Understanding Comparative Law

See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/290574779

ABC of Comparative Law: Legal Formants and Comparison ARTICLE · JANUARY 2015

READS

2

1 AUTHOR: Pier Giuseppe Monateri Sciences Po Paris 47 PUBLICATIONS 7 CITATIONS SEE PROFILE

Available from: Pier Giuseppe Monateri Retrieved on: 20 January 2016

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants

LEGAL FORMANTS

AND

COMPETITIVE MODELS

UNDERSTANDING COMPARATIVE LAW FROM LEGAL PROCESS

TO

CRITIQUE

IN

CROSS-SYSTEM LEGAL

ANALYSIS P.G. Monateri Professor of Law, University of Torino School of Law In this short paper I shall try to summarize the basic tenets of the so called Italian School of Comparative Law which has become known as the Legal Formants Approach. Since this model has also become widely spread in the world of legal comparativists, and it is used in cross system analysis of legal problems in a variety of different ways, it seems to me that the time has come to try to frame it properly in its main landmarks. A first printed version of this ouline may be found in Monateri & Sacco [1998]. This method to compare legal systems has been developed mainly by Sacco [1974, 1991]

and it has been used at its beginning by me and others (See references in

Monateri [1984, 1998]. From this standpoint in the first section I define and analyze the Formants approach, then in a second section I compare it with an approach based on the Amrican Legal Process School. Finally in a third section I try to explain why it may be of relevance for a critical appraisal of the law. Then I included here an Appendix where I try to link this approach with a newer form of analysis of law as a complex historical order in the perspective outlined by Hayek [1973].

Electronic copy available at: http://ssrn.com/abstract=1317302

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants

THE "FORMANTS" APPROACH The theory of legal formants, also known as the dynamic approach to comparative law, focuses on law as a social activity: a formant of the Law is a group, a type of personnel, or a community, institutionally involved in the activity of creating Law. From this point of view we find in the Western Legal Tradition an established legal profession, and three main types of personnel within it: the practicing lawyer; the legal policymaker (a legislator, an appelate court judge, or upper level administrator), and the legal scholar (law professors and the like).

Courts, legislators, lawyers, are all

interacting and competing formants. These professionals produce different kinds of texts: statutes, opinions, holdings, articles, treatises, briefs, summons, broad principles, narraow rules, and so on. They have an archive (previous writers, precedents, etc.) and a professional, tested style to transform old documents and produce new ones. These texts and documents, and the way they are produced, the way they are interlocked, the way they are re-used by others, and so on, become a key feature in the understanding of the working of the law. To cope with these documents, the formants approach adopts a new kind of form criticism, in the widest sense, as a method to uncover, separate, and explain the various materials used to produce the texts. This approach looks for differences of all kinds between and within the documents. This is a direct refutation of the principle of the unity of the law. The law is not an harmonious set of elements, but a composite of different models and clashing texts reconciled by ingenious lawyers. In the standard legal approach, more or less characterized by so-called legal positivism, a constitution, for example, is a unitary document interpreted by lawyers and applied by judges, even if disputes may arise about its meaning. In the formant approach a constitution is also a document, derived from a number of sources, but a decision 'explaining its meaning' is simply another autonomous connected text. What we call the meaning of a legal text is just the link, established by lawyers, between the previous text and another document: a plea, a scholarly article, or a decision. The law can then be reconstructed as a set of interlocked documents used by professionals according to their personal or institutional strategies. Thus the very idea of the legal tradition is to be seen as the result of an actual strategy of considering a variety of independent documents and texts competing for hegemony as interlocked in a pattern of continuity.

Electronic copy available at: http://ssrn.com/abstract=1317302

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants Since the theory is deeply rooted in comparative law, it is especially fit to uncover the different sources of law in terms of legal transplants: a Roman text, embodying a principle, becomes linked with another text, a provision of the German code, to be discussed by an American scholar, whose text is re-transplanted in Europe by comparativists, and becomes part of the opinion of an Italian judge. The theory offers a picture of laws as bundles of transplants of competing sources of law. The formant approach is then a totally comparative approach based on a kind of 'external' study of the law as a form of sociological or economic appraisal of lawyers' activities, coupled with an 'internal' analysis of documents as a kind of form criticism. This approach has then two major implications. First, the legal process is seen as a competitive arena of different types of elite groups1. Second, there is a total refusal of the metaphysics of the unity of the law and of the 'meaning' of legal propositions. We shall discuss by means of example the former implication in the next section and the latter in the last section. FORMANTS

AND THE LEGAL PROCESS

The main idea is to substitute the model of the law as a more or less consistent system of interrelated, hierarchically connected propositions, by a model of competing formants within the unique setting and constraints of one legal tradition. We offer an 'internal example' related to the actual competition of formants within a system, and some 'external examples' involving the comparison of different laws. As an internal example we note the present growth of a new European law. A quite strong competition can be seen among a bureaucratic law tending towards uniformity by means of common administrative regulations and model acts; a judge-made law developed by the European Court of Justice, trying to advance extremely broad new doctrines of judicial activism; and several scholarly efforts endeavouring to build a European “Common Frame” to cope with contract and torts as basic institutes of a private ordering. All these institutional actors express themselves in texts competing for hegemony in shaping modern European law. This competitive model captures the complexity of the law much better than the artificial idea of a coherent development. Take the distinction between the Common and the Civil Law; the former being more 1 See strong analogies with Schmitt [1934].

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants centred on the role of courts, and the latter more grounded on that of legislation. Within the Civil Law

a sharp distinction separate the French and the German

model. The former being much more centred on a beurocratic organization of courts in the interpretation of codes , whereas in the latter a central role was played by legal scholars in shaping legislation, and paving ways for court decisions. Also within the Common Law the role of legal education and legal scholars is much different in UK and in USA, where important aspects of the legal process are influenced by the national law schools as peculiar american institutions. On another side traditional Islamic Law has been essentially based on the prestige of a caste of scholars in law and divinity , but who were not professional lawyers, in an institutional setting where judges were not delivering opinions, and little or no room was left to legislation. From an historical perspective Roman law evolved without regular courts2, but as a law managed by private arbitrators, and only in later times it became grounded upon imperial legislation, and imperial courts made by crown servants. When the Empire collapsed in the West, a common system of local courts (royal, mercantile, ecclesistical, manorial, and so on) took place. Only in the XIIth cent. the legal education was reorganized, in the just invented universities, around justinian roman texts, but this innovation

was refused in England, where the legal profession was already self-

organized in strong professional elites around the royal courts forming a living body of the Law in contrast with the written body of the Law incorporated in Justinian's books: the Corpus Juris3 This early organization of the English bar prevented a reception of the renewed Roman law. For centuries English Law has been tought at the Inns od Court and not at the universities, whereas the Civil law has been much more influenced by scholarly models and cultural revolutions. Indeed when rationalism became a dominant paradigm, it was received also within the continental legal culture, paving the way for codification in the XIX cent., another novelty refused in England. The French revolution introduced also a class of legal beurocrats, becoming an overwhelming factor of the legal process in several countries, to the detriment of legislation, courts, and scholarship. As we may see by these sketches, the theory is designed to cope with the different fabrics of the law , conceived as a battleground of competing professionals.

2 See references in Monateri [2000] 3 See Costantini [2008]

sources and elites of

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants FORMANTS AND

CRITIQUE

The theory of competing legal formants has some consequences in the field of legal criticism, interpretation and hermeneutics. A precedent , a statute, and the like, have only the meaning attached to them by competing elitarian groups, placed under different institutional constraints, and with different incentive structures. From this point of view the theory draws a distinction between the working rules, the practices of a legal system, and the symbolic set, the discourse used by lawyers to decribe, justify, and rationalize the rules. Take medical malpractice as an example. In America it is classified as a Tort, whereas in France it is considered a breach of Contract. French contractual Liability is strict, so that the victim need not allege the doctor's fault, whereas tortious medical malpractice in America is based on negligence. The two systems are at opposite. But French lawyers introduced a distinction between two different kind of contractual obligations : obligations de moyen and obligations de resultat. In the former case a party is under a duty not to perform the obligation, but just to use his skill as best as he can, so the victim of a breach must allege a fault. According to French courts in routine cases a doctor is under a duty de resultat, and so the victim has not to allege fault; but in non routine cases she is under a duty de moyen, which means that she just promises to use her

professional skill, and so the victim must allege a doctor's fault, to prove the

breach. American malpractice law is based on negligence, but American courts decided that in routine cases they can apply the doctrine of res ipsa loquitur, so that the victim's damage is evidence of the doctor's fault. Res ipsa loquitur is not applied in non routine cases, and so the victim must prove a specific breach of the duty by the doctor. It's easy to see similarities and differencies. The working rules and the practices are the same: routine cases lead to no-fault; non routine cases imply fault. However, the Symbolic set , the discourses used to state these rules, are totally different: in France : contract, strict liability, different kind of obligations, necessity of fault in non routine cases; in America: Tort, negligence standard, res ipsa loquitur, non necessity of fault in routine cases. A lot of similar examples have been detected by comparative lawyers, to show how practical similarities are often hidden by justifications and categories. Without indulging

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants in these technical matters, the consequence of the theory is that in the law practices and discourses have indipendent lives. Rules do not follow from the premises, but the premises are selected, for many different symbolic reasons, and then arranged around the rules. Similar premises may lead to opposite rules, and identical rules can be explained by opposite premises. The theory implies that it is always necessary to deconstruct the law to reach its working level, beyond the peculiar legal discourse of any one tradition. This deconstruction is necessary not only for the sake of comparison, but also for making meaningful economic analysis of the law. Deconstructive criticism is neither a luxury nor a philosophical intruder, but a necessity coming from within. From this standpoint the theory of formants is a global internal critique of the legal discourse. It is beyond the task of the theory to raise external critiques, but it certainly entails an anti-formalistic appraisal, and in the field of legal hermeneutics it disfavours the metaphysics of meaning. Why practices and discourses are indepenent ? It is less surprising, indeed, when we found similar practices beneath different discourses in quite similar modern societies. We can simply imagine that there are common economic, or the like, reasons inducing real uniformity beyond apparent variety. It is much harder to explain real divergencies, when they occur in similar westernized systems. For instance the rules about transfer of property, or formation of contracts, diverge totally in France, Germany , England, Austria, Italy etc. Both subjects being classical legal topics on which generations of western scholars have written long books and thoughtful papers. For example, a property in goods is transferred at the moment of delivery in Germany even without a previous contract of sale; it is transferred at the moment of contract in France and delivery is unimportant; you need both a valid contract and a delivery in Austria; you can transfer the property at the moment of contract or at the moment of delivery in England. A similar variance is affecting also the rules about formation of contract. A suggestion of the theory is that in these cases the "rules" are essential only to the legal profession, but are socially irrelevant. This means that it is is important for society to have a rule, but it is irrelevant which one is adopted. This seems to be true especially in many "classical" topics of private law theory. So the formant approach accepts the view of a purely technical, maybe a-political, merely professional, evolution of many legal rules, just because the choice of the adopted rule is in these cases socially irrelevant. This is a first step toward a reconstruction of a theory of legal change, distinguishing in the law between what it is socially important and what it is not.

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants Finally, as we saw, the formants approach clashes with positivism as a pattern in Jurisprudence. At least in the Kelsen approach the law is depicted as a pyramid of state norms consistently improved by state officials. The sketch we now derive by the formant approach is that of

several sources of the law, and the "state" looks more like an

permanently unstable compromise among competing legal sources. The Harvard Legal Process School (See Hart & Sacks [1958]) shared similar views but with a strong bias toward equilibrium, and a strong committment to classic liberal values. In the new formant approach the effort is merely

deconstructivist. Values and

committmens are not metaphysically embodied in The Process, but they are more to be seen as complex strategies of the opposing legal actors. So in terms of jurisprudence the formant approach is similar to some radical form of American realism, with two main differences: first, the formant approach is grounded on comparison as "the" tool of understanding law; and second, in the formant approach the essential of the law is not reduced to working rules and the role of judges; narratives and discourses are as important as the practices for the purpose of social communication and social stability, and judges are but one of the factors, more apparent but often less important than others. Appendix : Formants and Complex Orders As we have seen the formant approach points to a theory of law in terms of agonistic complex orders. I mean orders evolving by interacting costraints having the following features:

1. “creativity”: the possibility to display “fundamental novelty”, that is, those changes which could not be predicted in advance and which amount to real qualitative differences and not simply to different arrangements of the same elements;

2. “regulation by interactive constraint”: dialectical evolution in wich the outcome depends on contrasting interactions and so it never derives in a linear way from a single consistent set of variables. The main conclusion is that models that can be used for understanding and manipulating human orders are either more complex than or equally complex as the

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants phenomenon under study. In this realm of academic knowledge we cannot build a model of how something works that is less complex than the thing itself: the simplified model does not allow us to grasp the thing intellectually. In this way, historicism, hermeneutics and dialectics seem to reemerge as proper tools to handle complexity against every illegitimate “reductivism”. From this viewpoint the philological approach becomes, once again, of particular relevance for the appraisal of the “Cultural order” as the overall order of meanings from language to religion to aesthetics to the law, precisely in the sense Cover [* ] gave to the term Nomos : “… we inhabit a nomos … a normative universe , a world of right and wrong, of lawful and unlawful, of valid and void … law becomes not merely a system of rules, but a world in which we live” In this context there are thus four main features of the evolutionary order which require the adoption of a classic humanistic appraisal and these features can be summarised as follows: 1. Synecdoque

2. Eidolon 3. Ouroboro 4. Agon First of all the feature we have labelled as as “Synecdoque” has to do with the fact that we always possess or have access to only a small part of a complex evolutionary order . However, although we only have access to a limited , and often very limited, portion of it , we must nonetheless try to elaborate from this small selection theories that can prove to be consistent with the entirety of those elements we do not have access to. As an example, we could recall the question of the archives in Roman history. Since most of them have been lost, we can reconstruct ancient culture only on the basis of a very small part of it. This limited selection was reversed in Codex in the V – VI centuries and later transmitted from Carolingian manuscripts into Renaissance editions. Even if they are limited cources, we must depend on these selections: without archives we cannot rebuild history independently from redactors. The same feature of “essential Synecdoque” (a part for the whole) is shared by the Law. The Law is always “lacking” in its sources (precedents, statutes, regulations) with respect to reality. It is necessary to proceed from presence to absence , from what is there towards what is not there, thus reconstructing an order of meaning to recapture

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants what is already missing and posing a patent questioning of the Truth on the fragment and of the Power of the absent. The typical philological questions on the “essence” of Ancient Greece or “the real words of Jesus” are clear examples of this interplay between truth and fragments, and thus between truth and power. Moreover, philology has to deal with another main feature of those complex phenomena which arose spontaneously: historicity intended as the vanishing of presence and the emergence of unpredicted novelty. If we, like Hayek, look at the institutions in historical terms, this implies that their past, which would give explanation to their present, is no more at hand and is no longer present. Philology has precisely to do with the study of what has ceased to be present even if its effects persist, that is, with the actual being of having been, with the study of an Eidolon (the actual being of what once has been, the actual persistence of a past event). Such a vanishing and such a persistence entail “essential novelty” in the same sense in which we can speak of an “Eliot effect” in literature: in a cultural order, the newest part gives meaning to the older ones and not the other way round, even if the most recent block has obviously been built with the “older bricks” . We may label this “Eliot effect” as Ouroboro, from the name of the mythical snake encircling the Cosmic Egg which has become the symbol of the eternal return. This is precisely what happens with the latest decision of the Supreme Court : it is the latest precedent which gives a sense to the older chain of cases, and not the opposite. All this implies that complex evolutionary orders cannot be afforded without considering all the mediations occurred from a “then” to a “now”, which acts as a chain of both transmission and change as we do in hermeneutical contexts . In brief, law must be appraised as a cultural order, and in cultural studies we know that truth is scarce, most of it is out of hand, and we are dealing with chains of transmissions and adulterations in a context of Synecdoque, Eidolon and of the Eliot effect, as well as, of intrinsic antagonism which manifests itself precisely in the everlastin struggle for the attribution of meaning. Finally, with particular reference to the Law, we must underline the normative side of the “struggle for meaning” as the mastering of something which otherwise would appear as formless dispersion, wherever “Reason” itself is part of the same evolutionary process and thus is not the same at all times and in all places. Reason does not lie somewhere outside history and outside the evolution of human societies, but rather it is part of the same evolution leading from past to present forms of culture. In the field of

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants the Law this entails an approach focused on the political as the main feature of a legality which can be conceived as the form (morphè) of a peculiar historical existence . In this perspective, the relationship between the lawlessness of emergency and the legitimacy of sovereignty is structured as the iconic depiction of an inner connection between the amorphous state of Politics and the opposite but connatural form of the Law in its concrete historicity .

REFERENCES: −

Costantini, C. 2008. The Keepers of Traditions.The english Common Layers and the

Presence

of

the

Law.

(December

11.

2008)

Available

at

SSRN:

http://ssrn.com/abstract=1314710. −

Cover, R.M. 1983. The Supreme Court 1982 Term – Foreword: Nomos and Narrative. In Harvard Law Review 4.

−

Hart, H.M.jr. and Sacks, A.M., 1958. The Legal Process. Tentative edition. Now edited by W.N.Eskridge Jr. and P.P. Frickey, Westbury, NY. The Foundation Press, 1994.

−

Hayek, F.A., 1973. Law, Legislation and Liberty. Vol. 1. Rules and Order. Chicago. Chicago University Press.

−

Monateri, P.G., 1984. Règles et technique de la dèfinition en France et en Allemagne. In Revue internationale de droit comparé 36

−

Monateri, P.G., and Sacco, R., 1998. Legal Formants. In Newman, P. (ed.), The New Palgrave Dictionary of Economics and the Law. Vol. 2. London. MacMillan 531.

−

Monateri, P.G. 1998. “Everybody's Talking”: The Future of Comparative Law. In Hastings International and Comparative Law Review 825

−

Monateri, P.G. 2000. Black Gaius. A Quest for the Multicultural Origins of the “Western Legal Tradition”. In Hastings Law Journal 479

−

Sacco, R. 1974. Les buts et les methodes de la comparaison du droit. In Reports IX Int'l Congress of Comparative Law. Teheran 113

−

Sacco, R. 1991. Legal formants: a dynamic approach to comparative law, In the American Journal of Comparative Law 39 : 1-34; 343 – 401

−

Schmitt, C. 1934. Uber die drei Arten des rechtswissenschaftlichen Denkens. Hamburg. Hanseatische Verlagsanstalt.

University of Torino. School of Law. Papers 2008. Monateri, Legal Formants