natural law,(91) referring to a natural convergence.
It is worthwhile remembering, however, that between any two things there are always both differences and similarities, unless they are identical. In law we know that there are no identicals, since even after very successful transplants, an evolutionary dynamism emerges and systems go their own way. The incoming concepts or institutions now living in a different environment begin to change; an internal 'contamination' occurs. Two things either both belong to a previously established category, or one belongs to it and the other does not. A comparatist has to note both the similarities and the differences and try to explain the reasons for the findings. This is the most important and rewarding task of comparative law.
3.2.1 Which to stress?
As already pointed out, when comparing closely related systems it is usually more interesting to explain the differences, while in two entirely unrelated systems it is more interesting to explain the similarities.(92) Yet, it seems a matter of preference, and therefore policy, whether the comparatist highlights the differences or the similarities found. The 'ius commune seekers' agenda is to overrate the similarities and belittle the differences, not only between the civil law and the common law traditions, but especially between the civilian and post-socialist systems within the context of Europe. Some common law comparatists looking for closer ties with the continent are also of this ilk. Seeking for and stressing the similarities certainly aids further convergence and increases the chances for comparative legal studies becoming the main tool in law reform. Thus any comparatist who wishes his/her subject to play a pivotal role in the twenty-first century might want to become firmly established in this camp.
Yet, in times of animosity, insularity or 'negative nationalism', the choice lies with stressing the differences. This I find to be similar in some ways to the position of a common law court distinguishing between two sets of cases, having already made up its mind on policy grounds as to the direction it wants to take. But the era of stressing differences alone, especially differences between civil law and common law and between civil law and socialist law, seems to be ending, though the nineteenth and the twentieth centuries have seen fluctuations between one camp and the other. Now the stress is on the dichotomy between the integrated Western legal culture and the Islamic. The differences are highlighted and the similarities often ignored.(93)
If the result of the comparison is, however, that the hitherto unknown is totally different from the known, then, what can the comparatist do beyond explaining the reasons for the difference or divergence? This difference can again be both socio-cultural and legal-cultural, or socio-cultural, or legal-cultural only. When the divergence is socio-cultural and yet there is legal-cultural similarity, again it is called a historical development or the term 'historical accident' is resorted to, to explain this anomaly.(94)
In areas where law is developing fast, or new areas of law are opening up, the British courts, for example, look at other common law jurisdictions where socio- and legal-cultural affinity is deemed to exist.(95) But, even then, occasionally, one can come across cases where New Zealand
or Australia are found to be 'too progressive' or to rely on 'other philosophical and social premises'.(96) If even systems from the same legal tradition have problems when borrowing from each other, when legal systems from other traditions, such as the socialist, look at civilian or common law systems for models, are there not many more problems? These may be acute for legal systems which have never been part of the civilian tradition, such as those of Uzbekistan or Turkmenistan. What is the true function of comparative legal studies in these types of cases?
The American comparatist Hazard says that he uses comparative law to broaden the minds of his students by providing examples that shock them in their difference.(97) He surely is trying to avoid the complacency one may fall into by seeking and stressing similarities, a complacency which may dull one's intellect in the search to further the true function of legal knowledge and enhance one's understanding of legal and social cultures and their continuous interaction. Frankenberg also hopes that comparative legal studies may inspire students to learn more about and rethink the bias in their own culture and education.(98) This is not precisely the same as the 'contrarian challenge' propagated by Legrand,(99) who seems to think that because of the 'irreducible differences in mentalité', the 'summa differentia', a foreign lawyer or a comparatist is incapable of really understanding the true meaning of different legal institutions or different legal cultures.(100)
As advanced above, I do not support the view that until recently comparative lawyers have been exclusively, or mainly, interested in differences.(101) It has been stated that 'culture' and 'difference' have always been central concerns of comparative law and the first step in the conventional approach has been to divide the legal world into legal families.(102) Actually, the reverse is the case, unless one is looking at periods of total isolation of legal systems. For a very long period of time the 'convergence thesis' has prevailed, at least within the Western legal tradition, and still does today. It is only very recently that there has been debate on valuing 'unity or harmony in diversity'. Divergences as to socio-culture and legal culture must be understood and appreciated, and they must live in harmony.(103) The conspectus is that what to stress may be a matter of policy or choice, but this does not change the fact that both differences and similarities, divergences and convergences are here, and are here to stay.
3.2.2 The value of the different
Comparative legal studies would itself benefit and therefore benefit scholars looking at the outcome of comparative legal research if it were to interest itself seriously in searching for and explaining divergencies, especially between the similars.(104) This, however, should not be done with the 'negative' attitude of stressing 'irreducible differences in mentalité' or 'summa differentia' within the context of a 'contrarian challenge'. It should be done with a constructive attitude in order to develop further a 'critical comparative law'. The findings of such research would enhance our understanding of law and legal and social cultures. Though the word 'comparable' in many languages is often used to mean 'approximately similar' and 'not too different', a comparatist surely means by 'comparable', that it would be meaningful or possible to compare.(105) Thus to accept comparability is not the same as accepting similarity, since a comparison can demonstrate great fundamental differences.(106)
Puchalska-Tych and Salter(107) complain that comparative legal studies have failed to develop an understanding of the legal cultures of Eastern Europe and point to the need for a 'dialectical analysis'. They claim that the mainstream literature comparing 'socialist legal culture' with Western cultures usually takes a formalistic, unreflexive type of positivistic standpoint, reductionist in its operation, involving a process of uncritical description. This they condemn. A second and more contextually oriented tendency, they claim, is to instrumentalise sociological realities by adopting an unrefined functionalist type of analysis. This too they condemn as a top-down form of analysis that remains essentially 'a priori' in nature. They further claim that both approaches are incapable of transcending the failure of reductionism. These authors believe that living legal culture reflects the evolution of society effected by social interaction. However, they agree that as an alternative to the positivist and functionalist approaches, a third tendency is emerging, a reflexive trend in comparative law, such as in the works of Bell, Butler and Legrand.(108) Reductionism loses sight of cultural diversity, distinctiveness and complexity. The new trend is a reflexive countertradition of comparative scholarship. Without going into its details, I cite here the steps in this approach: analysing internal contradictions, cultural mediation, social constructivism, phenomenological exposition, methodological reflectivity and immanent critique.(109) It is a truism that this reflexive countertradition is essential in the comparison of any 'differents'.
3.3 The second paradox: Can the mismatch be corrected?
This leads us to a second paradox. This paradox centres around how to correct the mismatch between models and recipients. Many states in transition, poised for law reform and modernisation, look for models from other states which are socio-culturally and/or legal-culturally diverse from their own. Can such models really help? If we find problems even when a common law system borrows from a civilian model or vice versa, are there not even more problems when legal systems from more diverse traditions such as the socialist, look at civilian or common law systems? As stated earlier, this must be of acute concern for legal systems which have never been part of the civilian tradition or the 'ius commune', such as those of Albania, Bulgaria, Uzbekistan(110) (see the discussion of formal and substantive in the article on Uzbek in French) or Tajikistan. How are they to deal with the ensuing mismatch between the model and the recipient? Consider, for example, the US Uniform Commercial Code in Uzbekistan, or the German Code of Bankruptcy in the Kyrgyzstan. These issues are, of course, general problems of comparative law, but they are of particular interest to the East European and the ex-USSR legal and social systems, which are at the receiving end of movements from the civilian and the common law models while trying to reshape their societies and their law. What is the role of comparative law and the extent of this role in the development of new or changing legal and social systems? Can comparative legal studies unravel this paradox? If yes, how?(111)
It must be remembered, of course, that not all advocates of modernisation see it as relying on foreign models, thus, comparative legal research. For example, Kulcsár(112) not only doubts the value of comparisons between societies as diverse as Ethiopia and Hungary, but also says: 'I see the most important characteristic of modernity in whether a society is capable of continuous social change by utilising its own, internal conditions.'(113) So, we can say that competing visions of
modernity are on offer for the States of Central and Eastern European Region, ranging from emulating the West in the construction of a modern, market-oriented society to altogether different visions. This Region offers unparalleled opportunities for comparatists as a laboratory for the testing of socio-legal hypotheses about the use of law in effecting social transition, as pointed out by Pogany in his review of Kulcsár's book.
History tells us that when there is a mismatch between model and recipient, the result is usually a 'mixed jurisdiction', a 'mixed jurisdiction' in the classical sense being the outcome of an encounter between legal systems of diverse socio- and/or legal cultures.(114) In the resultant legal system, the diverse elements coexist. Any intermingling that might take place depends on a number of factors. It may be that there is no socio-cultural diversity but only a legal-cultural one, so that in time the diverse elements are blended, or one of the elements becomes the dominant element because of political factors, or again, from the very beginning one of the elements may be systematically erased by the use of the authority of power in its various forms.
So, problems arise as a consequence of the transfrontier mobility of law and create paradoxes for the recipient legal and social systems. Systems in this situation are either evolving and in transition, are interrelated or become mixed systems. The special issues are problems of divergence and convergence between both legal systems and social systems. Particular attention must be paid to legal-cultural convergence, which may come about as a result of import and the ensuing socio-cultural divergence. As stated earlier, in this context cultural pluralism and the clash of diverse cultures and the consequences for the importing legal system are of particular contemporary interest. Legal pluralism is another significant concern.
A serious question to be asked here is: 'Is legal integration helped or hindered by the harmony or discord of the systems of law of the component legal systems?'(115) Will there be syncopation and thereby harmony, though not integration? Will this do? Are these systems, apart from being regarded as comparatists' laboratories, the ideal systems of the future, as was claimed to be the position of Scots law by Levy-Ullmann?(116) Is it essential for the recipient to understand the social, political and cultural background of the model? Watson's view is that one need not know much about the background of either the donor or the recipient, one just has to find an 'idea' capable of importation.(117) At the level of ideas this may be so, but can one expand this view to cover the entirety of a component coming into the recipient, especially from a socio-culturally divergent background? Do we need to understand at least the background of this component?
What actually happens in such movements, however, is often not a matter of choice but a matter of chance, if not necessity and urgency. The Eastern European systems, some poised to join the EU, must somehow prepare themselves to undergo change in 'the desired direction', this desire not necessarily being one of the bottom but of the top, the elite, in any of its connotations, and of outside forces. As Burrows points out:
It is undoubtedly true that the countries of Central and Eastern Europe desire to participate in the Community framework. In order to do so, they have shown themselves to be willing to change their laws to adapt to the demands of the Community. In doing so they are undergoing a major
reception of laws in order to allow the development of their economies. In truth, they have no choice in this matter. The European Agreements were negotiated between parties of unequal power and influence. ... Whether this can be termed a 'voluntary reception' depends on the level of subordination perceived by the Eastern European partners. ... On the surface it appears that there is a voluntary reception of Community law in states which are not parties to the Community Treaty regime. However, it is clear that Community law is not negotiable. It is a take it or leave it choice for would-be partners.(118)
Moving further afield matters can become even more complicated. As pointed out by Grossfeld, as soon as we leave the European legal area for Africa or Asia, a whole Pandora's box of problems opens up.(119)
The second paradox will remain the paradox of the twenty-first century. This paradox has a number of conceptual and future implications. As already pointed out, the redefinition of law, legal concepts, legal rules and legal system; clashes between culture and law; surmounting the problems created by diversity and affinity; top-down and bottom-up explanation of law-making; law reform; new definitions of modernisation or modernity; legal systems in transition and legal pluralism, are among the topics for discussion. A whole new world of research possibilities is opening up as newly emerging democracies look to the pool of competing models available in Western Europe and America with the purpose of redesigning and modernising their legal, economic and social systems. There will be valuable export, the models competing to sell their legal products in order to put a foot in the door of the new markets. For example, there will be ample scope to study the impact of the new Dutch Civil Code, which is already becoming a valuable export product.(120) The success or otherwise of these new mixing systems, both overt and covert, may help in finding an answer to the second paradox.
3.4 The third paradox: Contemporary character of import/export
A third paradox lies in the characteristics of the current import and export of legal ideas and institutions. Today, one of the major differences from the previous periods of receptions is that the exporter is now in the market packaging his model as the most efficient, the one to be preferred over others. It is both a buyers' and a sellers' market. It is a buyers' market since there is such a number of models to choose from. It is a sellers' market since for the importers there is no real choice or freedom to go down any particular path, as market forces tie them to certain of the models only. Those that want to join the EU, for example, cannot but follow Community models, replicate the directives and so on.
The other difference from the past is that, although this is not a period of imposition, as we no longer encounter colonial relationships, neither is it one of voluntary reception. The time is one of imposed reception, that is, a voluntary activity of import under circumstances where exporters hold all the cards.
The last difference is that there is still a tendency to assess the whole process from the point of view of the exporter rather than the importer, though the process appears to involve the importers
临界的比较法
