COMPARATIVE LAW, LEGAL HISTORY,

AND THE HOLISTIC APPROACH TO LEGAL CULTURES.

 

by Michele Graziadei

Facoltà di giurisprudenza, Università del Piemonte Orientale "A. Avogadro".

 

 

 

1.         Introduction

 

What can comparative law do for legal history? The question has no obvious answer today, in our age of specialized disciplines, such as legal history and comparative law[1]. Therefore, we need to address it afresh[2]. In doing this, the present contribution advances some points of view that may foster a new dialogue among scholars who may want to cross the line between the fields of comparative law and legal history.

As a matter of fact, though the birth of modern historiography owes much to the development of comparative studies in the field of law[3], most legal history today is written without paying regard to comparative legal studies. The same is true for comparative law: comparative law scholarship seldom delves deeply into the historical dimension of the law, but rather focuses on the present alone.

Of course, there are welcome and important exceptions to this attitude in both comparative law and legal history, and I will turn to them while discussing my opening question. Nevertheless, the relationship between comparative law and legal history, though often stressed[4], is seldom explored by the majority of contemporary legal historians and comparativists.

It is not my task to investigate the causes of this state of affairs. I am content to note that, at least in Europe, legal history shares the fate of comparative law. Both disciplines feature in a cursory way, if at all, in the literature which is devoted to the exposition of the law for the benefit of students or practicing lawyers. Thus, the rarity of the historical and comparative perspective on the law produces a dim awareness of the law we live by.

This last remark leads me to the topic examined in the following pages. How can comparative law contribute to legal history, and thus eventually lead to a better understanding of the law?

Comparative law may influence the practice and the study of legal history in (at least) three ways.

First, the comparative study of different historical facts may help to define the various factors that cause a certain historical outcome. Sometimes this is perceived as the only proper exercise in comparative legal history. It is easy to agree with this view, but there are reasons to believe that such a use of the comparative method is just one of the possible uses of the comparative law approach to legal history.

Second, comparative law can help legal historians to appreciate the extent to which the history of law is a story of give and take, of trade in legal rules, institutions and doctrines, across frontiers.

Third, comparative law may shape historiography by providing a critical assessment of each historiographical tradition.

These various products of the comparative approach to legal history can hardly be separated. Yet, for the sake of analytical clarity, it is better to consider them one by one. The potential impact of the first one is addressed by other contributions to this symposium[5]. Thus I will concentrate on the second and on the third contribution that comparative law can make to legal history.

 

2. Comparative Law, Diffusionism, and Legal History.

 

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

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

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

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

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

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

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

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

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

 

 

3.         Comparative Law as a Critical Perspective on the Historiographical Canon.

 

 

So far, I have presented the obvious case for the use of comparative law research by legal historians.

However, despite these uses, the principal contribution of comparative law to legal history probably lies elsewhere. Comparative law can operate as a critique of, and an aid to overcome, the dominant modes of thought shared by the scholarly community of legal historians.

Legal historians trained solely in the study of their own legal tradition are inclined to share the preconceptions that shape the legal culture they belong to.[29]. Indeed, because historians (like the rest of the people) live in society and partake its culture it is possible to argue that historiography is a form of narrative driven by tradition, rather than an exercise in objectivity[30]. This late critique of the Enlightment is now knocking at our door[31]. It certainly knocks at the door of comparative legal studies when their object is recast in subjective terms. To put it as Ewald[32] brilliantly did: what was it like to try a rat ? Or, more explicitly, what is it like to think like an American, or a German lawyer[33] ?

More often than not, attempts to answer this questions embrace an holistic approach to the understanding of legal cultures. By holism, in this context, I mean any theory according to which an account or an interpretation of a part is impossible, or at least inadequate, without reference to the whole to which that part belongs to[34].

To be sure, the radical version of holism holds that it is impossible to know what is it like to think like an American or an Italian lawyer unless that condition is experienced in the first person, that is to say, unless one actually becomes an American lawyer, or an Italian lawyer[35].

Milder versions of holism start from the premise that comparative law does not achieve its aims if it fails to explain why lawyers belonging to a certain culture think the way they do. This, however, cannot be discovered by pursuing the study of legal rules alone because they are unintelligible without exposing the factors influencing their understanding[36]. The key factor on which to focus would then be the collective memory[37] of those engaged with the law. This memory sets the stage for individual action in the law. Hence, to make sense of the legal cultures of the world we should concentrate on this component of the law, rather than on anything else. This theory has far-reaching consequences. First, the holistic approach to legal cultures dispenses its proponents from systematic investigation of the rules followed in a given society. Second, such an outlook on the law downplays the role of legal transplants or the circulation of legal models as a factor of legal change. From the holistic perspective, the study of such phenomena cannot reveal much about the distinctive features of a legal culture.

In an sense, holism reverses the narrow approach which defines the law solely in terms of rules. Yet, just like that approach, it also pays scarce attention to aspects of the law that make up the legal world. It too, therefore, entails a simplification of comparative law studies. In the end, therefore, this predicament fails to tell us all that we can learn by comparing the world’s legal systems[38].

Nevertheless, the question raised by this proposal to rethink the comparative effort is far too important to be ignored by comparative law scholars and legal historiians alike.

Hence, is it true that nobody can trascend the cultural horizon in which he or she is immersed ?

As long as a clear yardstick to measure an artifact like a "cultural horizon" is not provided, the question cannot be answered as well with a clear yes or no[39]. 

In any case, the acquatic metaphor of "immersion" with regard to (legal) culture dramatically underscores the multiplicity of cultural experiences that we are constantly exposed to. Yet, under the lense of anthropology, the integrity of ”culture” turns out to be a myth for most societies [40]. It is a myth even though the intellectual life of the whole (or a segment) of the population is unable to understand it as such. This conclusion holds true for law as well. Comparativists know all too well that what can be properly termed German, French, English or Italian law is actually only a fraction of what currently goes under that name[41]. To a great extent, these legal systems share a common stock of rules, institutions, legal concepts and ideas. None of them is wholly and exclusively German, French, English or Italian . Tomorrow's lawyers will be puzzled to learn that, on the verge of the third millenium, there were still people who thought otherwise.

I am neither saying that the myth of the integrity of (legal) culture – which goes hand in hand with the holistic approach - is meaningless, nor that mythology is not worth scientific study.

Quite to the contrary, foundational myths are among the most powerful narratives legitimizing the law. Moreover, to understand what the law is about it is important to capture its mythological underpinnings, whatever we think about them[42].

What I am saying is that mythology cannot be taken as a substitute for historical research[43]. Historical research must tackle all that has happened in the past, in all its complexity. This may involve the investigation of facts that are unsettling or disturbing for today’s understanding of who we are, or where we stand, and eventually for our memory of the past[44].

This brings me back to my main point: how can we free ourselves from the conventional wisdom?

Tradition is something that people accept, reject, shape troughout their lives[45]. One of the ways in which this happens is through engagement in critical activities that lead to reconsider traditional modes of thought. It is undeniable that much history, including legal history, has been written along these lines. It has been written against tradition, or against the current, by testing received opinions against the findings of historical research[46].

Scholars who have devoted their energies to comparative law are involved in the same enterprise. When comparative lawyers argue that the ultimate aim of their discipline is to acquire better knowledge of their own law, rather than of the foreign law, they refer to this experience[47]. There is nothing paradoxical in the claim that the main purpose of comparative law is to get a better knowledge of the legal system in which the comparativist is situated[48]. Yet, this does not happen because the legal system from which the comparative lawyer comes and the foreign law are the same. It happens because they are different. Such difference allows the comparative lawyer to approach his own law as a new object of study. The exposure to the foreign law provides an exit or an escape from the familiar intellectual landscape. Coming back to it, the comparative lawyer appreciates things that he or she was bound to ignore before. Hence, the praesumptio similitudinis, which is sometimes presented as the methodological polar star of the comparativists[49], is really at loggerheads with one of the main purposes of the comparative exercise: to fully realize the variety of possible approaches to a given problem.

Those who take this way out of tradition and enter the field of legal history can have an enormous influence on the orientation, or re-orientation, of legal historiography. The application of comparative law skills to historical research has indeed  contributed to the critique and the re-orientation of legal historiography in my country. The most remarkable instance of a fruitful exchange between the two disciplines concerns the history of the courts of law in pre-unitary Italy.

From the end of World War II until the late sixties, Italian legal historians paid no attention to the existence and the activity of the courts of law which operated in pre-unitary Italy. The legal historians’ lack of interest in the courts that had dominated the life of the law during the last phase of the ius commune was not inexplicable. Post-war Italian legal academia held the conviction that court decisions were not a proper object of scientific study. Legal historians shared this point of view. The scholar who eventually buried this historiographical convention - the late Gino Gorla -  held the chair of comparative law at the University of Rome.  Gorla, who devoted the greatest part of his life to the comparative study of the common law and the civil law, unveiled the importance of the activity of these courts between the sixteenth and the nineteenth centuries[50]. After Gorla, Italian legal historians stepped in and now we have a substantial literature on this fascinating topic[51]. In this case the contribution of the comparativist to legal history consisted mainly of taking the bold step that no lawyer educated solely in the orthodoxy of post-war Italian legal thought could take: i.e. to recognize that court decisions could be a source of law.

Today, several comparativists and legal historians in Italy pursue this dimension of comparison. Furthermore, the law curriculum in Italy now provides students with many occasions to benefit from this approach[52]. But Italy may just be part of a wider movement, as international research initiatives bringing together comparative lawyers and legal historians flourish[53].

In today’s Europe, the study of the past need not be the study of how we were or, even worst, of how we shall be. It can be the study of how different they - our ancestors, if you like - were from us[54]. The step in this direction - towards the study of the past as another country - entails the same exit and return to the familiar landscape of contemporary law that comparativists experience when they approach contemporary foreign legal systems. The awareness of this common experience may provide a firmer ground for our discussions, and open up new fields of research.

 

 

 

 

 

 

 

 


[1] When legal history was emerging as a specialized subject in England F.W. Maitland himself, the patron saint of English historians, proclaimed that "history involves comparison": F.W. Maitland, Why the History of English Law is Not Written, in The Collected Papers of Frederic William Maitland, edited by H.A.L. Fisher, I, 1911, 480 ff., at 488. Maitland was certainly not the only one to hold such a belief in his time. Donahue, Comparative Legal History in North America, Tijdschrift voor rechtsgeschiedenis (TR), 1997, 1 ff., p. 9 ff., now points to the danger of lack of professionalism, of historical professionalism, by those who enter the field of comparative legal history, given the demanding standards of modern historical scholarship. The risk is certainly there, and Maitland, was aware of it as Donahue shows. On the other hand, one may question whether such modern standards are truly satisfied by studies which ignore relevant sources because they relate to different geographical areas.

[2] The present relationship between comparative law and legal history in various jurisdictions are examined in the contributions presented to the XVth International Congress of Comparative Law, Bristol, 1998, sect. I.A. The only national report available to me at the end of 1998 is: Reimann & Levasseur, Comparative Law and Legal History in the United States, in Georges A. Bermann, Symeon C. Symeonides, American Law at the End of the 20th Century: U.S. National Reports to the XVth International Congress of Comparative Law, 46 American Journal of Comparative Law (AJCL) (1998), Supplement, 1 ff.

[3] Donald R. Kelley, Foundations of Modern Historical Scholarship, Language, Law and History in the French Renaissance, New York, 1970; id., History, Law, and the Human Sciences: Medieval and Renaissance Perspectives, London, 1984; John G. A. Pocock, The Ancient Constitution and the Feudal Law. A Study of English Historical Thought in the Seventeenth Century, repr. with retrospect, 1987.

[4] Kötz, Was erwartet die Rechtsvergleichung von der Rechtsgeschichte ?, Juristenzeitung, 1992, 20 ff.

[5] Luig, Was kann die Rechtsgeschichte der Rechtsvergleichung bieten ?, in this Review. See also Donahue (n. 3); Gilissen, Histoire comparée du droit: l’experience de la Société Jean Bodin, in: Mario Rotondi, Buts et méthodes du droit comparé, Inchieste di diritto comparato, 2, 1973, p. 255 ff.

[6] The series Ius Romanum Medii Aevi was launched to give a full picture of the topic, but it was left incomplete. The literature on the subject is now so vast that it cannot be compressed in a footnote. For references see: Hermann Lange, Die Anfänge der Modernen Rechtswissenschaft, Bologna und das frühe Mittelalter, 1993, on the later period: Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Rechtsgeschichte, 8 vols., 1973-1988.

[7] Pio Caroni, Saggi sulla storia della codificazione, 1998. Konrad Zweigert/ Hein Kötz, An Introduction to Comparative Law, I, 2nd ed., trans. by Tony Weir, 1987, ch. 8, pp. 100 ff., 159 ff., 184 ff.; Alan Watson, The Making of the Civil Law, 1981, ch. 8, esp. p. 121 ff.

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

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

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

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

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

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

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

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

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

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

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

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

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

[21] Simpson (n. 12).

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

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

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

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

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

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

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

[29] Anthropology shows that we perceive the existence and the operation of cultural models only when we are exposed to models different from our own. For a classical introduction to the idea: Lewis H. Morgan, Systems of Consanguinity and Affinity of the Human Family, 1871, p. 39. On the current the current methodological debate: Francesco Remotti, Noi, primitivi. Lo specchio dell'antropologia, 1990.

[30] For an influential statement of this opinion see Hans-Georg Gadamer, Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik, 1st ed. 1960, 6th ed., 1990, at 281 ff., espec. 287 ff. To be sure, Gadamer's interpretive boundaries are not sealed, because they can always adopt more inclusive viewpoints (id., Truth and Method, 271 and 273). Yet, despite such assertions, Gadamer considers tradition as an homogeneous whole, free from conflicting orientations, dead ends, and clean starts. For historians’ evaluations of Gadamer’s positions: Reinhart Koselleck, Hermeneutik und Historik, 1987; Hayden White, The Question of Narrative in Contemporary Historical Theory, (1984), reprinted in id., The Content of the Form. Narrative Discourse and Historical Representation, 1987, p. 26 ff.

[31] Where it asks to be welcomed because it has the merit of stating explicitly what is otherwise all too often unconsciosly assumed. As Gadamer puts it: "Every encounter with tradition that takes place within historical consciousness involves the experience of the tension between the text and the present. The hermeneutic task consists in not covering up this tension by attempting a naive assimilation but consciously bringing it out." (my citation is to Hans-Georg Gadamer, Truth and Method, 2nd ed., tr. by William Glen-Doepel, 1979, 273).

[32] Ewald, Comparative Jurisprudence I. What Was it Like to Try a Rat ?, 143 University of Pennsylvania Law Review 1889 (1995).

[33]Cp. Ewald (n. 32), p. 1896, 1939 ff. The way the question is framed reflects what leading American law schools are supposed to do, i. e. to teach their students to "think like a lawyer".

[34] Cp. Thomas Mautner, A Dictionary of Philsophy, 1996, 192-193; Robert Audi, The Cambridge Dictionary of Philosophy, 1995, 335 ff.

[35] See, e.g., Legrand, Europen Legal Systems are not Converging, (1996) 46 International and Comparative Law Quartely, 52, at 78: "But my point is that no matter how acute the insight he brings to bear on Italian law, the English lawyer will necessarily think differently from the Italian-lawyer-understanding-Italian-law, that he will of necessity not think as an Italian lawyer. The English lawyer will, therefore, never understand Italian law on its own terms, that is, in the way Italians do given the way it appears to them; he will never trascend his acculturation.".

[36] Ewald (n. 32), 1947, 2146.

[37] I‘m referring to such shared notions that are the key to collective or national identity. These notions are inherently selective, and therefore exclusionary of actual events, ideas and memories that are at odds with the mainstream representation of „who we are“. For a discussion of the distinction between individuelles and kollektives Gedchtnis by a German author see Jan Assmann, Das kulturelle Gedchtnis: Schrift, Erninnerung und politische Identitt in fruhen Hochkulturen, 1992, 34 ff. The seminal contributions on this topic are by Maurice Halwachws. See id., Les cadres sociaux de la mémoire, 1924 (German translation: id., Das Gedchtnis und seine soziale Bedingungen, 1985). To be sure, aspects of the cultural heritage or shared cultural events may be invented and then naturalized as historical. Cp. Eric J. Hobsbawm and Terence Ranger (eds.), The Invention of Tradition, 1983.

[38] Cp. Sacco, Legal Formants (n. 9). Sacco insists on the multi – layered structure of the law and the need to take into account all its formants when comparing legal systems. With specific reference to Ewald’s essay: Zekoll, Kant and Comparative Law - Some Reflections on A Reform Effort 2719 (1996), p. 2742 ff.

[39] Nevertheless, those seeking light from philosophy in these matters can argue for the possibility of (imperfect) communication among peoples having different cultures: Popper, The Myth of the Framework, (1976), reprinted in Karl R. Popper, The Myth of the Framework.. In Defence of Science and Rationality, edited by M.A. Notturno, 1993, p. 33 ff.; Curran, Cultural Immersion, Difference and Categories in U.S. Comparative Law, 46 American Journal of Comparative Law 43 (1998) 50 ff.; or to recognize the possibility of comparative evaluation of cultures: Alasdair MacIntyre, Whose Justice ? Which Rationality ?, 1988. On MacIntyre' s approach to the problem of cultural conmmensurability see Tate, The Hermeneutic Circle vs. the Enlightment, Telos, 1998, 9 ff.

[40] The explicative value of "culture" as a category has come into question among anthropologists. With specific regard to the legal context see: Cotterrell, The Concept of Legal Culture, in David Nelken (ed.), Comparing Legal Cultures, 1997, p. 13 ff.; Friedman, The Concept of a Culture: a Reply, ibidem, p. 33 ff. But the present reservations about the validity of the category do not concern the insight that "culture" is the resultant of opposite tensions, rather than of factors pointing in the same direction: Pietro Rossi (ed.), Il concetto di cultura, Torino, 1970.

[41] The point is forcefully made by Gordley, Comparative Legal Research: its Function in the Development of Harmonized Law, 43 AJCL 555 (1995), 561 ff., and, from a different angle, by Ugo Mattei, Comparative Law and Economics, 1997.

[42] For various approaches and results on this issue: Gordley, Myths of the French Civil Code, 47 AJCL 459 (1994); Peter Fizpatrick, The Mythology of Modern Law, 1992.

[43] The birth of historiography in ancient thought is inextricably connexed with the perception of this distinction. See, e. g., Dionysius of Halicarnassus on Thucydides, who: "…differed from the earlier historians (…) by his exclusion of all legendary material and his refusal to make his history an instrument for deceiving and captivating the common people …" (Dionysius of Halicarnassus, The Critical Essays in Two Volumes, I, with an English translation by Stephen Usher, 1974, c. 6). On the place of myths among the Greeks and in our culture: Carlo Ginzburg, Mito. Distanza e menzogna, first published in S. Settis (ed.), I Greci, I, Noi e i greci, 1996, repr. in Carlo Ginzburg, Occhiacci di legno - Nove riflessioni sulla distanza, 1998, p. 40 ff.

[44] By the same token, the difference between collective memory and historiography vanishes when the desire to roll history into the European flag guides the discovery of a common European past: Osler, The Myth of European Legal History, Rechtshistorisches Journal, 1997, 393. Yosef Hayim Yerushalmi, Zakor. Jewish History and Jewish Memory, 1992, shows that even societies jealously preserving the memory of the past as key to individual and collective identity may be indifferent to historiography. Once more, this is evidence that collective memory and historiography may have little in common.

[45] The recent proposals aiming at the revision of the classification of the world's legal systems into various families may be considered paradigmatic in this respect. Such proposals do not merely reflect the need to take into account the changes in the world's panorama produced by the fall of the Soviet Union and its empire. They also spring from the desire to reformulate the place occupied in the world by each jurisdiction along lines that demonstrate an increased awareness of the common features of the "Western legal tradition". Yet, just two or three decades ago the perception of those features was hardly as acute as it is today. Cp. Mattei, Three Patterns of Law: Taxonomy and Change in the World's Legal systems, 45 AJCL. 5; Gordley, Common law und civil law: ein überholte Unterscheidung, (1993) 1 Zeitschrift für europäisches Privatrecht 498. The current debate over the history of European private law is also illustrative of the changing attitudes towards the traditional boundaries of the subject. See on this topic the contributions by Schulze, Strukturwandel des Privatrechts und Rechtsgeschichte, in: Pio Caroni and Gerhard Dilcher, Norm und Tradition. Welche Geschichlichkeit für die Rechtsgeschichte ?, 1998, p. 257 ff.; id., Vom Ius Commune bis zum Gemeinschafstrecht - das Forschungsfeld der Europäischen Rechtsgeschichte, in Reiner Schulze (ed.), Europäischen Rechts - und Verfassungsgeschichte, 1991, p. 3 ff.; Brauneder, Europäisches Privatrecht - aber was ist es ?, Zeitschrift für neuere Rechtsgeschichte, 1993, p. 225 ff.; Zimmermann, Der europäisches Charakter des englischen Rechts: historische Verbindungen zwischen civil law und common law, (1993) 1 Zeitschrift für europäisches Privatrecht 4; id., Savigny's Legacy: Legal history, Comparative Law, and the Emergence of a European Legal Science, (1996) 112 LQR. 576; Ascheri, Eine mittelalterliche Rechtsordnung - für Heute ?, RJ 51 (book review of Paolo Grossi, L'ordine giuridico medioevale, 1995); Reimann, Who is Afraid of the Civil Law ? - kontinaleuropäisches Recht und Common Law im Spiegel der Englischen Literatur seit 1500 (forthcoming in Zeitschrift für Neuere Rechtsgeschichte).

[46] See the literature cited above, n. 3.

[47] For a legal historian’s viewpoint, in a similar vein, Cordes, Was erwartet die (mittelalterliche) Rechtsgeschichte von der Rechtsvergleichung ?, in this Review; Paolo Grossi, L’ordine giuridico mediovale, 1995.

[48] See, e.g., John H. Langbein, The Influence of Comparative Procedure in The United States, 43 AJCL 545 (1995): “When teaching a course that emphasizes comparative procedure, I remind students of the justification that was given them when they were asked to learn Latin in school: we study Latin to learn English. So with comparative law. American law students are not training to become lawyers or judges in Berlin or Paris. The purpose of comparative law is to help understand what is distinctive (and problematic) about domestic law.”. in the same sense: Mary Ann Glendon, Michael Wallace Gordon, Christopher Osakwe, Comparative Legal Traditions: Text, Materials and Cases, 2nd rev. ed., 1994, p. 10.

[49] Cp. Zweigert/Kötz (n. 7) who advance this presumption for relatively ”unpolitical” areas of the law. For an enlightening analysis of the the historical context which may have inspired this profession of faith: Curran (n. 37) p. 67 ff.

[50] Among the first and most important of these studies see: Gorla, Die Bedeutung der Präzedenzentscheidungen der Senate von Piemont und Savoyen im 18. Jahrhundert, in Ius Privatum Gentium, Festschrift für Max Rheinstein, I, 1969, p. 103 ff.; id., I Grandi Tribunali italiani fra i secoli XVI e XIX: un capitolo incompiuto della storia politico-giuridica d' Italia, Quaderni de "Il foro italiano" (supplement to: Il foro italiano, 1969, c. 629 ff.); id., L'origine e l'autorità delle raccolte di giurisprudenza, Annuario di diritto comparato, 1970, 1, ff.; id., Appunti per una ricerca storico-comparativa in tema di autorità delle decisioni giudiziali, (1970), Contratto e impresa, 1989, 605 ff.; id., I tribunali Supremi degli Stati italiani, fra i secoli XVI e XIX, quali fattori dell' unificazione del diritto nello Stato e della sua uniformazione fra Stati (Disegno storico-comparativo), in: La formazione storica del diritto moderno in Europa, Atti del terzo Congresso internazionale della Società italiana di storia del diritto, I, Firenze, 1977, p. 447 ff.; id., La ”Communis opinio totius orbis”et la reception jurisprudentielle du droit au cours de XVI, XVII et XVIII siècles dans la ”Civil Law”et la ”Common Law” (Thèmes de recherche) in Mauro Cappelletti (ed.) New Perspectives for a common Law of Europe - Nouvelles perspectives d’un droit commun de l’Europe, 1978, p. 45 ff.; On Gorla's career and intellectual biography see the contributions collected in Scintillae Iuris - Studi in Memoria di Gino Gorla, I, 1994, pp. 3-145, and his autobiographical notes, Gorla, Ricordi della carriera di un comparatista, Foro italiano, 1980, V,1 ff.

[51] For the recognition of the importance of Gorla's studies on the ancient Courts of law of pre-unitary italy and the literature on theis topic see Ascheri, I grandi tribunali e la ricerca di Gino Gorla, in Scintillae Iuris (n. 49), p. 76 ff.

[52] Comparative law became a compulsory subject in the law school curriculum in Italy five years ago. Sacco, L'Italie en tête (à propos de l'einsegnement du droit comparé), RIDC), 1995, 131; id., La formation au droit comparé. L'expérience italienne, RIDC, 1996, 273, explains why and how this happened. Most comparative law courses which are taught to second or third year students introduce them to the historical dimension of the comparison: cp. Antonio Gambaro and Rodolfo Sacco, Sistemi giuridici comparati, in Trattato di diritto comparato diretto da R. Sacco, 1996; Pier Giuseppe Monateri, Il modello di civil Law, 2nd ed., 1997; Gian Maria Ajani, Il diritto dei paesi dell'Europa orientale, Trattato di diritto comparato diretto da R. Sacco, 1996; id., Il modello post-socialista, 1996; Ugo Mattei, Il modello di common law, 1996; id., Common law - il diritto anglo-americano, in Trattato di diritto comparato diretto da R. Sacco, 1992.

 

[53] See, e.g., Letizia Vacca (ed.), Vendita e trasferimento della proprietà nella prospettiva storico-comparatistica, Atti del Congresso internazionale Pisa-Viareggio - Lucca, 17-21 aprile 1990, I, II, 1991; La responsabilità civile da atto illecito nella prospettiva storico-comparatistica, I° congresso internazionale ARISTEC, Madrid, 7-10 ottobre 1993, 1995; Letizia Vacca (ed.), Causa e contratto nella prospettiva storico-comparatistica, II Congresso internazionale Aristec, Palemo, 7-8 giugno 1995, 1997; The series Comparative Studies in Continental and Anglo-American Legal History/Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte and the Recueils de la Societé Jean Bodin pour l'histoire comparative des institutions are the other oustanding examples in the field.

[54] In the same vein, arguing for a larger place of comparative law and legal history in the law school curriculum, Pennington, The Spirit of Legal History, 64 University of Chicago Law Review 1097 (1997), 1115: "If legal history deserves such a place in the curriculum of today's law schools, it must earn it by producing books that not only restore memories of forgotten jurists, doctrines and practices, but that also provide different ways of thinking about law.".