Comparative_Law_and_Legal_History

Com parative Law and LegalHistory

Oxford Handbooks Online

Comparative Law and Legal History

James Gordley

The Oxford Handbook of Comparative Law

Edited by Mathias Reimann and Reinhard Zimmermann

Abstract and Keywords

Legal historians have sometimes studied the law of one place and time while disregarding that of others. Comparative lawyers have sometimes compared the law of different jurisdictions while ignoring the historical reasons they are alike or unlike. The consequences have been unfortunate. Historians have often explained rules which are ubiquitous by the circumstances peculiar to one time and place. Comparative lawyers have often explained the similarities and differences among laws with a blind eye to how they arose. To understand how these problems came about, this article examines the origins of legal history and comparative law. It then describes, more concretely, why these disciplines need each other. Legal rules acquire their structure over time. Thus even if a comparative law scholar were only interested in the structure of modern rules, he would need the help of history.

Keywords: legal historians, comparative lawyers, legal system, legal rules

I. Introduction 754

II.Origins 754

1.Legal History 754

2.Comparative Law 759

III.The Common Mistake 763

1.The Existence of a ‘Legal System’ 763

2.The Search for Principles Unifying Legal Systems 764

(a)Unity of Philosophical Principle 764

(b)Unity of Economic Purpose 766

IV. The Need for Mutual Support 768

1.Legal History in the Service of Comparative Law 768

2.Comparative Law in the Service of Legal History 771

V. Conclusion 772

(p. 754) I. Introduction

MATHIAS Reimann has said that there should be no question that legal history can support the study of comparative law, and comparative law that of legal history.1 Yet there has been. Legal historians have sometimes studied the law of one place and time while disregarding that of others. Comparative lawyers have sometimes compared the law of different jurisdictions while ignoring the historical reasons they are alike or unlike. The consequences have been unfortunate. Historians have often explained rules which are ubiquitous by the circumstances peculiar to one time and place. Comparative lawyers have often explained the similarities and differences among laws with a blind eye to how they arose.

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To understand how these problems came about, we should examine the origins of legal history and comparative law. We can then describe, more concretely, why these disciplines need each other.

II. Origins

1. Legal History

In the Middle Ages, university study of law centred on Roman texts. The professors commenting on these texts knew that they had been written by many jurists over centuries. Yet they interpreted them as a unified whole and tried logically to reconcile each text with every other. Reconciliation was not purely a matter of logic. They read the texts, in so far as possible, to meet the needs of their times. But still, the texts had to be logically squared. Medieval historians call this the scholastic method. One historian has noted its similarity to the efforts that lawyers make today to reconcile their cases and code provisions and concluded that law is inherently scholastic.2

Legal history was born when the Renaissance humanists found another way to deal with texts. They used the methods of philology to determine what words originally meant to their authors. In 1340, Petrarch, one of the founders of humanism, concluded that the scholastic method was deeply flawed. ‘I regret and will (p. 755) regret, as long as there is breath in me, so large a part of my life passed’ studying law in Bologna. ‘The greater part of our legists … care nothing for knowing about the origins of law and about the founders of jurisprudence …’. In the fifteenth and sixteenth centuries, Alciatus and Cujas and other able writers applied humanistic methods to Roman law generally.

The humanists regarded Roman law as a model not only for classical times but also for their own. Their objection was that the scholastics had distorted it. Petrarch complained that it ‘never occurs to [our legists] that the knowledge of arts and of origins and of literature would be of the greatest practical use for their very profession’.3 Nevertheless, humanist aspirations led to problems. What was to be done about contradictions and gaps in the texts and problems that the Roman jurists had not expressly confronted, after the scholastics’ innovations were condemned? The seventeenth-century scholar Bodin denounced the humanists and praised Bartolus, perhaps the greatest of the scholastic jurists: ‘We cannot hope for assistance, he said, ‘from those whom no one wants to consult in matters of law, who prefer to consider themselves grammarians rather than jurists …’4 In early modern times, a new school of jurists arose, now called the Usus modernus pandectarum, who were concerned less with what the texts meant to classical jurists and more with their practical application. Still, unlike the medieval jurists, and perhaps because of the humanists, they did not regard the texts as unquestionably authoritative and ultimately reconcilable. For example, they disregarded the Roman rules that limited when a contract was formed.5 The scholastics had accepted them reluctantly. The humanists endorsed them as authentic Roman law.6

Moreover, the humanists believed that recovering authentic Roman law would elevate legal thought. The Romans, however, were poor philosophers, albeit excellent lawyers. In part because of the work of the humanists, some jurists now recognized that Roman texts expressed only partial truths which philosophical analysis could elucidate. That task was undertaken by the so-called natural law schools of sixteenth-century Spain and seventeenth-and eighteenth-century northern Europe. Thus, in early modern times, there were three approaches: that of the humanists which sought the original meaning of the texts; that of the Usus modernus which applied them to practical legal disputes; and that of the natural law schools which used them as examples of larger philosophical principles.

In the nineteenth century, these schools died out in most of Europe as many countries codified their law and natural law fell into disrepute. By way of exception, (p. 756) the so-called Pandektenschule emerged in Germany. Members of the school wanted to preserve the Roman texts, to be faithful to their historical meaning, and yet tried to fit them into a conceptualist system that no Roman could have imagined. Some historians have said that the historical study of Roman law truly began when the German Civil Code came into force in 1900, and the texts were no longer in force. Finally, historians could simply try to understand what the texts meant to the Romans without the qualms that even the humanists had felt.

Unfortunately, for some historians, this task meant, not only reading the texts in historical context, but reading them to mean no more than their Roman authors consciously understood. One result was a rupture between the study of classical Roman law and the study of the later Continental tradition. Any innovation or new use of the texts could only be a distortion, and not a development, of their true meaning. Dieter Simon has claimed that the very effort of jurists such as

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Reinhard Zimmermann to study how Roman law shaped modern law means the end of legal history as we know it.7

Another unfortunate result was to dismiss much of what the Romans had glimpsed but not expressly said. As my late colleague David Daube has shown, to do so was to misunderstand the texts themselves. When an older author used a word, according to Daube, ‘we have to ask whether the uniform use of the word was actually due to an inherent limitation in its meaning. It may be due to external factors such as the great importance for the lawgiver of a particular type of [case] … not because it can denote nothing except that type …’.8 When an earlier author reached a conclusion which a later author explained by a principle the earlier one did not distinctly grasp, ‘the generalization may or may not involve actual innovation in doctrine’. That is to say, ‘the substance of the principle may be new—or it may be classical, only that the classics took it for granted and, therefore, did not bother to set it down’.9 Indeed, they may not have set it down, not because they did not grasp the principle, but because they thought it should not be invariably applied. For example, in Roman law, not all contracts were binding on consent. That does not mean the Roman jurists did not believe that in principle contracts rest on consent. ‘[I]s it likely’, Daube asked, ‘that the men who created the much admired system of Roman law did not see what was known to any witch-doctor before, and to any pedant after, namely, that a contract normally involves mutual understanding between the parties—otherwise it would be mean-ingless?’10 Indeed, ‘the ordinary function of any contract, whether consensual or (p. 757) non-consensual, is to produce exactly that “objective” situation which is “subjectively” desired by the parties’.11

If so, the historians Daube criticized both misunderstood their texts by ignoring principles the Roman authors actually did glimpse, and made it impossible to see the later constructions of Roman law as clarifications and developments of these principles rather than misunderstandings of texts. The central error is to think that the law of a particular time and place, or the law of a particular people, is an independent object of study, so that what happened elsewhere or later can be ignored. We will see later that that error survives and is an obstacle to a fruitful partnership between legal history and comparative law.

For now, we will simply note that many legal historians now avoid it. Alan Watson has shown that one cannot understand modern legal history while ignoring the weight and influence of Roman texts throughout history.12 John Dawson and Peter Stein have written excellent general studies of how the Roman legal tradition shaped modern law.13 Detailed work has been done on medieval and early modern Roman law: for example, in Helmut Coing's multi-volume survey,14 and by Stephan Kuttner's15 and Gero Dolezalek's16 indices of medieval manuscripts. Their work enables one to ask how the substantive law changed and why. Both Coing17 and Franz Wieacker18 have investigated the origins of particular modern doctrines although they were not always clear about the relative influence of the early modern schools: the Usus modernus and the late scholastics and northern Natural lawyers. The influence of these schools has been studied in more detail by historians such as Reinhard Zimmermann, Paolo Grossi, Robert Feenstra, and others.19 Harold Berman has stressed that the Roman texts were not read in isolation but in conjunction with others, particularly those of Canon law.20 It is hard to understand key notions of fault that have shaped modern criminal and tort law, (p. 758) without reading, not only the Roman sources, but Stephan Kuttner's classic on Schuldlehre in medieval Canon law.21 These historians see development where others saw distortion.

So far we have spoken of Continental law. English legal history does not go back to the Renaissance. Only in the nineteenth and twentieth century, a gifted group of scholars, led by Frederic William Maitland, applied the historical methods pioneered on the continent to study English law.22 Unlike the humanists, Maitland had no desire to rediscover a pristine English common law supposedly corrupted by later interpreters. He described how the writs of the common law came into being and changed over time. Different and brilliant as Maitland's work was, it was flawed by an error like the one just discussed. He assumed that English law possessed a unity over time much as some Roman historians assumed that classical Roman law possessed a unity at a particular period of time. In a famous speech, ‘Why the History of English Law is Not Written’, he claimed that although the English judges did not have distinctly in mind ‘the great elementary conceptions, ownership, possession, contract, tort, and the like’, these concepts had somehow emerged from English law although he admitted he could not explain how.23 We now realize he was wrong. As Charles Donahue has said, ‘We know a considerable amount more today than we did when Maitland wrote …. Relatively little of the history of the forms of action has to do with “the great elementary conceptions” like ownership, possession, tort and contract.’24

The answer, as legal historians increasingly recognize, is that English law is not an independent object of study any more than classical Roman law. A. W. B. Simpson and others have shown that in the nineteenth and early twentieth centuries, the English borrowed these ‘great elementary conceptions’ from Continental law.25 Until then, the English organized their thinking in terms of the rules governing particular writs such as trespass and assumpsit. In the nineteenth century, for the

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first time, they developed a systematic doctrinal structure, borrowing much from the Continent. If that is true, the history of English law cannot be read, nor modern English law understood, apart from the history of Continental law.

To conclude, a persistent problem in legal history has been to try to understand (p. 759) the law of a time or place or nation as an independent object of study. We will now see that, while the historical reasons are different, a similar problem has plagued comparative law.

2. Comparative Law

The study of comparative law has a shorter history. It began in the nineteenth century and, according to some, matured only in the twentieth. As René David noted, comparative law emerged as an independent discipline only because of the nationalization of law on the European continent.26 The Bavarians codified their law in 1756; the Prussians in 1794; the French in 1804, and the Austrians in 1811. Belgium and the Netherlands adopted codes much like that of the French. The Italians adopted a similar code in 1865, the Portugese in 1888, and the Spanish in 1889. In Germany, as we have noted, codification was delayed. Savigny argued that the law of each nation reflected a national spirit, a Volksgeist, and therefore could not be made by legislative fiat. The Geist of German law was to be found, of all places, in the Roman texts. Still, German law was codified in 1900. Swiss law was codified in 1907–12.

At the same time, the idea of what a code meant changed. A code came to be regarded as the exclusive source of law within the jurisdiction that enacted it. Cases were to be decided by an exegesis of its texts or by grasping a system immanent in them. The result was positivism in practice: the study of one's national code became—and still remains—the prime object of legal education and academic commentary. Part of the reason may have been the rise of positivism in theory: the idea, opposed by Savigny, that law was the will of the legislator. Be that as it may, this conception of a code was a nineteenth-century innovation. Portalis, the architect of the French Civil Code, had warned that the texts of the French Civil Code could not decide all cases, and perhaps, not any that came before the courts. ‘No one pleads against a clear statutory text.’27 ‘Few cases are susceptible of being decided by a clear text. It has always been by general principles, by doctrine, by legal science, that most disputes have been decided. The Civil Code does not dispense with this learning but, on the contrary, presupposes it.’28 Portalis was not speaking of some future doctrine or legal science to be founded on the texts of the Code. He was speaking of the legal scholarship already in place, scholarship as it (p. 760) had developed in Europe over the centuries.29 He certainly did not think there was some French spirit animating the Code that would guide future jurists.

Actually, all European codes were amalgams of rules, some Roman, some elaborated over centuries, and some adopted by drafting committees because they were then popular. Yet jurists came to regard the codes as unified statements of law that could be understood without looking elsewhere. Teaching and academic writing in Europe focused on the texts of the national code. Students still study, and academics write, about German law, French law, Italian law, and so forth as though each were an independent object of study.

By and large, comparative lawyers assumed this approach was legitimate. That assumption shaped their understanding of their own discipline and severed it from the study of legal history. If each nation had its own law, the job of comparative lawyers was to compare the law of one nation with another. The question was how to do so.

That question permitted only a limited range of answers. Mittermaier and Zacharia founded one of the first journals of comparative law in 1829: the Kritische Zeitschrift fur Rechtswissenschaft und Gesetzgebung des Auslands. Zachariä introduced the first volume by explaining30 that while the old unity of European law, supplied by Roman texts, was gone, a new unity was possible based on the ideals of codification accepted in France and on the political ideal of a liberal state. The purpose of the journal was to help to frame new national legislation. In other words, the point of comparative law was to help draft national legislation, and once it was drafted, there was no need for comparative law.

Franz Bernhöft and Georg Cohn founded the Zeitschrift fur vergleichende Rechtswissenschaft in 1878. Bernhöft explained that comparative law would ‘teach how peoples of common origin worked independently with the legal concepts they took over, how a people borrowed the institutes of another and reworked them according to its own national outlook (Anschauung), and finally how each factual tie between legal systems of different nations was constructed according to common laws of development’.31 The result, Zweigert and Kotz point out, was a journal ‘primarily devoted to comparative legal history’.32 But it was legal history of a strange sort. It assumed each jurisdiction's law was constructed according to ‘its own national outlook’, whatever that meant. It was like the approach of those legal

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historians who looked for the unity of the law of a given nation or of a given time and place.

(p. 761) Nevertheless, by the mid-twentieth century, the idea that each nation's law formed a ‘system’ was widely accepted among comparative lawyers, although they were unclear as to what a ‘system’ meant: did it mean rules that were logically coherent, or rules that reflected a ‘national outlook’ or common ideals, or rules that reflected common methods and values? Many have dated the emergence of comparative law to the work of these twentieth-century scholars who defined their task as the comparison of legal ‘systems’.33 The archetypical work was by René David: Les grands systèmes de droit contemporains.34 According to David, ‘[e]ach law constitutes in fact a system: it employs a certain vocabulary, corresponding to certain legal concepts; it uses certain methods to interpret them; it is tied to a certain conception of social order which determines the means of application and the function of law’.35 These systems can then be grouped into families according to two criteria: if ‘someone educated in the study and practice of one law will … be capable, without much difficulty, of handling another’, and ‘if they are founded on opposed philosophical, political or economic principles, and if they seek to achieve two entirely different types of society’.36 On that basis, David divided law into three families: romano-germanic, common law, and socialist.37 Others have distinguished legal families differently. The classification that Zweigert and Kotz find ‘most penetrating’38 is that of Arminjon, Nolde, and Wolff who identified seven legal families: French, German, Scandinavian, English, Russian, Islamic, and Hindu.39

The problem is that it is hard to think that French law or German law, let alone Russian, Islamic, or Hindu law, constitutes a ‘system’. The French and German codes incorporate a conglomerate of ideas, developed over centuries, some incorporated because they had been traditionally accepted, some at the whim of the drafters. But that hardly makes them a system in the sense of an ideological or philosophical system, in which each part is intelligible only in terms of every other part. Is there anyone conversant with the history of the French and German codes who would make such a claim? Or such a claim about the Soviet Russian Code, which was an imitation of those of France and Germany, and then declared to be socialist? Or about Islamic or Hindu law?

As in the case of legal history, recent writing is liberating the discipline. Scholars such as Rodolfo Sacco have shown that much of the law is not national. He speaks of legal ‘formants’—institutions, concepts, or rules—that pass from one nation to another while retaining their content. They do not make sense, nor do they originate, in the context of a national system.40 He is surely right as an historical matter. (p. 762) Consequently, one cannot accept the premise from which comparative law began: that one is comparing a domestic law contained in domestic sources with foreign law. If Sacco is right, domestic law includes in large part ideas or ‘formants’ taken from abroad. One has to study them, and what they meant abroad, even to understand domestic law.

A. W. B. Simpson and others have shown us how much of the common law is neither national, nor an organic growth from English judicial decisions. Before the nineteenth century, the English organized their thinking by writs such as assumpsit and trespass. These writs and their rules were not the result of systematic thought based on any system of concepts. In the nineteenth century, Anglo-American treatise writers tried to systematize the common law, organizing it around concepts such as contract and tort rather than traditional writs, and in the process, borrowing heavily from the continent.41 It is not clear how this amalgam of traditional rules and Continental borrowings can be described as a system.

Alan Watson has shown us how the influence of Roman texts and Roman rules has persisted and shaped modern law. If he is right, modern law does not consist of national systems each intelligible in its own terms. The differences depend on what was borrowed.42 In Reinhard Zimmermann's nuanced account, Roman law is like a trunk and modern legal systems like branches. One cannot understand why the French or even the English have a rule without looking at problems that perplexed a civilian author long ago.43

The law of a given country, then, is not a unified system but an amalgam of solutions to problems faced in the past. If so, then an historical critique of the concept of ‘legal systems’ and ‘legal families’ joins hands with another kind of modern critique: one that takes a functionalist approach. The law of any country is a series of solutions to problems it confronts and that may have arisen in other places as well. If so, one cannot understand the law without understanding the problem, and to do so, one might do well to see how different countries deal with it.

The value of this approach is illustrated in the findings of the Trento project on the Common Core of European Law. Experts from different jurisdictions in the European Union are asked how their law would resolve cases that could arise anywhere. The solutions are often the same, despite a diversity of doctrines. When they are not, some of the discrepancies are matters over which reasonable people might differ. Others are due to historical circumstance: for example, a drafting committee enacted some solution popular in its time but since rejected by other jurisdictions. A

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similar comparative but functional approach has influenced the UNIDROIT Principles, a restatement of international commercial law, and the (p. 763) Principles of European Contract Law, which hope to pave the way for a common European law of contract.

Indeed, leading comparative law scholars have moved in a similar direction. The classic work on comparative law by Zweigert and Kotz pays tribute to the older idea that there are ‘systems’ and ‘families’. But it describes the functional approach, in this sense, as the hallmark of the comparative method.44 Indeed, much of their book treats legal problems individually and functionally, and describes how different nations have handled them. A further and important step was taken in Kötz's later book, European Contract Law.45 Here, the law is described problem by problem with an eye to the value of opposing solutions. One must sometimes look at the footnotes to see which legal ‘system’ endorses one solution or the other.

III. The Common Mistake

If what has been said so far is correct, then past failures to integrate the study of legal history with that of comparative law are not due to a difference in subject-matter but to a common mistake. The mistake for legal historians is to assume that the law of a given time and place develops in its own way which can be studied without regard to how the law developed elsewhere. The corresponding mistake for comparative lawyers is to assume that the law of each modern jurisdiction forms a coherent system rather than an amalgam of solutions developed over time.

These mistakes are not historical relics. In the next section we will examine some of the forms they now take. We will then suggest more concretely how legal history and comparative law can be brought to bear on some common problems.

1. The Existence of a ‘Legal System’

I think that few today would defend the idea that French or German law forms a coherent system rather than an amalgam of historically inherited rules, influenced by decisions about appropriate solutions made over the centuries. French courts recognize a law of nuisance, or, as they would say, of troubles de voisinage, even though no text of their Code covers the matter. They do not recognize relief in contract for changed circumstances or, as they say, for imprévision, supposedly because no text of the Code provides for relief.46 Both omissions are the result of (p. 764) historical accidents. Napoleon gave the drafters little time to work, and so they did not address some problems, such as troubles de voisinage, even though they were mentioned in sources on which they chiefly drew: Jean Domat and Robert Joseph Pothier. They did not address others, such as relief for imprévision, probably because Pothier and Domat did not happen to mention them, even though their failure to do so was presumably an accident, since most jurists of their day accepted relief for changed circumstances. Thus the Code is not a system. Its texts depend on the historical accident of which problems the drafters addressed, and their application depends on choices made, not by the drafters, but by French courts.

The same can be said of the German Civil Code although thirty years went into its drafting. Still, much of it consists of last minute improvisations by the drafters or the legislature rather than a systematic working out of principles. In any case, few today would claim the principles of the drafters govern the very creative use courts have made of rules they understood quite differently, such as the ‘good faith’ principle of § 242 of the German Civil Code.

2. The Search for Principles Unifying Legal Systems

(a) Unity of Philosophical Principle

While both legal historians and comparative lawyers have looked for unity in the law of a given time and place, or in that of a nation, modern philosophers have aggravated the problem by suggesting that there can be no unity beyond that of the spirit of a Zeit or Volk. Fichte, Hegel, and their successors wanted to reject both the position that a person's sense of justice and morality was arbitrary, and the position that it was grounded in universal truths about how people should behave. They concluded that a person's judgments had meaning only in the context of some larger system of ideas. Fichte was the first to call it a Weltanschauung, a world view. Within a world view, each conviction made sense but only in relation to the larger whole, without which it would lack meaning.

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This approach once had more influence among historians than among comparative lawyers. It inspired Geistesgeschichte in which the events and cultural accomplishments of the renaissance or the baroque era were understood in terms of the world view of the Renaissance Man or the Baroque Man. By and large, philosophers and historians have rejected any pure form of this approach. It imagines an implausible degree of coherence among the values of those who shared an historical period, and an implausible lack of coherence between their values and those of other eras. It also cannot explain how different features of the same world view are supposed to be interconnected, since they do not flow logically from given axioms as in mathematics nor are they related teleologically or purposefully like the organs of the body or the parts of the machine. But again, the approach lingers.

(p. 765) Strangely enough, it lingers among comparative lawyers. Michele Graziadei has described it as ‘holism’ by which he means ‘any theory by 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’.47 The ‘holists’ he is describing do not relate the parts of a legal system to a whole either logically or teleologically. They claim there is some other relationship which they often call ‘cultural’.

Consequently, as Graziadei observes, the ‘radical version of holism holds that it is impossible to know what it is 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 or an Italian lawyer’.48 That, he notes, is the position of Pierre Legrand who typically uses the example of French law.49 The provisions of the French Civil Code, however, have been enacted in many countries and many languages. Did they then change their meaning ipso facto?. Moreover, even if French courts interpreted them differently, what evidence is there, or could there be, that the reason they did so is characteristically French. Traditionally, under French law, lunatics and children were not held liable for harm they could not have prevented. Now they are, due to recent legislation and case law.50 Should the old rule or the new rule or the change in rules be understood as characteristically French. If so, why.

A more moderate thesis is defended, for example, by William Ewald. He believes we should seek ‘not the law in books nor the law in action but the law in minds’ and so understand the law as a ‘style of conscious thought’.51 His position is like that of the German historian Franz Wieacker:

Virtually every great age of technical legal studies has had its background in generally recognized social and ethical doctrine: that of classical Rome in the philosophy of the Academy, the Peripatics, and above all the Stoa; that of the Glossators, Canonists and Post-Glossators in the moral philosophy and social teachings of the medieval church; the Pandektenwissenschaft of the nineteenth century in Kant's ethic of freedom and duty.52

Similarly, Ewald believes that one must understand the German Civil Code in terms of the influence of ‘Kant, Herder and the German Idealists’.53 These claims (p. 766) should be regarded with care. One cannot assume that thinkers of the same age must have reflected each others' views because they shared the same age. One needs evidence as to whether one thinker influenced another and how. Wieacker should explain how medieval moral philosophy influenced Commentators such as Bartolus or Baldus. They approved of Thomistic moral philosophy, but, as I have tried to show, they used it only occasionally.54 Unlike the late scholastics of the sixteenth century, they did not try to synthesize Roman law and Thomistic philosophy. Similarly, Ewald should describe whom the nineteenth-century German philosophers influenced and in what way. We can then determine how German philosophers influenced the jurists and how they did not. For example, Savigny claimed that law comes from the Volksgeist,55 an idea he owed to Hegel. He said that law gave each person a realm of freedom in which he could flourish,56 an idea which, as Wieacker notes, he probably took from Kant.57 But Savigny broke with Hegel and Kant by denying that law governing the Germans followed from the philosophical concept of the Volksgeist or from that of freedom. Jurists had to find it in the Roman texts which, curiously enough, Savigny claimed, expressed the German Volksgeist.58 Savigny thus neutralized the philosophers and left the jurists free to do the job they loved, which was interpreting these texts, without philosophical advice. Their interpretation had little to do with Herder, Kant, or Hegel. When a philosophical concept like ‘freedom’ bore on a legal problem such as consent, Savigny claimed that the philosophical concept was irrelevant to the work of a jurist.59 Mutual influence should be demonstrated, not postulated.

(b) Unity of Economic Purpose

In the case we have just considered, historians have imagined that because certain philosophical ideas were influential at a certain time, they shaped the law of that time. A similar mistake is to assume that because a given rule leads to a

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Com parative Law and LegalHistory

certain result, and that result furthers someone's economic interest, the rule was made to promote that interest. Sometimes, of course, it may have been. But to show that requires evidence of the intent of those who promoted the rule. At one time, it was common for anthropologists and political scientists to explain social institutions—even witchcraft —by identifying some psychological or societal need that they might unwittingly satisfy. Since one could always dream up some such need, ‘functionalism’ of this kind is now viewed by many social scientists as tautological.

(p. 767) In law, the fallacy is exemplified by the work of the law and economics movement. Many of its practitioners are Americans who have not studied the law of other countries. Yet because they claim that economic considerations explain law in modern societies, they are making comparative claims, and so doing comparative law, albeit in an odd way. They try to show that a legal rule could promote ‘efficiency’ and conclude that they have thereby identified the purpose of the rule. For example, there is a rule in admiralty law that a ship that rescues another cannot claim more than a fair amount for doing so. The purpose of the rule, it is claimed, is to optimize investments in rescue equipment.60 The law of nuisance typically prevents a cement plant from polluting neighbouring land without paying compensation. The purpose is supposedly to optimize the production of farm products and cement.61 In many legal systems, courts strike down an unfair term of a contract. The purpose, supposedly, is not to prevent unfairness but to minimize the cost of drafting contracts. One member of the movement even claims that the reason the law of unjust enrichment will not let me keep one million dollars accidentally deposited in my bank account is to avoid the inefficiency of extra paper work at the bank to prevent such a mistake.62 The rules to which they refer are ancient and framed by jurists who could not possibly have had these purposes in mind. Indeed, the proponents of some economic explanations congratulate themselves on their ingenuity in discovering purposes for rules that never occurred to anyone else before, even to their colleagues who study law and economics. If so, one wonders why they think their explanations shaped these rules.

One would expect better of legal historians who, after all, should be acquainted with the minds of the people they are studying. Yet many of them write as though once they have shown that a rule benefits a certain group, they can conclude that the purpose of the rule was to benefit that group. An example is Morton Horwitz's claim that nineteenth-century American law was ‘transformed’ in order to favour industrialism and a rising class of entrepreneurs. That is why courts rejected traditional ideas about the fairness of prices,63 enforced contracts for the future delivery of goods,64 developed a law of nuisance,65 and so forth. No doubt, some measures were enacted in the nineteenth century to support industrialism. The enactment of tariffs to support New England mills was the subject of bitter debate between Northerners and Southerners. Those who debated tariffs spoke frankly about the legitimacy of laws that helped industry, and yet the jurists and judges whose work (p. 768) Horwitz describes were unaccountably shy. Rarely if ever do they mention industrialism, and Horwitz finds their silence sinister. For him, if rules helped industrialists, they must have been adopted to do so, and if no one said so, it shows that the real purpose was concealed.

Much the same can be said of James Willard Hurst's classic essays on nineteenth-century American law.66 The purpose of the law, he said, was to ‘unleash energy’. His evidence is that Americans of the period liked energy, and they unleashed a lot of it. Supposedly, that explains a multitude of rules which, so far as one can tell from the evidence, were not adopted with any such purpose in mind.

The mistake here is like the one we have seen with positivism and ‘holism’. It is the assumption that the law of a time or place, or of a particular nation, is an independent subject of study, with its own unity, which is to be explained without looking elsewhere.

If we avoid that mistake, however, legal history and comparative law can be of use to each other.

IV. The Need for Mutual Support

1. Legal History in the Service of Comparative Law

A comparative lawyer may find differences in the rules of the legal systems he studies which puzzle him. He may assume they are due to a difference in ‘system’. He may find similarities and assume that because certain rules are ubiquitous, they result from common needs. In each case, he can be helped by knowing the history of the rules. The mistakes he might otherwise make can be best shown by example.

An illustration of the first difficulty is the way in which comparative lawyers usually characterize the difference between ownership and possession in common and civil law systems. According to Beekhuis in the International Encyclopedia of

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Com parative Law and LegalHistory

Comparative Law, a basic structural difference is that unlike common law, ‘[C]ontinental law makes a sharp distinction’67 between these concepts. English authors typically say that there is no real distinction at all, except that the owner has rights against all the world, and the possessor has rights against everyone except the (p. 769) owner.68 In contrast, Continental authors typically explain that the difference between the owner and the possessor is that the latter has no rights, and then discuss why he is protected anyway.69 Yet, if one traces the history of the English approach, one discovers that it was not rooted in traditional English case law.70 It was advanced by Sir Frederick Pollock in the late nineteenth century as the most plausible response to the debate among Continental jurists as to why, if the possessor had no rights, he ought to be protected.71 Pollock concluded that he must therefore have rights, although rights inferior to those of the owner. He claimed this theory explained both common law and Roman law:

[T]he relations of possession and ownership in Roman and English law, the difficulties arising out of them, and the devices resorted to for obviating or circumventing those difficulties, offer an amount of resemblance even in detail which is much more striking than the superficial and technical differences. We cannot doubt that these resemblances depend on the nature of the problems to be solved and not on any accidental connection. One system of law may have imitated another in particular doctrines and institutions, but imitation cannot find place in processes extending over two or three centuries, and whose fundamental analogies are externally disguised in almost every possible way.72

Thus we are not dealing with structural features that distinguish common and civil law. We are dealing with a response, which English authors endorsed, to a Continental debate, a response intended to explain both Roman and English law. We are less likely to misinterpret differences among legal systems if we see how they arose.

Comparative lawyers may make a different mistake when different systems adopt a similar rule. Unless the rule is puzzling on its face, scholars are likely to assume it was adopted on its merits. Common law courts,73 the French Civil Code,74 and codes elsewhere75 have adopted the rule that a party in breach of contract is liable only for damages he could foresee when the contract was made. The rule was incorporated in (p. 770) early drafts of the German Civil Code,76 although the final draft merely provided that the failure to acquaint the other party with the otherwise unforeseeable consequences of his breach could be contributory negligence.77 Because of its ubiquity, the rule that damages must be foreseeable has been endorsed by projects that rely heavily on comparative law to recommend rules: for example, the Convention on the International Sale of Goods,78 the UNIDROIT Principles of International Commercial Contracts,79 and the Principles of European Contract Law.80 But if one looks backward in time, the rule is no longer ubiquitous and its spread seems largely a matter of chance. It was proposed by the sixteenth-century French jurist Dumoulin, not as a rule, but as an explanation of a Roman limitation on disproportionately high damages: in certain contracts, a party could recover no more than twice the contract price. According to Dumoulin, the reason was that such damages were unforeseeable. In the eighteenth century, Pothier presented this explanation as a rule in its own right. French drafters and English judges, in the famous case of Hadley v Baxendale,81 took the rule from Pothier.82 The rule might be unknown today if Dumoulin had made a different conjecture or Pothier had been less influential. Might it be, then, that the rule has less merit than its ubiquity suggests? That is a definite possibility. Indeed, one can find cases in which modern common law and civil law courts deny recovery by claiming damages were unforeseeable when, in fact, what seems to have bothered them was that the damages, however foreseeable, were disproportionate to the contract price.83 The history of the rule alerts one to the possibility that the Romans may have been right all along.

(p. 771) It is also possible that a rule which is widely adopted is puzzling because it seems inadequate to the problem it is supposed to address. An example is the definition of the defects against which the seller must warrant his goods. In the United States, Germany, and other legal systems, a defect is defined as a characteristic which makes the goods unsuitable for the purpose for which they were sold. That definition is not of much use in determining, for example, whether a lawn-mower is defective because it could have had a guard that better protects the user's fingers, or, to use Reinhard Zimmermann's examples, whether paintings are defective if they are spurious or pearls if they are imitations.84 As Zimmermann points out, the definition was formulated that way by Roman jurists in a context in which it worked quite well. It applied to sales of animals and slaves. One could not sue for a scratch on a slave as long as he could do his work. No wonder, as Zimmermann points out, the rule doesn't work well when it is applied to the design of man-made things.85 The rule's history explains why it is unsatisfactory although ubiquitous.

In cases like these, it is hard to see how a comparative lawyer could adequately explain the differences and similarities among rules without the help of legal history.

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Com parative Law and LegalHistory

2. Comparative Law in the Service of Legal History

A legal historian attempting to relate a rule to the circumstances of a given time and place can yield to the opposite temptation. He may take a rule which, if not ubiquitous, has flourished in other circumstances, and explain it by those of the time and place he is studying. The cure is a comparative look at law elsewhere.

To pick an extreme example, Grant Gilmore claimed in his book, The Death of Contract, that the idea of a general law of contract ‘never … occurred to the legal mind until [Christopher Columbus] Langdell somehow stumbled across it’ in the nineteenth century.86 He reached this conclusion because he knew that common lawyers, before the nineteenth century, organized their thinking in terms of writs such as assumpsit and covenant rather than by means of concepts such as contract, and that American lawyers only began to systematize contract law with the work of Langdell and contemporaries such as Oliver Wendell Holmes. Had he taken even a brief look at the law of other times and places, he could not have thought that the idea of a general law of contract was a nineteenth-century invention.

Morton Horwitz, in my judgment, yielded to the same temptation when, as described earlier, he argued that American law was ‘transformed’ in the nineteenth century to favour industrialization and a new class of entrepreneurs. The problem is not merely the assumption that whatever favoured that class was adopted in (p. 772) order to do so. The problem is also that, if one looks at other times and places, one can see that rules such as those mentioned earlier, which he offers in support of his thesis, do not support it. American courts did reject traditional ideas about just prices. But as A. W. B. Simpson pointed out, that fact does not support Horwitz's thesis since, traditionally, the just price had been identified with the market price under competitive conditions.87 Entrepreneurs would not have found that idea constraining. Horwitz claims that because of nineteenth-century economic conditions, people for the first time made contracts for the future delivery of goods. But they had done so for centuries.88 The law of nuisance arose in the nineteenth century, according to Horwitz, because for the first time people were living in close enough proximity to bother each other. But, for centuries, English law protected neighbours from breweries and pigsties,89 and Roman law protected them against the smoke from a nearby cheese shop.90 Comparison with other times and places would have allowed Horwitz to separate out features which really were unique to the nineteenth century such as the development of corporate law.

V. Conclusion

Legal rules acquire their structure over time. Thus even if a comparative law scholar were only interested in the structure of modern rules, he would need the help of history. Some rules are characteristic of a given time and place and others are not. Thus even if an historian merely wanted to understand the law of a given time and place, he would need a comparative approach to see which rules are characteristic of it.

As noted, the problem was caused, in part, because of the way in which legal history and comparative law emerged as separate disciplines. To some extent, this was the result of an undue willingness to treat the law of a given time or place or country as a unity, and therefore an independent object of study. In all honesty, it may also have been due to the human temptation of every scholar to imagine himself as the master of a given subject, needing no help from subjects he has not mastered. Be that as it may, more scholars are recognizing that one cannot (p. 773) understand the rules of the past without looking beyond the period he is studying, or those of the present without looking at those of the past. Certainly, that is a change for the better.

Bibliography

René David, Les grands systèmes de droit contemporains (7th edn, 1978)

Alan Watson, The Making of the Civil Law (1981)

Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990; paperback edn, 1996)

Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law’, (1991) 39 AJCL 1ff

Hein Kötz, ‘Was erwartet die Rechtsvergleichung von der Rechtsgeschichte?’, [1992] Juristenzeitung 20 ff

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