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Reproduced with permission of 43 American Journal of Comparative Law (Summer 1995) 477-481

The Past and Future of Comparative Law

Rudolf B. Schlesinger [a1]

It is with genuine appreciation that I accept the great honor bestowed upon me by the University of Trento. In my eyes it is of particular significance that this degree is awarded by an institution whose Law Faculty -- from its inception a decade ago -- has devoted a large part of its energy to the study and teaching of Comparative Law.

The tenth anniversary of this distinguished Comparative Law Faculty furnishes an apt occasion for taking a brief look at the past and the future of that particular branch of legal scholarship that is commonly referred to as Comparative Law.

Let me begin with the obvious: To compare means to observe and to explain similarities as well as differences. In comparing legal systems and institutions, depending on the purpose of the undertaking at hand, the emphasis is sometimes on differences, and at other times on similarities. In Europe, where endeavors directed at legal comparisons have a long and venerable history, periods of contractive comparison (with emphasis on differences) have alternated with periods of what we might call integrative comparison, i.e., comparison placing the main accents on similarities.

Any discussion, however summary, of the past history of Comparative Law has to include a careful look at the period that elapsed from the days when Irnerius began to teach at Bologna until the more recent era marked by codification of private law in most civil-law countries. During those seven centuries there emerged what we call the ius commune of continental Europe. As you know, this did not mean that the law became entirely uniform throughout all of the hundreds of principalities and municipalities into which the European continent was divided at that time. It did mean, however -- to use the insightful expression coined by Professor Sacco -- that some of the "formants," or formative elements, of the law were shared (at least during part of that period) by most or perhaps all of the civil-law [page 477] jurisdictions. Those shared elements were extremely important. They included recognition of the Corpus Juris as an authoritative text, and heavy reliance on the writings of famous legal scholars.

Comparison of laws and legal materials across political frontiers became a standard technique of lawyers and judges during the era of the ius commune. To make the point more concrete, let me assume for a moment that as a practicing lawyer or a judge in, say, 17th century Brussels I have to struggle with a difficult question of law not answered by any local statute or ordinance. What sources will I consult in my search for convincing arguments leading to a solution? Unless the text of the Corpus Juris provides unambiguous guidance, I shall of course look at the writings of the recognized sages. Some of those scholars, like Azo and Bartolus, lived and taught in Italy; the nationality or University affiliation of other legal authors may have been French, German, Spanish, Portuguese or Dutch. A court sitting in Brussels would measure the authority to be accorded to each of those scholars by his reputation and by the strength of his exposition of the relevant points, but certainly not by the number of kilometers or of political frontiers separating Brussels from that particular scholar's birthplace or from the situs of his University. As a seedbed of legal scholarship, the entire continent of Europe had become a single realm.

Remaining (for another moment) in the hypothetical role of a 17th century Brussels jurist, I would probably not limit myself to the study of scholarly writings. As pointed out by our late friend and colleague Gino Gorla, and by others who followed his lead, reported judicial opinions also formed part of the legal materials and authorities that were consulted at that time by anyone seeking to ascertain the principles and rules of the ius commune. But here again, as in the case of scholarly writings, the judicial decisions to be consulted by a Brussels jurist might have been rendered by a court sitting in Italy or Germany, or indeed anywhere in continental Europe.

Without further laboring the point, we can surely conclude that comparison of legal materials and authorities emanating from a multitude of politically separate and perhaps geographically distant territories was an accepted method of legal research during the era of the ius commune. In that sense, the lawyers and judges of that era resorted to Comparative Law as part of their daily routine. It is important to note, however, that when they studied, and often relied upon, materials and authorities emanating from other parts of the continent, they did not treat such materials and authorities as belonging to a foreign legal system. On the contrary, they studied those out-of-state materials as part of their routine endeavor to ascertain and to concretize the ius commune, i.e., their own law. Quite naturally, [page 478] therefore, the process of comparison tended to be integrative rather than contrastive.

All of this changed during the age of codification that commenced in the second half of the 18th century. The new codes that were adopted in virtually all countries on the European continent, were national codes, thus largely unifying the law within each of the nation states. Each code was written in its own national language. The common language of previous legal learning -- Latin -- was abandoned; and because each of the codes in its text and its application reflected a good deal of national individuality, formidable new intellectual barriers were erected between the legal systems of the several nations. Lawyers and legal scholars working within any of the newly codified systems now had to treat other similarly codified systems -- even those on the European continent -- as truly foreign law, with which the great majority of judges and practicing lawyers, and even most law professors teaching at national law schools, were totally unfamiliar.

Under these changed circumstances, Comparative law became a specialized branch of legal studies, with a different emphasis. Legislators who desired to learn from the good or bad example of foreign laws, began to seek help from Comparative Law specialists who were familiar with those laws. And in legal practice, whenever the foreign elements of a case required resort to foreign law, again it was the same specialists who were called upon to ascertain and explain, and if necessary to prove, the applicable foreign law. With all this dominant focus on "foreign law," those engaged in the study and practice of comparative law were compelled to emphasize differences rather than similarities, i.e., to take a contrastive approach that was radically different from the integrative approach of the previous period.

The contrastive approach continued to prevail well into the second half of the 20th century. In the last two or three decades, however, the pendulum has again begun to swing the other way. Under the impact of a dramatic world-wide intensification of the trans-national exchange and movement of persons, goods, services and capital, the work of all branches of the legal profession tends to become globalized. Legal scholarship has begun its search for the common core of legal systems, and thus has sought to redirect the emphasis of Comparative Law toward similarities rather than differences. In Europe it is now generally recognized that the emergence of the European Union has made it imperative to engage in integrative comparison of the Union members' laws and legal systems, and thus to build the scholarly foundation for a new ius commune. An important project aimed at that objective -- the study of the common core of European private law directed by Professors Mattei and Bussani -- has been launched right here in Trento. [page 479]

As the European Union counts common-law as well as civil-law countries among its members, the new ius commune will have to embody, and be limited to, the precepts that are common to both types of systems.

The difficulties inherent in such an integrative comparison involving common-law as well as civil-law jurisdictions are often underestimated. In recent years, it has become fashionable among comparativists on both sides of the Atlantis to downplay the traditional differences between civil law and common law, i.e., the differences that existed already prior to the time when the civil-law systems were codified. Let me give you just one example of this downplaying of differences. As I have mentioned before, historical research conducted by Gorla and others has shown that during the three centuries preceding codification the decisions of courts in many continental jurisdictions were routinely reported and frequently relied upon as precedents. From this, some post-Gorla scholars have drawn the conclusion that the English common law and the continental ius commune of pre-code days were shaped in similar manner and thus were not very different from each other in their law-making methods. With due respect, I submit that such a conclusion is erroneous and dangerously apt to derail any serious comparative study. There was no court on the continent that had the dominant authority and the near-monopolistic law-making power of the Westminster courts. On the continent, judicial power was widely dispersed. The decisions of continental courts, even of the most prestigious ones, always had to compete for precedential influence with the -- frequently conflicting -- opinions of other courts, and with the -- often equally conflicting -- views of authoritative legal scholars. Thus, if one looks at the continental ius commune, its formative elements (or legal "formants," to use Professor Sacco's terminology) were radically different from those that characterized the English common law during the same period.

The "formants" peculiar to the common law shaped not only that system's principles and rules, but also the manner of reasoning of common-law lawyers. The legal education of those lawyers was furnished by the same Inns of Court whose judicial members were the principal architects of the law. Thus it is not surprising that the reasoning of all lawyers brought up in the common law became essentially institutional, taking as its normal starting point a concrete institutional event, i.e., a prior judicial decision.

Continental lawyers, on the other hand, lacking the guidance of a single, all-powerful central court, often had to struggle to find answers to doubtful legal questions in the conflicting opinions of professorial writers and of dispersed local courts. University-trained as [page 480] they were, they developed a kind of legal reasoning that was based, not on concrete institutions, but on abstract ideas.

Elsewhere, I have developed this point more elaborately.[1] For present purposes, it may suffice to say that these differences in legal reasoning and in the use of authorities, though reduced in recent years by some well-known elements of convergence, even today separate the mental attitude of a common-law lawyer from that of a civilian. Surely, this poses a difficulty for those who seek to find and to formulate the common core of modern European law.

The difficulty is enhanced by the fact that differences in the history of civil law and common law have created certain structural divergencies which have survived until now, even though they are unrelated to present-day realities. Let me give you just two examples: There is no civil-law analogue to the dichotomy between "law" and "equity" which -- in the United States even more than in England -- continues to have a significant impact on the law of remedies in Anglo-American countries. Thus it is always difficult to explain the practical consequences of that dichotomy in terms understandable to a civilian. Secondly, the institution of the Latin notariate, which is virtually universal in the civil-law world, is essentially lacking in most common-law countries. That the presence or absence of the notarial institution is important not only in terms of the organization of the legal profession, but has weighty consequences in the substantive law of contracts and of property (including matrimonial property and decedents' estates), is clear beyond doubt.

These divergencies may well create certain obstacles to the multinational integrative comparison of civil-law and common-law systems. Nevertheless, I strongly believe that the future belongs to that kind of comparison. The obstacles can and will be overcome by legal scholars who are aware of their existence. The tools that are appropriate for that task are clearly available: All of the obstacles to which I have referred will yield to the factual method pioneered in the Cornell Common Core Project, especially if each legal system's solution of the questions thus posed is explored and determined in the light of the insights regarding legal "formants" that have more recently been developed by Professor Sacco.

I confidently expect that the Law Faculty of the University of Trento will make major contributions to these integrative scholarly endeavors, which will mark the future of Comparative law. This, needless to say, makes me doubly proud to be the recipient of a degree conferred by that distinguished institution. [page 481]


FOOTNOTES

a1. Rudolf B. Schlesinger Is Professor Emeritus at Cornell Law School and Hastings College of Law, University of California. This Paper Was Delivered Upon Reception of an Honorus Causa Doctorate at the University of Trento, Italy on March 8, 1995. Rudi's Former Students and Editors of This Surprise Festschrift, Richard Buxbaum, Ugo Mattei and Edward Wise, Decided to Publish It Without Asking for Rudi's Permission, in the Belief That It Is Much More Than a Formal Acceptance Speech.

1. See Rudolf B. Schlesinger, Hans W. Baade, Mirjan R. Dama ska, & Peter Herzog, Comparative Law -- Cases, Text and Materials 295 ff. (5th ed. 1988).


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