临界的比较法

CRITICAL COMPARATIVE LAW

Considering Paradoxes for Legal Systems in Transition Esin ?rücü

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Contents

1. Shifting horizons: Old and new 1.1 Comparative law: An old question 1.2 Comparative law: Facing new trends

1.2.1 Comparative law: Legal theory and jurisprudence 1.2.2 Comparative law: Legal history 1.2.3 Comparative law: Culture 1.2.4 Comparative law: Economics

1.2.5 Critical comparative law: A different name or a different approach? 1.3 The link: Reciprocal influences

2. Convergence versus divergence: Must it be either-or? 2.1 The two approaches: Are they mutually exclusive? 2.2 Harmonisation or harmony?

3. Paradoxes for recipients: Modernisation and borrowing

3.1 Pool of models and possible mismatch: Which model? Which recipient? 3.2 The first paradox: Similarity and difference 3.2.1 Which to stress?

3.2.2 The value of the different

3.3 The second paradox: Can the mismatch be corrected?

3.4 The third paradox: Contemporary character of import/export 4. Intermezzo: The test bed

5. The case of English common law: Contaminated, irritated or corrected? 5.1 Past encounters abroad

5.2 The Privy Council: Unity through diversity? 5.3 Encounters at home 5.4 Present-day encounters 5.4.1 Convergence: Concepts

5.4.2 Convergence: Statutory interpretation 5.4.3 Convergence: Codification 5.4.3.1 Introduction

5.4.3.2 The Law Commission

5.4.3.3 Commercial Code 5.4.3.4 Criminal Code 5.4.3.5 Contract Code

5.4.3.6 Coexistence of common law and civil law in Codes 5.4.3.7 European Codes in the common law context

5.5 Civil law and common law: Contaminants, irritants or correctives? 6. The case of Turkey: A hyphenated legal system? 6.1 The formation

6.1.1 Turkish import and the EU 6.1.2 Internal implications

6.1.2.1 Examples of adjustment: Legislative 6.1.2.2 Examples of adjustment: Judicial 6.2 The development

6.3 The experience: Hyphenated legal system 6.3.1 Mode One: Swiss-Turkish law 6.3.1.1 In developing principles

6.3.1.2 In the unification of precedents 6.3.1.3 In dissenting opinions

6.3.2 Mode One: Turkish-Other 'source laws' 6.3.2.1 Italian-Turkish and German-Turkish law 6.3.2.2 French-Turkish law

6.3.3 Mode Two: Layered and hyphenated existence 6.4 Assessment

7. The case of Central and Eastern Europe: Choice, chance or necessity? 7.1 Systems in transition 7.2 Legal transpositions

7.3 The elements of the present experience 7.3.1 Form and content 7.3.2 Chance

7.3.3 Prestige and efficiency 7.3.4 Elites 7.3.5 Choice

7.3.6 Culture, structure and substance 7.4 Models 7.5 Assessment

8. Can comparative legal studies offer the panacea? Where do we go from here? Notes

1. Shifting horizons: Old and new

1.1 Comparative law: An old question

Modern, systematic comparative law is a child of the nineteenth century and an adolescent of the twentieth. During this period, beyond giving the comparative lawyer a 'free rein' and being regarded as 'interesting', comparative law has provided a seemingly unending pastime for comparatists and others to discuss its true meaning, historical development, dangers, virtues, scope, functions, aims and purposes, uses and misuses, and method, and this even after comparative law had been accepted as part of the undergraduate curriculum in most universities.(2) This was a sorry state of affairs. Comparative law is, dare I say it, still in a sorry state in 1999, in spite of being regarded now as indispensable and the fact that the next century may become 'the era of comparative law',(3) the time of its majority. Let alone having a decisive definition of what comparative law and comparative method is today, it seems still open to discussion whether this is indeed an independent discipline at all.(4) Comparatists have already been called upon to rethink their subject.(5) It is even suggested that 'the comparative method may have more of a future by penetrating other subjects than by trying to assert its own continued independence under the unconvincing title of comparative law'.(6) This kind of desperate view may have arisen partly from a circular and rather vague definition given by two of the most established comparatists of our time: '[T]he words suggest an intellectual activity with law as its object and comparison as its process.'(7) We well know that there is no fundamental agreement even on 'what law is'.(8)

Might one go so far as to say that, if 'historical accidents' such as the following had not taken place, there would have been no need for comparative lawyers? 'If the legal learning of the Roman Empire had not been lost in the barbarian invasions ...', 'If in England there had been no Norman conquest and consequently the centralised courts of the King had not been established ...', 'If Napoleon had not been interested in codification ...', 'If Roman Law had not been rediscovered in the twelfth century ...', 'If in every country legal science had not been nationalised in the sense of being nationally isolated ...', 'If Algeria had not been colonised by the French ...', that is, 'If \and \were \and \Yet, not only are comparatists here, but there is also a renewed and growing interest in the subject. A survey of law journals over the last ten years reveals that the number of articles on comparative law - and these are not just comparative studies of certain areas of law, but searching, creative and innovative articles looking at comparative law proper - have quadrupled.(9) Ault and Glendon's remark in 1974 that, 'if comparative law did not exist, it would have to have been invented',(10) is even more pertinent today.

A cursory reading of any well established comparative law textbook will inform the reader of the 1900 Paris Congress and of the aligning of comparatists as methodologists and social scientists, the aims and purposes of comparative law and how it relates to other branches of law. When the vast number of works making use of comparative law are read, the following objectives can be noted: academic study; law reform and policy development; a tool for research to reach a universal theory of law; the provision of perspective to students; an aid to international practice of the law; international unification and harmonisation - common core research; a gap-filling device in law courts; and an aid to world peace. These objectives are sometimes grouped as practical, sociological, political or pedagogical. The findings of comparative lawyers can indeed be utilised for any of these objectives. Whether these uses have been fully taken advantage of and whether the objectives formulated above have been realised should be open for discussion when taking stock of comparative legal studies at the end of the twentieth century. These issues must be studied

and assessed before we move into a 'new century for comparative law'.(11) However urgent this may be, it is not the aim of the present study. Neither is it the main concern of the present study to question whether the above are the prime objectives of comparative law. One might, for example, prefer to understand the prime function of comparative law to be the provision of wider access to legal knowledge, to further universal knowledge and understanding of the phenomena of law,(12) and regard comparative law primarily as the critical extraction of this legal knowledge from individual instances.

In earlier years comparative law was categorised as 'descriptive', 'applied', 'abstract or speculative'. Other categorisations in comparative law are also well known: internal/external; descriptive/dogmatic/applied/contrasting; legislative/scholarly/scientific or theoretical; formal/dogmatic/historical; comparative nomoscopy/nomothetics/nomogenetics; and, macro comparison/micro comparison. Towards the end of the twentieth century, however, a number of distinct approaches to comparative law have become prominent and have gained dominance over the others. On the one hand, these approaches may enhance the prospects of comparative law, on the other, they could swallow it and change its character.

1.2 Comparative law: Facing new trends

There are four such distinct trends worth mentioning in comparative law discourse today: comparative law and legal philosophy (comparative jurisprudence); comparative law and legal history (historical comparative law or historico-comparative perspective); comparative law and culture (comparative legal cultures and law and culture studies); and comparative law and economics.

Its advocates claim that only the combination of comparative law and legal philosophy can reach a true understanding of law. The combination of comparative law and legal history is used by the 'new ius commune' seekers and legal transplant scholars. The combination of comparative law and culture, which took the form of 'law and society studies' in the 1970s and 'law and popular culture' in the 1980s, now seeks to involve comparative law studies in order to provide a better understanding of multi-culturalism and integration. The comparative law and economics movement, very much in vogue to day, endeavours to set up competing legal systems as an alternative to harmonisation and codification to find the most efficient solutions to global problems.

1.2.1 Comparative law: Legal theory and jurisprudence

The first of these trends was initially the outcome of the search for a true meaning for comparative law attempting to establish comparative law not only as a discipline in itself, but also as 'just another term for sophisticated legal analysis'.(13) As 'a local or national science of law is a contradiction in adjecto',(14) Yntema, who equated legal research to comparative law, said in 1952, 'in this sense comparative law is another name for legal science'.(15) This is a negation of a national legal science. Thus far this trend is perfectly satisfactory. More recent comparative law literature , however, reflects a wish for a different combination. In his article 'Comparative Law

and Jurisprudence', Samuel points out that the 'anti-theory or common sense view' can 'lead to the view that comparative law is nothing more or less than a methodology',(16) and therefore suggests that 'comparative law should provide the opportunity to study the internal structures of legal knowledge'.(17) He would like to see comparative law contributing to jurisprudence by helping to 'construct a range of different \models through the institutional deconstruction and reconstruction, of case law and doctrinal analysis from a range of different legal systems'.(18) So here the legal theorist wants to employ the services of comparative law for legal theory, since comparative law 'can go far in testing each system's construction of its perceived social reality'.(19)

Others also have seen a unity between general jurisprudence and comparative law. 'The unity of general jurisprudence and comparative law consists in the unity of form and content; they are essential moments of legal knowledge, different sides of the same coin. General jurisprudence without comparative law is empty and formal; comparative law without general jurisprudence is blind and non-discriminating. General jurisprudence with comparative law is real and actual; comparative law with general jurisprudence is selective and clear sighted.'(20) Here we are told that the jurist should approach comparative law by way of legal theory and legal theory by way of comparative law. Yet, in the standard textbooks of Jurisprudence or Legal Theory,(21) there is no section marked 'Comparative Jurisprudence', though, for example, Schlesinger(22) and Monateri(23) use this term expressly.

According to Ewald, traditional comparative law has failed by paying insufficient attention to context and ignoring the context of ideas.(24) 'Comparative law, properly pursued, is an essentially philosophical activity.'(25) Ewald then talks of 'comparative jurisprudence'. After admitting that there is as yet no precise definition of 'comparative jurisprudence' he gives a tentative definition as 'the comparative study of the intellectual conceptions that underline the principal institutions of one or more foreign legal systems'. He then states that comparative jurisprudence can make two sorts of contributions to legal philosophy. It first, 'raises abstract and intrinsically philosophical questions of method' and second, 'supplies substantive information about law in foreign countries that can itself be of philosophical interest'.(26) Not only should comparative law be renamed 'comparative jurisprudence',(27) but it should become the handmaid of philosophy. This view should worry comparative lawyers considerably.

I do not agree with Samuel(28) when he attributes to Sacco the view that 'the need to justify comparison in law by an appeal to its practical use can ... verge on the ridiculous'. Sacco says, 'the use to which scientific ideas are put affects neither their definition of a science nor the validity of its conclusions'.(29) This is absolutely true; however, it does not mean that comparative law should actually have no practical use. The reason why 'those who compare legal systems are always asked about the purpose of such comparisons',(30) is not because comparative law has to justify its existence by its uses, but because the inquirers are of the 'common sense' or 'utilitarian' ilk. We as comparatists should blame ourselves if we are still at the level of seeking a justification for our subject and do not have a once-and-for-all answer to give. However, we must also consider that this may reflect on the subject we are professing. The involvement of scholars from other fields in claiming comparative law for their own use may very well strengthen suspicions that