The worries related to European integration, the reconciliation or the rapproachment of common law and civil law and that of socialist and civil law, the future of developing legal systems in transition, the problems of the recipient or importer of legal export are all tied up with the reality of reciprocal influences and thereby cross-fertilisation. These influences are not just between legal systems but also between socio-cultures and legal systems, and legal culture and legal systems. In addition, they are the significant underpinning of multiculturalism and legal pluralism.
'Critical Comparative Law' approaches systems in transition and reciprocal influences, the results of transfrontier mobility of law, primarily under four headings. The first is 'the paths that this migration follows', that is colonisation, resettlement, occupation, expansion, the interrelationship of the member states of the EU and the external relations of the EU.(60) Researchers working on the paths of migration using a system-oriented approach, are usually legal historians, political historians and European lawyers. Here the wider phenomenon is analysed and a political and historical approach is necessary. However, futuristic hypotheses are also needed. Scholarship in comparative law and legal theory grow together here.
The second heading is 'the method and specific techniques in migration', that is - as simplified - imposition, reception (voluntary borrowing), imposed reception, co-ordinated parallel development, infiltration, imitation and variations and combinations of these. An empirical case study method is essential for a true understanding of these concepts.
The third heading is 'consequences', the outcomes of such migration, that is, systems in transition and mixing, mixed jurisdictions, interrelated systems, evolving systems, continuous state, layered-law, hyphenated legal system, redesigning a state, harmonisation, unification and standardisation. Here, of particular contemporary interest are cultural pluralism and the clash of diverse cultures, legal pluralism and the consequences for the recipient legal system.
The last heading is 'the conceptual and future implications of migration', that is, redefinition of law, legal concepts, legal rules and legal system, clashes between culture and law (legal cultures in diversity, legal cultures in affinity), top-down and bottom-up explanation of law-making, law reform and legal systems in transition. The stress must be on conceptual development and redefinition assessing contemporary transfrontier mobility of legal thought and legal institutions, and the impact this has on existing institutions and concepts.(61)
The plethora of problems to be tackled seems endless. I propose to deal with some of these here. This study will now consider 'convergence versus divergence', 'paradoxes for recipients in transfrontier mobility of law' and 'models for law reform and mismatches'. To illustrate some of the points I make, the Turkish experience with the Swiss Civil Code and the English position, specifically the McGregor Contract Code will be used and reference will be made to some developments in the Central and East European systems. Finally, the question whether comparative legal studies can offer the panacea will be addressed.
2. Convergence versus divergence: Must it be either-or?
2.1 The two approaches: Are they mutually exclusive?
An important fact must be mentioned at the outset. There is a division of belief among comparatists. One belief is that only convergent or similar systems can benefit from each others' experience; hence the attempts to enlarge the catchment area of systems covered by the 'new ius commune' within the context of a wider Europe. However, in actuality, many systems in transition look at and are inspired by systems which are socio-culturally or legal culturally different from their own. How can this be explained? Can such diverse models really help?(62) What about the ensuing mismatch between model and recipient? Of course, we could rely on Watson, the guru of 'transplants'. He claims that legal rules are equally at home in many places; that, 'whatever their historical origins may have been, rules of private law can survive without any close connection to any particular people, any particular period of time or any particular place'.(63) So, it is said, in the end all will be well.
The other belief, however, is that it is only differences that teach us lessons. In this camp it is the differences that are stressed for their value in enhancing our understanding of law in society.
Schlesinger, pointing that 'to compare means to observe and to explain similarities as well as differences', says that the emphasis is sometimes on differences and at other times on similarities. He talks of periods of 'contractive', which he also calls 'contrastive', comparison with the emphasis on differences, alternating with periods of what might be called 'integrative' comparison, i.e., comparison placing the main accents on similarities.(64) Thus Schlesinger contrasts 'integrative comparative law' with 'contractive or contrastive comparative law'. His conclusion is that the future belongs to 'integrative comparative law'.(65)
Within Europe, the 'ius commune seekers' trying to integrate legal systems, are looking at a legal world which includes differents, i.e. the UK and Ireland, and interfere in this state of affairs in the name of a purpose. Is this an imposition? Does it work? In the common law world, the unity of common law is made up of similars, as far as legal systems are concerned. Now it appears, as will be seen below, that it is generally accepted that this unity will be enhanced by diversity and the Privy Council has loosened its hold on the Commonwealth jurisdictions.(66)
Zweigert and K?tz point out that Rudolf Jhering gave the conclusive answer to those who object to the foreignness of importations when he said: 'The reception of foreign legal institutions is not a matter of nationality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn't grow in his back garden.'(67) So, reduced to the common law/civil law divergence question and claims as to the futility of integration, it must be assumed that the real questions cannot be about refusing quinine, but how one takes it. With water? With another juice? In a thimble? A cup? Chewed? Swallowed whole? Thus the obstacle of mentalité must be to the structure of what is accepted and the technique of how it is accepted, rather than to the principle of the acceptance of a rule or solution on which, on the whole, there is no room for negotiation, such as in the case of
putting into practice an EU directive.
Can comparative law be seen today as an instrument of integration and is it true that 'the last thing we need is \for its own sake\Do such strong views defy the virtues of 'distinction' or 'diversity' as such?(69)
It is suggested by Ward that the 'same-ness and difference debate' dominates most of 'theoretical comparativism' with the question: 'Are we identifying difference, and cherishing it, or are we trying to suppress it, by effective same-ness?'(70) He believes that within Europe comparative law is used at present 'as a means of effecting same-ness and suppressing difference'.(71) and that comparative lawyers are not 'neutral observers' but 'powerful players'.(72) He further states that 'we assume difference, which, as good instrumental comparatists, we then try to mediate and compromise'.(73) According to Ward, there is 'a Europe of differents' that forbids meaningful comparison. He then brings two traditions to the forefront. Referring to Derrida, Ward repeats that Europe 'will continue to try to both deny difference, but in its very definition, cherish it' and therefore 'comparativism' threatens the differences that characterise post-modern society. So that, in this sense, comparative law is a threat. Referring to Kant, however, Ward suggests that 'comparativism' is in fact too inclined to identify differences, instead of bringing into focus the core-principles within every legal system, jurisprudentially every legal system being at root the same.(74) So that, in the Kantian sense, comparative law has a limited role to play. These are debates about judgment.
Differences in legal cultures can be as to sources of law, methods of legal reasoning or legal institutions. The more fundamental differences underlying these are those related to socio-cultures. It has been claimed that in the first decades of the twentieth century the differences between common law and civil law traditions were emphasised, whereas today, at least from the point of view of private law within the EU, the common elements are sought. rather than differences stressed.(75)
Three questions must be posed here. The first is: Is it true that, traditionally, comparative law has emphasised the differences in institutions, legal structures and substantive rules rather than the common-cores, that is, were divergences overstated in the past? The second question is: Can it be said that showing the similarity of some selected single rules(76) in detail, whether as to their substance or as to their function, is enough to negate the 'differences approach' and confirm the 'convergences approach'?(77) The third question is: When 'culture' and 'difference' as facts are the central concerns, should the function of comparative law be the building of bridges, that is to say, should it become 'bridging comparative law', coupled with the acceptance that legal systems and cultural systems can 'live apart together'?(78)
The claim that the grouping of legal systems or the 'legal families approach' arose from emphasising differences may be one way of looking at things, since from the point of view of the legal systems put into the same or related groups, this exercise can be presented as arising from recognising similarities. The study of legal transplants is also an indication that scholars have been looking at relationships between legal systems and detecting common features. It is not therefore
altogether true that comparative law only emphasised the differences until recently.(79) As Moccia points out, between the sixteenth to the nineteenth centuries comparative legal history, the comparative law of the time, was interested in the similarities and not the differences and it is only with rising nationalism and positivism that comparative law discourse started stressing the differences, especially between the civil law and the common law.(80)
Four points have to be made here. One is that even a cursory definition of comparative law tells us that comparative lawyers are looking both at differences and at similarities. The second is that the similarities or common cores(81) that are sought today are limited to the Western world alone. The third point is that the real help we can derive from comparative law is the insight gained by studying and analysing both differences between the similars and similarities between differents. Finally, the future lies in 'unity in diversity' rather than 'unity through uniformity and standardisation'.
'Cultural diversity' reflecting on legal systems must be appreciated since 'diversity' and 'flexibility', being related to freedom of choice, are part of democracy, the one fundamental value upheld by all in at least the Western world. Aims such as 'harmonisation, 'integration' and 'globalisation' show acceptance of the existence of differences but, nevertheless, aspire to produce sameness. Yet the distinctiveness and mutuality should also be emphasised within the concept of 'harmony'.
2.2 Harmonisation or harmony?
There is a place for divergence even in a scheme of convergence, as harmony of differents is more fruitful and beneficial to the world of legal learning than efforts to standardise.
What is the meaning of integration? Does harmony mean similarity? Is there a dichotomy between harmonisation and harmony?(82) Harmony is both an objective and an inherent characteristic of any system. Law subsumes harmonisation. The notion of harmonisation of laws in the context of comparative law is, however, obscure. Harmonisation as a concept is a process of bringing about harmony, analogous to that in music. As a method, harmonisation becomes a goal for law reform. However, harmony presupposes and preserves diversity. In the analogy to music, components retain their individuality but form a new and more complex sound. Consonance as the opposite of discord is a pleasurable combination. Harmony is a relative concept which can also include dissonance. We can achieve harmony not only by eliminating diversity but also within diversity.(83)
3. Paradoxes for recipients: Modernisation and borrowing
3.1 Pool of models and possible mismatch: Which model? Which recipient?
In our pool of models today we see Western legal systems competing to become the ones selected for foreign import. This is taking place as the Western legal systems themselves are trying to modernise and therefore themselves are not static. In this they are also reciprocally influenced by
each other. As for Central and Eastern Europe, this process of import can become an acute problem. For example, how will the Dutch model fare in Russia? Can it be claimed that a jurisdiction with a 'mixture' is a better model? Would it be more acceptable to the recipient?(84)
There can never be a tailor-made model. A degree of mismatch is inevitable. The major question remains: How do we deal with this mismatch? Can it be corrected through the 'power of the reception on the imagination and creativity' of the recipient? Are successful transplants 'transpositions' and adaptations?(85)
3.2 The first paradox: Similarity and difference
Now to some of the paradoxes of comparative law faced by a recipient.(86) Following on from the convergence versus divergence discussion, it must be pointed out that the split in belief referred to above is reflected in the first paradox. The first paradox is: How can one find it more beneficial to stress the convergences in order to convince the rule formulators of the benefits of using foreign models, on the one hand, and yet, on the other hand, feel the need to stress the divergencies or differences between legal systems to achieve the maximum from comparative legal studies, that is, increase the general understanding of law and society, the true role of comparative law? How can this paradox be resolved, especially when it appears that comparatists are divided on which of their findings they choose to highlight?
Comparison involves juxtaposing the hitherto unknown to the known, or the known to another known. Juxtaposing involved a series of actions of contrasting and comparing. The hitherto unknown may be found to be similar to the known. This similarity can be socio-cultural and legal-cultural, or legal-cultural only. If there is socio-cultural similarity but legal-cultural diversity between the two systems under review, then comparatists seek refuge in historical explanations or 'historical accidents'. In cases of similarity, the task of the comparatist is reduced to first finding the reasons for the similarity and then using them for his/her own purposes. Here it is assumed that the similar 'other' can provide a model for use in law reform or open up possibilities of harmonisation as, for example, within the context of the EU. One of the dominant trends in Europe today, as noted earlier, is to find such similarities between the legal systems to pave the way for the 'new ius commune' in stressing 'the shared heritage' of Europe (Corpus iuris Europarum). For example, in the Opinion of Advocate-General Warner we read: 'Moreover, this Court, in developing the general principles of Community law, draws on what has been termed \[and here he cites institutions from a number of such jurisdictions] ... there emerges a general principle ... What matters here, of course, is the existence of the principle, not the scope or mode of its application in the law of any particular Member State.'(87) This trend also extends to efforts to create a European Civil Code, a European Criminal Code and so on.(88)
Historian comparatists are also very active in this area. Good examples of active 'ius commune seekers' are Zimmerman, Watson, Friedman,(89) Koopmans,(90) Xavier, Levitsky and Markesinis. Together with the 'European convergence theories', there are, of course, 'global convergence' theories stressing not only a return to the 'ius commune' but issues such as legal evolution and
临界的比较法
