intersubjective paradigm of autonomy here defended, intersects precisely this level of enquiry, adding a dialectical moment as the possibility of outcome revisability despite an immediate form of intersubjective agreement. The self-affirmation of the other as different is an essential component for the overcoming of the abstract form of universality that one would obtain simply at the stage of immediacy of the formal ‘We’. Therefore, the dialectical re-joining of the self and the other is necessary for the construction of a determinate universal as a concrete universal, where differences are assimilated within a higher form of universality which I define in Kantian terms as a form of ‘exemplar universality’.5

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Once an anticipation to intersubjective recognition is made intersubjectively, then, a community of ethical agents is constituted. Within such a community, the reciprocal potentially unlimited extensivity of purposive self-determination gets negatively segmented in terms of non infringements of the self-purposive determination of the others. Now, to be free is always to be capable of pursuing or not pursuing a desideratum once that any sort of impediment, restriction, barrier to the realisation of a purported plan is removed. To use a formula introduced by MacCallum (1967), liberty is a three-place concept; that is, it is a triadic relation which always includes the idea of an agent which is not impeded from realising one’s desired goal. That the notion of liberty includes the removal of the obstacles preventing an agent from realising her desired purposes means that both negative and positive freedoms are strictly interconnected. It is only at this point that liberty, through the emergence of a public domain, divides itself into a private and a negative sphere of individual purposive agency – protected by any unjustifiable intervention by the others – and by a public domain of self-determination through political participation. This means that, in order to satisfy the fulfilment of the preconditions of liberty as the possibility to realise one’s desired projects, one has to be put in condition – enabled – through the removal of intentional or foreseeable unintentional obstacles preventing the positive exercise of freedom. But, if liberty is considered as interconnected to the removal of disabling conditions which lead to the exercise of self-determination, then, a basic condition of well-being is to be satisfied in view of a full exercise of private and public freedoms. Indeed, to be free to realise one’s own desired purposes depends upon the agent ‘not being deprived from’, or of ‘not being impeded from’ pursuing one’s desired goal. If it is so, then, one’s impediments to purposive action are not only relative to deprivation of freedoms as such, but also and very often to forms of disability due to conditions of destitution or of health impediments. In this sense, the notion of basic well-being falls precisely within an enlarged notion of freedom as a triadic relation where, for instance, the right to be free from starvation is functional to the positive exercise of self-determination both in the private and the public realm. The rights to basic well-being, therefore, get justified in view of the possibility of the agents being capable of autonomy as purposive agents. Also, since the quantitative allocation of goods and services, in order to be enabled to the exercise of one’s positive freedom, is functional to the contingent individual and societal conditions, a more precise criterion for the normative allocation of the required means to well-being can be only established through a situated judgment. The judgmental activity, which will be addressed later, would consider the allocation of services and goods not simply as a relation to the median distribution of wealth in a society, but as a contextually justified and as an always subjected to revision satisfaction of primary freedoms in view of the exercise of purposive action in general.6

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Freedom concerns here not the status of the subject, but rather its action presuppositions. Freedom is a presupposition to action when the agent is capable of having at her disposal such preconditions for action during her engagement into purposive agency. And yet, to have something at one’s disposal means never being capable of fulfilling the status of freedom as a condition of possession. Agents ‘assume’ that such a condition of presupposition is to be postulated as an unavoidable element for the practical engagement in the realisation of their goods, that is, as an unrejectable universal condition for purposive agency.7 Following from such assumption, the revision of one’s possible desiderata which would contradict those same intersubjective conditions of purposive agency does not collapse into a contingent revision of one’s achievable projects in accordance to a specific context. If one were to confound an idealised perspective with an actual one, then the revision of possible projects as according to circumstances would make the same notion of liberty empty. On the contrary, I am here calling for the most extensive protection of anyone’s purported projects, so that any contingent restriction in actual situations will amount to a disruption of the fundamental intersubjective relation of recognition grounding the formal system of equal rights among people. Since an equal system of liberty rights can be drawn from a relation of mutual recognition of otherness as potential participants to communicative actions, then, any experiential violation of the system of liberty rights does amount to a form of misrecognition of potential agency and therefore to the negation of that ideal community of moral agents which only can grant the legitimacy of any system of law. And yet such an ideal community of moral agents is still a formal category considered as a necessary prerequisite for the validity of speech acts. The recognition of a generalised other from which the respect of certain co-ordinating parameters in pursuing one’s own purposes can be derived, does not rely on a previously grounded substantive concept of humankind. To rely on a previously established category of humankind would be both to reintroduce an essentialist-metaphysical perspective within a postmetaphysical process of justification, and to provide a recursive argument for mutual recognition. Since no a priori concept of humankind can be provided, then, the commitment to the most extensive activity of recognition of otherness cannot but rely on a form of a quasi-transcendental hypothesis of recognition of otherness as a potential addressee of the most extensive equal system of freedoms.8 Lacking a pre-established fixed criterion of human nature, it is on the basis of the attribution, through recognition, of an equal system of liberties that we come to construct an idea of humankind as a form of maximally inclusive moral community. The principle of equal liberty that agents reciprocally recognise counterfactually each other as purposive agents, is therefore at the basis of a form of intersubjective autonomy which precedes the individual capability for autonomy of each purposive agent.9 Potential infringements of

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such intersubjective recognition constitutes a performative contradiction that bears as a consequence that of rendering irrational all those agents’ behaviours refusing to subordinate their own strategic actions to the fulfilment of a coordinating force. Recognition of otherness plays the role of transition from a purely rational first person perspective into an ‘us’ considered both in terms of the anticipation of an ideal community of fellow human beings to which ascribe a certain number of necessary rights for the actualisation of potentialities, and once undergone into dialectical mediation, as a political self-determining community, as a concrete universal. Once identity is initially constructed through immediate recognition in terms of a moral community deserving the maximisation of liberty satisfaction, then along the dialectical process of recognition, the judgmental activity engaged into the contextual political specification of fundamental rights, will orient the formulation of reflective judgments to the construction of a political community. The moral premises of a constructed human community are completed by the political development of human rights formulations. Viewed in terms of fully-fledged formulated rights, liberty-rights have to await the deliberative activity of a political community which would shift from the attribution of a formal system of rights to a moral community of humankind, to the formulation of substantive rights in view of a political self-determining community. With respect to a specific political community, recognition of otherness, when raised by an exemplar human rights formulation, constitutes unavoidable premises. To see how the normativity of equal freedoms as ideal conditions of purposive agency might cope with the realisation of the political autonomy of self-determining bodies, one needs to find an explicatory model capable of combining, in a creative and dynamic way, the validity of a system of freedoms with the search of a form of contextual political validity on the basis of a deliberating activity. This is what I consider as being the role that reflective judgment – in as much as it represents a meta-judgment springing from illocutionary speech acts – plays in the political formulation of human rights.

II. THE VALIDITY OF HUMAN RIGHTS TRANSPLANTABILITY At the beginning of this chapter, I promised to confront three different approaches to human rights transplantability in order to check which is the most appropriate position to the here proposed idea of human rights. The selection of such three theories is sensitive to the different views they exhibit in respect to the notion of law. Indeed, the first position considers law as an autonomous domain and it represents the best candidate for a pure theory of

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legal transplants; the second conceives of law as a domain strictly embedded into and dependent upon society, thus rejecting any legitimate form of legal transplantability; finally, the third model represents an intermediate paradigm in between autonomy and autochthony, conceiving of the possibility of legal transplants as an option subordinated to certain specific constraints. The first position is the one clearly defended by Watson (1993) who claimed, on the basis of his investigations into the effects of Roman law into civil and common systems of law, that changes occur on the basis of ‘legal borrowing’, or ‘transplantation’, due to the prestige and authority that certain laws assume towards other legal systems. His thesis is that legal change is independent from the mirroring of cultural beliefs specific to a local context, and that changes and borrowings occur in a way that is autonomous from the non legal, cultural domain from which they originate. It might seem that, in so doing, Watson defends a completely anti-sociological thesis of law, but this is not quite so. Indeed, he conceives of law as exhibiting both a general function of purposiveness, such as social integration and conflict resolution, and an element of content validity. While keeping these two properties as completely independent variables, he runs counter to totally social dependent theories of legal change. The dependence of law upon context is assumed by Watson in terms of its dependence upon a legal culture and not of a culture in general. The autonomy of legal change and transplantation is thus conceived of as an autonomy of the specific dynamic followed by law through the operational activity of lawyers and legislators taking part in the local legal culture. The borrowing activity, thus, is possible on the basis of the empirical appreciation by the legal culture, that is, at the level of legal concepts of the authority and prestige of an external norm, so that the activity of ‘transplantation’ becomes a process restricted to the co-operation between two autonomous legal spheres. Indeed, the legal sphere is not subordinated, according to Watson, to the cultural sphere in general. That legal spheres can reciprocally communicate and be contaminated is, for Watson, due to the specific conception he holds for the structure of law in analogy with a structuralist conception of language. Watson’s project is that of reconstructing an invariable structure of law starting from historical patterns of law-change from an original ‘mother’ language (Roman law). All or almost all systems of law do have historical traces of this past, and through their reconstruction within each law system it is possible to explain, in comparative ways, any type of legal development. Watson’s theory has been criticized by classical comparative lawyers, as for instance Zekoll (1996) who asserts that the thesis of ‘legal transplants’ as strictly limited to legal borrowing cannot explain reforms of domestic law through international treaties. In this case, indeed, modifications at the domestic level do occur on the basis of commonly agreed premises by all signatories. I have already canvassed upon this point which leads to a different source of

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normativity hanging on domestic and international legal codes that is a morally shareable point of view seen in terms of an open attitude towards recognition of otherness grounding common premises. Let’s turn, therefore, to the second explicatory model, the one conceiving of law as something inherently embedded into culture and context. According to this approach, and in particular according to the criticism of Abel (1982) to Watson’s theory, the central tenet is that the dis-functionalities and the divergences between law and society pointed out by Watson are not a sign of the independence of law from society, but that they express instead a multiplicity of functions that law has towards society, that is, the function of legitimation, expression and mystification. This means that it is precisely for this reason that the study of a legal system must be holistic, relating each single law to the entirety of the legal system, which in its turn must be connected then to the totality of society. Any possible difference between legal systems cannot be taken in isolation from the entire system itself, so that even small divergences between systems must be always taken as referred to a totality of divergence between the considered legal systems themselves. Since laws cannot be separated by the interpretative activities accompanying them and involving both intra-legal systemic and extra-legal societal interpretations, it becomes illusory to try to explain legal change simply by looking at the ‘black-letter rules’, as thought by Watson. This means that one cannot proceed without any consideration of the interpretive presuppositions underlying the understanding of a legal code, thus making of the meaning of such a code something inherently interwoven within the local cultural Weltanschauung. If law is understood as a tool for the self-understanding of society in its totality, then, not much space is left for legal transplants, since the transferring of even a small element of law from one system to another not only implies a differently incommensurable perspective upon the world springing from the target domain, but it is also a sign of an unjustified hegemony of one legal culture over another. This argument is based upon purely relativistic assumptions which I will criticise hereafter at least in their cultural-normative version. Indeed, if one were to promote a fully relativist thesis, for the sake of coherence, a precise view of the notion of truth as something strictly dependent upon cultural determination would also have to be endorsed, leading us into what can be defined as a truth-paradox: (I) ‘Truth is culture-bound’ is true Either ‘I’ is itself culture-bound or it is not. (a) If ‘I’ is culture-bound, that is if it is true, there will be some cultural settings in which it is false, or in which it cannot be formulated at all. (b) If ‘I’ is not culture-bound, that is if it is false, then it will be true in all cultures. Therefore, if ‘I’ is true it is false, and if it is false it is true. (Harré and Krausz, 1996: 28)

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Yet, even if truth-claims not falling into such paradox must be capable of showing a form of universal necessity beyond their specific context of origination, this does not imply that they have necessarily to be context-free or spring from the so-called ‘view from nowhere’. On the contrary, my suggestion is that, within a paradigm of judgment, it is still possible to propose a constrained-constructivist notion of validity as springing precisely from a context and also as capable of trespassing it. As far as the third paradigm is concerned, then, a mediation between the absolute autonomy of law and its holistic socially embedded counterpart is defended by the work of Teubner (1998) with particular reference to a non-holistic relationship between law and society, a process of ‘selective connectivity’ with social sub-systems. Teubner claims that the subsystem of law is specifically linked with the subsystem of politics and that specifically in post-modern societies and globalisation we assist a pluralisation of subsystem connectivities linking law to a plurality of different social subsystems and discourses. This is what Teubner (1992) defines as the Janus-face of binding agreements, that is while having at the same time a legal and a social aspect, and thus a reciprocal exchange of inputs and structural compatibility, each element maintains relative autonomy. Within this picture every small change in one domain can ‘perturb’ and provoke ‘irritations’ in all the others. In the case of legal transplants, the introduced innovation ‘irritates’ the connected social discourses, provoking a readjustment and a reformulation of the newly introduced rule and consequently, on the side of the legal domain, of the way of incorporating the rule itself. Thus, according to Teubner, while a legal transplant cannot occur in the way Watson has explained, it can nevertheless be conceived of as something possible once multiple ‘irritants’ pertaining to the social-sub-field are also taken into account. The result is that the rule to be transplanted is substantially reformulated by the target subsystems, and with it, its specific functioning assumes a completely different form and modality. According to this position, while law maintains an autonomous functioning and logic, it remains connected also to a multitude of social-subsystems which ‘irritates’ whenever legal transplants and innovations take place in any system of law. I believe Teubner is right in pointing out such dynamics and interrelations between law and the other social sub-systems. In what follows I will explain why the descriptive reconstruction of Teubner intermediary model is adequate also from the moral normative point of view of the notion of pluralistic universalism, here defended in terms of a human rights theory. Human rights, indeed, intuitively seem to contain both subjective and universalist elements, that is, a pretence of universal validity as attached to a first-person perspective. Once such a double characterisation is taken seriously, it leads to a sort of conceptual entrapment assuming the form of a neither/nor constraint. One can neither defend a basic right without thinking,

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first, that it requires a subjective endorsement and entitlement – this is my right! – nor by thinking that its validity can be limited in scope – I’m entitled to the right to free speech, but you are not! The combination of subjectivism and universalism seems therefore to constitute the most relevant characterisation for an intuitive understanding of human rights. But in order to prove the validity and the possibility of reciprocal approximation of the two above-mentioned properties, a reference to a precise justificatory model is to be made, in terms of all those necessary conditions at the basis of principle-constrained human rights reflective judgments as the two-step theory developed above has aimed at defending. Once such a normative theory of human rights has been provided, how can one respond to the possibility of human rights transplants? I believe that, first of all, a justified possibility of human rights transplants can take primarily the form of a top-down direction. That is, by assuming the normative constraints as reformulated within a model of communicative action, one must cultivate the reasonable hope that fundamental rights will constitute the moral premises of those judgmental activities characterising the constitutional constructions of societies. From within such a common framework, then, further internal and reciprocal pluralisations and differentiations will be reflected in the national and regional constitutional debates and legislations in terms of comparative legal partial commensurability. This point implies that the reception of international treaties into local contexts is to be taken as sensitive to the local culture itself, so that a clear distinction between different ‘conceptions’ of human rights realised through the activity of reflective judgment will support the same sorts of ‘concepts’ of human rights, that is, would reinterpret a common formal system of human rights into exemplarily valid mutually distinct local constitutional norms. Once such differences remain within the boundaries set by morally and internationally agreed human rights principles, constitutional differences will become perfectly acceptable, since they will accommodate universal principles to the socio-cultural exemplar validity of local contexts. Thus, according to the presently defended view, human rights transplantability can become a justified thesis only when it follows essentially two mutually dependent constraints: (1) A top-down process of legal/cultural interpretation of universally justified formal human rights categories which prevent a horizontal projection of idiosyncratic interpretations from one country to another. (2) The activation of ‘legal irritants’, that is according to Teubner, the activation of several social-subsystems which react and reinterpret international norms according to contextual patterns of interpretation and incorporation of the rule.

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This means that a mechanical transferring of one legal element from one country to another, as that described by Watson, is not only very unlikely to happen when human rights are at stake but, more importantly, is also normatively unjustified. Further, mechanical transferring seems also descriptively wrong, since one might want to allow for a de facto existence of an international system of human rights protections, characterised by a large number of states signatories, even if this, according to my interpretation, cannot suffice to assign it self-legitimation. If the current framework of international protection of human rights reflects such lack of empirical legitimation, it follows that priority must be given to the fostering of international and regional councils and convention through the construction of culturally pluralist frameworks of deliberation from which deliberative human rights legal provisions would be agreed upon on the basis of a precommitted judgmental activity presupposing, as normative constraints, the universal conditions of equal freedom and basic well-being. From such outcomes, then, one might proceed to the local legal specification of formal universal principles into legal framings, which would then be open to a bi-univocal horizontal legal comparative discussion and possible revision by different, and yet partially commensurable, sub-systems of human rights codifications. This understanding of human rights transplantability can be successful only upon the condition that certain prerequisites of public reasonability and institutional structuring are met by all those who are in charge for the drafting of a regional or international system of human rights provisions. Though, the more challenging and difficult question to answer is that concerning those more frequent cases in which institutional arrangements of democratic legitimacy are not fulfilled in the international sphere. How should western democracies behave in such cases? Is it possible to hope for an international order showing stability even if non-democratic states are included? As is evident from contemporary developments in international politics, it seems that the strategy pursued has been that of basing international stability upon the wide spread imposition of a liberal ethos originating from a specific cultural and political context. Indeed, some western scholars have considered that international peace can be achieved only once all institutional frames of national governments take a democratic twist and start promoting a form of liberal attitude. For this reason, human rights transplantability has been used beyond the search of a socio-political consensus of the countries involved and a specific political strategy for the achievement of international stability has been developed in order to address the issue of international political peace. This strategy is based upon what is known as the ‘democratic peace theory’. To this position I reply that while, on the one hand, democratic arrangements are desirable as well as ideal solutions for the legitimacy of self-determining

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political bodies, on the other, the view that there is strong empirical evidence in support of the democratic peace theory is not valid. If this is the case then it could be suggested, instead, that a more promising solution comes from what is a process of progressive legalisation of international relations including both democracies and non democracies, and oriented toward the flourishing of a plurality of perspectives organised within international and functionally differentiated systems of checks and balances of powers.

NOTES 1.

2. 3.

4.

5.

6.

7.

At such regard, for instance, Feinberg claims that: ‘[. . .] Freedom of expression times freedom of movement yields nothing comparable. If these areas of freedom are called ‘dimensions’, they must also be labelled ‘incommensurable’. Still, limited comparisons even of incommensurabilities are possible. If the average American has greater freedom in every dimension than his Ruritarian counterpart, it makes sense to say that he has greater freedom on balance’ (Feinberg 1973: 19). Within this picture, Waldron’s ‘right to do wrong’ (Waldron 1993: 63 ff.) then refers to a different level of understanding, a level pertaining rather at the standard of moral criticism than that of rights-analysis. The notion of experience, in this sense, is much more similar to the mediated and the structured understanding of experience advanced by Hegel than to the immediate certainty of the objects advanced by Hume. On some further characteristics the Hegelian notion of experience see Adorno (1994). On this point I follow Honneth’s insights on the concept of recognition as grounding the legitimation of a legal order: ‘If a legal order can be considered to be valid and, moreover, can count on the willingness of individuals to follow laws only to the extent to which it can appeal, in principle, to the free approval of all the individuals it includes, then one must be able to suppose that these legal subjects have at least the capacity to make reasonable, autonomous decisions regarding moral questions. In the absence of such an ascription, it would be utterly inconceivable how subjects could ever have come to agree on a legal order. In this sense, because its legitimacy is dependent on a rational agreement between individuals with equal rights, every community based on modern law is founded on the assumption of the moral accountability of all its members.’ (Honneth 1995: 114). In explaining how the dialectical unification of the opposition works in Hegel’s theory of recognition, Siep (1979: 137 ff.) notices that the relation between self-consciousness transcends them, since each is dependent not only from its relation to the other, but also to the self-understanding of the other, so that any change in oneself is also a change in the relation to the other. A situated and yet exemplarily valid allocation of resources for the fulfilment of basic wellbeing sets a contextual non-objective requirement while rejecting arbitrariness. For instance, within a purely objectivist position, Griffin (1988: 44) has opposed moral non conventional objectivity to social conventional indeterminacy in the definition of a standard of well-being, as when he writes: ‘For instance, we can banish the indeterminateness by defining a standard on people’s natural expectations in that society; expectations adjust to possibilities, and a standard of minimum acceptable level of life, admittedly very rough, will naturally emerge. Although that is true, it is not clear why we should merely detach well-being from objective features of human nature and connect it instead to accidental social changes that have no obvious moral significance.’ I believe that this understanding of the connection between purposive agency and experience can help to clarify and distinguish my position from that of those, like Honneth, who, starting from similar premises, have then insisted upon the normative stand of social suffering and the experiential ground of social injustice, as in Fraser and Honneth (2003: 129–130).

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54 8. 9.

The notion of quasi-transcendentality is here deployed to indicate the entire dialectical process from immediate to negatively mediated recognition. As far as the function played by the notion of recognition, it can be said that: ‘In contrast to Rawls, the idea of the good on which a recognition-theoretical conception of justice is based is tailored from the start to the intersubjective character of human relations. For it assumes that the subjects for whose sake just social relations are to be established are aware that their autonomy depends on the autonomy of their partners in interaction.’ (Fraser and Honneth, 2003: 259).

REFERENCES Abel, R. (1982), ‘Law as lag: inertia as a social theory of law’, Michigan Law Review, 80, 785–809. Adorno, Theodor W. (1994), Hegel. Three Studies, trans. S. Weber Nicholsen, Cambridge, Massachusetts: the MIT. Allison, Henry E. (2001), Kant’s Theory of Taste. A Reading of the Critique of Aesthetic Judgement, Cambridge: Cambridge University Press. Dworkin, Ronald M. (1977), Taking Rights Seriously, Cambridge, Massachusetts: Harvard University Press. Feinberg, Joel (1973), Social Philosophy, Englewood Cliffs, NJ: Prentice-Hall. Fraser, Nancy and Axel Honneth (2003), Redistribution or Recognition? A PoliticalPhilosophical Exchange, London–New York: Verso. Griffin, James (1988), Well-being. Its meaning, measurement, and moral importance, Oxford: Clarendon Press. Habermas, Jürgen (1981), ‘Social Action, Purposive Activity, and Communication’, in Cooke M. (ed.) (2003), On the Pragmatics of Communication, Cambridge: Polity Press, 105–182. Habermas, Jürgen (1993), ‘On the Pragmatic, the Ethical, and the Moral Employments of Practical Reason’, in J. Habermas, Justification and Application, Cambridge: Polity Press, 1–17. Harré, Rom and Michael Krausz (1996), Varieties of Relativism, Oxford: Blackwell. Honneth, Axel (1995), The Struggle for Recognition. The Moral Grammar of Social Conflict, Cambridge: Polity Press. Kahn-Freund, O. (1974), ‘On uses and misuses of comparative law’, Modern Law Review, 37, 1–27. Kant, Immanuel [1790] (1953), The Critique of Judgement, trans. J. C. Meredith, Oxford: Oxford University Press. Mac Callum, G. C. (1967), ‘Negative and Positive Freedom’, Philosophical Review, LXXVI, 312–334. Oakeshott, Michael (1978), Experience and its Modes, Cambridge: Cambridge University Press. Siep, Ludwig (1979), Anerkennung alz Prinzip der praktische Philosophie: Untersuchungen zu Hegels Jenaer Philosophie des Geistes, Freiburg: Verlag. Teubner, G. (1992), ‘The two faces of Janus: rethinking legal pluralism’, Cardozo Law Review, 13 (1), 1443–1462. Teubner, G. (1998), ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’, Modern Law Review, 61, 11–32. Waldron, Jeremy (1993), Liberal Rights. Collected Papers 1981–1991, Cambridge: Cambridge University Press.

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Watson, Alan (1993), Legal transplants: an approach to comparative law, Athens, GA: University of Georgia Press. Zekoll, J. (1996), ‘Kant and Comparative Law: reflections on a reform effort’, Tulane Law Review, 70, 2747–2771.

5. ‘Cut-and-paste’? Rule of law promotion and legal transplants in war to peace transitions Richard Zajac Sannerholm I. PLACING THE TRANSPLANT DEBATE IN THE CONTEXT OF WAR TO PEACE TRANSITIONS This chapter looks at the process of international rule of law assistance in war to peace transitions from the perspective of legal transplants. Those familiar with the short but dynamic history of international promotion of legal reforms in developing countries (starting with the law and development movement in the 1960s) also know of the intense debate on legal transplants.1 Stripped to its essentials the debate has centred on the following question: is it possible to transfer laws and legal institutions from one legal culture to another? Academics and practitioners who answer this question in the affirmative point to the way law travels. The spread of Roman law throughout Europe, or international or transnational commercial law of today, testifies to the possibility of legal transplants (Markovits, 2004: 95). Opponents in the other corner of the ring are often inclined to agree to the fact that law (or legal rules) travel, but then they ask what the effects of substantial legal borrowing is, ‘how does the transplanted law work and function?’ The litmus test is if law, once it has been transplanted, takes the same function, role, and appearance as in the country of origin (Gillespie, 2006: 18). There is a need to revive the discussion on legal transplants within the context of war to peace transitions. The reason for this is simply that the process of legal borrowing, transfer and transplant is reaching monumental proportions within international assistance to war-torn societies (see e.g. United Nations Report of the Secretary-General [UNSG] 2004a). In these situations, transitional and interim governments face a paradoxical equation. While hard-pressed to break with the past and establish a new normative framework for governance, the weak capacity of interim governments makes the transition impossible. As deus ex machina the international community comes to assist in the legal transformation and statebuilding under the banner of ‘rule of law promotion’. 56

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One of the most favoured methods in rule of law reform is to transplant and borrow law, and to influence the legal system in a certain direction. The Afghan constitution, which came into force in 2004, was by and large brokered and drafted with the assistance of international experts. The new regulatory regime for public procurement in Iraq saw substantial involvement from the US administration, and the UN assisted in drafting the rape legislation in Liberia, which came into force in 2006 (UN Human Rights Council, 2007, paras 16–17). Despite the prevalence of this form of international law-making, the methods, processes and the effects it might have are rarely discussed in relation to war to peace transitions. While the pros and cons of legal transplants have generated a rather heated debate when it is undertaken in developing and transition economies, the same approach in war to peace transitions has received very little scrutiny. Two assumptions that seem to have taken hold of the donor community might explain the lack of discussion and analysis. The first assumption is that the legal ‘chaos’ in war to peace transitions is so great that any type of law reform is better than none. Second, considering the level of violence and the number of crimes that many of these societies experience during a conflict, ‘good’ law has to be imported in order to remedy past grievances and safeguard against future abuses. At the same time, donors are careful not to be perceived as imposing law from on high, or to dictate the terms for legal transformation. Policy documents and strategic guidelines often emphasise the need for national ownership and to tailor fit reforms to political, economic, social and cultural factors. The problem is, however, that guiding principles like ownership are notoriously difficult to live up to in crisis situations.

II. DESCRIBING RULE OF LAW REFORM AND LEGAL TRANSPLANTS There is a multitude of different ways to spread norms in the global arena. A bulk of the studies on norm diffusion has focused on the spreading of norms in relation to transnational networks, international organisations, and nongovernmental organisations. To date, little attention has focused on norm diffusion in war to peace environments through multilateral efforts of statebuilding (Björkdahl, 2006: 215). Legal transplantation is typically understood as the moving of laws and legal institutions across geopolitical or cultural borders. Other terms for describing this process exist, for example ‘legal irritants’ (Teubner, 1998); ‘transposition’ (Örücü, 2002) and the broader ‘convergence of values’ (Sieta, 1997). The different terms all attempt to describe a similar order of things,

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namely the circulation of legal models, although the term transplant connotes a more direct and conscious form of circulation as opposed to irritants, convergence or transpositions. To cope with the problems of development, countries sometimes ‘adapt, beg, borrow and steal’ (Friedman, 2001: 93) from places where a similar type of problem has been successfully addressed through regulatory measures. The discussion on legal transplants often strands on the dichotomy of autonomous v. socially embedded perspectives on law (Gillespie, 2006: 13). Proponents of legal transplants claim that the autonomy of law makes it practically easy to ‘export’. Opponents reject this notion and point to the fact that law mirrors society and that therefore any type of transfer that does not conform to social norms and values is likely to be unwanted and thus fail to be transplanted. This notion has led some scholars to formulate an opinion called ‘the law of non-transferability of law’ (Kahn-Freund, 1974). The proponents of an unrestrained or unproblematic transplantation of law present a sound descriptive theory of legal change and the methods used for improving deficits in a legal framework. It is aimed at describing the actual process of transfer and does not explain the effects that a law will have. The empirical reality is without a doubt more complex than what the descriptive account of legal transplants gives at hand. Moreover, the proponents of legal transplants tend to emphasise the law making elite and the role of legal education by taking a narrow definition of legal culture. This view is ill suited to the process of globalisation of law. Law is no longer confined to and reproduced within the parameters of the state, but is also a product of local, national and transnational networks, social organisations, and advocacy groups and grassroots movements around the world (see e.g. Sikkink, 2005: 42 f.). The issue of norm-creation and norm-change is not an exclusive task bestowed upon the state, but also a process that is influenced by resistance or participation of non-state actors. In its heydays in the 1960s, the law and development movement relied heavily on the transfer of laws and legal institutions. This is illustrated by the typology of six different models of transfer identified by Gardner (1980: 14), ranging from the direct transfer, the invited transfer, to the imposed or uninvited transfer. The focus of law and development scholars was not just on further development by providing legal models of rules and institutions that were seen as crucial for economic growth but also, or perhaps more so, to help developing countries transform their ‘traditional’ and ‘backward’ societies into modern nations. The reliance on transfer of laws and legal institutions and the failure of transplanted law to ‘take root’ and have a substantial impact were two of the chief reasons for the demise of the law and development movement (see Tamanaha, 1995, and Trubek and Santos, 2006). The transfer model for legal assistance was criticised for being ethnocentric, for failing to understand the

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plurality of legal cultures in many developing countries, and for being based on an assumed superiority of American legal culture (where most of the laws and institutions were drawn from). After a sustained criticism, law on the development agenda kept a low profile throughout the following decades but resurfaced with a vengeance in the late 1980s. In the trails of a fast expanding economic globalisation and the end of the Cold War, Central and Eastern European countries found themselves in the firing-range of trigger-happy donor organisations, eager to assist in the transformation from plan to market economy and from one-party state to liberal democracy. Rule of law became a central feature of the reform adventure despite the fact that few scholars and practitioners within the legal reform business could explain what was meant by the concept. The need was great and the supply even greater: market economy institutions including contract and bankruptcy codes, property rights regimes and Alternative Dispute Resolutions (ADR) were infused at a staggering speed (World Bank, 1996: 85). These models of rules were effortlessly crafted or copied on the basis of institutions in the West, sometimes determined by the sheer influence by one international expert (a German legal expert who happened to advocate for German bankruptcy code); historical ties between countries; or by the possibility of seemingly endless funding and financial support from a certain organisation or country. These transfers were then complemented with training initiatives. Judges, lawyers and other legal professionals were trained in the new legal frameworks en masse throughout Central and Eastern Europe (Carothers, 2006: 7). As with its predecessor, the rule of law movement suffered setbacks and critique. Once again the issue of legal transplants was raised as a flawed theory for describing the role and function of law in society, and as an unsound approach to the promotion of legal change (Channell, 2006: 141). One example of the critique is the report of the US General Accounting Office (GAO) where a decade of US rule of law assistance to former Soviet Union states is evaluated. The report concluded that rule of law assistance has had limited impact. While US agencies introduced innovating legal concepts, the sustainability is unclear due to a lack of political consensus and weak domestic reform capacities. The assistance focused on short-term achievement of goals such as drafting new laws while failing to support long-term capacity to manage, monitor and evaluate drafted laws (US GAO 2001: 12). As a reaction to the criticism, donor organisations began to proclaim lessons learned in policy documents and operational guidelines (Nader, 2007). While this did not stop the use of legal transplants, and there are perhaps wellgrounded reasons for why it should not stop completely, things took a new twist towards the end of the 1990s when rule of law assistance became a standard component of UN peacekeeping missions.

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THE TRANSPLANT RATIONALE

Studying legal transplants raises three basic questions: ‘what’, ‘how’ and ‘why’. As described above legal transplant is here taken as a process in which a law, or a particular legal institution, is taken from one environment in order to be recreated or redrafted in another. So far it is all very uncontroversial and national legislators have used other legal systems as sources and models for a long time. The ‘how’ is next. The process of transplanting differs depending on at least two fundamental factors, time and capacity. Most often the transplanted laws or institutions are used as a model or blueprint for the domestic reform process. The original law or institution is then analysed, discussed and scrutinised in light of its compatibility with the domestic legal framework. This type of legal transplant process is supported by sufficient time and capacity to fully ensure compatibility. In other cases, where a speedy reform effort is of need, as in Central and Eastern Europe in the early 1990s or most war to peace transitions today, the original law is taken as a whole and simply transferred, sometimes only edited by translation to the local vernacular. Where capacity is lacking and time constrained by pressures to show tangible signs of change, there are few incentives in the transplant process to undertake resource demanding and capacity requiring studies and analyses. Between the crudest and simplest form of legal transplant, going to the copying machine, and the more complex process of providing support, influence and technical expertise on the drafting level, we find a number of other methods and approaches where the level of involvement of local actors varies, where the initiative is primarily local, and where international experts play a role of facilitators rather than drafters by providing advice directly to relevant ministries in different co-location programmes. As to ‘why’ legal transplants are used, the typology developed by Miller (2003: 842) is useful. The typology is based on four different factors of motivation: cost-saving transplants; externally dictated transplants; entrepreneurial transplants; and legitimacy generating transplants. These four types of motivations are drawn from the societies receiving transplants. Another dimension is the motives of international donors. In certain wartorn societies, individual donors are given a great deal of discretion to push and lobby for reforms to take a certain direction (e.g. the US in Iraq or Germany in the Balkans) motivated by prestige and trade and investment opportunities (Ajani, 1995: 115). In war to peace transitions, where the domestic incentive is superseded by international imperatives, donor agencies choose transplants on much the same basis as in Miller’s typology. Frustrated by a lack of local capacity, and pressured to show tangible results, the international community has often found that it is easier to do it on its own than to

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wait for local authorities to act. This cost efficiency rationale is a particularly salient characteristic in rule of law reform where the international community has established a form of protectorate, as in Kosovo and East Timor. International donors also push and lobby for legitimacy creating transplants. The use of international norms and standards, for example, is perceived to hold a greater legitimacy than national legal models. Advocating for the ratification of international human rights treaties, or strengthening constitutional protection of fundamental rights and freedoms, is also seen as a way of both granting legitimacy to an interim government in a war to peace transition and to the international actor involved in rule of law reform. As a theory to explain the role of lawmaking and legal transplants in developing countries Berkowitz, Pistor and Richard (2003) focused on how norms are created and how transplants are received. Critical to the use of transplants they draw attention to the fact that process matters for the way a law will be received and function. Reception is dependent on a process of lawmaking where external norms are fused with the social context. Berkowitz et al (2003: 189) measure the legality, or the effectiveness of legal institutions, in a number of countries and reach the conclusion that ‘the process of lawmaking rather than the contents of legal rules determine the effectiveness of legal institutions.’ The role played by outside or foreign actors conditions the viability of legal transfers and reforms. Where law was imposed from the outside and the legal evolution was more external than internal, the effectiveness was often weaker. Conversely, ‘where law develops internally through a process of trial and error, innovation and correction, and with the participation and involvement of users of the law, legal professionals and other interested parties, legal institutions tend to be highly effective’ (Berkowitz et al., 2003: 189). This argument resonates with a growing understanding within the donor community that any type of reform should aspire towards local ownership and participation. The real problems within intellectual globalisation are where different conceptions clash, e.g. between an assistance provider and recipient state (Mattei, 1997: 6). Instead of a process of a transfer of knowledge these cases display a form of ‘legal imperialism’ where a pattern of communication is replaced with a one-sided exportation. In a successive series of stages, the importance of rule of law reform has crept into the area of peace-building and conflict management, culminating with the United Nations transitional governance in Kosovo and East Timor. These protectorate situations propelled the need for wholesale importation of legal codes, international experts, and redrafting of legal frameworks. The centrality of the rule of law to conflict management was later reinforced by the international presence in Afghanistan and the establishment of UN missions in Sierra Leone, Liberia, Burundi, and the Ivory Coast.

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The difference between the processes of legal transplants in war to peace transitions to the processes of legal transplants in developing countries is twofold. First and foremost, the source for transplants does not rely as much on individual countries that happen to have an interest in the region, i.e., through trade relations or historical ties (although this is still prevalent). It now draws more on international legal regimes, standards and benchmarks or ‘model laws’.2 This is most clearly seen in the statement by the UN Secretary-General (UNSG 2004b: 5) who lists the normative sources for UN engagement in rule of law reform as consisting of international criminal law, international refugee law, international human rights law and international humanitarian law, besides UN standards relating to the judiciary, lawyers and prosecutors. International law has a growing impact on areas previously regulated exclusively by domestic governments (Miller, 2003: 841). While the process of legal transplants in the past typically involved commercial law, rule of law reform in war to peace transitions today focuses on criminal justice, fundamental rights and freedoms and constitutional law (see i.e. DeLisle, 1999). Naturally, the transplanting of commercial law models still thrives: Kosovo, Iraq and Afghanistan have all received substantial external support in this area but it is secondary to judicial and criminal law reform (see Kassinger and Williams, 2005). Second, international involvement in war to peace transitions is based on a different type of legal mandate than in development co-operation. While legal technical assistance in development co-operation is based on a loan, credit or grant, regulated by bilateral or multilateral agreements whereby the consent of the ‘host’ state is crucial, war-torn societies find themselves in a position where their consent can be ‘overruled’ by the UN Security Council. Rule of law reform in these cases comes with an enforcement mandate. This challenges the notions of participation, influence, and local ownership.

IV. THE DIFFERENT FORMS OF LEGAL TRANSPLANTS IN WAR TO PEACE TRANSITIONS There are different forms of legal transplant and reception in war to peace transitions. It depends ultimately on the authority of the international presence, the mandate, the availability of resources, and the capacity of recipient authorities. In Kosovo and East Timor where the UN had executive authority, the involvement and responsibility over the legal reform process were inevitably broader than in the various ‘assistance’ missions in parts of Africa and in Afghanistan. In the latter cases, international actors are, on the surface of things, more constrained to a role of giving advice and to promote certain goals and objectives. This does not mean, however, that the local input and ownership of the

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legal reform process is greater. International actors use what leverage they have such as loan and grant conditionality, freezing of assets and other stickand-carrot approaches in order to steer legal transition in a certain direction. 1.

Restatements of Law as ‘Internal’ Legal Transplants

War-torn societies share some general characteristics of how legal transplants take place. One could be described as a form of ‘internal legal transplant’. What this means is simply that in times of transition, previously applicable laws that have been put out of play for a period of time are brought back into use. This was the method employed by the UN in Somalia, Kosovo, and East Timor. In Afghanistan according to the Bonn agreement the constitution of 1964 was determined to apply, with the exception of the provisions on the monarchy, the executive and the legislative body, and as long as it did not contradict the agreement (Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions 2001). Restatements of applicable law often come with a mutatis mutandis clause to emphasise their transitional and interim character, or with provisions similar to repugnancy clauses. These clauses are inserted in order to ensure that the applicable law is to be enforced insofar as it does not contradict or violate a new or higher set of norms, most often a reference to international human rights law. Using internal transplant is driven by both cost-efficiency and legitimacy motives. It is undeniably less expensive to re-use or revive a previously suspended legal framework than to initiate a process of creating new structures, at least in a short-term perspective. It is also considered easier to gain legitimacy by using something already in place (UNSG 2004b: 7). The practical implications for this approach are uncertain. It has proven problematic to ensure legal certainty with internal transplants, and the Ombudsperson Institution (2004:8) has described the situation in Kosovo as legally chaotic. A chief reason for the difficulties with legal certainty is the general vetting criteria. In Kosovo and East Timor, the law was to be applied as long as it did not contradict the constitutive Security Council resolution, the regulations enacted by the UN governing body, or international human rights (United Nations Mission in Kosovo [UNMIK] 1999/1 and United Nations Transitional Administration in East Timor [UNTAET] 1991/1). While this in theory established a continuing system of vetting in the application of the law it provided few practical guidelines on how to actually apply the law in contentious issues, or in situations where the law was silent in a particular case. Moreover, the international human rights regime that was used as a yardstick in Kosovo was not initially defined. Instead, the regulation on applicable

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law simply stated that all public officials should observe internationally recognised human rights standards. This was amended in a later regulation which provided a list of international treaties, including the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the two covenants on Civil and Political Rights and Social, Economic and Cultural Rights (UNMIK, 1999/24). But, the problem of internal transplants also raises structural issues regarding what bodies that have the competence and authority to interpret violations of the applicable law and its repugnancy clauses. In Afghanistan the question of competence and authority to interpret and determine whether or not the Constitution was compatible with the Bonn Agreement was not made clear from the start. The Bonn Agreement unfortunately also failed to consider that the previous law consisted of several legal regimes drafted at different times and that there were considerable overlaps and contradictions. Afghanistan has a variety of applicable legal codes, presidential orders and decrees. The Afghan legal framework ‘presents itself in layers and layers, each layer representing particular periods of governance . . . laws were enacted under the Constitutions or Interim Constitutions of Afghanistan of 1964, 1977, 1980, 1987, 1990 and 1992’ (Lau, 2006: 9). The heritage of a multilayered and chaotic legal framework was also a problem in Iraq, ‘. . . Hussein has ruled by fiat. Since 1991, the Revolutionary Command Council, which he chairs, has issued some 1,500 resolutions annually, ranging from amendments to the constitution to security decrees to changes in the laws concerning trade and taxes. This has created a legal jumble . . .’ (Perito, 2005: 6–7). This legal jumble is illustrative of the challenges facing rule of law promotion and the use of legal transplants, particularly in situations where decrees and similar executive tools have been employed in an uncontrolled fashion. In Kosovo the revised regulation on applicable law also managed to create confusion concerning the applicability. While reversing the decision of applicable law from the law in force on 10 March 1999 to the law in force on 22 March 1989, and while also detailing a host of international human rights standards to be observed, the UN had a built-in problem of interpretation. The UNMIK regulation reads that if a court determines that a subject matter is not covered by the laws in force on 22 March 1989, but instead is covered by another law in force in Kosovo after this date, it can be applied as long as it is not discriminatory and complies with international human rights obligations (UNMIK, 1999: 24). Following this regulation national authorities face a complicated task of applying three different legal regimes. The use of a general vetting criterion is also sometimes employed in relation to specific legal regimes. One example is the new Law on Administrative Procedure (LAP) in Kosovo, which covers more or less the same areas as the older Law on Administrative Disputes (LAD). Instead of LAP replacing LAD

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in full, Article 142 of LAP states that it shall ‘supersede all the provisions of the applicable law with which it is in contradiction’. Since both institutes cover similar areas national authorities will have to go through both. Considering the weak capacity of agencies at the local governance level this only reinforces a pattern of legal uncertainty. 2.

Borrowings from International Legal Regimes

Besides the internal legal transplant approach, one commonly favoured method is to push, lobby and support the ratification of international law. Law reform has been one of the top priorities for justice system reconstruction in post-war states (Strohmeyer, 2001: 58). The push towards incorporation of international law means providing technical assistance and legal advisory services to governments in ratifying or acceding to international conventions, and assisting legislatures in drafting new legislation. The bulk of support in this area has focused on the substance of law reform and not the process itself (Stromseth et al, 2006: 199). Subsidiary legislation needed in order to implement new laws is often not a priority. The same goes for ensuring the consistency of the hierarchy of norms, making sure that new laws do not contradict other laws, or to adequately disseminate the result and provide an appropriate time of vacatio legis. Predominately the reform efforts in war to peace transitions relate to criminal law reform, criminal procedure law reform, the legal framework for the judiciary, and constitution making. Laws concerning citizenship and elections are also frequently adopted in the initial stages of war to peace transitions. International human rights standards and instruments play a pivotal role from two perspectives. First, human rights treaties are often used as a model for a review and overall assessment of the legal framework and, second, the United Nations often pushes hard for the signing and accession to international human rights treaties. Liberia is a good example. With the support of the United Nations Mission to Liberia, the transitional government signed and ratified in 2004 over fourteen different conventions and treaties. The following year the Chairman of Liberia’s National Transitional Parliament signed 83 treaties (UN Treaty Event, 2005). Another example of the infusion and influence of international law is the new Criminal Code in Kosovo, promulgated in 2003. The code includes chapters on crimes under international law, that is, war crimes and crimes against humanity as defined in the Rome Statute of the International Criminal Court. International human rights law, in addition to United Nations norms and standards are perceived to be ‘a solid basis for guidance’ and offering both ‘orientation and inspiration, as well as an appropriate framework for establishing and re-establishing and strengthening criminal justice systems’ (United Nations, 2005, para. 43).

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An interesting recent development is the elaboration of ‘model codes’ in criminal justice by the United States Institute for Peace and the Irish Centre for Human Rights. In what started out as a response to the calls for an enhanced preparedness to situations where the UN assumed responsibility over the administration of justice, the model codes project has evolved and has the potential to inform law reform beyond its original interim use (see O’Connor, 2006). The model codes consist of a substantive Criminal Code, a Criminal Procedure Code, a Detention Act and a Police Powers Act. The Model Codes are crafted with war to peace transitions in mind, and contain articles of ‘typical’ crimes, as well as issues relating to detention and police work. The Model Codes are based on a form of ‘condensation’ of international human rights and criminal justice standards, and the process of drafting the codes consisted of extensive consultation with stakeholders from different countries and legal traditions. 3.

Technical Assistance and ‘How-to-Manuals’

International experts also advise on or take a part in law reform efforts through various co-location programmes. In some situations this takes a more direct route. The Coalition Provisional Authority in Iraq issued during one year 100 orders, which included amendments or additions to Iraqi laws (Kassinger and Williams, 2005: 220). In other situations the impact is less direct yet all the same substantial. In the DRC, the UN mission was charged with assisting in the re-establishment of a state based on the rule of law, which led to the establishment of a JointCommission with the Transitional Government on essential legislation, including post-transitional constitutional drafting (UNSG, 2005: 9). Similarly in Liberia, the UN assisted the Ministry of Justice in reviewing and redrafting of laws relating to human trafficking, juries and the financial autonomy of the judiciary (UNSG, 2004a: 17). There has also been a growth in legislative manuals and checklists for law reform. Some of these are directed towards national authorities while others aim at being a support for international reformers. The guides and ‘how-tomanuals’ also range from the specific to the generic. The Organisation for Security and Cooperation in Europe (2007) developed a ‘Guide on Municipal Statutes’ while the Support for Improvement in Governance and Management in Central and Eastern European Countries ([SIGMA] 1996, 1997) have elaborated ‘checklists’ on civil service legislation. There are also a vast number of more generic manuals, for example USAID’s (2000) handbook on legislative strengthening. One of the more ambitious manuals in the area of law reform is the ‘Post-Conflict Constitution Drafter’s Handbook’ (2007) by the Public International Law and Policy Group, which includes examples of constitutional articles, starting with various ways of how to write a preamble.

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V. SPECIFIC CHALLENGES TO LEGAL TRANSPLANTS IN WAR TO PEACE TRANSITIONS War-torn societies pose specific challenges to rule of law reform and legal transplants. One reason is because they represent a sui generis situation. War to peace transitions are extraordinary processes in which the normal, or nontransitional, rules do not apply. Teitel (2006: 6), among others, has argued that, ‘transitions imply paradigm shifts in the conception of justice’. International assistance in war to peace transitions rests upon legal means, and legal responses create a sui generis paradigm where law becomes both the preservation of order while also the decisive tool used in order to break with the past. In this environment, legal change is constrained and under immense pressure to fulfil a plurality of objectives. Another way of describing war to peace transitions is in terms of capacity. Countries like Afghanistan, Liberia and Somalia are characterised by an extremely low level of capacity and resources, which makes any reform initiative difficult. This means that many of the theories on law reform and transplants are seriously challenged by the sheer mass of constraints that post-conflict societies display. The existing law is often unclear or disputed and lacking in legitimacy. Existing law can also be a mixture of Common law, Continental European law, traditional law and religious law and rests on a bifurcated system. Furthermore, the law may also flagrantly violate international human rights, both procedurally and substantively. There is a growing criticism against the use of legal transplants. In many respects the criticism is based on sound arguments. As concluded by the UN Secretary-General, ‘no rule of law reform, justice reconstruction, or transitional justice initiative imposed from the outside can hope to be successful or sustainable’ (UNSG, 2004b:7). The simple copy-and-paste approach that has marked past and current endeavours is not a sustainable strategy. Believing that the perfect law is somewhere ‘out there’ ready-made and good to go for any type of country is misleading. Laws, in most cases, must be ‘tailor-made’ and context specific. At the same time, the criticism tends to overemphasise the concepts of ownership and participation. Just as we should stay clear of the mantra that Western legal models hold universal application, we should be equally cautious towards the mantra that participation, local context and ownership mean everything; particularly, when these terms are used as broad catch-all terms with little conceptual clarity. It is unrealistic to claim that legal transplants should be avoided at all costs. Even when calculating with the difficulties of making legal transplants ‘stick’ the cost benefits are great. Besides, it is quite natural to look at ‘successful’ examples and we do this all the time in other areas: in business, sports, and

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popular culture (see Ohnesorge, 2008: 221). Thus, when invited to support the establishment of a more reliable and safer regulatory regime for creditors in a particular country, donor organisations should look for benchmarks and best practices in other countries where the same type of problem has been successfully addressed. Another option is to look at international norms, standards and ‘model legislation’. Criminal justice, for example, is one area where the UN has developed a vast array of standards and basic principles available to domestic legislators (United Nations, 1985). Another area is anticorruption legislation, in particularly regarding anticorruption commissions where the Hong Kong Commission has stood as a model for reform in a number of countries in terms of competences, structure and jurisdiction. Furthermore, we should not forget that transplanting does not always follow the developed-developing route of transfer. The Organization for Harmonization in Africa of Business Laws (OHADA) provides an evocative case in point (see Dickerson, 2005). The organisation includes sixteen African countries and has an objective to attract investment, particularly foreign investment, through the means of a standardised legal framework. OHADA consists of a minority of countries with a common law background and a majority with their base in the French legal system. This aspect alone provides interesting intersections between different legal cultures in the adoption of uniform laws. Uniform acts within OHADA cover business organisations from establishment to dissolution, arbitration, and execution of judgements. In war-torn societies in particular the need for benchmarks is heightened. The existing legal framework is often subject to controversy, which makes it difficult to reach consensual agreement on its applicability, and there is pressure to act swiftly so as not to lose the ‘window of opportunity’ provided by a peace settlement. The trend in development assistance, including rule of law promotion, nowadays emphasises the need for local context, stakeholder input and ownership. This is clearly illustrated by the UN approach in Afghanistan where the international presence was to leave a ‘light footprint’ (UNSG, 2002). Stromseth, Brooks and Wippman (2006: 195) argue along the lines of the light footprint approach. The authors claim that law cannot be imposed ‘on high’, and that law is ‘gelled’ culture that reflects cultural and social realities. Any reform of the legal framework must therefore concede to the fact that it has to reflect the shared values and priorities of society. This is not an easy task to accomplish in developed countries, not to mention situations like Somalia or Afghanistan. A first question is ‘whose culture’ and ‘what shared values’? Not only are war-torn societies typically fragmented socially, economically, and culturally; they also house legal plurality in the form of traditional, religious and other types of dispute resolution systems. Among the typical measures needed in post-conflict societies are a constitutional framework, new criminal laws, laws on citizenship, land rights and

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measures against corruption and ‘bad’ economic governance.3 At the same time, local capacity is weak which provides an impetus for international agencies to take a lead in the reform process. While intentions are good, local ownership is temporarily sacrificed. There is also a tendency in rule of law promotion to seek out and expect the highest of standards in war to peace transitions. This is in striking contrast to how legal change occurred in Western Europe and also in contrast to the absorptive capacity in these societies to actually own, influence and participate in the formulation of a domestic legal agenda. A notion of not seeking to reform too much is beginning to seep into the best practices of the community of development organisations, primarily those agencies preoccupied with governance and capacity building reform after conflict. The UK Department for International Development ([DfID] 2005: 20) talks of a ‘good enough governance’ approach. The World Bank (2003) and the Organisation for Economic Co-operation and Development ([OECD] 2005) have made similar claims. The main argument is that international assistance should focus on enhancing the capacity of the state and promote accountability while avoiding areas that are too complex and too resource demanding. Rule of law reform, however, seems remarkably resilient towards such claims. The imposition of a moral order, which characterises many rule of law programmes, makes for good policy documents but bad diplomacy on the ground. As eloquently argued by Nader (2007: 3), rule of law reform is based on a perception of ‘lack’ and ‘legal orientalism’. War-torn societies, it is assumed by donors, can trace their crisis to a lack of certain legal institutions, rules or even cultural traits. This also makes the rule of law enterprise more categorical in its approach and reinforces a ‘normative blindness’ on behalf of international actors: they are not able to grasp that what they observe is a social construct and not a given. There is little doubt or humility in this headon approach of rule of law promotion. Experiences from Somalia and Kosovo point to the fact that the legitimacy of a law is not always tied to its efficiency or compliance with international standards, but instead that the process of transplanting law carries significant weight for its reception. In both countries the UN attempted to address an apparent lacuna in criminal justice by stating that the previous law in force would apply. In Somalia, the northern communities saw the criminal codes that the UN proposed as tainted by the regime of Siad Barre and resisted the restatement.4 They proposed instead the criminal law that was in force until 1969. Similarly in Kosovo, the UN administrator declared in a regulation that the applicable law would be the law in force at the time of the establishment of the UN mission. This was met with opposition from the legal community in

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Kosovo who favoured the legal framework during the socialist period until Milosevic’s takeover in 1989. In both situations, in particular in Kosovo, the rejected law was more technically advanced and covered a broader array of criminal charges, for example in relation to narcotics (Hethy, 2002: 65 and Ombudsperson Institution in Kosovo 2004: 8). This was not a determining factor, however, when it came to gaining legitimacy for legal change.5 Instead the determining factors here were the perception of legitimacy of a law as untainted by the previous regime as well as how the process of legal change took place. 1.

From Hunches to Evidence-based Programmes

The call for adhering to the local context requires a law-making methodology that presupposes high levels of capacity and resources in order to make a proper analysis of the problems, an evaluation of the implementation of older laws, and an explanation on deficiencies in order to elaborate on alternatives. This is a luxury most post-conflict societies cannot afford. It is not an easy task even when the international community assumes a law-making capacity as it did in Kosovo and East Timor. Several reports from these missions tell of misguided legislative attempts. In Kosovo, despite three years of work on a new provisional criminal code and a provisional criminal code of procedure that entered into force in April 2004, the law still failed to include several crucial aspects that were included in the obsolete Yugoslav law (Ombudsperson Institution, 2004: 10). Any type of legal reform must be based on knowledge of the problems at hand, threats and possibilities, resources and constraints. While the tools for baseline studies and needs assessments have improved, they are still crude and overly reliant on quantifiable data. The World Bank’s ‘Worldwide Legal and Judicial Indicators’ and the ‘Legal and Judicial Sector Assessment Manual’ are attempts to address the knowledge deficit. Other examples are the American Bar Association’s ‘Judicial Reform Index’ and the Office of the High Commissioner’s ‘Post-conflict Rule of Law Tools’, which include a programme for mapping the justice sector. Determining lawyer ‘density’ or concluding that judicial independence is constitutionally guaranteed, however, says very little about what the level of access to justice really is, or whether judicial independence is compromised through budget allocation or corruption. The tools for knowledge accumulation do not tell us if the law is nothing more than law on the books. Considering that as much as 80–90 per cent of justice delivery in many parts of Africa takes place through informal or traditional dispute resolution systems, it is questionable how important knowledge of the ‘formal’ structures of the justice system is (see Chirayath, 2005: 3).

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What are the alternatives to empirical assessments? Qualitative assessments, e.g. through interviews and consultative meetings, is one alternative, although a painstakingly slow, cumbersome and expensive method. Qualitative data is also subject to a high degree of misunderstandings and errors. It is difficult to assess the reliability of information, or on what grounds people are participating or being selected to participate in consultative meetings. Irrespective of how well empirical and qualitative studies are used we can not escape the need for benchmarks and best practices. Models for legal reform can and should draw inspiration from trial-and-error experiences. It is precisely this situation, however, that warrants juridical humbleness in order to avoid normative blindness. Since international actors find themselves in an enforcement position, coupled with wide discretionary powers, how legal transplants are used and promoted becomes crucial for understanding their success and legitimacy. 2.

Substance over Procedure and Form

There is a tendency to focus too much on substance in rule of law reform. This is most clearly observed in the effort to transfer ‘good’ or morally ‘just’ laws involving civil and political rights, criminal law, and women’s human rights. Much less effort is made to strengthen the processes and procedures by which laws are drafted, enacted and implemented, or to ensure that internal requirements to the rule of law such as hierarchy of norms, internal coherence, and effective means to solve disputes arising from a conflict of laws are established. Kosovo provides a good example of substance-influenced law reform. While UNMIK and the Kosovo Assembly have been active in legislative initiatives, secondary legislation needed in order to make the law applicable lags behind. This is due to a number of factors. One is the lack of definition and hierarchy of normative acts. In the early years of the UN administration the drafted laws often reflected, in style and form, the legal background of the international expert responsible for writing them. This further constrained the need for consistency and harmonisation within the system. A similar situation is found in Afghanistan where, despite a concerted effort on rule of law reform, there is considerable confusion as to the hierarchy of norms, the status of state agencies and the legal framework governing the day-to-day activities of the state. It is worth noting that changing procedure and form is perhaps more difficult than changing substance. According to Markovits (2004: 110), this is because procedure represents an attitude or mentality of ‘we’ve always done like this’ which is intimately linked with unspoken conditions and reflexes.

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Procedure is based on repetition and practice and changes in procedure intrudes on how government agencies work. From the supreme courts judges to the local municipal administrative officers, a reform set on altering a pattern of behaviour that requires their compliance is likely to meet resistance. The rule of law assistance provided by international actors is therefore, at times, off the mark, considering the ambitions in state-building operations. Technical assistance is modelled on a skewed interpretation of what international actors can and are willing to provide, and the focus on value-laden criminal justice reform is often a donor choice. As the Council on Human Rights Policy (2000: 87) noted in its report ‘Local Perspectives: External Assistance to the Justice Sector’, international agencies were seen as following ‘trends’ or ‘fads’ rather than basing the assistance on actual problems. 3.

Regulatory Capacity

Recent studies from post-conflict societies show that there is a growing need to focus on rule of law in a broader sense, including administrative law, integrity systems and codes of conduct for civil servants and other public officials, in addition to the overall system for accountability in economic governance. As the International Crisis Group (1999: 18) reported from the process of legal and judicial reform in Bosnia and Herzegovina, international actors emphasised the strengthening of the judiciary while failing to address human rights violations and discriminations in the administrative framework. Effective governance and the exercise of power is in a majority of cases implemented by civil servants and public officials outside the justice sector. There may be ways of ensuring the management of day-to-day activities, such as official registration systems and documentation of land, property and business licences, monitoring environmental protection, central banking and fiscal and tax collection systems, without involving public administration and civil servants. So far, however, no system is even close (Seidman, 1987: 85). Given its predominant influence in the daily activities of the state, and given the numerous ways in which the system of public administration interacts with citizens, ensuring rule of law in the exercise of governance power is a crucial task in a post-conflict transition. There is a general need to focus attention to central government and regulatory agencies after conflict since they often perform key tasks vital for the recovery process. Kosovo is one example where the regulatory agencies such as the Central Banking Authority of Kosovo, Energy Regulatory Office, Independent Commission on Mines and Minerals and the Water and Waste Regulatory Office oversee and regulate issues crucial for reconstruction. Ensuring rule of law in relation to these regulatory agencies is important in order to safeguard against corruption and discriminatory practice. The UN

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expert group on public administration (1995: 4) argued in an early report from 1995 that restoring public administration should be an integral part of peace operations because the existence of effective administrative machinery functions as the nexus of all governmental activities, including its political, social and economic elements.

VI.

CONCLUDING REMARKS

One of the major problems with rule of law is not the transplanting or drafting process, but that once transplanted, laws continually fail to be implemented. War-torn societies pose particular challenges to the method of legal transplant. Not only is the process of legal transplants constrained by the fact that war to peace transitions typically share very few similarities with the countries where a legal model is taken from (or to the high standards found in international legal regimes); they are also ill-equipped to handle and constructively manage complex law reform because of a weak governing capacity. Despite these challenges there is a clear-cut role for legal transplants in war to peace transitions, in particular the use of internal transplants since it satisfies the filling of a legal lacuna. Law is a crucial tool in a reconstruction or state-building process since it delineates the future roles and responsibilities of a state, and between a state and its citizens. It has been argued in this chapter that the methods for transplanting laws need to change if they will have a greater likelihood of moving from the drafting table to practical implementation. The use of internal transplants, for example, should avoid the general vetting criteria that are currently in use and devote more time and resources to ensure a smooth transition between legal regimes. More care should also be given to the process of reception of a legal transplant whereby local actors can actively take part in a law reform process. Local actors need to be part of a transplant process so as to provide assistance with needs-based knowledge rather than a reliance on pre-determined models. Furthermore, substance should not trump form. Laws that hold some moral value, such as human rights, are not self-executing rules. They, like any other type of legislation, are in need of an institutional support structure and subsidiary legislation. The expectation of the highest standards in a postconflict settlement may also be potentially dangerous to stability since it challenges the absorptive capacity of national authorities. Here the example of good enough governance could provide guidance with its caution towards reforming the most demanding and controversial areas. Finally, the preoccupation with exporting ‘good’ law tends to overshadow laws aimed at strengthening and improving regulatory capacity and quality. There is a need for a focus on the formal and procedural aspects of rule of law, particularly in rela-

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tion to administrative law and economic governance. While this might be one of the more difficult areas to reform, it only serves to underscore the importance of juridical humility and of acknowledging the importance of a wellbalanced process that uses transplants in a balanced way that supports national capacity to participate and eventually manages law reform efforts.

NOTES 1. 2.

Particularly heated has been the debate between Watson (1993) and Legrand (2001). The UN Office on Drugs and Crime (UNODC) offers a number of model laws covering both civil, common law and Islamic law jurisdiction that translates governments responsibilities under the drugs conventions: Model Law on the Classification of Narcotic Drugs, Psychotropic Substances and Precursors and on the regulation of the Licit Trade of Drugs; Model Law on Drug Trafficking and Related Offences; and Model Foreign Evidence Bill, available at www.unodc.org, accessed 10 July 2009). 3. A brief glance at some of the recently concluded peace agreements provides the ‘local’ imperative for legal, judicial and administrative reform after conflict. See e.g. the peace agreements for Burundi, or Ivory Coast, which reads like a long must-do list of administrative law reforms. 4. The legal creativity of the UN had some problematic results. The report of the Commission established by the Security Council to investigate the attacks against UN troops in Somalia noted that ‘the promulgation of the Somali Penal Code of 1962 . . . was capable of being interpreted by [General Mohamed Farah Aideed’s faction] as an overstepping of the UNOSOM II mandate’ (United Nations, 1994). 5. The resistance finally led the UN administrator to declare in regulation (1999/24) the applicable law to be the law in force as of 22 March 1989.

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Council on Human Rights Policy (2000), Local Perspectives: External Assistance to the Justice Sector. Summary of Findings, Bellegarde/Valserie: Imprimerie SADAC. DeLisle, J. (1999), ‘Lex Americana?: United States Legal Assistance, American Models, and Legal Change in the Post-Communist World and Beyond’, University of Pennsylvania Journal of International Economic Law, 20, 179–308. Department for International Development ([DfID] 2005), ‘Why we need to work more effectively in fragile states’ (January 2005). Dickerson, C.M. (2005), ‘Harmonizing Business Laws in Africa: OHADA Calls the Future’, Columbia Journal of Transnational Law, 44 (1), 17–73. Friedman, L. (2001), ‘Some Comments on Cotterrell and Legal Transplants’, 93–99, in D. Nelken and J. Feest (eds.) Adapting Legal Cultures, Oxford: Hart Publishing. Gardner, James A. (1980), Legal Imperialism: American Lawyers and Foreign Aid in Latin America, Madison: University of Wisconsin Press. Gillespie, John (2006), Transplanting Commercial Law Reform: Developing a ‘Rule of Law’ in Vietnam, Aldershot and Burlington: Ashgate. Hethy L. (2002), ‘Labour Law for Kosovo’, South-East Europe Review for Labour and Social Affairs, 3. International Crisis Group (1999), ‘Public Administration and the Rule of Law in Bosnia and Herzegovina’, Europe Report, 84. Kahn-Freund, O. (1974), ‘On Use and Misuse of Comparative Law’, Modern Law Review, 37, 1–27. Kassinger, T. and D. Williams (2005), ‘Commercial Law Reform Issues in the Reconstruction of Iraq’, Georgia Journal of International and Comparative Law, 33 (1), 217–228. Lau M. (2006), ‘Afghanistan’s Legal System and Its Compatibility with International Human Rights Standards’, International Commission of Jurists. Legrand, Pierre (2005), ‘What “Legal Transplants”?’, 55–70, in Nelken, David and Feest (eds.) (2001), Adapting Legal Cultures, Oxford: Hart Publishing. Markovits, I. (2004), ‘Exporting Law Reform – But Will it Travel?’, Cornell International Law Journal, 37, 95–114. Mattei, U. (1997), ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’, American Journal of Comparative Law, 45, 5–44. Miller, J. (2003), ‘A Typology of Legal Transplants: Using Sociology, Legal History, and Argentine Examples to Explain the Transplant Process’, American Journal of Comparative Law, 51, 839–886. Nader, L. (2007), ‘Promise of Plunder? A Past and Future Look at Law and Development’, 87–113, in World Bank, World Bank Legal Review: Law and Justice for Development, Vol. 2 (2006). O’Connor, V. (2006), ‘Traversing the Rocky Road of Law Reform in Conflict and Post Conflict States: Model Codes for Post Conflict Criminal Justice as a Tool of Assistance’, Criminal Law Forum, 16, 231–255. Ohnesorge, J.K.M. (2008), ‘Developing Development Theory: Law and Development and the Northeast Asia Experience’, University of Pennsylvania Journal of International Economic Law, 28, 219–308. Ombudsperson Institution in Kosovo (2004), ‘Fourth Annual Report 1 July 2003 to 30 June 2004’. Organisation for Economic Co-operation and Development ([OECD] 2005), ‘Principles for Good International Engagement in Fragile States’, OECD-DAC Draft Paper, DCD 8/Rev2.

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Organisations for Security and Cooperation in Europe (2007), Guide on Municipal Statutes’ OSCE and the Ministry of Local Governance Administration. Örücü, E. (2002), ‘Law as Transposition’, International Law & Comparative Law Quarterly, 51 (2), 205–224. Perito, R. M. (2005), ‘The Coalition Provisional Authority’s Experience with Public Security in Iraq, Lessons Identified’, USIP Special Report No. 137. Public International Law & Policy Group (2007), Post-Conflict Constitution Drafter’s Handbook. Seidman, R. (1987), ‘Drafting for the Rule of Law: Maintaining Legitimacy in Developing Countries’, Yale International Law, 12, 84–120. Seita, Y.A. (1997), ‘Globalization and the Convergence of Values’ Cornell International Law Journal, 30, 429–492. Sikkink, K.A. (2005), ‘Transnational Advocacy Networks and the Social Construction of Legal Rules’, 37–68, in Y. Dezalay and B. G. Garth (eds.), Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy, Ann Arbor: Michigan University Press. Strohmeyer, H (2001), ‘Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor’, American Journal of International Law, 95, 46–63. Stromseth, J.D. Wippman, and R. Brooks (2006), Can Might Make Rights? Building the Rule of Law After Military Interventions, Cambridge: University Press. Support for Improvement in Government and Management in Central and Eastern Europe ([SIGMA] 1996), ‘Civil Service Legislation Content Checklist’, SIGMA Papers 5. Support for Improvement in Government and Management in Central and Eastern Europe, ([SIGMA] 1997), ‘Civil Service Legislation: Checklist on Secondary Legislation (and other regulatory instruments), SIGMA Papers 14. Tamanaha, B.Z. (1995), ‘The Lessons of Law-and-Development Studies’, American Journal of International Law, 89, 470–486. Teitel, R.G. (2006), Transitional Justice, Oxford/New York: Oxford University Press. Teubner, G. (1998), ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’, Modern Law Review, 61, 11–32. Trubek, D.M. and Alvaro Santos (2006) (eds.), The New Law and Development: A Critical Appraisal, Cambridge: Cambridge University Press. Watson, Alan (1993), Legal Transplants: An Approach to Comparative Law, Athens: University of Georgia Press. World Bank (2003), ‘Low-Income Countries Under Stress: Implementation Overview’ SecM2003-0506. World Bank (1996), ‘World Development Report 1996: From Plan to Market’, Washington DC: World Bank. United Nations (2005), ‘Making Standards Work: fifty years of standard-setting in crime prevention and criminal justice’, Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, 18–25 April 2005, UN Doc., A/Conf.203/8 (1 April 2005). United Nations Mission in Kosovo [UNMIK], Regulation 1999/1, 25 July 1999. United Nations Mission in Kosovo [UNMIK], Regulation 1999/24, 12 December 1999. United Nations (1994), ‘Report of the Commission of Inquiry Established Pursuant to Security Council Resolution 885 (1993) to Investigate Armed Attacks on UNOSOM II Personnel Which led to Casualties Among Them’, UN Doc. S/1994/653 (1 June 1994). United Nations (2002), Report of the Secretary-General, ‘The situation in Afghanistan

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and its implications for international peace and security’, UN Doc. A/56/875 – S/2002/278 (2002). United Nations ([UNSG] 2004a), Report of the Secretary-General, ‘Third Special Report of the UNSG on the United Nations Organization Mission in the Democratic Republic of the Congo’, UN Doc S/2004/650 (16 August 2004). United Nations ([UNSG] 2004b), Report of the Secretary-General, ‘Rule of law and transitional justice in conflict and post-conflict societies’, UN Doc. S/2004/616 (23 August 2004). United Nations ([UNSG] 2004c), Report of the Secretary-General, ‘Fifth Progress Report on the United Nations Mission in Liberia’, UN Doc. S/2004/972 (17 December 2004). United Nations ([UNSG] 2005), Report of the Secretary-General, ‘Seventh progress report of the Secretary-General on the United Nations Mission in Liberia’, UN Doc. S/2005/291 (16 June 2005). United Nations Transitional Administration in East Timor (UNTAET, 1999), Regulation 1999/1, 27 November 1999. United Nations, Treaty Event during United Nations Summit Receives Record Number of Treaty Actions (Press Release), 22 September 2005. United Nations (1985), ‘Basic Principles on the Independence of the Judiciary’ Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. United Nations Human Rights Council, Report of the independent expert on technical cooperation and advisory services in Liberia, UN Doc. A/HRC/4/6, 28 February 2007. United Nations Programme in Public Administration and Finance (1995), ‘Restoring and restructuring governmental administrative machinery in post-conflict peacebuilding’, Twelfth Meeting of Experts on the United Nations Programme in Public Administration and Finance, UN Doc. ST/SG/SC.6/1995/L. 10/Add. 1 (31 July–11 August 1995). United States Agency for International Development (2000), ‘USAID Handbook on Legislative Strengthening’ Technical Publication Series, 20523-31000. United States General Accounting Office ([GAO] 2001), ‘U.S. Rule of Law Assistance Has Had Limited Impact and Sustainability’, GAO-01-740.

PART II

Comparative constitutional law

6. Ontological and epistemological complexity in comparative constitutional law Otto Pfersmann To state that law is complex seems not to make a very contentious claim. But, what does the claim mean? According to Niklas Luhmann’s famous thesis, law has as one of its main functions to reduce complexity by stabilising expectations.1 Luhmann (1987: 6) defines complexity as ‘the totality of possibilities of experience and action the actualisation of which a context of meaning admits of’. He distinguishes an unstructured, amorphous, from a structured mode ‘to the extent to which possibilities exclude or limit each other’. Law especially through positivity and variability (Luhmann, 1987: 210) can thus, according to him, increase both complexity and ‘possibilities for a meaningful selection’. Thus, though highlighting the ambiguous nature of law, this account remains fundamentally optimistic. To this view, I shall oppose a slightly different concept of complexity (I) which I shall try to apply to the domain of comparative and more specifically of comparative constitutional law. This discipline may contribute to reduce complexity and hence to resolve problems (III). It may often add artificial complexity. It does so through conceptual confusion (II) and misrepresentations of its object (IV).

I. COMPLEXITY AND THE PRINCIPLE OF AMPHIBOLOGY Law can equally reduce and increase complexity and it can do this both at the ontological and at the epistemological level. However, the concept of ‘complexity’ has to be reformulated in a different way. First, the concept introduced by Luhmann is misleading. Instead of indicating an objective or subjective situation in which one has to deal with a highly important amount of intertwined data, it suggests simplification and limitation. It refers to the idea of quantity of possibilities in a choice for action, 81

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the idea being that complexity is proportional to the number of alternatives. But, there may be millions of conceivable choices and only a few which are rationally plausible. Further, the idea of ‘structure’ evokes a simplification of a problem of choice. A structured field of alternatives is ordered by superior considerations and seems rather in opposition to the intuitive conception of complexity referring rather to a situation in which one tries precisely to introduce a structure in order to make a ‘rational’ choice. If it already structures reality, then complexity is less complex than brute reality. If reality itself is highly complex, normative requirements select certain modes of authorised, prohibited or obligatory action and reduce complexity as far as it normatively limits action. And undoubtedly, it may seem at first glance that a world in which one can rely to a certain extent, under certain circumstances, on patterns of behaviour as well as on the fact that certain situations can be apprehended through rules guiding human behaviour, is much less complex than one in which just everything physically possible may contingently happen. Law provides for the expectation of regularity (at least, again, to a certain extent) which brute facts cannot regularly offer. But, this account simply excludes that there may be a difficulty in making a choice, in other words that the selection of an appropriate action may itself pose a problem. Indeed, both intuitively and in the mathematical theory of complexity, the concept is defined in terms of the quantity of steps required to solve a given problem, where the problem may present several layers, thus adding several layers or parameters of complexity so considered. Second, Luhmann hints at the possibility of multiple-level constructions with compensatory higher-order difficulties, but does not develop the concept. The picture supposes that the artificial world of normative standards which law introduces on the whole is at least less complex than a world in which there would be no such artificial normative standards. But, whether this is truly the case or not remains entirely an open question and a difficult one to decide. It is obviously very easy to think of sets of artificial normative standards which are themselves complex, if not highly complex or even hypercomplex: in order to solve a certain problem, one may introduce a certain mechanism which may itself become highly difficult to handle, calling for a higher order mechanism and so forth. Third, it may even be and it often happens that this evolution is irreversible because a return to the previous situation is not possible: the return causes problems which can be handled only at the higher level and becomes an illusion. Fourth, law cannot be handled without legal knowledge or scholarship. The more norms there are, the more a society will need persons able to grasp them and to provide for adequate information when untrained knowledge appears insufficient and this stage is rapidly reached. But, this necessarily adds a new

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level of complexity: in order to know whether there are real experts we need experts of expertise and so forth. Indeed, pretended legal experts may be bad legal scholars. To have accurate expertise concerning the worlds of artificial normative standards needs training and selection, and this requires expertise about what distinguishes real expertise from simply alleged expertise. Thus, law as well as legal knowledge is fundamentally amphibological. On one side, it may provide usable expertise, inducing a habit of developing, maintaining and transferring valid knowledge, contributing, that is, to a significant reduction of complexity. On the other side, it may be a factor of amplification of complexity when either used without accuracy or when accurately used to show that a legal problem needs much more to be solved than would have been thought of without such an inquiry. Let us call this the principle of amphibology. With these premises in mind, one can show that comparative law, understood in a certain way, can serve to reduce complexity as it may be used to produce artificial or spurious complexity. Up to this point, we assumed to know, more or less, what the legal order is about, what legal doctrine is about, i.e. the analysis of the legal order. Does comparative law, and more specifically comparative constitutional law fit into the picture and does it share the amphibology of legal knowledge? In the following sections, I shall try to show that it is indeed one of the most powerful instruments of legal expertise and one of the mightiest instruments of legal confusion.

II.

CONCEPTUAL PERPLEXITY

There is perhaps only one subject in which there is more confusion than within the eternal debate ‘what is law?’ and this is the use of the expression ‘comparative law’. It is the name of a concept, but it can equally be the name of many concepts. If one uses, though, one concept-name without specification, one normally means to say that the object to which the name refers is one and only one, such that, trivially, one can substitute in any occasion in which one uses the name an equivalent expression without loss of meaning. What is true of X meaning object O is true of Y meaning object O, salva veritate. It may be that the object was a set of different objects, but it would be a misleading use of the concept-name if it would refer without any specification in one case to one object and in another case to a different object of the set. For obviously if that were the case, the condition of synonymy would not be maintained. Up to now, we have been speaking about comparative law, assuming there is one such thing and when we want to speak of one of its specific areas, then

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we do this by adding a specification, like comparative constitutional law or comparative contract law, or comparative intellectual property. In fact it is easy to see that this assumption is false. The name ‘comparative law’ covers at least five sometimes entirely different, i.e. mutually exclusive, sometimes overlapping activities: • a political reflection on what the law ought to be2 or not to be3 in respect to the experience of different legal systems; • an exercise in justification of law making, judicial or parliamentary by drawing on what has happened somewhere else; • an anthropological study into the ways in which different people and countries experience different forms of socially organised normativity;4 • a reflection into the nature of what is ‘different’;5 • a study of a foreign legal system or set of legal systems;6 • an investigation into various legal systems under specific headings and aspects. The difference cannot be more salient. Whether one wants to know what happens somewhere else in a world which is not directly and usually one’s own, is absolutely not the same as considering simultaneously different worlds from the outside, independently of whether one of them may be his or her own legal world. It is, again, a completely different activity to reflect on what would be a good or the best solution for a particular case or a particular piece of legislation inspiring oneself from what happens or has happened elsewhere or just to analyse what legally happens in different places or to think of the way in which different people experience normativity. The identification of these different activities with the one and only unspecified comparative law may result from inadvertency or there may of course be an explicit belief that what is different is in fact one and the same. If someone is convinced that these different things are in fact the same thing, my whole argument is trivially although weakly defeated. I can even admit that the question whether science and politics is the same or not or whether it is at all possible to have any objective knowledge,7 let alone objective knowledge in legal matters,8 may be a highly disputable question of its own which it would be difficult to discuss in some length here. For the sake of argument, I can only state that I take the view that there is indeed a difference between is and ought, between politics and science and between the analysis of a foreign system and the analysis of several systems (whether foreign or not) simultaneously.9 ‘Comparative law’ is thus a polysemic expression. It needs specification when used, and a proposition which might be true concerning one of the five different objects may be false concerning another of these objects. Using the

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name without discrimination in order to state that X has property p, where p is a property of Y and X is different from Y, needs a separate proof, otherwise it amounts thus to what may be termed an onomastic fallacy. Examples of the fallacy can be provided by the particularly pleasing reading of comparative law journals, where one can most easily find as a commonplace that comparative law is a legal order – because the expression ‘comparative law’ presents prosodic similarity with ‘Swedish law’ or ‘American law’. One can currently read that judges resort to ‘comparative law’,10 when they look elsewhere for justification or inspiration or repulsion or that the presentation of the German conception of liberty of expression in France is ‘comparative law’ or that the idea that market economies and the rule of law should exist everywhere and implemented by perfectly impartial judges is ‘comparative law’.11 If comparative law is taken to be a scholarly discipline, then the onomastic fallacy leads from the outset to artificial complexity by conceptual perplexity. I thus propose to retain for the sake of argument only the analytic expertise of a plurality of legal systems as defining what I shall henceforth call ‘comparative law’ here.12 It is thus a scientific discipline aiming at objective knowledge; its subject matter is a set of different legal orders, relevant with respect to the ambit of inquiry.13 Within comparative law so considered, we can single out various subdomains, among which is ‘comparative constitutional law’ for which we then have to provide a precise definition. Again for the sake of argument, I propose to consider only norms of norm-production as the ambit of ‘constitutional law’. That is, comparative constitutional law is primarily concerned with legal dynamics or legal standards of legal change.14 As far as the modification of law is a legal phenomenon and not simply the political substitution of one system by another with discontinuity, change is disciplined by legal norms, framing which changes are admissible without discontinuity. Further, it has to do with legal concretisation, that is with the legally organised ways of particularisation or, again in other words, with what is sometimes metaphorically called the determination of a legal hierarchy.15 As legal orders are by definition dynamic in the sense that change and particularisation are legally organised, a static view can only be the synchronic analysis of different dynamics framing different systems. As legal systems are dynamic, legal scholarship may be concerned with different levels of concretisation. At higher layers of abstraction and generality, it aims at a systematic presentation of structures, i.e. sets of norms defining a specific complex of legally co-ordinated action (judicial review, legislation, freedom of religion, independence of the judiciary are examples of legal structures in constitutional law); at the most concrete level, it establishes the array of possible solutions to determined questions, i.e. (if p happens, what

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is obligatory, prohibited or authorised according to legal order O1?). Noncomparative law (i.e. ‘internal law’) restricts its ambit of investigation to only ‘one’ legal order. Except for the fact that such a discipline concentrates on a more tiny domain of inquiry (which does of course not dispense it from the same effort in conceptual and argumentative precision as well as objectivity), the only difference consists in its increased, yet not exclusive, interest in concrete cases, whereas the comparative perspective operates rather at a higher, yet again not exclusive, level of abstraction. It is thus less directly concerned with the solution of problems related to individual cases; its impact on such solutions resides in its capacity to better identify the elements of the relevant legal structures through precise conceptual analysis. Epistemologically, comparative law is thus an attempt to reduce complexity by singling out legal structures and their variants in different legal orders. There is hence a distinction between legal disciplines directly concerned with concrete cases (for which they cannot, generally, provide one concrete solutions, but an array of admissible solutions) and legal disciplines having an indirect bearing on concrete cases through the analysis of the structures in which the cases may emerge.

III.

ONTOLOGICAL COMPLEXITY

The complexity of a legal system can be defined as the quantity of problems to be solved in order to understand and to apply its provisions. Application of legal provisions is the production of norms by particularisation – or concretisation. Complexity is thus an element of the dynamic structure of legal systems, i.e. of the way in which the legal order regulates its own production and destruction. Regulating its own ontology, the legal system regulates its own complexity. Legal systems are complex in various ways and to different degrees. Complexity can thus be a matter of inquiry for the legal scholar; in other words comparative law includes comparative legal complexity. Legal scholarship is the discipline which provides systematic knowledge of legal data, i.e. about the solutions to legal problems. It fails if it is not able to provide understanding and solution (and a solution most often consists in the proposition that there are several, say n, legally admissible solutions). This may be due either to the fact that its methods are not adequate or to the fact that the problem in question has no solution. Many forms of legal complexity are due to the legal translation of political requirements. Democracy, fundamental rights, the distribution of competencies among different organs, the independence of the judiciary and constitutional review add legal problems which would not exist in arbitrary dictatorship. At the same time, constitutional democracy introduces specific

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exigencies of rationality in order to facilitate the solution of legal problems. The rule of law asks for precise legal forms established in advance, the accessibility of legal contents, the foreseeable character of decisions (within a certain frame) or principle of legal security and legitimate expectations. These are techniques aiming at rationalising legal enactments and at reducing certain kinds of legal problems. Of course, the rule of law is itself a substantive requirement in a constitutional democracy, but it works structurally as an imperative aiming at downgrading as much as possible the complicating effects of other substantive principles of contemporary constitutionalism.16 Let us call such exigencies ‘structural principles of intra-legal rationality’.17 For comparative legal complexity the problem then becomes the following: how does the distribution between substantive constitutional exigencies and structural principles of intra-legal rationality increase or decrease the burden of legal problem-solving? The assessment is seldom linear. Principles of intralegal rationality require the mastery of formal techniques and reduce decision problems to the determination of the array of admissible solutions; substantive requirements reduce the burden of formal reasoning by increasing indeterminacy. If, however, formal determinacy is itself a substantive principle, the solution of a legal problem needs the reconstruction of an ontology which has previously been de-formalised. A few examples will illustrate this hypothesis: semantic indeterminacy, integration, unbound norms, undetermined transitions, conflicting requirements. • The most common example is indeterminacy: law allows for different solutions for one given hypothesis without telling which of the possible solutions has to be chosen. The legal order does so however, not by telling explicitly: ‘when the conditions C1, C2, . . ., Cn apply, the empowered organ may do A1 or A2 or . . . or An’, but mainly by using polysemic wordings. The solution of such problems consists in determining the array of legally possible actions. While this may prove to be extremely difficult, it exhausts the legal issue, i.e. the question which of these actions ought to be chosen is not a legal problem. Requiring as a matter of legal scholarship that one ought to find an exclusively adequate solution is thus nothing but introducing artificial complexity.18 • Integration of several systems in one higher-order structure evidently generates complexity: where there was a given number N of relevant systems, there is now at least one new system empowered to produce certain norms affecting directly or indirectly at least certain areas of the integrated legal orders. Integration is legally organised through hierarchisation: the norms of one legal order prevail against the norms of another one or a set of norms belonging to other legal orders. But, prevalence may be organised in various ways. In a formal conception, conflicts have to be

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settled explicitly and the conflicting sub-valent norm has to be identified as such and expelled from the legal order through a specific legal act. In a material conception of prevalence, the prevalent norm will just be applied against all other conflicting norms, leaving their legal fate entirely unsettled. Such forms of integration – and it is the case in the European Union – lead to and operate with unbound norms. • Unbound norms: Particularly interesting is thus a kind of complexity modifying the relation between the data, which allows for the identification of legal norms on one side (i.e. certain linguistic entities formulating obligations, permissions or prohibitions) and the meaning of these very sentences on the other side. One of the main techniques of the modern rationalisation of law consisted in legally requiring that wherever there is a text having the legal status of a norm-formulation, the meaning of this text is the relevant norm and where there is no such thing, i.e. where there is no such text, there is no norm. But legal systems may very well resort to techniques leaving texts without norms and norms without text, both situations for which I propose the expression ‘unbound norms’. An already classical example is the so called ‘interpretation in conformity with the constitution’: if under a given constitution legislative (statutory) provisions in contradiction with its requirements are deemed unconstitutional and if a competent court facing to quash these provisions decides instead not to annul them, but to state that they remain valid with a certain meaning and non valid with a different one, there may be texts without norms. Again, if the court considers that the relevant provisions mean something else than what they actually mean, there are norms without text.19 A second example is primacy of directly efficient norms in European law: without changing anything in the internal appearance of the legal system of a member state, norms in contradiction with European norms endowed with this effect are inapplicable, i.e. with respect to the European requirement, they are simply texts without normative effect – which they might recover in other instances. A third example is norm-making by judicial reasoning: if a judicial decision is not only settling a case, but legally considered to constitute a precedent, the reasons developed in order to justify the decision are both elements of legal analysis and the formulation of a legally valid norm. Complexity here stems from the fact that the courts empowered to use this technique do not explicitly say: ‘Attention: this is now the formulation of the following norm: [. . .]’– which would make the legal element clearly identifiable in a formalised way. The unformalised emergence of norms from reasoning about norms makes such legal orders qualitatively highly complex, leaving legal scholarship with nearly insurmountable difficulties.

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• Undetermined transitions: Up to this point, complexity results from acts which are themselves, admittedly at least, legally organised, i.e. they happen in accordance with given legal prescriptions. Another species of ontological problems is the consequence of acts which are at the very limit of admissible legal change. Every developed legal order admits that certain norms may be validly enacted without entirely respecting all requirements of higher law. In such cases, those systems provide for the – usually judicial – correction of the deficient norm – usually through ‘review’, i.e. a procedure leading to the annulment of the challenged act. If, however, the organ in charge of reviewing deficient acts operates itself deficiently and if there are many such deficient judicial rulings at the highest level, it may become problematic whether the system remains in force or whether it has been replaced by a different one containing norms having those rulings as their legal basis. To take an all too famous example: the French Constitutional Council ‘ruled’ in 1971 that the Preamble of the Constitution of 1958 was part of this Constitution, whereas it had been drafted in such a way as to precisely exclude that the Preamble could be considered to be a normative part of it. As the Constitutional Council is not authorised to modify the Constitution, this would just be an act without legal validity. But since this decision, lawyers consider the French Constitution as encompassing the Preamble as one of its normative parts.20 Hence, one has to admit that there is indeed a new system with a different Constitution. Two problems follow. First, the Preamble has now to be read as if it would precisely state which norms are part of the formal Constitution, whereas the Preamble just states to which general principles of political ethics the French people considers itself to be committed. As the Preamble talks of ‘fundamental principles of the laws of the Republic’, this amounts to give retroactively constitutional value to ordinary statutes enacted by the ‘Republic’, but it does not say where exactly this principled level is to be found, which could then only be modified through a revision of the Constitution itself. Second, even though one may admit that the French Constitution was newly enacted by the Constitutional Council in 1971, it may appear questionable whether one has thus to further admit that the Constitutional Council could do the same thing at other occasions or whether it just changed the Constitution (adding the Preamble, that is) without changing the rules for changing the Constitution.21 The same problem may easily appear in other legal systems where there are ‘creative’ courts. A ‘creative court’ is a euphemism for a judicial organ which acts outside the boundaries of its competencies. And again, it is one thing to admit that in certain cases a decision which might not have been legal from the outset, might have become so by a transition to a new legal order, and it is

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another thing to state that the new system contains a competence for the courts to act as an organ of constitutional amendment without any textual basis.22 The link between text and norm can be distorted not only by splitting the normative content, but also by introducing conflicting requirements. If a case has to be resolved and the applicable norms are in conflict with each other, a solution can only be provided if there is another rule allowing identification of the norm which prevails in such cases or authorising a competent organ to select one and to disregard the others. Otherwise, there is no solution. In many cases, it is neither clear which of the two methods has been chosen, nor how, if we admit to be facing an application of the first method, it could possibly be applied to the case at hand. This happens especially when questions of fundamental rights are at stake. Instead of determining how to solve such conflicts, most recent rights catalogues increase the difficulty in multiplying rights, thus multiplying conflicts between them without guidance as to a possible solution.23 Even if these problems are difficult and even if legal scholars often prefer not to address them directly, they may in principle remain solvable. One can however devise a way to establish a case of impossibility. Contrary to the previous hypotheses, it would mean that ontological complexity defies the possibilities of cognitive i.e. epistemological determination of admissible solutions. If, for instance, a particular case may fall under the heading of different and incompatible requirements of fundamental rights and other substantive constitutional requirements, if the court has to take into account a tremendous amount of case law, i.e. of norms hidden in reasoning (i.e. in the justification of the decision, not the decision itself), and if there is a time limit to reach a decision (for instance one month in France, when an entire statute or international treaty is subject to a priori constitutional review), it may simply be cognitively impossible to achieve all relevant operations in the legally binding time, i.e. if only a dworkinian Hercules can resolve a case then the case cannot be resolved. Ontological hyper-complexity results in epistemological impossibility. The progressive lengthening of decisions of constitutional jurisdictions may be a symptom of such a development. And in turn, the longer the decisions, the more it shall become difficult to identify any precise idea of what, according to these courts, the constitution requires. This largely depends, of course, on whether, according to the constitution, the case law is part of the constitution and to what extent the case law itself is contained in the motivations of the decisions (‘justifications’, ‘opinions’, as the relevant legal order may dub these elements of judicial decisions) and not simply in the strictly normative part of the decision itself (i.e. the question is whether the non-normative part of the decision is in fact a normative part). This may be different in different legal orders as it may indeed be that reason-

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ing has an amphibological – explanatory and normative – function in certain systems (it would explain the value of ‘precedent’ in ‘common law’ systems), whereas it may, at least legally, be deprived of such normative force in other systems (this is usually considered to be the case in ‘civil law’ systems). Up to this point, we could consider that complexity depends on ontological issues, i.e. it hinges on the content of the legal order as to how a legal problem has to be solved. My claim so far is that comparative constitutional law has not devoted much effort to understand how the various constitutions organise the solution of legal problems. It concentrates, rather, on the description of decisions questionably inductively generalised to the level of ‘principles’. One can now briefly show that while the task of such scholarship may mainly consist in a contribution to the reduction of legal problems, it can in fact contribute to make legal systems more complex than they would be in the first place.

IV. ARTIFICIAL COMPLEXITY THROUGH SCHOLARSHIP Legal scholarship provides legal knowledge – if it is to be considered as any disciplinary knowledge at all – solves legal problems and systematises the lessons of such solutions. At least, one can conceive of its task in this way, if one adopts a scientific perspective, i.e. if one wants academic scholarship to be, as far as possible, objective, precise and systematic in order to provide relevant knowledge. Such a conception is of course premised, first, on the idea that legal orders consist of norms of a certain kind and that it is, second, possible to analyse and describe these norms objectively at least to a certain degree of accuracy, i.e. without confusing personal, subjective preferences with the preferences expressed by the norms to be analysed. If one accepts this for the sake of argument, it follows that comparative constitutional law as an academic discipline has mainly to deal with structural insights into how different legal orders organise certain common elements: if e.g. constitutional revision is the legal structure regulating the modification of the formal constitution, comparative constitutional law studies how such changes are organised in various legal systems. In doing so, it can considerably reduce epistemological complexity through conceptual clarification. If e.g. constitutional lawyers raise the issue whether there can be judicial review of constitutional amendments, comparative scholarship can show that the stratification of formal constitutional law is not something impossible or inconceivable, but has become quite common in various countries and that it would be an error to consider ‘constitutional law’ as of one homogenous bloc. If there are various procedures in order to produce ‘constitutional law’, then there are in fact various forms of ‘higher’ law and

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the question becomes one of how these forms are related to each other in terms of validity and prevalence. Conceptually, it would be more useful to differentiate these forms by giving them different names (and awaiting a more appropriate terminology ‘constitutional law of higher rank’ or ‘higher constitutionality’, whatever indicates that there are different legal forms and thus different legal relations between them). Entertaining the illusion of homogeneity creates confusion. The task of comparative constitutional law can hence only be fulfilled if it aims at clarification where legal systems create new complexity. Instead legal scholarship does often exactly the contrary by introducing and maintaining confusion. French constitutional scholarship for instance created the term ‘supraconstitutionnalité’,24 i.e. hyperconstitutionality which is a conceptual nonsense as it seems to imply that there is something above the formal constitution, whereas if there were something above the constitution, then this very thing would in fact be the real constitution and the ‘constitution’ would only be the name of something which would be under the true constitution – if, of course, by ‘constitution’ we understand the set of norms organising normativity in a legal order. In this and similar cases scholarship misrepresents the law or does not contribute to its better understanding. But, it could equally be that legal writing strategically gives a false representation of the legal system. A representation is strategic, if it aims at picturing the highest structuring elements of a legal order. The constitution being the highest structuring element, misrepresenting the constitution bears the most important consequences for the knowledge about the legal system. It is less important to know why someone could have a motive in giving a false picture of the constitution as to see that such motivations could be perfectly rational in order to advance certain interests. If, in democratic states at least, norm-making requires normally the consent of a majority empowered through elections, constitution-making requires an even higher degree of consensus through a qualified majority. If, however, the constitution is taken to be something else than what it objectively is, then neither a majoritarian nor a hyper-majoritarian decision procedure is needed to determine its content. Misrepresentations may result from error or cynic strategy; they can produce a confusion which affects not only the substance of legal scholarship, but the substance of law itself. Contrary to other disciplines, where there are procedures allowing to test theories against data, strategic legal scholarship may, as in our hypothesis, produce its own data, if only they are considered to be the true substance of the legal order.25 Comparative constitutional law may eventually provide an example. Its object is by definition a certain set of different legal (constitutional) orders. By hypothesis, what is valid in one of these orders is not in and off itself valid in another legal order. For if a given norm of order O1 were in and off itself valid in order O2, order O2 would have the legal competence to modify O1 and if

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this were the case, then O2 would in fact be included in O1, i.e. there would only be one and not at least two different legal orders. The only other possibility would be that according to a norm of O2, certain elements of O1 would have to be considered as being part of O2; but in this last case, the validity of elements of O1 in O2 would not appear in and off itself, but through a norm of O2, which again is against the hypothesis. However, against this very simple insight, a growing chorus of scholars claims to identify a ‘dialogue of judges’ through which judicial organs pertaining to different systems would accept, borrow, integrate, ‘solutions’ elaborated in another system in their own system. Certain authors do even consider that it would be some kind of duty to ‘take into account’ what other jurisdictions have done in the ‘same’ situation – drawing on some underlying ideology according to which law is now ‘globalised’, i.e. is in fact one single legal order.26 While it is of course absolutely not deniable that relevant consideration has to be taken into account for the solution of a legal problem, it remains highly questionable that there would be an obligation to ‘take into account’ (what exactly could this possibly mean in legal terms if not a duty?) a decision issued in a different system (except of course, trivially, if it is in fact the same system or if there is an authorisation to handle the case as best pleases to the court and hence to do what has been done elsewhere). Thus, in a way, the hypothesis of lawmaking by scholarship may even be a much simpler case, because if it were the case that the legal order was indeed produced by legal scholarship and that comparative law would be the kind of scholarship that participates in this production by ‘looking elsewhere’, then it would be clearly established that the lawmaking power is vested in legal scholarship – and not as one would perhaps have thought, or only in a residual way, in elected assemblies and other legal authorities like courts or administrative authorities. Interestingly, this consequence of a lot of theories underlying legal scholarship is never clearly recognised as such, nor, a fortiori, openly stated. Thus, the extent to which an important part of scholarship in comparative constitutional law embraces simultaneously two if not more incompatible positions, the status of its object of inquiry becomes increasingly ambiguous. Ambiguity produces complexity. It also affects the future of various forms of constitutional law as jurisdictions and scholarship apply these doctrines in order to elaborate decisions.

NOTES 1.

Niklas Luhmann develops this thesis in his Rechtssoziologie, especially the second chapter, cf. pp. 31–40 and 94–106. It is simply impossible to give a full account of the literature on Luhmann. For an interesting and comprehensive discussion addressing the issue of the complexity of legal systems, see for instance Serge Diebolt (1992).

94 2.

3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13.

14.

15.

New directions in comparative law To give just one example among thousands, this approach is illustrated by the very title of the first international association for ‘comparative law’, the still active ‘Société de Législation Comparée’ or more recently by the ALI-UNIDROIT project of a unified civil procedure. What is ‘political’ is not so much the overtly political purpose of introducing a new international corpus of norms in a certain domain of law, but the idea that a disciplinary academic exercise could and would lead to this outcome. UNIDROIT is indeed an international organisation, but it calls itself ‘Institut’ which implies the idea of a scientific activity. The same applies to ALI, which stands for the American Law Institute. This seems for instance to be the approach of Fletcher (1998: 683sq.) or Muir-Watt (2000: 503sq.). An approach which is very well illustrated by the work of James Whitman (cf. for instance Whitman 2004: 17–23; 2004b: 1151–1221; 2001: 97–105). Cf. e.g. Pierre Legrand (2003: 240–311). This is what one does mainly in the current ‘comparative law’ journals, which mainly refer to ‘x-law in country z’. Cf. for instance recently Paul Boghossian (2006). Cf. for instance Kent Greenawalt (1995) and Michael Kramer (2007). Various ‘realist’ schools of jurisprudence famously contest the very possibility of an objective knowledge of general and abstract norms, for instance: Michel Troper (1994). The difference is of course only in subject matter and not in method. Comparison may require additional methods in order to provide adequate knowledge of several different legal orders, but what is ‘foreign’ is contingent, thus methodologically irrelevant. Why should a legal norm pertaining to Spanish law be analysed according to different methods than a legal norm pertaining to Swedish law? Cf. the now already famous debate in International Journal of Constitutional Law (Dorsen 2005). An example is provided in this volume by the contribution of Professor Ajani. For further arguments, see Pfersmann (2001). North Korea may not be an eligible element of a relevant set, when the ambit of inquiry is ‘freedom of expression’. The fact that the comparatist makes a choice among existing legal orders does show that Comparative Law is not an extension of the ‘normal’ legal scholarship which would be only ‘internal’. The problem for legal scholarship is rather that its normal domain of investigation, i.e. the set of all legal phenomena, is simply impossible to encompass for a human mind. In other domains of scientific inquiry, relevant knowledge is provided by valid generalisation (and the problem is thus to know when a generalisation is valid). This is a resource which is not directly available to legal science. Comparative Law is thus an attempt to provide for, instead of strictly general, at least highly relevant results and it tries to achieve it by analysing a more or less broad array of legal orders under a certain specific domain (e.g. ‘freedom of expression’). It is hence a strategy of relevant restrictions as a viable alternative to the unachievable analysis of the totality of given legal phenomena. This approach is an important contribution of the Austrian school of Legal Theory to Comparative Constitutional Law. Of course, this domain can be defined in numerous other ways; the Austrian conception has the advantage of being precise and objective without resorting to problematic strategies of ‘functionalism’. At the same time, it shows the necessary relation of Comparative Law and Legal Theory as Comparative Law has to establish concepts of possible legal structures in order to determine an area of research and analysis. The theory of legal structures and of the concepts to be used in order to grasp them is precisely the domain of Legal Theory. On the image of a ‘hierarchy’ which seems to play an important part in Hans Kelsen’s work, see Kelsen (1997: 55–76; 1945: 110–161; 1967, Ch. V (Legal Dynamics) and Ch. VII (State and International Law)). Although the text explains that ‘hierarchy’ means a relation of validity and prevalence, it has often been taken to require that the legal order ought to be structured top-down in an authoritarian manner, which is an obvious misstatement, as the theory accounts for liberal or decentralised legal orders as well as for authoritarian ones.

Comparative constitutional law 16.

17. 18.

19.

20. 21.

22.

23.

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There is of course a fundamental difference between the formal rule of law which requires conformity to higher norms at all levels and the possibility of review of this conformity through judicial review at all levels and the so called ‘substantive’ rule of law which gives individual considerations of ‘justice’ the prevalence over conformity with the exigencies of higher law. This ‘rule of law’ is thus not an addition or fuller dimension of the formal rule of law; it is nothing else but the mere negation of legal requirement of formal procedures and conformity to higher norms. In the same vein, the requirement of a ‘substantive’ rationality or reasonableness runs exactly in the opposite direction of the formal conception, as it leaves the issue as to what ‘rationality’ or ‘reasonableness’ really means to the organ empowered to enact the concrete decision. The ‘substantive’ conception of rule of law and reasonableness is well illustrated by Craig (1999: 26sq.; 2000: 47 ss) and Allan (2002; 2001; 2003). See on this question: Otto Pfersmann (2006; 2007). Indeed, the main theorist of the one-right-answer thesis, Ronald Dworkin, is constrained to introduce an artificial problem-solver, the famous judge ‘Hercules’, who is a typical example of a false solution to a false problem: if we imagine that the ‘right answer’ hinges on the knowledge of all precedent legal materials, a task which no human mind, according to the hypothesis, is able to perform, this means that the quantity of complexity is too high, at least with respect to human beings. If it is too high for real human beings – or for devices created by human beings – it means that law requires something impossible. An impossible exigency is not a legal exigency (except if it can be rephrased as an unconditional imperative (‘if x does not perform p – where p is something impossible – then x ought to be punished’ which means ‘x ought to be subjected to physical harm, whatever she does’) which itself asks for a possible action. This technique is now used by nearly all constitutional jurisdictions who do not always want to appear censors of the legislature and prefer to keep the ‘text’ in force, but want nevertheless to deprive it at least of part of its normative content. Italy is perhaps one of the best examples. Cf. the already classical presentation of the case by Louis Favoreu (2007). The thesis that this decision constitutes a legal revolution is not new. It has already been developed by Otto Pfersmann (1998), 130. Alec Stone Sweet (2007: 915–928, 947–954) has recently proposed it as if it were something entirely new to talk about a ‘judicial coup d’état’. This author suggests that in such cases there would be ‘a successful revision of the Basic Norm’ (Stone Sweet, 2007: 917). This seems to be a misreading of the theory of the Basic Norm. By this concept, Kelsen designates a theoretical presupposition through which the legal scholar identifies a set of material as being ‘legal’. As it is not enacted, it cannot be ‘successfully transformed’ either. See most recently Declaration 17 of the Final Act of the ICG in Lisbon from 3rd December 2007 which reads: ‘17. Declaration concerning primacy. The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.’ It is absolutely not clear whether this reference to ‘settled case law’ embraces only ‘primacy’ itself or the method through which the principle was introduced into Community law in the first place. The best recent example is probably provided by the European Charter of Fundamental Rights proclaimed in Nice and now integrated in the Treaty of Lisbon. The now usual solution consists in ‘balancing’ and ‘proportionality’, that is in introducing several steps by which the legislative competence to limit fundamental rights is restricted, before weighing different rights or rights and other constitutional principles against each other. Whereas the first stages raise problems insofar as they restrict a legislative competence beyond the constitutional limit of such a restriction (e.g. in Germany, art. 19, par. 2 of the Basic Law prohibits the limitation of a fundamental right beyond its ‘essential core’, whereas proportionality understood as a ‘least restrictive means test’ lays the threshold much higher), the last stage, or ‘proportionality in the narrow sense’ reintroduces the arbitrariness it purports to limit, as it provides no other rule in order to achieve the ‘propor-

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tional’ balance, than that the court has to give explicit arguments why it chooses one solution rather than another. 24. See for instance: Stéphane Rials (1986: 57–76); Journées de la société de législation comparée (1993); Geoges Vedel (1993: 80); Louis Favoreu (1993: 71–77). Although some influential scholars like Vedel and Favoreu remained highly critical of the ‘supraconstitutionality’, the term is commonly used in the meaning of something above the constitution. For an example of an import of this concept into a different legal order, see for instance: Jacques Frémont (1997: 163–206). 25. This is the problem of the doctrinal paradox, to be dealt with in my forthcoming ‘Constitutional Ideologies’. Of course, there are objective legal data against which the falsity of a juristic claim can be checked. But, this works only as long as the community of legal scholars itself sticks to the objectivity of the determination of the relevant data. If a dominant majority of scholars abandon such inquiry and method and propose alternative legal objects and if it succeeds in making people believe them, then the legal order is what this majority invented against a previously existing legal reality. In this situation, the legal scholar committed to a conception of objectivity may face a difficult dilemma: either she sticks to the previous legal reality, but it may in the meantime be overturned by the newly dominant belief that there is a different legal reality and then she describes a false reality and can be accused of aiming at restoring a legal order which had already disappeared, or she presents the new reality, but it may then be that she becomes herself an agent of the illegal transformation of the previous system into the new system. 26. In a more technical manner, law is of course global in the sense that all legal phenomena are legally connected (this is the ‘monistic’ conception of international law). But stating this does evidently not mean that the legally organised boundaries between legal orders were henceforth abolished. Against monism, which is technically defined in a precise and systematic way, ‘Globalisation’ is a typically ideological concept as it claims on the one side that there is only one single legal world (meaning, not as in monism that the relations between legal orders are themselves legally organised and may thus be legally modified towards more or less centralisation, but vaguely that the boundaries between systems progressively collapse), but maintains, in order not to completely clash against the obvious, on the other side that there are still different legal systems, which, strictly speaking is a contradiction to the first proposition. It is one typical element of ideological claims that no proposition, and especially not the most important or ‘interesting’ ones are to be stated strictly, i.e. in a logically consistent way. Hence it becomes easy to state one thing and its contrary. In a second way, the claim of ‘globalisation’ of law is typically ideological as its common acceptance by a growing community of scholars would evidently bolster at least certain elements of a progressive disappearance of legally organised boundaries.

REFERENCES Allan, T.R.S. (2001), Constitutional Justice. A Liberal Theory of the Rule of Law, Oxford: Oxford University Press. Allan, T.R.S. (2002), ‘Constitutional Foundations of Judicial Review’, Cambridge Law Journal, 61, 87–125. Allan, T.R.S. (2003), ‘Doctrine and Theory in Administrative Law: An Elusive Quest for the Limits of Jurisdiction’, Public Law, (Autumn), 429–454. Boghossian, Paul (2006), Fear of Knowledge. Against Relativism and Constructivism, Oxford: Oxford University Press. Craig, P. (1999), Administrative Law, 4th ed., London: Sweet and Maxwell. Craig, P. (2000), ‘Ultra Vires and the Foundations of Judicial Review’, in C. Forsyth (a cura di), Judicial Review & the Constitution, Oxford, Portland, Oregon: Hart Publishing.

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Diebolt, Serge (1992), Le droit en mouvement. Elements pour une comprehension constructiviste des transformations complexes des systèmes juridiques (doctoral thesis). Dorsen, Norman (2005), ‘The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer’, International Journal of Constitutional Law, 3 (4), 519–541. Favoreu, Louis (1993), ‘Souveraineté et supraconstitutionnalité’, Pouvoirs, 67. Favoreu, Louis (2007), in Loic Philipp, Les grandes decisions du Conseil constitutionnel, first edition, Paris Dalloz 1975, (decision 19), 14th edition with a collective of authors. Fletcher, G.P. (1998), ‘Comparative Law as a Subversive Discipline’, American Journal of Comparative Law, 46. Frémont, Jacques and François Boudreault (1997), ‘),‘Supraconstitutionnalité canadienne et secession du Québec’, National Journal of Constitutional Law, 8, 163–206. Greenawalt, Kent (1995), Law and Objectivity, Oxford: Oxford University Press. Journées de la société de législation comparée (1993) (ed), Paris. Kelsen, Hans (1945), ‘Nomodynamics’, in General Theory of Law And State, translated by Anders Wedberg. Cambridge: Harvard University Press. Kelsen, Hans (1967), Pure Theory of Law. Translation from the Second German Edition by Max Knight, Berkeley: University of California Press. Kelsen, Hans (1997), ‘The Legal System and its Hierarchical Structure’, in Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law, translated by Bonnie Litschewski Paulson and Stanley L. Paulson, Oxford: Oxford University Press. Kramer, Michael (2007), Objectivity and the Rule of Law, Cambridge University Press. Legrand, Pierre (2003), ‘The same and the different’, in Pierre Legrand and Roderick Munday, Comparative Legal Studies: Traditions and Transitions, Cambridge University Press, 240–311. Luhmann, Niklas (1987), Rechtssoziologie, 3rd ed., Opladen: Westdeutscher Verlag. Muir-Watt, Horatia (2000), ‘La fonction subversive du droit compare’, Revue Internationale du Droit Comparé. Pfersmann, Otto (1998), in Louis Favoreu et al., Droit constituionnel, Paris Dalloz 1998 (1st ed, now 11th ed 2008). Pfersmann, Otto (2001), ‘Le droit comparé comme interprétation et comme théorie du droit’, Revue Internationale de Droit Comparé , 275–288. Pfersmann, Otto (2006), ‘Ragionevolezza e competenza legislativa. Il problema dei concetti aggiuntivi’, Nova juris interpretation, no. 4, 107–127. Pfersmann, Otto (2007), ‘Techniques of limitation of legislative competencies through adjunctive concepts (reasonableness and proportionality) in constitutional adjudication’ (in Russian), Sravnitelnoe Konstitutsionnoe Obozrenie [Comparative Constitutional Review], 1, (58), 90–101. Rials , Stéphane (1986), ‘Supraconstitutionnalité et systématicité du droit’, Archives de philosophie du droit, 57–76. Stone Sweet, Alec (2007), ‘Judicial coup d’état – all over the place’, German Law Journal, 8 (10). Troper, Michel (1994), Pour une théorie juridique de l’Etat, Presses Universitaires de France. Vedel, Geoges (1993), ‘Souveraineté et supraconstitutionnalité’, Pouvoirs, no. 67.

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Whitman, James (2001), ‘Zum Thema der Selbsthilfe in der Rechtsgeschichte’, in W. Fikentscher (ed.), Begegnung und Konflikt. Eine Kulturanthropologische Bestandsaufnahme, Abhandlungen der Bayerischen Akademie der Wissenschaften, Philosophisch-Historische Klasse, 97–105. Whitman, James (2004a), ‘ “Human Dignity” in Europe and the United States: The Social Foundations’, Human Rights Law Journal, 25, 17–23. Whitman, James (2004b), ‘The Two Western Cultures of Privacy: Dignity versus Liberty’, Yale Law Journal, 113, 1151–1221.

7. European constitutional law: its notion, scope and finalities Rainer Arnold I. THE NOTION OF EUROPEAN CONSTITUTIONAL LAW 1.

ECL in Various Perspectives

European constitutional law (ECL) is not a confirmed, undisputed term. Mostly it is used for the primary law of the European Community (EC), written or also unwritten, such as the judge-made general principles with the function of Fundamental Rights and of the Rule of Law guarantees, either for its totality or for its basic norms. But this term could also be used for the whole of the national constitutional laws in Europe insofar as they correspond to the same or to similar features resulting from convergent concepts. A third version is that of three constitutional levels in Europe – national constitutional law, European Community law in its basics and the European Convention on Human Rights (ECHR) – which are, despite their independence, interacting with considerable convergences. In the following chapter, the third variant is used for qualifying ECL in a narrow sense, a concept which takes into account the numerous processes of mutual influences of these three levels and therefore complies with legal reality more than the two other versions (Arnold, 1995). 2.

The Term ‘Constitutional’

Constitutional law is traditionally used for the basic legal order of a state (Grimm, 1995). If we regard ECL, in part, as a matter of plurinational bodies, it is indispensable to justify why the term ‘constitutional’ can be shifted from the state to the pluristate levels. A functional approach is indispensable: if a document at the EC side fulfils the same functions as a national constitution it can be named in this way. The two main functions of a constitution are to organize an institutional system (institutions, competences, legal acts, how they work, etc.) and to determine values (dignity of man, fundamental rights, etc.). 99

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The Community legal system has set up institutions able to administer large fields of politics and has determined, by the jurisprudence of the European Court of Justice (ECJ), general principles embodying fundamental rights and rule of law (‘Community of Law’) elements. The EU Fundamental Rights Charter, not yet in force but very influential, has formulated a catalogue of written rights on the basis of these principles and other sources of European law. It has also to be taken into account that the substance to be regulated by the Community consists of matters, formerly national and now transferred to a plurinational organization. While the national constitution was the basis of the national governance, plurinational constitutional law is the basis of the European governance to be applied for the transferred matters. Thus, a shift from the state to the pluristate organization has taken place which has also ‘europeanized’ the functions of the constitution. Therefore it seems justified to enlarge the notion of ‘constitutional law’ and to use this term also at the EC level.1 3.

The Three Levels of Constitutional Law in Europe and their Interaction

Under this definition of constitutional law we can qualify as constitutional: (1) the national constitutional orders, (2) the basic norms, written or unwritten, of EC law, and (3) the European Convention of Human Rights (ECHR) including its additional protocols. The constitutional character of the ECHR results from various aspects: The main aspect seems to be the fact that the constitutions of the Council of Europe Member States bound by the ECHR respect the Convention as a final document to which the national solutions have to correspond. Even if formally international, the ECHR is imposed on national constitutions, which no longer give the final solution. The interpretation of the national constitution has to comply with that of the Convention, not only in systems where the constitution itself stipulates an interpretation congruence (as in Article 10(2) of the Spanish Constitution) but also in legal orders which equalize, as in Germany, international treaties such as the Convention with ordinary internal law. It is therefore consistent with this conclusion that the German Federal Constitutional Court regards the ECHR as a source of interpretation help for fundamental rights and rule of law as expressed in the Basic Law (BL). Thus the national solution is conditioned by the ECHR solution. A second aspect put forward by Jochen Frowein (1988) is the following: The fact that controversies involving the ECHR are resolved by a court and not by negotiations or other political means makes the relevant mechanism constitutional. Thus the obligatory jurisdiction of the European Court of Human Rights as well as the direct access of the individual to this court (after

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the exhaustion of the national remedies) are aspects which strongly speak for a constitutional rather than an international structure. Confirming the nature of the ECHR as constitutional law does not mean to conceal that the Convention is a ‘partial Constitution’, or ‘Teilverfassung’, as Frowein (1988) says. As a conclusion we can state that there exist three orders of constitutional law in Europe, which are autonomous but interconnected in a manifold way. 3.1 Formal and substantive constitutional law – the process of ‘constitutionalizing’ National constitutions are regularly formal constitutional law. That means that a written document exists which codifies (totally or in part) basic legal rules destined to govern individuals, with their consent, in a state or a supranational body. The term includes systems with two or more basic documents such as the Czech Republic with a Constitution and a Fundamental Rights Charter, or Austria with a multiplicity of Constitutional Acts. The main characteristic is the hierarchical superiority of formal constitutional law over ordinary law as well as the aggravated conditions for modifying this document. Basic in this sense means basic in matters dealt with and in time of normative validity of this document. Destined to be the basic order means also existence of this order for a long time. If changes in a society are so fundamental that a new basic order is needed, people as the pouvoir constituant will create a new constitution. New ideological orientations can be a sufficient reason for this. If normal adaptations to political and social developments have to be made, the constitution can be modified, reformed with the consent of the major forces in a society. Regularly a qualified majority is necessary and/or a referendum is required. Substantive constitutional law means basic rules not in such a formalized way as formal constitutional law but in forms of ordinary law or jurisprudence. Ordinary law which stipulates issues of high importance not embodied in a constitution is such a type of constitutional law. In this sense, in lacking a formal constitution Great Britain disposes only of substantive constitutional law. It can be said that national constitutional law, except Great Britain, as well as the ECHR are formal, while EC law is substantive constitutional law. But it is evident that also formal constitutional law is complemented by substantive constitutional law. The Treaty of Lisbon will be substantive constitutional law avoiding similarities to a formal constitution. The EU Fundamental Rights Charter, however, which will be an autonomous document, though entering into force with the treaty, can be qualified as a formal constitutional charter. It is obvious that EC/EU primary law is superior to secondary law and can be modified only with the unanimous consent of all the Member States. These

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two aspects, in state orders characteristic of formal constitutions, cannot lead to the same qualification at the supranational level. This is due to the fact that a formal ‘Constitution for Europe’ was elaborated by a convention and presented to the Member States. This was a specific formalization of the existing substantive constitutional law as expressed by the EC primary law and the fundamental rights jurisprudence. The dichotomy between the two kinds of legal norms must be also taken into account after the failure of the formal Constitution for Europe. Thus the primary law nature can only be substantive constitutional law. What does ‘constitutionalizing’ mean? The most significant constitutionalizing process is the creation of a formal constitution. A second type is making ordinary law ‘constitutional’. This can happen at the national as well as at the supranational or international level. A legal system of a state, regularly disposing of institutional provisions for assuring government, develops values – fundamental rights and rule of law elements – and converts into a ‘constitutional system’ by adding the value component which is indispensable for modern constitutional law. In fact, state orders without value provisions are rare but orders with scarcely developed value standards do exist, either because the relevant texts are too short in this respect or because existing value texts are not sufficiently realized by politics or not adequately applied by the courts. The development of higher-value standards or even the express completion of a constitution limited to institutional provision with a fundamental rights catalogue means ‘constitutionalization’ in the sense of deepening and confirming the originally low-developed value level. It is obvious that jurisdiction, in particular that of constitutional courts, fulfils an important role in this context. The French Constitution of 1958 was completed by the 1971 decision connecting it with the 1789 Declaration and other sources of fundamental rights in the frame of a ‘bloc de constitutionnalité’.2 The ECJ has created judge-made fundamental rights3 and added a new, constitutionally indispensable dimension to the market-oriented system. Constitutionalizing international law means introducing elements known from state constitutions as value-based aspects which serve for protecting the individual, making law more effective, making more democratic, more transparent and more rational the political process, etc. Constitutionalizing can have different degrees. It is an ongoing process and can end up, in an increasingly integrated area, with a genuine constitutional system, either in the form of a state or of a fully constitutionalized pluristate community. 3.2 The interaction of the three levels of constitutional law: normative impact and mutual influence – vertical and horizontal effects National orders are highly influenced by supranational law. The priority of EC

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law has normative impact in a vertical sense. Constitutional law underlies this impact, according to the ECJ.4 It is likely that the Lisbon Treaty clause on the safeguard of ‘national identity’ will relativate the absolute primacy approach. By a definition now given by the Treaty the ‘fundamental political and constitutional structures’ of a Member State order form this identity.5 ‘Constitutional structures’ is not limited to institutions or territorial organization but comprises also the values expressed by the Constitution which are constituent for a state as well. But also, as it is well known, national law has its impact on supranational law: Both orders are based on a common constitutional tradition which is the source for Fundamental Rights at the EC/EU level. The ECJ judges felt inspired by the national constitutions, the concepts of which were taken over by them in a comparative–selective step. Thus the national level has been of great importance for the development of essential parts of supranational law. As to the ECHR, the impact on the Council of Europe Member States is of great importance. The decisions of national constitutional courts have to conform with the Convention which is – functionally – a second constitutional protection level. This will lead and has already led to a considerable convergence in the Fundamental Rights concepts. This does not exclude jurisprudence differences between these two types of courts. The highest impact on national law results from systems where the Convention is of constitutional rank as in Switzerland or Austria, or – as in Spain6 – where it forms the interpretation criterion for national Fundamental Rights. The Convention prevails over legislation in a number of states, in particular in Central and Eastern Europe but also in France or the Netherlands. Here the normative order is under direct control by the Convention as the judges do not apply laws inconsistent with it. In systems such as Germany where the Convention is of an equivalent rank with legislation, the main review standard is the national Constitution which, itself, is influenced by the Convention. Thus, the Federal Constitutional Court has added to the German Rechtsstaat concept the presumption of innocence drawn from Article 6(2) of the Strasbourg Convention.7 The British tradition of common law guarantees has been essentially changed by the Human Rights Acts which have introduced conventional law and established an effective internal adaptation system for harmonizing legislation with the Convention, a system functionally incompatible with the yet existing sovereignty of Parliament doctrine. The supremacy of the Convention in the British legal order is assured by this mechanism. The national impact on the ECHR is less evident but exists. The legal formation of the judges in their home countries has an important effect on their approaches so that national legal cultures have their influence also in legal argumentation when deciding in Strasbourg.

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The mentioned impacts (understood as normative obligations) and influences (understood as non-normative, voluntary processes) are of a vertical structure: the member states of the EU or of the Council of Europe are submitted to EC/EU law and/or the ECHR (vertical impact) while these organizations assume national concepts as a source of inspiration (vertical influence). The horizontal influence takes place between these organizations: the EC/EU gets inspired, in particular in the field of Fundamental Rights, besides the national constitutions, by the ECHR often referred to by the judges, not in accordance with a normative obligation based on the ECHR as such but in conformity with Article 6(2) of the EU Treaty which establishes a unilateral obligation to obey the Convention, derived from EU law and not involving the Strasbourg Court jurisdiction over ECJ decisions. This unilateral obligation differs considerably from the obligation derived from the ECHR which requires ratification of the Convention, something that will be enabled by the Lisbon Treaty. The ECHR as such is not exposed to EU law impact but underlies its influence. Thus the Strasbourg Court accepted, in the Bosphorus decision,8 EC Fundamental Rights protection standards when national measures applying supranational law were reviewed. That the Court relies on the EC standards without applying their own (except in cases of evident ECHR violations) shows how far the supranational influence is accepted. 3.3 Convergent principles of European constitutional law The interaction of the three constitutional levels in Europe is the functional basis for convergent principles which contain common concepts. They can be qualified as European constitutional law in a narrow sense. European constitutional law in a wider sense comprises the primary law of the EC (insofar as it is of major substantive importance) including the unwritten general principles as indicating judge-made Fundamental Rights and Rule of Law elements as well as the ECHR. It is law of constitutional character and with normative force for a plurality of states. The above mentioned common principles which form European Constitutional Law in a narrow sense are of particular significance in the fields of Fundamental Rights and Rule of Law. The efficiency of the individual’s protection against illegitimate public power intervention is one of the main principles. This implies in particular limits for the legislator to restrain Fundamental Rights based on the guarantee of the essence of these rights and on the principle of proportionality. Efficiency also means that the protection level must be comprehensive including the defense against all threats for freedom, known and unknown, giving the (constitutional) judges the competence to develop new remedies. Functional efficiency is also required permitting the affected individual to address the courts for this defense. Fundamental Rights which can be invoked before the courts are ‘subjective’ in this sense, and have

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to be regarded as binding orientations for state, for national and supranational power and for society. In this sense they are ‘values’ basic for the organization of the society within state and supranational bodies. In the field of Rule of Law a common principle is the primacy of the constitution and the value-orientation of Rule of Law which is no longer a formal but a substantive concept. From legality of administrative action to constitutionality of legislation, from separation of powers as the main guarantee of freedom to Fundamental Rights as values – these are the phases in the development of this principle (Arnold, 2004). Constitutional jurisdiction is closely linked to Rule of Law, in particular in its role of a guardian of the constitution and its primacy over legislation. It can be regarded as an upcoming common principle, with a focus on Central and Eastern Europe, but in tendency it is also existent in traditional systems such as Great Britain where a declaration of incompatibility is a sort of initial step to legislation review.

II. SCOPE AND FINALITIES OF EUROPEAN CONSTITUTIONAL LAW 1.

A Common Space of Normativity?

European constitutional law in a narrow sense consists of principles common to the mentioned three levels. Their normativity, however, is fragmented. The binding force results from the legal order they belong to: for the EC level (EC/EU and member states in the integrated fields), it results from EC law and its primacy over national law, for the Member States of the Council of Europe it results from the quality of the ECHR as an international treaty binding on them. National constitutional law, what is manifest, obtains its binding force from the national legal orders. Rules and principles find their normative force in their own legal order. Mutual impact and influence is effectuated in this level system either by juridical mechanisms (primacy of EC law, treaty obligation of the ECHR) or by voluntary reception of rules or principles from other orders (national constitutional law as an inspiration source for EC judges, EC Fundamental Rights as a sort of ‘persuasive authority’ for the Strasbourg Court). 2.

A ‘Europeanized’ Dialogue of Judges: the Transfer of European Constitutional Law in a Narrow Sense

The formation of a European Constitutional law in a narrow sense, that is the body of common constitutional principles existing at the three mentioned levels, lies essentially in the hands of judges. They have to obey the law valid

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in their own legal order but when interpreting or developing it (which is also their task) they can and should take the common European principles into consideration. Judicial argumentation has to be based on the law of the own legal order but should include its confirmation by the legal solutions stemming from the other constitutional levels. The reference to convergent European principles has a specific legitimizing effect. Argumentation should therefore be ‘Europeanized’. Thus, European constitutional law in a narrow sense is transferred from order to order within a ‘dialogue of judges’ of the various levels. A common European legal culture is transformed, in this way, into a ‘europeanized’ legal thinking obtaining common validity over judicial argumentation. 3.

Finalities

3.1 The finality of constitutionalization The main finality of European constitutional law in a narrow sense is the creation of a common constitutional space of cultural and legal integration. If various orders recognize the same values (the anthropocentric orientation of public power, the efficiency of individual rights, the primacy of the constitution), their legitimacy becomes indisputable. It would be illegitimate to abandon those principles in the own legal order. The interpretation of the own legal norms should be effectuated in conformity with them. Constitutional reforms should respect them and even the constituent power would be bound by them. These common principles form a European ordre public. 3.2 The finality of harmonization Creating a common constitutional space also means to harmonize the legal orders. If constitutional values are common, the main concepts of legislation have to adapt to them. Legislation often is the implementation of constitutional law resolving conflicts between various Fundamental Rights or transforming constitutional requirements into laws. Thus, an intensive and wide-spread harmonizing effect results from European Constitutional Law. 3.3 The finality of integration Constitutions are basic legal orders. They have an important impact on the legal thinking of a society and on legal culture as such. Constitutions contain values. Common values have an essential integration effect. Common constitutional principles are therefore a basis for society integration. They promote transnationality and create equivalent conditions for individual freedom in an integrated area. This implies a relativization of the national constitutional order, whose functions are, and can be replaced by plurinational orders with the same values. The substitution of the national by the plurinational order

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requires a functional equivalence of value implementing mechanisms, not necessarily an instrumental identity. European constitutional law is the basis for such integration processes.

NOTES 1. 2. 3. 4. 5. 6. 7. 8.

See Oppermann (2000), 125–26; see also Arnold (1999). See Conseil constitutionnel n. 71–44 DC du 16 juillet 1971. See Rainer Arnold, El desarrollo de la protección de los derechos fundamentales en Europa, in: La protección de los derechos fundamentales en la Unión Europea, Javier Corcuera Atienza (ed.), Madrid 2002, 2–36. See Case C-11/70, Internationale Handelsgesellschaft [1978] ECR, 629. See Article 4 (2) EU Treaty as modified by the Lisbon Treaty. See Article 10 (2) of the Spanish Constitution. Federal Constitutional Court, vol. 74, 358. Decision of June 30, 2005 (45036/98).

REFERENCES Arnold, Rainer (1999), ‘European constitutional law – an emerging concept in the second half of the twentieth century’, Tulane European and Civil Law Forum, 49–64. Arnold, Rainer (2004), ‘Interdependenz im Europäischen Verfassungsrecht’, Essays in Honour of Georgios I. Kassimatis, Athens: Ant. N. Sakkoulas, Berlin: Berliner Wissenschaftsverlag, Brüssel: Bruylant, 733–51. Grimm, Dieter (1995), ‘Braucht Europa eine Verfassung?’ Juristen Zeitung (JZ), 581. Frowein, J. A. (1988), ‘Die Herausbildung europäischer Verfassungsprinzipien’, in Arthur Kaufmann, Ernst-Joachim Mestmäcker and Hans F. Zacher (eds) Rechtsstaat und Menschenwürde. Festschrift für Werner Maihofer zum 70. Geburtstag, Frankfurt a. M.: Klostermann, 149. Oppermann, Thomas (2000), ‘Nationale Verfassungsautonomie und supranationale Bindung innerhalb der Europäischen Union’, in U. Battis, Ph. Kunig, J. Pernice and A. Randelzhofer (eds) Das Grundgesetz im Prozess europäischer und globaler Verfassungsentwicklung, Baden-Baden: Nomos Verlagsgesellschaft, 125–26.

8. Governmental accountability in autonomies: Åland Islands in comparison with select autonomies in Europe and elsewhere1 Markku Suksi I.

INTRODUCTION

Governmental accountability across the world shows an incredible variation of different themes and also a great variation of the same individual theme. The different sorts of governmental accountability that could be mentioned include references to good governance (Suksi, 2002a, passim), accountability of the elected person through elections under Article 25 of the UN Covenant on Civil and Political Rights (Suksi 2005a, passim), accountability of the government through the mechanism of parliamentarism, criminal responsibility of civil servants for different criminal acts carried out in office and tort liability of civil servants for damages caused in office (Suksi, 2002b: 276–280, 294–299, 307 ff., 366–370). In a recent account of power and accountability in a comparative perspective in The Executive and Public Law, Craig and Tomkins (2006, passim) present national examples of governmental accountability in a way which underlines the multifarious nature of governmental accountability. In fact, the specific topic of governmental accountability seems to contain so many different mechanisms created under the law that the concept of accountability is stretched out to a thin film covering the different institutions and substantive issues of public administration. At the end of the day, governmental accountability is everything, and because of that, it at the same time is almost nothing. Hence, there is a need to be more specific about what governmental accountability is and what it is not in order to focus on one of the forms of governmental accountability when the space that can be devoted to the topic is constrained by the format of an article. While governmental accountability normally draws attention to the central government and its functions, the sub-national levels of government, that is, the local government and regional levels of governance, have not been the focal point to any great extent. However, there is at least one 108

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notable exception concerning the regional level of sub-national governance. In the above-mentioned comparative account by Craig and Tomkins, a review concerning Scotland by Professor Chris Himsworth (2006, passim) is included. Some examples, such as Northern Ireland, Bougainville, and the Tamil areas of Sri Lanka, which also take the reader in this direction, are included in Democracy and Deep-Rooted Conflict: Options for Negotiators, published with a view to more practical objectives (Harris and Reilly, 1998: 171–233, 348–352). Why is governmental accountability in autonomies at all interesting from a comparative point of view? The topic is interesting because autonomy arrangements have often been and will in the future be created in special situations where certain particular needs had or will have to be addressed, more specifically minority protection concerns or other concerns flowing from the extraordinary context in which the arrangement exists. Often the autonomy arrangement is created in a situation of international or national tension which can range from political argumentation between the central government and the population that wants to maintain its own needs and aspirations to conflicts which sometimes may be of a secessionist nature. The autonomy arrangement may, in such a situation, be a mechanism of dispute resolution, a mechanism of conflict resolution or a mechanism of granting effective participation to the population of the area. While national unity is something that the national government is interested in upholding, the political aspirations of a sub-national unit organised as an autonomous entity may be very different. The political will of the autonomous entity at the highest level is formed by a representative body, often a legislative assembly directly elected by the population. However, the day-to-day business of government at the level of the autonomous entity is normally the task of an executive body, and as all governments, such an executive body is likely to formulate a political agenda of its own (often with the consent of the representative assembly) and also to have a wish to execute that agenda. The first crucial question here is how the accountability of the highest executive body is framed in relation to the local representative assembly. What are the mechanisms of governmental accountability inside the autonomy arrangement? The answers formulated on the basis of this question are likely to show a diversity of horizontal organisation, e.g., in terms of the number of representatives required for passing a motion of no confidence against the autonomous executive. The answer is, naturally, much dependent on the method of organisation of the executive in the autonomy, that is, whether it is based on the principle of parliamentarism or on the principle of presidentialism, and especially in the case of parliamentarism, the question will introduce considerations concerning the appointment of the executive body.

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The second crucial question is how the accountability of the highest executive body is framed in relation to the national government, the implication being that the national government might have something to say about how things are run in the autonomous entity. What kind of mechanisms of governmental accountability do there exist between the executive body of the autonomy arrangement on the one hand and the national government on the other? This question may lead to considerations of the extent of powers of the autonomous entity but also to considerations of the constitutional setting in which the entity exists so as to highlight the manner of vertical organisation.

II. BACKGROUND: AUTONOMIES IN A COMPARATIVE PERSPECTIVE Depending on the setting, the range of powers accorded to the autonomy arrangement may vary from legislative powers proper to regulatory or administrative powers at the same time as the autonomy arrangement may, at least in principle, be entrenched at two different levels in the legal order of the country, namely in the constitution or in the ordinary legislation. Setting aside the relatively few instances of non-territorial autonomy, our interest can be directed towards an analysis of the territorial autonomy arrangements, that is, entities which are territorially circumscribed and vested with norm-setting powers. Jurisdiction of legislative and administrative character has, in many instances, been delegated to sub-national entities which at least intuitively can be labelled as autonomies. When comparing the different situations, it becomes apparent that the powers granted to autonomies are not of a similar character in terms of extension or substance. The powers do not deal with same material fields, but vary instead from case to case according to the specificities of the aims to be achieved. The creation of the various autonomy arrangements does not, moreover, follow any general pattern and does not display, in all instances, clear features of minority protection. Furthermore, among the national constitutions, it seems that only the Spanish Constitution in its Article 2 formulates autonomy as a constitutional right. The variation in the creation of the autonomies is particularly interesting in respect of the norm-hierarchical level at which any given autonomy is established. The combined (but highly approximate) variation in the powers of the European autonomies and the norm-hierarchical level of the generic legislation is illustrated in Figure 8.1. It is possible to conclude on the basis of the chart summarising some key features of European autonomies that legislative powers and regulatory or administrative competence have, in many states, been granted or devolved to

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Constitution Basque Country

Legislative powers

Åland Islands Gagauzia HK & Macau Azores & Madeira Northern Ireland I II

Crimea Tibet

III IV

Regulatory powers

Scotland Wales Faroe Islands Greenland

Corsica

Ordinary law Figure 8.1

Various autonomy positions (Suksi 1998: 169)2

so-called sub-national entities. At least a greater part, if not all, of these entities can be identified as autonomies. The competences devolved are, however, not of the same nature and do normally not concern the same substantive areas. Instead, it seems that the competences vary from case to case with a view to the needs that a specific case displays. The creation of individual autonomy arrangements does not follow any general pattern, and each and every autonomy arrangement is not created in order to create a minority protection arrangement. In addition, one should also be aware of the difficulties of characterising the British sub-national entities in this chart (see Figure 8.1). The absence of a written constitution results in the absence of more definitive fixation points of these entities in the chart. Those self-governmental arrangements that can be placed in section I of Figure 8.1 can probably be considered autonomies proper. They are organised on the basis of the national constitutions of their respective ‘mother-countries’, and special jurisdictions involving exclusive law-making powers have been created for them against the background of the constitutions. The material fields of activity they possess vary between the different autonomies, but they are entitled to make laws of their own. This brings the European areas clearly

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within the ambit of Article 3 of the First Protocol to the European Convention on Human Rights, which means that the legislatures must be elected in the manner prescribed in the provision.3 Entities in section II of Figure 8.1 lack the formal constitutional delegation of law-making powers, but they nevertheless make their own laws in the spheres determined for them in ordinary legislation. From a purely formal point of view they are not in the category of autonomies in section I, but the powers they exercise and the elevation of their status by way of non-statutory constitutional conventions or by way of customary constitutional law make them, for all practical purposes, autonomies. Although the entities that can be placed in section III have a constitutional basis, their powers are of a non-legislative kind, limited to regulatory or administrative jurisdiction and subordinated to the ordinary legislative powers of the national law-maker of the country in which they exist. Here the use of the term ‘autonomy’ could be misleading. Section IV represents cases which probably should not be considered autonomies, but rather as regions with selfgovernment of an administrative nature. Irrespective of the exact positioning of an autonomous entity in Figure 8.1, it is evident on the basis of the chart that there is a decision-making assembly in each of the autonomous entities that in one way or the other represents the population of the area. Such a representative assembly can normally not carry out the day-to-day business of government, but is assisted by a smaller executive body of some sort. This body is normally charged with the duty to implement the decisions of the representative assembly and is often also in a position to make proposals to the representative assembly concerning the decisions that the assembly should make. It is therefore probably possible to assume that the powers of the executive body in an autonomous entity are political in the sense that the executive body is responsible for policy-making, but at the same time, the executive body most likely also makes concrete decisions in individual matters concerning one or more of the persons who live in the autonomous jurisdiction. At least in those autonomies which have lawmaking powers proper, the law enacted is normally implemented in concrete instances by the executive body. Both the policy-making function and the function of implementation of enactments of the assembly entail a possibility that something may go wrong when the executive body takes action. At that point, the interesting question is the method or methods through which the executive body in an autonomous jurisdiction can be held accountable for its action (or inaction, as the case may be). When a political (or legal, as it may be) ‘wrongdoing’ has taken place, there are, as indicated above, in theory two different bodies that may have an interest in reacting against the executive body in an autonomy, namely the representative assembly of the autonomy arrangement on the one hand and the

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national government on the other. While the first one is in most cases the principal entity interested in holding the executive body of the autonomy accountable, the second one (the national government) may also have a strong interest in making sure that its point of view is taken into account in the operation of the executive body of the autonomous entity. Because governmental accountability mainly arises and has its most important consequences in such autonomy arrangements in which legislative powers proper are exercised, the analysis of governmental accountability below is focusing on such autonomy arrangements which in Figure 8.1 are placed in sections I and II. This is important, inter alia, against the background of the doctrine of separation of powers, which in regular parliamentary systems affects the relationship between the legislature and the executive power by uniting the two by the parliamentary mechanism of governmental accountability. In the case that the autonomy arrangement is premised on the basis of a presidential system of some sort, separation of powers is probably a feature more clearly spelled out or at least indicated. Autonomy arrangements positioned in sections III and IV are not dealt with in this context, because it could be expected that concerns of governmental accountability are not quite of the same nature as with those in sections I and II. One question arising from this focus is whether governmental accountability is differently framed depending on whether the autonomy arrangement is placed in section I or section II of the chart. The hypothesis is that this should not be the case, but the fact that the constitutional regulation proper is not present in the arrangements placed in section II leaves open the possibility that procedures relating to governmental accountability are necessarily not paid much attention to.

III. DEFINING THE TERTIUM COMPARATIONIS FOR GOVERNMENTAL AUTONOMY IN AUTONOMIES: THE MEMEL CASE Contrary to what one might suppose, governmental accountability in autonomies is not only a political matter, but also a matter that has been the object of legal regulation and even the object of legal adjudication. An early example of an autonomy arrangement which was dealt with in a dispute resolution process is Memel, the autonomous status of which was created against the background of Article 99 of the Treaty of Versailles by a Convention of 1924 to which a Statute of the Memel Territory outlining the details of the arrangement was annexed. What happened in Memel was that Mr. Böttcher, the President of the Directorate of the Memel Territory, that is, the Head of Government of the autonomous territory created for the Germans and Lithuanians living there,

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visited on 17 December 1931 the Ministry of Food and the Ministry of Foreign Affairs of the Republic of Germany (the so-called Weimar Germany) with the aim of securing, through direct negotiations with Germany, an agreement on preferential treatment of agricultural produce exported from Memel to Germany. The Governor of Memel as a representative of the Republic of Lithuania dismissed the President of the Directorate for violation of the distribution of powers between Memel on the one hand and Lithuania on the other (foreign relations were, under Article 7 of the Statute of Memel, within the exclusive jurisdiction of the Lithuanian Republic), although the Memel Statute did not contain any provision that would have made such a dismissal possible. In addition, the Governor of Memel appointed a new President of the Directorate, Mr. Simaitis, and dissolved the Chamber of Representatives of Memel, that is, the representative assembly of the autonomous entity. Governmental accountability became an issue in the legal adjudication of the matter, when the issue was brought before the Permanent Court of International Justice and was resolved in the case of Interpretation of the Statute of the Memel Territory.4 From the point of view of the case, it can be said that the protection of the external sovereignty of a State is a paramount concern, not easily relinquished to its sub-divisions. However, internal sovereignty is apparently a quality that can be divided between the State and its subdivisions. The question is how the process of government should be carried out when the interests of the central government, the government of the autonomous entity and the representative assembly collide. Article 17 of the Statute of Memel stated the following about the Directorate, that is, about the executive body of the autonomous entity: The Directorate shall exercise the executive power in the Memel Territory. It shall consist of not more than five members, including the President, and shall be composed of citizens of the Territory. The President shall be appointed by the Governor and shall hold office so long as he possesses the confidence of the Chamber of Representatives. The resident shall appoint the other members of the Directorate. The Directorate must enjoy the confidence of the Chamber of Representatives and shall resign if the Chamber refuses it its confidence. If, for any reason, the Governor appoints a President of the Directorate when the Chamber of Representatives is not in session, it shall be convened so as to meet within four weeks after the appointment to hear a statement from the Directorate and vote on the question of confidence.

It is clear that in its Article 17, the Memel Statute laid down legal rules of a constitutional nature concerning governmental accountability. The legal questions that the PCIJ was asked to answer were, inter alia, whether the dismissal of Mr. Böttcher from the Presidency of the Directorate was in order and whether, in the circumstances in which it took place, the appointment of the Directorate presided over by M. Simaitis was in order (Ibid: 328).

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It is fascinating to take note of the argumentation of the PCIJ. Already at such an early stage as 1932 (or, in fact, already in 1924 when the Statute of Memel was annexed to the Memel Convention), the legal formulation of governmental accountability was done in fairly clear terms that expressed the core content of parliamentarism, that is, the requirement of confidence. Within the ambit of the Statute, a horizontal confidence mechanism was apparently in the hands of the Chamber of Representatives, the representative assembly of the territory, but in situations where the government of the autonomous entity moved outside the legislative powers of the autonomous entity as established in the Statute, a vertical confidence mechanism could appear and justify reactions from the national government towards the government of the autonomous entity. It is evident on the basis of the Memel case that it deals with the political accountability of government and not with the legal accountability of government. The latter, excluded in this context, would involve, e.g., criminal and tort procedures in courts of law. The focus of the rest of this chapter will hence be on political accountability of government in different autonomy arrangements, not legal. For the purposes of comparison, what should one expect on the basis of the Memel case? Firstly, in the vertical dimension, it should be expected that the autonomy act, normally enacted by the national legislature, does not make provisions for situations in which the governmental body of the autonomous entity has acted ultra vires and threatens the competences and even the sovereignty of the central government. Secondly, it should also be possible to expect that the autonomy act, whatever its official name, creates some norms that deal with the institutional organisation of the governmental body in an autonomy. Thirdly, in the horizontal dimension, it should be expected that governmental accountability is based on parliamentarism, that is, one or several mechanisms that align the governmental body of the autonomous entity with the political will of legislative assembly of the same on the basis of confidence between the governmental body and the legislature, expressed by simple majority either when the governmental body is created or dismissed or both.

IV. POLITICAL ACCOUNTABILITY IN SOME AUTONOMIES 1.

The Åland Islands

As concerns the Åland Islands, the Autonomy Act, apart from mentioning the governmental institutions at the autonomous level, leaves these institutions and organs to be regulated by enactments of the Legislative Assembly (the Lagting). It specifies in section 3, sub-section 2, that the administration of

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Åland is vested in the government of Åland and the officials subordinate to it. It further stipulates in sub-section 1 that the population of the Åland Islands is, in matters relating to autonomy, represented by the Legislative Assembly. Under section 13, the members of this Legislative Assembly shall be elected by direct and secret ballot, through universal and equal suffrage. Because under section 9, only persons with the right of domicile shall be entitled to participate in these elections, universal suffrage is implemented within that group of persons.5 In addition, section 17 of the Autonomy Act provides that the Legislative Assembly shall enact legislation for Åland. Thus the internal structures of government are determined by Ålandic legislation (Suksi 2005b, passim). However, the scope of the internal authority of the Åland Legislative Assembly to pass legislation on these issues is laid out in section 18, according to which Åland shall have legislative powers in respect of, inter alia: ‘1) the organisation and duties of the Åland Parliament and the election of its members, the Government of Åland and the officials and services subordinate to it; 2) the officials of Åland, the collective agreements on the salaries of the employees of Åland and the sentencing of the officials of Åland to disciplinary punishment;’

The list of legislative powers of the Åland Islands comprises a total of 27 paragraphs. Because most of these powers are in the sphere of so-called ‘public law’, they clearly imply the existence of a relatively broad administrative machinery for decision-making in individual cases of implementation of the Ålandic acts. In fact, the public sector of the Åland Islands appears greater than that of the mainland, proportionally speaking, partly because of this ‘public law’ orientation, and partly because of the independent Ålandic powers to decide on the allocation of the block grant over the State budget to the Åland Islands. The important thing from the point of view of governmental accountability is that under these provisions of the Autonomy Act, the lawmaker of the Åland Islands is itself in the position of formulating the different mechanisms of governmental accountability without interference of the central government. In its internal construction of governmental accountability, the Legislative Assembly of the Åland Islands has, naturally, only created mechanisms of accountability between the bodies of the autonomy arrangement, not between autonomy bodies on the one hand and bodies of the central government on the other. Hence only the horizontal accountability is of relevance, not the vertical.6 The exercise of executive powers by the Åland Islands government is tied under section 23 of the Autonomy Act to the legislative powers of the Åland Islands so that the executive powers flow from and originate in the legislative powers of the Åland Islands. This means that the government of the Åland Islands does not have any executive prerogative, but is instead circumscribed

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by the legislative powers. This is sustained by section 21 of the Autonomy Act, which ties the exercise of the Decree powers of the government of the Åland Islands to an authorisation in an Ålandic Act and which means that the Åland Islands government does not have any independent normative powers outside the area specified by Ålandic legislation. However, it is possible for the President of Finland to pass so-called Decrees of Consent under section 32 of the Autonomy Act concerning the implementation of legislation of mainland Finland in the Åland Islands by the executive bodies of the Åland Islands (or vice versa, as the case might be). Such Decrees of Consent are prepared jointly by the executive organs of the Åland Islands and mainland Finland and deal typically with public functions that leave inhabitants of the Åland Islands without public service in certain matters of competence. Examples of matters where Decrees of Consent exist are organisation of state elections on the Åland Islands by election authorities of the Åland Islands and emergency transportation of persons for medical reasons on vessels of the Coast Guard. In the former case, the organs of the Åland Islands have agreed to take care of a state function, while in the latter case, organs of Finland have agreed to take care of a local government function that is otherwise the responsibility of the Åland Islands. Two Ålandic acts of an internal constitutional nature are essential for the creation of the structures of government, namely that of the Organisation of the Legislative Assembly of the Åland Islands (Statutes of Åland No. 11/1972) and that of the Government of the Åland Islands (Statutes of Åland No. 42/1971). The first one determines that the Legislative Assembly is composed of 30 representatives and that they are elected by means of proportional representation from the single constituency of the Åland Islands. The seven political groupings currently represented in the Legislative Assembly7 are not political parties proper constituted on the basis of the Finnish Party Act, but are instead regular associations registered under the Finnish Associations Act. Nonetheless, they function as political parties, particularly when campaigning for elections to the Legislative Assembly. The Åland government provides some subsidies for their political activities. The political system of the Åland Islands has almost no connection to the parties on the mainland; only the Ålandic Social Democrats have some contacts with the mainland Social Democratic Party. The Organisation of the Legislative Assembly Act determines the modalities for enacting Ålandic Acts. The Act also contains provisions concerning the relationship between the Legislative Assembly and the Åland government. The starting point of that relationship is the principle of parliamentarism, in other words, the government must be accountable to and enjoy the confidence of the Legislative Assembly. This confidence is both collective and individual

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in respect of the five to eight members of the government, which due to the proportional election resulting in a multi-party Legislative Assembly is normally a coalition government.8 The Prime Minister who heads the Åland government is in many ways the most visible political figure on the Islands. After elections, the Legislative Assembly elects the Prime Minister, who then proposes the composition of the government, which is submitted to a vote in the Assembly. If the proposal is supported by simple majority, the government is approved and can start to function. The requirement of simple majority in the Åland Islands can be compared with the national government of Finland, which for purposes of governmental accountability is based on simple majority. While the Åland government is in office, a motion of no confidence can be filed by individual Legislative Assembly members, and if 16 members (absolute majority) approve it, the government (or a member thereof, if the motion is directed towards an individual member of the government) shall resign. The second Act, the Government of the Åland Islands Act contains corresponding provisions on accountability before the Legislative Assembly, but these are supplemented by a provision allowing the government itself to declare that it will consider a defeat in a vote on a legislative proposal as a motion of no confidence and resign. It is an interesting feature of Ålandic parliamentarism that the members of the government do not, after their election as ministers, hold seats in the Legislative Assembly, but instead, substitutes are called in to fill the vacant seats in the Legislative Assembly. Various offices and administrative bodies, such as the Åland Islands Police, the schools of Åland, and the Health Care of the Åland Islands, operate under the Åland government. While the government as a collective body is in charge of more political decision-making, individual members as heads of different departments – including those belonging to the offices of the Åland government – participate in making administrative decisions on the basis of Ålandic acts. Political accountability of the government before the Legislative Assembly extends itself at least to actions of the Departments of the Åland Islands government. However, political answerability is weaker in respect of the independent agencies of the Åland Islands, such as the above-mentioned, and becomes very thin and attenuated when moving towards local government and into the area of so-called indirect public administration. Historically speaking, however, governmental accountability has not always been organised in this manner in the Åland Islands. From the 1920s until 1988, the government of the Åland Islands was appointed by means of proportional election, which means that the government always was an allinclusive coalition government in which more or less all political groupings participated, with the consequence that there was no clear distinction between the political majority carrying the political responsibility and the political

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opposition criticising the policies of the majority. In addition, during this early period of the government of the Åland Islands, the members of the government were perhaps regarded more as civil servants than politically answerable ministers proper. It is only during the last two decades that such a governmental accountability has developed in the Åland Islands which was at issue in the Memel case above. 2.

The Faroe Islands

The situation in the Faroe Islands is to a great extent similar to the one in the Åland Islands. The Home Rule Act of the Faroe Islands does not create any elaborate regulation concerning the relationship of the government of the Faroe Islands to the Legislative Assembly (the Løgting) of the Faroe Islands or to the Danish central government (Danish Act No. 11 of 31 March 1948). In fact, the vertical element is entirely absent from the context. As concerns the horizontal element, section 1 of the Act indicates that the Legislative Assembly is entitled to establish an executive, the government, and they shall assume the powers of Faroese Special Affairs as stated in the Act. Hence also in the Faroe Islands, it seems that legislative powers of the autonomous entity provide the basis for the executive powers of the same. This is, in fact, indicated quite clearly by section 4 of the Act, which states that the Home Government holds not only legislative but also executive powers over fields of responsibility within its purview. The Government Act of the Faroe Islands is the internal legal norm that specifies the position of the government and its governmental accountability (Faroese Act No. 103 of 26 July 1994). Within the framework of its legislative competence, the Legislative Assembly of the Faroes may pass Acts, the entering into force of which is dependent on the assent by the Prime Minister of the Government of the Faroe Islands. The Prime Minister has normally no incentive to refuse assent, because if he or she did, the likely consequence would be a vote of no confidence in the Legislative Assembly. In case of a dispute between the central government and the Faroese authorities on whether the legislative powers were correctly utilised, the matter of dispute shall, under section 6 of the Home Rule Act, be referred to a tribunal consisting of two members appointed by the Danish Government and two appointed by the Faroese Government and three Supreme Court Judges appointed by the president of the Supreme Court, one of whom shall be designated as chairman. In case of agreement between the four members appointed by the Danish Government and the Faroese Government the matter is definitively decided. Failing this, the matter shall be decided by the three Supreme Court judges. The Danish Prime Minister may suspend the implementation of a decision which has been referred to the tribunal until the tribunal has decided the matter. The judicial procedure for

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adjudicating competence disputes thus contains the possibility that the central government stays the application of the Faroese legislative decision, but the mechanism does not seem to institute any vertical dimension of governmental accountability. It also seems that the office of the High Commissioner of the Faroe Islands, which is a post of a representative of the central government created under section 15 of the Home Rule Act, does not seem to have any bearing on the issue of governmental accountability in the Faroe Islands. In the Faroe Islands, the Prime Minister of the Faroe Islands is elected by the Legislative Assembly of the Faroe Islands on the basis of section 28 of the Government Act, after which election the Prime Minister according to section 27 appoints and distributes the governmental functions between the members of the government. The method of appointing the Prime Minister is particular, because under section 28(3), the Chairperson of the Legislative Assembly, after negotiations with the leaders of the fractions in the Assembly, submits a proposal for a new Prime Minister. The proposal is voted upon, and if a majority of the members of the Assembly reject the candidate, the proposal is defeated, but if no express rejection is at hand, the candidate for Prime Minister is accepted.9 Therefore, the confidence in government is assumed at the formation of the government, unless the contrary is proven. Currently, the government of the Faroe Islands consists of seven members, including the Prime Minister, although the statutory requirement is the Prime Minister and at least two members. Out of the 32 members of the Legislative Assembly, more than half, that is, 17 members, have to be in support of the government. If more than half, that is, 17 members of the Legislative Assembly, oppose the government or an individual minister, the government or the minister shall resign according to sections 29 and 30 of the Government Act. Hence the expression of governmental accountability turns on the principle of absolute majority in the Legislative Assembly, which is different in comparison with the national government, where the governmental accountability is operated under the principle of simple majority. It seems that the party system of the Faroe Islands is home-grown, without much contact with the Danish party-system. The proportional election practised on the Faroe Islands in respect of the Legislative Assembly10 results in a multi-party basis for the Assembly and normally also in a coalition government.11 Under the government, six ministries and the Prime Minister’s office take care of the central administration of the Faroe Islands. 3.

Northern Ireland

In comparison with the two Nordic autonomies dealt with above, the selfgovernment of Northern Ireland has shown much less stability over time12 and has also caused the central government of the United Kingdom to interfere in

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the working of the autonomy arrangement. The most recent suspension of devolution ended on 8 May 2007 after elections to the Legislative Assembly (Stormont) and after the election of a four-party executive body of 12 ministers. Interestingly, a specific statutory Ministerial Code, adopted on the basis of the Northern Ireland (St Andrews Agreement) Act 2006, provides among one of its principles that holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. However, the system of devolution in Northern Ireland is constructed in such a way that the forms of accountability referred to in the Ministerial Code apparently do not contain the horizontal governmental accountability outlined in the Memel case. In addition, the governmental structures of Northern Ireland are more tied up by national legislation than their Nordic counterparts. The manner of selection of the government of Northern Ireland is very interesting, conditioned by the divisions in society and established in broad terms in section 2 of the Northern Ireland Act 2006 and spelled out in greater detail in schedule 2 to the Act. According to point 9 in Annex A of the St Andrews Agreement,13 after the elections following the STV system, the largest party in the Assembly makes the nomination for the post of the First Minister and second largest party the nomination for the post of the Deputy First Minister. Thereafter the d’Hondt method of election is used to fill the remaining ministerial posts in the executive body. This means that it is not only the Legislative Assembly which is elected by means of proportional representation, but also the government, evidently because of a wish to create a power-sharing arrangement between the different factions that have been fighting each other for decades.14 As a consequence, the appointment of the government of Northern Ireland is not constructed along the line of confidence shown by simple or absolute majority. Instead, it seems as if the political proportionality of the population of the autonomous entity as established in the elections was taken one more step further than normally, that is, from the Legislative Assembly to the executive. The situation in Northern Ireland is therefore reminiscent of the system practised in the Åland Islands until 1988 (although internal disturbances were not a reason in the Åland Islands to have a proportionally appointed executive body). Vacancies in the Northern Ireland government are filled in the same manner. The method of selection of the Northern Ireland government and the apparent lack of provisions concerning votes of confidence or no confidence, that is, of horizontal mechanisms of governmental accountability, singles out the government of Northern Ireland among autonomy governments and puts the lack of regular governmental accountability through the mechanism of parliamentarism in stark contrast with the practices controlling the activities of the national government. It seems on the basis of the Northern Ireland Act 2006

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that the Secretary of State for Northern Ireland, a cabinet minister in the national government, has a role in the formation of the rules according to which the devolved government of Northern Ireland is supposed to function so as to create or – against the background of historical experience – maintain a certain measure of vertical accountability between the autonomous entity and the national government. The party system in Northern Ireland displays the traditional divisions of society that marred the development of the region for decades, with little contact with the party system of England. In the elections of 7 March 2007, the 108 members of the Legislative Assembly were elected following the method of the single transferable vote, and the consequence of that is proportional representation in the Legislative Assembly on a multi-party basis.15 Under the likewise proportional government,16 12 ministries (or departments, as they are termed) take care of the practical administration of Northern Ireland. 4.

Scotland

The vertical line of accountability is, at least formally, fairly strong in the case of Scotland and its autonomy. The Scottish administration is created under Part II of the Scotland Act 1998. According to section 44 of the Scotland Act, the Scottish executive shall consist of a First Minister, such Ministers as the First Minister appoints and the Lord Advocate and the Solicitor General. In addition, there may be Junior Ministers in the Scottish executive, that is, in the government of Scotland. The First Minister is under section 45 of the Act appointed by the head of the executive of the United Kingdom, that is, by Her Majesty, and the other ministers are appointed by the First Minister with the approval of Her Majesty. However, the First Minister is nominated on the basis of section 46 of the Act by the Scottish Parliament, apparently by simple majority (see also rules 4.1. through 4.8. of the Standing Orders of the Scottish Parliament). In addition, the First Minister shall hold office at Her Majesty’s pleasure and shall according to section 45 tender his resignation to Her Majesty if the Scottish Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Scottish Parliament. The same applies on the basis of section 47 to the other members of the Scottish government. Hence there is a horizontal dimension of governmental accountability, which seems to be primary. According to Himsworth (2006: 205), ‘the Parliament is given an express role in government formation which the Westminster Parliament does not enjoy’. Nonetheless, formally speaking the governmental structures of Scotland are also vertically aligned to the national executive by the appointment and release of the ministers of Scotland by Her Majesty. This vertical alignment does not, however, mean that the Scottish ministers become ministers of the Crown (Himsworth, 2006: 197). It is also interesting to note

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in the vertical dimension that the members of the staff of the Scottish Administration, that is, the civil servants of the autonomous entity, are members of the Home Civil Service, that is, of the national civil service (see also Himsworth, 2006: 203, 214). Against this background, it is also possible to conclude that the governmental structures of Scotland are determined in national legislation to a greater extent than is the case with the Åland Islands and the Faroe Islands. In spite of this clear link to the national executive, it appears that the government of Scotland only exercises its executive powers in relation to those legislative powers that have been devolved, but not in relation to national legislation (see Himsworth, 2006: 194).17 However, it nonetheless seems that some executive powers outside the devolved powers have been transferred from ministers of the central government to the Scottish executive. In this context, it has been stated that ‘[i]t might be that these extensions of executive power beyond the scope of the Parliament’s own competence could be viewed as converting the Executive into a mere agent of the UK government but there is no sign that the Executive’s accountability to the Parliament is affected’ (Himsworth, 2006: 199). In addition, a certain executive prerogative is likely to exist also in the government of Scotland (Himsworth, 2006: 200–202). It also seems that the vertical relationship between the government of Scotland and the UK government is designed in a somewhat different fashion than in Northern Ireland or other constitutional settings where the monarch of Britain is designated as the formal head of the executive.18 In the horizontal dimension, the members of the Scottish executive are normally selected from the party or parties that control the majority of the seats in the Scottish Parliament, which has 129 members, although a minority government is possible, too. The Scottish Parliament is elected by way of a mixed majority-proportional election,19 that is, both from 73 single-member constituencies and from eight multi-member constituencies returning 56 members to the Scottish Parliament.20 On 16 May 2007, the Scottish Parliament selected the leader of the Scottish National Party as the nominee as First Minister for recommendation to Her Majesty in a process which under rule 11.10 of the Standing Orders of the Scottish Parliament follows the principle of simple majority.21 Because his nomination received in the final round only 49 votes against the 46 votes of his opponents with 33 abstentions, it seems likely that the government thus created is a minority government based on one party only that can suffer a vote of no-confidence at any time in the Scottish Parliament, leading potentially to new elections following any major disagreement about the policies of the government. In comparison with Northern Ireland, however, governmental accountability in Scotland displays a clear affinity to governmental accountability of the central government.22 Apparently, judging on the basis of the names of parties in the Scottish

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Parliament, the party structure of Scotland, too, displays at least some affinity with the party structure of England. 5.

Gagauzia

Under section 8 of the Law on the Special Legal Status of Gagauzia, the Legislative Assembly of Gagauzia (Halk Toplus¸u) seems to be based on a proportional election.23 The competences of the Legislative Assembly include, inter alia, defining the structure of the organisation and activity of local public administrative authorities of Gagauzia. This indicates that the Legislative Assembly has certain organisational powers in its hands. However, among the autonomies reviewed here, Gagauzia is the only one clearly organised under the influence of presidentialism.24 According to section 14 of the Law, the highest official of Gagauzia shall be the Governor, who is directly elected by the population of Gagauzia for a four year term and to whom all administrative authorities of Gagauzia are subordinate.25 The governor can be removed from office by a vote of two-thirds of the elected deputies in the Legislative Assembly, something which resembles an impeachment procedure, while other officials of governmental authorities can be removed by absolute majority. Interestingly, under section 14(4) of the Law, the governor of Gagauzia shall be appointed as a member of the government of Moldova after a decree of the President of Moldova. Hence the popularly elected head of the executive of the autonomous entity is also a member of the national government in a manner which enhances the vertical dimension of governmental accountability. There is, in Gagauzia, an executive committee, that is, a governmental body which the Legislative Assembly appoints under section 16 of the Law, apparently on the basis of simple majority. Due to the elevated position of the governor, it is evidently natural that the composition of the executive committee is proposed by the governor of Gagauzia, who apparently is the chairperson of the executive committee. On the top of the implementation and observance of the enactments of the Legislative Assembly, the executive committee shall also ensure the implementation and observance of the Constitution of Moldova and the laws of Moldova. Differently from the Åland Islands, where the government in principle only implements Ålandic acts, the government of Gagauzia is an implementing agency of not only the enactments of the Legislative Assembly of Gagauzia, but also of the national laws of Moldova. In fact, following section 19 of the Law, the chiefs of each department of administration of Gagauzia are also included as members of the corresponding boards of ministries and departments of the government of Moldova. Therefore, it is at least to some extent logical that the chief of the Department of Justice of Gagauzia, the chief of the Department of National Security of

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Gagauzia and the chief of the Department of Internal Affairs of Gagauzia shall, under sections 22, 23 and 24 of the Law, be appointed and dismissed by the respective minister of the national government of Moldova. Although it is possible for the Legislative Assembly to remove from office officials of public administrative authorities by a majority of the votes of the deputies of the Legislative Assembly, that is, by simple majority, this mechanism is evidently not a description of a vote of no confidence in the governmental body, but instead an impeachment procedure of some sort (according to section 98(3) of the Constitution of Moldova, the vote of confidence in the Moldovan parliament regarding the government of Moldova is to be taken by majority vote, a prescription that does not indicate whether the vote should be by simple or absolute majority). In sum, it is probably possible to conclude that in Gagauzia, the horizontal dimension of governmental accountability is weaker, while the vertical dimension is dominant. The executive branch of Gagauzia is in many ways intertwined with and integrated in the governmental structures of the central government of Moldova. 6.

Hong Kong (and Macau)

Above, Gagauzia was described as the only presidentially organised autonomy arrangement. However, such a characterisation might be true also concerning Hong Kong (and Macau), provided that the peculiarities of the model, flowing from the interest of the central government of China to establish a vertical line of accountability, are interpreted as a presidential system of government. According to Ghai, the relationship between the Chief Executive and the Legislative Council ‘follows no recognisable form of government, being neither parliamentary nor presidential’ (Ghai, 1997: 262 and 264 f.). While the legislative powers of the Legislative Council of Hong Kong (and also those of Macau) are very broad, in fact, probably broadest among all autonomies, subject under section 76 of the Basic Law to the signature and promulgation of the act by the Chief Executive, the constitutional system of Hong Kong is designed in a way which creates minimal horizontal mechanisms of accountability,26 emphasising instead the vertical line of accountability. On the top of such powers as the enactment of laws and approval of budgets, taxation and public expenditure,27 the Legislative Council is entitled under section 73 of the 1990 Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China to receive and debate the policy addresses of the Chief Executive, to raise questions on the work of the government and to debate any issue concerning public interest. These forms of contact between the legislature and the executive are repeated in section 64 of the Basic Law, according to which the government of Hong Kong, the head of which is the Chief Executive, must be accountable to the

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Legislative Council (Ghai, 1997: 254 ff.). Hence the performance of the executive can become the object of parliamentary scrutiny. However, the only formal way to react against the Chief Executive is by an impeachment procedure in section 73(9) of the Basic Law. According to the provision, if a motion initiated jointly by one-fourth of all the members of the Legislative Council charges the Chief Executive with serious breach of law or dereliction of duty and if he or she refuses to resign, the Council may, after passing a motion for investigation, give a mandate to the Chief Justice of the Court of Final Appeal to form and chair an independent investigation committee. The committee shall be responsible for carrying out the investigation and reporting its findings to the Council. If the committee considers the evidence sufficient to substantiate such charges, the Council may pass a motion of impeachment by a two-thirds majority of all its members and report it to the Central People’s Government for decision. This means that the Legislative Council is not in the possession of the final decision-making powers regarding impeachment, but instead the Central People’s Government (Ghai, 1997: 260), that is, the central governmental body of China, has the authority to make the final decision in the almost unlikely event that the Legislative Council, in its current form rooted in a corporate system of election and not in a direct election by the population of Hong Kong, would arrive at an impeachment decision. The Legislative Council can only motion the central government for impeachment.28 The power of the central government to make the final impeachment decision concerning the Chief Executive is natural against the background of the fact that according to section 45 and Annex I on the method for the selection of the Chief Executive of the Hong Kong Special Administrative Region, the Chief Executive is appointed by the Central People’s Government, subject to selection by election held locally by a corporatively composed election committee with 800 members.29 Hence there is no direct election of the Chief Executive, although the explicitly stated aim is to develop the selection procedures in that direction sometime after 2007. Such a development would change the set-up concerning governmental accountability and make it more traditionally presidential in nature. It seems that ‘[t]he office of the Chief Executive is intended to be very powerful, dominating over the legislature’ (Ghai, 1997: 262). According to section 43 of the Basic Law, the Chief Executive of the Hong Kong Special Administrative Region is the head of the SAR and he or she also represents the SAR, and under section 60 of the Basic Law, the Chief Executive is the head of government of Hong Kong. In this capacity and when exercising the powers of the Chief Executive, he or she is, under section 43(2) accountable to the Central People’s Government and to the Hong Kong SAR in accordance with the Basic Law. The accountability to the Hong Kong SAR

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was already dealt with above, but it is not entirely clear on the basis of the Basic Law how the accountability of the Chief Executive in relation to the central government should function.30 The central government appoints the Chief Executive under section 15 of the Basic Law, but the Basic Law does not contain any provision on the discharge of the Chief Executive by the central government. Instead, according to section 52 of the Basic Law, a dispute between the Chief Executive and the Legislative Council may, if the former has refused twice to promulgate a bill enacted by the latter and the latter, after its dissolution and new elections, still insists on its point or if more or less the same takes place concerning a budget or another important bill, the Chief Executive must resign. Hence there exists an attenuated form of governmental accountability in the horizontal dimension, but because it involves a very complicated procedure and also a requirement of a qualified majority of two-thirds, it has little to do with the principle of parliamentarism. Taking in addition into account the corporatist manner of selection of the Legislative Council, a resignation of the Chief Executive because of problems in the horizontal dimension of accountability is a remote possibility only. As concluded by Ghai, ‘the process is weighted in favour of the Chief Executive and the final decision lies with the CPG’, and as a consequence ‘[t]he extent of accountability of the executive to the legislature is severely limited’ (Ghai, 1997: 244, 263). The Executive Council, that is, the government of Hong Kong, is presided over by the Chief Executive, who also appoints the members of the Executive Council, according to section 55(1) of the Basic Law, from among the principal officials of the executive authorities, members of the Legislative Council and public figures, and removes them from office. The term of mandate of the members of the Executive Council is tied to the term of mandate of the Chief Executive, not to the term of mandate of the Legislative Council.31 In addition, section 60(2) requires that there be departments of administration, finance, and justice and that various bureaus, divisions and commissions shall be established in the government of Hong Kong SAR. The principal officials are nominated by the Chief Executive, and he or she also has the power to dismiss them from office (Ghai, 1997: 247). It is clear that the Basic Law spells out the details of the government of Hong Kong without leaving much space for regulation of these matters in internal norms of Hong Kong. In this respect, the rules pertaining to government of Hong Kong do not only reflect the interests of the central government of China, but may in fact have a root in the British administration of Hong Kong, with a strong governor at the top of the executive branch and a strong vertical line of accountability to the central government in London (Ghai, 1997: 223 ff., 242, 259). Instead of governmental accountability through the principle of parliamentarism, it seems that there is an attempt to create

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governmental accountability through checks and balances.32 As concerns the parties in Hong Kong in relation to the party structure in mainland China, it is obvious that the multi-party setting in Hong Kong shows no affinity to the one-party system of mainland China. The 60 member Legislative Council consists of 30 members returned by geographical constituencies through direct and proportional elections using the largest remainder method to determine the elected persons from lists of candidates,33 while 30 members are elected by functional constituencies representing economic interests in Hong Kong. As indicated in section 55(1) of the Basic Law, the membership of the Executive Council is at least to some extent drawn from the Legislative Council, but this feature probably does not have very much influence on governmental accountability, except that it may keep the Legislative Council at least to some extent informed of how the Executive Council works internally.

V.

CONCLUSIONS

The number of autonomy arrangements reviewed in this context is limited. Therefore, conclusions that are drawn below need to be considered with care and against that backdrop. The first question to be answered in this context is how the accountability of the highest executive body is framed in relation to the local representative assembly. What are the mechanisms of governmental accountability inside the autonomy arrangement? One obvious conclusion that can be drawn is that there is a great variation in solutions concerning governmental accountability in autonomies, a variation similar to the solution at the level of national governments in general. Among the autonomies, there are parliamentary systems (the Åland Islands, the Faroe Islands and Scotland) and presidential systems (Gagauzia), but also solutions which can not be placed in any of the two categories (Northern Ireland and Hong Kong). The system of Hong Kong (and Macau) could, however, also be described as one approaching presidentialism, although a case for democratic centralism could be made, too. In so far as the system of governmental accountability in the horizontal dimension is modelled against the background of parliamentarism, it seems that both simple majority (Scotland) and absolute majority (the Åland Islands and the Faroe Islands) are used as decision-making formulas. In Northern Ireland, the relationship between the governmental body and the legislative assembly is conditioned by the need of power sharing between the traditional opponents, making the adversarial system of parliamentarism unsuitable in the context. From the point of view of separation of powers it can be said that governmental accountability through the principle of parliamentarism unites the legislative and the executive branch with the judiciary remaining independent,

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while the presidential systems establish a clearer separation of powers also between the legislature and the executive branch and create normally different checks and balances between the governmental body and the legislative assembly. In the parliamentary systems, the majority required for expression of confidence or no confidence in the autonomous entity does not necessarily follow the model of the central government. It does so in Scotland (where simple majority is the principle of decision-making), but not in the Åland Islands and the Faroe Islands, where the decision-making principle is absolute majority in spite of simple majority at the national level. This consideration is actually not relevant in the context of Northern Ireland, but the system employed there is clearly very different from what is being used at the level of central government and is an example of a novel way of regulating governmental accountability by way of projecting the political proportionality of the electorate through the Legislative Assembly to the executive body. The impeachment procedure of Hong Kong (and Macau) requires a qualified majority of two-thirds, while the system in Gagauzia is, in this respect, not clearly spelled out. As concerns Hong Kong, the present system may undergo some development in the future, e.g., by way of facilitating a popular election of the chief executive, thus making the system more presidential. The second question to be answered in this context is how the accountability of the highest executive body is framed in relation to the national government, the implication being that the national government might have something to say about how things are run in the autonomous entity. What kind of mechanisms of governmental accountability do there exist between the executive body of the autonomy arrangement on the one hand and the national government on the other? Governmental accountability in the vertical dimension is certainly relevant in the sample of autonomy solutions regarding the relationship to the central government. The Memel case indicated that a vertical dimension may exist, but in that specific context only with a view to actions ultra vires of the governmental body in an autonomous entity. The existence of the vertical dimension was confirmed by the sample, but in the form of intra vires mechanisms by way of statutory rules concerning the relationship of the governmental body to the central government (Scotland, Gagauzia and Hong Kong, and Northern Ireland, too). It is clear that a relationship between the governmental body of the autonomous entity and the central government can condition the extent of the autonomy very much, in fact so much as to potentially threaten the existence of the autonomy arrangement. For the concept of autonomy, it is reassuring that there also exist autonomy arrangements where the autonomy acts create no vertical mechanisms of governmental accountability on a statutory basis (Åland Islands, Faroe Islands). This means that the central government can not threaten the existence of the autonomy by means of executive interference in the executive powers

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of the autonomy arrangement, at least not as long as the autonomous entity and its government is acting intra vires. A third issue concerns the organisation of government in an autonomy and the extent to which the autonomous entity can itself, on the basis of its powers, modify its governmental mechanisms. In the Åland Islands and Faroe Islands, the autonomous entity can itself, through its own regional legislation, determine the internal organisational structures of its own government, including the methods of governmental accountability. In this respect, too, the degree of autonomy of these entities is high. By contrast, in Northern Ireland and Scotland, the mechanisms of creation of government are at least to some extent determined in the autonomy act enacted by the national law-maker or other rules that are beyond the control and amendment of the autonomous entity and its legislature. The situation is similar in Gagauzia and Hong Kong (and Macau), where the governmental structures are determined in fairly great detail in the autonomy acts enacted by the national law-maker, without the possibility of the autonomous entity varying the rules very much. Whatever the source of rules concerning governmental accountability in an autonomous entity may be, it seems clear on the basis of the review that elections to the legislative assemblies and the potential assumption of executive responsibilities in an executive body tend to generate an indigenous party structure in the autonomous entity which often displays very little contact with the party structure at the national level. The political platforms and the political issues on the decision-making agenda are not the same at the level of autonomous entities and at the central government level, and therefore the forms of political organisation may also differ. It also seems that generally speaking, the governmental bodies of autonomy arrangements implement only legislation that has been adopted by the legislative assembly of the autonomous entity. This means that national legislation is normally not implemented by the executive bodies of the autonomous entities, with the notable exception of Gagauzia and possibly also Scotland (as well as sometimes the Åland Islands, provided that a Decree of Consent has been issued). Hence, issues of governmental accountability that arise in autonomous entities should normally be purely internal and so, too, would be the responses to possible problems. A fourth question arising from this inquiry is whether governmental accountability is differently framed depending on whether the autonomy arrangement is placed in section I or section II of the chart presented in Figure 8.1, above. The hypothesis is that this should not be the case, but the fact that the constitutional regulation proper is not present in the arrangements placed in section II leaves open the possibility that procedures relating to governmental accountability are necessarily not paid much attention to. It seems on the basis of the above review that it does not matter whether an autonomous entity is placed in section I or section II of the chart illustrating the various

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autonomy provisions. Governmental accountability is a concern in both sections, and this is the way it should be against the background of the fact that legislative powers are exercised by entities in both sections. This implies normally the need to have a legislative assembly and a separate executive body. Of course, governmental accountability is an issue exactly in this relationship. It could be expected that a greater variation in terms of governmental accountability would be found in cases illustrated by the chart between sections I and II on the one hand and sections III and IV on the other, because the regulatory powers exercised by entities in the two latter sections do not lead the organisation of governmental accountability in the same manner in the direction of parliamentarism or presidentialism. Finally, a typical question that is put in a comparative law inquiry is whether there exists a variation of the theme according to legal families. As often is the case in the area of public law, the relevance of so-called legal families as an explanatory factor is zero. This seems to be the case also with a view to governmental accountability, with the possible exception of Hong Kong (and Macau) as well as Gagauzia, which may be under the influence of the mechanism of democratic centralism, found in the Socialist legal family.

NOTES 1. 2. 3.

4. 5.

6.

7.

The chapter was written in May 2007 and reflects the situation at the time of the writing. It should be noted that the chart, developed originally in the mid-1990s, is of a ‘work-inprogress’ nature, subject to continuous amendment on the basis of information that specifies the position of the different autonomy entities in the chart. See at least the following two cases resolved by the European human rights bodies: BoothClibborn v. United Kingdom, Appl. No. 11391/85, D.R. 43, and Mathieu-Mohin and Clerfayt v. Belgium, Appl. No. 9267/81, Judgment of the European Court of Human Rights of 27 March 1987, A-113. Interpretation of the Statute of the Memel Territory, Judgment of 11 August 1932, PCIJ, Series A./B.–Fasc. No. 50, p. 294. See also Gillot v France, UN Human Rights Committee, Comm. 932/2000, UN Doc. CCPR/C/75/D/932/2000 and Py v France, ECtHR, 2005. Both cases deal with the situation in New Caledonia and the delimitation of the group of persons with the right to vote in a referendum and in elections with reference to a residence requirement. The President of Finland has, under section 19 of the Autonomy Act, an absolute power to veto legislative decisions of the Legislative Assembly in toto or in part when the decision violates the law-making competence of the Parliament of Finland as defined in section 27 of the Autonomy Act. This takes place in relation to 2–4 per cent of the legislative decisions of the Legislative Assembly per annum, in most cases by way of partial veto, thus leaving major parts of the legislative decision to be promulgated by the Åland Islands government. However, apart from that control of legislative competence (in which the Åland Delegation and the Supreme Court of Finland also play a role), the President of Finland can not influence the exercise of the law-making powers of the Åland Islands. On the basis of the elections of October 2003, the composition of the Legislative Assembly was as follows: Ålandic Centre (7 mandates), the Liberals (7 mandates), the Ålandic Social Democrats (7 mandates), Liberal Co-operation (4 mandates), the Independent Assembly (3 mandates), the Future of Åland (2 mandates), and the Progress of Åland Group (1 mandate).

132 8.

9.

10.

11.

12.

13. 14.

15.

16.

17.

18.

19. 20.

New directions in comparative law The current (May 2007) composition of the Åland Islands government is the Ålandic Centre, Ålandic Social Democrats, and the Liberal Co-operation. The government is hence a majority government, controlling 18 seats in the Legislative Assembly. The method of distribution of mandates is that of d’Hondt, with the entire Åland Islands as one constituency. According to Harhoff (2006), in practice, the chairperson of the party or coalition which has won the elections to the Legislative Assembly presents a proposal of a government and a distribution of its tasks between the different members, and after this, the Legislative Assembly votes in a special vote first on the Prime Minister and finally collectively about the government on the basis of the proposal of the Prime Minister. Harhoff also concludes that the system is similar in Greenland. The parties with representation in the Legislative Assembly of the Faroe Islands are, on the basis of the elections in 2004, the Independence Party (1 mandate), the Unionist Party (7 mandates), the Faroese Social Democratic Party (7 mandates), the People’s Party (7 mandates), the Republican Party (8 mandates), and the Centre Party (2 mandates). In May 2007, the government of the Faroe Islands is formed by the People’s Party, the Faroese Social Democratic Party and the Unionist Party. Hence the government is a majority government that controls 21 out of the 32 seats in the Legislative Assembly. The national government of Denmark has often been a minority government. However, it should not be forgotten that in the 1990s, the political and governmental system of the Faroe Islands displayed instability for economic reasons to the extent that the Danish central government had to become more directly involved in governance (if not government) of the Faroe Islands. See Lyck (1997: 141–146) and Mørkøre (1997: 179–189). The Northern Ireland (St Andrews Act) 2006 has been modified especially as concerns specific dates mentioned in the Act by the Northern Ireland (St Andrews Act) 2007. It deserves to be noted that it is not necessary that other parties than those two who come out largest in the elections participate in the selection of the government. The smaller parties may also choose to remain outside of the government and to form an opposition. This did not, however, take place in May 2007. The parties with representation in the Legislative Assembly of Northern Ireland are, on the basis of the elections in March 2007, Democratic Unionist Party (36 mandates), Sinn Fein (28 mandates), Ulster Unionist Party (18 mandates), Social Democratic and Labour Party (16 mandates), Alliance (7 mandates), Progressive Unionist Party (1 mandate), the Green Party (1 mandate), and an independent (1 mandate). In May 2007, the government of Northern Ireland is formed by the Democratic Unionist Party, the Sinn Fein, Ulster Unionist Party, and the Social Democratic and Labour Party. Hence the government is based on 98 out of the 108 seats in the Legislative Assembly. The national government of the UK is normally a majority government. In addition, as concluded in Himsworth (2006: 199), ‘[t]here is no sense in which a residual power to exercise the functions is left also in the hands of the UK ministers. In the case of devolved functions, it would be unlawful for the Secretary of State to purport to exercise them’. However, Himsworth (2006: 213) points out that ‘[t]he Secretary of State has available powers under the Scotland Act to intervene, on specified grounds, to prevent the passing of laws by the Parliament or to prevent the exercise of executive powers by the Scottish Ministers. Neither of these powers has so far been invoked’. The vertical dimension is thus quite important, at least in theory. Himsworth (2006: 196 ff.): ‘It may or may not have any practical consequences but it is clear that Scotland has gone down a different track from that adopted in Northern Ireland and the Commonwealth independence constitutions. Whilst powers exercisable on behalf of the Queen are transferred to the Scottish Executive, there is no overarching concept of the Queen’s being the ultimate repository of executive authority in Scotland.’ The MMP system is also referred to as the mixed member proportional system. The system is in Scotland termed the Additional Member System (AMS). See Herbert et al. (2007: 4); see also Himsworth (2006: 204). The parties with representation in the Scottish Parliament are, on the basis of the elections in May 2007, the Scottish National Party (47 mandates), the Scottish Labour Party (46

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21.

22.

23.

24.

25. 26.

27. 28.

29.

30.

133

mandates), the Scottish Conservatives (17 mandates), the Scottish Liberal Democrats (16 mandates), the Scottish Green Party (2 mandates), and one independent. See also Rule 11.11. on simple and absolute majority, which states that any decision of the Parliament shall, if taken by division, require a simple majority unless otherwise expressly stated in any enactment or in these rules. The rule also specifies the exact meaning of simple and absolute majority. Himsworth (2006: 203) points out that the Scottish Cabinet as a collective term denoting the members of the executive with the exception of the law officers is a non-statutory body. See also Himsworth (2006: 195), who concludes that in principle, ‘the aim has been to produce by statute a modified form of government of the “Westminster model”’. As pointed out by Himsworth (2006: 205), at least two features cater for this, namely that the Scottish Parliament is given an express role in government formation by nominating the First Minister and approving the nomination of the other ministers and that the resignation of ministers is required if the Parliament resolves that they no longer enjoy the confidence of the Parliament. However, the actual electoral system seems to be based on single-member constituencies. According to some accounts concerning the 2003 elections for the 35 seats in the Popular Assembly, 17 mandates were won by independents, 16 mandates by the PCM, 1 mandate by the Socialist Party and 1 mandate by the Ravnopraviye Party. See www.geocities.com/ai320/ gagauzplace.htm, accessed 12 May 2007. According to an opinion by the American Bar Association on the Law on the Special Status of Gagauzia, the internal organisation of the autonomy of Gagauzia mirrors the governmental structures of Moldova. See Analysis of the Draft Code of Gagauzia of 17 April 1998. American Bar Association, Central and East European Law Initiative, available at www.abanet.org/ceeli/publications/assessments/moldova/gagauzia.html, accessed 10 October 2007). In the elections of December 2006, the winning candidate collected 56.23 per cent of the votes in the second round. Four candidates, all independent, were originally nominated for the post of the governor. Ghai (1997: 256): ‘The council has no power to pass a vote of confidence which would lead to the dismissal of the Chief Executive. According to a mainland drafter, the provision for a vote of no confidence (which is the principal device for a legislature’s control over the executive) was ruled out on the grounds that it would produce frequent changes of government, and would be bad for economic prosperity and social stability. Presumably the continuity of the executive was rated more highly than the continuity of the legislature since the Chief Executive has been given limited powers to dissolve the Legislative Council.’ In so far as the bill has been submitted by the Chief Executive, the Legislative Council votes together as a collective body and makes the decisions following the principle of simple majority. See Ghai (1997: 250). Ghai (1997: 256): ‘However, the adoption of the motion does not necessarily lead to the removal of the Chief Executive, since it has to be reported to the CPG ‘for decision’. This form of wording indicates that the final decision is made with the CPG, which might wish to shield the Chief Executive, although it is hard to see how the CPG could disregard the overwhelming majority of the legislature (and the procedure preceding its vote) without causing a major crisis in Hong Kong and in the relationship of the Central Authorities with its residents.’ In the 2007 Chief Executive election, the incumbent received more than 81 per cent of the votes in the electoral college of 800 persons. According to Ghai (1997), the Basic Law does not specify if the Central People’s Government has a veto; ‘the language of art. 45 would suggest that it does not, and no procedure is provided for in case a veto is exercised’. Ghai supports an interpretation according to which the role of the central government is purely formal, which evidently means that the central government would not have any veto power, but would have to appoint the person selected in Hong Kong. According to Ghai (1997: 224), the ‘relationship between the executive and the legislature would depend significantly on the meaning and scope of ‘accountability’, of which the Chinese had a more restricted understanding than the British’.

134 31.

32.

33.

New directions in comparative law Ghai (1997: 246): ‘However, none of these provisions suggest that the Chief Executive is bound to take the advice of officials or Executive Councillors or that the Basic Law provides for collective decision making, as in a parliamentary system. The executive therefore is more akin to a presidential system, with the ultimate responsibility for policies and implementation in the Chief Executive. The government falls with the impeachment of the Chief Executive.’ Ghai (1997: 236): ‘[W]hile a key function of the legislature is to supervise the executive, the Chief Executive has power to dissolve the legislature, and, in the legislative area, the basic responsibility for the initiation of legislation lies with the executive although its enactment requires the consent of the Legislative Council with a veto in the Chief Executive. Checks and balances are also built into the relationships between Hong Kong and the Central Authorities.’ In the elections of 2004 to the Legislative Council, out of the 30 mandates contested in the direct election in geographical constituencies, inter alia, the Democratic Party got 7 mandates, the Democratic Alliance for Betterment of Hong Kong 8 mandates, the Liberal Party 2 mandates, the Article 45 Concern Group 3 mandates, and pro government individuals and others 1 mandate, while the total number of mandates controlled by these in the Legislative Council is 9 for the Democratic Party, 12 for the Democratic Alliance for Betterment of Hong Kong, 10 for the Liberal Party, 4 for the Article 45 Concern Group and 12 for the pro government individuals. This means that the functional constituencies have a significant impact on the political landscape of the Legislative Council of Hong Kong.

REFERENCES Craig, Paul and A. Tomkins (eds.) (2006), The Executive and Public Law – Power and Accountability in Comparative Perspective, Oxford: Oxford University Press. Ghai, Yash (1997), Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and Basic Law, Hong Kong: Hong Kong University Press. Harris, Peter and B. Reilly (eds.) (1998), Democracy and Deep-Rooted Conflict: Options for Negotiators, Stockholm: International IDEA. Herbert, Stephen, Ross Burnside, Murray Earle, Tom Edwards, Tom Foley and Iain McIver (2007), Election 2007, available at www.scottish.parliament.uk/business/ research,briefings-07/SB07-21.pdf (accessed 10 July 2009). Himsworth, Chris (2006), ’The Domesticated Executive of Scotland’, in Paul Craig and A. Tomkins (eds.), The Executive and Public Law – Power and Accountability in Comparative Perspective, Oxford: Oxford University Press, 192–216. Lyck, Lise (1997), ‘The Faroese Home Rule Act as a Framework for the Faroese Economy’, in Lise Lyck (ed.), Constitutional and Economic Space of the Small Nordic Jurisdiction, Stockholm: NordREFO, 122–36. Mørkøre, Jógvan (1997), ‘The Faroese Home Rule Model – Theory and Reality’, in Lise Lyck (ed.), Constitutional and Economic Space of the Small Nordic Jurisdictions, Stockholm: NordREFO. Suksi, Markku (ed.) (1998), Autonomy – Applications and Implications, Dordrecht: Kluwer Law International. Suksi, Markku (2002a), ‘Good Governance in the Electoral Process’, in Hans-Otto Sano and G. Alfredsson (eds.), Human Rights and Good Governance, Dordrecht: Kluwer Law International, 203–227. Suksi, Markku (2002b), Finlands statsrätt, Åbo: Institutet för mänskliga rättigheter, Åbo Akademi.

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Suksi, Markku (2005a), ‘Participation through Elections and Referendums’, in Janne Lindblad and M. Suksi, On the Evolution of International Election Norms: Global and European Perspectives. Åbo: Institute for Human Rights, Åbo Akademi University, 1–47. Suksi, Markku (2005b), Ålands Konstitution, Åbo: Stiftelsens för Åbo Akademi forskningsinstitut.

9. The viability of constitutional/ non-constitutional comparison Johan Lindholm I.

INTRODUCTION

I would like to take this opportunity to bring attention to a comparative methodological question that I encountered while writing State Procedure and Union Rights (Lindholm, 2007). Is it possible to compare how two legal systems resolve a problem when one system approaches it as constitutional and the other system approaches it as something else? Otherwise phrased, is constitutional/non-constitutional comparison possible? My object of examination was the legal mechanisms governing what procedural rules national courts shall apply to European Union rights. I took a comparative approach to this topic, comparing European Union law on this subject with how the comparable problem is resolved in the United States and soon discovered that the two systems approach the problem from distinctly different perspectives. In European Union law, focus has been on the individual’s ability to effectively enforce his or her Union law rights. There is a tendency in EU law to approach the selection of procedural rules as a rather technical issue. In the United States, by comparison, the issue is first and foremost approached as a constitutional one focusing on the effects that the choice of procedural rules has on the vertical division of power between federal and state governments (Lindholm, 2007: 239–249). Having discovered that the two systems approach the issue from different perspectives I considered the methodological implications of my findings. Is it proper or even possible to compare the European approach to that of the United States considering that the latter to a much greater extent than the former approaches the issue at hand as constitutional? If so, what methodological precautions should I take to ensure that I do not draw improper conclusions? I consulted literature on comparative constitutional methodology expecting to find answers to these questions. To my surprise I found no concrete methodological advices directly pertaining to my situation but also no discussion regarding whether constitutional/non-constitutional comparison is, on one hand, possible and unproblematic or, on the other hand, impossible 136

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and harmful. It appears, as will be explained more fully below, that the answers to these questions have a close and complex relationship to constitutional theory. This brings us to the question posed initially. Is constitutional/non-constitutional comparison possible? I do not offer an answer to this question. Instead, I will present the reasons why this question is so difficult to answer and invite further discussion concerning if and how such comparison can be carried out. I do not believe my experience to be an isolated one. As will be discussed further below, comparisons involving European Union law are likely to involve similar methodological problems and one can suspect that similar problems can arise in other areas as well.

II. METHODOLOGICAL RELEVANCE OF AN ISSUE BEING CLASSIFIED AS CONSTITUTIONAL A question of central importance in this regard is whether issues of constitutional law are so different from other legal issues that the study of them warrants special methodological treatment. The same question more succinctly phrased: what is the methodological relevance of the object of comparison being a constitutional issue? This question is often addressed from the opposite direction in comparative law. In order for constitutional comparison to be justified it must be possible to legitimately draw conclusions from the constitutional law of one legal order for the benefit of another. In constitutional comparative law, as in other comparative disciplines, a degree of scepticism concerning the comparability of the comparatum and the comparandum is healthy. Why should one legal system adopt a legal concept, rule, principle, or institution from another legal system? What can the failure or success of that element in one system say about its possible failure or success in another order? What are ‘failure’ and ‘success’ respectively? How can the constitutional element and its ‘successfulness’ be separated from the context in which it exists and operates (see generally Adler 1998)? These questions are important in comparative methodology in general and for the subject matter of this chapter in particular. When determining the proper use of comparative scholarship in constitutional development – the process of developing the constitution of a legal order – one’s view of what a constitution is and how it is formed is of central importance. Two opposing theories can be observed. On one hand, there is the school of particularism according to which the constitution is so tightly associated with national conditions, history, and culture that comparative studies have little to offer. While a degree of particularism can be detected with regard to most areas of law, constitutional law has an especially close connection to

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the local conditions (Choudhry, 1999: 830–32) that, according to the most extreme particularist view, makes the study of foreign constitutional traditions not only meaningless but potentially dangerous. One loud opponent to extensive use of comparative law in constitutional development is US Supreme Court Justice Antonin Scalia.1 The theory of universalism represents the opposite view. It emphasises the similarity of issues and problems covered by constitutional law in different legal systems. Advocates of universalism propose ‘that constitutional guarantees are cut from a universal cloth . . .’ (Choudhry, 1999: 833–834). The concept of constitutional universalism leads the thoughts to natural law. Universalism is not the same as natural law theory but the former can be based in the latter (Alford, 2005: 659). There have been many variations to the school of natural law but the term natural law has in modern usage moved away from the normative, what law ‘is’, and instead focuses on what law ‘ought to be’ (Weinreb, 1987: 1–12, 97–126). Traces of this perspective can be found in certain areas of constitutional development, for example, as discussed further below, in the field of human rights. The universalist view of constitutional law is however not only supported by natural law theory. The theory of functionalism is a fundamental concept of comparative methodology according to which legal institutions can be advantageously compared if they perform the same function (see, e.g. de Cruz, 1999: 230–33; Glendon et al, 2004: 11; Schlesinger et al, 1998: 48–49; Zweigert and Kötz, 1998: 34–36; Reitz, 1998: 620–23). In constitutional comparison, as in other disciplines of comparative law, the theory of functionalism proposes that comparison is possible if two legal systems try to resolve the same problem. If it is true, as many have argued, that globalisation leads to courts facing increasingly similar problems (see, e.g. L’Heureux-Dubé, 1998: 23; Law, 2005: 705), constitutional comparison can be defended on the ground that the different legal systems are trying to resolve functionally identical constitutional problems (Choudhry, 1999: 834–83). The trend appears to be towards increased universalism. Constitutional comparison has become increasingly common in recent years and many commentators point to globalisation and increased interdependency among nations as explanations for this trend (see, e.g. Dorsen et al, 2003: 1; Choudhry, 1999: 820–22; Teitel, 2004: 2572). Many commentators point to a wave of constitutional globalisation (see, e.g. L’Heureux-Dubé, 1998: 16–27; Slaughter, 2000: 1109–23; Slaughter, 2003: 192–204). Slaughter calls attention to what she refers to as ‘constitutional cross-fertilisation’ (Slaughter, 2003: 194–204) and another commentator goes so far as to point to the development of a ‘generic constitutional law – a skeletal body of constitutional theory, practice, and doctrine that belongs uniquely to no particular jurisdiction’ (Law, 2005: 659).

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That is not to say, however, that particularism has been abandoned. Most commentators settle for an intermediary position. The dominant view appears to be that the rules and principles of traditional comparative methodology, foremost the principle of functionalism, apply equally to constitutional issues and other legal issues. At the same time, one should acknowledge that there is a close connection between constitutional issues and matters of national identity and sovereignty which make constitutional comparison more sensitive matter than for example comparative studies in the area of private law. There are pragmatic reasons for not unnecessarily extending the use of comparative reasoning in constitutional development. Watson proposes that in most cases, especially those concerning matters of private law, ‘[r]ulers and their immediate underlings can be, and often are, indifferent to the nature of the legal rules in operation’ (Watson, 1991: 97). The central governing power is more sensitive however regarding the regulation of constitutional matters as constitutional law provides the structure through which it exerts power (Tushnet, 1998: 335; cf. Ewald, 1995: 503). In conclusion, it appears possible in principle to compare how different legal systems have resolved constitutional problems but the additional sensitivity of constitutional matters requires the comparatist to take additional methodological ‘precautions’. What then are these methodological ‘precautions’? In the next section I provide a brief overview of scholarly discussion regarding the methodology of constitutional comparative law.

III. METHODOLOGICAL DISCUSSIONS IN COMPARATIVE CONSTITUTIONAL LAW: AN OVERVIEW 1.

Introduction

It is commonly accepted that comparative legal studies can play a role in legal development. There is disagreement however as to what the proper role of comparative studies is with regard to the more specific matter of constitutional development. Methodological commentators distinguish broadly between two uses of comparison in constitutional development. A first and perhaps most obvious use for comparison is in the drafting of a constitution in a state that previously did not have one or that seeks to replace an old one. A second use for comparison in constitutional development is in the interpretation of a constitution after it has been established in a state. The use of comparison in constitutional drafting and constitutional interpretation is not uncontroversial but relatively well-established. The line between drafting and interpreting is admittedly fluid; where one ends and the other begins can rarely be described

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with precision. It is however valuable to distinguish between the two as they, as will be demonstrated below, raise different methodological considerations. 2.

Comparison and Constitutional Drafting

Examples of the use of comparison in the process of drafting a constitution can be found in Europe (see Craenen, 2004: 136; Thill, 2004: 544) and in North America (Rapaczynski, 1990: 414–20; Tushnet, 1999: 1237; see also Law, 2005: 704–05) but such practice has been especially common in the post-colonial era. Many former colonies have faced the challenge of establishing a new constitutional order and have in doing so borrowed or ‘transplanted’ elements from other nations’ constitutions. The influence abroad of the United States Constitution is a well-documented example. Elements of the US Constitution can be found in legal systems of countries that at one point were under American control. Examples of this are the Philippines and Japan where the impact of the US Constitution on the national constitutional traditions has been great (Ackerman, 1997: 775–791; Fernando, 1979; Rapaczynski, 1990: 424–35, 439–42; Ukai, 1979). Elements of US constitutional law have also been incorporated by many other countries, especially those traditionally considered belonging to the common law family. Both the Indian constitution and the Australian constitution include elements borrowed from the US Constitution (Rapaczynski, 1990: 442–52; Tripathi, 1979: 72–89). It is not however only with regard to situations where an entirely new constitution is to be created that constitutional comparison can be valuable. States sometimes extend their constitutional law to new domains through the borrowing of constitutional innovations. One example of this phenomenon is the development in the field of human rights after World War II. The Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the European Convention) are examples of this (Slaughter, 2000: 1109–12). The Universal Declaration and the European Convention are at once both symbols of the globalization that is occurring in the field of human rights and models for national law (L’Heureux-Dubé, 1998: 24–25). International organisations and the documents they produce cannot however take all credit for the global development regarding human rights. National declarations regarding basic, individual rights have also played an important role in the harmonisation of different legal orders’ regulation of such matters. The American Bill of Rights was borrowed by its former colonial power and exported throughout the Commonwealth (Lester, 1988: 538). Another, similar example of this is the Canadian Bill of Rights which has stood as a model to the laws of South Africa, Israel, New Zealand, and Hong Kong (Choudhry, 1999: 821; L’Heureux-Dubé, 1998: 24).

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To conclude, there are plenty of examples of comparative inspiration being drawn as constitutions are drafted or expanded. Few firm methodological advices concerning if and how one can use foreign material in the drafting process can however be found. The examples mentioned indicate that there are certain patterns to whichever sources one looks to for comparative conclusions. States tend to borrow from the constitution of a former colonial power or from systems that in other respects are similar to its own. There are also examples of international co-operation, what is sometimes taken as signs of the previously mentioned global constitutionalism, where states seek inspiration in sources not uniquely belonging to any nation. The process of selection and evaluation also differs depending how extensive the transplantation of foreign constitutional law is (Tushnet, 1998: 330). 3.

Comparison and Constitutional Interpretation

A second use for comparative law in constitutional development is in the interpretation of the constitution once established. Constitutional interpretation can be performed by different categories of persons and in different situations but the impact of court interpretation is often the most significant. They must determine what for example due process and freedom of speech include and in doing so may turn to foreign jurisdictions for support. Such practice raises several methodological questions. The use of comparative analysis in constitutional interpretation can in some respects be more controversial than drawing upon foreign experiences in the formation of a constitution and there is more written about the methodological problems involved in comparative constitutional interpretation. There are four questions that are especially important. First, is it proper for a court to look to foreign material in interpreting its constitution? Second, if so, how does one determine if one legal system is sufficiently similar to another so that the two can be compared? Third, how can one determine if a constitutional innovation has been successful in that system and finally, would it have the same result if implemented in the other system? These questions will be addressed in turn below. First, there appears to be increased acceptance towards courts using foreign material in constitution interpretation. In many legal systems, constitutional adjudication frequently involves the use of foreign material but for varying purposes. Courts are known to have given foreign constitutional law authoritative or persuasive value. Foreign experiences can also be used negatively as a lesson of how a constitutional matter should not be resolved (Law, 2005: 699–701). Sometimes judges overtly engage in comparative analysis when faced with constitutional questions but one can expect – from the similarity of the reasoning – that they sometimes draw from foreign experience without making this explicit in their judgments. That foreign practices can be

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of interpretational value is perhaps not so surprising when it comes to questions to which the sources of the domestic legal order do not give any guidance. What is perhaps more surprising is that courts have occasionally sought inspiration from other legal orders in constitutional matters even though relevant domestic sources existed (Slaughter, 2003: 197). Such practice is however not entirely uncontroversial (see, e.g. Tushnet, 1999: 1230). Second, there are competing theories regarding what makes one constitutional order comparable to another and this is closely related to what was said above about different understandings of the relationship between constitutional law and the state. First, the universalist tends to accept comparison with any system as valid as long as it tries to resolve a functionally identical problem. A second, somewhat more restrictive view – one referred to as dialogical – is that while the constitutional law of one state can say little about the constitutional law of another state, it can be used as a contrast to the latter allowing one to better understand or be more critical of the latter. Again, the selection process is a generous one as both similarities and differences can be interesting for the sake of contrasting. The third and most excluding theory is that of genealogy. According to this theory, it is valid to use foreign material in constitutional interpretation in one legal system if the latter system used the former as a model (‘parent’), if the former is inspired by the latter (‘child’), or if both legal systems were shaped after a third system (‘siblings’) (Choudhry, 1999: 833–39). Third, to determine if courts in one legal system should follow an interpretation made by a court in another system is even more complicated. One must first determine if an interpretation of a constitutional issue is proper in a foreign jurisdiction. This is a complex task, not least because there are competing constitutional theories. How does one determine if constitutional law is ‘successful’? One approach is to measure the interpretation against the framers’ intent. This approach conforms to the constitutional theory of originalism. Originalists welcome constitutional comparison but only if it is feasible that the foreign material can say something about the domestic framers’ intent (Alford, 2005: 649). Another alternative is to evaluate the interpretation against fundamental normative criteria of the legal systems such as liberty, equality, and democracy. Finally, one can analyse the interpretation pragmatically focusing on the effect that it has on society. The relevant question in evaluation then becomes if the interpretation steers society in an advantageous direction. Which of these approaches one selects may affect whether the foreign interpretation is considered successful or not. Fourth, assuming that one determines that the interpretation is successful in the foreign system, what ensures that it will be equally effective if adopted in another legal system (Adler, 1998: 350–56; Tushnet, 1998: 327–30)? The basic values of different legal systems are not the same, nor are their framers’

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intent or their views of what characterises a well-functioning society. The political, historical, and cultural context of two legal systems may be so different that it is difficult to draw conclusions about the appropriateness of an interpretation from one system to another (cf. Kommers, 1976: 688–91; L’Heureux-Dubé, 1998: 26–27). This is to some extent also true for comparison of private law matters but constitutional matters are perhaps more closely connected to the foundational values of a society. Moreover, one should keep in mind that the courts making the interpretation are one of the institutions of the constitutional system (Kommers, 1976: 688; cf. Annus, 2004: 328). 4.

Summary and Conclusion

It is not the purpose of this chapter to resolve any of the specific methodological challenges involved in constitutional comparison. Instead, it is in this context sufficient to point to the many difficult methodological questions involved in constitutional comparison. Moreover, while there is much scholarly debate concerning these methodological questions as they pertain to the drafting and interpretation of constitutions, it is largely limited to just that.

IV. POSSIBILITY OF CONSTITUTIONAL/ NON-CONSTITUTIONAL COMPARISON It was concluded above that while there is a trend of constitutional globalisation there is also some support for constitutional particularism and that many commentators argue that there are additional methodological considerations to take into account when the issue one compares is one of constitutional law. The use of comparative law in constitutional development as described above assumes that the issue in question is classified as constitutional; it presupposes a constitutional ‘mindset’. The use of comparative law in the drafting of a constitution demands that someone has consciously decided to write and adopt a constitutional document. Similarly, the use of comparative law in constitutional interpretation presupposes that the issue is recognised as constitutional. One plausible reason why the comparative methodological debate has taken this direction is the importance given to constitutional documents. This connects to another, underlying question: if it is accepted that comparative study of constitutional matters warrants taking special methodological ‘precautions’, how does one determine if a matter is constitutional? Constitutional law has since the Enlightenment and the formation of the French and American constitutions in most countries been equated with a constitutional document (Ackerman, 1997: 771–72; Palmer, 2006: 591–92). Something’s status as ‘constitutional’ is seen as connected to its regulation in

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a constitutional document. In most legal systems, an issue has a superior position in the hierarchy of norms and its modification is subject to special conditions if it is regulated in a constitutional document. Conversely, if an issue is not regulated in the constitutional document, it does not have these ‘special’ characteristics. Under this approach, an issue’s status as ‘constitutional’ and, in turn, the need to take additional methodological precautions in comparing how systems regulate that issue hinge on whether it is regulated in a constitutional document. I propose that one should take a broader approach to constitutional law. While written documents entitled ‘constitution’ are obviously an important source and object of examination, comparative constitutional law should not be limited to the study of these. As radical as the idea may seem to some, the idea that the constitution stretches beyond the constitution is not novel. On the contrary, the written constitution intended to incorporate all central constitutional issues of a state is a ‘recent trend’ that started little more than two centuries ago. While this ‘trend’ undeniably dominates the world and has done so for quite some time, it does not represent the whole picture. England is perhaps the most famous example of an alternate perspective. That England has no written constitution cannot be taken to mean that it has no constitution (Law, 2005: 674). Rather, the English constitution is ‘a socalled “unwritten” constitution’ (Dicey, 1941: 4; cf. Finer et al, 1995: 41–42) and the very concept of constitutional law is relatively modern by English standards (Dicey, 1941: 4–7). Unlike, for example, a French lawyer who can turn to a specific document, the English student of constitutional law must begin by defining what constitutes English constitutional law (Dicey, 1941: 4–6; Finer et al, 1995: 41). The English constitution has been described as indeterminate (lacking precise selection of sources), indistinct (no formal distinction between constitutional laws and other laws), and unentrenched (absence of special conditions for modifying constitutional law) (Finer et al, 1995: 40–43). England is not the only example of this. Israel and New Zealand also lack written constitutions (Palmer, 2006: 591–92). Some might object that the mentioned examples are the odd exceptions and that in countries that have enacted written constitutions that document does incorporate all constitutions. I do not seek to discredit the idea of a written constitution. It has however been proposed by many that these written documents entitled constitutions may distract people from the fact that the document does not represent the ‘complete constitution’ or the ‘working constitution’ which is a broader concept than the constitutional document (Finner et al, 1995: 1). For example, von Bogdandy notes that the term ‘constitution’ should not be limited to a legal document but should include the entire legal foundation of a political community (2005: 920). One can in this context consider the United States which has a document

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entitled constitution but which in the end is not the final and complete expression of the constitution. While the importance of the US Constitution when deciding the contents of United States constitutional law cannot be overstated, the document has been subject to the interpretive activity of the United States Supreme Court since the decision in Marbury v Madison.2 While the document remains unmodified (although amended) there are many famous examples of how its meaning has changed drastically through the interpretation and reinterpretation of the US Supreme Court. As Farnsworth notes, ‘the study of constitutional law, as that term is used in the United States, is chiefly the study of those decisions of the Supreme Court of the United States that have interpreted the constitution’ (Farnsworth 1996: 147). A famous example of this is Brown v. Board of Education3 where the Court struck down the so-called ‘separate but equal doctrine’, previously upheld as constitutional,4 as violating the Fourteenth Amendment to the US Constitution. The important role that the US Supreme Court’s interpretation of the US Constitution plays in the development of US constitutional law is especially interesting in this context considering many Supreme Court Justices’ increased willingness to engage in comparative constitutional analysis,5 a topic addressed above. If one accepts that what is constitutional stretches beyond constitutional documents it appears possible to engage in constitutional/non-constitutional comparison. That is not to say that it is easy, however. The methodological considerations involved in other types of constitutional comparisons should reasonably apply equally. That it would be exciting if comparison would reveal that a foreign legal system approaches as constitutional an issue which the domestic system considers being of little constitutional importance, is quite obvious. If so, the comparison exposes considerations that are novel to the domestic system. But can such situations really arise? In the next section, I use European Union law as an example of why and how constitutional/nonconstitutional comparisons may come about.

V.

THE EXAMPLE OF THE EUROPEAN UNION

Comparative studies involving European Union law are likely to give rise to the type of methodological concerns addressed herein because of the uncertain regulation of constitutional matters in EU law. The European Union occupies an intermediary position between a supranational organisation and a federation. The European Union is a ‘hybrid’ between the traditional international organisation and the federation with significant autonomy and institutions necessary for the implementation and realisation of Union law on the local level even without the consent of each Member State but with comparatively limited political powers (Hartley, 2003: 9–10).

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Many commentators hailed the proposed Treaty Establishing a Constitution for Europe as an important, even necessary element in the Union’s transition. Jürgen Habermas believed that the constitution could provide the institutional framework necessary for the Union’s continued development (Habermas, 2001). Advocate General Kokott and Professor Rüth similarly noted the symbolic importance of a constitutional document for the development of an ‘ever closer union’ (Kokott and Rüth, 2003: 1321). That the Draft Constitution for Europe failed to achieve popular support in France and the Netherlands in May and June 2005 does not however mean that the Europe Union completely lacks a constitution. The European Court of Justice has for more than two decades claimed that the Treaty constitutes a constitutional document.6 It is of course possible to disagree with the Court on this point. Weiler has on several occasions argued that the European Union, with or without the adoption of the Draft Constitution, lacks a constitution in the proper sense of the word (Weiler, 2002). Kumm contrarily claims that the European Union already has a constitution (Kumm, 2006). Without taking a position in this debate, it is difficult to ignore that European Union law addresses issues which in most states would be classified as constitutional and has done so for many decades. A definition of ‘constitutional’ that excludes such things as the principles of subsidiarity, proportionality, and loyalty, which are expressed in articles 5 and 10 of the EC Treaty, and the principle of supremacy, as established in the case-law of the European Court of Justice,7 appears overly narrow. Nor can the lack of public support for the Draft Constitution be taken to mean that the European Union is returning to the domain of international organisations. Now, as previously, the European Union is supported by ‘permissive consensus’ created by a combination of the public’s lack of interest and insight into the Union and its generally positive inclination towards European integration (Lindberg and Scheingold, 1970: 62, 121; Hurrelmann, 2007). Regardless of whether one wants to accept that the European Union has or can have a proper constitution there is no denying that the Union legal order addresses issues that in most states would be considered constitutional.8 Comparative law conceivably has a role to play in the development of the constitutional law of the European Union. I would more specifically argue that comparative studies can reveal both constitutional problems that EU law should address and suggestions for how those problems should be addressed. A concrete example of this is the issue of enforcement of substantive Union rights in national courts. In State Procedure and Union Rights I studied the system of legal mechanisms in Union law that govern what procedural rules national courts shall apply to Union rights (Lindholm, 2007). A comparison with state courts in the United States enforcing federal substantive rights revealed, among other things, that the principle of loyalty and the strong focus

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on the effectiveness of Union law, both fundamental to the development of Union law, would be considered as disrupting the vertical division of power between state and federal governments and, as such, a violation of US constitutional law (Lindholm, 2007: 239–58). Procedural rules can easily be overlooked as technical but the comparison with the United States revealed that the issue of what procedural rules a court applies and what procedural rules a court may not apply has significant constitutional implications. This conclusion and the sensitive constitutional implications involved in this issue would not have been apparent without the comparison with another legal system.

VI.

CONCLUSIONS

The use of comparative scholarship in constitutional development has largely been limited to form new or to interpret existing constitutions. Thus, constitutional comparison normally begins with the comparatist selecting a constitutional issue. While this is both natural and acceptable it is not necessary. The humble proposal put forth in this chapter is that legal comparison can lead to the realisation that there is a constitutional dimension to issues not previously classified as constitutional. This can be a potentially valuable contribution of comparative law to constitutional development. The lawmaker or a group of ‘founding fathers’ are the primary actors when it comes to the formation of a new constitution and for the most part also when a constitution is extend to new fields. Consequently, the employment of a comparative method becomes a choice for the legislator. Similarly, constitutional interpretation and the use of comparison in constitutional comparison is first and foremost a matter for judges (cf. Choudhry, 1999: 829). This is not to suggest that comparative legal scholars do not have a function in this situation. Comparative scholars can provide lawmakers and judges respectively with valuable advice when it comes to the formation and interpretation of a constitution. However, I propose that the legal scholar can also fill a function in constitutional development by pointing out the constitutional dimensions to issues not previously considered and that this task belongs more uniquely to the scholarly comparatist. The notion that comparative studies can open eyes to concepts, problems, and solutions not previously considered is hardly novel. Legal scholarship has played an important historical role in the spreading of legal institutions, theories, and concepts across national borders (Law, 2005: 707). What I am suggesting is that the room for constitutional comparison does not necessarily have to be limited to matters already considered constitutional. There are however several methodological questions that should be

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addressed. It was established above that the selection of a comparable legal system and the evaluation of that system’s approach is even more complex when the object of examination is a constitutional issue than one of, for example, private law. Should such considerations be taken into account when one engages in constitutional/non-constitutional comparison and, if so, how? For now I leave these questions unanswered.

NOTES 1. 2. 3. 4. 5. 6. 7.

8.

See, e.g. Thompson v Oklahoma, 487 U.S. 815, 868 (1988) (Scalia, J., dissenting); Printz v United States, 521 U.S. 898, 921 (1997) (Scalia, J.); Atkins v Virginia, 536 U.S. 304, 347–348 (2002) (Scalia, J., dissenting). 5 U.S. 137 (1803) (Nowak and Rotunda 2004:10). 347 U.S. 483 (1954). Plessy v Ferguson, 163 U.S. 537 (1896). See, e.g. Printz v United States, 521 U.S. 898 (1997); Atkins v Virginia, 536 U.S. 304 (2002); Lawrence v Texas, 539 U.S. 558 (2003). Case 294/83, Parti écologiste ‘Les Verts’ v European Parliament, [1986] E.C.R. 1339, para. 23; upheld e.g. Case C-2/88, J. J. Zwartveld and others, [1990] EC.R. I–3365, para. 16; Case C-15/00, Commission v European Investment Bank, [2003] E.C.R. I–7281, para. 75. See, e.g. Case 6/64, Costa v ENEL, [1964] E.C.R. 585, 593; Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle für Getriede und Futtermittel, [1970] E.C.R. 4537, para. 3; Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal S.p.A., [1978] E.C.R. 629, paras. 17–18. See, e.g. Case C-105/03, Criminal proceedings against Maria Pupino, [2005] E.C.R. I–5285; commented in Spaventa (2007).

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Slaughter, Anne-Marie (2000), ‘Judicial Globalization’, Virginia Journal of International Law, 40, 1103–1124. Slaughter, Anne-Marie (2003), ‘A Global Community of Courts’, Harvard International Law Journal, 44, 191–219. Spaventa, Eleanor (2007), ‘Opening Pandora’s Box: Some Reflections on the Constitutional Effect of the Decision in Pupino’, Eur. Const. L. Rev, 3, 5–24. Teitel, Ruti (2004), ‘Comparative Constitutional Law in a Global Age’, Harvard Law Review, 117, 2570–2596. Thill, Jean (2004), ‘The Grand Duchy of Luxembourg’, in L. Prakke and C. Kortmann (eds.), Constitutional Law of 15 EU Member States, Deventer: Kluwer, 541–586. Tripathi, Pradyumna K. (1979), ‘Perspectives on the American Constitutional Influence on the Constitution of India’, in Lawrence Ward Beer (ed.), Constitutionalism in Asia: Asian Views of the American Influence, Berkeley: University of California Press, 59–98. Tushnet, Mark (1998), ‘Returning with Interest: Observations on Some Putative Benefits of Studying Comparative Constitutional Law’, University of Pennsylvania Journal of Constitutional Law, 1, 325–349. Tushnet, Mark (1999), ‘The Possibilities of Comparative Constitutional Law’, Yale Law Journal, 108 (6), 1225–1309. Ukai, Nobushige (1979), ‘The Significance of the Reception of American Constitutional Institutions and Ideas in Japan’, in Lawrence Ward Beer (ed.), Constitutionalism in Asia: Asian Views of the American Influence, Berkeley: University of California Press, 114–127. von Bogdandy, Armin (2005), ‘The Prospect of a European Republic: What European Citizens are Voting On’, Common Market Law Review, 43, 913–941. Watson, Alan (1991), Roman Law and Comparative Law, Athens: University of Georgia Press. Weiler, Joesph H.H. (2002), ‘A Constitution for Europe? Some Hard Choices’, Journal of Common Market Studies, 40, 563–580. Weinreb, Lloyd L. (1987), Natural Law and Justice, Cambridge: Harvard University Press. Zweigert, K. and H. Kötz (1998), An Introduction to Comparative Law, 3rd ed., Tony Weir trans., Oxford: Oxford University Press.

10. Comparative aspects of fundamental rights in Germany and Central and Eastern Europe: the example of Ukraine Kateryna Karpova I. FUNDAMENTAL RIGHTS IN GERMANY: GENERAL CHARACTERISTICS The German Constitution of 1949, the Basic Law, as one of the first post-war Constitutions, has realised a new orientation which has contributed to the further development of constitutionalism in Europe: it has placed the individual at the centre of constitutional law by recognising that the dignity and liberty of man are the highest values.1 Therefore, the Basic Law has adopted a charter of fundamental rights as the first part of the Constitution which constitutes a comprehensive value order with impact on each branch of internal law, on public as well as on private law. Fundamental rights in Germany are conceived as subjective rights,2 which means that the individual as such is the holder of these rights and entitled to invoke them directly before the courts. Thus, the fundamental rights are not only objective principles which must be implemented by the legislator to be effective. The German Basic Law has the intention of giving directly applicable rights to the individual and of avoiding programmatic norms which outline a constitutional programme but do not give direct rights under the Constitution.3 For historical reasons constitutional programmes as foreseen by the Weimar Constitution (see Anschütz, 1933: 507–510, 511, 513–514) were considered inefficient and intentionally not introduced into the 1949 Constitution. The subjective character of the Fundamental Rights corresponds to their classic function: the defence of the individual against state,4 or more generally stated, against intervention of public power. The entirety of the subjective rights forms an efficient system of protection which cannot be overridden in substance by the legislator. Here, the modern approach in constitutional law is visible: the legislator, formerly allowed to limit fundamental rights without 151

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restriction, is no longer unlimited in its treatment of these constitutionally embodied rights. The German Constitution was the first Constitution to expressly formulate the guarantee of the ‘very essence’ (the nucleus or the ‘Wesensgehalt’) of fundamental rights,5 which intends to exclude excessive legislative intervention. Besides that, the German Constitutional Court has developed the principle of proportionality,6 a further barrier to the excessive limitation of fundamental rights. It is well known that these substantive safeguards of the fundamental rights are procedurally assured by a well-functioning system of judicial review of legislation by the Federal Constitutional Court. Fundamental rights in Germany are conceived as having a complex nature: they are also understood as institutions (Mager, 2003: ch. 30,31), and besides their institutional character, they are the basis for the state’s obligation to actively protect the values embodied in them.7 This means that the legislator is obliged to adopt laws with substantive, procedural and organisational provisions, efficient in protecting fundamental rights against threats by private persons. In this way, the vertical relationship between public power and the individual is complemented by a ‘horizontal’ relationship between individuals. The supreme value of state and society is human dignity, embodied in Article 1 of the Basic Law, and conceived of as the basis of the fundamental rights. Even a constitutional reform could not abolish or reduce the guarantee of this highest value.8 It is significant that this ‘anthropocentric model’ (Arnold, 2005a: 389–397, 393–394; 1990: 1–3) as realised by the Basic Law, which is essentially based on the recognition of human dignity, is reinforced by a modern conception of the rule of law. While legality was the core principle in a former, initial stage, the present day conception is essentially based on the constitutionality of legislation (Arnold 2000: 65–78, 71). The legislator is not seen as a sacrosanct body whose will cannot be challenged, but is subject to the Constitution as the basic normative order. The French Conseil constitutionnel convincingly stated the case in 1985: ‘La loi n’exprime la volonté générale que dans le respect de la Constitution’.9 This is a necessary up-date of Rousseau’s dictum: ‘La loi exprime la volonté générale’, which clearly reflected the principle of legality. The rule of law today is value-related, values that are embodied – explicitly or implicitly – in the Constitution. The modern German rule of law is therefore a concept based on constitutional values and closely linked to the system of protection of fundamental rights: both the legality model and the constitutional model are complementary and functionally reinforce each other. A further striking characteristic of the German system of fundamental rights (as well as of other systems) is its interdependence with international

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law (Karpova, 2007). National rights are principally interpreted in the light of international guarantees.10 However, here a certain problem arises which does not exist in many other EU member states: the German system is traditionally based on the transformation of international treaty law into national ordinary law. This means that this type of law is equalised with federal legislation but has no rank superior to ordinary laws, as is the case in many other states, such as France, Spain and most of the new democracies in Central and Eastern Europe (examples include: Poland, the Czech Republic, the Russian Federation etc.) (Arnold, 2002: 17–29). Hence it has come to be that the German Constitutional Court, for example in the Görgülü-case, has underlined the inferiority of the European Convention of Human Rights (ECHR) in relation to the German Constitution (Arnold, 2005b: 805–815). The Constitutional Court, on the one hand, made reference to the country’s openness towards international law (‘offene Staatlichkeit’ or ‘open statehood’) but, on the other hand, gave preference to the German solution realised in the national legislation on the relevant area (in this case, family law). In this case, the potential divergence of German constitutional law from the ECHR became significant. In fact, in the case of Caroline of Monaco which concerned freedom of expression and personality rights, the courts in Karlsruhe and Strasbourg already had divergent positions. In the Görgülü case,11 the court intended to examine the relations between father, mother and child from the perspective of the German Constitution, in particular under Article 6 of the Basic Law. This article protects the family in a quite general formulation,12 noting in particular the importance of the protection of the welfare of the child.13 The Strasbourg court applied Article 8 of the ECHR to the question of whether the father should have the right to care for his child or whether this right remained in the hands of a family which was about to adopt the child. The Strasbourg court underlined the natural link between father and child and came to the conclusion that the father should be given this right because of the natural link. The German Constitutional Court on the other hand denied this consequence for the relationship between father and child. The Constitutional Court stressed the fact that the German Family Law had set up a detailed system which was in itself interdependent with and orientated towards the requirements of the Basic Law as foreseen by Article 6.1. Furthermore, the court stressed that the ECHR would not sufficiently respect the various relationships between the mentioned persons in their totality, but had a more bipolar perspective of the relationship between father and child.14 This judicial conflict sparked a fierce controversy on the role of the Strasbourg Court in interpreting the fundamental rights of the ECHR and of the Federal Constitutional Court in interpreting the fundamental rights of the

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Basic Law. The President of the German Constitutional Court, Professor Papier, declared that the Strasbourg Court should refrain from intervening in detailed systems of national legislation, such as the system of family law in Germany. It should limit itself to examining basic questions which concern the existence of the rule of law and democracy. The then president of the European Court of Human Rights, Professor Wildhaber, defended the position of the Court and underlined the competence of the European Court of Human Rights to also examine the legislative details of the national order under the Convention.15 In a case prior to that of Görgülü, the case of Caroline of Monaco, which focused on freedom of expression and personality rights, a divergence between the two courts became equally manifest (Europäische Grundrechte Zeitschrift [EuGRZ]2005: 540). The German solution presented by the Federal Constitutional Court was based on legislation dating from the beginning of the 20th century. The German legislation relevant in this case was the Act on Copyright for Visual Arts and Photography of 1907,16 Article 22 of which deals with the right to publish pictures of persons. The publication needs the explicit or implicit consent of the person concerned, no consent being required if a person of contemporary history17 is involved. Caroline of Monaco was regarded as being such a person. For this reason the publication of photos of her private life is less protected than the publication of photos of normal persons, on the basis that there is a public interest to be informed, as recognised by Article 5 of the Basic Law. In this case, the perspectives of the German Constitutional Court and the European Court of Human Rights were revealed to be clearly diverging.18 While the German Constitutional Court accepted the publication of photos of Caroline of Monaco’s private life, the Court of Strasbourg applied the European Convention on Human Rights with a different result. The Court came to the conclusion that the right of privacy including the right to decide whether the photos depicting private life should be published or not, protects every person, even those of contemporary history. Only in the case that a person does something which has public relevance, will privacy not be an obstacle for the publishing of the photos. In the case of Caroline of Monaco the Strasbourg Court held that the decision of the German Federal Constitutional Court did not conform to the European Convention on Human Rights. These two significant divergences do not hinder the fact that although the German Constitutional Court almost never quotes jurisprudence from Strasbourg, its interpretation of fundamental rights normally conforms to that of the Strasbourg Court. This is a task normally performed during the preparation of such a German decision.

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Since fundamental rights have also been developed at the level of supranational law, the impact on national rights is not hindered by the mentioned transformation concept. Here, the supremacy of EC law is relevant and leads to even more influence of supranational rights at national level. This effect – which is now linked to the unwritten rights found by the Luxembourg judges – will be considerably stronger after the entry into force of the EU Charter of Fundamental Rights. German fundamental rights no longer have exclusive competence in protecting the individual in Germany. Since the June summit in Brussels it seems clear that the European Union Charter of Fundamental Rights will come into force with the Reform Treaty, which is in substance a European Constitution (European Council 2007). These rights shall become valid at the latest in 2009, with the next European Parliament elections. The question then is whether the German fundamental rights or the EU rights will be applicable. This is a problem of the relationship between EU law (supranational law) and German constitutional law. The Federal Constitutional Court has already dealt with this issue in its famous Solange decisions (1974 and 1986),19 giving priority in principle to the European rights (Arnold 2007). This position will also be valid for the EU Charter of Fundamental Rights. It is clear that this charter is not only binding for EU institutions but also for German organs when applying EC/EU law. The Solange II decision is the result of long lasting development in German constitutional law. Twelve years before this decision, the starting point was the Solange I decision delivered in 1974.20 At that time the constitutional judges of the Federal Constitutional Court stated that an efficient protection of fundamental rights for the individual was indispensable. At the Community level at that time, neither written nor unwritten fundamental rights existed. The judges considering the fundamental rights protection of the individual as indispensable applied the fundamental rights of the German Basic Law. But the judges were also aware of the logic of the future integration process. Taking into consideration that, in the course of time, a charter of fundamental rights would be created, they affirmed that such an event would make it possible to focus on the supranational fundamental rights protection. This dynamism of European integration was considered as important in this context. Thus, it was clear that a shift of the standards of protection from the national to the supranational level had to be accepted by the Federal Constitutional Court. Twelve years later the judges invoked the unwritten fundamental rights charter by refraining from the application of the German fundamental rights as such. It was not deemed necessary that a written Fundamental Rights Charter existed as outlined by the first decision in Solange I. The judges were satisfied by the development of an unwritten

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fundamental rights protection standard on the basis of so-called general principles of Community law, which constituted a system of fundamental rights equivalent to that of the German Basic Law (Arnold 2007). Also in this decision, the aspect of dynamism was considered as decisive. The Constitutional Court regarded itself as a guardian of fundamental rights: if the supranational fundamental rights standard were to be fundamentally reduced, the German Federal Constitutional Court would apply the German fundamental rights again. In 2000 the Constitutional Court confirmed this position in the decision on the Banana market system.21 It expressed clearly that the Maastricht decision of the Federal Constitutional Court in 199322 had not changed the situation. In this decision, a relationship of co-operation between the Federal Constitutional Court and the European Court of Justice was outlined. This was a clear consequence of the Solange II jurisprudence, which whilst attributing the competence to examine supranational legal acts with regard to fundamental rights to the European Court of Justice, confirmed that the German Federal Constitutional Court had the power to examine whether the standard of fundamental rights at the Community level was sufficient in comparison to the standard of fundamental rights of the German Basic Law. It can be said at present that there is no threat of an essential reduction of the protection of fundamental rights, because the Reform Treaty will refer to the EU Charter of Fundamental Rights.23 Thus, the potential conflict between the supranational and national fundamental rights protection has been solved in a moderate manner and without a clear divergence from Community Law. The question of finding a solution to a potential conflict between the ECHR and supranational law also arises. This is a problem which is also important for German authorities. A German authority applying Community law must apply the German Basic Law, European Community law in the form of its unwritten general principles, the EU Charter of Fundamental Rights (after its entry into force) and the ECHR. If the action of the national authority applying Community law is examined under the Strasbourg Convention, the question is whether the Strasbourg court applies the Convention or supranational EC rights. In 2005, in the Bosphorus case,24 this court adopted a similar solution to that of Solange II. The Strasbourg court recognised in general the existing standards of EC fundamental rights and refrained from an examination of EC legal acts applied by national authorities under its own Convention. This is exactly the German Constitutional Court’s perspective as was applied in the Solange II decision. The only difference is that the Strasbourg Court would refer to the ECHR despite the approach mentioned.

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II. COMPARATIVE CONDITIONS OF THE CONSTITUTIONS IN CENTRAL AND EASTERN EUROPE During the new phase of evolution of constitutional law in Europe, beginning at the end of the Second World War, similar tendencies to those in Germany appeared in other parts of Europe. Although in 1920 in Austria a Constitutional Court was established with the power to challenge legislation (which was also established in Czechoslovakia) (Arnold, 1992: 7–28, 13), the possibility of review of legislation was exceptional. The general situation changed only in the post-war period. The end of the 1970s was the second significant period, when constitutions with a new orientation were adopted in Spain, Portugal and Greece after the end of their authoritarian systems (Arnold, 2006: 41–50). Most significant was the development which took place in Central and Eastern Europe after the fall of the communist regimes in the late 1980s. The constitutions of these countries show characteristics which are in part comparable to those of the German Basic Law, even if there has been only an implicit, or at least no direct, influence. It is of course very difficult to estimate the influence of one constitution on others. But, what is striking – whether under the influence of German constitutional law or not – is the fact that this new orientation, in particular the preference given to the individual (the ‘anthropocentric’ orientation), has now spread widely and become the main characteristic of the new Central and East European constitutions. It seems therefore important to take a look at the new constitutions and their basic concepts which are relevant in our context. The constitution-making process in Central and Eastern Europe coincided with the end of communism as an ideological and political power in these countries, but was rather complex (Boulanger, 2002). New constitutions were created mostly in successive phases, first with a basic modification of the existing constitution (by introduction of the core elements of a democratic system), then with an overall reshaped Constitution. Examples for this type of constitutional transformation in several steps are Poland (Mojak, 2006: 67–88) and Hungary (Küpper, 2007). In Ukraine, the 1978 Soviet influenced constitution was modified in 1989 by abolishing the leading role of the Communist Party, and in 1996, a new Constitution was adopted with an anthropocentric orientation. In order to demonstrate this orientation, the following examples shall be cited: The dignity of man is recognised in the very first part of the Constitution in Article 3, where it is qualified – together with life, health and honour – as the ‘highest social value’. Article 28 repeats this guarantee as a fundamental right.

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Dignity is the basic idea for the totality of human and fundamental rights in the Ukrainian Constitution, as well as in constitutions in countries where fundamental rights are a reality and not merely paper rights (see for example Article 1 of the Czech Rights Charter; Article 30 of the Polish Constitution, Article 21 Slovenian Constitution or Article 54 (1) Hungarian Constitution). Generally the Central and East European constitutions contain comprehensive guarantees of fundamental rights. This means that fundamental rights form a complete value order. As the German Federal Constitutional Court has pointed out, the fundamental rights constitute such a comprehensive order25 which has to be completed in particular by the relevant constitutional jurisdiction. If there are no specific fundamental rights in the text of the constitution, Article 2(1) Basic Law presents a general fundamental right which is to be applied in subsidiary way. Corresponding provisions can be found in part in the constitutions of the new democracies. If there is no comparable provision, the constitutional judges have to ‘find’ them by interpretation. In this sense there are no gaps in the constitutional guarantees of fundamental rights.26 It is up to the constitutional and other judges to interpret existing rights as sources of new, additional rights, which correspond to new, previously unknown needs for protection. Often, the constitution itself contributes to the solution of this problem: Article 22(1) of the Ukrainian Constitution clearly says that the written fundamental rights are not ‘exhaustive’. This encourages judges to find new guarantees via interpretation. Besides that, Article 23 of the Ukrainian Constitution, which is partly comparable to Article 2(1) of the Basic Law, guarantees personality rights and could be understood in the same way as the German provision, which has been expanded by the Constitutional Court into a general guarantee of freedom. Thus, courts could use this article to cover new challenges (see also Article 2(3) of the Czech Rights Charter, Article 2(3) of the Slovak Constitution). Corresponding to the individual-related, anthropocentric approach, constitutional rights are understood as subjective rights (Alexy 1990: 49–68, 53, 60–64). The fact that access to the courts as an essential element of the rule of law27 has become more and more important also shows a tendency to characterise fundamental rights as subjective norms. This can be said to be the case for Ukraine and other Central and East European countries. Fundamental rights have a complex character encompassing subjective rights, objective values and even institutional guarantees. This is true for Ukraine as well as for other Central and East European countries. It is crucial for the scope and extent of fundamental rights that the national legislator is not allowed to limit the rights in an excessive way. The Ukrainian Constitution contains safeguards, which prevent the legislator from an uncontrolled and excessive restriction of fundamental rights, as do other constitutions. The guarantee of the very essence of a fundamental right is of highest

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importance in this context. Article 22 of the Ukrainian Constitution contains elements of such a guarantee (see also Article 4(4) Czech Rights Charter, Article 3(4) Slovak Constitution). Beside that, the principle of proportionality forms a barrier against excessive state intervention. This principle allows restrictions of fundamental rights only if they are really necessary. Furthermore, in Ukrainian constitutional law (as well as in the legal orders of other CEE countries) a modern concept of the rule of law (SchmidtAßmann 1987: § 24, 987–1043) has been normatively anchored. Political practice must realise the normative concept. It has to be noted here, that apart from the influence of other Constitutions, the ECHR has exercised an extraordinary influence on novel concepts encapsulated and pursued by the constitutions.

III.

CONCLUSION

Comparatively, it can be stated that different national systems of constitutional law in Europe in the 21st century exhibit similar tendencies, particularly in the field of fundamental rights (Arnold, 2004: 733–751). The anthropocentric orientation is a new approach which has appeared since the end of the Second World War. The German concept of fundamental rights as laid down in the German Basic Law and elaborated on by the Federal Constitutional Court provided the influence for the further development of this concept. International law, in particular the ECHR, has also made an essential contribution to this process. Fundamental rights have become the essential part of a modern constitution. They form an efficient, comprehensive system of protection, whose structure is subjective (that is individual-related) and which can be invoked before the courts. Fundamental rights, based on human dignity, are conceived of as values which impact on all branches of law. The legislator is bound by fundamental rights and is not able to restrict them beyond constitutionally determined limits. The new democracies in Central and Eastern Europe have adopted this idea of anthropocentrism, as the example of the Ukraine shows, which must be increasingly realised in policies as well. The constitutions and the constitutional jurisdictions in the Central and East European countries have clearly adopted the standards of modern constitutional law in Europe. Especially in the fields of fundamental rights and the rule of law, similar elements have evolved based on a common legal thinking. The influence of the ECHR on the shaping and interpretation of guarantees of fundamental rights in these constitutions was of high value. Therefore it is possible to speak of an emerging common European value standard.

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International law and supranational law have their own unifying impact on the different constitutions. Insofar as Central and East European countries are members of the EU, the EU Charter of Fundamental Rights will be applicable in the future. Today, the general principles of Community law are the relevant standards for EU-related activities conducted by national authorities. The process of convergence of constitutional law, especially in the fields of fundamental rights and the rule of law, is not only significant in the member states of the EU, but also in countries such as Ukraine which has a neighbourly relationship with the EU, but is not a member state. Fundamental rights of the Ukrainian Constitution interpreted by the Constitutional Court are about to adapt to a similar structure to that which the German fundamental rights have. General tendencies in European constitutional law also lead to similarities with Germany in conceptions of fundamental rights. Fundamental rights are conceived of as subjective rights which contain objective values and constitute comprehensive standards of values. The institutional character of fundamental rights is not unknown in Ukrainian constitutionalism either. The impact of international law is also recognisable in this system. Therefore, it can be said that the Ukrainian system and the Central and East European constitutional orders are contributing to the emergence of common principles of European constitutional law.

NOTES 1. See German Federal Constitutional Court (FCC) vol. 6, p. 32, 36, 41; vol. 7, 377, 405. 2. See FCC vol. 7, p. 198, 204–205; vol. 21, p. 362, 369. 3. See Article 1.3 of the Basic Law. 4. See note 2. 5. See vol. 22, p.180, 219. 6. See FCC vol. 19, p. 342, 348–349. 7. See FCC vol. 49, p. 89, 142; vol. 56, p.54, 78; vol.65, p.1, 45–46. 8. See Article 79.3 of the Basic Law. 9. Dec. du 23 août 1985, Rec, 70, 76. 10. See for example Article 10.2 of the Spanish Constitution. 11. Decision of 14 October 2004 – 2 BvR 1481/04, avalible at www.bundesverfassungsgericht. de/entscheidungen.html (accessed 10 July 2009). 12. Marriage and the family shall enjoy the special protection of the state. 13. This results indirectly from Article 6.2 Basic Law which lays down the duty of the state to watch over the parents’ caring and upbringing of their children. 14. See section I. 3. a of the decision (note 18). 15. See www.jurablogs.com/de/papier-und-der-egmr (accessed 10 July 2009). 16. RGBl (Official Journal), 1907, 7. 17. ‘Person der Zeitgeschichte’ see Article 23.1 No. 1 of the quoted Act. 18. See decision of the European Court of Human Rights of June 24, 2004 and of the FCC, decision of 15 December 1999 – 1 BvR 653/96. However, it should be noted that the FCC did not accept the publication of those photos which show Caroline of Monaco consoling her children who had fallen from the horse, by reference to Article 6(1) Basic Law containing the protection of family and matrimony. This Fundamental Right was regarded by the FCC as strengthening the privacy protection.

Comparative aspects of fundamental rights 19. 20. 21. 22. 23. 24. 25. 26. 27.

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Solange I: FCC vol. 37, p. 271 and Solange II: FCC vol. 73, p. 339. See note 28. Decision of the FCC of 7 June 2000 – 2 BvL 1/97. See FCC vol. 89, p. 155. See English full text in OJ of the EC of 18 December 2000 Nr. C 364/1. See Judgment of 30 June 2005 and Jacobs (2006). FCC vol. 6, 32, 37. See also vol. 7, 198, 205; vol. 21, 362, 371–372. In this sense FCC vol. 6, p. 32, 36; see also vol. 2, p. 1, 12. See Article 19.4 of the Basic Law.

REFERENCES Alexy, R. (1990), ‘Grundrechte als subjektive Rechte und als objektive Normen’, in Der Staat, 29. Anschütz, Gerhard (1933), Die Verfassung des Deutschen Reichs vom 11. August 1919, 14 Aufl. 1933 (Nachdruck, 1965). Arnold, R. (1990), Profili di Giurisdizione Costituzionale Comparata. I sistemi tedesco, austriaco e francese, Trieste. Arnold, R (1992), ‘Rechtsstaat und Normenkontrolle im Europa’, in Essays in Honour of Bodo Börner. Arnold, R. (2000), ‘Le principe de l’Etat de droit dans les nouvelles Constitutions de l’Europe centrale e orientale’, in Studies in Memory of Rolv Ryssdal. Arnold, R. (2002), ‘Das Prinzip der Kontrolle des Gesetzgebers in der Verfassungsgerichtsbarkeit Mittel- und Osteuropas als Ausdruck gemeineuropäischen Verfassungsrechts’, Jahrbuch für Ostrecht [JOR], 43. Arnold, R. (2004), Festschrift Georgios I. Kassimatis, Athens, Interdependenz im Europäischen Verfassungsrecht. Arnold, R. (2005a), ‘Constitutional Developments in Central and Eastern Europe as a Contribution to Emerging European Constitutional Law’, in Internationale Gemeinschaft und Menschenrechte, Essays in Honour of Georg Ress. Arnold, R. (2005b), ‘La Cour constitutionnelle fédérale allemande et la Cour européenne des droits de l’homme’, Revue internationale du droit comparé, Paris. Arnold, R (2006), ‘Die Staatliche Verfassung im europäischen Kontext: Überlegungen zum heutigen Stand des Konstitutionalismus’, in De Grondwet verleden, heden en toekomst, Belgische Senaat, Cahier No. 2. Arnold, R. (2007), ‘Cours suprêmes nationales et cours européennes: concurrence ou collaboration – Allemagne’, In memoriam Louis Favoreu, sous la direction de Julia Iliopoulos – Strangas. Boulanger, Christian (2000), (ed.), Recht in der Transformation. Rechts- und Verfassungswandel in Mittel- und Osteuropa, Beiträge zur Debatte. European Council 21/22 June 2007, Presidency Conclusions, available at www. consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/94932.pdf (accessed 10 July 2009). Europäische Grundrechte Zeitschrift [EuGRZ] 2005. Jacobs, Francis G. (2006), ‘The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice,’ in Ingolf Pernice, Juliane Kokott and Cheryl Saunders (eds.), The Future of the European Judicial System in a Comparative Perspective, available at www.ecln.net/elements/ conferences/book_berlin/jacobs.pdf (accessed 10 July 2009).

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Karpova, K. (2007), ‘Europäische Nachbarschaftspolitik und Grundrechtsschutz: zu den externen Dimensionen der nationalen Grundrechte’, in R. Arnold (ed.), Das Kooperations- und Partnerschaftsabkommen EU – Ukraine und seine Neufassung im Rahmen der Europäischen Nachbarschaftspolitik. Die rechtlichen Rahmenbedingungen für ausländsiche Investitionen in der Ukraine, Deutsch – Ukrainische Rechtsgespräche vol. 3, Regensburg 2007, 31–36. Küpper, H. (2007), Die ungarische Verfassung nach zwei Jahrzehnten des Übergangs. Mager, Ute (2003), Einrichtungsgarantien, Tübingen, Mohr Siebeck. Mojak, Ryszard (2006), in Wieslaw Skrzydlo (ed.), Polskie Prawo Konstytucyjne. Schmidt-Aßmann, Eberhard (1987), ’Der Rechtsstaat’, in J. Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. I.

PART III

Comparative private and economic law

11. Making the Principles of European Contract Law: theoretical and methodological aspects* Ole Lando Why is examining the laws and customs of foreign nations useful? We lawyers who are possessed by the wish to improve the law cannot but help to search for the best solution, and in the search for the best solution we have to study foreign laws. Today there is a need to unify or harmonise the laws of the world or a region of the world, as for instance Europe. In this chapter, I shall not give the grounds for this need, just state that it is there. What I shall do instead is give an account of how laws were examined and used when the Principles of European Contract Law (PECL) were elaborated.

I. THE MEMBERS OF THE COMMISSION ON EUROPEAN CONTRACT LAW (CECL) The project to prepare the PECL was new, and its aim to provide uniform contract rules for the EU was controversial. Some of those who were asked to become Members of the Commission on European Contract Law (CECL) were reluctant to work without pay in a venture with an uncertain future. It took almost two years to get all EU countries represented in the CECL. However, I succeeded in getting a team of independent academics. They were, if not experts, certainly well-read in contract law. Most of them were familiar with the systems and structures of foreign laws, and all of them were ready to accept that their own legal system did not in every respect provide the best solution to a problem. The work began in 1982. The First Part of the Principles, prepared by the First Commission, was published in 1995. The book by the Second Commission, which also included a revision of the First Part, and which therefore comprised Parts I and II (Lando and Beale, 2002 – hereinafter PECL I & II), appeared in 2000. The Final Part III, prepared by the Third Commission, 165

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came out in 2003 (Lando et al, 2003 – hereinafter PECL III). Most of the Members worked in all three Commissions. When EU was enlarged, Members from the new countries joined CECL. In the beginning we were 15 and in the end 23 Members.

II.

HOW DID THE CECL PROCEED?

Reporters, Drafting Groups and Plenary For each subject, for instance, on formation or on validity of the contract, a Reporter was appointed to draft a chapter. The Reporter then prepared a draft of articles and comments. In the first CECL there were four, in the second five and in the third eight Reporters, two of them working together on one chapter. The Reporter’s draft was first examined by a Drafting Group, which in the first two Commissions consisted of the Reporters. The reporters came from Denmark, England, Germany, France and the Netherlands. In the third Commission four Members, who were also of different nationalities, examined the Reporter’s draft with the Reporter. Before they start drafting, some groups conduct thorough comparative research of the subject. In the CECL the Reporter did the initial research. The Drafting Group often made substantial changes. They would either draft revised texts or ask the Reporter to draft a new text. In doing this the Members of the Drafting Group would add the experiences from their own and other legal systems. The amended draft went to the Plenary, which made amendments and suggestions for amendments. Here all the legal systems of the EU were represented. In the first two Commissions the course from Reporter to Drafting Group and to Plenary was repeated twice, so that there were three readings. In the third Commission there were only two readings. When the work was about to be finalised, an Editing Group was formed for language revision and to ensure consistency in the use of concepts, something that proved to be very useful. The work was time consuming, as it was new to the Members, who had to learn by trial and error. In spite of the fact that most of the Members had some knowledge of foreign law, they only gradually came to understand each other’s ‘legal mentality’. The CECL met at intervals of four months to almost one year and normally convened each time for five working days. The Drafting Groups met more frequently for two or three days at a time. The intervals between the meetings of the Plenary were needed for the Reporters and the Drafting Groups to do their work, but the long intervals were a drawback. Members forgot what had been discussed and decided in the previous meetings. However, the Minutes

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of the meetings of the Plenary helped to avoid repeat discussions of issues that had been decided at earlier meetings. No chairman was needed for the meetings of the Drafting Group. The meetings of the CECL were chaired by different Members. In both Groups we strived to reach consensus. If consensus could not be achieved, a vote was taken. The Members frequently tried to visualise how concrete cases would be solved in their country and found that the national contract laws generally differed more in the formulations and techniques than in the results. The lesson taken was that contract law is a question of ethics and economics that are common to all lawyers rather than a question of national cultural attitudes. Only on a few occasions did the differences of opinion reflect such attitudes. In discussing whether the greatest emphasis should be laid on the objective or the subjective interpretation of contracts the British and Irish Members wished to give the objective interpretation of contracts a paramount role. They claimed that the court should focus first of all upon the language of the contract, not upon the intention of the parties. On this issue they were in fact followed by some civilian lawyers. However, a close majority gave prevalence to a subjective interpretation, and this approach was then laid down in PECL Article 5:101 (1) and (2), which were placed before the rule on objective interpretation in Article 5:101 (3). Sometimes the disagreement turned on whether the Principles should reflect a ‘liberal’ or a ‘social’ justice. The credo of the ‘liberals’ was freedom of contract in a market economy. They wished economic agents to have freedom. Government regulation of commerce impedes the growth of the economy. For them it was more important that the cake is big than that it is equally distributed. The liberals maintained that too strict ethical standards would be a barrier to trade, promote litigation and lower profits, which they claimed are so important for investments. The ‘socially oriented’ Members opposed the ‘market ideology’, which, they claimed, governs the Council and the Commission of the European Communities. They claimed that too much freedom of contract allows the stronger to exploit the weaker party. The market economy must be regulated by an efficient enforcement of mandatory rules that serve the public interest, protect the weak parties and ensure fairness.1 As far as I can judge, none of the Members were wild liberals and the ‘socially oriented’ view was not pressed very hard by those who nourished it. The CECL took a middle course and provided rules that have been described as reflecting un esprit collectif. This esprit is, for instance, manifested by the good faith principle, which the PECL ‘imposed with some vigour’, as it was said.2 Drafting was often in dispute. There were, for instance, those who wished the articles to be detailed and those who preferred a succinct language. Those who wanted detail claimed that short articles give less guidance than the

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detailed ones, and that they call for more comments, which the users might not read. Those who argued for conciseness maintained that succinct rules are richer in their implications and leave the courts freedom to develop the law in the course of time. In most cases, conciseness was preferred. It was soon realised that, whereas the Plenary could decide on the substance of the texts, it was too large to draft the language of the articles and comments. Therefore, drafting was left to the Reporter and to the Drafting Group. Sometimes an ad hoc drafting group, mostly consisting of the Reporter and a few other Members, was set up during the meeting of the Plenary. It would work during the lunch break and in the evening and then report back. The CECL wished to draft rules which were easily understood by the prospective users of the Principles, the practising lawyers and business people. The very abstract formulations that you find in the German Civil Code were avoided. Article 1:101 (1) of PECL provides that the Principles ‘are intended to be applied as general rules of contract law in the European Union’. This could mean a code that shall bind the Member States, but it could also mean that the Principles were to be ‘soft law’, which legislators, courts and parties could adopt if they so wished, and this is the status of the PECL today as it is the status of the Unidroit Principles of International Commercial Contracts (UPICC),3 which were not meant to become binding law. It should, however, be noted that the rules of both instruments were drafted so that they can be made into binding rules without many strokes of the pen (Lando, 2005: 3).

III. 1.

SOURCES OF INSPIRATION Presentation and Structure

In several respects the American Restatements of the Law served as a model for the way in which the PECL were presented. Like the Restatements they contain articles accompanied by comments. The comments explain the operation of each article and its interpretation. They give illustrations, very short cases, which show how a rule operates. Some illustrations are taken from real court decisions; others are invented. The Principles have notes, which give an account of the rules of the legal systems of the EU Member States. These notes were supplied by the Members of CECL and edited by the Reporters and the editors. They contained statutory provisions, case law and literature. The literature mentioned gave an account of the law as it was applied by the courts. Professorial doctrine of mainly academic interest was generally not reported. Each note covered first those legal systems from which the rules in the article were taken, or which provided rules

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very close to it, and among these systems there were also non-EU laws. At the end of the note those systems of law were mentioned that were farthest removed from the article. 2.

Substance

Like the American Restatement of the Law of Contracts 2nd,4 PECL I & II begin with some general rules and then proceed chronologically. Formation of contracts is followed by the authority of agents, then come validity, interpretation, contents and performance and, finally, non-performance (breach) of contract and remedies for non-performance. A similar sequence was adopted by the Group that prepared the UPICC. After having prepared PECL I & II the Commission wished to add subjects, some of which cover obligations in general, i.e. contract, tort, unjust enrichment and benevolent intervention in another’s affairs. PECL III provides rules on plurality of creditors and debtors, assignment of claims, substitution of a new debtor and transfer of contract, set-off, prescription, illegality and conditions. Except for transfer of contract, illegality and conditions, the rules of this part cover obligations in general. In the USA, almost all state laws originate from the common law. To some extent the Restatements therefore restate the Common Law of the United States. The world does not have a common law, nor do the states of the European Union. No single legal system was made the basis of the Principles. However, it is the European world (which in this respect includes Australia, the USA and Canada) that has produced the ideas that have framed the laws of the civilised world, and that also framed PECL and UPICC.5 In CECL the legal systems outside of the Communities were also considered, among them the US law, its Uniform Commercial Code and Restatement of the Law, Contracts 2nd. Both in PECL and UPICC some articles reflect ideas that have not yet materialised in the law of any state. The CECL worked in the same period as the Unidroit Group. Five of the CECL-Members were also Members of the Group of 17 that prepared the first edition of UPICC, which appeared in 1994,6 and so were three of the 17 Members that made the second edition, which was published in 2004.7 The UPICC and the PECL show great similarities. Their terms and structures are similar, and about two-thirds of the provisions of the Unidroit Principles are identical in wording or in substance to those of PECL. As for the rules on formation of the contract and the obligations of the parties including non-performance (breach) and remedies for breach, the two instruments borrowed many of their provisions from the UN Convention on Contracts for the International Sale of Goods (CISG). Together the three form a ‘troika’ of rules, which has had and probably will continue to have great influence all over the world.8

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In order to learn the attitude of the prospective users, Part I of the PECL was discussed at meetings with lawyers in Belgium, England, France, Germany, Portugal and Spain. In most of these countries the idea of having common rules was favourably received. We did not expect the participating lawyers to have undertaken a careful study of the Principles, but we did receive some criticism. The English lawyers found that the Principles had a too strong resemblance to the civil law of the European Continent, notably the French Civil Code. The French lawyers said that the Principles were too similar to the English common law. The CECL also made an analysis of the extent to which the rules in Part I of the Principles were applicable to the more important commercial contracts for the provision of goods and services of various kinds and the transfer of rights (licence agreements, etc.). Although the Principles could not provide the appropriate solution to all the issues raised by each of these specific contracts, the Commission found them applicable to the great majority of these issues.

IV.

TERMINOLOGY

As the English legal terms have mostly been coined by judges who were individualists, the common law terminology is less consistent than, for instance, the German, which has been carefully elaborated by legal scholars and legislators. Today, however, there is no other world language which has the same spread as English so English was made the working language of CECL and the Unidroit Group. In the Unidroit Group English was used exclusively. The CECL used English as the main language but the French Reporters made their drafts in French. In the Plenary, Members who so preferred spoke French. In PECL, a French version of the text of the articles was published alongside the English text.9 The meaning of some of the terms is explained in PECL’s Chapter 1, Section 3 on Terminology. Several of the English common law terms were not suited for an international instrument, and there was a need to establish a special terminology. For instance, we would not use the English term ‘breach of contract’ because in the common law ‘breach’ is only applied when the aggrieved party has the remedy of damages. A term was needed that could also be used when the aggrieved party could not claim damages, but could reduce his own performance or terminate the contract. So non-performance was preferred; see Article 1:301 (4). The Unidroit Working Group chose the same expression. The English use various terms to describe the situation when a party puts an end to a contract because of breach of contract by the other party. One author talks of ‘discharge for breach’ (McKendrick, 1999: 25–001), another uses both ‘discharge’ and ‘termination’ (Furmston, 2001: 599), one

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‘rescission’ (Treitel, 2003: 759) and yet another one ‘termination’ (Goode, 2004: 111–123). CISG uses the term avoidance. The CECL chose termination, and avoidance for the situation when a party ‘nullifies his consent’ because of duress, mistake, fraud or undue influence. Ending of the contract meant that a party puts an end to a valid long term contract in other cases than because of the other party’s non-performance. In Article 6:109 it is, for instance, provided that a contract of an indefinite period may be ended by either party by giving notice of reasonable length. A contract that is illegal because it is contrary to the principles recognised by the Member States of the EU or because it infringes mandatory rules of national law may have no effect or may be rendered ineffective; see Article 15:101–15:103. The English language has no words equivalent to the German Willenserklärung and Rechtsgeschäft. In PECL notice was used to cover concepts that come close to the German ones; see Article 1:303. Statement was also used; Article 6:101 speaks of statements giving rise to contractual obligations.

V.

WHY DID THEY DO IT?

What made the Members of CECL undertake this work? They may have nourished curiosity. It was a good opportunity to get to know the laws of other countries and to compare them with those of your own country. First of all, however, the members of CECL wanted to make a contract law for Europe. Samuel Johnson is quoted for having said: ‘A generous and elevated mind is distinguished by nothing more certainly than an eminent degree of curiosity; nor is that curiosity ever more agreeably or usefully employed, than in examining the laws and customs of foreign nations’.10 Those who undertook these tasks had generous and elevated minds.

NOTES * 1. 2. 3. 4. 5. 6. 7.

Another and somewhat different version of this chapter was published in European Journal of Law Reform 8(47), 477. I thank the editors of the Journal for permission to bring the article here. See on this view Study Group on Social Justice in European Private Law (2004: 653–674). See Mazeaud (1999: 205, 208): ‘L’esprit collectif que les parties doivent respecter . . . s’exprime dans l’éxigence de bonne foi que (les PECL) énoncent avec une certain vigeur’. See also Lando (2006: 817–833). Unidroit, Principles of International Commercial Contracts, Rome (2004). As adopted and promulgated by the American Law Institute, St Paul, Minnesota, 1981. Markesinis (2003: 50). Principles of International Commercial Contracts, UNIDROIT, Rome (1994). Unidroit, Principles of International Commercial Contracts, Rome (2004).

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8.

The rules in PECL and UPICC on formation of contracts are similar to those of the CISG although with important additions. The articles on the agent’s power to bind his principals are inspired by German law. The provisions on validity mostly reflect the continental systems, but do not differ substantially from the common law rules. As for interpretation the nearest model was the French and Italian civil codes. The chapters on performance and nonperformance resemble CISG. The rules in PECL on plurality of debtors and creditors are mostly of continental origin. In both texts the rules on assignment of claims and substitution of new debtor are partly rules that are common to the Member States, partly rules that do not reflect any one single system. The provisions on set-off have similarity with the Nordic rules, which have been developed by the doctrine and the courts. The rules on prescription have some resemblance with the rules of the continental systems but the great simplification provided is new. 9. The French edition of PECL, ‘Principes du droit Européen du contract’ (Rouhette 2003) is a French edition and comprises Parts I, II, and III. It was published in 2005 by the Société de legislation comparé in Paris. See also the website of the Commission on European Contract Law, available at: http://frontpage.cbs.dk/law/commission_on_european_contract_ law/ (accessed 10 July 2009). 10. Hill and Powell (1934: 89) – here quoted from Preface to the Third Edition of Zweigert and Kötz (1998: V).

REFERENCES Furmston, M.P. (2001), Cheshire, Fifoot and Furmston’s Law of Contract, 14th ed., London: Butterworths Law. Goode, R. (2004), Commercial Law, London: LexisNexis. Hill, G.B.N. and L.F. Powell (1934) (eds.), Boswell’s Life of Johnson I. Lando, O. and H. Beale (2000) (eds.), Principles of European Contract Law, Part I & II, The Hague: Kluwer Law International, [PECL I & II]. Lando, O., E. Clive, A. Prüm and R. Zimmermann (2003) (eds.), Principles of European Contract Law: Part III, The Hague/London/Boston: Kluwer Law International [PECL III]. Lando, O. (2005), ‘The European Principles in an Integrated World’, European Review of Contract Law, 1(1), 3–18. Lando, O. (2006), ‘Liberal, Social and “Ethical” Justice in European Contract Law’, Common Market Law Review, 43(3), 817–833. Markesinis (2003), Comparative Law in the Courtroom and Classroom, Oxford: Hart Publishing. Mazeaud, D. (1999), ‘A propos du droit virtuel des contrats: Reflexions sur les Principes d’Unidroit et de la Commission Lando’, in Mélanges Michel Cabrillac, Paris: Litec. McKendrick, E.(1999), in Chitty on Contracts, 28th ed., London: Sweet & Maxwell. Rouhette, G. (2005) (Ed.), Principes du droit Européen du contract , avec le concours de Isabelle de Lamberterie, Denis Tallon et Claude Witz, Paris: Société de législation comparée. Study Group on Social Justice in European Private Law (2004), ‘Social Justice In European Contract Law: A Manifesto’, European Law Journal, 10(6), 653–674. Treitel, G. H (2003), The Law of Contract, London: Sweet & Maxwell. Zweigert and Kötz (1998), Introduction to Comparative Law, 3rd ed., Oxford: Clarendon Press.

12. The questionable questionnaire: reflections on comparative law method in light of Principles of European Tort Law Mårten Schultz I.

INTRODUCTION

This chapter will provide some critical arguments on the use of questionnaires in comparative law research. The point of departure for my critique will be the recently published Principles of European Tort Law (hereinafter PETL), an effort by a group of academics named The European Group on Tort Law (hereinafter EGTL).1 My purpose in this context is not so much to criticise the PETL as such.2 Rather, the aim is to point to some problems with the method employed not only by the EGTL but also by many other research groups in the so-called Europeanisation of private law movement, the questionnaire method. After a short presentation of the PETL the chapter consists of two parts. In the first part, I comment on some practical problems regarding the use of questionnaires in European private law research, while the second part addresses some more theoretical and, I like to think, profound issues.

II.

A SHORT PRESENTATION OF THE PETL

The PETL is the first published final result of the research groups that have made it their purpose to investigate the future of European tort law. It will then be followed by the proposal by the Study Group on a European Civil Code. The purpose behind both the PETL and the Study Group’s suggestions is that if and when European tort law will take further steps towards unification, there will be a need for comparative investigations of the similarities and differences between the European jurisdictions. But the EGTL and the Study Group have come to the conclusion that there is not only a need for reporting the results of such comparative research but also for policy suggestions on what kind of unified tort law future Europe should strive towards. These policy suggestions 173

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have taken the shape of proposals for common European tort law principles, in reality in the form of a sort of a proposal for legislation. The PETL thus looks more like a statute with comments than the results of a comparative research project. As far as one can tell today the proposal by the Study Group will have a similar form. Behind the PETL lie years of comparative research into different tort law systems of Europe. The EGTL has covered a number of topics within these projects: wrongfulness, causation, damages, fault, strict liability, liability for others, multiple tortfeasors and contributory negligence. The different investigations have been continuously published in a publication series, interestingly named ‘Unification of Tort Law’.3 In the comments to the PETL the EGTL often refers to these investigations in support for the different principles. This is in line with the EGTL’s emphasis on finding a ‘common core’ behind the specific principles in national jurisdictions. For instance, it may be discovered that all European jurisdictions uphold a requirement of causation and that this requirement is understood in a manner that can plausibly be considered uniform. I think we can therefore assume that the EGTL’s position is that when a common core of European tort law is discovered this is in itself a strong case for formulating a principle or principles in line with this common core. The working method employed by the EGTL in these projects involved using questionnaires and national reporters from the different European jurisdictions. This approach is not uncommon in the European private law community and other ambitious comparative research projects have chosen a similar method.4 In more detail, and detail may be useful here to get a picture of the process, the work proceeded as follows. The EGTL selected one of its members to set up a questionnaire on a specific concept or notion, say causation. The questionnaire consisted of two parts: one general part dealing with more basic questions and one part consisting of different concrete cases. This questionnaire was, after revisions, distributed to national members who wrote a national report on the basis of the questionnaire. The national reports thereafter provided the basis for comparative conclusions on European tort law.

III. A METHODOLOGICAL PROBLEM: REPRESENTATION There are several problems with the questionnaire method used in these comparative projects. One obvious, practical problem concerns representation. If the method of questionnaires is to be used for conclusions on a common core of European law, one would need to cover all European jurisdictions, or, at least, provide arguments as to why some jurisdictions are more important than others. This will often entail a practical problem of finding reporters from

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all jurisdictions that can answer the questionnaire. (To answer questionnaires can often be quite a tedious and uninspiring task.) To focus on ‘representative jurisdictions’ – for instance to let a report on Swedish law provide a picture of ‘Nordic law’ – is a dangerous strategy, since it means that someone needs to make an assessment of what jurisdiction can be representative of another jurisdiction, and this assessment will in general be made by someone from a third jurisdiction. How can, for instance, a French or a German professor acquire sufficient information for the methodological conjecture that a report on Finnish tort law can also provide a good picture of Swedish tort law? In the case of the PETL, the problem of insufficient representation is brought to the fore. Some European jurisdictions were not covered by the national reports. In the General Introduction of the PETL this problem is acknowledged. The drafters of the PETL there state that even though the ‘very greater part’ of the EU countries was represented in the group, not every jurisdiction was covered.5 The problem, however, is downplayed, as it is further said that this ‘shortcoming was remedied by extensive knowledge of several members of the legal systems of the non-represented countries’.6 I do not think this shortcoming has been remedied at all. Not even all jurisdictions of the EU before the latest expansion are covered in the preparatory investigations published in the Principles Series. From a Scandinavian perspective the selection of countries is difficult to understand if one wants to provide a picture of European tort law. For instance, I think that no report from Finland or Denmark was included in any of the published investigations in the Unification Series. Sweden was covered only in a few of the topics investigated. The Nordic countries were not represented in the Drafting Committee that formulated the final proposal published in the Principles and had only one representative in the EGTL as such.7 This lack of input from the Nordic countries, which together made up one fifth of the number of EU jurisdictions before the latest expansion, is important. In fact, the Nordic countries can provide some interesting contributions to the picture of a European common core. For instance the Nordic countries, including also the Nordic countries outside of the EU (Norway and Iceland), share a common attitude towards tort law within the system of a social welfare state that one can see very few traces of in the Principles.8 No regard is taken in the Principles or the commentaries of the pragmatic and non-formalistic approaches to basic conditions of liability, which has left basic criteria such as causation uncodified, that many see as some of the great benefits of the Nordic approach. That there are few traces of the experiences of Nordic jurisdictions in the Principles is made very clear when one examines the hundreds of references to national solutions of different tort law problems in the footnotes of the PETL. As far as I am aware, Scandinavian countries are only mentioned once

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regarding the content of national law in the footnotes of the PETL altogether.9 At the end of the PETL the principles are translated into 13 languages, including Chinese and Korean, but there are no translations into any Scandinavian language.10 The apparent lack of interest for Northern Europe becomes painfully clear against the fact that EGTL often refers to solutions in many non-European countries. The EGTL apparently found much more inspiration for their European principles outside of Europe than in Northern Europe, to judge from the many references to tort law solutions in US, South Africa and Israel.11 To a considerable extent the same can be said for the EGTL’s treatment of former Eastern Europe and other newcomers to the EU family. It is understandable that the EGTL focused on the EU, but the exclusion of the Baltic countries, Cyprus, Poland, Malta, Slovenia, Slovakia, and Hungary (the Czech Republic was represented in the EGTL) is difficult to explain only with the argument that these nations only recently entered into the EU in light of the many references to countries outside of Europe. It must be understood as a reflection of the interests of the participants of the EGTL, which apparently were in the legal systems of the continental European countries that belonged to the old EU and the United Kingdom.12 This has not stopped the drafters from making general statements that such and such a rule existed in all of Europe.13 The experiences of the EGTL point to a general difficulty with the use of questionnaires in comparative law research. The basic point is obvious, but sometimes it is useful to state the obvious, namely that the questionnaire method gives little support for valid general comparative conclusions that reach beyond the jurisdictions covered. More specifically: one should be sceptical against claims that different ideas or principles belong to a European common core if not all European jurisdictions have been investigated. A complete coverage, on the other hand, is often difficult to achieve for practical reasons. In some situations it could, perhaps, be sufficient to focus on representative jurisdictions. Perhaps it is sufficient to focus on only Finland, Sweden, Denmark and Norway in a comparative investigation that looks into the common core of European tort law. But, such a methodological standpoint should at least be supported by good arguments that seek to show why the jurisdictions emphasised in fact are sufficient to provide a picture of a common core of European law. A General Methodological Problem with Questionnaires: Superficiality Another problem with the questionnaire method is of a more general nature: The questionnaire method leaves little room for input at a deeper level.14 The work on the PETL illustrates this. If we for instance look at the questions posed in the questionnaire on causation (where, by the way, the absence of

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Nordic participants is particularly apparent) we can see that the general questions regarding causation in fact are centred around the importance of a conditio sine qua non formula. The more specific, case-oriented questions for instance take up the ubiquitous Summers v Tice/Cook v Lewis-like hypotheticals (where two hunters simultaneously shoot the victim and it is impossible to say which of the hunters actually hit the victim) and similar problems closely connected with a conditio sine qua non-outlook. There is a danger with an approach such as this. The way the questions are posed and the system in which the questions are framed substantially predetermine the answers. This can only to a certain degree be remedied by allowing the respondents to participate in the formulation phase of the questionnaire as the EGTL has done. Without knowing too much about how the EGTL’s work progressed in each case, I think that a general objection against a questionnaire method of this kind is that already the first formulation of a questionnaire, even if it is open to revisions, entails a preconception. It will set mental borders within which the reporters will formulate their answers. To use a trivial metaphor: The questionnaire will provide a box in which the answers must be placed and even if the size and to some extent the form of the box may be questioned, it will be difficult to think outside of the box. And even if someone does think outside of the box, a questionnaire method makes it difficult to see what to make of the ‘answers’. This has implications on different levels. It has importance for the account that will be given of solutions to individual concrete cases. But it also has a more significant implication, in that this method will be a bar to comparisons of the differences (and similarities) between the national systems that lie at a deeper level. An example might illuminate the point I am trying to make here. If the first draft of a questionnaire on the criterion of causation starts off with a question like ‘Does your national system recognise the conditio sine qua non formula as the basic test of causation?’ and then continues with variations on the conditio sine qua non-theme, the answers will take the form of being either positive or negative accounts of the importance of the conditio sine qua non formula within each jurisdiction. It will be difficult to give an account of causation that does not take the framework of the conditio sine qua non-formula for granted. It will be impossible to give a free and uninfluenced account of the causation criterion that actually reflects the way it is understood within a jurisdiction that uses other terminology and concepts. Once the conceptual glasses of the conditio sine qua non-doctrine have been put on they create distortions whenever one wants to observe phenomena that do not fit the doctrine’s worldview. The objection just made is directed at the (very familiar) problem of how preconceptions and previous knowledge/belief/prejudice will influence an understanding of principles and concepts from another legal system. This is not a very original critique of comparative investigations and I generally think

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that this line of critique tends to take exaggerated forms. I do not think that jurists within Europe live in different and incommensurable mental universes that make comparisons impossible or futile. In fact my opinion is that there are more similarities than differences between the European tort systems and that is the reason why I think that a common European tort law in the (probably quite remote) future is both feasible and positive. I do however think that a working method like that used by the EGTL brings these problems to the fore. A questionnaire method will be too influenced by the structure provided by the drafter to really be able to reflect the diverse phenomena of different legal orders.15 Another objection related to the previous line of argument is that a questionnaire method will put too much emphasis on concrete solutions to concrete cases, which in its turn will tend to provoke answers that refer to rules and principles.16 But, as important as the investigation of different solutions in a concrete case may be, it is not as important as an investigation into the underlying, basic features of tort law. What kind of features might these be? One can frame the questions I have in mind here in different terms. A trend of comparative law has been to focus on the rather diffuse idea of legal culture.17 But recognition of the importance of the deeper structures of the national tort systems does not have to entail that the comparatist needs to engage in cultural studies. One can also claim that a comparative investigation should try to account for the deeper values that are the foundations of the law of torts.18 On this level I think an investigation would find a similar general morality behind the European tort law systems but I do not think that the discovery of a common ground on this level will be able to provide much help in the concrete work of formulating common European principles. All these approaches can provide interesting results, but I would like to suggest another focus when the subject of investigation is formulated. I think that when it comes to tort law an important subject for comparison is patterns of legal reasoning and how these patterns are applied to different phenomena dealt with in tort law. I would view such patterns of reasoning, by which I mean structured models of argumentation, as the most basic cornerstones of tort law. The expression may seem vague but what I have in mind are models of legal arguments; models that are often partially products of conscious theoretical efforts by legal scholars and judges. A deeper understanding of these patterns of legal reasoning captures not only the way lawyers might go about answering a legal question and what kind of results such a legal inquiry could produce, but also an understanding of how lawyers perceive what they are doing.19 Say for instance that we want to comparatively address an issue of how the scope of liability is decided in a case of (what in Sweden and some other jurisdictions would go under the term) pure economic loss. A questionnaire method of the kind used by the EGTL will, I think, often

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lead a reporter covering her own system to seek a rather simple answer if the question has previously not been tested within the national system. There will sometimes be a simple answer, but such an answer will not be complete.20 The resort to simple answers is not a product of the reporter’s laziness or dishonesty; it is the only kind of answers one can give to specific tort law questions in a survey. It is impossible to give a complete picture of the whole of tort law as an answer to every simple question in a questionnaire. Let me illustrate with a rather extensive (fictitious) example.21 The questionnaire includes the following hypothetical situation under the heading of ‘Scope of liability’: A merchant A tries to achieve an advantage in the competition of a small but lucrative retail market that previously was dominated by merchant B. A thus convinces B’s suppliers to break their contracts with B, effectively hindering B’s possibility to sell the goods she previously sold. B goes out of business. B wants to sue A in torts for the interference with her contractual relations. One could argue that B’s first option should be or would be to sue her suppliers but let us assume that for some reason she does not want or cannot do that. B wants A to pay. Assume also that A’s behaviour is not criminal. How would the scenario be dealt with within your jurisdiction?

An honest Swedish reporter dealing with this question22 would probably have to say ‘I have no idea!’ or, a more typical answer, ‘It depends . . .’. An expanded answer would first point to a section in the Tort Liability Act of 1972 (hereafter the Act), chapter 2, sect. 2, which says that pure economic loss someone suffers as a result of a criminal activity is compensatable.23 In the hypothetical example A’s behaviour was not criminal so the rule in the Act, it seems, does not say anything about whether this loss is compensable or not. In the preparatory works of the Act, a source of interpretation often used in Swedish law, the legislator stated that this rule was not to be interpreted e contrario. It was thus not the legislator’s intention that this rule should exclude pure economic loss resulting from non-criminal behaviour. However, in the practice of the courts the rule has nevertheless been interpreted in exactly this way, so that pure economic loss generally will only be compensated where the defendant’s action was criminal (for instance fraudulent). One approach to answer this question would be to point to court decisions where the general principle of no crime=no compensation for pure economic loss is laid down. Still that would only be a part of an answer since there are exceptions to this principle, for instance in the situation of negligent misrepresentation. A complete picture of how the section on pure economic loss is used and understood in Swedish law would thus need to include also these exceptions. Thereafter the reporter would need to account for general doctrines that are used to deal with questions of scope of liability. For instance the doctrine of

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adequate causation plays a significant role in Swedish tort law. What the criterion of adequacy more specifically requires is very difficult to pinpoint however. A leading Swedish scholar has famously said that the concept of adequacy is the vaguest concept employed in the civil law literature, ‘which is not to say little’ (Karlgren, 1972: 46). The difficulty with the adequacy doctrine in Swedish law is that it involves many different notions that are used in a manner that might seem haphazard. In some situations the court will refer to notions such as probability as a standard for dealing with the adequacy question. In other situations the court will refer to ‘foreseeability’. And in other situations the courts will simply state that a result was adequate even in spite of it apparently being both improbable and unforeseeable. These are but a few of the different lines of argument put forward under the heading of adequacy. It would however be a mistake to see the adequacy doctrine as completely arbitrary or as only a justificatory device used to support a decision reached in a more intuitive way. One can see the adequacy doctrine as it has evolved in Swedish law as a complex web of different lines of reasoning that are triggered by factors that would be very difficult to fully capture. To account for the position of the adequacy doctrine one would need to address all these lines of reasoning. In addition to the adequacy doctrine the reporter would need to say something on other lines of reasoning that are used in Swedish law to draw the limits of liability, such as the doctrine of protected interest etc. One would also need to say something on the general attitude towards compensation for economic loss that is reflected in principles such as the exclusionary rule on third party loss. All these models of legal reasoning interplay in a very complicated way. It is only through an extensive understanding of all these models that one can understand how the scope of liability issue in pure economic loss situations is addressed in Swedish law. To answer a question like the one posed in our hypothetical example one would thus need to fully address these complex models or patterns of reasoning as well as how they interplay. It is these models, I think, that can be seen as the basic constituents of tort law.24 And it is only through detailed accounts of these models that one can provide a picture that reflects how the actors within the national system perceive the law and how a court would go about answering questions of liability in difficult situations. To only give a short answer to a question such as the one in the hypothetical example above does not cut through the complexity, because the real solution of an actual case can always go in either way depending on the circumstances of the case. Even oversimplified hypotheticals (say questions like ‘A hits B intentionally and B receives a concussion’) can result in either liability or non-liability depending on the detailed circumstances of the situation. The only way to provide questions such as these with an answer that is interesting would be through extensive accounts of the different models of legal reasoning.

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How would you go about investigating this complex interaction between different legal models of argumentation or reasoning? That is not really for me to say and I do not pretend to have something important to add on positive comparative law method. Some basic requirements seem obvious, however. For instance I do think that the kind of comparative law research that would be needed to account for these experiences would require participants from all jurisdictions it is supposed to cover. These factors are very difficult to account for by someone that has not, so to say, been born into the legal culture she is covering. To account for the nuances and complexities of the national system one will need, at least generally, to be an ‘insider’ of the system. In addition to participants from all systems that are covered this vision of comparative law research requires a lot of time and a lot of hard labour. This may seem like a banality, but what I mean is that a comparative research project devoted to the whole of Europe will probably only be able to get past the surface level of ‘rule talk’ if scholars from all European systems work together as a team, on a daily basis, for years. As far as I am able to see this is the only way the deeper currents of the different systems can be adequately accounted for. Now, I realise that this may seem impracticable. It will certainly require a lot of resourses and a management that consists of some sort of Herculean comparative scholar that can guide the project. But it is not impossible. The working groups within the project of The Study Group on a European Civil Code have actually worked along these lines, under the management of such a Herculean comparative scholar. Other projects work in similar ways. The problem with the EGTL’s questionnaire method – a problem not unique to this project – is that it makes it insurmountable to give an accurate picture of these deeper aspects of the national tort law systems. It seems to me manifestly impossible to answer concrete questions with the extensive accounts that would be needed to capture the nuances of the legal reasoning employed within the national systems.25 To put it in short: A questionnaire method focusing on concrete cases and principles will result in oversimplified answers. The gist of the national systems will be lost in the process.

NOTES 1.

The European Group on Tort Law, Principles of European Tort Law, Vienna/New York 2005. The Principles as such will hereinafter be referred to simply as ‘The Principles’. 2. However, in another article I do provide a more specific critique against the PETL; see Schultz (2007). This article draws upon some themes in the article in the EBLR. 3. See Principles, 280 for a list of the publications. See also www.ectil.org, under ‘Publications’ (accessed 20 July 2009). 4. See for the following Principles, 14–16 (No. 14-29) and Koziol (2004: 234). This method was also used by the Trento group in the investigation of the notion of pure economic loss as reported in Bussani and Palmer (2003). The Study Group on a European Civil Code has

182

5. 6.

7.

8.

9. 10. 11. 12.

13.

14.

15. 16.

New directions in comparative law chosen another method. Instead of ready made questionnaires that are distributed to a selected group of experts, the Study Group prepares drafts of principles within working teams consisting of junior researchers under the supervision of a senior scholar – for instance tort law that is dealt with within the Working Team on Extra-Contractual Obligations in Osnabrück (hereafter the Working Team) led by professor Christian von Bar. These drafts are then discussed and further prepared by expert panels consisting of experts on the subject in question in sessions, and the results of the expert panels are then discussed at larger meetings of the so-called Co-ordinating Committee. Principles, 16, No. 26. Reinhard Zimmerman (2003) suggests that the composition of the EGTL in a way which only includes members from some EU states can be seen as a reflection of the idea that the members of the EGTL were not there as representatives from their states. This sounds good in theory, but unfortunately the composition of the Group entailed not only that certain countries were left outside of the group but also that these jurisdictions were generally left unaccounted for. At the end of the day I think many comparative projects will end up with discussions where participants argue (perhaps fight is a better word) for the solutions taken in their own national systems. Cf. Markesinis (1997: 520–521). The Swedish participant was Bill W. Dufwa, who also wrote reports on some of the questionnaires. It is interesting to note that of the 20 members of the European Group on Tort Law listed in the Principles (p. XII) there are two members from the USA, one from Israel and one from South Africa. Still there was apparently no room for any participants from Finland or Denmark, nor from Iceland or Norway, which even though they are not members of the EU, at least belong to Europe. A noteworthy example of this is the section on mitigation of damages, or reduction of damages, of the Principles (Article 10:401) which from a Swedish perspective seems much too inflexible and restrictive compared to the open formulations in the Swedish Tort Liability Act (especially Ch 6, sect. 1). The Scandinavian statutes are only mentioned in the comment to the rule on reduction of damages, see Principles, 179, fn. 1. Principles, 183–273. Here I must contrast with my impression of the work of the Study Group, where the Working Team has always included a Scandinavian representative and where there have been conscious efforts to take into regard all jurisdictions of the EU. Comparisons can be made with the stated aim on the web page of the Study Group on a European Civil Code: ‘We take the view that every legal system in the EU potentially has much to offer and the appropriateness of rules is determined on their merits rather than their national origin’, see www.sgecc.net, under ‘Introduction’ (accessed 10 July 2009). See for instance the (in substance probably correct) assertion that there is a ‘unanimous view held by the European tort systems’ that compensation for reasonable expenses in the case of personal injury also includes expenses for costs of adaptation of the home of the injured, Principles, p. 166, n. 10, or the (more dubious if not qualified) claim that the ‘European legal orders accept that reasonable preventive costs can be claimed as damages’, Principles, 38, No. 9. Some of these issues are dealt with in Schultz (2004: 223). After this article was published my attention was drawn to an interesting paper by Luke Nottage (2000), where similar concerns are being raised in a much more elaborate way. Some of these issues are discussed also in Palmer (2004). Vernon Valentine Palmer (2004: 13–14) gives a beautiful account of an alternative approach to comparative law that attempts to let the legal material of the compared systems speak for itself and to minimise the influence of the investigator’s preconceptions. I am aware of the fact that I refer to ‘rules and principles’ in a way that seems oblivious to Dworkin’s important distinction. The reason for this confusion is that I have been influenced by the particular manner in which the expression ‘Principles’ is used in the Europeanisation discussion. Strictly speaking, the PETL should probably be seen as a set of rules and not a set of principles. They are (in general) of an all-or-nothing kind that we associate with ‘rules’ and if they are taken seriously they necessitate a certain outcome in a particular case in a

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way that characterises ‘rules’. I am grateful to Mauro Zamboni for this point. The expression ‘principles’ in connection with the PETL, as well as in the Principles of European Contract Law (‘the Lando Principles’), is called a ‘misnomer’ by Reinhard Zimmerman (2003: 9–10). 17. The focus on ‘culture’ seems to me exaggerated, to say the least. From a cultural point of view it appears to me that the private law orders of Europe (and indeed the rest of the Western world) are more similar than they are different. At least this goes for tort law. All European jurisdictions start from a set of basic ideas, that individuals are autonomous beings who have rights which are protected (for instance in tort law); that the other side of the coin is that individuals may be held responsible for harm they cause; that such responsibility may require the obligation to compensate the victim with money; that social concerns may alleviate the burden of the harm causing party, etc. In other words I think all European tort law systems can be seen as an outflow of a liberal tradition of individual rights and responsibilities, in a Kantian-Aristotelian tradition, if one likes. Is this not (part of) a common European legal ‘culture’ of the law of torts? 18. The subject of such an inquiry will be difficult to capture since different jurisdictions will deal with similar practical problems within different parts of the law. An account of the law of accidents will in an American context to a high degree be a matter of tort law, while in Swedish law the most important answers to how society deals with accidents will be found in social insurance law. Should also the latter issues be covered in an investigation of comparative tort law, issues that in some countries will lie within the sphere of tort law but not in other countries? If the answer is yes, this will undoubtedly have importance for how we will look at the basic values of tort law. My hunch is that the best way to explain tort law and its functions also in a social welfare infused jurisdiction such as Sweden is with corrective justice types of arguments. But such an explanation will seem far-fetched if the object of study includes what in Swedish law would be seen as social insurance law or some other part of public law. 19. Martin Stone (2001: 131) makes a related point in a comparison of different explanatory frameworks for understanding tort law: ‘[T]ort law is not just a set of results concerning who wins and who loses in particular cases, but also a discursive or concept-involving practice purporting to justify those results. [. . .] This means that an understanding of tort law must be an understanding of certain legal understandings: of the concepts through which the law is self-consciously organized and which figure in its everyday application.’ 20. The well written accounts on Swedish law in Bussani and Palmer’s (2003) previously mentioned comparative account on pure economic loss exemplifies this. The picture of the Swedish approach to pure economic loss is that most questions have an easy answer in the principle on third party loss or some other principle. While these answers are in one way absolutely correct they are in another way incorrect, or at least incomplete, since they do not (and cannot within such a context) show how these principles are terms of art that are extracted and limited depending on different key factors. Even in a core case of ‘third party loss’ a Swedish court could well establish liability, notwithstanding the basic principle of no liability; see Bussani and Palmer (2003). 21. I will use a Swedish reporter as an example since Swedish law is the only law I can claim to really know something more detailed about, but I think that in scenarios such as those given equally complicated methodological questions can arise in many jurisdictions. It should also be said that the example uses a hypothetical concerning ‘inducement to breach of contract’, which recently was dealt with by the Swedish Supreme Court; see NJA 2005 p. 608. This particular issue is thus not as unclear as it was before. But since the question in this hypothetical makes the issue I have in mind particularly clear I will use it anyway, ignoring the Supreme Court judgment (which, by the way, does not solve all the complicated questions of liability in these situations). 22. Again, disregarding NJA 2005, p. 608. 23. In Swedish law this is a pure economic loss according to the definition provided by the Tort Liability Act (Ch. 1, sect. 2) which stipulates that an economic loss that is not a consequence of a previous personal injury or property damage is a pure economic loss. This definition entails that a loss a third party has suffered as a result of another person’s personal injury,

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for instance the loss an employer may suffer as a result of her employee’s personal injury, is not a pure economic loss. 24. To just take up one more illustration I would thus not consider the Swedish rule on fault or negligence, the culpa principle, as a basic constituent of tort law but rather the patterns of legal reasoning used to evaluate whether a conduct was negligent. 25. The previous example on whether liability for inducement to breach of contract can occur in Swedish law illustrates this. A full account of the issues that this question involves in Swedish law (before the Supreme Court’s recent judgment) would have shown that the law is unclear, that the question entails a complex evaluation of different principles and legal doctrines that need to be weighed against each other, and the end result of such a distinguishing process would be that liability is unlikely but not out of the question. A realistic answer to such a question from a national reporter – and this is more or less what I would have written myself – would be that Swedish tort law generally holds that liability for pure economic loss requires the conduct to be criminal if there is no support in specific legislation (as there for instance is in company law) and that liability for inducement to breach of contract is unlikely according to Swedish law. But, such an answer would have been wrong. (And – I guess one must add – it is not wrong because the law can be said to have changed through the Supreme Court judgment. On the contrary, the arguments for liability were known already before.)

REFERENCES Bussani, Mauro and Vernon Valentine Palmer (2003), Pure Economic Loss in Europe, Cambridge: Cambridge University Press. Karlgren, Hjalmar (1972), Skadeståndsrätt, 5th ed., Stockholm: Norstedts Juridik. Koziol, Helmut (2004), ‘Die “Principles on European Tort Law” der “European Group on Tort Law” ’, Zeitschrift für Europäisches Privatrecht [ZeuP]. Markesinis, Basil (1997), ‘Why a code is not the best way to advance the cause of European legal unity’, European Review of Private Law, 5, 519. Nottage, Luke (2000), ‘Convergence, Divergence and the Middle Way in Unifying or Harmonising Private Law’, EUI Working Paper, No. 2000/01. Palmer, Vernon Valentine (2004), ‘From Lerotholi to Lando: Some Examples of Comparative Law Methodology’, Global Jurist Frontiers, 4(2) Art. 1. Schultz, Mårten (2004), ‘Analyze This! Some Swedish Reflections on the Europeanization of Tort Law’, European Business Law Review, 15(2), 223–251. Schultz, Mårten (2007), ‘Disharmonization’, European Business Law Review [EBLR] 2007, 18(2), 1305–1326. Stone, Martin (2001), ‘The Significance of Doing and Suffering’, in Gerald J. Postema (ed.), Philosophy and the Law of Torts, Cambridge: Cambridge University Press. Zimmerman, Reinhard (2003), ‘Principles of European Contract Law and Principles of European Tort Law: Comparison and Points of Contact’, in Helmut Koziol and Barbara C. Steininger (eds. 2004), European Tort Law, Wien, New York: Springer.

13. Legal services in conveyancing: a European comparison Christoph U. Schmid I.

INTRODUCTION

Conveyancing markets range among the biggest markets in Europe. Indeed, land and buildings account for between half and three quarters of country wealth in most European economies. Thus, the overall value of UK houses is estimated at more than £1 trillion (2006). In Germany in 2005, the taxable turnover of real estate transactions amounted to 136 885 million, which corresponded to a tax revenue of nearly 4.8 billion (figures of the Federal Ministry of Finance). It is obvious that given these values the transactions costs associated with conveyancing services – that is all the agent, legal and technical services needed for the transfer of land – have crucial implications not only for buyers and sellers but also for the overall economy. Legal services in conveyancing, on which this contribution will focus, are in continental Europe traditionally rendered by liberal professionals such as notaries and lawyers; the Scandinavian model of legally trained estate agents who provide legal services, too, has not been adopted anywhere else. Lawyers and notaries are not only among the oldest but also among the most regulated professions in Europe. In a large number of Member States, regulations exist which cover pricing (for example fixed fee scales), advertising (for example restrictions or bans on comparative or price advertising), limitations on interprofessional co-operation and business structure. Liberal professions also enjoy a wide range of exclusive rights. Therefore, given these restrictions, it may plausibly be presumed that the economic potential of the conveyancing services market is not fully exploited. As a response, political institutions in several Member States and the European Commission at supranational level are working to promote reform and modernisation of restrictive regulation in the professional services. Following an independent study of regulation in the professions carried out by the Institute of Higher Studies in Vienna (2003) and published in March 2003, the European Commission has adopted two reports (European Commission, 2004; 2005) in which it advocates in favour of a strict proportionality test to 185

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be applied to services regulation: this can only be justified if it serves a clearly defined public interest goal, for example to protect consumer interests or safeguard the independence and integrity of a profession, is objectively suitable to obtain that goal and the least restrictive of competition.1 All other regulation is supposed to limit competition and lower the incentives for professionals to work cost-efficiently, lower prices, increase quality or offer innovative services. In order to gain more precise and specific insights about the economic impact of restrictive professional regulation on the conveyancing services market, the Commission has in 2006 awarded a comparative legal and economic study to the author’s academic institution, the Centre for European Law and Politics at Bremen University (2008 [ZERP]). The study, which was published in early 2008, is designed to analyse the effects of professional services regulation on the functioning and efficiency of the conveyancing market and the links between the two. The countries surveyed include Austria, Belgium, the Czech Republic, Denmark, England and Wales, Finland, France, Germany, Greece, Hungary, Ireland, Italy, the Netherlands, Poland, Portugal, Scotland, Slovakia, Slovenia, Spain and Sweden. The present contribution, which is based on the conclusions presented at a Commission Workshop in Brussels in December 20062 and the final results of the study, presents an overview of the study. Its focus lies on its legal side and summarises key regulatory features of conveyancing services markets. We will start by disaggregating conveyancing in its usual parts (II), then present the types of professionals involved in different countries (III) with a focus on legal professionals (IV) and their mandatory or voluntary involvement (V) and then turn to more key regulatory features (VI), which will be condensed into four regulatory models to be found in Europe today (VII). We will end with a comparative summary (VIII) and a short outlook on methodological aspects of combined legal and economic research in comparative law (IX).

II. CONVEYANCING DISAGGREGATED Before addressing specific regulatory features, a description of the conveyancing process is in order. With minor variations, this usually involves the following steps in all countries surveyed: (1) First, the parties need to meet, which often happens with the help of estate agents providing matching services. (2) Then, an evaluation of the land and the building by technical experts takes place in several countries. Specifically, this may involve an energy

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check (rendered mandatory by the EU Directive on the energy performance of buildings, 2002/91/EC) and an evaluation on behalf of the buyer and/or the seller, which is frequently required by lending banks. (3) Next, preliminary legal checks are carried out which include the control of the land register (including registered debts), of other debts for which the buyer may be liable and of the building permit for an existing structure. (4) After this, the sales contract is drafted on this basis and legal advice given by the draftsperson (or the parties are counselled by their legal representatives); the draft having become final, it is signed by both parties, with signatures being certified in a special procedure (which may also happen as part of a notarial instrument). (5) The ensuing contract execution includes the application for and the control of administrative permits, carrying out the payment (alternatively through an escrow account or notice and control of payment), and fulfilling taxation obligations (encompassing notice of the contract to the tax authorities, calculation of the applicable tax, payment of the tax and its control or tax retention from the sales price).

III.

TYPES OF LEGAL PROFESSIONALS INVOLVED

Professionals involved in the various steps of conveyancing in Europe include technical experts (mostly architects, surveyors, engineers), estate agents, and legal professionals, who constitute the focus of this contribution. 1.

Technical Services

Generally, technical services, which are not mandatory in any of the countries analysed, are being sought only in a minority of cases. In most countries, technical experts are involved in less than ten per cent of all land sales. Basically involvement of a technical expert is usual only in the UK and Ireland, in Denmark and in France. A paramount reason why many buyers think that they do not need a technical expert seems to be the statutory duty of the seller in the continental legal systems to disclose major hidden defects of the sold property. This duty to disclose hidden defects renders technical expertise less important. Nevertheless, when a bank loan is sought, the bank would in many countries send their expert to value the property. The same reasons might explain why a survey is very common in the English, Irish and Scottish system. In these systems, there is no requirement of disclosure, but the rule is ‘caveat emptor’ (= the buyer has to check the goods sold, if he wants to make sure that they are in a proper condition). Usually, the rule of caveat emptor is

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however being mitigated by a practice of asking the seller for a whole list of conditions of the premises sold. Moreover, technical services have recently also been introduced by European law: the EU directive 2002/91/EC on the energy performance of buildings has not yet been implemented in most member states (except Denmark and France). After implementation, the seller will have to employ an energy expert, unless he has already got a recent ‘energy certificate’ (for example for a rental house). The involvement of technical experts will therefore likely increase in the future. 2.

Agent Services

All over Europe, real estate agents have the basic function of matching the parties for a transaction. Whereas real estate agents are in many cases prohibited from offering any legal services, this is allowed and usual in another group of countries including Austria, France, the Netherlands, Portugal, Slovakia, Slovenia and Spain; and in Scandinavia, (licensed) real estate agents provide full legal services. The involvement of a real estate agent seems to oscillate around 50 per cent in most countries, more in the urban centres, less in the countryside, more in prosperous areas, less in poorer areas. Involvement of a real estate agent is non-mandatory in all countries. Involvement of a real estate agent is significantly higher (around 80 per cent) in the Scandinavian countries, where the real estate agent also performs legal services (Scandinavian countries). Involvement seems to be lower in the newly acceded Central and Eastern European countries (for example Hungary, Slovenia). A unique additional feature may be found in France and Belgium: there notaries are also allowed to act as real estate agents – a cumulation of roles prohibited by statute or professional rules in all other States under examination. Finally, real estate agent services tend to be little regulated in most European countries. Access to the profession is generally easy and requires no or little training, and caps on commissions exist only in few States such as Austria.

IV.

LEGAL SERVICES

Representing different regulatory traditions, the following legal professionals may be found in Europe today: 1.

Civil Law Notaries

Going back to Latin tradition, civil law notaries are the most important group

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Europe-wide, which is dominant in all Western continental European states from Portugal to Germany and in most East European countries including Poland, Slovakia, Slovenia and the Baltic countries (which are not represented in the present study). In Finland, a different form of notaries not linked to the Latin tradition exists. These are usually side-job notaries (for example police directors), who are however limited to the authentication of signatures.3 2.

Lawyers (Solicitors)

Lawyers are dominant on the British Isles (England and Wales, Scotland and Ireland: solicitors) as well as in the Czech Republic and Hungary, but may also be found in Austria. A fundamental difference between the notary and the lawyer system is that in the latter in a majority of cases (always on the British Isles, sometimes also in the Czech Republic and Hungary) each party is represented by its own lawyer which might be safer. 3.

Estate Agents

In the Nordic countries, conveyancing is mostly done by (licensed) estate agents, who normally have a university degree. They combine agent services (that is bringing together buyer and seller) with legal services. However, they are not lawyers. A similar combination may only be found in France, where notaries (just as other lawyers) may also act as estate agents. 4.

Additional Professionals

In some countries, additional professionals are involved in providing legal services for coveyancing: in Greece, on top of the notary, both parties are also represented by lawyers; in Portugal, on top of the notary, the buyer is typically represented by a lawyer; in Denmark, where the seller is represented by an estate agent, the buyer is usually represented by a lawyer; in Finland, where estate agents are also dominant, (the specific Finnish form of) notaries have to authenticate the signatures; in Spain, the execution of notarial deeds (registration and taxation in particular) is usually done by gestores administrativos who are typically affiliated to the lending bank. Finally, in England and Wales, in a pro-competitive strategy designed by the Thatcher government, licensed conveyancers (legal professionals exclusively competent in conveyancing) have been admitted since the 1980s as competitors to solicitors. Until then solicitors had a monopoly on conveyancing. Though licensed conveyancers existed and still exist in small number and handle less than five per cent of all land sales in England, rates charged by solicitors have decreased sharply following their admission.

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V. MANDATORY OR VOLUNTARY INVOLVEMENT AND SCOPE OF SERVICES For assessing the efficiency of conveyancing services, the question whether the involvement of a certain professional is legally mandatory or not is of key importance. In most continental countries, intervention of a civil law notary is mandatory by statute for every land sale. However, notaries’ intervention is widely different ratione materiae. Some countries require notarial intervention for the validity of the sales contract and for the transfer of property (for example Germany, Poland) or for the transfer of property only (for example the Netherlands or Spain). In other countries, a notarial deed is required only for the registration in the land register which is not compulsory but makes the title opposable to third parties (for example Belgium, France, Italy, Luxembourg, Portugal). As this is crucial, in practice notarial deeds are usual in more than 95 per cent of transactions in these countries. Still, the preliminary contract may be drafted by someone else – the parties themselves, an estate agent or a lawyer. Other countries require only a notarial certification of signature for the registration in the land register (Slovakia, Slovenia; similar also in Austria and the Czech Republic where the certification can also be made by the court, in the Czech Republic also by an advocate). Here the drafting of the contract is mostly done by lawyers. Hungary constitutes an exceptional case in which the intervention of a legal professional is mandatory, but the parties may retain either a civil law notary or a lawyer (which happens in more than 95 per cent of all cases). When comparing especially notarial fees, the different scope of services should be borne in mind. In a smaller group of countries composed of Austria and England, the involvement of a professional is not mandatory, and the parties may draft the contract themselves or with the help of anyone. However, certain professionals enjoy exclusive rights, that is only they may offer conveyancing services professionally (that is for money). This is true for notaries or lawyers in Austria, and solicitors or licensed conveyancers in England. Finally, only in two countries, Denmark and Sweden, neither mandatory involvement nor exclusive rights exist, though in practice estate agents are involved in the vast majority of cases even there. Types of professionals and mandatory or voluntary involvement are summarised in Table 13.1.

VI.

PROFESSIONAL REGULATION

The three main types of legal professionals – notaries, lawyers, and licensed agents – are regulated very differently as regards market entry, market structure and market conduct.

Legal services in conveyancing

Table 13.1

191

Types of professionals and mandatory or voluntary involvement Real estate agent

Technical services

Legal services (lawyer or civil law notary)

Austria

50%

N/a

Belgium

50%–75% Usual, with regional differences 90% 90% (appraisers)

90% (lawyer or notary) Notary mandatory

Czech Republic Denmark the seller England Finland

90%, acting for

90%

70% 75%–90%

Mostly surveyor Usual

France

90%–100%

Ireland Italy The Netherlands Poland Portugal

25–50% 35%–40% among private persons 50% 15% 15% for C2C 70% for B2C, B2B 80% 75% 50% 40% (25%–50%) 80%

Scotland Slovakia

80% 70%

Mostly surveyor N/a

Slovenia

N/a

Spain

25%–50% urban areas 5%–25% rural areas 25%–50%

Sweden

85%

Germany Greece Hungary

N/a N/a 1%–2% Mostly surveyor N/a Rare N/a Energy certificate mandatory

N/a

Physical survey common

70% advocates, 30% notaries 80% lawyer for buyer 90% two lawyers Only certification of signature mandatory Notary mandatory

Notary mandatory Notary mandatory Mandatory (lawyer or notary) 99% two lawyers Notary mandatory Notary mandatory Notary mandatory Notary mandatory, but liberalisation (no more mandatory intervention) starting in 2008 99% two lawyers Only certification of signature mandatory Only certification of signature mandatory

Notary mandatory contract execution often carried out by a gestor administrativo Usually real estate agent

192

1.

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Civil Law Notaries

Continental (Latin) notaries are assigned a dual role as holders of a public office and liberal professionals. All regulatory restrictions applying to notarial services are based on their public office characterisation. To start with, acting for both parties, notaries are subject to strict duties of neutrality and impartiality. Moreover, numerus clausus applies, i.e. there is a limited number of professionals which is generally determined by the Ministry of Justice together with Notaries Professional Associations according to objective needs criteria. An important exception lies with the Netherlands, where numerus clausus has been abolished in the 1998 reform; since then, market entry presupposes a detailed business plan only. Another peculiar feature of Latin notaries are fixed fees. Whereas statutorily fixed fees were the universal rule in all civil law notarial systems up until 1990, today, there is a trend versus deregulation. Thus, in Austria and in the Netherlands fixed fees have been abolished. Italy abolished fixed fees for all liberal professions in 2006 by a legislative decree, which has yet to be confirmed by a parliamentary statute in order to become permanent. In addition, the legal situation is rendered opaque by a contradicting posterior provision in notarial law which prohibits unfair price competition amongst notaries. In Portugal, a recent reform (2008) has even gone further: mandatory intervention of legal professionals has been abolished completely, and standard transactions can now be performed by consumers themselves by filling in standard form contracts directly at the register office. Also, legal services in conveyancing may no longer be provided by notaries only, but also by other professionals including lawyers. Whilst the final effects of this reform cannot yet be assessed, it seems that it largely reduces consumers’ fees without causing significant problems or dangers (particularly since the transactions are always controlled by the register office). Other countries such as Germany have recently liberalised attorney fees (for out of court services only), but kept statutorily fixed fees for notaries. Similarly, market structure is regulated for all civil law notaries. In all states, except the Netherlands, the notary is appointed for a specific location. This means that he is restricted to providing services in a given area – which, when working in his area, does not bar him from authenticating deeds for land situated outside that area. In addition, deeds done by national notaries are required in some states for registration in the land register (for example Germany and Italy). Also, limitations on inter-professional co-operation and business structure are frequent in all states. Thus, notaries are generally prohibited from establishing a company, entering into formal co-operation, or from establishing common businesses with tax specialists, lawyers and estate agents. Beyond that, notaries are generally prohibited from exercising other

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professions at the same time. Generally, with the exceptions of France and Belgium, notaries must not act as agents. With the exception of some German regions (Länder), in which lawyers may be appointed as notaries after several years of successful practice (‘Anwaltsnotariat’), notaries must not act as lawyers either.4 Lastly, in all surveyed states, notarial conduct is regulated by statute. This extends to a regulation of the profession and professional associations. The latter are often delegated self-regulatory powers, they enact professional standards including deontological codes, and they are generally competent to supervise the professional conduct of their members. Also there is regulation for the notarial procedure to be observed for example with the authentication of documents. Finally, further regulations are common to restrict advertising which do not however seem to be implemented strictly in several countries. 2.

Lawyers

Generally, lawyers active in conveyancing are less strictly regulated than notaries. This applies likewise to market structure and conduct regulation. Market entry is in no country conditional on numerus clausus, but only on subjective requirements, the most important ones being university degree and bar exam. Fees are generally negotiable. In England a trend exists towards flattish fees based on a broad look at all individual circumstances. Fixed lawyer fees are even excluded in countries such as Hungary, where lawyers and civil law notaries compete in conveyancing services and notarial fees are fixed by statute. Similarly, regulation on inter-professional co-operation, business structure and advertising for lawyers has generally been liberalised in recent years. In terms of qualifications, lawyers active in conveyancing must of course fulfil all general qualifications of the profession. Most countries have no additional requirements for lawyers to counsel in this area. However, in England, entry into the conveyancing market requires holding (personally or via a law firm) a practising certificate issued by the Law Society. This supposes an annual application which may be subject to disciplinary recommendations, the payment of a fee and the proof of insurance. In Denmark, whilst there are no additional requirements for lawyers active in conveyancing, lawyers need an additional license to act as estate agents. Finally, in ‘notary countries’, lawyers are generally prohibited from performing those conveyancing services exclusively assigned to notaries. English licensed conveyancers are subject to a similar regulatory regime as solicitors, although they are not lawyers. Licenses are granted by the Council of Licensed Conveyancers (CLC). Requirements to obtain a full licence, allowing offering services to the public, are the following: completion of CLC

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examinations; practical training, minimum age of 21 years; being a ‘fit and proper person’; an annual licence fee; a stipulated contribution to the CLC compensation fund; premium to the professional indemnity insurance; evidence of continuing education (minimum 12 of courses certified by CLC). Fees are not regulated but in practice are roughly similar to solicitors’ fees. 3.

Nordic Real Estate Agents

Scandinavian licensed estate agents are also regulated very little. Entry to the profession is conditional on registration with a board of agents (Sweden) or similar institutions. Requirements for registration include passing an exam as well as proof of professional insurance. In Denmark, admission to the exam requires special education and two years’ practice; in Sweden, a two-year study, one year of which is devoted to law, and ten weeks’ practice. Whilst Danish and Finnish agents are under no duty of neutrality (observing ‘good brokerage practice’ being sufficient), such a duty was stipulated for Swedish agents in 1984, albeit it is flawed by the controversial exception to help the seller to get the best price. Fees are not regulated; in Denmark, former fee recommendations have been abolished on the request of the competition authority. In practice, fees exist as flat or percentage based commissions.

VII.

REGULATORY MODELS

In sum, we may distinguish four regulatory models for conveyancing services in Europe: the traditional, highly regulated Latin notary system; the deregulated Dutch notary system; the lawyer system and the Scandinavian licensed agent system. 1.

The Latin Notary System

The traditional, highly regulated Latin notary system reflects the public office characterisation of notarial activities. This model may be found in the vast majority of continental European countries including Spain, Portugal, France, Italy, Luxembourg, Belgium, Germany, Poland and Slovenia. In addition, Latin notaries exist also in Greece but this country is a sort of hybrid case as the additional presence of two lawyers is also required in an average transaction. The Latin notary model is characterised by mandatory involvement of notaries, even though the scope of involvement (involvement in the contract and deed of conveyance, only in the deed or just in the authentication of signatures) differs widely. Other important features include numerus clausus of professionals, fixed fees and strict regulation on market entry and conduct.

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This high degree of regulation is critical when considered in the light of European Competition and Internal Market law. Particularly negative consequences are generated by fixed fees: Latin notary countries are generally more expensive than the deregulated Dutch system, the lawyer system or the Scandinavian system especially for higher value transactions (that is those of €250 000 and more) and have some of the highest relative legal fees (for example France, Belgium and Italy). The fixed fees scales used hardly reflect the real costs of providing the services given; they are usually calculated as a percentage of the transaction value. Moreover, contrary to what is frequently claimed by notaries, no meaningful cross-subsidisation among low and high value transactions may be found as even notarial fees for small transactions of about €100 000 are with only the exception of Germany still higher than lawyers or Scandinavian agent fees for such transactions. This situation is unsatisfactory from a consumer and from a general macroeconomic point of view. In sum, there is an urgent need to reform the Latin notary system. 2.

The Deregulated Dutch Notary System

The deregulated Dutch notary system reflects a more modern vision of the notary as a private entrepreneur fulfilling public tasks. Under this model, no numerus clausus exists, fees are negotiable and market entry and conduct regulation is generally less strict. The consequences of this deregulatory approach implemented since 1999 have been largely positive: Whereas the prices for more individualised services in family and inheritance law have increased sharply, these effects are more than outweighed by the massive price cuts in more standardised transactions, conveyancing in particular. Thus, the average consumer buying a basket of notary services is considerably better off. There has also been a rise in the number of notaries and innovation is on the up with the emergence of new business structures. In this sense, despite numerous assertions by notaries to the contrary, quality of notarial services has not decreased in any measurable way, and the integrity and dignity of the profession has been maintained. Therefore, the Dutch reform provides a plausible model for reforming the notarial profession in continental Europe. 3.

The Lawyer System

The lawyer system exists in the UK and Ireland, in Hungary, the Czech Republic, Slovakia5 and – to a lesser extent – also in Austria (where both notaries and lawyers have a high presence on the market). A hybrid system may be found in Hungary where in average transactions lawyers take care of the conveyancing (mandatory intervention) whereas notaries are usually involved in setting up the mortgage. The lawyer system is characterised by

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quality control of professionals through licensing and professional exams only, negotiable fees and lower levels of regulation on market entry and conduct. Generally, services offered by lawyers tend to be cheaper than notarial services whereas no indications of worse quality as compared to notaries exist. In addition, the English reform introducing licensed conveyancers has shown that also specialised lawyers may provide good and cost-efficient services to consumers. 4.

The Scandinavian Licensed Agent System

The Scandinavian system has an impressive record in terms of consumer welfare and macroeconomic benefits. This system is characterised by quality control of professionals through professional exams and licensing only, negotiable fees and significantly lower levels of regulation on market entry and conduct as compared to any other system. The biggest advantage of the Scandinavian system, particularly when compared with the Latin notary system, is that it involves less professional actors in the transfer of real estate. With the exception of the Finnish ‘authentification notary’, the agent handles all the steps of the transaction, that is the marketing as well as the legal searches and the drawing up of contracts (‘one-stop shop’). Whereas no significant quality problems seem to exist in this system, fewer practitioners and the absence of price regulation mean lower costs for consumers and business.

VIII.

COMPARATIVE ASSESSMENT

Summarising the most important results of this contribution and the aforementioned study undertaken for the European Commission, the four regulatory models may be assessed as follows: Deregulated systems (or systems with lower levels of restrictive regulation) seem to produce better outcomes for consumers overall in terms of price and choice. Conversely, there is no evidence to support claims that higher levels of regulation and higher prices lead to higher levels of service quality (measured in a broad sense). Specifically, the traditional Latin notary system, which has the highest levels of restrictive regulation, including the use of fixed fees scales and numerus clausus, performs the worst on all counts: Latin notary countries are generally more expensive than the deregulated Dutch system, the lawyer system or the Scandinavian system especially for higher value transactions and have some of the highest absolute legal fees (for example France, Belgium and Italy). The fixed fees scales used are often very arbitrary in nature and hardly reflect the real costs of providing the services given; they are

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usually calculated as a percentage of the transaction value. This also leads to vast distortions in notary incomes, which reflect the overall wealth of the area in which their office is situated. The cross-subsidisation argument (whereby high fees for high value transactions subsidise lower fees for lower value transactions) is not convincing as, with the exception of Germany, even the fees for low value transactions in notary countries are mostly still higher than in non-notary countries. The Dutch reformed model provides evidence of the positive effects deregulation can have on consumer welfare. As mentioned, the Dutch model is a modernised version of the Latin notary system where fixed pricing and numerus clausus (two of the most radical forms of regulation) have been abolished. On pricing this has resulted in price differentiation and the possibility for consumers to negotiate on fees. As a result, the average consumer buying a basket of notary services is considerably better off. There has also been a rise in the number of notaries and innovation is on the up with the emergence of new business structures and the greater use of IT. Importantly, quality does not seem to have been compromised and in fact the evidence points to better customer service and satisfaction as the removal of fixed fees has made notaries compete on standard of service. Drawing on the Scandinavian and English example, one might also question whether conveyancing should continue to be an exclusive right for certain professions only. It does not seem proportionate or justifiable that lawyers are barred from performing conveyancing services in Latin notary countries, as they are entitled to deal with substantially much more complex issues like mergers and acquisitions. That said, it is also highly arguable that conveyancing services should be reserved only to notaries and lawyers. As the English and Swedish example show, other suitable qualified and licensed professionals (for example licensed conveyancers and licensed real estate agents) can also provide good quality services. This can promote competition to the benefit of consumers as shown in England where the introduction of licensed conveyancers helped reduce price discrimination and a flat pricing structure emerged which has worked to the significant advantage of consumers. The UK Government is now going even further with legislation to open the way for supermarkets and financial service providers to provide one-stop shops for professional services, including home buying services, thus opening the way for greater competition in the conveyancing services market. Beyond this, there is also the further question of whether mandatory intervention by professionals in conveyancing transactions is justified at all on grounds of consumer protection and of ensuring legal certainty. In countries such as Austria and Sweden, it is possible for consumers to handle standard contracts and procedures themselves by using pre-formulated forms and by applying for registration personally.

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In conclusion, our analysis raises a host of issues about the current regulation of this market and especially the regulation of the Latin notary profession (for example fixed prices and numerus clausus), the mandatory involvement of certain professionals in conveyancing and their exclusive rights in this field. It shows that consumer welfare is enhanced under deregulated systems and highly regulated Latin notary systems with fixed prices and numerus clausus can be singled out for special criticism as they result in significant consumer detriment in the form of higher prices, without any comparable quality gains. The success of recent deregulatory reforms of the notarial profession in the Netherlands and Portugal confirms these conclusions.

IX. SOME CONCLUDING REMARKS ON METHODOLOGY The combination of law and economics in the comparison undertaken in this study in a sort of ad hoc approach is interesting from a methodological perspective as well. The basic research question was phrased in economic terms, namely to establish the link, as mentioned, between the level of professional and other regulation of conveyancing services and the functioning and efficiency of the conveyancing market. However, the law provided the essence of the comparison and legal expertise was needed throughout the whole study to complement, second-guess, limit and at times even refute, economic modelling. First, in order to enable the economists to measure the level of regulation through quantitative regulation indices, we lawyers had to explain to them in detail the contents of the regulation and its effects in practice. For example, the different degrees of mandatory involvement of a notary prescribed by law are not easily understandable to a non-lawyer. Nevertheless, a full notarial act and the mere notarial certification of signatures represent two extremes of the involvement of a professional. Therefore, a significantly different level of regulation had to be assigned to different national versions of the Latin notary system. Next, law in action elements which escaped economic modelling had to be considered quite frequently. To give an example, Austria claimed to have a low level of mandatory intervention as, contrary to most other continental European countries, lawyers and notaries are both authorised to provide legal services in conveyancing, in particular draft the contract of sales. Moreover, the certification of signatures can be done not only with a notary but also before court, which means that the involvement of a notary can be avoided completely. Nevertheless, we found out that in practice court services are not used very much, as court fees may even be higher than notary fees and as

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courts have more limited office hours and may be less well staffed than notary offices. Therefore, it did not seem fair to assign Austria a particularly low level of mandatory intervention of notaries. Moreover, even certain results established empirically could not be plausibly explained with economic tools only. This is true, for example, for the good assessment obtained by German notaries in our survey on price, quality and speed of professional services. However, by drawing on the knowledge of daily notarial practice, the answer may be connected to the higher degree of involvement of German notaries compared to most of their European colleagues. Indeed, German notaries function to a significant degree as a onestop-shop in conveyancing; they are involved right from the conclusion of the sales contract and take care of the implementation of the whole transaction until the registration of the new owner. Together with the legal fixing of fees at reasonable levels, this situation may result more than elsewhere in a consumer perception of being exhaustively and competently counselled by notaries. Finally, even the results of economic market assessment needed to be crosschecked with the help of legal expertise and intuition. Thus, a competing study on conveyancing services by Harvard economist Peter L. Murray, which had been commissioned by the Conseil du Notariat Latin, claims that the Swedish system of licensed estate agents, who take over also the legal part of a transaction, is inefficient. More specifically, Murray (2007: 104 ff.) assumes that the high rate of involvement of agents is due to the fact that even consumers who do not need brokering, but only legal services in conveyancing, would be obliged to turn to an agent and pay the full commission rate of 3%. This would lead to a macro-economically significant increase in legal transaction costs capable of neutralising the advantages of the Swedish system. However, this economic reconstruction seems to misrepresent the legal situation and the social reality in Sweden: First, in sales e.g. among relatives or friends, it is not unusual for the parties to fill in standard form contracts themselves, which is normally pretty safe as legal mistakes will be pointed out by the registry office; in the case of special difficulties, lawyers may of course also be consulted and an adequate fee negotiated for the individual case. More importantly, it is also possible, and it actually happens in a significant number of cases, that people hire an agent for legal services only and at a cost much lower than the full inclusive commission rate. Here again, it turns out that lawyers often have a better sense of the legal and social reality which may be defined away or even ignored in economic modelling. Summarising the methodological experiences of our study, it seems that only the combination of legal expertise and knowledge of daily practice coupled with economic modelling enable a reliable comparison of different regulatory models and their real world performance. Whilst lawyers lose their

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monopoly in comparative legal research, new and promising areas of research may be opened up through the combination of legal and economic expertise.

NOTES 1. 2. 3. 4. 5.

This approach may also be found in recent case law. See e.g. ECJ joined cases C-94/04 and 202/04, Cipolla and Macrino, para 64. The proceedings of the workshop are available at: http://ec.europa.eu/comm/competition/ sectors/professional_services/conferences/20061230/index.html (accessed 10 July 2009). Notaries are normally single profession notaries except in some regions of Germany where lawyers may be admitted as notaries after several years of practice. This combination may elsewhere only be found in some Swiss cantons. In Slovakia, notaries exist as well, but they are normally only used for the authentication of signatures (alternatively to municipal bodies), whereas lawyers typically handle the conveyancing process.

REFERENCES Bundesfinanzministerium, available at: www.bundesfinanzministerium.de/lang_de/DE/ Service/Downloads/Abt__I/0602221a6002,templateId=raw,property=publication File.pdf (accessed 10 July 2009). Center for European Law and Politics at Bremen University (2008 [ZERP]), all parts of the study are available at: http://ec.europa.eu/comm/competition/sectors/ professional_services/studies/studies.html (accessed 10 July 2009). European Commission (2004), ‘Report on Competition in Professional Services’, (COM (83) 2004), 9 February. European Commission (2005), ’Professional Services – scope for more reform’, 5 September, available at: http://europa.eu.int/comm/competition/liberal_professions/ sec200564_en.pdf (accessed 10 July 2009). Institute of Higher Studies in Vienna (2003), March, available at: http://europa. eu.int/comm/competition/liberalization/conference/libprofconference.html_study (accessed 10 July 2009). Murray, P. (2007), ‘Real Estate Conveyancing in 5 European Union Member States, Final Report’, available at: www.cnue.eu (accessed 10 July 2009).

14. Constitutionalisation of private law Anna Lytvynyuk* INTRODUCTION A division between public and private law seems to have always been there and is considered to be functionally and scientifically justified. Many legal orders, like, for example, the German one, have a long-lasting civil law tradition, the triumph of which is naturally a Civil Code.1 Emphasising the importance of the civil law culture, Gardbaum describes the Civil Code of Germany as ‘. . . the growing glory of the legal system, a definitive and authoritative written document with a cultural status and prestige not dissimilar to that of the Constitution in the United States’ (Gardbaum, 2003: 387, 403). In almost all the countries of the continental legal system2 a lawyer specialises in either public law or private law. As far as the theory of law is concerned, a professor of constitutional law will hardly teach any of the fields of private law. As Kumm has put it, ‘[t]he idea that a public lawyer, using concepts and categories of a public law discipline, could intrude on the domain of civilian expertise, borders on the preposterous.’ The distinction between public law and private law, Kumm continues, ‘. . . is therefore deeply linked to turf battles over traditional disciplinary boundaries and prestige’ (Kumm, 2006: 360). Notwithstanding such a deeply routed tradition, however, nowadays the concept of ‘constitutionalisation’ of private law is becoming more intensely debated both by comparative civil lawyers and public lawyers. The following chapter will present the debate of the so-called ‘constitutionalisation’ of private law. It will show that by the concept of ‘constitutionalisation’ the reach of constitutional rights onto civil litigation is meant. In demonstrating so, the scope of constitutional rights will be discussed and the degree to which they can be evoked by individuals against one another in their private litigation. As the nucleus of the debate over ‘constitutionalisation’ of private law, the chapter will present the concept of Drittwirkung – a notion which has now been around for over 50 years and is still a concept largely in search of conceptualisation. Following the analysis of the concept of Drittwirkung, direct and indirect methods of subjecting private law to constitutional rights will be discussed. 201

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I. THE DEBATE OVER CONSTITUTIONALISATION OF PRIVATE LAW The concept of constitutionalisation of private law is a product of the German legal thinking on the degree to which constitutional rights may be evoked in the claims of private individuals against one another. The debate revolves around the idea that if private individuals may directly invoke constitutional rights not only against the state, but in some cases against each other then it means that constitutional provisions of fundamental rights are a higher-order law, directly applicable in the private relationships and no mediation of civil law rules (civil and commercial codes, special civil laws etc.) is needed. That results in the idea that any legal dispute of private law maybe directly brought in front of the constitutional court, neglecting the well-thought structural division of civil courts, administrative courts, labour courts etc. Undoubtedly, such an assumption is far reaching. None of the legal orders practise such a legal scenario. However, as hypothetical as this idea may be, the nucleus of it is true and realistic: constitutional rights are no longer regarded as means of individuals’ protection solely against the state – they can be invoked against other individuals in their private relationships. The mechanism of such a revised application of constitutional rights, or the scope of application of constitutional rights, is, however, a matter of constitutional choice of the many legal systems. Constitutional jurisdictions of some countries vigorously defend the orthodox vertical approach to fundamental rights (for example, the United States). Such a stand has as its ground the axiom that constitutional rights impose duties only on the state, and not private parties. Such rights regulate only the actions of governments and governmental bodies and not relations among private individuals (Gardbaum, 2003: 389; Hunt, 1998: 423, 427). Other jurisdictions, such as, for example, Germany, Ireland, South Africa, Canada and even the EU, favour a diametrically different, horizontal approach to constitutional rights – constitutional rights impose duties not only on the state, but also on private individuals in their interpersonal relations. The vertical and horizontal approaches are considered to be the two polar positions of the scope of constitutional rights. There is a third position too, known as indirect horizontal effect. The essence of this position lies in the assumption that although constitutional rights bind directly only the state (governments and governmental bodies), they may also be, to a certain extent, indirectly applied to private individuals.3 These three pivotal positions will be discussed in a greater detail in the next section. Special attention will be paid to the understanding of the direct horizontal effect and the indirect horizontal effect of constitutional rights. Because of the comprehensive constitutional experience on this subject, the German

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legal order will serve as a model to illustrate that, in fact, the consequences of the doctrine of indirect horizontal effect are the same substantively and institutionally as those of the doctrine of direct horizontal effect. When discussing the issue of constitutionalisation of private law, the following statements often serve as the logical conclusions, depending on which approach a constitutional court of a particular jurisdiction is most likely to follow (vertical approach, horizontal approach, or indirect horizontal effect): 1. Private law is unique and should be free of constitutional scrutiny;4 2. German private law is ‘already applied constitutional law’ (Kumm, 2006: 359);5 3. Private law in Germany ‘must only be indirectly subject to the basic rights’ (Gardbaum, 2003: 404). From the analyses of the literature relevant for this subject, it can be inferred that in order to favour one of the three statements above, the answers to the following questions should be researched within a particular legal system: 1. 2. 3. 4.

How do constitutional rights function in private law? Do constitutional rights apply only to the legislative and executive branches of government, or do they also apply to the actions of courts? Is private law equally subject to the Constitution, or is this true only for public law? Do constitutional provisions apply to litigation between private parties, or only to litigation between a private party and the state?

The following sections will explore the key concepts that facilitate the answers to the above posed questions.

II. THE CONCEPT OF DRITTWIRKUNG As mentioned above, the question of the scope of application of constitutional rights and the degree to which they bind, if at all, the sphere of private relationships continues to attract the attention of comparative constitutional and private law. While for constitutional law this issue is important from the point of view of rethinking the traditional notion of defensive rights of individuals against the state and partial careful acceptance of indirect applicability of constitutional rights in private parties litigation, for private law this issue is important because it encroaches upon its central institutions, in particular, the fundamental notion of private autonomy.

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Certain solutions to the debate over the scope of constitutional rights present the constitutional laws of Germany (the decision of the German Federal Constitutional Court in the Lüth6 case in 1958 and the more recent Handelsvertreter7 case of 1990), Ireland (Meskell v Coras Iompair8 of 1973 and Hosford v John Murphy & Sons9 of 1987), Canada (the famous Dolphin Delivery10 case of 1986 and the subsequent Hill v Church of Scientology of Toronto11 of 1995), South Africa (Du Plessis12 case of 1996) and the United States (the Sullivan13 case of 1964 and the Kraemer14 case of 1948), to name a few jurisdictions. The cases mentioned above represent an interesting subject of study for comparative lawyers as they illustrate the constitutional choices that were made regarding the scope of fundamental rights in the post World War II countries. Even the study of the recent case law of the European Court of Justice suggests that the ECJ is also moving at a certain pace towards establishing the EU-level position in the debate over direct horizontal effect of fundamental rights (EC freedoms as well as EU fundamental rights)15 in the relationships between private individuals of the Member States. As far as the constitutions of the post-communist countries are concerned, they have mostly failed to make a distinction between the horizontal or vertical effect, concentrating mainly on placing positive duties on their relevant governments to promote social and economic rights (Gardbaum, 2003: 393; see also Sunstein, 1996: 225, 228.). All academic discussion on the influence of fundamental rights on private law returns to the German legal position on this subject and this chapter is no exception. German constitutional law and doctrine are unanimous on the idea that the basic rights are binding upon the State: they bind the legislative, executive and judicial branches of the State.16 They set the boundaries, beyond which the State may not go in regulating interpersonal relationships. The values that the fundamental rights carry are so important that the legislator must take them as a starting point when making laws aimed at protecting natural persons against each other. When pondering upon the role of fundamental rights in private law, German legal scholars structure their ideas in a two-fold way: firstly, basic rights are so important that they can be considered as higher-order private law rules and thus can be directly applied to relations between private persons.17 Secondly, the values that are expressed in basic rights can assist private law in a manner that they may be indirectly used when ‘interpreting or filling out private law norms’ (Lewan, 1968: 572). The term ‘Drittwirkung’ has been introduced to refer to the both situations. Among the first German jurists to extensively explore the arguments for or against direct or indirect effect of fundamental rights on private law were Hans Nipperdey, Walter Leisner, Günter Dürig, and Franz Gamillscheg, to name a

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few. Both Nipperdey and Leisner support direct application of the fundamental rights to relations governed by the norms of private law. They suggest that the only case when direct application of the fundamental rights is appropriate is when the judge is in a situation to do so, because private legislation fails to provide for the necessary tools (private law norms are inadequate) and the relevant appropriate new laws cannot be passed on time (Leisner, 1960; 317, 368). In any case, the judge should first turn to the existing norms of private law to resolve the dispute in question. Likewise, they both support the position that, should the contract be declared unconstitutional, it should be annulled or declared void by virtue of the relevant articles of the Civil Code and not directly as a result of the interpretation of the Basic Law (Enneccerus and Nipperdey, 1959: 95). Although both favouring direct applicability of fundamental rights in private law relationships, Leisner and Nipperdey advance different proposals for resolving the disputes of fundamental rights encroachment upon one another in a civil litigation. Leisner develops a rule that ‘basic-rights clauses with narrower reservations always take precedence over ones with wider reservations’ (for example, ‘the right to free development of the personality must always win out over freedom of expression, including freedom of the Press’) (Lewan, 1968: 575). Nipperdey puts forward the presumption of ‘weighing the interests’ (Enneccerus and Nipperdey, 1959: 19–20, 25–26) while interpreting the meaning of the fundamental rights provisions. In this ‘relativity theory’ of constitutional rights, Nipperdey suggests the following solutions of how to actually ‘weight’ the fundamental rights interests: ‘a presumption for (actual) freedom as against equality, a presumption in favour of basic rights that are stated absolutely and the provisions in Article 19, s. (2), that the core of a basic right may not be invaded’ (Lewan, 1968: 576). Opposite to the position of Nipperdey is the position of Günter Dürig. The latter has elaborated the so-called theory of ‘indirect effect on third parties’ (Mittelbare Drittwirkung), a concept which was meant to counter Nipperdey’s theory of direct effect of fundamental rights on private law. While elaborating his theory of indirect horizontal effect, Dürig’s major concern was to preserve the fundamental principle of private law, namely private autonomy, as well as the independence of private law (Dürig, 1956: 157). The Federal Constitutional Court of Germany (FCC) followed Dürig’s theory of Mittelbare Drittwirkung in its famous decision in the Lüth18 case. In this case the FCC overruled an injunction that was granted by a regional court19 under Section 826 of the Civil Code to Veit Harlan (a film director with anti-Semitic views) against the boycott of his film ‘Jud Süß’ arranged by Eric Lüth, a Hamburg press official acting in his private capacity.20 The FCC overruled the injunction on free speech grounds. Section 826 of the German Civil

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Code states that ‘a person who willfully causes damage to another in a manner, contrary to good moral, is bound to compensate the other for the damage’.21 The Lüth case restates a number of constitutional law positions and establishes the view of the FCC on the concept of effect of fundamental rights on private law. In particular, FCC states: 1.

Constitutional rights are regarded not only as defensive rights of the individuals against the state, but they also form ‘an objective system of values’.22 2. Because fundamental rights form ‘an objective system of values’ they ‘. . . must be valid as a constitutional disposition for all the branches of law; legislation, administration and jurisprudence receive guidelines and impulses from it’ [from this system of values]. 3. Hence, the fundamental rights, as they form the ‘objective system of values’ and are valid for all the branches of law, also ‘. . . influence civil law; no civil law rule can be in contradiction with it, each one of it must be interpreted in its spirit’.23 4. The FCC followed and cited24 Dürig’s theory of Mittelbare Drittwirkung: ‘In order to determine what is required by social norms [such as “good morals”], one has to consider first the ensemble of value concepts that a nation had developed at a certain point in its intellectual and cultural history and laid down in its constitution. That is why the general clauses [of the Civil Code] have rightly been described as “points of entry” of basic rights into private law.’25 The FCC did not determine whether Section 826 was constitutional or not. FCC held that the regional court committed a constitutional mistake when it failed to interpret a general civil law clause of Section 826 in the light of the ‘radiating effect’ of the constitutional value of freedom of speech. The ‘gates’ through which fundamental rights values can ‘radiate’ into private law are contained in other German Civil Code provisions as well, for example, Article 138 (1), ‘A legal transaction which is contra bonos mores is void’. Thus, the theory of indirect horizontal effect, bequeathed by Dürig, was embodied by the FCC in its Lüth decision as a doctrine or principle stating that the objective order of values established by the Basic Law effects the interpretation of the provisions of private law insofar as these provisions are general provisions, or ‘open-ended’ provisions and are capable of being interpreted in the light of the constitutional norms. The subsequent FCC decisions follow the Lüth formula.26 So far we have established that the German constitutional law theory asserts the influence of the fundamental rights on private law through the rele-

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vant general provisions of the latter. Where does this doctrine leave the central institution of civil law – private autonomy, lex voluntatis? Following the logic of the Lüth decision, the Handelsvertreter27 case represents the most striking example of the constitutionalisation of private law. The controversy in this case occurred between a commercial agent and his employer – the wine company.28 Part of the contractual agreement between the two was the so-called ‘non-competition clause’ which was meant to preclude the agent from selling wines of his employer’s competitors even for two years after the termination of the contract. Such a clause was governed by Section 90(a) of the German Commercial Code.29 In their contract, the parties had also agreed that should the contract be violated due to the agent’s culpable behaviour, the wine company would terminate the contract without paying the agent any compensation. Having learned that the agent was, indeed, selling wines of the competitor, the wine company terminated the contract with the agent with immediate effect and requested from the German Supreme Court in private matters30 an injunction restraining the agent from further working for a competitor. Such an injunction was granted by the Supreme Court on the ground that the contractual clause on non-discrimination was, indeed, valid. It held that being a selfemployed and professionally and economically independent merchant, the agent was free to weigh the advantages and disadvantages of the contract with his employer. Having lost his appellation claim in the State Court of Appeal,31 the agent filed a constitutional complaint to the FCC. The FCC overturned the decision of the Supreme Court. The FCC ruled that the agent’s fundamental right of freedom of profession was violated by the Supreme Court granting the injunction prohibiting the agent from working for the competitor. However, the FCC reasoned, such a limitation of the basic right of the agent does not primarily stem from the act of the State – the agent has voluntarily agreed to the noncompetition clause and thus exercised his personal freedom. The Court reasoned that such an autonomous contractual agreement should, in principle, be respected by the State.32 Such private autonomy, the Court continued, is granted by private law. However, and here the Court retrieved the reasoning in the Lüth case, private law itself cannot be contrary to the principles enshrined in basic rights. In the situation where there is an inequality of bargaining power and an economically more powerful party dictates to the other the terms of the contract, contract law alone cannot guarantee the balance of interests. It is the legislator’s obligation, then, to restore the parity in order to ‘ensure the protection of basic rights’.33 In cases when the legislator fails to do so, the courts take over the duty to protect fundamental rights by restoring the contractual parity using the means available within private law (usually those are the open-ended general clauses of private law and general principles of private law).

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Thus, weighing the two equally legitimate interests (employer’s economic interest to prevent competition of his former agents and the fundamental right of the agent to freedom of profession), the FCC needed to evaluate the constitutionality of the mandatory provisions of Section 90(a) of the Commercial Code. The FCC found that the legislator failed, in the mandatory provision of Section 90a (2) (which entitled the employer to refuse to pay compensation), to counterbalance the two competing interests, both deriving from the fundamental rights. The FCC stated that a solution of Section 90a (2) was disproportional and that such a severe sanction was unnecessary. The Constitutional Court declared that Section 90a (2) (second sentence) was incompatible with Article 12 (1) of the Constitution. The FCC further stated that following the reasoning of the agent, the private law courts should have availed themselves of Article 100 (1) of the Constitution and filed an inquiry to the FCC, asking to provide for a decision on the question of constitutionality of Section 90a (2) of HGB.

III. THE ROLE OF CONSTITUTIONAL JURISDICTION IN PRIVATE LITIGATION The Handelsvertreter case described above is crucial for the German legal thinking because it not only reinstates the horizontal indirect effect of fundamental rights on private law but also introduces an entirely new concept. The impetus for such a conceptual novelty was provided by the fact that the infringement of the fundamental rights in the Handelsvertreter case occurred in a purely contract law setting: when the two parties exercised their private autonomy right, binding each other with the mutually agreed contractual obligations. As the infringement of the fundamental right of freedom of profession was, in fact, legally justifiable by the relevant provisions of the Commercial Code of Germany,34 albeit they failed to provide for equality of the bargaining parties and thus were held unconstitutional, the FCC needed a new approach to justify the application of fundamental rights in relation to voluntary autonomous contractual covenants which were in compliance with the private law legislation in force. What the FCC did was to introduce the concept of ‘state duties to protect constitutional rights’35 – a concept traditionally applied in the sphere of public law. In the Handelsvertreter case, however, the FCC extended this concept to the field of private law. This concept was first developed by Canaris (1984: 201, 210, 225), who saw it as a new legal basis for the effect of constitutional rights in private law. The classical function of the constitutional rights is, of course, the one of the defensive rights against the State,36 which, by prohibiting any intrusion of

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the State into constitutional rights, imposes negative obligations on the State. The FCC interpreted constitutional rights as having also the protective function37 by which the State acquires positive obligations, or, in other words, the duty to protect constitutional rights. In other words, such positive obligations of the State presuppose a duty of a State to act should the constitutional rights of one natural person be violated by another natural person. Thus, reaching over the traditional duty of the State to protect fundamental rights of the individuals against a State, the protective function has as its purpose a duty to protect individuals against each other. Although everyone cannot but credit the results reached by the FCC towards advancing the concept of positive obligations of the State, the manner in which the Constitutional Court of Germany did so raises a number of questions, which we have posed in the beginning of this chapter. The core concern, of course, is that of private lawyers as they feel that the central institute of civil law, i.e. private autonomy of natural and legal persons, has been intruded upon. Because of the historical division of law into public and private and the abstention of a State from authoritative uniform regulation of private relations between persons, civil contracts, freely entered into, are considered as the source of legal norms that govern relationships between the individuals in the same manner as other norms of legal acts. Now, the validity of such civil contracts is no longer a matter of civil law regulation, but is subject of constitutional review – a phenomenon previously inconceivable for private lawyers. In the Handelsvertreter case, the FCC, by rebalancing the parity of a constitutional right of freedom of profession against private autonomy, puts forward constitutional rights as a benchmark for further political decisions. Classically, it is up to the legislator to decide what social and economic balance should be achieved in a society. If this process is now subject to the supervision of the Constitutional Court in the light of checking this balance with the fundamental rights, then it means nothing more but what Kumm (2006: 360) refers to as a ‘Total Constitution’. Another fear for the private law may rise from the fact that subjecting civil litigation to constitutional review may result in the latter assessing and interpreting the very private law concepts, such as, for example, ‘contract’, or ‘property’, or ‘tort’ etc. Thus, the whole doctrine of private law is at risk of being revised from the angle of constitutional law and the autonomy of private law can gradually evaporate. Another danger constitutes a threat to the entire culture of the continental legal system that has a written law in the form of codifications as its primary source of law, as opposed to the Anglo-American system of law based on the legal precedent. Using constitutional law technique of balancing the interests stemming from the fundamental rights rather than the tools of conventional

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civil law threatens to renounce the respective private legislation and constitutes a danger of future opportunities to avoid the contract. Having such arguments in mind, one may surely come to the conclusion that ‘German private law is, indeed, already applied constitutional law’ (Kumm, 2006: 361). However, there are reasons to believe that ‘private law is special and should be exempted from constitutional scrutiny’ (Kumm, 2006: 366). The substantive argument lies in the understanding that private law regulates the relationships among individuals while public law, the relationships between an individual and a State. Private autonomy in private law means that, unlike in public law, individuals may discriminate socially in the way they want to and not be held responsible for this in front of the Constitutional Court. When applying constitutional rights to the private relations setting it merely means that the autonomy interest of the other party should also be taken into consideration and the reciprocal limits of each other’s rights are to be established. Such a balance is usually achieved by private law (civil or commercial codes etc.). However, if a civil litigation is brought in front of the Constitutional Court the relevant constitutional rights guarantees ‘take into account the principle of private autonomy as a countervailing concern’ (Kumm, 2006: 362). A constitutional court, in such a case, merely assesses if the legislator managed to strike the balance between the competing interests. If the existing private law managed to maintain such a balance then one may say that the relevant rules of private law indeed can be justified within the constitutional rights framework. If not, then whether directly or indirectly, but substantively, the balance between the competing constitutional rights is reached through the appropriate interpretation of civil law provisions by the relevant civil law courts in the light of constitutional rights.

IV.

CONCLUSION

This chapter tried to provide an analytical framework for understanding the notion of constitutionalisation of private law with a particular focus on the German constitutional solutions. By the term ‘constitutionalisation’ of private law the effect of fundamental rights on private law relationships is meant. Constitutional values that fundamental rights bear, ‘radiate’ to all the branches of German law, including civil law (concept of Drittwirkung). By means of ‘open-ended’ general clauses of civil law, constitutional rights ‘indirectly’ regulate civil law relationships between natural persons (Mittelbare Drittwirkung). Constitutional rights do not regulate directly relations between persons. This is the domain of private law. The dualism of private and public law is observed and not hindered. The recourse to fundamental rights is made in a civil litigation by means of the constitutional complaint of a party to a liti-

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gation whose constitutional right failed to be duly regulated by means of private law rules. The Constitutional Court applies fundamental rights provisions in a private litigation even when the relevant fundamental rights are counter-parting private autonomy expressed in a civil contract (Grundrechtilche Schutzpflichten). Space precludes a full exposition of the discussion on this subject. However, the expressed ideas on the German position in the debate on constitutionalisation of private law create a solid base for the further comparative analyses with the aim of obtaining optimal legal solutions to the modern challenges of constitutional and private law.

NOTES * 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

Some of the author’s ideas in this chapter are developed in Lytvynyuk (2008) at greater length. German Civil Code of 1896 or Bürgerliches Gesetzbuch (BGB). As opposed to those of the Anglo-American system of law, or common law system (classically, a distinction is being drawn based on the sources of law: statute or written law in the former as a primary source of law, and the precedent in the latter). Gardbaum (2003: 398). See also on the indirect horizontal effect: Taylor (2002); Lewan (1968: 571); Brinktrine (2001: 421); Cherednychenko (2006: 30–32). See arguments by Kumm (2006: 361). For arguments, see Kumm (2006: 366). BVerfGE 7, 198 (Lüth). BVerfGE 81, 242 (Handelsvertreter). Meskell v Coras Iompair, [1973] I.R. 121, 133 Hosford v John Murphy & Sons, [1987] I.R. 621, 626 Retail, Wholesale & Dep’t Store Union v Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. Hill v Church of Scientology of Toronto [1995] 2 S.C.R. 1130. Du Plessis v De Klerk, 1996 (3) SA 850 (CC). New York Times v Sullivan 376 U.S. 254 (1964). Shelley v Kraemer 334 U.S. 1 (1948). For more studies on this subject see, for example, Cherednychenko (2006: 34–61; Gardbaum (2003), 393, 397; Lohse (2007); Oliver, P. and W.H. Roth (2004). Article 1 (3) of German Basic Law (Grundgesetz). Lewan (1968: 572) writes that basic rights can thus ‘. . . be characterized as absolute rights, since they would run against all persons’. Supra note 12. ‘Landgericht’. Supra note 12 [199]. Emphasis added. Supra note 12 [205]. Ibid. Supra note 12 [204], [206]. Supra note 12 [206]. Translation into English taken from Gardbaum (2003), note 76. Emphasis added. Blinkfüer, BverfGE 25, 256 [263], [267]; Mephisto, BverfGE 30, 173 [188]; Hochschulurteil BverfGE 35, 79 [114]; Schwangerschaftsabbruch I, BverfGE 39, 1 [41]; Kalkar I, BverfGE 49, 89 [142] etc. On Blinkfüer see, for example, Lytvynyuk A. (2006: 54–55). Supra note 13.

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212 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

Supra note 13 [243]. Handelsgesetzbuch (HGB). Bundesgerichtshof. Oberlandesgericht. Supra note 13 [254]. Ibid. Section 90a (2) HGB. ‘Grundrechtilche Schutzpflichten’. ‘Eingriffsverbotsfunktion der Grundrechte’. ‘Schutzgebotsfunktion der Grundrechte’.

REFERENCES Brinktrine, R. (2001), ‘The Horizontal Effect of Human Rights in German Constitutional Law’, European Human Rights Law Review, No. 4. Canaris, G.-W. (1984)‚ ‘Grundrechte und Privatrecht’, 184, Archiv für die zivilistische Praxis. Cherednychenko, O. (2006), ‘EU Fundamental Rights, EC Fundamental Freedoms and Private Law’, European Review of Private Law, 14(1), 23–61. Dürig, G. (1956), ‘Grundrechte und Zivilrechtsprechung’ in T. Maunz (ed.), Vom Bonner Grundgesetz zur gesamtdeutschen Verfassung, München. Enneccerus, L. and H. Nipperdey (1959), Allgemeiner Teil des Bürgerlichen Rechts, Tübingen: J. C. B. Mohr (Paul Siebeck, 15th ed.), Vol. I. Gardbaum, S. (2003), ‘The “Horizontal Effect” of Constitutional Rights’, Michigan Law Review, 102. Hunt, M. (1998), ‘The “Horizontal Effect” of the Human Rights Act’, Public Law. Kumm, M. (2006), ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’, German Law Journal, 7 (4), 341–361. Leisner (1960), Grundrechte und Privatrecht, München: Beck. Lewan, K.M. (1968), ‘The Significance of Constitutional Rights for Private Law: Theory and Practice in West Germany’, International and Comparative Law Quarterly, 17, 571–601. Lohse, E.J. (2007), ‘Fundamental Freedoms and Private Actors – towards an ‘Indirect Horizontal Effect’, European Public Law, 13(1), 174–190. Lytvynyuk, A. (2006)‚ (‘The influence of third persons on the realization of fundamental citizens rights in German constitutional law’) ,– 342(430) (091)], 52–58 at 54–55. Lytvynyuk, A. (2008), ‘Constitutionalization of Private Law in Europe’ in N. Sˇisˇkové (ed.), The Process of Constitutionalization of the EU and Related Issues, Groningen: Europe Publishing, 175–89. Oliver, P. and W.H. Roth (2004), ‘The Internal Market and the Four Freedoms’, CMLR 41, 407–441. Sunstein (1996), ‘Against Positive Rights, in A. Sajo (ed.), Western Rights? PostCommunist Application. Taylor, G. (2002), ‘The Horizontal Effect of Human Rights, the German Model and its Applicability to Common Law Jurisdictions’, King’s College Law Journal, 13, 187–218.

15. Toward an institutional approach to comparative economic law? Antonina Bakardjieva Engelbrekt I.

INTRODUCTION

During the last decade the interest in comparative law has grown exponentially not only on the part of the legal community, but also on the part of neighbouring disciplines, such as economics and political science. This is hardly surprising. The collapse of communism in the countries of Central and Eastern Europe and the following massive economic and legal transformation have raised intricate questions as to the role of law and legal institutions for economic growth and for the success of economic reform and have unleashed a dynamic process of legal borrowing and search for best practices. In addition, the widening and deepening of economic and political integration within the European Union have prompted debates on the relative advantages of uniformity versus diversity of legal institutions and on regulatory competition (Ogus, 2007; Kerber and Heine, 2002). Finally, economic globalisation has intensified the involvement of international economic organisations like the World Bank (WB), the World Trade Organization (WTO) and the International Monetary Fund (IMF) in market and political reforms in developing and transition countries and has, more generally, triggered an interest in emulating successful legal and economic models.1 This chapter looks into several examples of application of economic theory in the area of comparative economic law.2 The focus is in particular on a series of contributions in the economic literature now known as the New Comparative Economics (La Porta et al, 2003). The New Comparative Economics (hereinafter NCE) builds on institutional economics, but seeks to offer a framework for comparative efficiency analysis of legal institutions across numerous jurisdictions. The present contribution analyses critically the use of comparative law within this increasingly influential school of economic thought. The strengths and the possible pitfalls of the normative advice drawn from the analyses of the New Comparative Economics are discussed. Against this background, I argue for a more sensitive use of institutional theory in comparative economic law. It is suggested that instead of aggregate 213

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statistical approaches, the emphasis should be on deep-level comparative institutional analysis (Komesar, 1994; North, 1990), informed by modern theory of comparative law, legal history and comparative jurisprudence (Ewald, 1997). Finally, some areas are mapped where such theoretical enquiries can make a valuable contribution to fine-tuning the reform agenda of economic law within the European Union and at the global level.

II. THE NEW COMPARATIVE ECONOMICS AND THE LEGAL ORIGINS THEORY The NCE is a theoretical strand associated with a group of economists clustered around Harvard economics professor Andrei Shleifer. The group works in close co-operation with and is often financially supported by the World Bank.3 The term ‘new’ in NCE aims to position this emerging research field viz. the old Comparative Economics, which was chiefly preoccupied with comparing socialism and capitalism as two economic systems relying on different forms of resource allocation, namely the plan and the market. With the collapse of socialism the old comparative economics obviously largely lost its relevance as a discipline (La Porta et al, 1999). At the same time, the transition from socialism to capitalism has made it clear that there is more than one model of capitalism and that building the institutional framework of free markets presents a number of difficult institutional choices that may be, and often are, exercised differently across jurisdictions. The NCE thus essentially purports to analyse comparatively questions of institutional choice and design of non-market institutions which frame the market economy. The term institution is in the NCE understood broadly to encompass formal legal rules, but also informal rules, customs and practices that reduce uncertainty and frame social interaction. The main questions are thus: which are the institutions that induce and support economic growth; why is there a broad institutional variation across countries; and how are ‘good’ institutions to be nurtured? 1.

Background

The NCE school is to a great extent born out of experience. The leading scholars in this novel theoretical stream have been closely involved in the massive attempts at economic and political transformation of the Central and East European countries (CEECs), and of the Russian economy in particular (Boyko et al, 1997; Shleifer and Treisman, 2000). In the early 1990s Andrei Shleifer was heading a team of young and bright Harvard economists who via the Harvard Development Institute were mandated by the American government to assist Russian reformers in carrying through a swift privati-

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sation and in achieving a point of no return in the conversion of the Russian command economy into a market economy. There was at the time disagreement among economists as to the pace of economic reform in CEECs. Shleifer and team were among the advocates of rapid macro-economic transformation, the type of ‘shock therapy’ approach in the well known Jeffrey Sachs terminology. Economic advice to governments in Central and Eastern Europe that streamed from the West in the early stages of transition was based on a neoclassical economic framework and was pretty straight forward in its main messages: Price formation should be free, governments should avoid ownership or subsidisation of firms, property rights should be secured by enforcing contracts. Regulation should be responsible and budgets balanced. Trade barriers should be removed (Shleifer and Treisman, 2000: vii). Under these macroeconomic conditions markets were expected to thrive and lead spontaneously to efficient resource allocation and to economic growth. Yet, whereas in some respects the reforms were a success, there was in the decade to follow also abundant evidence of rampant failure. More unexpectedly, similar economic policies led to largely differential results in CEECs, such as Poland and the Czech Republic on the one hand, when compared to Russia, on the other. In the mid 1990s Poland and the Czech Republic were already considered firmly set on the path of Western social market economy with stable economic growth, while Russia was struggling with corruption, plagued by maladministration, tax evasion and political instability. What was the reason for these dramatically different outcomes? Why didn’t the neoclassical recipe work in Russia (Shleifer and Treisman, 2000; Djankov et al, 2003b: 597)? It seems it was the analysis of the failures of Russia’s transition and of the US-supported privatisation programmes that triggered the interest of the Harvard economists in the role of law and legal institutions. 2.

The Main Claims

It should be stressed from the outset that under the ‘roof’ of the NCE different claims are advanced, which do not present a neat and consistent theoretical framework. Given the considerable number of publications in which the theoretical premises and the main findings of the NCE have been presented, the shifting constellation of authors and evolution of the theoretical tools over time, it is probably not surprising that the claims differ in their nuances and are not always easy to reconcile. Apart from the overarching claim that institutions in general, and legal institutions in particular, matter for economic development, a claim familiar from the new institutional economics, one can distinguish between two lines of theorising: the Legal Origins Theory (LOT) and the Institutional Possibilities Frontier theory (IPF).4 Whereas these two strings of

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research are related they are in certain important respects distinctive and, as I shall argue below, even contradictory. 2.1 Legal origins The ‘legal origins’ hypothesis can be traced back to a 1996 paper of La Porta, Lopez-de-Silanes, Shleifer and Vishny (LLSV) (later on published in the Journal of Political Economy, La Porta et al, 1997) and has been thereafter repeatedly tested in research on external finance, corporate governance, the quality of government, courts, private credit, debt enforcement, etc. (La Porta et al, 1998; La Porta et al, 1999; Djankov et al, 2003a; Djankov et al, 2008; La Porta et al, 2008). It is particularly interesting for students of comparative law, because it builds extensively on comparative law scholarship and in particular on the teaching of grouping legal systems into larger clusters, so called legal families, and on the theory of legal transplants. On the basis of classifications developed and refined by established comparative law scholars like Zweigert and Kötz (1998: 66–67) and Mary Ann Glendon (Glendon, Gordon, and Osakwe 1994: 4–5) La Porta et al distinguish several major legal families in the world, namely common law, French, German, Scandinavian and socialist family. Following comparative law scholarship they accord special importance to the distinction between the common law and the civil law tradition. Another major inspiration from comparative law is derived from the theory of legal transplants as developed particularly by Alan Watson (1974). As is well known, by demonstrating the pervasiveness of legal borrowings throughout the history of mankind Alan Watson has made a strong case of legal change as taking place foremost by way of legal transplantation and imitation rather than by endogenous processes of demand and supply of law.5 Building on this and other accounts on legal transplantation, La Porta et al treat the five major legal families as sources of influence (or origins) for a large number of legal systems around the world, where the legal tradition of the origin countries had been imposed through conquest, colonisation and emigration, or accepted by way of voluntary emulation. Thus, a central point for any study following the LOT is to pin down a country’s legal system to one of the five legal origins, which is normally done on the basis of legal historical accounts and comparative law scholarship. As visible from the extensive tables attached to the individual publications on the LOT, to the common law group are assigned countries like the US, Canada, Australia, India, but also Israel and South Africa (La Porta et al, 1998). In the French group are ordered Italy, Spain, the majority of the Latin American countries, Greece and Turkey and some former French colonies in Africa like Egypt (La Porta et al, 1998). The German group is seen to extend to Austria, Switzerland, but also to Japan, South Korea and Taiwan where German codifications were voluntarily introduced following attempts at modernisation (La

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Porta et al, 1998). The Scandinavian legal tradition has not spread beyond the Scandinavian countries and forms a little and rather exclusive club of advanced welfare states. In earlier writings, following Zweigert and Kötz, all former satellites of the Soviet Union in Central and Eastern Europe, together with countries like Cuba, China, North Korea, were treated as forming a separate, so called socialist legal family. More recently, however, the former socialist countries in Central and Eastern Europe are classified in one of the families within the civil law tradition. This conversion has taken place, as admitted by La Porta et al (2008), chiefly in response to scholarly and political criticism; something that demonstrates some dilemmas of classification to which I shall return later on in this chapter. The LOT uses legal families as an independent variable for testing political and economic theories of institutions. The main claim is that legal origins influence in distinctive ways the content of legal rules across countries, the enforcement of the rules and ultimately the structure of markets and economic performance. In particular, the common law family and the continental legal family are seen to be characterised by very different styles of social control of business, with greater reliance on courts and private ordering in the common law and on state control in the continental tradition. According to La Porta et al these differential approaches have their genesis in the historical evolution of legal institutions that started in 12th and 13th centuries England and France and continued up to the 18th and 19th centuries. They have thereafter been spread through conquest, immigration and emulation to the rest of the world and, despite modifications and change, continue to exert a notable influence on the way societies solve problems even today (La Porta et al, 2008: 307). The LOT is presented as a grand theory that promises to offer explanation of a highly complex set of social and historical facts on a world-wide scale. The attraction of the theoretical framework is that it facilitates the ordering of the majority of jurisdictions around the world into neat clusters, which in turn ‘allows the comparison of both individual legal rules and of whole legal families across a large number of countries’ (La Porta et al, 1998). The studies that advance the legal origin thesis are designed as large scale comparative studies of specific legal rules, legal areas, or broad legal institutions such as courts and governments. Thus, the law and finance study of La Porta et al (1998) covers 49 countries, the quality of government project (La Porta et al, 1999) is based on data from up to 152 jurisdictions, the study on courts surveys 109 jurisdictions (Djankov et al, 2003a) and the one on debt enforcement 139 countries (Djankov et al, 2008). The early writings of La Porta et al focus rather narrowly on the written legal rules as evidenced from statutory texts, or ‘law on the books’. Later on, the research design has been refined to incorporate data on ‘law in action’. Consequently, the data that are generated and processed consist of legal rules

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on particular issue (e.g. investor protection, creditor protection, constitutional review), but may also include evaluative data on the security of property rights against expropriation by government (La Porta et al, 2004: 449), statistical data on the speed and efficiency of enforcement, surveys on perceptions about the quality of the legal system and of the public administration, data on the quality of accounting standards, etc. (La Porta et al, 1998: 1115). Much of the data is taken from secondary sources; for instance the indexing of security of property rights and of business regulation is based on a 1997 Index of Freedom by Holmes, Johnson and Kirkpatrick (La Porta et al, 1999; 2004). On the basis of these statistical data, different characteristics of legal systems are evaluated and coded, i.e. receive numerical indicators. Thus on the efficiency of the judicial system Canada receives 9.25, Pakistan 5, France 8, Turkey 4, Germany 9, Japan 10, Taiwan 6.75 and the Scandinavian countries all get the highest possible scores of 10. Whereas the LOT was first formulated within studies on corporate finance, the analysis gradually expanded and is not confined to the domain of economic law and institutions. Quite to the contrary, it seeks to demonstrate the pervasive impact of legal families on broad-base institutions such as courts (Djankov et al, 2003a) and more generally, on the quality of government (La Porta et al, 1999). Although the authors sometimes make disclaimers as to the normative ambitions of their theory, the studies often have a strong evaluative stance. Quite consistently, and irrespective of the area of study, the common law countries are found to offer superior legal institutions in terms of efficiency, whereas the French legal tradition is carped as interventionist and inefficient. For instance, the study on corporate finance concludes that countries in the common law tradition protect investors more than countries in the civil law tradition. Enforcement in turn is assessed as being best in the German and Scandinavian countries, strong in common law countries, and weakest in French countries (La Porta et al, 1998). The judgement is even more strikingly sweeping when the studies address fundamental questions like protection of property rights, the judicial system or the quality of government. Thus the 1999 study on the quality of government comparing data and indicators from 152 countries concludes: Compared to common law countries French origin countries are sharply more interventionist (have higher top rates, less secure property rights and worse regulation). They also have less efficient governments, as measured by bureaucratic delays and tax compliance, though not the corruption score. . . . Finally, French origin countries score worse on our democracy measures than the common law countries (La Porta et al, 1999: 261).

To this, poor enforcement and accounting standards are said to aggravate the difficulties faced by investors in the French civil law countries.

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These undoubtedly strong statements have provoked irritation and criticism to which I shall return in the following.6 For now, it suffices to note that the conclusions are rather categorical and unequivocal, claiming strikingly broad validity. Certainly, some disclaimers are introduced. Thus, the crucial question of whether French origin countries with poor investor protection laws and poor enforcement actually do suffer is not answered with certainty. Whereas the data are interpreted as establishing a link from the legal system to economic development and as evidence of adverse consequences of poor investor protection for financial development and growth, it is admitted that deficiencies in investor protection are not insurmountable bottlenecks. As stated by La Porta et al, ‘France and Belgium, after all, are both very rich countries’ (La Porta et al, 1998: 1152). The emphasis is, however, on median outcomes, which are considered to evidence the inferiority of the French model on all scores. 2.2 The Institutional Possibilities Frontier The second line of research that is related to the LOT, but which advances different and to a certain extent even opposite claims, is the theory about the so called Institutional Possibilities Frontier (hereinafter IPF) presented in the article of Djankov et al on ‘The New Comparative Economics’ (2003b). The theory is concerned with the crucial question of institutional choice. Building on classics like Hobbes, Adam Smith and Montesquieu, Djankov et al (2003b) identify two main risks that any society faces and that have to be addressed and controlled. These are the risk of (private) disorder and the risk of (public) dictatorship. The authors then identify a variety of institutions for the social control of business that aim to reduce the costs associated with these two vices, focusing on four more common strategies: private ordering, private litigation, regulation and state ownership. Seen as points on a continuum between disorder and dictatorship, these strategies imply diminishing costs of disorder and increasing costs of dictatorship. The argument is that there is a trade-off between reducing dictatorship and reducing disorder, and that institutions differ in their capacity to minimise the social loss of both vices. Institutions of private ordering such as contracts and self-regulation by voluntary associations imply minimum intervention by the state and can thus be positioned farthest away from dictatorship. At the same time, they are less capable of reducing the social loss from disorder. Courts involve greater degree of intervention, whereas public monopoly and expropriation represent the extreme forms of public intervention, reducing the costs of disorder but increasing the costs of dictatorship. Importantly, the theory asserts that societies differ in their institutional possibilities. For each society at a given point of time there is arguably, from an efficiency perspective, a limit as to how much disorder can be reduced with

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an incremental increase in the power of the state (Djankov et al, 2003b: 599). This limit is called the IPF.7 The position of the institutional possibilities frontier depends according to Djankov et al on a complex of factors, summarised by the notion ‘civic capital’. The notion has commonalities with Putnam’s concept of social capital but is broader than that and relates to culture, geography, economic endowments, etc. Consequently, efficient institutional choice would vary between countries with different levels of civic capital. Whereas for a country like Sweden the frontier would arguably allow greater experimentation with both public regulation and private ordering with relatively little social loss from disorder and dictatorship, for a developing country or a transition economy the IPF would not allow the same institutional possibilities. In particular, Djankov et al assert that for countries with less civic capital institutions that increase dictatorship will not necessarily translate into decrease in disorder, since they will trigger private subversion of public rules (Djankov et al, 2003b). The theory of the IPF is applied to explain a number of institutional choices and historical instances concerning different countries, e.g. the rise of the regulatory state in the US in the early 1900s and at the time of the New Deal; the differential institutional paths for social control of business taken by England and France during the 12th and 13th centuries; the frequent inefficiency of transplantation and the differential success of institutional and economic reform in Central European states as compared to Russia (Djankov et al, 2003b). Contrary to the Legal Origins Theory, the IPF seems to direct the searchlight at each country’s specific conditions and, if taken seriously, should require an in-depth analysis of local modalities that condition and constrain institutional choice.

III. THE MERITS OF THE APPROACH The scholarly work of Shleifer and associates is important in that it draws the attention of economists and policy makers to law and legal institutions. On a general level, the interest of economists in legal diversity and in comparative law, as manifested in the Legal Origins track of research, can be welcomed. It marks a step away from the abstract, ahistorical approach characteristic of much conventional law and economics, which takes law as given and eventually builds on hidden and unreported assumptions often anchored in the American common law system.8 By focusing on legal diversity and exploring persistent patterns of institutional choice and design across jurisdictions La Porta et al succeed in painting a more sophisticated and realistic picture of the link between law and economy. Much in line with historical institutionalism, the LOT summons considerable evidence of the conservative force of legal institutions. Historical

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paths and past institutional choices thus seem to influence the trajectory for coevolution of legal institutions and markets in a long-term and persistent way. These results are to a certain extent congruent with findings in the ‘varieties of capitalism’ line of scholarship (Hall and Soskice, 2001). Furthermore, the school has produced a number of valuable contributions, which increase our understanding about the complexity of institutional design and the interplay between private and public institutional arrangements. In particular works that analyse institutional choice in transition economies take the ‘comparative system approach’ advocated by Coase (Coase 1960) seriously (Glaeser et al, 2001; Hay, Shleifer and Vishny, 1996; La Porta et al, 1999).9 They engage in a careful analysis of instances when public regulation may be preferred to judicially enforced contracts (Djankov et al, 2001), finding support in Coase’s own admittance that ‘[t]here is no reason why, on occasion, such governmental regulation should not be an improvement on economic efficiency’ (Coase [1988, pp. 117–118]). Another valuable insight that has seeped through the findings of the NCE is that exporting law and legal institutions through conquest or imposition may have negative effects in the recipient country since these are not adapted to its internal institutional needs and balances (Glaeser and Shleifer, 2002).10 The logical follow-up of this finding would be that reform should not blindly follow abstract ‘best practices’ advice but shall scrutinise the efficiency impact of new rules in the economic and institutional context of the borrowing country. As stated by Djankov et al, reforms in each country must be evaluated relative to its own institutional opportunities, rather than some idealised benchmark of perfect government and markets (Djankov et al, 2003b: 615). Last, but not least, the methodology employed by La Porta et al has the undeniable merit of bringing together an impressive amount and variety of data and offering plausible explanation of their inner relationships. It has rightly been noted in the literature that for a comparative lawyer to generate and process the same amount of data it would have taken years of scholarly effort and multiple volumes of comparative reports (Siems 2000). The synthetic capacity of the approach is remarkable.

IV.

THEORETICAL AND METHODOLOGICAL PITFALLS

Yet despite the many advantages of the new approach, there are a number of theoretical and methodological problems, which require closer examination. 1.

Theoretical Inconsistencies

Thus, whereas the claim that legal origins can be seen as proxies for distinctive

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modes of social control of business is insightful and based on careful historical analysis, in particular as relating to the common law and the French legal tradition, what seems less convincing is extending this conclusion to countries where the origins have arguably been transplanted. Implicit in the latter claim is, first, an assertion that legal transplantation proceeds in a wholesale manner. The transfer of legal rules and institutions from a coloniser to a colony is taken to affect the legal system as a whole, in all its branches and ways of operation. The evidence from comparative law is, however, that legal traditions are complex, multilayered and only rarely transplanted ‘en bloc’ (Örücü, 2007). Only by exception can transplantation encompass both private and public law rules, and importantly, related enforcement mechanisms and structures. The typical case is rather that of the mixed legal system, where rules and institutions from different civil law traditions (French or German) or even from common law and civil law coexist and interplay with local custom and legal culture. Second, the LOT seems to suggest that legal rules and legal institutions have the same impact irrespective of the broader institutional environment in which they are embedded. This follows from the aggregate treatment of countries classified in the same legal family but having largely divergent economic, societal or cultural backgrounds.11 The LOT seeks to demonstrate not only that the black letter rules in these countries are often similar, but also that the broader economic effects of legal rules are comparable. For instance the studies on finance conclude that French origin countries offer poor investor protection and lead to more limited capital markets, making no attempt to differentiate between the economic impact of such rules in origin and in recipient countries (La Porta et al, 1998). Likewise the studies on the quality of government conclude that French origin countries are sharply more interventionist, offer worse property rights protection, have less efficient government and worse provision of public goods, taking French origin countries as a whole (La Porta et al, 1999). Certainly, institutional patterns have been diffused in pervasive ways: through imposition, emigration, emulation or otherwise. There is, however, abundant evidence from comparative law scholarship that transferred legal institutions rarely have the same effect in recipient countries as in the origin countries.12 As inferred above, legal transplantation only rarely proceeds in a wholesale manner. But even in cases of wholesale transplantation of codes the transplant does not remain intact in the shape and with the effects it had in the donor country. In respect to the very unique case of the transplantation of the Swiss Civil Code in Turkey, Zweigert and Kötz (1998) state: This instance of reception is especially interesting because it is so remarkable. . . . Nowhere else in the world can one so well study how in the reception of a foreign

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law there is a mutual interaction between the interpretation of the foreign text and the actual traditions and usages of the country which adopted it with the consequent gradual development of a new law of an independent nature.

It should be noted that the ‘varieties of capitalism’ literature, to which La Porta et al refer for support of the Legal Origins Theory, focuses on more limited comparative studies between capitalist economies in advanced industrial (OECD) states, chiefly England, Germany, France and the Scandinavian countries. So whereas it concords with the LOT when it comes to identifying persistent styles of framing the economy, namely liberal and co-ordinated economies, it does not purport to extend this categorisation to developing or transition countries.13 Another related objection one can direct at both LOT and the IPF is that the theories seek to provide a generalised explanatory framework for the link between legal system and economic performance, treating all branches of the legal system in an aggregate and undifferentiated manner. Institutional influence and legal transfer are thus assumed to take place in the same way irrespective of the area of law and regulation, or the sector of the economy concerned.14 However, it is highly unrealistic to expect the transfer of legal rules and institutions of so different character such as civil law, commercial codes, banking and labour regulations and constitutional rules and practices, to proceed in the same way unaffected by local preferences and resistance. A number of in-depth comparative studies demonstrate convincingly that local actors, legacies and interest group politics differ substantially between policy areas, which accounts for differential sectoral dynamics of institutional change (Immergut, 1992; Steinmo, Thelen, and Longstrethand, 1992; Knill, 2001). Importantly, many of the writings of the LOT apparently proceed from an assumption that certain rules and institutions are conducive for economic growth, irrespective of the environment in which they are introduced and of the way of their introduction. Such assumptions are sometimes openly reported and based on authoritative economic analysis (for instance protection of property rights with reference to Adam Smith and Hayek). Often, however, the assumptions are implicit, buried in the less transparent web of indices coding and valuating rules and institutional characteristics (Siems, 2005a). For instance strong investor protection, independent courts, and constitutional review are qualitatively identified as contributing to market prosperity and economic growth in pure and abstract terms. These normative claims are rarely subject to discussion in the writings of the LOT.15 Yet the idea of identifying institutions that would be conducive of economic growth under any circumstances fails to convince (Berkowitz et al, 2003). Moreover, it appears to contradict some of the main premises of the theory of the institutional possibilities frontier. In their article on the New Comparative Economics, Djankov et al state:

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[a]n institution that respects the delicate trade-off between dictatorship and disorder in the origin country may not remain efficient once transplanted to a colony (Djankov et al, 2003a: 598).

However, this valuable insight stands in ill harmony with the very design of the LOT. The acceptance of idealised benchmarks prompts the strong evaluative stance of many of the contributions in the LOT. A comparison with the varieties of capitalism literature shows that the latter theoretical strand avoids normative qualifications. Hall and Soskice explicitly state that they are not arguing for the superiority of one type of capitalism over the other (Hall and Soskice, 2001: 21). Likewise, comparative lawyers as a matter of principle, refrain from general evaluations as to the quality of different systems, partly due to limitations inherent in the traditional methodology of legal scholarship. A serious drawback of both LOT and the IPF is that neither theory seems to suggest a credible explanation for legal change. The theories offer a static and to a certain extent determinist conceptualisation of legal institutions since they do not address the mechanisms that lead to shifting the IPF to a superior or inferior status.16 Thus for example, at the explanatory level Glaeser and Shleifer (2002) find the reasons for the difference between the organisation of justice in the common law and the civil law systems (namely through independent jurors and appointed professional judges) in the lesser risk of law enforcement being subverted in relatively peaceful England compared to revolutionary France. However, it remains unclear why is it that societies in France and in England managed to respond to the challenges in their environment through creating institutions adequate to their demands back in the 12th and 13th centuries, whereas societies in transplant countries fail to carry through a similar adaptation. The theory of the IPF makes a commendable effort to dig deeper into the reasons for institutional diversity. Yet, the notion of ‘civic capital’ that is advanced as a main explanatory factor is so multifaceted and vague that its helpfulness can be questioned (see also Rosser and Rosser, 2008). As mentioned above, according to Djankov et al it relates to culture, ethnic homogeneity, and human capital but includes also factors from the physical environment, such as geography and physical endowments. The IPF is moreover said itself to be associated with effective government, greater transparency, and greater freedom of the press (Djankov et al, 2003b: 604). So, the IPF is both a determining factor for and a product of institutional choice and institutional reform. This makes it difficult to differentiate between cause and effect, and to analyse the reasons for shifts in the IPF. For instance Djankov et al conjecture that the transplantation of common law, by the latter’s correlation with constitutional guarantees of judicial independence, might influence the

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location of the IPF and not just institutional choice along this frontier (Djankov et al, 2003b: 612). The theory is ambiguous as to when institutions become part of society’s civic capital.17 Crucially, much as the NCE is advanced as comparative in the true Coasean sense, some of the conclusions remain puzzling and the analysis one-sided. On the basis of the IPF theory Djankov et al formulate what appears to be a key normative recommendation, namely that ‘[b]ecause of the substantial risks of public abuse of business, developing countries need less regulation for efficiency’ (Djankov et al, 2003b: 611). To reach this conclusion the authors analyse the possible pitfalls of public regulation in developing countries. What they fail to address is that also courts, self-regulation and market discipline may be negatively affected by the society’s poor civic capital as well. The marginal effectiveness of dictatorship in reducing disorder is taken as a crucial determinant of institutional efficiency without enquiring into the effectiveness of private ordering (Djankov et al, 2003b). The analysis is thus a single institutional one (Komesar, 1994, see below). 2.

Methodological Fallacies

At least part of the theoretical inconsistencies discussed so far are closely related, it seems, to certain flaws in the methodology employed in the majority of studies in the NCE, and in particular in the legal origins line of research. While the research design has been constantly readjusted and refined, still many of the studies rely on extensive accumulation and comparative evaluation of data across numerous jurisdictions whereby the legal origin of a system is kept as independent variable. 2.1 Legal families as an imperfect tool It is probably not surprising that the use of classical comparative law taxonomy in the NCE and the LOT has attracted attention and critical scrutiny on the part of comparative lawyers (Siems, 2007a; 2005a; 2005b). In particular, the central place awarded to the distinction between common law and civil law has been questioned given the massive critique levelled at this distinction in comparative law scholarship. As is well known, the dichotomy has been criticised as building essentially on analysis of private law and reflecting the longterm bias of comparative law scholarship towards private law (Gerber, 2001; Örücü, 2007: 170). As Zweigert and Kötz incisively point out, the classification would go along different lines if public law is taken as a basis, with USA and Germany belonging to the group of countries granting courts constitutional review and UK, the Scandinavian countries and France being far more restrictive in empowering the courts and insisting on the primacy of parliament (Zweigert and Kötz, 1998: 66). These remarks are particularly relevant

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when evaluating some of the studies of La Porta et al which are directed not at commercial law institutions, but rather at the constitutional dimension of legal systems, notably the study on judicial checks and balances.18 In a different vein, Whitman deplores that the traditional classifications are based on very technical ‘lawyerly’ criteria such as sources of law and procedure and provide ‘few answers to the kinds of policy questions posed by the core policy sciences’ (Whitman, 2008: 350–51). The inherent eurocentric cultural bias in according excessive weight to the dichotomy between common law and civil law and, more generally, in focusing on domestic law of municipal legal systems, thus neglecting non-Western cultures and traditions, has also been brought forward in other contexts (Örücü, 2007; Twining, 2007). Still, it should be conceded, that La Porta et al do not rely on a simplistic taxonomy, but build on the more sophisticated set of criteria, which Zweigert and Kötz have dubbed as the ‘style of legal families’. In their contribution to the theory of ‘legal families’ Zweigert and Kötz identify five factors that are constitutive of such ‘style’, namely historical background and development, the predominant and characteristic mode of thought in legal matters, distinctive institutions, legal sources and the way they are handled, and finally ideology (Zweigert and Kötz, 1998: 67). Interestingly, La Porta et al take the reference to ‘ideology’ to be supportive of their own conclusions of a link between legal families and the attitude towards the desired degree of state intervention in economic life. They quote Zweigert and Kötz’ statement that ‘the style of a legal system may be marked by an ideology, that is, a religious or political conception of how economic or social life should be organised’. According to Zweigert and Kötz, however, ideology becomes important mainly as a factor distinguishing religious-based systems and systems based on socialist ideology. In the 1987 edition of their Introduction to Comparative Law they continue: ‘This is manifest in the case of religious legal systems and of the socialist systems. The legal ideologies of the Anglo-Saxon, Germanic and Romanistic, and Nordic families are essentially similar, and it is because of other elements in their styles that they must be distinguished, but the communist theory of law is so extremely different that we must put into a special legal family the Soviet Union, the People’s Republic of China, Mongolia, Vietnam, North Korea and the socialist states of Europe.’

2.2 Difficulties of attributing legal systems to legal families: a realistic look at legal reception and borrowing A major problem with the LOT is its reliance on the possibility to classify legal systems across the world in one out of four big legal origins. Such subsuming is, however, far from an easy and uncontroversial operation. The neat tables that appear in LOT publications give short shrift to a complex and often

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contested story of intersecting stages of legal development, where different layers and influences are mixed and remixed in quite disorderly fashion (Örücü, 2007). The classifications are thus sacrificing historical detail and precision for the sake of preserving the clarity of the model. The problem is well illustrated by the difficulties of finding the appropriate place in the classification for individual CEECs. These countries were not covered by the first studies on law and finance by La Porta et al (1997, 1999) and were treated as belonging to a separate group, namely the one of the socialist family, in the studies on the quality of government (La Porta et al, 1999) and on judicial checks and balances (La Porta et al, 2004). Yet twenty years after the fall of the Iron Curtain, such classification stands out as inadequate. Recent studies have therefore attempted a more exact and up-to-date classification. But whereas the belonging of the CEECs to the civil law tradition can hardly be contested, the choice between the German or the French family has not proved easy. Given the turbulent history of these states and the many layers of their legal traditions, in most cases one can see both German and French origins being at play, intertwined with influences from modern American corporate, economic and constitutional law.19 La Porta et al occasionally address the complicating factors of legal dynamics and of multi-layered systems, but either ignore them or take one of several possible ‘layers’ of a legal system as the defining one. For instance, in the study on Law and Finance, admitting changes in law and in the sources of legal influence in some countries (e.g. common law influences in Ecuador, which initially was a French civil law country, German influences in Italy, also a French origin country and Americanisation of company law in Japan, initially a German origin country), the authors opt to ‘classify a country on the basis of the origin of the initial laws it adopted rather than on the revisions’ (La Porta et al, 1998). In another article, when faced with the jig-saw character of legal systems where certain areas of laws come from a common law and other areas from German or French law, the authors are inclined to accept pluralist classification of a country into different ‘origins’ depending on the area under analysis.20 This approach seems however to be at odds with the ambition of showing that rules and enforcement environment are equally influenced by legal origins. 2.3 The risk of working with ideal types In their recent restatement of the LOT, La Porta et al concede that ‘no country exhibits a system that is an ideal type’ and that all countries mix the two approaches to social control of business perceived as so distinctive of the common law and the continental tradition, namely private contract and litigation versus government ownership and mandates (2008). However, the research design, the analysis and the outcomes of their studies reveal an ‘ideal

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type’ approach. The common law and the civil law (in particular the French) tradition are described through highly generalised and stylised characteristics. As often with ideal types, many of the distinctive features ascribed to the two legal origins hardly survive a close empirical test. To take some examples, following traditional comparative law accounts, La Porta et al portray the common law system as chiefly relying on case law and leaving limited space to statutory law. Yet such description has been criticised as one-sided by Zweigert and Kötz already in the 1986 edition of their work (Zweigert and Kötz, 1986: 278). With the advance of European legal integration and the growing number of statutes entering the British legal system in the process of implementing the European acquis, this portrayal is becoming increasingly out-of-touch with reality. When confronted with such criticism La Porta et al concede to the growing role of statutory law, but insist that common law statutes are still highly imprecise, leaving broad room for interpretation to judges.21 This characterisation is, however, not entirely correct. It is common knowledge that drafting statutes in the common law tradition is an extremely painstaking process of exacting detail and formalism. Precisely because statutory law is considered as an intervention in the realm of common law, statutes are as specific as possible in order not to allow for broad construction (Zweigert and Kötz, 1998). Likewise the aversion of common law countries, the UK in particular, to general clauses is familiar to anyone who has followed the attempts at harmonisation of consumer contract law and unfair commercial practices law in the European Union (Teubner, 1998). Next, whereas the German civil and commercial codes are said to use more general formulas and to accommodate greater judicial law making, the French tradition is seen as characterised by rigid statutes (La Porta et al, 2008: 291). Contrary to this assertion, many comparative law accounts draw attention to the notoriously vague general clauses in the civil law tradition, which have been a source of flexibility awarding an important role to the judiciary and to legal scholars in Germany (Professorenrecht). Certainly the anecdote of Napoleon’s conviction that his code was so perfect that it needed no doctrinal interpretation is well-known among comparatists.22 But equally well known is the fact that the body of modern French tort law developed on the basis of five short articles on tort liability (delict) in the code civil essentially by creative judicial law making (Zweigert and Kötz, 1998; Bogdan, 2003: 151).23 And German unfair competition law provides a fascinating example of elaborate judge-made law that has evolved on the basis of a general statutory clause of unfair competition (Bakardjieva Engelbrekt, 2003; Ohly, 1997). Generally, it is widely recognised that the law-making role of the judiciary in the civil law tradition is much more prominent than admitted in reductionist accounts of both comparative law and comparative economics (Ahlering and Deakin, 2008).

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Related to the above is another point, often underscored by comparative lawyers, and which is only partly addressed by La Porta et al, namely the changing character of law and the gradual convergence between the common law and the civilian tradition (Zweigert and Kötz, 1998; Siems, 2007b). The dynamic of legal interaction and legal change is certainly enhanced by processes of supranational and international legal integration where lawyers and institutional actors from different legal systems communicate, negotiate and arrive at mutually acceptable solutions. With its 80 000 pages of legal instruments, the so called acquis communataires, the European Community is one of the most fascinating and dynamic melting pots of legal rules and ideas, whereby the national origin of the commonly devised rules and standards, which travel back to the Member States, is hard to discern and identify. Likewise the many ‘best practices’ model codes elaborated under the auspices of the World Bank or the OECD have a mixed and hybrid character. Seen from this perspective, by taking national jurisdictions as the main unit of analysis, the New Comparative Economics, much like traditional comparative law, reveals the symptoms of methodological nationalism and offers no useful conceptualisations of legal interaction in a globalised world (Beck, 2000; Joerges, 1997; Smits, 2008). 2.4 Measuring legal families This leads me to the much debated appropriateness of measuring legal systems by using scores and numerical indices. As mentioned above, the various studies of the LOT use and combine diverse sets of data. Some relate to very specific legal rules and institutions, for instance share holders’ voting rights in companies or constitutional review, and are first-hand data generated by study of the legal texts in the countries under analysis. Others are of an aggregate and evaluative type and relate for instance to the efficiency of the judicial system, rule of law and corruption (La Porta et al, 1998). These are secondhand data, building themselves on primary data generated and processed by other scholars or, more typically, policy think tanks and interest organisations. Both approaches are prone to criticism. As others have argued, there is an inherent imprecision and, at worst, hidden bias and lack of transparency in the attempt to capture nuances in legal rules and institutions by numercials (Siems, 2005a; 2007). In the case of questionnaires asking for the availability of a specific rule (e.g. investor protection), the very formulation of the question is often influenced by the background and the expectations of the researcher compiling the questionnaire. The questionnaire may thus omit important rules and institutions that have similar or comparable function, but are located in different branches of the legal and administrative system, and have different conceptual denominations.24 To avoid such pitfalls comparative lawyers insist on functionality as the main method of comparative law, and

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advise scholars to engage in sensitive search for different rules and institutions that provide answers to similar problems in life and in the economy. Following this approach comparative lawyers are instructed to span the research net broadly to be able to unearth functional equivalents when one least expects them, including the area of soft law and non-legal institutions (Zweigert and Kötz, 1998; Reitz, 1998; Michaels, 2006). More importantly even, the existence of a rule in a country’s legal system does not tell us much about the way this rule is used and ‘appropriated’ by the legal community in a country or by other actors potentially affected by the rule. The existence of legal doctrine, legal precedent, administrative practice and more broadly legal ideas that mould and flesh out statutory rules remains unaccounted for in the LOT. The importance of these ideational strata of a legal system is however hard to overestimate and has been convincingly brought forward among others in studies on comparative law, comparative jurisprudence and system theory (Sacco, 1991; Ewald, 1995; Teubner, 1998).25 3.

Legal Origins v The Transplant Effect

A fundamental and particularly effective critique of the LOT has been dealt by a group of lawyers and economists, who while partly using the same data as in the early study of La Porta et al on legal finance (1997, 1998) offer alternative, and on many points more convincing, interpretations of the results (Berkowitz, Pistor and Richard, 2003). Instead of tracing the efficiency impact of legal rules along the lines of the established legal families Berkowitz et al proceed to test the effects of the way in which the transplant operation has been carried out. They reorder the countries which are covered by the La Porta study into origins and transplants, depending on whether the domestic legal order developed internally or through external influence. Following this criterion Berkowitz et al identify eight origin countries (Germany, France, Austria, Switzerland, Denmark, Sweden, Norway, Finland, United Kingdom, US). The rest of the countries are in the category of transplants, where the legal order has developed to a considerable extent under exogenous influences. The transplants are in turn divided into receptive and non-receptive, depending on processes of change and adaptation of transplanted law statutes, the degree of voluntary choice, the familiarity with the country from which law is taken, migration processes, etc. The important question thus is not ‘from where law has been borrowed’ but rather ‘in what way law has been developed and borrowed’. The main claim of Berkowitz et al is that ‘[t]he way in which a country received its formal law is a much more important determinant of the current effectiveness of its institutions than the particular legal family it adopted’ (Berkowitz, Pistor and Richard 2003: 167).26

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The results lend strong support to the initial assumption that countries where law has developed internally as a response to local conditions or where the population has been familiar with the main legal principles of the transplanted law (due to emigration flows and long term colonisation with massive presence by the colonisers) show higher levels of legality. As underlined by Berkowitz et al, it is ownership of reform which is important. This theory receives further support in middle-range comparative studies by Pistor where the rate of change in corporate statutes is traced. These studies suggest that adaptability, i.e. the possibility of engaging local actors in using the legal rules and the institutional framework, is crucial for the effectiveness of reform (Pistor et al, 2003a; 2003b). This point has been further theorised by Pistor in follow-up work on the incompleteness of law (Pistor and Xu, 2003). The transplant effect theory builds on an understanding of law as a cognitive institution. On a normative note the studies of Pistor et al submit that ‘for the law to be effective, it must be meaningful in the context in which it is applied so that citizens have an incentive to use the law and demand institutions that work to enforce and develop the law. Judges, lawyers, politicians must be able to increase the quality of law in a way that is responsive to demands for legality’ (Berkowitz, Pistor and Richard, 2003: 167).

V. AN ALTERNATIVE COMPARATIVE INSTITUTIONAL APPROACH Given the criticism of the methodology, the approach and results of the NCE, can we conclude that institutional theory cannot make a valuable contribution to comparative law and that interdisciplinary endeavours should be abandoned? I believe such conclusions would be hasty and unfortunate. Quite to the contrary, institutional theory, I submit, can serve as a common platform for economic, political and legal inquiries into the comparative features and advantages of legal systems. The potential of institutional theory is already visible in some of the in-depth comparative analyses of the NCE mentioned above, as well as in the further research on the evolution of law and the transplant effect by Berkowitz, Pistor and Richard (2003) and Pistor (Pistor et al, 2003a, 2003b and Pistor and Xu, 2003), which through sensitive merging of disciplines has produced robust and credible results. In the following, I suggest that there is yet another fruitful way of combining insights from recent institutional scholarship to advance the comparative analysis of law and legal institutions. The proposed framework builds on a participation-centred comparative institutional approach as elaborated by public policy scholar Neil Komesar (1994) combined with insights from historical institutionalism (North, 1990; 1991, 1993).

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Participation-centred Institutional Approach

Similar to Djankov et al in their article on the NCE (2003), Komesar proceeds from classical Coasean transaction cost analysis (1960). The market and the political process, but also the courts, and occasionally the administrative process, are conceived as aggregate decision-making processes and as institutional alternatives for addressing different law and public policy issues. Komesar argues convincingly for a full-fledged comparative system analysis that implies careful evaluation of each alternative. He criticises mainstream law and economic analysis as being locked in what he calls ‘a single institutional analysis’, focused either on the advantages of markets and private ordering or on the failures of government regulation. What is missing is the true comparison. Also, in this respect this analysis has certain commonality with the appeals for broader reading of the Coasean theorem by the NCE (Glaeser et al, 2001). The major difference is, however, that Komesar identifies the participation of affected actors in the respective decision-making process as the main factor for comparative evaluation (the ‘participation-centred’ approach). The use of the broad concept of ‘participation’ serves to facilitate the extension of the Coasean transaction cost approach from markets to politics, to public administration and adjudication. It allows integrating important insights from public choice theory into the analysis and brings the logic of economic theory closer to public policy and law. The focus is on the mass of participants, i.e. consumers and producers for the market process, voters and lobbyists for the political process and litigants for the judicial process (Komesar, 1994: 7). Studying the opportunities for participation (and representation) implies on the one hand analysis of the interests involved in a particular public policy issue and, on the other hand, analysis of the characteristics of the alternative decision-making processes that enhance or reduce participation. Participation opportunities are weighed through assessing the costs incurred and the benefits expected from participation of the actors in the respective decision-making process. For the market these are transaction costs and benefits, while for the courts they are litigation costs and benefits. In terms of the political process, such opportunities depend on the costs and benefits of political participation. Benefits and costs of participation thus become the main units of analysis. They account for the relative efficiency of the alternative decision-making processes with regard to a specific law and public policy issue. Probing into the costs of participation reveals a major difference between issues that concern a small number of stake holders with even distribution of the stakes and issues concerning high number of affected interest-holders with low and dispersed stakes. It is ‘big numbers’ and skewed stake distribution that typically complicate decision making and require hard institutional choices (Komesar, 1994).

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The participation-centred approach is developed chiefly for the purposes of informing institutional choice in law and public policy within a single jurisdiction. However, it provides a valuable analytical grid for the cross-country comparative study of institutions (Mattei, 1998; Bakardjieva Engelbrekt, 2003). First, Komesar stresses the importance of the question ‘who decides?’ and of allocating decision making competences between the market, the political (legislative) process, courts and administrative agencies. Obviously countries may, and do differ in allocating decision-making competences to these institutional processes in certain areas of law and policy. The question of institutional choice can therefore be identified as one of the fundamental questions in comparative economic law. Second, the emphasis on participation as the main factor for evaluation of the efficiency of decision-making processes and of institutional choice has several implications for a cross-country comparison. Incentives for participation will obviously differ in different areas of law and public policy. Therefore a generalised country-based comparison of institutional choice appears to be of limited validity. Next, in a cross-country setting actors may differ, depending on a variety of historical, technological and other circumstances. Such differences would seem important for defining the structural modalities of institutional choice. Third, the institutional design of non-market decision-making processes like the political process, the courts or administrative agencies emerges as an important determinant of participation costs and benefits. Whereas in his analysis, Komesar mainly scrutinises the characteristics of the political process and the courts from a single country (i.e. US) perspective, clearly in a comparative cross-country study the emphasis will be on identifying differences in the design of political processes, judiciaries and administrative agencies that facilitate or impede participation. Rules on access to courts and administrative agencies, rules on litigation costs and procedure will be among the most important components of the comparative investigation (Bakardjieva Engelbrekt, 2003). The participation-centred approach is in many respects congruent with the transplant effect line of theorising advanced by Berkowitz et al (2003) and with the theory on incomplete law (Pistor and Xu, 2003). It gives additional support to the claim that efficiency comes with active adaptation of law and its responsiveness to local demands. At the same time, the participationcentred approach identifies instances when ensuring participation and efficient decision-making is particularly difficult and when the question of allocating decision-making competences becomes crucial. This is often the case of public goods, where dispersed, small stake interests risk remaining underrepresented in all institutions. It is also typically problems of public goods that are solved differentially across jurisdictions, allocating decisionmaking to courts, markets or administrative agencies.

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Historical Institutionalism

Still, the participation-centred approach does not fully explain the processes of legal change and legal persistence. Therefore, it is suggested that comparative institutional analysis should be complemented by a historical institutional perspective. Historical institutionalism highlights the role of institutions as humanly devised constraints, whose main function is to reduce uncertainty by providing a structure to everyday life (North, 1991). Institutions thus include formal legal rules, but also informal constraints (such as ideologies and customs) and the enforcement characteristics of both (North, 1993: 36). Unlike other institutional economists who treat organisations as institutions, North insists on distinguishing between the two in order to enable stringent analysis of their interaction. The distinction is crucial, since in this way the analytical approach is capable of capturing not only processes of institutional stability and inertia but also processes of change at incremental or more dynamic pace. Organisations are conceived as ‘groups of individuals engaged in purposive activity’. They are designed by their creators to maximise wealth, income, or other objectives defined by the opportunities afforded by the institutional structure of society (North, 1993: 36). This broad definition covers the classical market organisation, the firm, but likewise the guild, the political party, the Congress or the executive agency. The core of the theory of institutional change advanced by North could be summarised as aiming to explain ‘how the past influences the present and the future, the way incremental institutional change affects the choice set at a moment of time, and the nature of path dependence’ (North, 1990: 3). One of the main puzzles that drives North’s analysis is the dramatic divergence in economic performance and development between different countries in the world (North, 1990: 6). Contrary to the evolutionary theory of economic development elaborated by Alchian, predicting convergence towards efficient institutions (Alchian, 1950),27 North demonstrates empirically that inefficient institutions prosper and divergence 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. Institutional paths may be followed not because they are efficient but because their change is costly. Moreover, institutions tend to produce incentives for the creation of organisations, which then depend on the institutional framework and contribute to the latter’s stability (institutional symbiosis). Historical institutionalism has several important implications for comparative legal analysis. By taking a broad definition of institution, it highlights the importance of comparing not only formal rules, but also informal constraints. According to North, among these are codes of conduct, norms of behaviour, conventions, beliefs and ideologies (North, 1993: 36). Given the decisive role

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that lawyers play on all levels, from designing formal rules to their enforcement, the wider intellectual reference frame of those actors is to be taken into consideration. Therefore, comparative analysis shall place formal rules against the backdrop of existing legal ideas and schools of thought. Historical institutionalism thus resonates well with Ewald’s appeal to comparative lawyers to redirect their attention from the comparative study of black letter rules to the comparative study of legal ideas and jurisprudence (Ewald, 1994–1995). Obviously, the LOT is in many respects related to historical institutionalism. Legal families, the way they are conceptualised by the LOT, can be ultimately seen as a complex of formal and informal institutions as well as enforcement bodies which, once introduced in a society, are costly to change. They follow with a myriad of actors and organisations, not least legal professionals, who benefit from and contribute to the system’s perpetuation. However, historical institutionalism also stresses the role of local actors, lockins and resistance to change. It therefore requires a careful study of institutions, related actors and institutional evolution. Methodologically it invites in-depth ‘process tracing’ and an evolutionary approach (Thatcher, 2007; 2008) rather than large-scale statistical approaches. 3.

Merging the Two Approaches

The most important intersection between historical institutionalism and the participation-centred institutional approach appears to lie in their understanding of efficiency. Both approaches advocate an unorthodox view on efficiency. North in particular elaborates at length on the concept of adaptive efficiency of institutions, according to which efficiency is equalled with generating the highest possible number of trials for addressing societal problems. According to North, adaptive efficiency ‘provides incentives to encourage the development of decentralised decision-making processes that will allow societies to maximise the efforts required to explore alternative ways of solving problems’ (North, 1993: 36). This concept can be seen as coming close to the participation-centred approach advanced by Komesar. Efficient representation of all interests concerned in the decision-making processes and at all levels, both in market, rulemaking and enforcement, is arguably intimately related, if not synonymous, with ability to generate a high number of trials. Efficient opportunities for representation will by definition imply high interest awareness and will supposedly bring about challenge of the institutional framework with any perceived inefficiency. Like the analysis of Komesar, North’s conceptualisation also finds a productive conjunction between economics, politics and law by demonstrating the immediate economic importance of democratic government and institutions. If we try to translate this normative component into legal terms, then the question may be: how do we shape legal rules and enforcement mechanisms

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which can better account for all interests involved and avoid unproductive lockins? Cast in these terms, the concept of ‘adaptive efficiency’ becomes much more appealing for legal analysis. Success in economic history is associated with legal and political institutions including rules on enforcement that have rendered the institutional framework more responsive to changing preferences and costs, assuring more adequate interest representation and making room for new interests and actors as they emerge. Broad representation through democratic procedures thus receives a concrete economic meaning, as it contributes to improved economic performance through better capturing and reflecting the preferences of involved interests. The concept of ‘deliberation’ familiar from legal and political science is close to mind (Bakardjieva Engelbrekt, 2003).

VI.

APPLICATIONS

The combined institutional approach sketched out above has, it is submitted, a number of useful applications in comparative legal analysis. It provides a toolbox for comparative studies of institutional choice and design between individual national legal systems. It offers likewise a way of improving our understanding of the interaction between legal systems in the form of legal transplants, legal emulation and supranational legal and economic co-operation. 1.

The Institutional Approach and Theories of Legal Change

As outlined above, both the LOT and the Transplant Effect Theory offer alternative conceptualisations of legal transplants and legal change. Whereas the LOT highlights the pervasiveness of transplantation of formal rules and enforcement patterns, the Transplant Effect Theory directs the attention to the gap between law on the books and law in action in recipient countries and demonstrates the importance of the process of transplantation and of local ownership of reform. Also, in comparative legal theory there has been a lively debate on the relevance of societal context for legal change. Also, known comparatists such as Otto Kahn-Freund have proposed a context-sensitive approach to the study of legal reform differentiating between separate fields of law (Kahn Freund, 1974). Having conducted research on legal regulation characteristic of the modern welfare state, Kahn-Freund underlined the importance of taking account of the social-political context (constitutional and political order) in areas where pressure groups and political interests exert powerful influence. Conversely, legal historian Alan Watson, taking a long-term perspective, has tried to demonstrate the autonomy of legal rules and institutions and the possibility of ‘transplanting’ law irrespective of divergent socialpolitical contexts (Watson, 1974).

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The different conclusions of the two authors are apparently dependent on the legal areas that form the subject of the bulk of their own work. While Kahn-Freund (despite his broad competence) has been most prolific in the area of industrial relations, which is also at the centre of his 1974 article, Watson is an expert in Roman law and has mainly dealt with tracing the Roman law origin of many doctrines in contemporary European civil law. In his argumentation Kahn-Freund is clearly aware of the importance of the specifics of each legal area, and speaks of a continuum of legal rules and areas from ‘organic matter’ where the concept ‘transplant’ is appropriate, to ‘mechanical matter’ where one can speak of a simple replacement (e.g. of a carburettor) (Kahn Freund, 1974). Given this differential starting point and focus, the two claims are not mutually exclusive and possibly even harmonious when seen from an institutional perspective. Both authors agree on the importance of law as an institution. In the area of core private law, where the main interests of Watson lie, one might from an institutional perspective argue that law performs the chief function of assignment of property rights in a world of individual exchange with typically negligible transaction costs. Following Coase (1960), the initial allocation of property rights would not affect the ultimate use of the property since efficient outcomes would be eventually achieved through voluntary bargaining between the actors involved. In other words, what is important is not the rule itself, but rather the very existence of a rule and the certainty it creates, which helps actors to arrive at mutually advantageous solutions. This may explain the lack of resistance (apart from, nowadays, resistance from legal professional circles) to transfer of legal rules. In contrast, industrial relations, as much of economic regulation produced in the modern welfare state, has aimed at coping with problems of collective action, externalities and market failures. In this case the political and legal systems have been challenged to step in as alternative institutions to the market. However, the same transaction cost problem has plagued these alternative processes (Komesar, 1994). The solution has then been dependent on the political system and its particular constitutional design, on the availability of interest groups, the possibility for collective interest representation in the political and judicial processes. Institutional economic analysis thus hints at some answers to the puzzle of varying rules and their ‘transplantability’. The more rules are connected to public goods and complex processes, involving a high number of actors, low transparency, high transaction costs and requiring a high degree of human cooperation, the more difficult is the transfer of legal and institutional solutions. Even if formal rules may be borrowed in these situations, their integration in the institutional environment may produce very different results. Seen through the prism of the two distinct institutional perspectives

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outlined above it appears that Kahn-Freund emphasises interests and institutional structures and is thus close to the participation approach advanced by Komesar. Watson emphasises continuity, the decisive influence of the legal profession, the self-referentiality of law (Teubner, 1998), as well as the detachedness of law from its immediate political context and interest struggles. It therefore seems fair to say that Watson’s understanding of legal change has affinities with historical institutionalism. One should also add that in fact Alan Watson, in his 1978 article ‘Comparative Law and Legal Change’, takes a more sophisticated position on the question of legal change, very much in line with the institutional approach presented here. He identifies the factors promoting and impeding legal change by addressing ‘pressure forces’, ‘opposition forces’, ‘the role of lawyers’ and importantly ‘inertia’ (Watson, 1978). 2.

The Institutional Approach and the Study of European Integration

Finally, the institutional approach presented above allows for a more productive conceptualisation of the complex relationship between national law and supranational and international law and institutions. Historical institutionalism alone, as well as NCE, have been rightly criticised of determinism and overemphasising continuity and incremental change, leaving phenomena such as radical change and the influence of international processes and organisations unaccounted for (Thatcher, 2008; La Porta, 2008). By contrast, combining a participation-centred approach with a historical institutional perspective promises to give insights in the dual forces of continuity and change associated with Europeanisation and globalisation and their influence on national institutional frameworks. If one looks in particular at European integration, one manifest feature of the European Community project from an institutional perspective is that it offers new arenas for decision-making. The national market flows over into a Common Market. National political and legislative processes are connected by way of a dense net of visible and invisible rules to the political process at the Community level. The European judiciary enters as a new decision-making institution, concurring with national courts and acting often as an arbiter and distributor of decision-making competencies between Community and Member States as well as between the different Community institutions. For national economic and political actors European integration inevitably changes the established balance of participation, powerfully influencing previously insulated procedures of law-making and rule-implementation. Obviously the costs and benefits of participation at the European decisionmaking level may vary from those in respective national arrangements.

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Variations can certainly also be observed depending on interest structure in individual sectors. Changes in the domain of institutional choice have to be explored in more detail when looking at how particular European measures have been implemented at the national level and how national stakeholders adapt to the changes in the opportunity set (Bakardjieva Engelbrekt, 2003). From a historical institutional perspective the focus in studying European integration should be on the different ways in which Europeanisation fits into or challenges long-standing institutional constraints such as ideologies of legal regulation or well-engrained habits in case-law and administrative implementation. Is implementation of European measures disrupting efficient institutional equilibria, causing disarray among the actors involved and decreasing coherence and predictability? Or does it expose inefficient lock-ins and, thus, enhance the adaptiveness of the institutional framework?28 To what extent does Europeanisation open the way for new variations and possibilities of learning and influencing the framework? And when are we to expect the one or the other eventuality? The whole European project is by definition about institutional change, pursuing openly the effectuation of change in formal legal rules (harmonisation), informal constraints (attitudes in market actors, consumers and European citizens) and enforcement (new mechanisms of enforcement before European and national bodies). A central theme in the Europeanisation debate has predictably been that of convergence or divergence of national legal systems, cultures or regulative approaches in more specific areas. By tracing on the one hand the changed opportunities for participation of affected interests, and on the other, the constraining effects of deeply embedded institutional habits, the institutional approach presented above is able to shed some new light onto this debate. Methodologically, the analysis of Europeanisation seems to require a cross-country comparative research design. If confined to a single legal system, the institutional analysis may give results highly specific to this jurisdiction and not yield to generalisation. At any rate, a comparative approach is better suited to generate findings of broader validity. It also brings the research design closer to the dynamic reality of European integration where Community legal rules and principles are forged against a background of divergent national legal and institutional approaches and then transmitted back for implementation and enforcement in the same national environment. Only a comparative analysis of legal change under European influence allows us to test contradictory claims of convergence and divergence of legal systems, of harmonisation or of disintegrative influences of European law on national law.

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VII.

EXAMPLES

Due to limitations of space, it is impossible here to give a full fledged account of specific applications of the approach suggested above. Therefore, I would only sketch two areas of law and regulation where the approach has, I believe, yielded interesting results. For more extensive accounts of such applications the reader is referred to my earlier publications (Bakardjieva Engelbrekt, 2003; 2007). 1.

Europeanisation of Consumer Law and Policy in the European Union

The first area is that of harmonisation of consumer law in the European Union. The history of such harmonisation starts in the 1970s and has during the first decades of Europenisation been chiefly concerned with approximation of substantive rules and standards. A variety of Community directives was adopted during this period, gradually expanding to cover the whole field, from marketing practices, to product safety, product liability and consumer contracts. The process of harmonisation showed, however, a general neglect of interests, actors and enforcement issues. As is well known, consumer law and policy face the hard dilemma of defining and ensuring adequate protection of broad and dispersed collective interests of consumers. The crucial questions following a participation-centred institutional approach, are thus who defines and represents these interests, who enforces the relevant rules and at what cost. Differences in institutional choice and enforcement design across jurisdictions can be expected to result in different incentives for participation in decision making, in divergent actor involvement and ultimately different impact of similar substantive rules. At the same time a historical institutional perspective highlights the conservative force of existing institutions and the institutional symbiosis between institutional framework and its organisational ‘clients’. A more focused and extensive comparative study of the evolution of German and Swedish regulation of marketing practices law seems to confirm the above hypothesis (Bakardjieva Engelbrekt, 2003). In Germany this area of regulation is conceptualised as unfair competition law. It has its roots in a communitarian neo-corporatist model dating back to the first Act Against Unfair Competition (UWG) of 1909. The statute reflected in its original version the strong position in the political process of the German Mittelstand during the early 1900. The emphasis was on the interest of competitors and on private law enforcement through voluntary business organisations. In Sweden, despite early proclaimed legislative intention to follow the German model, developments took a different turn. The regulatory approach in this country had its take-off in the consumerist spirit of the 1960s. Consumer protection

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policy emerged as a new policy domain, which was rapidly occupied by powerful trade unions and the dominant social democratic party who actively engaged in the legislative process purporting to represent the broad consumer majority. As a consequence, the resulting Marketing Practices Act of 1970 was conceptualised as a consumer protection statute. Institutional choice was exercised in favour of public representation of consumer interests through a Consumer Ombudsman and a centralised Public Consumer Protection Agency. These differently exercised institutional choices have found expression in different institutional design of courts, self regulation and public intervention with different modalities for actor participation. Ultimately, they have produced different beneficiaries from the institutional framework and different impact on markets. In view of these very divergent starting positions of the two countries, the question of the impact of the process of harmonisation of European consumer law becomes particularly pertinent. Has European integration brought national institutional frameworks closer to each other, has it enhanced the existing divergences or has it simply left those differences unaffected? One straightforward observation from the institutional responses in the area of fair trading in Germany and Sweden is that the effects of integration have been very dissimilar in the two countries. One and the same Community act has produced strikingly different repercussions in the institutional landscapes of the respective legal systems. Generally, both systems have remained within their own macroinstitutional constraints in terms of the divide between private and public and the importance of private law and private autonomy in the overall legal system. However, a careful scrutiny of the multifaceted impact of European integration demonstrates that it may have broken the spell of old lock-in effects and increased the plurality of decision-making instances and the number of ‘trials’. For German law the consumer perspective is nowadays more readily recognised in legislation, case law and doctrine. In Sweden private autonomy has received a boost and individual traders enhanced access to the courts. There are, on the whole, strong indications that European integration questions fundamental ideological conceptions and could provide the impetus for incremental but profound changes in long-term institutional legacies as well.29 2.

Copyright Law and Policy in an Institutional Perspective

Another area of regulation that can arguably be productively analysed through the prism of the institutional approach outlined above is copyright law and policy at global and European level. Copyright law is an area of intellectual property law dealing with the protection of original expressions. During the

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past decades it expanded vastly in at least three different respects: regarding the subject matter covered, as to the scope of the exclusive rights, as well as concerning the term of protection, now extending to 70 years after the death of the author. In still a fourth direction, by way of interlinked international agreements (Bern Convention, Rome Convention, WIPO Copyright Treaties, TRIPS) and European directives, an international regime of copyright protection has emerged, that has been diffused to a wide range of countries worldwide, not always willingly accepted by political constituencies. Like consumer law, copyright law also reveals a complex constellation of actors and interests that are not equally structured across countries despite considerable harmonisation of substantive standards. Apart from the paradigmatic author, and the broad circle of users, a whole array of intermediaries in the process of production and consumption of intellectual works have emerged with their vested interests in the shaping and fine-tuning of the regulative regime. These include publishers, producers, libraries and broadcasting organisations, and importantly collective organisations for management of copyright and related rights. Consequently, to better understand the logic of Europeanisation and institutional change in this field, a rigorous analysis of actors, interests, stakes and modalities of participation at European and global level seems to be required. Novel digital and information technologies influence the dynamic of participation in decision-making processes at all levels and unsettle previously established institutional equilibriums. A good example is the Infosoc Directive, probably the most ambitious instrument in the field of copyright at the EU level which sought to adapt copyright to the challenges of the Information Society and to align national divergences. However, instead of smooth convergence, the Directive seems to have unleashed a dynamic process of unwieldy institutional adjustment in the Member States of the European Union. The recently published study commissioned by the European Commission on the state of national implementation of the Directive by the Member States, carried out by the Institute of Information Law in the Netherlands (IViR), demonstrates that a widely divergent set of institutional arrangements has sprung out of the implementation process (Bakardjieva Engelbrekt, 2007). These institutions can be placed at different junctures on the scale between private and public and seem to be influenced by national historical legacies and patterns of actor participation. This dynamism can be interpreted as a search for appropriate decision-making institution to mitigate the consequences of an expansive legislative copyright policy as materialised in the Infosoc Directive and to re-establish a balance of rights and obligations. The comparative institutional approach outlined above suggests that the institutional design of these schemes and the modalities for actor participation will be crucial for their sustainable success and therefore deserve careful scrutiny.

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At the same time, the conservative force of institutional legacies should be carefully weighed as a factor deterring institutional innovation. The importance of enforcement and interest representation in judicial and administrative processes appears to be gaining growing recognition within the process of European harmonisation. There is a notable shift towards enforcement in European harmonisation initiatives in all areas of regulation, and consumer and copyright law and policy are good examples of this tendency. In the consumer policy domain a 1998 Injunctions Directive 1998/29/EC addressed the role of consumer organisations in enforcement of harmonised consumer law, whereas a 2004 Consumer Protection Cooperation Regulation (No. 2006/2004) requires Member States to empower centralised public consumer bodies stressing the advantages of public enforcement. The Commission is presently in a process of consultation concerning possibilities and necessity for collective consumer enforcement at the European level. A European small claims regulation is already in place, not only confined to consumer issues. Recent initiatives in the domain of copyright policy, and of intellectual property more generally, also demonstrate an increased interest in procedural and institutional issues. Notably, the Enforcement Directive 2004/48/EC attempts to alleviate national differences in respect to measures, procedures and remedies for enforcement of IP rights. Probably not surprisingly it has become a matter of controversy, whereby the process of national implementation is accompanied by heated public debate and corresponding transposition delays. Overall, and not necessarily as a result of intended efforts, a common direction of European influences appears to be towards involving a broader spectrum of actors who have developed their own expectations and subjective models under different institutional frameworks. In this sense we can say that Europeanisation processes unsettle the previously existing equilibrium and bring institutional frameworks closer to the state of adaptive efficiency (North, 1990).

VIII.

CONCLUDING REFLECTIONS

Is the comparative institutional approach suggested above to be considered as belonging to the realm of ‘comparative law’? Not if we accept a narrow and conservative notion of comparative law, including in this category only the traditional comparisons between black letter laws stemming from municipal legal systems of sovereign states. Indeed, such a conservative notion of comparative law has rightly been criticised as parochial and plagued by methodological nationalism (Twining, 2007; Joerges, 2004) and it is not surprising that it prompts somewhat provocative claims about the death of

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comparative law (Siems, 2007). By contrast, if understood in line with the broad institutional approach advocated above, comparative law is more relevant and needed than ever.30 Modern theories of global and multi-level governance do not prognosticate the disappearance of the nation state. Legal orders based on the nation state will thus continue to exist parallel to the emerging strata of supranational and transnational governance. There is consequently a growing need to reconcile divergent national legal traditions and cultures with the supranational level at which the economy operates (Buxbaum 1996). This in my view strengthens rather than weakens the urge to better understand the historical, cultural and institutional foundations of different legal approaches to the economy. The institutional approach advanced in this chapter builds in many respects on sources and theories similar to those of the NCE. Yet, the approach also differs on some crucial points. Theoretically, it purports to offer an explanation and conceptualisation of processes of both legal continuity and legal change in a comparative cross-country setting. It seeks to account for and improve our understanding of the interaction between national and supranational legal systems in a multi-level system of governance. Methodologically, the approach calls for careful historical ‘process tracing’ and penetration in the legal ideas that surround and support legal rules. Large scale statistical analyses are avoided and preference is given to focused in-depth comparative studies of qualitative character. What is advocated is humility and patience in trying to disentangle the intricate interaction between law and the economy, thus eschewing strong normative advice. 1.

Resisting the Political Attractiveness of Statistical Approaches

To be sure, a call for in-depth study of the participation modalities and the historical determinants of institutional choice and design in comparative analysis of economic law and policy is hardly prone to attract enthusiasm and attention on the part of influential international think-tanks and organisations in the same way as did the LOT.31 With its large-scale research design and the impressive volume of data generated and processed, the latter approach promises scientific cost-efficiency. A single theory is expected to give universal explanation to a broad spectrum of social facts and to fit the puzzling disorder of institutional diversity into a neat and comprehensible pattern. Likewise numerical and mathematical approaches lure with the promise of yielding results with the compelling certainty of natural sciences and with clear-cut normative advice. The temptation is understandable. It is, however, submitted that the grand design and the simplicity of the theory, as much as they constitute its great attraction, also represent its main weakness. Reduction of complexity is an important task of scientific research. However, this task

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should not be pursued at the cost of data contamination (Siems, 2005a). Attractive as the promise of mathematical precision may be, it should be treated with sound scholarly scepticism. One should recall Hayek’s warning directed at his fellow-economists against ‘scientistic’ attitudes and against their ‘propensity to imitate as closely as possible the procedures of the brilliantly successful physical sciences’ (Hayek, 1989[1974]: 1). In his Nobel Memorial Lecture Hayek insisted on the inherent limitation of economics as a social science, i.e. a science studying organised complexity, and appealed that man should ‘use what knowledge he can achieve, not to shape the results as the craftsman shapes his handiwork, but rather to cultivate a growth by providing the appropriate environment, in the manner in which the gardener does this for his plant’ (Hayek, 1989 [1974]: 7). 2.

Breaking the Insulation of Disciplines

I have argued above for an increased use of interdisciplinarity in comparative law. The question of course is what kind of interdisciplinarity. It is suggested that interdisciplinarity can be defined in a weak and in a strong sense. In a weak sense interdisciplinarity is confined to getting inspiration from a different scholarly discipline, while retaining the base and focus of research within the original discipline, and importantly directing the research results to one’s own research community. In a strong sense, interdisciplinary implies taking the other discipline seriously, by trying to truly penetrate its objectives, thinking and methodologies. It builds not on colonising and appropriating but on respect, sensitive learning, intense communication and exchange of research results. Whereas ‘weak’ interdisciplinarity is relatively common, strong interdisciplinarity is rather the exception because it is exceedingly demanding. Still I believe that it is interdisciplinarity in the strong sense that we need to see more of in future comparative research of the interrelations between law and economy. Otherwise misconceptions and watertight compartments risk persisting despite efforts toward cross-fertilisation. It is noteworthy that despite the heavy reliance on comparative legal literature, the scholars from the NCE only to a limited extent engage in scholarly exchange with comparative lawyers. Obviously the academic journals that economists consult are predominantly the established peer-review journals of their own discipline and occasionally some journals on law and economics.32 The same applies for comparative lawyers insulated in their internal scholarly discourse. It is therefore hardly surprising that it took time before the LOT and the NCE found their way to lawyers and still more time before the powerful reaction to the main claims of the NCE of comparative lawyers (Deakin, 2008; Siems, 2003, 2007; Brandle, 2006) reached back to the economists (La Porta et al 2008).33

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This notwithstanding, it shall be conceded that, whatever the substantive merits and demerits of the NCE discussed above, the school has contributed to opening a cross-disciplinary debate and making an important step in overcoming the insulation of social disciplines and of comparative law. Ultimately it has had the unintended but very welcome effect of ‘prodding comparative lawyers to think more about public policy problems, and to think more like social scientists’ (Whitman, 2008).

NOTES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12. 13. 14.

15. 16. 17.

18. 19.

See Ajani’s contribution to this volume. By economic law I mean legal rules and institutions that frame the economy. Recently the term regulatory private law has also been employed (Cafaggi and Muir Watt, 2008). Simeon Djankov is an economist from the World Bank’s influential research department. ‘Law and the quality of its enforcement are potentially important determinants of what rights security holders have and how well these rights are protected’ (La Porta et al, 1998: 1115). ‘Our starting point is the recognition that laws in different countries are typically not written from scratch, but rather transplanted – voluntarily or otherwise – from a few legal families or traditions (Watson 1974).’ (La Porta et al, 1996). See in particular the concerted response by Association Henri Capitant (2006). For a graphical representation of the theory see Djankov et al (2003b). See for instance Posner’s classical treatise on the subject (1992). According to Dahlman this is ‘an approach that compares the economic consequences of alternative ways of organising the allocation of resources’ (Dahlman, 1979: 161). The fact that colonial transplantation is such a significant determinant of institutional design suggests that the observed institutional choices may be inefficient. A legal and regulatory system that is perfectly suitable to France may yield inefficiently high levels of regulation and state ownership when transplanted to countries with lower civic capital. Likewise, a system of independent courts that works in Australia or the US may fail in Malaysia or Zimbabwe (Djankov et al, 2003b: 610). In a similar sense, see Berkowitz, Pistor and Richard (2003: 167). For a theoretical explanation see Teubner (1998). In a similar sense see Ahlering and Deakin (2005: 18). Ironically Whitman observes that ‘Shleifer and his coauthors, after reading the comparative law literature, drew the conclusion that the distinction between common law and civil law was something like the distinction between reptiles and mammals – a classificatory distinction of such fundamental importance that it would dictate the behaviour of legal systems in almost every respect and every environment.’ Contrary to such holistic approach he argues rightly that the classification should simply be regarded as ‘useful for some purposes, but not others’ (Whitman, 2008: 353). See in a similar sense Pistor et al (2003a). This is admitted by La Porta et al in their 2008 restatement of the LOT and identified as one aspect where the theory deserves further elaboration. ‘They [La Porta et al, 2004, ‘Judicial Checks and Balances’] find that constitutional guarantees of judicial independence are correlated with both common law legal origin and the security of property rights. The transplantation of common law might thus influence the location of the IPF and not just the regulatory stance’ (Djankov et al, 2003b: 612). For a similar critique of neglect of public law see Ewald (1994–95), 1987. Ewald points in particular at the fallacy of treating ‘the Civil Law’ as a unitary system and refers to the deep divides in the area of public law, for instance judicial review. I was personally asked by a colleague, trying to apply the La Porta methodology, to provide

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21. 22. 23.

24. 25. 26.

27. 28. 29. 30. 31.

32. 33.

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evidence supporting the belonging of the Bulgarian legal system to the French legal family. This was needed to counter objections of a critical reviewer that the country belonged to the German tradition. The truth is that Bulgaria, as many other relatively young nation states on the European continent, has an extremely mixed legal tradition with elements of both German and French influences, not seldomly refracted through Swiss, Austrian, Italian and other modifications of the origins. See also Siems (2007a). ‘The coding is similar to the general commercial legal origin reported in La Porta et al. (1997, 1998), with some exceptions. For example, the commercial and company laws in Iran, Saudi Arabia, and the United Arab Emirates are based on English laws, but their bankruptcy laws are of French tradition – via France, Egypt, and Kuwait, respectively. Although Japan and Korea are of German commercial legal origin, their bankruptcy codes are based on English law. Switzerland, Russia, and Bulgaria base their bankruptcy laws on the French tradition; their commercial laws are of German origin’ (Djankov et al, 2004:1120). ‘Indeed, statutes in common law countries are often highly imprecise, with an expectation that courts will spell out the rules as they begin to be applied’ (La Porta et al, 2008: 291). Cf. the famous phrase ’Mon code et perdu’ attributed to Napoleon allegedly at the news of the first commentary of the code civil (Bogdan 2003: 151). Particularly insightful is Ansgar Ohly’s analysis of the German and the common law evolution of the law of unfair competition. On the basis of a broad general clause the judiciary in Germany developed constantly expanding categories of situations which fell under the prohibition of unfair competition, whereas common law judges, exercising discipline and self-restraint, refused to create a tort of unfair competition and sustained the strict limits of the torts of passing off and injurious falsehood (Ohly, 1997). On the problems with the questionnaire method, see Schultz in this volume. The potential and weaknesses of the indexing method have been discussed extensively by Ahlering and Deakin (2005). See also the contribution by Acemoglu et al who seek the explanation of differential economic performance in different colonial countries in the different rates of mortality of Western settlers in the colonies and the resulting strategy of colonisation through physical presence or through exploitation of resources (Acemoglu et al, 2001). See also the discussion on convergence in Glaeser and Shleifer (2002:1222), which is however only limited to wealthy economies in the common law and the civil law tradition. For an application of historical institutionalism in the analysis of European influences over national public administrations, see Knill (2001). Needless to say, this is an oversimplified representation. For an extensive and detailed process-tracing of the institutional evolution in the two countries see Bakardjieva Engelbrekt (2003). Arguments in support for a similar dynamic approach to comparative law can be found in Gerber (1998). The political impact of the research by La Porta et al and in particular the influence this research has exerted on the development policy of the World Bank is noteworthy and has been widely observed (Deakin, 2008; Siems, 2005a; Siems, 2005b; Siems, 2007; Rosser and Rosser, 2008). Reference has been more readily made to the work of Berkowitz, Pistor and Richard (2003) which applies a comparable methodology and thus tries to seize the fortress from within. Another pretty obvious bias of the academic debate is its centredness on English language contributions. Possible critique of French-speaking and German-speaking peers is not taken into consideration. Yet, given the harsh judgement on these legal systems’ effect on efficiency, the reaction of local lawyers and economists should be of interest.

REFERENCES Acemoglu, Daron, Simon Johnson and James A. Robinson (2001), ‘The Colonial

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Origins of Comparative Development: An Empirical Investigation’ The American Economic Review, 91(5), 1369–1401. Ahlering, Beth and Simon Deakin (2008), ‘Labour Regulation, Corporate Governance and Legal Origin: A Case of Institutional Complementarity?’, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898184# (accessed 10 July 2009). Association Henri Capitant des Amis de La Culture Juridique Française (2006) Les droits de tradition civiliste en question – À propos des rapports Doing Business de la Banque Mondiale, available at: www.henricapitant.org/IMG/pdf/Les_droits_de_ tradition_civiliste_en_question.pdf (quoted as Association Henri Capitant 2006), (accessed 10 July 2009). Bakardjieva Engelbrekt, Antonina (2003), Fair Trading Law in Flux. National Legacies, Institutional Choice and the Process of Europenisation, Stockholm. Bakardjieva Engelbrekt, Antonina (2007) ‘Copyright from an Institutional Perspective: Actors, Interests, Stakes and the Logic of Participation’, Review of Economic Research on Copyright Issues, 4(2), 65–97. Beck, Ulrich (2000) What is globalization?, Cambridge: Polity Press. Berkowitz, Daniel, Katharina Pistor and Jean-Francois Richard (2003a), ‘The Transplant Effect’, The American Journal of Comparative Law, 51, 163–203. Berkowitz, Daniel, Katharina Pistor and Jean-Francois Richard (2003b) ‘Economic Development, Legality and the Transplant Effect (2003), European Economic Review, 47, 165–95. Boyko, Maxim, Andrei Shleifer and Robert Vishny (1997), Privatizing Russia, Cambridge Massachusetts: MIT. Brandle, Ugo (2006), ‘Shareholder Protection in the USA and Germany – On the Fallacy of LLSV’, German Law Journal, 7(3). Buxbaum, Richard (1996) ‘Die Rechtsvergleichung zwischen nationalem Staat und internationaler Wirtschaft’, RabelsZ, 60, 201. Cafaggi, Fabrizio and Horatia Muir Watt (2008) The Making of European Private Law, Cheltenham: Edward Elgar. Coase, Ronald (1960), ‘The Problem of Social Cost’, Journal of Law and Economics, 3, 1–44. Dahlman, Carl J. (1979), ‘The Problem of Externality’, Journal of Law and Economics, 22 (1), 141–62. Deakin, Simon (2008), ‘Legal Origin, Juridical Form and Industrialisation in Historical Perspective: The Case of the Employment Contract and the Joint-Stock Company’, Centre for Business Research, University of Cambridge, Working Paper No. 369, available at: www.cbr.cam.ac.uk/pdf/WP369.pdf (accessed 10 July 2009). Djankov, Simeon, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer (2003a), ‘Courts’, Quarterly Journal of Economics, 118(1), 453–517. Djankov, Simeon, Edward Glaeser, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer (2003b), ‘The New Comparative Economics’, Journal of Comparative Economics, 31, 595–619. Djankov, Simeon, Oliver Hart, Caralee McLeish, Andrei Shleifer (2008) ‘Debt Enforcement Around the World’, The Journal of Political Economy, 116 (6), 1105–49. Ewald, William (1994–95), ‘Comparative Jurisprudence: What Was it to Try a Rat?’, University of Pennsylvania Law Review, 143, 1889–2149. Ewald, William (1995), ‘Comparative Jurisprudence II: The Logic of Legal Transplants’, American Journal of Comparative Law, 43, 489–510.

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Gerber, David (2001) ‘Sculpting the Agenda of Comparative Law: Ernst Rabel and the Façade of Language’ in Annelie Riles, Rethinking the Masters of Comparative Law, Oxford, Hart Publishing, 190–208. Gerber, David (1998) ‘System Dynamics: Toward a Language of Comparative Law?’ American Journal of Comparative Law, 719–738. Glaeser, Edward and Andrei Shleifer (2003), ‘The Rise of the Regulatory State’, Journal of Economic Literature, 16, 401–425. Glaeser, Edward and Andrei Shleifer (2002) ‘Legal Origins’, The Quarterly Journal of Economics, 117 (4), 1193–1229. Glaeser, Edward, Simon Johnson and Andrei Shleifer (2001), ‘Coase versus the Coasians’, Quarterly Journal of Economics, 116 (2), 853–899. Hall, Peter A. and David W. Soskice (eds) (2001), Varieties of Capitalism: The Institutional Foundations of Comparative Advantage, Oxford: Oxford University Press. Hay, Jonathan, Shleifer, Andrei and Vishny, Robert (1996), ‘Toward a theory of legal reform’, European Economic Review, 40, 559–567. Hayek, Friedrich v. (1989) [1974], ‘The Pretence of Knowledge’, American Economic Review, 79(6), 3–7. Joerges, Christian (1997) ‘The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutional Perspective’, European Law Journal, 3, 378. Immergut, Ellen (1992) ‘The rules of the game: The logic of health policy-making in France, Switzerland and Sweden’ in: Sten Steinmo, Katheleen Thelen, and F. Longstreth, Structuring Politics: Historical Institutionalism in Comparative Analysis, Cambridge: Cambridge University Press, 57. Kahn-Freund, Otto (1974), ‘On Uses and Misuses of Comparative Law’, Modern Law Review, 37, 1–27. Kerber, Wolfgang and Klaus Heine (2002), ‘European Corporate Laws, Regulatory Competition and Path Dependence’, European Journal of Law and Economics, 13, 47–71. Knill, Christopher (2001), The Europeanisation of National Administrations, Cambridge: Cambridge University Press. La Porta, Rafael, Florencio Lopez-de-Silanes, Andrei Shleifer and Robert Vishny (1997), ‘Legal Determinants of External Finance’, Journal of Finance, 52 (3), 1131–50. La Porta, Rafael, Florencio Lopez-de-Silanes, Andrei Shleifer and Robert Vishny (1998), ‘Law and Finance’, Journal of Political Economy, 106(6), 1113–55. La Porta, Rafael, Florencio Lopez-de-Silanes, Andrei Shleifer and Robert Vishny (1999) ‘The Quality of Government’, Journal of Law, Economics and Organisation, 15 (1), 222–79. La Porta, Rafael, Florencio Lopez-de-Silanes, Cristian Pop-Eleches, and Andrei Shleifer (2004) ‘Judicial Checks and Balances’ Journal of Political Economy, 112 (2), 445–470. La Porta, Rafael, Florencio Lopez-de-Silanes and Andrei Shleifer, (2008) ‘The Economic Consequences of Legal Origins’, Journal of Economic Literature, 46(2), 285–332. Mattei, Ugo (1998) Comparative Law and Economics, Ann Arbour, University of Michigan Press. Michaels, Ralf (2006), ‘The Functional Method of Comparative Law’, in Reimann, M.

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and R. Zimmermann (eds) (2006) The Oxford Handbook of Comparative Law, Oxford: OUP. North, Douglas (1991), ‘Institutions’, Journal of Economic Perspectives, 5, 97. North, Douglas (1993), ‘Institutional Change: A Framework of Analysis’ in Sven-Erik Sjöstrand (ed.), Institutional Change. Theory and Empirical Findings, Armonk, New York: M. E. Sharpe, 35–54. North, Douglas (1994), ‘Economic Performance through Time’, The American Economic Review, 359. Ogus, Anthony (2007), ‘The Economic Approach: Competition Between Legal Systems’, in Ersin Örücü and David Nelken, Comparative Law. A Handbook, Oxford: Hart Publishing, 155–167. Ohly, Anzgar (1997), Richterrecht und Generalklausel im Recht des unlauteren Wettbewerbs, Köln: Carl Heymanns. Örücü, Esin (2007) ‘A General View of ‘Legal Families’ and of ‘Mixing Systems’’ in: Ersin Örücü and David Nelken, Comparative Law. A Handbook, Oxford: Hart Publishing, 169–187. Pistor, Katharina, Yoram Keinan, Jan Kleinheisterkamp and Mark D. West (2003a) ‘The Evolution of Corporate Law: A Cross-Country Comparison’, University of Pennsylvania Journal of International Economic Law, 23(4), 791–871. Pistor, Katharina, Yoram Keinan, Jan Kleinheisterkamp and Mark D. West (2003b), ‘Innovation in corporate law’ Journal of Comparative Economics, 31, 676–694. Pistor, Katharina and Chenggang Xu (2003), ‘Incomplete Law’, International Law and Politics, 35, 931–1013. Reitz, John (1998) ‘How to Do Comparative Law’, American Journal of Comparative Law, 617–636. Rosser Jr, J. Barkley and Marina Rosser (2006), ‘A Critique of the New Comparative Economics’, The Review of Austrian Economics, 21(1), 81–97. Sacco, Rodolfo (1996), ‘Legal Formants. A Dynamic Approach to Comparative Law’, American Journal of Comparative Law, 39, 1–34 (Installment I); 343–401 (Installment II). Shleifer, Andrei and Daniel Treisman (2000), Without a Map. Political Tactics and Economic Reform in Russia, Cambridge Massachussets: MIT. Siems, Mathias (2007a), ‘Legal Origins: Reconciling Law and Finance with Comparative Law’, McGill Law Journal, 52, 57–81. Siems, Mathias (2007b), ‘The End of Comparative Law’, The Journal of Comparative Law, 2, 133–150. Siems, Mathias (2005a), ‘Numerical Comparative Law. Do we Need Statistical Evidence in Law in Order to Reduce Complexity?’, Cardozo Journal of International and Comparative Law, 13, 521–540. Siems, Mathias (2005b), ‘What Does not Work in Comparing Securities Laws: A Critique on La Porta et al’s Methodology’, International Company and Commercial Law Review, 300–305. Steinmo, Sten, Katheleen Thelen, and F. Longstreth (1992) Structuring Politics: Historical Institutionalism in Comparative Analysis, Cambridge: Cambridge University Press. Teubner, Gunther (1998), ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’, Modern Law Review, 61(1), 11–32. Thatcher, Mark (2007), Internationalisation and Economic Institutions: Comparing the European Experience, Oxford: Oxford University Press. Thatcher, Mark (2008), ‘Internationalisation and Economic Institutions in Europe:

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Developing Historical Institutionalist Analyses of Change’, paper presented at the biannual meeting of the Council for European Studies, Chicago, Ill, March 2008, on file with the author. Twining, William (2007) ‘Globalisation and Comparative Law’ in Ersin Örücü and David Nelken, Comparative Law. A Handbook, Oxford: Hart Publishing, 69–89. Watson, Alan (1974), Legal Transplants. An Approach to Comparative Law, Edinburgh: Scottish Academic Press. Watson, Alan (1978) ‘Comparative Law and Legal Change’, Cambridge Law Journal, 37(2), 313–336. Whitman, James (2008–2009) ‘Producerism versus Consumerism. A Study in Comparative Law’, Yale Law Journal, 117, 340–406. Zweigert, Konrad and Hein Koetz (1998), An Introduction to Comparative Law, Oxford: Oxford University Press.

Conclusion

16. Modern comparative law: the forces behind and the challenges ahead in the age of transnational harmonisation Peter-Christian Müller-Graff1 Modern comparative law: the forces behind, the challenges ahead – this panoramic double view at the very end of this book tries to bundle together the questions which are generated by the plentitude of new dynamics in comparative law made visible in the preceding contributions. It tries to give a tentative answer to the overarching question of whether comparative law, in other words the specific method of functional understanding of different legal systems in different political, economic, social and cultural contexts, has assumed or had thrust upon it a changing role compared to the time of one generation ago. Key-note lectures and workshops of the conference that forms the backdrop for this volume have been devoted to the context of comparative law in legal aid and development, to comparative constitutional law and to comparative private and economic law. These topics have been stretched out into analysing specific aspects such as: firstly, the general merits of the comparative view in legal aid and development for drawing inspiration, for creating legal transplants and for distinguishing domestic characteristics from features in other jurisdictions when shaping the rule of law and the role of courts, human rights and market freedom in a national legal system which is autonomously developed and not colonialised by foreign claims; secondly, the specific tendencies in comparative constitutional law in considering the relevant complex local power context for fixing national power distribution as well as governmental legitimacy and accountability and judicial review, for generating basic rules of the European Community and for conceiving the global normative framework; and thirdly, the specific characteristics in comparative private and economic law for inspiring, if possible, the potentially global rules in deciding conflicts between private actors, e.g. in contracts and torts, in intellectual property and services regulation.

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In this ocean of single aspects the overriding question comes to mind of whether these aspects show a changing role of the comparative method. This depends upon the analysis of the forces behind the new dynamics and the challenges ahead. As such the following observations are divided in two parts (A, B) before reaching a conclusion (C).

A.

THE FORCES BEHIND

Looking first to the forces behind the evident increase of published comparative work and practical comparative efforts in all areas of law in particular three interrelated factors appear: functional requirements (I), communication revolutions (II) and institutional forces (III). I.

Functional Requirements

Two functional requirements seem to be pivotal: cross-border trade (1) and the juridification of a polity (2). 1. Border-crossing trade Trade brings together and creates relations. Johann Gottfried Herder (1787) observed this phenomenon for the Hanseatic League, Rudolf von Jhering (1904: 280) described it in general terms in qualifying trade as a phenomenon long before States stepped up on the stage of history describing trade as a ‘pathfinder in the wilderness’, a ‘herald of peace’ and a ‘torch-bearer of culture’. Contact, however, also brings with it the risk of conflicts. Conflicts need rules for dispute settlement, both substantive and procedural. Shaping rules in an international context requires a comparative view and generates competition between legal ideas and systems given that no actor takes an imperial approach of expanding its own legal and political system. This task is an established feature of comparative law. There is no structural change. Legal history shows that there has also often been an academic and even practical search for inspirations outside of the domestic jurisdiction for the solution of internal problems. In Europe the adaption of Roman law north of the Alps was one of the great historical processes in supplanting less developed forms of law (Dahm, 1960). The adaption of the law of Lübeck or Magdeburg in many townships of Eastern Europe (e.g. in Krakow) is an other example (Laufs, 1996: 37 ff.). In more modern times the idea of codification, as analysed by Franz Wieacker (1967), spread in Europe: in private law, criminal law and eventually also in constitutional law. As a next development the international transfer of legal solutions to new social challenges took place in the 19th and 20th centuries, as described by Helmut Coing (1989: 12 ff.): labour, stock exchange,

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competition and securities. And early in the fifties of the last century the Council of Europe started with comparative studies in various areas of law (Schmuck, 1990). The most recent great example in Europe is the broad adaptation of East European states to legal solutions of the European Community and West European states since 1989 (Müller-Graff, 2002a: 21, 25 ff.).2 2. Solutions to conflicts within the power context of a polity The second functional requirement which fosters the use of the comparative method stems from conflicts within the power context of a polity. These conflicts also require rules for dispute settlement, both substantive and procedural, although this does not necessarily demand a comparative view. However, the comparative method has also found its role in this context. Apart from the already mentioned adoption of the law of Lübeck or Magdeburg in Central Europe in earlier times,3 it was in particular the French revolution that sparked a new era in this respect in Europe. It led, in a very abstract and most twisted and differentiated way, to the rise and diffusion of fundamental normative principles for a polity and the emergence of codified constitutions on the European continent.4 Two centuries later, starting in 1989 after the beginning of a new European era, East Central European States looked for inspirations in West European states for shaping modern constitutions (e.g. Lesange, 1995: 11 et seq.). 3. Consequences for comparative law These two basic functional requirements for solving internal and international conflicts have long been present. But it also has to be remembered that as late as in the early 1980s comparative law even in Europe (not to mention the sometimes self assured United States) was considered by many to be a somewhat exotic academic area that engaged only those who neither took a strong interest in, nor contributed to shaping or applying national law. The issue at hand is to find out why this has changed significantly at least in Europe. II.

Communication Revolutions

Certainly, nowadays a first factor has only to be mentioned as a matter of course, more precisely the revolutions in communication which have taken place in the last three decades: the replacement of former burdensome methods of far-reaching communication by the rise of electronic data processing, the connection of users all over the world by internet, telephone, fax and the satellite-technology. As a result any legal text can be made instantly available to any number of users anywhere in the world and be subjected to comparative scrutiny. Even geographical distances have lost their physically restricting effects for meetings due to the spectacular drop in transportation costs.

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But even these technological revolutions can not explain the latest exponential increase in use of the comparative method in law. Only recently Mitchel Lasser (2007: 49), a chair successor to Rudolf Schlesinger at Cornell, described the current North American attitude by emphasising ‘that when Supreme Court Justice Breyer suggests that we might want to look outside the United States in order to be aware of the judicial decisions of other countries, that’s understood to be a threatening argument’. He warns that ‘the United States legal system must not fall behind in comparative study’. However, as such the revolutions in communication techniques are not sufficient to explain the new dynamics of comparative law. III.

Institutional Forces

The very decisive factor seems to be the rise of institutional forces which have taken up the functional requirements and profited from the technical revolutions. In this respect three features are striking: Europeanisation, globalisation and professionalisation. 1. Europeanisation By now it is obvious that the accelerated emergence of the legal system of the European (Economic) Community since around 19855 has unleashed strong comparative forces. This is, however, less due to the freewheeling discretion of the institutions, than due to the increasing recognition and gradual unfolding of the inner systemic pattern of the integration concept, namely due to the fundamental decision in 1957 to create a common market on the basis of binding law.6 For a long time the huge potential ramifications of this approach for national law and for the practical role of comparative law were seen only by a small number of observers (e.g. Schwartz, 1966: 47; von der Groeben, 1970: 354 ff.; Schwartz, 1987: 333 ff.). But eventually, in 1987, due to a favourable political situation the inner logic of the idea of an economic area of free movement of goods and services, persons and capital overcame national political concerns with the ratification of the principle of qualified majority voting for adapting measures to approximate the laws of the Member States in establishing a functioning internal market (Müller-Graff, 1989: 107 ff.). From then on the functional requirements of the legally binding order of a competition-driven market economy were connected to a suddenly significantly more flexible method of political decision-making on the European level within the European Community, and the dams of separation between the legal systems of the Member States eventually were gradually lowered.7 Together with this since 1989 the concept of a European market and all of its legal consequences has swept far into the European continent together with the ideas of West-European constitutions and the comparative method (Lesange, 1995: 11 et seq; Müller-Graff, 2002a: 21).8

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a. Economic and private law As a consequence of this all those legal issues considered to be connected with the proper functioning of the internal market were and are gradually subjected to the process of harmonisation of national laws or brought into an even wider perspective of common legal ground in Europe.9 Such an approach requires, first of all, a careful comparison of the existing law. As early as in the 1960s forerunners emerged in form of studies in company law (in preparation of the first directive on company law (Hallstein, 1964: 211, 213) and unfair competition law (Ulmer, 1965) and established a tradition of reports on the national legal situation of Member States in specific areas.10 This method is highlighted by the basic method of the biannual reports of the Fédération Internationale pour le Droit Européen on selected legal issues.11 Hundreds of directives approximating certain aspects of national law have followed:12 in economic law and commercial law, corporation law and capital market law, competition law and intellectual property law, private law and private procedural law, banking law and insurance law, regulated industries law and public tender law, insolvency law and so on. This explains why topics of economic and private law in particular are thoroughly scrutinised in their comparative dimension. Even the EC Treaty itself requires a comparative view on a specific aspect of private law, namely in the area of non-contractual liability of the Community in which the well-known Article 288, para 2 of the EC Treaty provides that the Community shall, in accordance with the general principles common to the laws13 of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. On the other hand the rooting of this development in the internal market concept also implies a limit: the more distant an idea of harmonisation from the requirements and forces of the internal market, the more difficult the chances of its realisation. This has also to be kept in mind when considering a European Civil Code.14 b. Constitutional law and administrative law The question arises of whether this comparative requirement also affects constitutional law as the basis of the legal regulation of national powers. In a sometimes painful process national politicians and scholars of national constitutional law had to submit to the fact that in the framework of the European Community, although the power to exert force solely remains with the nation state, the formulation of binding substantive rules does not. The very beginning of this development concerned the rule of law in economic policy (‘Wirtschaftsverfassung’ (Ophüls, 1962: 136 ff.)) in all sorts of market regulation,15 subsidies16 and favouring public enterprises.17 Although the European Community lacks physical rule-enforcing power the other aspect of the double-headed public power (rule-setting and rule-enforcing) was more and more understood as creating the necessity to subject the European rule-setting power to standards

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of legitimacy and control equivalent to the constitutional acquis common to the Member States. This problem was seen by the European Court of Justice as early as 1969 in its famous ‘Stauder v Ulm’ decision on the protection of human rights against measures of the European Economic Community.18 Later on it was sharply illustrated in the two well-known ‘Solange’ decisions of the Bundesverfassungsgericht (in 197419 and 198620) and emphasised again by the Maastricht and Lisbon decisions of that Court (in 1993 and 200921). That aside, administrative law within the EEC gradually became a subject of comparative studies. Here the rule of law in relation to public measures is compared not only between different national systems, but also between them and the Community system.22 Then in particular the Maastricht decision of the Bundesverfassungsgericht sparked a debate in German scholarly literature on common constitutional law within the European Union (e.g. Häberle, 1991: 261 ff.; Müller-Graff and Riedel, 1998). It is a debate which is also supported by the language of Article 6 TEU which declares the principles of liberty, democracy, respect for human rights and fundamental rights and the rule of law as being the basis of the Union and, at the same time, common to the Member States – and which also affirms the reasoning of the European Court of Justice to draw general principles of Community law for the respect of fundamental rights stemming from constitutional traditions common to the Member States.23 In Germany the main stream of academic debate supported the idea of drafting the Charter of Fundamental Rights in the European Union (e.g. Tettinger, 2001: 1010 ff.; Calliess, 2001: 261 ff.; Hilf, 2001; Magiera, 2000, 1017 ff.; Pache, 2001: 475 ff.; Pernice, 2000: 847 ff.) and relevant parts of the academic discussion also supported the idea of profiling the legitimacy of the public power conferred upon the European Union by a transparent Constitutional Treaty for Europe.24 However, this was basically and overwhelmingly not motivated by the objective of replacing the European Treaties with a Constitution in the sense of the constitution of a state, but by the aim of codifying the primary law and the inherent constitutional issues of the European Community and European Union in a coherent and systematic way against the background of common national requirements of legitimacy and control of public power. In this codification-like approach experiences of existing national federal systems within the Union could serve as inspiration for recognising categories, parallels and distinctions (e.g. in relation to competencies,25 decision-making26 and the legal system).27 2. Globalisation A second institutional drive, however less systematic, stems from the so called globalisation in the sense of the densification of institutionalised contacts between all parts of the globe in many areas: on the political level in particular within the United Nations; on the economic level in particular within the WTO and regional economic organisations; on the health level, e.g. within the

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WHO; on the level of technical and legal standardisation within a plentitude of organisations, both public and private, such as, among others, UNIDROIT, the ICC, the WHO, the CEN, the CENELEC, the World Bank, the IMF and others. Here again, in searching for and fixing internationally recognised standards the comparative method gains momentum (e.g. Jehle, 2008), as long as no imperial approach is taken by one of the participants. And even the functions and practice of those organisations are subjected to a sort of comparative constitutional law approach (e.g. with the emphasis placed on the disputed ‘constitutionalisation’ of the WTO).28 3. Professionalisation A third institutional force is the apparent professionalisation in international law both in scholarship and practice. For the classical continental European understanding of normative legitimacy legal systems do not develop by court precedents, but by the binding authority of norms codified by the legislator29 as well as, within this legislative framework, by the persuasive authority of reasonable judicial decisions and also by the persuasive authority of academic legal doctrine which is traditionally widely quoted by court decisions in the centre of continental Europe.30 For about two decades a significant increase of academic research into comparative law has taken place in Europe. Hand in hand with this expansion a parallel development seems to have taken place in the expansion of international law firms. This is marked by the discovery that expertise in law beyond the national borders can help commercial and public clients and generate income.

B.

THE CHALLENGES AHEAD

Against the background of all these forces behind the new dynamics of comparative law, the challenges ahead become visible. They stem in particular from the specific perspective of creating transnationally common acceptable and even binding legal standards. As well-done overviews of the activities in the European circuit two books which have been initiated by scholars of the University of Limburg (Maastricht) can serve as good examples: the book edited by de Witte and Forder (1992) on the Common Law of Europe and the book edited by Faure, Smits and Schneider (2002) on the road towards a European Ius Commune. In this task the comparative method has a new responsibility thrust upon it. Different challenges appear here. At least three deserve particular attention: firstly, the challenge of ‘context analysis vs universal assumption’ (I); secondly, the tension of ‘distinction vs general principles’ (II); and, thirdly, the challenge of ‘local responsibility vs global dynamics’ (III).

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I.

New directions in comparative law

Context Analysis vs Universal Assumption

From the perspective of discovering common ground the very first challenge to the functional method can be seen in its change from the task of overcoming the institutional or idiographic method31 to the new and additional task of taming the underlying assumption of general universality. 1.

Overcoming the institutional or idiographic method by the functional method In former times the functional method in comparative law has gradually emerged in overcoming the institutional or idiographic method. Half a century ago Josef Esser in his great book on ‘Grundsatz und Norm’ directed, among others, the change away from comparing similar looking legal institutions or norms in different legal systems to focusing on the function of a specific norm for solving a specific socio-economic problem32 and, on the other hand, to concentrating on the solution of a specific comparable socio-economic problem by different legal orders. This method, which can also be called teleological context analysis (teleologische Kontextanalyse), produced in particular the two nowadays well-known insights of comparative law that on the one hand identical solutions can be found in different dogmatic clothes and on the other hand specific legal devices serve specific functions within a specific normative and cultural system: for example the availability of treble damages in antitrust cases in the USA (Linder, 1980: 47) which also serves as a counterweight to the hindering effects of procedural risks on lodging suits in American law; or the minimum-capital requirement for private limited corporations in Germany which – until now – serves as a test of seriousness before unburdening members of the corporation from any individual liability (Schmidt, 1986: § 37 II 1). As a consequence grafting a single device from one legal and cultural system onto another will often not necessarily produce the same effect nor serve the same function. In those cases of non-compatibility the legal transplant will either not survive or it can produce unplanned collateral side effects. For example, it is far from clear whether the transfer of the Anglo-American so-called ‘true and fair’ short-term capital-market oriented approach to accounting (Bilanzrecht) in favour of the ‘information of the market’ into continental legal systems in Europe by way of the turntable of European harmonisation33 will not produce negative effects to the long-term survival of companies with their executive seats, production facilities and employment offers in a specific region. Hence, teleological context analysis discovers whether a specific legal device in one country fits as a solution for a similar conflict in the specific complexity and web of purposes and objectives of an other legal, social, cultural and political system or whether it will produce unwanted side effects.

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2.

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The new requirement of careful scepticism towards the assumption of general universality With the new perspective of developing transnational common legal standards this context analysis has come under the challenge of a pre-understanding, which can be called the assumption of general universality. This universal orientation can be understood – after the former institutional and the present functional orientation of comparative research – as a third generation of the comparative method. It exceeds the idea of universal legal principles in the sense of Josef Esser’s functional approach, if and as far as it entirely discards the cultural and other local roots of specific national legal rules.34 It is founded on the assumption that, in principle, behind the positive law of a national legal system transnationally common or universal rules exist or can be construed and are waiting only to be discovered. It is also assumed that different legal norms or the lack of certain norms are only the expression of regional deviations from universal principles of law which have not yet been fully discovered or realised. It is well known that this fundamentally intriguing approach is quite often taken in discussions concerning in particular contract law in Europe and has also acquired the dimension of a fervent discussion of the historical background. On one hand the thesis has been put forward by a scholar of comparative legal history that a sort of a common law and a common legal science in the countries of Western and Central Europe from the late Middle Ages until the time of the French Revolution comprised also English law as a sort of province of this unit (Zimmermann, 1990: ix–x; Zimmermann, 1992: 8 ff.). On the other hand this perception and its ramifications for legal analysis have come under sharp attack most recently by another legal historian. Douglas J. Osler (2007: 169, 178 ff.) holds that the described perception of a panEuropean ‘cultural unit’ unconvincingly expands a sentence of David Knowles (1962) who claims that from 1050 to 1350 the whole of educated Western Europe formed a single and undifferentiated cultural unit to the whole of Europe including England and also to the more modern times until the end of the usus modernus. Osler (2007: 179–188) bases his critique of this thesis on an extensive analysis of the presented arguments and the different features of ‘the juristic division between the civil law and common law families’ and eventually suggests (in quite polemic terms) that the expanded view of the undifferentiated cultural unit is underpinned by a political harmonisation ideology in favour of the European Community and overrides careful analysis.35 In the context of this contribution an evaluation of whether the assessment of Osler is well founded or not is neither possible nor necessary. But in the light of an abstract methodological comparative view generic concerns of this kind have to be taken very seriously. Josef Esser (1964: 346 ff.) when pondering on universal general principles of law was very aware of the

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dangers of feigning universalism and thereby cutting off the specific systemic and cultural frame of legal norms. Recently the European Court of Justice in its judgement ‘Omega’36 had to deal with the question of whether a laser game with simulated actions to kill humans imported from England and readily available there, could be banned by the Federal City of Bonn on the ground that it violated human dignity as protected by the German constitution. The European Court of Justice upheld the reasoning of the City of Bonn37 and, in doing so, also acknowledged that in such a pan-European universal idea as human dignity might supposed to be, different assessments can prevail between two different Member States of the European Community. 3. Conclusion As a result the teleological context analysis of the functional approach of the comparative method faces a newly accentuated, though not totally new, permanent task, namely to employ careful scepticism in following the hypothesis of universality and transplanting a functional unit of one legal system into another legal system without scrupulous and thorough analysis of the rules and problems in question. This also applies to projects of approximation of legal provisions of different states, however without prejudice to the requirement of harmonisation in order to realise a common objective such as the functioning of the internal market of the European Community.38 II.

Distinction vs General Principles

The second challenge facing the functional method is related to the first one. Teleological context analysis requires openness for recognising distinctions, readiness for differentiations and willingness to accept diversity both in analysing the acquis and in drafting perspectives. 1. Distinction approach This all has been capably achieved, e.g., by the famous and successful Landoproject on the principles of European contract law (Lando and Beale, 2002). Detailed differentiations are dealt with meticulously in the apparatus. The same is true of the results of the selective world-wide study on ‘Interpretation of Statutes’ edited by Neil MacCormick and Robert Summers (1991). And the real existence of such different judicial approaches to interpretation methods became apparent in the ‘Henn and Darby’ case39 in which the interpretation of Article 28 of the EC Treaty in relation to an import ban on pornographic articles was debated. Here, British courts favoured a grammatical interpretation of the term ‘measures having equivalent effect to quantitative restrictions’ over a teleological method and denied that an import ban had an equivalent effect to a quantitative restriction with the consideration that an import ban did not

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allow any quantity at all. Eventually the European Court of Justice settled the case by using the teleological method for the interpretation of this provision of European Community law.40 2. General principles approach While the interpretation of European Community law evidently requires a uniform Community system of interpretative methods the general distinctionsensitive approach in comparing different national legal systems has not lost its reasonableness nor validity. However it is latently jeopardised by views which focus on the discovery of general principles and are inclined to disregard the rest. Such an approach is often guided by the idea of formulating a transnationally common legal rule, but might miss the complexity of a legal system. A legal system, as Robert Summers (2006) in his most recent book on function and form in legal systems convincingly explains, ‘is made up of diverse functional units only one major variety of which consists of rules, other functional units being institutions, non-preceptual species of law, interpretive and other legal methodologies, sanctions and remedies and one discrete legal unit not functioning independently’. For example, the functioning of the American civil procedural system with its high-cost risk for the plaintiff might be enhanced in the private enforcement of antitrust law by the availability of the attractive treble-damages remedy.41 3. Conclusion As a result the comparative method is faced with a newly accentuated task, namely to avoid neglecting distinctions in different legal systems when searching for general principles within them. III.

Local Responsibility vs Global Dynamics

A third and final challenge to the comparative method to be mentioned has roots in the well-known topos of ‘global dynamics’, in particular in the idea that ‘all economics is global’, but also by the idea that all environmental protection and all need for regulating social systems is global. 1. Global dynamics The increasing economic interconnection of all parts of the world is beyond doubt.42 The same applies to the increasing awareness of other forms of interconnections such as various threats to public health (in particular the spread of diseases), the security situation (in particular weapons of mass destruction) and environmental issues (in particular the climate).43 As a consequence international Treaties and other instruments of co-operation and harmonisation which cope with these interconnections are being demanded.44 Global dynamics can

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easily lead one to assume that transnational phenomena need identical normative reaction in different countries. While this political view can be true as to the abstract result to be achieved, it might nevertheless be counterproductive when applied to the concrete level of applied protection and methods. 2. Local culture, geography and responsibility One reason for this counterproductivity has already been shown by Josef Esser (1964: 346 ff.) in emphasising the undeniable fact that concrete legal systems are the offspring of certain discrete cultures (Jehle, 2008). It must be added that they are also the result of specific situations of geography and climate45 and, accordingly, of the concrete local political responsibility for survival. The former speaker of the House of Representatives, Tipp O’Neil (1994), coined the phrase ‘All politics is local’. As such any discrete national legal system also mirrors discretionary decisions taken in response to the specific complex local social, economic, power, geographical, environmental, cultural and other challenges which can obviously be quite different for Patagonia or Jylland, for Ghuangzhou or Texas, for Nambia or Celebes. 3. Conclusion As such it can be assumed as a result that the comparative method, confronted with the search for common transnational standards, will forever be tempted by the idea of the one identical global legal system for a ‘one small world village’. However, it will hardly ever make itself superfluous by also proposing and establishing such an identical global legal system for all parts of the world. On the contrary comparative law will also show why different local responsibilities generate different normative solutions in order to fit specific local challenges of adequate survival.

C. GENERAL CONCLUSION Summing up: the discipline of comparative law has not lost its classical function of seeking legislative, judicial and scholarly inspiration in other legal systems. But, its role is enriched by new or newly defined tasks. This is in particular due to the phenomenon that nowadays the comparative method, to a certain degree, serves also the purpose of creating transnationally acceptable common legal standards. This task burdens the comparative approach with a serious practical responsibility and requires a very careful functional approach in order to serve three purposes: firstly, to understand the function of any rule or institution in the context of a complex living legal system; secondly, to assess whether the promotion of one specific legal element, taken from one legal system, to a transnational standard serves or fails the actual purpose

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pursued; and, thirdly, to strengthen or generate two virtues: tolerance for other equivalent standards and respect for autonomy. In this respect the comparative method will also continue to serve its originally intended purpose into the future.

NOTES 1. 2. 3. 4. 5. 6. 7. 8. 9.

10.

11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

The text is based on the concluding lecture given by the author at the Örebro Conference on New Dynamics of Comparative Law on 24 May 2007. The author holds a chair which is devoted, among other subjects, to Economic Law, European Law and Comparative Law. For the specific development in civil law in the CIS-area see Knieper (2007). See above. See for the influence on the idea of a constitution in Germany e.g. Ernst Forsthoff (1967: 77). Due to the establishment of the internal market strategy established by the famous White Paper of the Commission and the amendment of the EEC Treaty by the Single European Act; see Müller-Graff (1989: 107 ff.). Scil.: the conclusion and ratification of the EEC Treaty; in particular Article 2 of the EEC Treaty, today Article 2 of the EC Treaty. For the acceleration and development see Müller-Graff (2002b: 7 ff).; for private law in particular see Müller-Graff (1987: 17 ff.; 1999: 9 ff.). For the specific development in civil law in the CIS-area see Knieper (2007). For private law see note 7 above; for administrative law see, e.g., Schwarze (1988); for constitutional law see, e.g., Häberle (1991: 261 ff); Müller-Graff and Riedel (1998); for criminal law see, e.g., Tiedemann (1993: 23 ff); Sieber (1997: 369 ff.); for a comprehensive collection of different developments see de Witte and Forder (1992); Faure et al. (2002). See, e.g., the reports on economic law (Kommission der Europäischen Gemeinschaften, Reihe Wettbewerb – Rechtsangleichung 20: 1973 ff.); the reports on the system of administrative and penal sanctions in the Member States of the European Communities (Kommission der Europäischen Gemeinschaften, 1994). See, as the most recent reports, two of the three volumes of 2006 which cover the issues of direct tax rules of the Member States in the light of the fundamental freedoms of the EC and the effective application of EU state aid procedures in the Member States. As a still informative overview of the affected areas see the White Paper of the Commission for the preparation of the Central East European Countries for their adhesion to the internal market (1995). For structuring the method see Schockweiler et al. (1990: 27 ff.). For this project see, e.g., Hartkamp et al. (2004). See, in particular, the jurisprudence of the ECJ on the free movement of goods, persons, services and capital. See in particular the application of Article 87 of the EC Treaty by the Commission of the European Communities and the jurisprudence of the ECJ on Article 87 of the EC Treaty. See above note 31; see also Müller-Graff and Franz Zehetner (1991) . ECJ, ECR 1969, 419. Bundesverfassungsgericht, BVerfGE 37, 271. Bundesverfassungsgericht, BVerfGE 73, 339. Bundesverfassungsgericht, BVerfGE 89, 155. See in particular Schwarze (1988); see also Kadelbach (1999); Scheuing (2001: 107ff.); Schmidt-Aßmann and Hoffmann-Riem (1999); Schwarze (1996). See, e.g., the language of the ECJ in its judgement of 14 October 2004 (case C-36/02 Omega [2004] ECR I-09609) at 33. For the discussion see, e.g., Müller-Graff (2002c: 206 ff.).

268 25. 26. 27. 28. 29. 30. 31.

32. 33. 34. 35.

36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

New directions in comparative law Compare, e.g., the method of Articles I-11 to I-14 of the CTE with Articles 70 to 72 of the Grundgesetz. Compare, e.g., the method of Article I-34, III-396 of the CTE with Articles 76 and 77 of the Grundgesetz. Compare, e.g. the rules for the question of primacy of European law (Article I-6 of the CTE) with the (more far reaching) rule for the relation between federal law and state law in Article 31 of the Grundgesetz. For a (critical) overview of this discussion, see Weiß and Hermann (2003: 477 ff.). See as analysis of the codified approach Esser (1964: 220 ff.); Fikentscher (1977: 129 ff.). This is in particular true for German and Austrian courts. For this turning point in comparative law see Esser (1964: 348 ff.): ‘. . . das ist der Weg der Rechtsvergleichung: . . . in gleichen Ordnungsaufgaben unter vergleichbaren gesellschaftlichen Zuständen die Gemeinsamkeit von Lösungen zu entdecken, die je von ihrer Entstehungsgeschichte her in ihrer Systembedingtheit dem gleichen Ordnungsziel dienen’. Josef Esser (1964: 349): ‘. . . nicht blinde Parallelität von Gehalt und Form, sondern Gleichwertigkeit von strukturbedingt abweichenden Formen (ist) das Medium des Vergleichens . . .’; see also Kötz (1992: 31, 39, 41). See Directive OJEC 2001 L 283/28; Regulation OJEC 2002 L 243/1. For this barrier to formulating common principles see Esser (1964: 346 f.). See Olser (2007: 190): ‘Rather it appears as a tendentious, 21st century discourse, a theatrically impressive pseudo-historical mise-en-scène constructed by contemporary comparative lawyers to accord historical legitimacy to their task of harmonising the individual legal systems of the member states of the European Union’. See note 23 above. See note 23 above at 39. For this requirement see Müller-Graff (1989: 107 ff.). ECJ, ECR 1979, 3795. ECJ, ECR 1979, 3795 at 12. See above. For figures relating to this development see Scholl and Schorkopf (2002: 2 ff.). For the different forms of the phenomenon of globalisation see Safransky (2004). For the needs of co-operation and harmonisation in environmental protection as a consequence of world trade law see, e.g., Scholl and Schorkopf (2002: 250 ff.); for other standards see Jehle (2008). See already Montesquieu (1951); for concrete ramifications see Müller-Graff (2005: 55).

REFERENCES Calliess, Christian (2001), ‘Die Charta der Grundrechte der Europäischen Union’, EuZW. Coing, Helmut (1989), Von Bologna bis Brüssel, Europäische Gemeinsamkeiten in Vergangenheit, Gegenwart und Zukunft. Kölner Juristische Gesellschaft. Schriftenreihe. Band 9, Bergisch Gladbach Köln: Verlag Josef Eul. Dahm, Georg (1960), Zur Rezeption des römisch-italienischen Rechts, Darmstadt: Wissenschaftlichen Buchgesellschaft. de Witte, Bruno and Caroline Forder (1992) (eds.), The Common Law of Europe and the Future of Legal Education, Denventer: Kluwer & Maastricht: METRO (Maastrichts Europees Instituut voor Transnationaal Rechtswetenschappelijk Onderzoek). Esser, Josef (1964), Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts, Rechtsvergleichende Beiträge zur Rechtsquellen- und Interpretationslehre, 2 Aufl., Tübingen: Mohr Siebeck.

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Faure, Michael, Jan Smits and Hildegard Schneider (2002) (eds.), Towards a European Ius Commune in Legal Education and Research. Fikentscher, Wolfgang, Methoden des Rechts, Band IV. Forsthoff, Ernst (1967), Deutsche Verfassungsgeschichte der Neuzeit, 3. Aufl. Hallstein, Walter (1964), ‘Angleichung des Privat- und Prozeßrechts in der Europäischen Wirtschaftsgemeinschaft’, RabelsZ, 28. Hartkamp, Arthur, Martijn Hesselink, Ewoud Hondius, Carla Joustra, Edgar du Perron and Muriel Veldman (2004) (eds.), Towards a European Civil Code, 3rd ed. Herder, Johann Gottfried Herder (1787), Ideen zur Geschichte der Menschheit, Band 3. Hilf, Meinhard (2001),‘Die Charta der Grundrechte der Europäischen union’, NJW Sonderbeilage ‘Entwurf der Charta der Grundrechte der EU’. Häberle, Peter (1991),‘Gemeineuropäisches Verfassungsrecht’, EuGRZ. Jehle, Philipp (2008), Harmonisierung im Welthandelsrecht durch Verweis auf internationale Standards, Diss. Heidelberg. Kadelbach, Stefan (1999), Allgemeines Verwaltungsrecht unter europäischem Einfluß. Knieper, Rolf (2007), Die neuen Zivilgesetzbücher in den GUS-Staaten (in print). Knowles David (1962), The Evolution of Medieval Thought. Kötz, Hein (1992),‘A Common Private Law for Europe’, in Bruno de Witte and Caroline Forder (eds.), The Common Law of Europe and the Future of Legal Education. Lando, Ole and Hugh Beale (2000) (eds.), The Principles of European Contract Law – Parts I and II. Lasser, Mitchel (2007), Cornell Law Forum, Winter 2007. Laufs, Adolf (1996), Rechtsentwicklungen in Deutschland, 5. Aufl. Lesange, Michel (1995), Constitutions d’Europe centrale, orientale et balte. Linder, Ludwig (1980), Privatklage und Schadensersatz im Kartellrecht. MacCormack, Neil and Robert Summers (1991)(eds.), Interpreting Statutes: A Comparative Study. Magiera, Siegfried (2000), ‘Die Grundrechtscharta der Europäischen Union’, DÖV. Montesquieu (1951), L’Esprit des Lois, in: Tome 2 des Ouvres Complètes de la Pléiade, ed. par Roger Caillois. Müller-Graff, Peter-Christian (1987), ‘Privatrecht und Europäisches Gemeinschaftsrecht – Gemeinschaftsprivatrecht’, in Peter-Christian Müller-Graff and Manfred Zuleeg (eds.), Staat und Wirtschaft in der EG (as separate edition: Privatrecht und Europäisches Gemeinschaftsrecht, 1989, 2. Aufl. 1991). Müller-Graff, Peter-Christian (1989), ‘Die Rechtsangleichung zur Verwirklichung des Binnenmarkts’, Europarecht. Müller-Graff, Peter-Christian (1993), ‘Gemeinsames Privatrecht in der Europäischen Gemeinschaft’, in Peter-Christian Müller-Graff (eds.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, (2. Aufl., 1999). Müller-Graff, Peter-Christian and Eibe Riedel (1998) (eds), Gemeinsames Verfassungsrecht in der Europäischen Union. Müller-Graff, Peter-Christian (2002a), ‘Die rechtliche Dimension der Osterweiterung der Europäischen Union’, in: Wolfgang Heusel (ed.), Die Osterweiterung der Europäischen Union. Müller-Graff, Peter-Christian (2002b), ‘Die Verdichtung des Binnenmarktrechts zwischen Handlungsfreiheiten und Sozialgestaltung’, Europarecht Beiheft 1/2002. Müller-Graff, Peter-Christian (2002c), ‘Europäische Verfassungsordnung’, EWS. Müller-Graff, Peter-Christian (2005), ‘The Impact of Climate, Geography and Other Non-Legal Factors on EC Law and EEA Law’, in Carl Baudenbacher, Per Tresselt and Thorgeir Orlygsson (eds.), The EFTA Court. Ten Years On.

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O’Neill, Tipp and Gary Hymel (1994), All Politics is Local. Ophüls, Carl Friedrich (1962), ‘Grundzüge europäischer Wirtschaftsverfassung’, ZHR, 124. Osler, Douglas J. (2007),‘The Fantasy Men’, Rechtsgeschichte,10/2007. Pache, Eckart (2001),‘Die Europäische Grundrechtscharta – ein Rückschritt für den Grundrechtsschutz? ’, Europarecht. Pernice, Ingolf (2000),‘Eine Grundrechte-Charta für die Europäische Union’, DVBl. Safransky, Rüdiger (2004), Wieviel Globalisierung verträgt der Mensch?. Scheuing, Dieter H. (2001), ‘Europäisierung des Verwaltungsrechts’, Die Verwaltung. Schmidt-Aßmann, Eberhard and Hoffmann Riem (1999)(eds.) Strukturen des Europäischen Verwaltungsrechts. Schmidt, Karsten(1986), Gesellschaftsrecht. Schmuck, Otto (ed.) (1990), Vierzig Jahre Europarat. Schockweiler, Fernand, Georges Wivenes and J. M. Godart (1990), ‘Le régime de la résponsabilité extracontractuelle du fait d’actes juroidiques dans la Communauté européenne’, RTDE. Scholl, Peter-Tobias and Frank Schorkopf (2002), WTO – Welthandelsordnung und Welthandelsrecht. Schwartz, Ivo (1966),‘Zur Konzeption der Rechtsangleichung in der Europäischen Gemeinschaft’ in Probleme des Europäischen Rechts – Festschrift für Walter Hallstein. Schwartz, Ivo (1987),‘30 Jahre Rechtsangleichung’, in Eine Ordnungspolitik für Europa – Festschrift für Hans von der Groeben. Schwarze, Jürgen (1988) Europäisches Verwaltungsrecht. Schwarze, Jürgen (1996) (ed.), Das Verwaltungsrecht unter europäischem Einfluß. Sieber, Ulrich (1997), ‘Memorandum für ein Europäisches Modellstrafgesetzbuch’, JZ. Summers, Robert S. (2006), Form and Function in a Legal System. Tettinger, Peter (2001) ‘Die Charta der Grundrechte der Europäischen Union’, NJW. Tiedemann, Klaus (1993), ‘Europäisches Gemeinschaftsrecht und Strafrecht’, NJW. von der Groeben, Hans (1970), ‘Die Politik der Europäischen Kommission auf dem Gebiet der Rechtsangleichung’, NJW. Ulmer, Eugen (1965) (ed.), Das Recht des unlauteren Wettbewerbs in den Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft. von Jhering, Rudolf (1904), Zweck im Recht, 4. Aufl., Band 1. Weiß, Wolfgang and Christoph Hermann (2003), Welthandelsrecht. White Paper of the Commission (1995) for the preparation of the Central East European Countries for their adhesion to the internal market, COM(95) 163 final, 3 May 1995 (White Paper). Wieacker, Franz (1967), Privatrechtsgeschichte der Neuzeit, 2. Aufl. Zimmermann, Reinhard (1990), The Law of Obligations. Zimmermann, Reinhard (1992), ‘Das römisch-kanonische ius commune als Grundlage europäischer Rechtseinheit’, Juristenzeitung.

Index ABA see American Bar Association Act on Copyright for Visual Arts and Photography 154 ADB (Asian Development Bank) 27 ADR (Alternative Dispute Resolution) 59 Afghanistan 61–4, 67–8, 71 African Growth and Opportunity Act (AGOA) 4 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) 14–15 Åland Islands 108, 111, 115–19, 121–4, 128–30 Alchian, Armen 234 Alternative Dispute Resolutions (ADR) 59 American Bar Association (ABA) Judicial Reform Index 70 World Justice Project 20–21 American Restatements of the Law 168 amphibology 81–3 antitrust cases in US 262 law 265 OECD recommendations 14 regulation 12 apartheid 35 Asian Development Bank (ADB) 26–27 Australian Agency for International Development (AusAid) 27 Austria 103 constitution 101, 157 conveyancing 186, 188–92, 195, 197–9 Legal Origins Theory (LOT) 216 Barre, Siad 69 Basic Law Germany 100, 151–9, 205–6 Hong Kong 125–8

Belgium 219 conveyancing 186, 188, 190–196 PECL 170 Berkowitz, Daniel 61, 230–233 Bern Convention 242 Bosnia and Herzegovina (BiH) Independent Judicial Commission (IJC) 26 judicial reform 72 Judicial System Assessment Program 24–6 Bosphorus decision 104, 156 Bremen University 186 Breyer, Justice Stephen 258 Brooks, Rosa 68 Bundesverfassungsgericht see Federal Constitutional Court (FCC) Caroline of Monaco 153–4 CECL (Commission on European Contract Law) 165–71 CENELEC (Comité Européen de Normalisation Electrotechnique) 261 Central and Eastern European countries 214–15, 227 constitutions 157–60 Centre for European Law and Politics (ZERP) 186 China 15, 226 Hong Kong handover 125–8 Civil Code European 173, 181, 222 French 170 German 168, 201, 205–7 Swiss 222 civil law notaries 188, 192–3 Clarke, Donald 21 Coase, Ronald 221, 225, 237 Coasean theorem 13, 232 Coing, Helmut 256 Comité Européen de Normalisation Electrotechnique (CENELEC) 261 271

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New directions in comparative law

Commission on European Contract Law (CECL) 165–71 Common Law of Europe 261 Common Law of the United States 169 communications 256–8 communism 8–9, 33–6, 226 collapse in CEE 157, 213 Communist Party (Vietnam) 24 Comparative Law and Economics 11 Comprehensive Legal System Needs Assessment for Vietnam 19, 23, 26 Conseil du Notariat Latin 199 constitution Austria 101, 157 Central and Eastern European 157–60 Czech Republic 101 drafting 140–141 English law 144 European 145–7 German 151–6 Greece 157 Spain 100, 110, 157 United States 145 constitutional drafting 66, 139–40 Constitutional Treaty for Europe 260 constitutionalisation private law 201–11 World Trade Organisations (WTO) 261 consumer law 12, 240–243 Consumer Law Cooperation Regulation (2005) 243 consumer protection 12, 197, 240–41 contract law 22, 37, 165–71, 207–8, 263–4 conveyancing 185–200 Council of Europe 19, 100, 103–5, 257 Council of Licensed Conveyancers (CLC) 193–4 Council on Human Rights Policy 72 country targeted legislation 4 Craig, Paul 108–9 Criminal Code 66 Criminal Procedure Code 66 Critical Legal Studies 11 cross-border trade 256 Czech Republic 153, 186, 215 constitution 101 conveyancing 189–91, 195 EGTL 176

Czech Rights Charter 158–9 Czechoslovakia 157 defensive rights 203, 206, 208 democratic peace theory 52–3 Democratic Republic of Congo (DRC) 66 Denmark CECL Reporters 166 conveyancing 187–91, 193–4 Faroe Islands 119–20 tort law 176 Department for International Development (DfID) 69 deregulated Dutch notary system see Dutch deregulated notary system Djankov, Simeon 215–16, 219–25, 232 doi moi reforms 23, 34 Draft Constitution for Europe 146 DRC (Democratic Republic of Congo) 66 Drittwirkung 201, 203–6, 210 Dürig, Günter 204–6 Dutch deregulated notary system 194–7 East Germany 35 East Timor 61–3, 70 ECHR see European Convention of Human Rights EGTL see European Group on Tort Law Enforcement Directive (2004) 243 England 217, 220 CECL Reporters 166 constitution 144 conveyancing 186–92, 196–7 Institutional Possibilities Frontier (IPF) 220 Legal Origins Theory (LOT) 223 Northern Ireland party system 122 PECL 170 Scottish party system 124 epistemic communities 6 Esser, Josef 262–3, 266 estate agents 185–94, 197–9 EU Code for Social Security 14 European Committee for Electrotechnical Standardization see CENELEC European Competition and Internal Market law 195

Index European Constitutional Law 99–107, 160 European Contract Law 165–72, 264 European Convention of Human Rights (ECHR) 25, 99–105, 153 European Court of Human Rights 100, 104–5, 153–6 European Court of Justice (ECJ) 11, 264–5 constitutional law 102–4, 146 establishing general principles 100 fundamental rights 156, 204, 260 European Group on Tort Law (EGTL) 173–81 European Ius Commune 261 European Union (EU) 13–14, 34, 155, 213–14 Charter of Fundamental Rights 101, 155, 260 Constitutional Treaty for Europe 260 consumer law 240 contract and commercial law 228 lack of constitution 145–6 PECL 168–9 rights 136–7 Europeanisation 173, 238–42, 258 Ewald, William 139, 214, 230, 235 Faroe Islands 119–20, 123, 128–30 Federal Constitutional Court (FCC) 100, 152–60 Caroline of Monaco 154 Handelsvertreter case 208–9 Lüth case 204–8 presumption of innocence 103 Solange decisions (1974 and 1986) 155, 260 Federal Ministry for Economic Cooperation and Development (German) 13 finalities 99, 105–6 Finland Åland Islands 117–18, 124 conveyancing 186, 189–91 tort law 175–6 Foreign Corrupt Practices Act (US) 5 formants, legal 7–8 France CECL Reporters 166 conveyancing 187–96

273

European Constitution 146 Institutional Possibilities Frontier (IPF) 220 Legal Origins Theory (LOT) 217 PECL 170 tort law 228 freedom 34–6, 44–8, 85, 104–6, 204–9 competition 15 contract 167 expression, of 141, 153–4 market 255 press 224 restrictions in planned economy 35 Freedom House Freedom in the World Rankings 20 French Constitution 89, 92, 102 French Constitutional Council 89 French Revolution 3, 224, 257, 263 Frowein, Jochen 100–101 functionalism 4–5, 11, 138–9 Gagauzia 124–5, 128–31 Gardbaum, Stephen 201–4 Gardner, James A. 58 GATT (General Agreement on Tariffs and Trade) 15 General Accounting Office (GAO) 59 General Agreement on Tariffs and Trade (GATT) 15 German Commercial Code 207 German Democratic Republic 35 German Family Law 153 German Federal Constitutional Court see Federal Constitutional Court (FCC) Germany Basic Law 151–9 CECL Reporters 166 constitution 151–9 conveyancing 185–6, 189–97 PECL 170 Ghai, Yash 125–7 Glaeser, Edward 221, 224 Glendon, Mary Ann 216 global dynamics 261, 265 globalisation 11–14, 59, 213, 238, 258–60 intellectual 61 of law 58 Görgülü 153–4

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Greece constitution 157 conveyancing 189, 191, 194 Guide on Municipal Statutes 66 Habermas, Jürgen 42–3, 146 Hall, Peter A. 221, 224 Handelsgesetzbuch (HGB) 208 Handelsvertreter case 204, 207–8 Hanseatic League 256 Harlan, Veit 205 harmonisation 9–15, 106, 140, 239 consumer contract law 228 consumer law in EU 240–3 transnational 255, 259–65 Hayek, Friedrich 223, 245 Hegelian 44 Henn and Darby case 264 Himsworth, Professor Chris 109, 122–3 Home Rule Act (Faroe Islands) 119–20 Hong Kong 68, 125–30, 140 Hong Kong Commission 68 human rights 33–53, 73, 138–40, 255, 260 Bosnia and Herzegovina 25–6, 72 British 103 compliance 20 Council on Human Rights Policy 72 functionalism 11 international standards 61–7 Liberia 57 Vietnam 24, 29 women’s 71 see also European Convention of Human Rights; Universal Declaration of Human Rights human trafficking 66 Hungary 157, 176, 186 conveyancing 188–91, 193, 195 Hussein, Saddam 64 ILO Social Security Convention 14 IMF see International Monetary Fund Independent Judicial Commission (IJC) 26 Index of Freedom 218 Injunctions Directive (1998) 243 Institute of Higher Studies (Vienna) 185 Institute of Information Law in The Netherlands (IViR) 242

Institutional Possibilities Frontier (IPF) 215, 219–20, 223–5 Inter-Agency Steering Committee (IASC) 27 International Bank for Reconstruction and Development (IBRD) 4 International Chamber of Commerce (ICC) 261 International Covenant on Civil and Political Rights 64, 108 International Covenant on Economic, Social and Cultural Rights 64 International Criminal Court 65 International Crisis Group 72 International Institute for the Unification of Private Law (UNIDROIT) 261 International Labour Organization (ILO) 14 International Monetary Fund (IMF) 4, 213, 261 internet 21, 257 Interpretation of Statutes 264 Introduction to the Vietnamese Legal System 19, 23–4 IPF see Institutional Possibilities Frontier Iraq 57, 62, 64 Ireland conveyancing 189–91, 195 Irish Centre for Human Rights 66 Italy conveyancing 186, 190–192, 194–6 Japan 140, 216–18, 227 Japan International Cooperation Agency (JICA) 27 Judicial System Assessment Program (JSAP) 19, 23–6, 30 juridification 256 Kahn-Freund, Otto 58, 236–8 Kantian 44 Kenya 10 Knowles, David 263 Komesar, Neil 231–8 Kosovo 61–5, 69–71 Kumm, M. 146, 201, 203, 209–10 La Porta, Rafael 213–23, 226–30

Index Lando, Ole 165 Lando project 264 languages 10, 22–3, 38, 176 Lasser, Mitchel 258 Law on Administrative Disputes (LAD) 64 Law on Administrative Procedure (LAP) 64–5 Legal and Judicial Sector Assessment Manual 20 legal families 216–18, 225–6, 229–30, 235 legal formants 7–8 Legal Origins Theory (LOT) 214–20, 222–30, 235–6, 244–5 legal positivism 7 legal scholarship 85–8, 91–3, 147, 224 Legal system needs assessment (LNA) 19, 23, 26–30 legal training 38 legal transplants 6–8, 10–15, 255 during war 56–74 human rights 38–41, 48–50 legal origins 216 theories 236 Leisner, Walter 204–5 Liberia 57, 61, 65–7 Lisbon Treaty 101–4 Lithuania 114 local responsibility 261, 265 LOT see Legal Origins Theory Luhmann, Niklas 81–2 Maastricht decision 156, 260 MacCallum, G.C. 45 Macau 125, 129–31 MacCormack, Neil 264 market economy 8, 33–9, 59, 167, 214–15, 258 Marketing Practices Act (Sweden) 241 Markovits, I 56, 71 Marxist economy 33 McInerney, Thomas 22 Memel (Territory) 113–15, 119, 121, 129 Mexico 5 Millennium Development Goals 20 Mittelbare Drittwirkung see Drittwirkung model codes criminal justice 66 economic development 229

275

Moldova 124–5 Murray, Peter L. 199 Nader, Laura 59, 69 natural law 6, 8, 44, 138 Netherlands 146 CECL Reporters 166 conveyancing 186–92, 198 Information Law 242 neutrality of law 8–10, 14 New Comparative Economics (NCE) 219, 223, 229, 238, 244–6 effect on imposing law 221 institutional approach 231–2 Institutional Possibilities Frontier (IPF) 225 Legal Origins Theory (LOT) 213–15 Nipperdey, Hans 204–5 Non-governmental organisations (NGOs) 5 Nordic law 175 North, Douglas 231, 234–5, 243 Northern Ireland 109, 120–123, 128–30 notaries 185–200 numerus clausus 192–8 Observer Human Rights Index 20 Office of the High Representative 25–6 OHADA (Organization for Harmonization in Africa of Business Laws) 68 Ohly, Anzgar 228 Ombudsperson Institution in Kosovo 63, 70 Omega judgement 264 Organisation for Economic Co-operation and Development (OECD) 69, 223, 229 antitrust recommendations 14 US Foreign Corrupt Practices Act 5 Organisation for Security and Cooperation in Europe 66 Organization for Harmonization in Africa of Business Laws (OHADA) 68 Osler, Douglas J. 263 patterns of legal reasoning 178 PECL see Principles of European Contract Law

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New directions in comparative law

People’s Republic of China see China PETL see Principles of European Tort Law Philippines 140 Pistor, Katharina 61, 231–3 planned economy 8, 34–7 Plenary 166–70 Poland 153, 157, 215 conveyancing 186, 189–91, 194 tort law 176 Police Powers Act 66 Portugal constitution 157 conveyancing 186, 189–92, 194, 198 PECL 170 Post-Conflict Constitution Drafter’s Handbook 66 post-modernism 9 Principles of European Contract Law (PECL) 165–71 Principles of European Tort Law (PETL) 173–6 private autonomy 203, 205–11, 241 Public International Law and Policy Group 66 Rabel, Ernst 10–11 Rechtsstaat 36, 103 Reform Treaty 155–6 regulation 106, 256 Rheinstein, Max 10 Richard, Jean-Francois 61, 231 Roman law 8, 48, 56, 237, 256 Rome Convention 242 Rule of Law 11, 70, 99, 104–5 Index 20–21 Sacco, Rodolfo 7 Scandinavia legal origins 216–18, 223 Licensed Agent System 185, 194–7 tort law 175–6 Schlesinger, Rudolf 138, 258 Scotland 109, 122–4, 128–30 conveyancing 186, 189–90 Scotland Act 1998 122 Scottish Executive 122 Scottish National Party 123 Shleifer, Andrei 216–16, 220–221, 224 SIGMA 66

Slovakia conveyancing 186, 188–91, 195 tort law 176 Slovenia 176 conveyancing 186, 188–91, 194 Slovenian Constitution 158 Solange decisions (1974 and 1986) 155–6, 260 Somalia 63, 67, 69 Soskice, David W. 221, 224 South Africa 140 apartheid 35 constitutional rights 202 tort law solutions 176 South Korea 15, 216 Soviet Union 59, 217, 226 Spain 36, 103 conveyancing 186, 189–91, 194 PECL 170 Spanish Constitution 100, 110, 157 Special Administrative Region (SAR) 125–7 Sri Lanka 109 stabilisation 4 State Court of Appeal (Germany) 207 Strasbourg Convention 103, 156 Strasbourg Court see European Court of Human Rights Stromseth, Jane 68 Summers, Robert 264–5 Support for Improvement in Government and Management in Central and Eastern Europe (SIGMA) 66 Sweden 220, 230 aid 33 consumer protection 240–241 conveyancing 190–91, 197, 199 estate agents 194 European tort law 175–6, 178 tort law 180 Tort Liability Act 179 Swedish International Development Authority (SIDA) 23–4, 33 Swiss Civil Code 222 tabula rasa 9 Taiwan 15, 216–18 technology 14, 34, 257 Teubner, Gunther 50–51 Thailand 10

Index Thibaut, Anton Friedrich Justus 8 Tomkins, Adam 108–9 tort law 173–81 Transparency International 5, 20 transplantability 40–53 Treaty of Lisbon 89, 101–4 TRIPs 14–15 Turkey 15, 216, 218, 222 Ukraine 151, 157–60 Ukrainian Constitution 158–60 Umeå University 23 UN Convention on Contracts for the International Sale of Goods (CISG) 169 UN Covenant on Civil and Political Rights 108 UN Human Rights Council 57 UN office on Drugs and Crime (UNODC) 74 unbound norms 87–8 UNDP see United Nations Development Programme (UNDP) unfair competition 228, 240, 259 UNIDROIT (International Institute for the Unification of Private Law) 261 Unidroit Principles of International Commercial Contracts (UPICC) 168–9 Unification of Tort Law 174 United Nations Conference on Trade and Development (UNCTAD) 14 United Nations Development Programme (UNDP) 26–7, 29, 33 United Nations Mission in Bosnia and Herzegovina see UNMIBH United Nations Mission in Kosovo (UNMIK) 63–4, 71 see also Kosovo United Nations Mission to Liberia 65 United Nations Report of the SecretaryGeneral (UNSG) 56, 62–3, 66–8 United Nations Security Council 23, 30

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United Nations Transitional Administration in East Timor 63 United States Institute for Peace 66 universal assumption 261–2 Universal Declaration of Human Rights (UDHR) 21, 64, 140 universalism 50–51, 138 UNMIBH 18, 23 UPICC see Unidroit Principles of International Commercial Contracts Vietnamese legal system 19–30 von Jhering, Rudolf 256 von Savigny, Friedrich Carl 9 Watson, Alan 48–9, 52, 236 Weimar Constitution 151 Weimar Germany 114 Westminster 122 Whitman, James 226, 246 WHO (World Health Organization) 261 Wieacker, Franz 256 Wippman, David 68 World Bank (WB) 20, 69–70, 229, 261 globalisation 213 New Comparative Economics (NCE) 214 Vietnam 26–7, 29 World Health Organization (WHO) 261 World Intellectual Property Organization (WIPO) 15, 242 World Justice Project (WJP) 20–21 World Trade Organisations (WTO) 14–15, 213, 260–261 World War II 140, 157, 159, 204 Worldwide Legal and Judicial Indicators 20–21, 70 WTO see World Trade Organisation ZERP see Centre for European Law and Politics Zimbabwe 4 Zweigert and Kötz 138, 216–17, 222, 225–8