comparative law is not an independent subject.
When Sacco says, 'like other sciences, comparative law remains a science as long as it acquires knowledge and regardless of whether or not the knowledge is put to any further use',(31) this cannot be taken to mean that the knowledge gained should not be put to any use. If comparative law 'presupposes the existence of a plurality of legal rules and institutions, ... and studies them in order to establish to what extent they are identical or different',(32) then, there is no restriction on what is to be done with the knowledge gained on similarities and differences. In fact, this is the moment when the whole enterprise starts to get exciting. The initial thesis of the Trento group is to be fully endorsed: 'Comparative law, understood as a science, necessarily aims at the better understanding of legal data. Ulterior tasks such as the improvement of law or interpretation are worthy of the greatest consideration but nevertheless are only secondary ends of comparative research.'(33) The present writer's inaugural speech at Erasmus University Rotterdam was entitled 'Symbiosis between Comparative Law and Theory of Law',(34) but it did not deny at any point the uses to which the knowledge gained by comparative legal research can be put. To regard comparative law as intertwined with legal theory or jurisprudence is one thing, to utilise comparative legal research exclusively to test theories and see it simply as a helping hand to legal theory is another; because in that second sense, comparative law is still not a subject in itself. Ironically therefore, this approach which culminates in the school of 'comparative jurisprudence' is not in any way different to the other three trends mentioned above and to be seen below, as in them, it is the legal historians, economists and anthropologists and sociologists rather than the legal theorists who are looking for a marriage between their discipline and comparative law to avail themselves of the body of information and insight provided by comparative legal studies.(35) Between the last three trends, however, there is a further similarity, an underlying belief that systems reciprocally influence and cross-fertilise each other.
1.2.2 Comparative law: Legal history
Legal historians are looking at past legal transplants or transfrontier mobility of ideas and institutions, both in an effort to offer an understanding of and an explanation for, the development of the law and to help justify future legal development utilising law reform through the use of foreign models and, in the context of Europe, to rediscover a ius commune, old or new. However, Ibbetson points to what he calls the 'real difficulties of comparative legal historians'.(36) He notes, in reply to Zimmermann and as an anti-ius commune statement, that:
... in an ideal world, of course, comparative legal historians, if they were to do their job properly, would gain expertise in the histories of the different legal systems about which they are writing and examine the primary sources for themselves; but the world may not be ideal. This, in its turn, carries the risk that the comparative legal historian will succumb to the pressure to pick and choose those histories of foreign systems which either look most familiar or best fit in a preconceived notion of the relationship between different systems. It is a pressure which has to be resisted, unless we are completely to subvert Savigny's enterprise.(37)
Sacco talks of comparative perspective as 'historical par excellence', and says 'comparison is a
historical science concerned with what is real'.(38) The third thesis of the Trento Manifesto is: 'Comparison turns its attention to various phenomena of legal life operating in the past or the present, considers legal prepositions as historical facts including those formulated by legislators, judges and scholars, and so verifies what genuinely occurred. In this sense, comparative law is an historical science.'(39)According to Sacco, '[c]omparative law examines the way in which legal institutions are connected, diversified and transplanted from one country to another'.(40) 'Comparative law not only enables one to know domestic law better but to check hypotheses formulated in the sociological analysis of law. Comparative law thus becomes a go-between [between] legal scholarship and history, and between legal scholarship and general theory of law.'(41)
1.2.3 Comparative law: Culture
Anthropologists and sociologists are querying the kinds of complexities and problems arising from the mismatch between legal and social cultures which arose in the past and which may arise again from the legal transplants of today. There is growing and impressive literature here.
It is among scholars interested in culture that we find the majority of the so-called 'contrarian challenge' supporters. It is they who are most concerned with the clash of cultures surviving under monolithic value systems imposed by legislatures.(42) The role of comparative law in culture studies and the role of culture in comparative law studies is difficult and delicate. The 'comparative law and cultures' approach emphasises the mismatch of recipients and models, especially in one-way trajectories of mobility of law and the ensuing problems of rejection of transplanted norms, specifically values and standards. The terms layered law and hyphenated law become part of the resultant vocabulary of this approach.
Comparative law studies point, on the one hand, to the failures and weaknesses of transplants as a means of law reform and modernisation while disregarding socio-cultural diversities, by stressing unsuccessful examples, especially those related to colonial experiences. On the other hand, comparative law studies show that legal transplants are the best way of modernisation and do not cause instability in the existing legal or socio-culture, by providing examples of successful transplants where the recipient, through its own creative modernisation efforts, has used the import to its own overall benefit without alienating the socio-culture. The role of comparative law here appears to be to offer examples and explanations. What is of significance is that research encountered in this field is not always neutral but value laden.
1.2.4 Comparative law: Economics
Economists are trying to establish a blueprint by which systems can choose the most efficient solution from the pool of solutions offered by competing systems. Here there is also the hope that a new ius commune in European private law can develop through the competition of legal rules and an eventual choice of the most efficient or 'best' rule.(43) Thus the prerequisites for achieving harmony will not be necessarily similarity or regularity, but difference and diversity.
The law and economics movement seems to be in the process of establishing an 'intellectual imperialism', and we see a 'colonisation by law and economics'(44) of a number of legal disciplines. Comparative law has become the special prey for this colonist. However, as long as comparative law maintains its distinctiveness and this relationship can move beyond 'colonisation' into one of co-partners, then comparative law can only gain in popularity and be seen as indispensable for understanding the role of law in economics and of economics in law.
The comparative law and economics approach aims at building a model for an efficient legal institution and then comparing it with the actual world alternatives offered by different legal systems. It becomes important here to be able to offer explanations for the reasons and the mode of the departure.(45)
1.2.5 Critical comparative law: A different name or a new approach?
I suggest that under the title 'Critical Comparative Law' the comparative lawyer understands comparative law to be a subject in its own right, as the only reliable way of accumulating knowledge of the reality of law and then assesses the problems that may arise out of the proposed marriages discussed above, giving warning signals where need be. So with the knowledge gained, the task is to analyse fully the underlying phenomena that the three last trends are addressing, the transfrontier mobility of ideas and institutions and reciprocal influences. Most of the current concerns of comparatists on convergence versus divergence, mismatch in borrowings, problems for the importer and the exporter of legal ideas and institutions can be constructively approached under the name 'Critical Comparative Law'. This title can also be regarded as the antithesis to the term 'traditional comparative law'(46) or 'conventional comparative law'.(47) However, this choice of terminology is in no way to be construed to mean that 'Critical Comparative Law' is a branch of the Critical Legal Studies movement.
Today, comparative law in Europe is first and foremost used within the European Union and is involved in giving rise to inter-European consequences. The first task it is put to in Europe is in the 'new ius commune' studies where it is asked to facilitate integration and make a case for the success of legal transplants as the basis for convergence, whether supported or not by the 'law and economics school'. Its second task is to find ways of reconciling civil law and common law. The third and related task given to comparative legal studies concerns the creation of European Codes. A fourth and more general task is to act as a tool for construction in the courts, national and European.
In its relations with the extra-European scene Europe is interested in the function of comparative law in the export of legal ideas and institutions and aiding law reform by providing a convincing display of competing models to form a pool of models presented by Western European legal systems.
When looking at comparative law solely in the common law world, we see the same four trends mentioned above. The tasks comparative law is put to also resemble the ones we considered above. However, five further points must be mentioned here. One is the competition of the US with
European systems to sell her legal export in preference to any European model, especially in Central and Eastern European States. Another is the changing attitude of the Privy Council in Britain to legal systems and legal cultures in the Commonwealth and the unity of the common law. The third is a strong desire to keep English law intact within the EU by stressing the view that legal systems of our day should remain flexible and realistic and, therefore, uncodified. Accepting a degree of adjustment is one thing, but accepting European Codes, based predominantly on civilian concepts and legal science, is another. The fourth point is the renewed interest in research and teaching in comparative common law. Finally, and specifically in the USA, there is additional concern that comparative law has grown in the shadow of Europe and that it must develop its own agenda if it is to be taken seriously.(48) We will be looking at some of these in more detail in the section on 'The Case of English Common Law' below.
At the end of one century, poised to enter the next, comparative law must take stock of some of the most important problematic issues that arise from the above picture. The shifting and changing horizons for comparative law must be analysed through a critical stance. The problems cannot be exhaustive. Nevertheless some are more pressing than others. In this study entitled 'Critical Comparative Law', the most important role and purpose of comparative law for our day and the next century with some of the ensuing problems will be discussed.
The comparative law enterprise in the twenty-first century will be paying more attention to general, public, private and criminal comparative law as well as comparative law in the EU, comparative law in the common law world, comparative law in the Far East and reciprocal influences. The future of comparative law will be tied theoretically and practically to an enhanced legal science, convergence and integration as well as an appreciation of diversity, the use of foreign models in law reform and law and culture studies. The trends we see developing will continue to centre around the role for comparative law as a means of theory testing; new approaches to harmonisation; new receptions, mixed and mixing systems and redesigning systems; a new European ius commune; redefining legal culture; and an emphasis on regional comparative law such as European, Central and Eastern European, common law, African and Far Eastern. Many concepts and institutions are already being looked at through the spectacles of critical comparatists. Some of the recent doctoral theses display this development.(49)
Comparative law will also become even more important as an indispensable tool of construction for the European Court of Justice of the Communities and for national courts and law reform bodies.
1.3 The link: Reciprocal influences
In all this, however, reciprocal influences, even though not necessarily direct legal transplants, will dominate the twenty-first century as already alluded to above. These reciprocal influences have to be examined in ways other than those of the past, where the main emphasis has been on historical transplants.
Today, the emphasis, the consequences of these movements and the means are different. The most
prominent 'reciprocal influence' today is that which is taking place within the EU. The transplants from the Western legal traditions to the Eastern and Central European legal systems are of equal importance to comparative law scholars. The emphasis, therefore, is on the present and the future. The consequences are the birth of systems in transition and mixing systems, the blurring of the demarcation lines between the generally accepted classifications of legal families and the emergence of new clashes between legal cultures themselves or legal cultures and socio-cultures. The means are apparently voluntary reception rather than colonisation and imposition, though, of course, imposed receptions are more prominent in some instances, and in the case of Central and Eastern European legal systems, the term 'collective colonisation by the EU' is used. Nevertheless, there are distinct differences in the character of the new movements. Some of these issues will be touched upon in the three 'Cases' to be looked at below.
As Sacco claims, original innovation in law is very small and borrowing and imitation is of central importance in understanding the course of legal change.(50) Teubner, however, claims that the transplant theory needs some conceptual refinement. Apart from challenging the 'convergence theses' and 'functional equivalence', Teubner does not go down the path followed by Legrand that 'legal transplants are impossible'.(51) Neither is he supportive of Watson.(52) Instead, he claims that the conceptual refinement needed would 'allow us to analyse institutional transfer in terms different from the simple alternative context versus autonomy'.(53) Teubner puts forward four theses, that:
law's contemporary ties to society are no longer comprehensive, but are highly selective and vary from loose coupling to tight interwovenness; they are no longer connected to the totality of the social, but to diverse fragments of society; where, formerly, law was tied to society by its identity with it, ties are now established via difference; and, they no longer evolve in a joint historical development but in the conflictual interrelation of two or more independent evolutionary trajectories.(54)
Allison, on the other hand, is more suspicious of legal transplants and Watson's suppositions, and points to the need 'to consider both the present and proposed contexts of a transplant'.(55) He comes to the conclusion, in relation to English and French law and the public/private law divide, that 'because of the coherence of legal and political system, transplantation is hazardous'.(56) Obviously, there are serious dangers in ill-considered transplantations.(57)
The terminology used in classical statements of legal transplants such as transplant, reception, imposed reception, solicited imposition, crypto-reception and inoculation(58) have been superseded, and a colourful vocabulary has been created highlighting nuances in individual instances of such mobility and influence, such as grafting, implantation, repotting, cross-fertilisation, cross-pollination, engulfment, emulation, infiltration, infusion, digestion, salad bowl, melting pot and transposition, and new notions and bases for analysis are being developed such as collective colonisation, contaminants, legal irritants, layered law, hyphenated law and competition of legal systems. Some of this vocabulary(59) will be used in this study when the occasion arises.
临界的比较法
