TY - JOUR
AU - Somma,, Alessandro
AB - Abstract Comparatists in the social sciences are supposed to analyze social phenomena from a static point of view, with no interest in their dynamic aspects. However, this is not true for comparative lawyers, since they are committed to analyzing legal change, which necessarily enhances aspects like the circulation of legal models as well as their transformation due to the variation of the space-time coordinates. The dynamic aspects are of such importance for comparatists that the building of legal families, reflecting a static approach to comparative law, is increasingly questioned in its foundations and capability to detect decisive similarities and differences between legal systems: the evolution within the common law–civil law divide and its connection with the ruling of the economic order. The building of legal families will not be removed from the comparative lawyer agenda, at least in recognition of its didactic function. However, comparative lawyers are increasingly aware of the ideological value of taxonomies and increasingly convinced about the necessity to replace them with genealogies. Introduction If we were to follow what historians say when they talk about the comparative method, we would have to conclude that such a method is quite inadequate in analyzing legal change, in other words, in explaining the causes that led the law to change. The horizon of the comparative method is said to be limited: the discipline aims to detect similarities and differences between the objects it observes, thus adopting a merely static point of view. On the contrary, the perspective of advocates of the “history of relations” or the “history of transfers,” as distinct from comparative history, is said to be different. In that perspective, what really matters is the dynamic dimension of the nature and modalities of exchange between contexts, while the question of similarities and differences is downplayed or straight out abandoned.1 The comparative method is also criticized by advocates of global history, an approach that emerged at the end of the past century and meant to overcome the alleged limits of world history, i.e., its Eurocentric or ethnocentric approach. Global history is also world history, yet it abandons the center–periphery approach, and instead observes the interconnections between human communities rather than civilizations. That’s why some advocates of global history choose to neglect the comparative method, regarded as an instrument for creating classifications or even rankings. Various legal historians have more recently endeavored to combine global and legal history with the view to writing a global legal history. Their task is to overcome the ethnocentric perspective, particularly widespread in a period when both legal history and comparative law served the purpose of advancing European unification processes by providing them with a sort of common cultural foundation. The angle of global history causes a paradigm shift instead, as it dynamically focuses on the normative flows underlying different legal experiences. This would pose a threat to the comparative method, inexorably rooted in static methodologies and classification criteria, which make it unfit to analyze those flows.2 Yet, on a closer look, the scope of the comparative method is not limited to the static analysis of legal phenomena. On the contrary, comparative lawyers regard the study of legal change as a central, if not fundamental, part of their task of classifying legal systems that are all characterized by the many events linked to the diffusion of legal concepts and cultures. This being said, one should admit that systemology can only look at legal phenomena through a lens that has a tendency to distort its view of the dynamics of those phenomena, while a radical reassessment of the classificatory framework is necessary to overcome the static approach. Hence, legal history encourages comparative lawyers to rethink the foundations of their knowledge and to reflect upon ways in which those can be updated. I. The Politics of Legal Systemology One of the main functions usually attributed to comparative lawyers consists in reducing the complexity generated by the coexistence of many national legal orders. Some go as far as suggesting that precisely this function allows the comparative method to be upgraded to the status of “science”: only systemology is capable of giving coherence to an amount of information that would otherwise appear as a messy cluster rather than a science.3 For most scholars, nonetheless, its function is merely practical: the comparative law discourse could not unfold without resorting to systemology, either for didactical purposes or as a framework within which micro-comparative research can be carried out. At any rate, modern comparative law has established itself as a science whose main objective is to map legal systems on the basis of some shared features.4 All proposed classifications have geopolitical significance, since they ultimately concern power relations between political entities: relations based on the mere fact of belonging to different groups, as well as relations between components of the same group. For instance, the taxonomy proposed by Adhémar Esmein at the beginning of the last century was aimed at consolidating the pre-World War I balance between nation-states—it distinguished between Latin, Germanic, Anglo-Saxon, Slavic, and Muslim groupings,5 which corresponded to the areas of influence of the French Third Republic, Victorian England, the German Reich, Tsarist Russia, and the Ottoman Empire, respectively. Conversely, the taxonomy proposed by René David at the end of World War II aimed at emphasizing the legal orders of the Western World grounded in the moral principles of Christianity, the social and political principles of liberal democracy, and in a capitalist economic structure. In that context, French law was given a preferential status, as it would have otherwise been squeezed in between Soviet and Western law—with the latter being obviously epitomized by the U.S. common law.6 This model was later put into question by Konrad Zweigert and Hein Kötz who, in the early 1970s, undertook the effort to make more room for German law, now detached from French law, and to propose it as representative of the civil law family.7 Of particular interest are the classifications proposed after the end of the Cold War, when a narrative about the “end of history” emerged, suggesting that the neoliberal orthodoxy had become the exclusive and indisputable frame of reference for public policies.8 This marked the definitive decline of what had been termed “Keynesian compromise”—a kind of virtuous cycle triggered by workers’ bargaining power that led to increased salaries, which in turn boosted consumption, and hence resulted again in an increase in employment and workers’ bargaining power.9 This model presupposed forms of public control over the circulation of the factors of production and in particular of capitals: when capital is allowed to circulate without restrictions, states have to attract it by driving down salaries and corporate taxes, hampering the self-reproduction of the Keynesian compromise. Yet, this was precisely the goal of the neoliberal orthodoxy, rooted in the belief that the marketplace is the best device for wealth redistribution.10 Consequently, social inclusion coincides with inclusion in the market, while public powers must remedy market failures. This has remarkable implications for the relationship between the common law and civil law, as the former is the foundation of neoliberalism, while the latter represents the frame of reference for more incisive public interventions; this point will be discussed in greater depth in the following pages. In the past, it was commonly held that the common law was less developed than civil law from the legal dogmatic point of view, though the opposite conclusion had to be reached if one considered the level of economic development and the standard of living instead.11 However, the view became widespread that “the rules of the game in a society” should be evaluated in light of their overall impact on the “quality of the economic institutions.”12 This resulted in a veritable clash between the two poles of the Western legal tradition: French law, in particular, became the target of attacks from those who attempted to demonstrate the efficiency of the common law as opposed to the alleged inefficiency of the civil law, as clearly emerges from the Doing Business reports of the World Bank.13 II. The Common Law–Civil Law Divide and the Spread of Neoliberalism On a closer look, the taxonomies proposed by comparative lawyers do not show traces of the abovementioned developments. It has been common practice to attempt to downplay the common law–civil law divide, thought to have been artificially exaggerated for far too long. Nevertheless, such attempts have mostly aimed at updating the allegedly worn-out canvas of the differences and similarities between the two poles of Western law, rather than reflecting on the consequences of the clash between the two sides: the rising success of the neoliberal orthodoxy at the expense of the Keynesian compromise. Taxonomies based on the distinction between the two poles of the Western legal tradition are adopted mostly by private comparative lawyers: those frameworks lead us to focus on the sources of law and by consequence on the role of codification. It is then necessary to check whether a different sensibility to the spread of the neoliberal orthodoxy can be found in the categories privileged by public comparative lawyers. In that context, a critique of the categories solely rooted in the evolution of private law clearly emerges. That approach reflects the old-fashioned belief that private law would be the “real” law, while public and, in particular, constitutional law would be more akin to politics or sociology. However, this view does not pay attention to the fact that even private law doctrines might be employed, for instance, within a democratic or an authoritarian system.14 Other authors point out that, only by overcoming the private law bias will it be possible to see the emergence of a “Western European Legal Tradition,” particularly noticeable in the events usually investigated by public lawyers: the development of a liberal constitutionalism of rights, derived from the political doctrine according to which (continental) sovereignty is limited by (Anglo-American) rights.15 In the same vein, it has been suggested that a “Western conception of legality” has developed over the years, characterized by values such as political representation and economic freedom which further challenges the explanatory capacity of the common law–civil law divide. This would have been consolidated through a “democratization wave,” to quote the U.S. political scientist Samuel Huntington, which led to an “at least formal harmonization of large part of the legal orders following the demo-liberal model.”16 If that is true, then comparative public lawyers also contribute to obfuscating the way in which the neoliberal orthodoxy spreads across Europe and beyond. In fact, Samuel Huntington coined the term “the third wave” to refer to the democratization wave that started in Portugal with the Carnation Revolution and spread across the globe until the fall of the socialist bloc—a time frame within which more than sixty countries ultimately defeated or overcame authoritarian or totalitarian regimes.17 With the Portuguese as well as the Greek and Spanish cases in mind, the U.S. political scientist mentioned the role played by European integration in encouraging democracy. In doing so, however, he provided a manipulated reconstruction of the events. Finally freed from fascism, South European countries promptly started negotiating accession to the European Community, despite the many problems deriving from the dissimilar ways of conceiving the reaction against fascism. In fact, European institutions aimed at consolidating the regained political democracy within a free market system, while the aspiring new member states intended to also promote economic democracy, i.e., a market order meant not only to guarantee the mechanism of competition but also to encourage the emancipation of the citizen, if necessary, against competition.18 This explains the reaction of European institutions, formally manifested as a concern for the economic conditions of the countries aiming at membership in the Union and suffering from high unemployment, balance-of-payments disequilibria, and low industrialization—considered to be the result of policies not in line with the principles laid down in the EU Treaties.19 This was particularly the case of Portugal, whose constitution has its roots in a period still conditioned by the revolutionary events that led to the defeat of fascism. The Greek and Spanish constitutions also envisaged economic democracy in a way incompatible with the neoliberal orthodoxy. Those charters promoted substantive equality, hence assigning public powers the task of removing economic and social obstacles that would hinder equality: outside the marketplace through the instruments of the welfare state, but also within the marketplace by way of attribution of legal power in order to contrast social vulnerability.20 Unsurprisingly, the above-described model came under fire particularly in Portugal, which was the target of corrective interventions by the International Monetary Fund (IMF). The IMF obtained a sort of mandate from the European institutions to reform the Portuguese economic order through the well-known mechanism of conditional financial assistance.21 All this was performed with remarkable neoliberal fervor,22 to such an extent that some commentators regard the intervention in Portugal as the testing ground for the so-called Washington Consensus23—a series of structural reforms, initially designed for Latin America, meant to cure the public debt problems of the affected countries through their unconditional acceptance of the neoliberal paradigm. The description of these developments helps to show that, while they employ constitutional history to elaborate taxonomies alternative to those usually adopted in private law, comparative public lawyers end up reproducing the same shortcomings they discovered and rightly criticized in the field of comparative private law. In other words, comparative public lawyers, too, resort to categories that downplay significant differences between legal orders, and in particular those highlighting the ongoing struggle concerning the nature of the economic order in the Western World. It is indisputable that, if we shift our attention away from the question of legal sources, the common law–civil law divide is not a useful tool to increase comparative knowledge. The same applies to the studies of liberal democracies, which, in the view of some authors, show “transversal similarities” that marginalize and obfuscate more radical differences.24 If one emphasizes the different ways in which common law and civil law systems typically regulate the economic order, one can find significant differences from the viewpoint of comparative public law, starting with the one concerning the way in which the state steers economic activities, both through indirect interventions that reproduce competitive market dynamics, and through direct interventions that amount to economic planning.25 In this context, one can clearly see an evolution within public policies, which have abandoned those redistributive tasks opposed by neoliberalism up to the point in which it has become impossible to conceive alternatives.26 There are nonetheless other aspects of the common law–civil law divide that seem particularly relevant for redefining the role of public powers from a neoliberal point of view. Suffice it to mention the issue of fundamental rights, whose development is still often described as an incremental process, for instance in the scholarship that regards the recognition of social rights as the culmination of an evolution initiated with the recognition of civil and political rights.27 It is argued that such an evolution characterizes also the European Union, initially involved in the promotion freedoms that are functional to the creation of the Single Market, but later attempted to develop a clearer social dimension, as supposedly shown by the Charter of Fundamental Rights of the European Union.28 One can, however, dispute the correctness of this interpretation, incidentally also consistent with the suggestion that the divide between the two poles of the Western legal tradition would be unimportant. The Charter of Fundamental Rights of the European Union does not include a principle of substantive equality (Article 20), and thus disregards the public duty to remove obstacles to equality, both outside the marketplace—through the instruments of the welfare state—and within it through remedies aimed at counterbalancing social vulnerability.29 We are witnessing the acclamation of the principle of equality as enunciated by the liberal tradition, neglecting its later developments in light of economic democracy and the Keynesian compromise. Consistent with this, the Charter itself does not speak of social rights, or rather mentions them just in order to place them in a subordinate position vis-à-vis civil rights: one of its norms imposes a duty to “respect” rights, and merely to “observe” principles (Article 51), while the travaux préparatoires confirm that the principles are those relating to social rights—different from other rights in that they might require a legislative or executive order to be implemented.30 This, on the one hand, clashes with the concept of non-divisibility of fundamental rights and, on the other, subordinates the implementation of social rights to economic and budgetary constraints, as if they were the only rights that have a cost.31 Even if we were to provide evidence for a different European attitude to fundamental rights,32 we would have to agree with the most attentive scholars of comparative public law, who point out that the Treaties have not yet completed the transition “from the homo oeconomicus to the real person with their multitude of needs and desires.”33 Against this background, the Charter of Fundamental Rights clearly devotes more attention to the freedom demands of a flexible subject.34 III. Systemolgy and Legal Change: The Spread of Prototypes It is now crucial to consider how to develop a comparative discourse that is capable of shedding light on the ongoing clash provoked by the spread of neoliberal orthodoxy. For that purpose, we will have to rely on the insights offered by global legal history. It is necessary to acknowledge that “the actual legal world is more a world of contaminations than a world split into different families.”35 It is thus a world that cannot be easily described by resorting to traditional taxonomies and conceptual frameworks based on the concept of diffusion, at least because it would otherwise become problematic to expose the political dimension of the dynamics leading to that legal diffusion. This is notably shown by the famous idea of legal transplants, based on the belief that these are fully controlled by legal scholars.36 There is more. Theories of legal change do not traditionally aim at replacing taxonomies—they interact with each other, since the classification of legal systems is made through the selection of those characteristics that are less likely to be influenced by the passage of time. Instead, we now have to investigate whether it is possible to elaborate alternative comparative discourses based on the circulation of models, abandoning those inherited from the classifications of legal systems. For instance, we could start by selecting examples of prototypes37 or possibly ideal models relating to significant aspects of legal experiences, and subsequently reconstruct the dynamics of their diffusion and hybridization.38 The outcome would be a kind of genealogy of the transformations experienced by legal orders as a result of the circulation of legal models,39 possibly to be presented in the form of an atlas—a genre that has already been usefully exploited by comparative lawyers.40 I will try to adhere to this agenda in order to propose a comparative discourse that focuses on the spread of the neoliberal orthodoxy and the struggles resulting from the restructuring of the economic order. The focus will lie on the U.S. and German experiences: the former being the main guarantor of that orthodoxy, the latter the cradle of an economic order considered for several reasons to be the opposite of the other. I will subsequently analyze the extent to which the two experiences are converging towards the neoliberal mode of conceiving the economic order, creating winners and losers.41 We will finally deal with the modalities through which the forces behind the diffusion of and the clash between the abovementioned models can be exposed. The Conclusion will reflect upon the benefits of an approach that departs from taxonomies, but also on the risks of that move and of the tendency to view genealogy as a pure alternative to classifications more generally. IV. Capitalism Against Capitalism As mentioned above, comparative public lawyers attribute less relevance to the common law–civil law divide than do comparative private lawyers. Nonetheless, both downplay that distinction by employing classificatory models that more or less consciously contribute to the spread of the neoliberal orthodoxy. When, on the contrary, they emphasize the distinction, they do so in order to achieve that same result. We therefore have to verify whether this state of affairs is due to the use of traditional taxonomies or whether it can be changed by adhering to the abovementioned agenda—by selecting prototypes and ideal models capable of highlighting significant events to be later investigated in order to trace a sort of genealogy of their diffusion. For present purposes, the significant events are those relating to the spread of neoliberal orthodoxy and the resulting clash with alternative conceptions of the economic order, with particular reference to those associated with the Keynesian compromise. This explains my choice as the frame of reference of two instances that exemplify the available options, not by coincidence identified at the time of the defeat of socialism and the beginning of the successful expansion of neoliberal models: “neo-American capitalism,” as encountered in the U.S. context, and “Rhine capitalism,” as realized in particular in Germany.42 Neo-American capitalism shows confidence in the self-regulatory capacity of the market, an expression of a conflictual view of social relations and of their interpretation as predominantly economic relations. This view obviously interests the theory of the firm: this is meant to maximize shareholders’ value, while the stock market becomes the main instrument of corporate finance, and the relationships between employer and employees are conceived as normal market relations—predominantly flexible and uncertain. Typical of neo-American capitalism is also the idea that the state and social security are conductive to inactivity and hence lack of productivity, or that they represent some kind of negative side effect of modernity. For these reasons, this model calls for a reduced tax burden for redistributive purposes, while it allocates social security to the market itself and, as far as possible, removes the restrictions to the commodification of public goods, such as health and education. Rhine capitalism stands in contrast to that model, in that, first of all, it proposes a view of the firm as a complex community requiring harmony, similar to the whole social community, and therefore governed by an extensive network of neo-corporative structures. This is the reason why Rhine capitalism is typically characterized by an organization of labor based on stable and permanent contractual relations and, more importantly, why it is not subordinate to the overall goal of maximizing shareholders’ value. A further characteristic of the model is represented by the cooperative resolution of disputes between employers and employees, as well as the so-called codetermination model, which allows for the participation of the employees in the management of the firm (Mitbestimmung): shareholders are not the corporate masters, as decisions involving the firm are made with the possible involvement of all parties, including the social community in which the corporation operates. This is incentivized by the fact that banks operate as the main channel of financing for corporations, so that they can maximize the requests of the social community within the management board. Finally, cooperation—along with social harmony in general—is encouraged by the particular extent of public services and social security in the model of Rhine capitalism. This is characterized by considerable spending on pensions and health, financed by a comparably high level of taxation, as well as by a reduced level of commodification of those public goods necessary to respect social rights.43 Probably as a consequence of the abovementioned “end of history,” many commentators have forecast a long-term convergence towards one sole form of capitalism comprising elements of both the described models. The scholar who coined the terms “neo-American capitalism” and “Rhine capitalism” has nonetheless brought evidence of a massive “Americanization” of the latter, as shown, in particular, by two phenomena: the increased reliance on the stock market as the main instrument of corporate finance and the development of a mechanism of shareholder control over directors. The same scholar then wondered whether this marked the definitive victory of the neo-American model, or whether a more balanced convergence between the two models could be detected, as the reforms adopted in the United States during the presidency of Bill Clinton and the comparable events in Germany under Chancellor Gerhard Schröder would seem to suggest.44 The German Chancellor reduced government spending on welfare and made labor more flexible, while in the homeland of neo-American capitalism the government was given more incisive powers to pursue redistributive policies. These considerations relating to public policies under Schröder are undoubtedly correct, in particular if one considers a later time frame than the one held in mind by the theorists of the convergence between forms of capitalism. In that period, the most characteristic reforms—named after Peter Hartz, the president of the commission that conceived them—were outlined. Those reforms had a limited impact on the stability of labor relations typical of Rhine capitalism; however, they led to a remarkable reduction in labor costs as well as to a downsizing of the welfare state. By doing so, the reforms significantly undermined the overall stability of Rhine capitalism—incompatible with the free movement of capital demanded by the neoliberal orthodoxy. In such a context, it is necessary to lower labor costs and taxes in order to attract investments, thus hindering the state’s capacity to actively promote redistributive policies.45 From this viewpoint, the second reform (Hartz II) is particularly significant. The reform incentivized so-called marginal employment (geringfügige Beschäftigung): commonly referred to as minijobs, remunerated up to €400 per month (later raised to €450) or midijobs, remunerated up to €800 (later raised to €850). Even more relevant is the fourth reform (Hartz IV) concerning social security. Three forms of solidarity interventions existed in that area: (1) unemployment benefit, based on lost income and granted for thirty-two months (Arbeitslosengeld); (2) unemployment assistance, also based on lost income but granted for an unlimited period of time (Arbeitslosenhilfe); and (3) social assistance, essentially universal, allowing everyone to lead a life corresponding to human dignity (Sozialhilfe). The reform, on the one hand, reduced to twelve the number of months for which unemployment benefit is paid; on the other hand, it merged unemployment and social assistance (Arbeitslosengeld II). In so doing, it eliminated any reference to lost income; the amount of the allowance now depends on an assessment of “ordinary needs” (Regelbedarf), to be calculated on a statistical basis taking into account the composition and the characteristics of the household.46 There is more. As said, public powers were requested to enhance salary moderation by encouraging competition among workers. That is why one of the aims of the reforms was to increase labor supply by turning the welfare state into a trigger, thus linking its allowances to the positive behavior of citizens. This was done by requiring that the beneficiaries of unemployment assistance, including “marginal workers” who receive salaries beyond the existential minimum, conclude an authentic public law contract whereby which they undertake to maximize their own capacity to generate income. Consequently, they cannot refuse “reasonable work” (zumutbare Arbeit) offers, even if the work is of “low quality” in relation to their educational level, or “less advantageous” than their previous employment. The violation of that obligation is sanctioned, as a contractual breach, with the reduction or even suspension of the allowance.47 Speaking of labor in the German context, it is useful to mention another relevant transformation directly linked to the European level. The abovementioned model of codetermination traditionally promotes cooperative capital–labor relations, which represents one of the most typical features of Rhine capitalism. Yet, because of the principle of free movement of legal persons, it was established at the European level that the seat of companies is the location indicated in their bylaws.48 This does not lead to particular effects on consumer or labor law, since EU law includes substantive criteria to identify the law applicable to consumer and employment contracts.49 It has, however, consequences for industrial relations and in particular for the governance model of codetermination, since this pertains to corporate law rather than labor law. The result is that this model can be opted-out simply by incorporating the company in another country, even if one’s intention is to circumvent the application of one’s national law. This is now increasingly the case, with consequences that are hard to foresee at the moment but are nonetheless likely to be disruptive of the German social model.50 We can now move on to consider the U.S. context. According to what theorists of the convergence of capitalist models claim, this would mean abandoning some of the features of the neo-American model and adopting those of Rhine capitalism, in particular in what concerns welfare policies, as exemplified by the well-known “Obamacare” health reform. At the same time, scholars have suggested that the United States is moving towards a model of so-called new state capitalism, which can already be found in the BRICS (Brazil, Russia, India, China, and South Africa). New state capitalism is said to differ from old capitalism in that it is free from old ideological biases, and thus able to operate in a more differentiated way, depending on the particular contexts.51 Its power would lie precisely in its ability to accept, on the one hand, the idea of state intervention and, on the other hand, to exploit the institutions of the free market so as to operate in a globalized arena refusing the typical self-containment of state capitalism.52 From this viewpoint, the reactions to the financial and economic crisis started in 2007 are paradigmatic. Those reactions clearly do not fit the refusal of public interventions as propagandized by the neoliberal ideology, yet they have been proposed both by the Republican presidency of George W. Bush and later by the Democratic presidency of Barack Obama. This is evidenced in particular by the program aimed at purchasing toxic assets from financial institutions (the Troubled Assets Relief Program), envisaged by the then-Secretary of Treasury Henry Paulson. The program established that, in consideration for the purchase, the state would obtain preferred shares, becoming entrepreneurial.53 Something similar happened with the restructuring of the automobile industry, which benefited from resources derived from the fund established by the Automotive Industry Financing Program.54 On a closer look, while they might seem to suggest the emergence of a new form of state capitalism, the abovementioned reforms do not point to a clear departure from the neoliberal orthodoxy in the United States. This orthodoxy does not reject public intervention, which is, on the contrary, necessary to make capitalism work, and instead accepts levels of interference that are from time to time instrumental to pursue this objective. This holds true for those forms of intervention that gave the impression of a shift from neo-American capitalism to Rhine capitalism, in fact aimed at facilitating rather than hindering the functioning of competition. V. Mixed Legal Systems What has been described so far is an ongoing process that can hardly be explained by resorting to conceptualizations focused on the static dimension of the considered events. We are not facing the formal overcoming of the distinction between the common law and civil law, which would also imply that the rules and institutions of one system are slowly but inexorably taking over the other. The described shift is more subtle and insidious, hardly detectable but disruptive, often reshaping those rules and institutions, and thus linked to dynamics that can only be identified by looking at institutional practices and legal interpretations. What is more, the circulation of legal models goes beyond their mere formal reception and, instead, produces hybrids and compounds of the imported model and importing context. The comparative law literature on the meaning and utility of taxonomies, in general, and of legal families, in particular, suggests that these could in fact highlight the complexity of the classified objects, hence also of those produced by ongoing transformative processes like the circulation of legal models. It is possible to insist on the partiality of classifications and at the same time to strive towards mapping legal systems in their entirety: one would only have to give up the task of identifying groups or families somehow opposed to each other and rather adopt a broader classificatory criterion, which would allow one to identify systems on the basis of more profound differentiating factors and finally group them into subsystems.55 Other scholars suggest that we should preserve the classifications created through “weak” comparative efforts, i.e., meant to avoid monothetic taxonomies that follow the principles of mutual exclusivity and collective exhaustivity.56 Taxonomies can therefore be polythetic, i.e., resulting from the application of “fuzzy logic” borrowed from mathematics: the idea that classifications consist in tentative collocations by means of classes with vague borders and comprehending objects that belong to them only to a certain extent.57 In a similar fashion, it has been proposed to create groups with reciprocal intersections, with a view to detecting a common impact area and thus to contrast the idea that legal families consist of static or isolated entities.58 In any case, we cannot say that the abovementioned suggestions have yet inspired any classification satisfying for our purposes. This has not occurred in private comparative law, despite the fact that private comparative lawyers seem to be better equipped to detect the nuances relating to the encounter and the clash of common law and civil law models. It has not happened in public comparative law, either, probably because most scholars in that field believe that, outside the realm of private law, the divide between the two poles of the Western legal tradition is of significance predominantly to investigations concerning the sources of law. The impression is that comparative lawyers are still anchored to models developed in the Cold War period, which emphasized the divisions between the two blocs and at the same time underlined the unity and cohesion within them. Those models thus disregarded the specific identities of national laws relating in the first place to their belonging to the common law or civil law group, intended as the epitomes of different ways of interpreting the market order and distinct already before the formation of an opposition between neo-American capitalism and Rhine capitalism. Yet, some fields are revealing of the contrasts between the common law and civil law as contrasts between models of capitalism. Those fields are particularly fertile for common investigations by researchers from both areas of comparative law: the field of fundamental rights, where one notices a departure from an evolutionary view,59 and the area of the relationships between public powers and the market. This area also includes administrative comparative law, which has already highlighted the U.S. origin of European policies aimed at reshaping the administration in line with management and customer satisfaction paradigms as a consequence of the spread of economic liberalism and of a managerial view of the public sector,60 and public economic law, which has shown that the European integration process encourages an overall reduction in the public capacity of governing the economy and consequently creates increasingly more space for market dynamics.61 It is now necessary to ask ourselves whether it could be useful to resort to the category of mixed legal systems, i.e., those systems with features typical of different groups. This category has been predominantly employed to describe the intermingling of elements derived from the common law and from the civil law,62 with particular reference to classical cases like the legal orders of Québec, South Africa, or Louisiana.63 One can doubt that this necessarily broad and heterogeneous category64 is capable of offering univocal indications for the transformations of which we are talking. As evidenced by the suggestion of employing this category to define the European Union, this solution is apt to describe the convergence of the common law and the civil law in an uncritical way rather than investigate the underlying dynamics and conflicts. This is what emerges also from the attempt to combine the concept of a mixed legal system with the model of competition between legal orders, according to which the actual design of the European legal order should be the outcome of a commodification of the law: private subjects could freely choose the national law they regard as most responding to their interests, causing the diffusion of attractive models and the decline of those regarded as inefficient or otherwise undesirable.65 All in all, we know that such a mechanism is already at work in the area of corporate law, where it has determined a race to the bottom from the viewpoint of the socially weak. Conclusion: Classification or Genealogy? On a closer look, the idea of competition between legal orders represents an increasingly more realistic perspective for the European construction, which by now has abandoned its ambition to top-down uniformity as its most characteristic property. This seems to be evidenced by the growing interest in the idea of differentiated integration66 implemented in the form of a multi-speed Europe, a possibility that even the European Commission has recently invited scholars to explore.67 However, this diversity does not lead to a plurality of viewpoints but to new forms of standardization, like the one generated by competition when the winning competitor—in our case the winning institution or legal rule—ends up monopolizing the market and thus restricting the range of choices available to the consumer—in our case the interlocutor of the institutions or the addresses of the legal rule. Even in a possible multi-speed Europe, diversity—leaving aside the abovementioned limitations—does not also extend to economic and budgetary policies, which on the contrary result all the more uniformed by the measures adopted to consolidate the neoliberal project of Maastricht.68 In order to shed light on this design and on the resulting clash between the common law and civil law models, one may need to abandon the analogical comparative perspective and instead adopt the genealogical comparative approach.69 For instance, after having identified the U.S. experience as the epitome of a legal order inspired by the neoliberal model and its common law as the vehicle allowing for the diffusion of that model, one can describe the actual dynamics of its diffusion in the European context, highlighting the transformations and the struggles taking place in civil law countries. Nevertheless, it is important to caution that not even this approach is entirely free from criticism. Suffice it to focus on the use of the genealogical method with the view to inventing traditions, as it happened with the attempt to propose Roman law concepts as the foundation for the bottom-up construction of a new European private law, artificially employed to foster a market order in line with neoliberal principles. The neopandectistic, in particular, identified Roman law as the instrument to be used to propose concepts inspired by individualism, particularly useful in the area of contract law,70 but at the same time unfit for the purposes of policies aware of the redistributive consequences of that law. In conclusion, there is in general no single solution; rather it is possible to distinguish between good and bad comparative exercises, obviously from the point of view of the cultural strategies pursued by the comparative lawyer. It is the task of the comparative lawyer to disclose the goal and the cultural motivations of his or her research and to select the methods and if necessary the classificatory techniques that are more appropriate to achieve that goal. Fundamentally, the comparative lawyer will have to be equipped with the knowledge and skills necessary to pursue the different methodological options available, in addition to the classification tools and the alternatives to taxonomy, being ready to walk new paths starting from those opened by the interaction with legal history. Footnotes 1 Heinz-Gerhard Haupt & Jürgen Kocka, Historischer Vergleich: Methoden, Aufgaben, Probleme, inGeschichte und Vergleich: Ansätze und Ergebnisse international vergleichender Geschtichtsschreibung 9 (Heinz-Gerhard Haupt & Jürgen Kocka eds., 1996). 2 Thomas Duve, Global Legal History—A Methodological Approach (Max Planck Inst. for European Legal History Research Paper Series No. 2016-04, 2016), https://ssrn.com/abstract=2781104. 3 Léontine-Jean Constantinesco, Die rechtsvergleichende Wissenschaft 27 (1983). 4 SeeH. Patrick Glenn, Legal Traditions of the World 152 (2000). 5 Adhémar Esmein, Le droit comparé et l’enseignement du droit, Bulletin de la Société de législation comparée 379 (1900). 6 René David, Traité élémentaire de droit civil comparé 215–20 (1950). 7 1 Konrad Zweigert & Hein Kötz, Einführung in die Rechtsvergleichung 161–227 (1971). 8 Francis Fukuyama, The End of History and the Last Man (1992). 9 Jean Fourastié, Les trente glorieuses ou la Révolution invisible de 1946 à 1975 (1979). 10 See Edmondo Mostacci, Evoluzione del capitalismo e struttura dell’ordine giuridico: Verso lo Stato neoliberale?, inDiritto: Storia e comparazione: Nuovi propositi per un binomio antico 291 (Massimo Brutti & Alessandro Somma eds., 2018). 11 John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal System of Western Europe and Latin America 1–6 (1969). 12 Douglass C. North, Institutions, Institutional Change and Economic Performance 3–10 (1990). 13 SeeAssociation Henri Capitant, Les droits de la tradition civiliste en question: À propos des Rapports Doing Business de la Banque Mondiale (2006). 14 Alessandro Pizzorusso, Sistemi giuridici comparati 173 (1998). 15 Mauro Barberis, Europa del diritto 116 (2008). 16 Giuseppe Morbidelli et al., Diritto pubblico comparato 168–69 (2012). 17 Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (1991). The first wave consisted of the democratization processes between the nineteenth and twentieth centuries; the second one took place after the end of World War II. 18 See Alessandro Somma, Il diritto privato europeo e il suo quadro costituzionale di riferimento nel prisma dell’economia del debito, 32 Contratto e impresa 124 (2016). 19 The Transitional Period and the Institutional Implications of Enlargement, COM (78) 190 final (Apr. 24, 1978). 20 Alessandro Somma, La dittatura dello spread: Germania, Europa e crisi del debito 211 (2014). 21 See Jose de Silva Lopes, IMF Conditionality: The Stand-by Arrangement with Portugal 1978, inIMF Conditionality 475 (John Williamson ed., 1983). 22 See Carta de Intenções dirigida ao Fundo Monetário Internacional, 3 Boletim Trimestral Banco de Portugal 5 (1983); Carta de Intenções dirigida ao Fundo Monetário Internacional, 3 Boletim Trimestral Banco de Portugal 5 (1984). 23 Ana Bela Nunes, The International Monetary Fund’s Standby Arrangements with Portugal: An Ex-Ante Application of the Washington Consensus (Gabinete de História Económica e Social Working Paper Series No. 44/2011, 2011), http://pascal.iseg.ulisboa.pt/~ghes/wp/wp442011.pdf. 24 Lucio Pegoraro & Angelo Rinella, Diritto costituzionale comparato: Aspetti metodologici 119–18 (2013). 25 See Paolo Ridola, Preistoria, origini e vicende del costituzionalismo, inDiritto costituzionale comparato 21, 51 (Paolo Carrozza, Alfonso Di Giovine & Giuseppe F. Ferrari eds., 2009). 26 Oreste Pollicino, Stato sociale, inAtlante di diritto pubblico comparato 115, 139 (Giuseppe F. Ferrari ed., 2010). 27 Cf.Thomas Humphrey Marshall, Citizenship and the Social Class (1949). 28 See Guido Alpa, Party Autonomy and Freedom of Contract Today, inThe Politics of the Common Frame of Reference 71 (Alessandro Somma ed., 2009). 29 The only exception is the equality between women and men, which “must be ensured in all areas”: Charter of Fundamental Rights of the European Union, art. 23, 2000 O.J. (C 364) 1. Nonetheless, that rule as well can be read through a neoliberal lens: see Alessandro Somma, Private Law as Biopolitics: Ordoliberalism, Social Market Economy, and the Public Dimension of Contract, 76 Law & Contemp. Probs. 105, 111–13 (2013). 30 Working Document 23: Working Group II “Incorporation of the Charter/Accession to the ECHR”, at 4 (Oct. 4, 2002), http://european-convention.europa.eu/docs/wd2/3420.pdf. 31 The obvious reference is Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1999). 32 SeeStefano Rodotà, Il diritto di avere diritti 22–24 (2012); Stefano Rodotà, Solidarietà: Un’utopia necessaria 31–33 (2014). 33 Paolo Ridola, Diritto comparato e diritto costituzionale europeo 143 (2010) (translated by author). 34 Id. at 145. 35 Pier Giuseppe Monateri, The Weak Law: Contaminations and Legal Cultures, 13 Transnat’l L. & Contemp. Probs. 575, 591 (2003). 36 Alan Watson, Legal Transplants: An Approach to Comparative Law 107–21 (1993). 37 1 Giuseppe De Vergottini, Diritto costituzionale comparato 40 (2004). 38 As suggested by Mathias Siems, Comparative Law 93 (2014). 39 Esin Örücü, A General View of Legal Families and of Mixing Systems, inComparative Law: A Handbook 169, 171–77 (Esin Örücü & David Nelken eds., 2007). 40 See, to start with, Atlante di diritto privato comparato (Francesco Galgano ed., 1992); Atlante di diritto pubblico comparato,supra note 26. 41 See Ugo Mattei & Luca G. Pes, Civil Law and Common Law: Toward Convergence?, inThe Oxford Handbook of Law and Politics 267, 277 (Keith E. Whittington, R. Daniel Kelemen & Gregory A. Caldeira eds., 2008). 42 Michel Albert, Capitalism Against Capitalism (1993). 43 See also the “stock market capitalism”–“welfare capitalism” divide: Ronald Dore, Stock Market Capitalism, Welfare Capitalism: Japan and Germany Versus the Anglo-Saxons (2000), as well as the “coordinated market economies”–“liberal market economies” divide: Varieties of Capitalism: The Institutional Foundations of Comparative Advantage (Peter A. Hall & David Soskice eds., 2001). 44 Michel Albert, Capitalismo contro capitalismo, inStoria dell’economia mondiale 269–74 (V. Castronovo ed., 2002). 45 SeeAlessandro Somma, Europa a due velocità: Postpolitica dell’Unione europea 82–88 (2017). 46 Zweites Gesetz für moderne Dienstleistungen am Arbeitsmarkt [Second Law for Modern Services in the Labor Market], Dec. 23, 2002, Bundesgesetzblatt, Teil I [BGBl I] at 4621 (Ger.); Viertes Gesetz für moderne Dienstleistungen am Arbeitsmarkt [Fourth Law for Modern Services in the Labor Market], Dec. 24, 2003, BGBl I at 2954 (Ger.). 47 This solution has been criticized even by the IMF, which has shown how this has caused a clear impoverishment of those who have been led into the labor market: see Nikls Engbom, Enrica Detragiache & Faezeh Raei, The German Labor Market Reforms and Post-unemployment Earnings (IMF Working Paper 15/162, 2015), www.imf.org/external/pubs/ft/wp/2015/wp15162.pdf. 48 Following a ruling by the European Court of Justice: see Case C-212/97, Centros, Ltd. v. Erhvervs- og Selskabsstyrelsen, 1999 E.C.R. I-01459. 49 See Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), arts. 6, 8, 2008 O.J. (L 177) 6. 50 SeeSebastian Sick, Der deutschen Mitbestimmung entzogen (Report No. 8, 2015), www.boeckler.de/pdf/p_mbf_report_2015_8.pdf. 51 Aldo Musacchio, Sergio G. Lazzarini & Ruth V. Aguilera, New Varieties of State Capitalism: Strategic and Governance Implications, 29 Acad. Mgmt. Perspectives 115, 120–24 (2015). 52 Christopher A. McNally, How Emerging Forms of Capitalism Are Changing the Global Economic Order, 107 AsiaPacific Issues 1, 3 (2013). 53 Emergency Economic Stabilization Act, Pub. L. 110-343, 122 Stat. 3765 (2008). 54 See, e.g., Steven M. Davidoff, Uncomfortable Embrace: Federal Corporate Ownership in the Midst of the Financial Crisis, 95 Minn. L. Rev. 1733 (2011). 55 SeePizzorussosupra note 14, at 174–78. 56 Morbidelli et al.,supra note 16, at 14. 57 Serena Baldin, Riflessioni sull’uso consapevole della logica fuzzy nelle classificazioni fra epistemologia del diritto comparato e interdisciplinarietà, 10 Revista General de Derecho Público Comparado 11 (2012). 58 Roberto Scarciglia, Metodi e comparazione giuridica 52–54 (2016). 59 Highlighted, for example, in Keith D. Ewing, Economic Rights, inThe Oxford Handbook of Comparative Constitutional Law 1036, 1050–52 (Michael Rosenfeld & András Sajó eds., 2012). 60 Giulio Napolitano, I grandi sistemi di diritto amministrativo, inDiritto amministrativo comparato 1, 49 (Giulio Napolitano ed., 2007). See also Janina Boughey, Administrative Law: The Next Frontier for Comparative Law, 62 Int’l & Comp. L.Q. 55 (2013). 61 Oreste Pollicino, Il diritto pubblico dell’economia nella prospettiva dell’integrazione europea, inDiritto pubblico dell’economia 103, 112 (Giuseppe Franco Ferrari ed., 2013). 62 See Michele Graziadei, Comparative Law as the Study of Transplants and Receptions, inThe Oxford Handbook of Comparative Law 441, 453 (Mathias Reimann & Reinhard Zimmermann eds., 2006). 63 See, e.g., William Tetley, Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified), 4 Uniform L. Rev. 877 (1999). 64 Uwe Kischel, Rechtsvergleichgung 224 (2015). 65 J.M. Smits, A European Private Law as a Mixed Legal System: Towards a Ius Commune Through the Free Movement of Legal Rules, 5 Maastricht J. Eur. & Comp. L. 328 (1988); J.M. Smits, Mixed Jurisdictions: Lessons for European Harmonisation?, 3 J. Comp. L. 151 (2008). 66 See most recentlyAnja Riedberger, Die EU zwischen einheitlicher und differenzierter Integration (2015). 67 See White Paper on the Future of Europe: Reflections and Scenarios for the EU27 by 2025, at 20, COM (2017) 2025 (Mar. 1, 2017), https://ec.europa.eu/commission/sites/beta-political/files/white_paper_on_the_future_of_europe_en.pdf, where various scenarios for the future of European integration are conceived, including one where “those who want more do more”: “[N]ew groups of Member States agree on specific legal and budgetary arrangements to deepen their cooperation in chosen domains.” 68 See Sommasupra note 45, at 88–94, showing that the idea of differentiated speed refers to a time schedule (i.e., the time necessary to develop the Monetary and Economic Union) rather than a roadmap (i.e., the way in which that has to be achieved). 69 Geoffrey Samuel, An Introduction to Comparative Law Theory and Method 57–60 (2014). 70 Following, most notably, Reinhard Zimmermann, Roman Law and European Legal Unity, inTowards a European Civil Code 65, 72 (Arthur Hartkamp et al. eds., 1994). Author notes Full Professor of Comparative Law, University of Ferrara, Italy. © The Author(s) [2019]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Global Legal History, Legal Systemology, and the Genealogy of Law
JO - American Journal of Comparative Law
DO - 10.1093/ajcl/avy047
DA - 2018-12-31
UR - https://www.deepdyve.com/lp/oxford-university-press/global-legal-history-legal-systemology-and-the-genealogy-of-law-2vjPSeWOv1
SP - 751
VL - 66
IS - 4
DP - DeepDyve
ER -