lus Commune lectures on European Private Law, 2 The lus Commune Lectures on European Private Law are published under the auspices of the lus Commune Research School. This Research School consists of the Law faculties Maastricht University, Utrecht University and the Catholic University of leuven, and directed towards research in the field of european private Law and related subjects Associated members of the School are the Law faculty of the Free University Amsterdam, the Law Faculty of the Universite de liege and individual members of the University of amsterdam 口sP LEGAL TRANSPLANTSAND EUROPEAN PRIVATE LAW Alan Watson! Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in amy form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and lassroom use Pierre Legrand's critical article, "The Impossibility of Legal Transplants"3 I am both of Jan Smits asked me to talk about my book Legal Transplants2 specifically in the context Emest P. Rogers Professor of Law at the University of Georgia; Research Professor. Revised version of a paper delivered 18 May, 2000, at the conference The Contribution of Mixed Legal Systems to European Private Law, held at Maastricht University under the auspices of the lus Commune Research School fIrst edition. Edinburgh. 1974: second edition. Athens. Ga.. 1993 34 Maastricht Journalof European and Comparative Law, 1997, pp. 111 ff. As a result of my remit this paper is
Ius Commune Lectures on European Private Law, 2 The Ius Commune Lectures on European Private Law are published under the auspices of the Ius Commune Research School. This Research School consists of the Law Faculties of Maastricht University, Utrecht University and the Catholic University of Leuven, and is directed towards research in the field of European Private Law and related subjects. Associated members of the School are the Law Faculty of the Free University Amsterdam, the Law Faculty of the Université de Liège and individual members of the University of Amsterdam. LEGAL TRANSPLANTS AND EUROPEAN PRIVATE LAW Alan Watson1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Jan Smits asked me to talk about my book Legal Transplants2 specifically in the context of Pierre Legrand’s critical article, ‘The Impossibility of “Legal Transplants”’.3 I am both 1Ernest P. Rogers Professor of Law at the University of Georgia; Research Professor. Revised version of a paper delivered 18 May, 2000, at the conference The Contribution of Mixed Legal Systems to European Private Law, held at Maastricht University under the auspices of the Ius Commune Research School. 2First edition, Edinburgh, 1974; second edition, Athens, Ga., 1993. 34 Maastricht Journal of European and Comparative Law, 1997, pp. 111 ff. As a result of my remit this paper is
delighted and reluctant to respond. Delighted, because a book written in 1970, published mainly to silence plus extreme disapproval, is now regarded as somehow significant. I am reluctant because I fear I will misrepresent Pierre Legrand's views as much as he misrepresents mine. I confess that in large measure I do not comprehend what he is about. I see no substance, just big words, in his article To begin with, I wish to state frankly that I believe his views are old-fashioned. He appears to believe that legal philosophy is the key to understanding law in society. Legal history, clud ing comparative legal history, has little place in his scheme of things. Underlying his approach is the unspoken- yet at times almost explicit-view that law is the spirit of the people'. At the very least, for him a legal rule in one country expressed in exactly the same word ing in another is not the same law. Context is everything. I could not agree more. Indeed from early days i have argued that a rule once transplanted is different in its new home Much about Legrand's approach and our disagreement is revealed by his statement (following Benjamin)that the word Brot in German means something different from the French word pain. 4 I agree, of course, but in the context of law the point is simplistic in at least two fundamental regard First, pain in French and in France is not the same as pain in French and in France. For a poor village housewife bread has not the same meaning as for the wealthy Parisian businessman. She has much less choice, is close to the source of supply, and bread plays a ery different role in the family diet. Its role in daily life is different. I need not elaborate. But the same is true for law within a single country, even within a single town The possession of cocaine is, let us imagine, illegal. That means one thing to the petty dealer who sees it as his sole hope of escaping from his ghetto, quite another to the recreational user, quite another to non criminals who live in the same street as the gangs, quite another to law enforcement officers. It is banal to notice that the same legal rule operates differently in two countries:it operates to different effect even within one Secondly, law is different from bread because in all its manifestations it is an element of the state. The state is responsible for its coming into being, for its application and for its efficacy Bread and its consumption are much more matters of personal choice. Of course, where a written statutory law is the same within two countries, its judicial interpretation may well differ because of tradition and ways of legal thinking-that, I think, is Legrand's point. But it is no rare thing for academics to notice and pass on to practitioners the nature of these differences. The very fact that the statutory rule is the same may well cause legal thinking on it in different countries to converge I think i have no need to stress that i have long held that a transplanted rule is not the same diffuse: it ranges from evidence of massive transplants that have taken place, to my disagreement with Pierre Legrand, to the role of codes in legal transplants, to surviving differences after codification for a multiplicity of jurisdictions, to the example of the USA. Not all of these topics can be best treated one after the other but are at imes intermingled ty’,p
delighted and reluctant to respond. Delighted, because a book written in 1970, published mainly to silence plus extreme disapproval, is now regarded as somehow significant. I am reluctant because I fear I will misrepresent Pierre Legrand’s views as much as he misrepresents mine. I confess that in large measure I do not comprehend what he is about. I see no substance, just big words, in his article. To begin with, I wish to state frankly that I believe his views are old-fashioned. He appears to believe that legal philosophy is the key to understanding law in society. Legal history, including comparative legal history, has little place in his scheme of things. Underlying his approach is the unspoken - yet at times almost explicit - view that law is the ‘spirit of the people’. At the very least, for him a legal rule in one country expressed in exactly the same wording in another is not the same law. Context is everything. I could not agree more. Indeed from early days I have argued that a rule once transplanted is different in its new home. I Much about Legrand’s approach and our disagreement is revealed by his statement (following Benjamin) that the word Brot in German means something different from the French word pain. 4 I agree, of course, but in the context of law the point is simplistic in at least two fundamental regards. First, pain in French and in France is not the same as pain in French and in France. For a poor village housewife ‘bread’ has not the same meaning as for the wealthy Parisian businessman. She has much less choice, is close to the source of supply, and bread plays a very different role in the family diet. Its role in daily life is different. I need not elaborate. But the same is true for law within a single country, even within a single town. The possession of cocaine is, let us imagine, illegal. That means one thing to the petty dealer who sees it as his sole hope of escaping from his ghetto, quite another to the recreational user, quite another to non criminals who live in the same street as the gangs, quite another to law enforcement officers. It is banal to notice that the same legal rule operates differently in two countries: it operates to different effect even within one. Secondly, law is different from bread because in all its manifestations it is an element of the state. The state is responsible for its coming into being, for its application and for its efficacy. Bread and its consumption are much more matters of personal choice. Of course, where a written statutory law is the same within two countries, its judicial interpretation may well differ because of tradition and ways of legal thinking - that, I think, is Legrand’s point. But it is no rare thing for academics to notice and pass on to practitioners the nature of these differences. The very fact that the statutory rule is the same may well cause legal thinking on it in different countries to converge. I think I have no need to stress that I have long held that a transplanted rule is not the same diffuse: it ranges from evidence of massive transplants that have taken place, to my disagreement with Pierre Legrand, to the role of codes in legal transplants, to surviving differences after codification for a multiplicity of jurisdictions, to the example of the USA. Not all of these topics can be best treated one after the other but are at times intermingled. 4 ‘Impossibility’, p. 117
thing as it was in its previous home. 5 Nor need I stress my long-held view that it is rules-not just statutory rules -institutions, legal concepts, and structures that are borrowed, not the spiritof a legal system. Rules, institutions, concepts, and structures might almost be termed tangibles, can easily be reduced to writing, and are accessible Next, on Pierre Legrand and his differences with me. I come to his concluding section 10 Comparative Legal Studies Otherwise.6 He has dismissed legal transplants, and this is his alternative approach. He begins The ethics of comparative analysis of law lie elsewhere. Comparative legal study is best regarded as le hermeneutic explication and mediation of different forms of legal experience within a descriptive and critical metalanguage. Because insensitivity to questions of cultural heterogeneity fails to do justice to the situated, local properties of knowledge, the comparatist must never a bolish the distance between self and other. Rather, she must allow the self to make the journey and see the other in the way he must be seen, that is, as other. The comparatist must permit the other to realize"his vision of his world Defining a legal culture or tradition for the comparatist means, therefore, finding what is significant in its] difference from others'. Comparison must not have a unifying but a multiply ing effect: it must aim to organize the diversity of discourses around different(cultural) forms and counter the tendency of the mind toward uniformization. Comparison must grasp legal cultures diacritically. Accordingly, the comparatist must emphatically rebut any attempt at the axiomatization of similarity, especially wher the institutionalization of sameness becomes so extravagant as to suggest that a finding of difference should lead her to start her research afresh! To quote Gunter Frankenberg, [a nalogies and the presumption of similarity have to be abandoned for a rigorous experience of distance and difference.I argue that comparison must involve the primary and fundamental investigation of difference. The priority of alterity must act as a goveming postulate for the comparatist. To privilege alterity at all times is the only way in which the comparatist can guard aga inst the deception otherwise suggested by the similarity of solutions to given socio-legal problems across legal cultures: the fact that the same solution(say, 6)can be reached by multiply ing two numbers (say, 3'and2)or by adding two numbers(say, 5"1')does not entail the same operands or cognitive operations. It is the case, o course, that the success of this comparative project must depend upon an initial receptivity to the otherness of the othe I confess i do not see any substance in this, or in what follows. In no way do I comprehend from it how understand ing of law is increased, whether with regard to its development or with the relationship of law and society. I wonder who would deny that the comparatist must be aware of d ifferences? but he must also be aware of the similarities and their causes Among the most important causes of similarities is borrowing or transplanting, and here, as I have often stressed, the differences are also enlightening. 7 For me the value of comparative law lies fundamentally in its capacity to explain legal developments, the relationship of law to society, and at this stage of its development-comparative law is in its infancy -the simplest way to exploit comparative law is by examining, and accounting for, similarities and differences in systems that have a historical relationship See most recently, Alan Watson, Law Out of Context, Athens, Ga, 2000, p. 1 iMpossibility, pp 123 f. 7For one example, now see Alan Watson, Society and Legal Change, Edinburgh, 1977
thing as it was in its previous home.5 Nor need I stress my long-held view that it is rules - not just statutory rules - institutions, legal concepts, and structures that are borrowed, not the ‘spirit’ of a legal system. Rules, institutions, concepts, and structures might almost be termed tangibles, can easily be reduced to writing, and are accessible. II Next, on Pierre Legrand and his differences with me. I come to his concluding section § 10, ‘Comparative Legal Studies Otherwise’.6 He has dismissed ‘legal transplants’, and this is his alternative approach. He begins: The ethics of comparative analysis of law lie elsewhere. Comparative legal study is best regarded as the hermeneutic explication and mediation of different forms of legal experience within a descriptive and critical metalanguage. Because insensitivity to questions of cultural heterogeneity fails to do justice to the situated, local properties of knowledge, the comparatist must never abolish the distance between self and other. Rather, she must allow the self to make the journey and see the o ther in the way he must be seen, that is, as other. The comparatist must permit the other to realize ‘his vision of his world’. Defining a legal culture or tradition for the comparatist means, therefore, ‘finding what is significant in [its] difference from others’. Comparison must not have a unifying but a multiplying effect: it must aim to organize the diversity of discourses around different (cultural) forms and counter the tendency of the mind toward uniformization. Comparison must grasp legal cultures diacritically. Accordingly, the comparatist must emphatically rebut any attempt at the axiomatization of similarity, especially when the institutionalization of sameness becomes so extravagant as to suggest that a finding of difference should lead her to start her research afresh! To quote Günter Frankenberg, ‘[a]nalogies and the presumption of similarity have to be abandoned for a rigorous experience of distance and difference’. I argue that comparison must involve ‘the primary and fundamental investigatio n of difference’. The priority of alterity must act as a governing postulate for the comparatist. To privilege alterity at all times is the only way in which the comparatist can guard against the deception otherwise suggested by the similarity of solutions to given socio-legal problems across legal cultures: the fact that the same solution (say, ‘6’) can be reached by multiplying two numbers (say, ‘3’ and ‘2’) or by adding two numbers (say, ‘5’ and ‘1’) does not entail the same operands or cognitive operations. It is the case, of course, that the success of this comparative project must depend upon an initial receptivity to the otherness of the other. I confess I do not see any substance in this, or in what follows. In no way do I comprehend from it how understanding of law is increased, whether with regard to its development or with the relationship of law and society. I wonder who would deny that the comparatist must be aware of differences? But he must also be aware of the similarities and their causes. Among the most important causes of similarities is borrowing or transplanting; and here, as I have often stressed, the differences are also enlightening.7 For me the value of comparative law lies fundamentally in its capacity to explain legal developments, the relationship of law to society, and at this stage of its development - comparative law is in its infancy - the simplest way to exploit comparative law is by examining, and accounting for, similarities and differences in systems that have a historical relationship. III 5See most recently, Alan Watson, Law Out of Context, Athens, Ga., 2000, p. 1. 6 ‘Impossibility’, pp. 123 f. 7For one example, now see Alan Watson, Society and Legal Change, Edinburgh, 1977
I believe I detect a subtext in Pierre Legrand's paper: he is opposed to the notion of a common civil code for the European Union. His subtext, I think, is that a common code would be a misadventure because the law would still vary from place to place The law would still vary from place to place. Still, I believe it would be reasonably easy to draft a civil code for the European Union that would provide a framework for greater uniformity of private law. 9 The lesson of comparative law is that it teaches what has been done, therefore what can be done My greatest complaint with Pierre Legrand is that he neglects comparative legal history I would like to give a few examples-the merest sketch of each will suffice -to indicate what has been achieved on a grand scale by legal transplants My first example will concern one aspect of the reception of Roman law(and of canon law)in Western Europe. Naturally with the reception and with very d ifferent conditions, the Corpus luris Civilis was much modified Still often enough, those changes were understood so much in the same way in different countries that it is possible to talk and write about ius commune, common law, that part of the law that was generally accepted in Western Europe. Indeed, a marked feature of the time specially of the 17th century, is the appearance of ed itions of, or commentaries on Justinian' s elementary textbook, the Institutes, which also give up-to-date law. To be sure. these references to modern changes tend to stress the authors own local law but the books were intended for, and had, a much wider audience I give a few instances chosen at random a) First, Natalis Chamart, Institutiones Juris Civilis Scripti, et non Scripti collectae partim ex textu Justiniani, partim ex usu Belgi, The Institutes of the Civil Law, written and unwritten, collected partly from the Text of Justinian, partly from the custom of Belgium'( Louvain, 1684). So the portions of commentary on modern law relate to the customs of Belgium. What is above all striking, and is to be found in many other works, is that the space attributed to the written, Roman, law is several times greater than that given to the unwritten,existing,local custom. More was transplanted from Roman law than was not. And even a local custom was often a transplant from another's b) The Saxon Samuel Strykius'(1674-1749)Institutionum Libri Quattuor is also garnished with notes giving the up-to-date local law. Naturally the emphasis, usually but by no means exclusively, is on the law of Saxony. Again, the discussion of local law is meager: most notes explain the text of Justinian What must be emphasized is that the book circulated far outside of Saxony indeed it is among the commonest law books of the time. For the practicing 8See Pierre Legrand, "Against a European Civil Code, 60, Modern Law Review, 1997, pp. 44 ff. This is a position that would seem attractive to many French-Canadians as to many Scots (in the past, when the idea would have been of amalgamation with English law). As with Legrand's 'impossibility,, I find no substance in 9Whether such greater uniform ity is desirable is another issue See, e.g., Alan Watson, Sources of La, Legal Change and Ambiguity, Philadelphia, 1984, pp 25
I believe I detect a subtext in Pierre Legrand’s paper: he is opposed to the notion of a common civil code for the European Union.8 His subtext, I think, is that a common code would be a misadventure because the law would still vary from place to place. The law would still vary from place to place. Still, I believe it would be reasonably easy to draft a civil code for the European Union that would provide a framework for greater uniformity of private law.9 The lesson of comparative law is that it teaches what has been done, therefore what can be done. My greatest complaint with Pierre Legrand is that he neglects comparative legal history. I would like to give a few examples - the merest sketch of each will suffice - to indicate what has been achieved on a grand scale by legal transplants. I. My first example will concern one aspect of the reception of Roman law (and of canon law) in Western Europe. Naturally with the reception and with very different conditions, the Corpus Iuris Civilis was much modified. Still often enough, those changes were understood so much in the same way in different countries that it is possible to talk and write about ius commune, ‘common law’, that part of the law that was generally accepted in Western Europe. Indeed, a marked feature of the time, especially of the 17th century, is the appearance of editions of, or commentaries on, Justinian’s elementary textbook, the Institutes, which also give up-to-date law. To be sure, these references to modern changes tend to stress the authors’ own local law, but the books were intended for, and had, a much wider audience. I give a few instances, chosen at random. a) First, Natalis Chamart, Institutiones Juris Civilis Scripti, et non Scripti collectae partim ex textu Justiniani, partim ex usu Belgii, ‘The Institutes of the Civil Law, written and unwritten, collected partly from the Text of Justinian, partly from the custom of Belgium’ (Louvain, 1684). So the portions of commentary on modern law relate to the customs of ‘Belgium’. What is above all striking, and is to be found in many other works, is that the space attributed to the written, Roman, law is several times greater than that given to the unwritten, existing, local custom. More was transplanted from Roman law than was not. And even a local custom was often a transplant from another’s law.10 b) The Saxon Samuel Strykius’ (1674-1749) Institutionum Libri Quattuor is also garnished with notes giving the up-to-date local law. Naturally the emphasis, usually but by no means exclusively, is on the law of Saxony. Again, the discussion of local law is meager: most notes explain the text of Justinian. What must be emphasized is that the book circulated far outside of Saxony: indeed it is among the commonest law books of the time. For the practicing 8See Pierre Legrand, ‘Against a European Civil Code’, 60, Modern Law Review, 1997, pp. 44 ff. This is a position that would seem attractive to many French-Canadians as to many Scots (in the past, when the idea would have been of amalgamation with English law). As with Legrand’s ‘Impossibility’, I find no substance in this article. 9Whether such greater uniformity is desirable is a nother issue. 10See, e.g., Alan Watson, Sources of Law, Legal Change and Ambiguity, Philadelphia, 1984, pp. 25 ff
lawyer outside of Saxony, the book(and others) had a particular value: it would alert him to the fact that the roman rule was not universally accepted and would provide him with an argument c) Ulrich Hubers Positiones Juris, secundum Institutiones et Pandectas(first dition, 1682) includes the modern law within the body of the text, but again the modern law occupies little space. Again, the book circulated well outside Huber's native friesland Naturally, the phenomenon is not restricted to elementary textbooks. The gre Commentarius ad Pandectas Commentary on the Digest, of Johannis Voet(first published, 1698-1704)also brings the law up to date in the body of the text, but again the commentary contains mainly roman law a very different example of transplanting can be chosen from feudal law: different because the main source of propagation was not imperial legislation as with the Corpus luis Civilis but a private work. Borrowing need not be of statute law. l1 Yet he mediaeval Libri Feudorum(Books of the Feus were in their own field as significant for legal development as Justinian's Corpus luis Civilis. They seem to ave been a private work by Obertus de Orto, a judge of the imperial court of Milan, and composed in the first half of the 12th century. The work was followed by a second and then a third version by the famous bolognese jurist, Hugolinus, in 1233 Their fame spread through Western Europe, they were glossed, and appear as an appendix to the Corpus luris, and were lectured on by the same scholars. Books on feudal law were extremely numerous: all, so far as I am aware based on the libri Feudorum. One quotation from many possibilities, by G L Boehmer(1715-1797),in Principia luris Feudalis(Gottingen )tells us a great deal: The sources of common German feudal law are the feudal law of the Lombards received throughout Germany universal German feudal customS, the common law of the empire contained in nperial sanctions, in Roman and in canon law. " Now, what are we to make of this? Pierre Legrand may protest as much as he likes, but this representative 18th century quotation-representative, I insist-indicates a strongly held belief that throughout the Empire feudal law was one and the same, even if not identical from one state to the next. The lesson must be that through transplants law becomes similar, even if not identical, in many jurisdictions: and that lawmakers rely heavily on foreign law fo their own changes, whether as legislators, judges or jurists But in this section I really want to call attention to one detail that is, in the end enlightening. The Scot, Thomas Craig, who died in 1608, wrote his lus feudal which was first published in 1655. His aim was to show the fundamental similarity of the subject in Scotland and England. Yet the book was republished in Leipzig, Saxony more than a half-century later(1716). The editor Luder Mencken, describes the work in the title page as Opus in Germania Dudum Desideratum, 'a work long longed for in Germany. In the preface he insists that the book was longed for because of its usefulness in court. Certainly, what the Saxons wanted was not the law peculiar to Scotland. But a Scottish book was valued for court practice in Saxony and elsewhere in Germany. Yet again, for Scotland, the book could be reprinted in Edinburgh in 1732. One final detail: on the title page, Mencken states that the book contains not Another example would be of william Blackstone, Commentaries on the Law of england, which were of fundamental importance in the U.S.A
lawyer outside of Saxony, the book (and others) had a particular value: it would alert him to the fact that the Roman rule was not universally accepted, and would provide him with an argument. c) Ulrich Huber’s Positiones Juris, secundum Institutiones et Pandectas (first edition, 1682) includes the modern law within the body of the text, but again the modern law occupies little space. Again, the book circulated well outside Huber’s native Friesland. Naturally, the phenomenon is not restricted to elementary textbooks. The great Commentarius ad Pandectas ‘Commentary on the Digest’, of Johannis Voet (first published, 1698-1704) also brings the law up to date in the body of the text, but again the commentary contains mainly Roman law. II. A very different example of transplanting can be chosen from feudal law: different because the main source of propagation was not imperial legislation as with the Corpus Iuris Civilis but a private work. Borrowing need not be of statute law.11 Yet the mediaeval Libri Feudorum (Books of the Feus) were in their own field as significant for legal development as Justinian’s Corpus Iuris Civilis. They seem to have been a private work by Obertus de Orto, a judge of the imperial court of Milan, and composed in the first half of the 12th century. The work was followed by a second and then a third version by the famous Bolognese jurist, Hugolinus, in 1233. Their fame spread through Western Europe, they were glossed, and appear as an appendix to the Corpus Iuris, and were lectured on by the same scholars. Books on feudal law were extremely numerous: all, so far as I am aware, based on the Libri Feudorum. One quotation from many possibilities, by G. L. Boehmer (1715-1797), in his Principia Iuris Feudalis (Göttingen) tells us a great deal: ‘The sources of common German feudal law are the feudal law of the Lombards received throughout Germany, universal German feudal customs, the common law of the empire contained in imperial sanctions, in Roman and in canon law.” Now, what are we to make of this? Pierre Legrand may protest as much as he likes, but this representative 18th century quotation - representative, I insist - indicates a strongly held belief that throughout the Empire feudal law was one and the same, even if not identical from one state to the next. The lesson must be that through transplants law becomes similar, even if not identical, in many jurisdictions: and that lawmakers rely heavily on foreign law for their own changes, whether as legislators, judges or jurists. But in this section I really want to call attention to one detail that is, in the end, enlightening. The Scot, Thomas Craig, who died in 1608, wrote his Ius Feudale which was first published in 1655. His aim was to show the fundamental similarity of the subject in Scotland and England. Yet the book was republished in Leipzig, Saxony, more than a half-century later (1716). The editor Lüder Mencken, describes the work in the title page as Opus in Germania Dudum Desideratum, ‘A work long longed for in Germany’. In the preface he insists that the book was longed for because of its usefulness in court. Certainly, what the Saxons wanted was not the law peculiar to Scotland. But a Scottish book was valued for court practice in Saxony and elsewhere in Germany. Yet again, for Scotland, the book could be reprinted in Edinburgh in 1732. One final detail: on the title page, Mencken states that the book contains ‘not 11Another example would be of William Blackstone, Commentaries on the Law of England, which were of fundamental importance in the U.S.A