Legal constructions in the focus of intertemporal and interlocal comparison methods: methodological aspect

Oleg HALABUDENKO, doctor în drept, conferenţiar universitar, ULIM

The paper is focused on the philosophical and methodological reasoning of issues related to the reception (transplantation) of legal phenomena (legal transplants) of the legal culture by another one. The problem of a legal phenomenon transferring is considered by the author in two ways — intertemporal and interlocal. According to the author, the analysis of the use of these comparison methods demonstrates that the transferring of legal material is effected by means of the primary elements of law — certain legal constructions. Keywords: Methodology of Comparative Law; intertemporal and interlocal comparison methods; legal constructions.

Actul este axat pe raţionamentul filosofic si metodologic de probleme legate de recepţia (transplant) de fenomene legale (transplanturi juridice) şi culturii juridice. Problema fenomenului juridic transferat este considerată de către autor în două modele — intertemporal şi interlocal. Potrivit autorului, analiza de utilizare a acestor metode de comparaţie demonstrează că transferul materiei juridice se efectuează prin elementele primare de drept — anumite constructii juridice. Cuvinte cheie: Metodologia de drept comparat; metode de comparaţie intertemporale şi interlocal; constructii juridice.

The point of departure for the methodological contemplation of the science of law is the quest for the adequate substantiation of legal phenomena (ratio) relevant to the application of the legal method aimed to the resolution of contradictions arising as a result of the use of an abstract rule (ratio iuris) to a specific legal situation (ratio facti). An investigation of methodology from the outset is directed not so much to a consideration of the positive issues of law as to the related problems of the means and methods of investigation of legal phenomena. In this sense “methodology is the grammar of legal argument and the fabric of legal practice” 1.

We note that in a non–complex legal existence the problem of seeking the grounds for legal phenomena might always remain in the domain of the pure theory. In that case jurisprudence, in contemplating the infinite (infinitum) would retain its finite character (finite doctrina), having found consolidation by relegating it to the sphere of ars. However, the increasing complication of legal reality, the need to elaborate methods of interpretation and expression of wills, the actual urgency for the systematization of legal material with view to the optimization of the norm–creative process, and most importantly — the unification of law in legal spaces united by the community of legal tradition — assume the development of a methodology adequate to the challenges of reality.

By way of a comment presaging a more detailed consideration of the questions to which the present article is devoted, we note that unlike the subject–matter of law whose boundaries are exhausted by the field of legal reality, recourse to issues of the methodology of law assume transcending the limits of the said field and, in consequence, inevitably in our view, resource to the philosophical dimension of the phenomena of legal being. Methodology, especially, should be understood as the “philosophy of the scientific method”2. The assertion is admissible that the philosophical dimension of legal reality is immanently inherent to each paradigm known to legal science. Having regard to this, we agree with Tarasov in his definition of the method of jurisprudence as a “scientifically substantiated and philosophically justified system of means of cognitive activity corresponding to the nature of law and inextricably linked with the subject–matter of jurisprudence”3.

Comparison is among the principal methods of cognition of legal reality. One may assume that any element of legal reality may be cognized by means of the comparison thereof with another element; comparison should be deemed to be correct if the elements being compared perform the same function. Comparison should be considered in two aspects: as a scientific method of research applicable to different spheres of legal reality and as a system of scientific knowledge concerning the legal systems of the past and present4.

Within the attention span of an investigator of legally significant objects which existed in the historically–preceding legal systems is the problem of the correlation of “comparative law” to the history of law; or, more precisely, the issue of the admissibility of applying the historical (intertemporal) method directly to the quest for the result of a comparative legal study. One should, in our view, agree with Zweigert and Kötz, who noted that an “… expanded notion of comparative law would include comparative legal history …”5.

From the standpoint of the methodology of comparative jurisprudence, this means that the history of the forming and development of comparative jurisprudence inevitably falls within the purview of comparatists. The view expressed by Kresin is topical in this connection that “new fundamental studies of the principal stages of evolution of comparative law, inter alia, may help to overcome the methodological crisis in comparative jurisprudence, clarify its character, the modern tasks and orientations of its development”6.

Indeed, history as a domain of factual data and law (in the sense of justness) as the “permanent and unchangeable will to give each to his own”7 represent ontologically different objects. However, one should not overlook the fact that legal phenomena, although might be synchronically measured, nonetheless as social facts exist and develop in time. Therefore, “legal history is not simply self–serving”: law and history are closely interfused8. Consequently, an expanded notion of “comparative law” would include the comparative history of law9.

Turning to the historical development of law, the investigator of the European legal tradition devotes principal attention to the reception of Roman legal material by contemporary legal orders. For more than two and a half millennia Roman Law underwent more than one Renaissance: the flowering of Roman Law of the classical era, after sequences of crisis, is completed by the codification of Justinian, underlying which was the synthesis of lege romana and the Christian syncretic doctrine; the era of the Dark Ages is superseded by the ius commune prepared by the works of Glossators and Commentators; in place of the ius commune of medieval Europe comes codification determined by the parameters of the nation–State underpinned by a natural–law doctrine “entangled” in reworked Roman law material.

The assertion that the development of the private law of the countries of continental Europe is the result of the reception of Roman Law does not give rise to objections in principle from a single serious investigator. The process of comprehending Roman Law by the legal orders formed in the spaces of Europe is a special instance of the process of the assimilation of ancient culture as a whole. With a few exceptions (especially, intellectual property, corporate rights), the institutions of modern civil law ascent directly from the traditions laid down by Roman Law. In turn, the Roman legal tradition represents a category filling the gap between the concepts “law” and “culture” and is regarded as a stratum of European legal culture10.

The term “tradition” emphasizes “the character of law and legal culture as something historically formed” and not dictated by the imperative behest of actual reality. In fact, the “principle of tradition is the presence of the past in the present, in the communication to the present of the significance of a means of existence of the past”11. In our view, one may assume that a legal tradition is that required generalized invariant of the result of comparative legal research which may be perceived by another legal culture. One may conclude that a community of legal ideas underlies a particular legal culture which find respective embodiment in typicized legal forms, the result of the manifestation of a certain legal tradition.

The interconnection and interdependence of legal tradition and culture are traceable in the reception of legal concepts of legal order which had until the moment of legal transfer socio–cultural and economic components distinct from those inherent in the legal tradition being perceived. A clear example is the reception of the German civil and trade law by Japan at the end of the nineteenth century, prepared, it is important to note, by the significant influence of French legal culture12. Thus, reception changes the legal culture of the recipient country perceiving the legal tradition characteristic for the country of origin. Legal systems are comparable in result (or effectiveness) because they are unified by a community of legal tradition; for the jurisdictions of continental law we have in view the tradition emanating from Roman law that serve as the Common Core of European Private Law.

The success of the reception of Roman law is a process commenced in the era of the Glossators and continuing down to the present and shows that typicized legal forms embodying ideas characteristic for European legal space have a universal character. The community of legal approaches to which the participants of legal communion resort when resolving legal problems of the same type supports this assertion. The universality of the idea of law, for the first time precisely formulated by the Roman legal genius, is that any vital society ensures its existence and development by means of legal communion, using in so doing the rationally comprehensible, normatively determinable, and defensible concepts. Legal communion proper, formed initially within family alliances (divini et humani iuris communicatio) and then disseminated through all society, are laying the basis of the future dialogue of legal systems.

It also is evident that the resolution of legal problems “in terms evaluated in norms” of Roman law that arise outside its chronological limits is no historical coincidence, but a reflection of regularities peculiar to law as a phenomenon of social reality. These regularities have a universal, supranational character. Under the impact of Roman law an idea of properties and indicia inherent to any legal culture is being elaborated, the basis of which is the European tradition of law: the “demarcation in principle of law from religion, politics, and economics: the separation of law from nonlaw”13, of “political power as a legal order”14.

An understanding of law as a system of social values enabling benefits to be legitimately acquired in legal form and defending by the prevailing legal order characterizes the legal tradition here considered. Law is not confined to and does not come down to generally–binding rules of behavior because these are inherent also to nonlaw states. Consequently, legal concepts cannot be identified with the system of norms (positive law) even when such a requirement is being advanced by political authority: law is not reducible to forms of positive law “quantitatively or qualitatively”. The European tradition of law approaches the definition of law through conceptual categories elaborated especially by legal science, in accordance with which law recognizes (or legitimizes) and defends fair forms of the appropriation of benefits. These features of European legal culture are important not only per se (in order to assess the general state of “legal affairs” in legal orders relevant to the European legal tradition), but also from the standpoint of comparative legal research — the formation and, later, the reception of Roman law are the clearest examples of the perception of comparative legal results in the history of law.

The term “reception” which arose in connection with the perception of Roman law, formed the legal space of Europe, in time ceased to be special. It began to be used in comparative legal studies in all instances when reference was made to the perception by one legal order of legally significant concepts peculiar to another legal order. In the broad sense, reception may be defined as the borrowing of law worked out by another legal order and the adaptation thereof to the conditions of some other jurisdiction. Nonetheless, it is recognized by researchers that reception is not limited to the process of “borrowing of foreign norms and principles into effective, positive law”15, but may be regarded as the “perception of the spirit, purpose, main principles, and basic provisions of a particular local civilization at a certain stage of its development”16.

The assertion of partiality to the European legal tradition of legal systems formed in Eastern Europe should not generate any serious objections. A brief glance at the codifications of civil law there should suffice to discover in them categories familiar to anyone who has studies Roman Law: person (personae), property (res), obligation (obligatio), contract (contractus), succession by inheritance (successio), and so on. Naturally, the use of Roman legal terminology serves merely as a point of departure for understanding the civil law in force as a law emanating from the tradition of Roman private law, but is not indisputable evidence that this is a consequence of a manifestation of the last. It is instructive to recall the statement of Peter Stein, who noted that Roman law “texts have constituted a kind of legal supermarket, in which lawyers of different periods have found what they needed at the time” 17.

In other words, statement of the fact of the reception of Roman Law serves merely a priori as evidence of the fact that the law of the Eastern European countries exists and is developing in line with the European legal tradition. However, acknowledgement of the fact that modern civil–law codifications were a consequence of the reception of Roman Law (direct, as in the countries of Western Europe; or mediately, as for example, in the countries of post–Soviet space) does little to answer the question: by what means from a legal technique point of view was the process of borrowing of legal material ensured? In other words, the question remains unclear as to what element of legal reality underlay the reception of the material of Roman law in the corpus iuris of modern civil law.

In order to reply to the question put, the use of the legal–dogmatic method is not sufficient. The consistent application of the scholastic–analytical interpretation (analysis, synthesis, deduction) to the genesis of law leads us ultimately to the jurisprudence of concepts. The limit of the application of the legal–dogmatic method is the carrying over of the subject–matter of study from the past (von Savigny) to the future (von Jhering), from the “receptive” approach of an understanding of the tasks of legal science to the “productive” approach. The productive approach enables one to assert that the “development passed through Roman Law … forward, farther than it”18, but nothing more.

In turn, a rejection of legal dogmatic and emphasis on the policy of law ultimately leads to a denial of any value of Roman Law. Indeed, if one proceeds from the determinism of the existing, from the notion of law as the “result of experience”, it follows that the essence of law is expressed solely in the reflection on actual legal situations. Carrying over such a notion about law to the sphere of legal science makes the argument irrefutable that between modern civil law and the law of slave–owning Rome there is nothing in common. However, practice demonstrates the opposite: Roman law constructions meeting the needs of society two millennia ago are needed at the present time.

The phenomenon of European law lies in the fact that the law (unlike policy and religion) at no stage of its existence was understood discretely. European legal culture at all stages of its existence demonstrated succession, continuity. The succession of legal tradition is traceable not only in the practice of the creation of modern civil–law codifications. Suffice it to recall that the Corpus Iuris Civilis was based on the sources whose age at that time had already numbered many centuries. We note that the difference in the economic structure during the period of the XII Tables and the time of the codification of Justinian is no less than between the period of the Glossators and Commentators, on one hand, and the European codifications of the Modern era, on the other.

A distinctive peculiarity of European legal culture is the notion of law and phenomena of legal life as a whole, constructively linked. The legal material in its organized state here is perceived as an organic whole (corpus). This notion concerning law exists at all levels of its external objectivation and certainly descends from Roman Law. Moreover, in contrast to the “simple substance of law or legal materials”, “institutions of law represent … legal bodies” or, according to the definition of von Jhering, are “legal constructions”19. It seems that the subject rights (or duties) arising under certain legal situations are capable of objectification only within the framework of certain legal constructions. To be sure, we do not refer here to biological reductionism; legal phenomena themselves cannot in any event be regarded as some “living organisms, living their own special ‘conceptual’ life”20.

Law, however, being a “socio–psychological force regulating the behavior of people”21, cannot be represented as a creation ex nihil, apparent to us solely by virtue of some political and legal imperative. In a normative–power expression, it may embody only that legal phenomenon which occurs in the social consciousness.

Thus, the special “legal bodies” — legal constructions — serve the objectification of subjective rights, other prerogatives, and duties. The legal constructions are those elements of legal reality which, being normatively determined, nonetheless are not identified literally with a norm of law (or actual rule of behavior). A legal construction is an autonomous normatively expressed social value. It represents a constant which acts as the grounds for the existence of elements of legal reality in various modi thereof. Its habitat until the moment of substantivization (appropriation, through the commission of private law acts, by an individual participating in a legal communication) is the social consciousness; in this modus the construction as a structure performs the function of an archetypal legal entity.

One of the clearest examples of legal constructions which existed in Roman private law is the locatio–conductio. On one hand, the structural entity locatio–conductio (corresponding to the name of the institution) allotted to a thing the role of the foundation of an agreement, informing about the origin of the institution, and, on the other — enabled by means of a single construction to service a whole series of relations: hire of things, independent–work contract, hire of services, contract of carriage, which in modern civil law have received their autonomous place in the system of contractual obligations.22It is characteristic that the said contractual constructions, in turn, acted as the basis for building new normative legal constructions. The model of the rent (hire, lease) contract served as the foundation for the construction of a contract of finance leasing, and the model of the service contract underlaid the multiplicity of types (or varieties) of service contracts.

Thus, the historical comparative law approach to investigating the evolution of law, amidst the diversity of legal components, enables key concepts (or legal constructions) to be identified which, in our view, serve as the foundation of the organization of legal material and act thereby as a “legal transplant” which is carried over from one legal culture to another when there is a community of legal tradition.

More illustratively, the significance of legal components here considered demonstrates the inter–local approach to the investigation of law. The principal purpose of comparative–legal research lies in the search for the best solution which is effectuated on the basis of contrasting legal material to be compared. This “best solution” is in the form of a supranational knowledge about law expressed in certain concepts. The “best solution” approached a particular legal ideal — an invariant of legal material obtained as a result of the identification of something common that inheres in legal orders formed within the framework of a single legal culture.

The subject–matter of a comparative study so defined is characterized, in comparison with the subject–matter of national legal systems, by a high degree of abstractness. Indeed, the science of comparative jurisprudence, “like every science, deals with universals, but these universals are not legal norms but rather legal problems. As a consequence, a comparison of legal norms is possible only of norms responding to the same legal problems” 23. Insofar as the result of comparison is expected to be useful, the legal material to be compared should be represented by “usefully comparable” facts of legal culture “are ones which fulfil the same function”24.

In this connection the functional approach is the principal fruitful method–principle of comparative jurisprudence, in accordance with which the function of a particular phenomenon of legal reality to be compared serves as the criterion of comparison (tertium comparationis), enabling the solution of similar problems acceptable for each legal system to be identified. Thus, the only things comparable in law are “those which fulfil the same function”; from the standpoint of a comparative legal study this means that the “legal system of each society faces essentially the same problem, and solves these problems by quite different means, though very often with the same results”25.

The abstract legal material obtained as a result of comparison may be expressed merely in the form of a theoretical structure free of conceptual context and deprived of the subtext of national doctrine. Neither from the general conceptual point of view nor the standpoint of specific concepts should national law influence the investigator because within the purview of comparative jurisprudence there are only concrete problems. Thus, the functionality of legal orders being researched is regarded in pure form, that is, without national specifics inherent to legal concepts, doctrinal views, and sought for decisions. An investigation of the application of an identified acceptable (“best”) decision transcends the limits of the subject–matter of a comparative legal study because this assumes the specific cultural–historical peculiarities of a concrete legal order are being taken into account.

The orientation to the fact that compared legal material as a result of the use of the functional method is presented devoid of conceptuality which is typical for the socio–cultural milieu from whence it was borrowed, is fraught with a methodological reductionism destroying generic co–subordination: the social reality is identified with the legal reality26. Ultimately, the result of functional abstracting may lead to ignoring the cultural dimension of legal phenomena. In that case, legal phenomena being in a deconceptualized form can be considered only in utilitarian sense. Consequently, the functionalism involves the elimination of a fundamental distinction between the legal institutions and other social institutions.

This feature of functionalism leads to a very significant consequences for the law. First of all, the law ceases to be perceived as a monopoly normative–authoritative determinative of socially significant forms of behavior and starts to be considered as an element of a social reality (that is, as a fact of social reality). Law is regarded in this connection as a sphere of social engineering. So far, there is a perception that “such an understanding is both an effect and a starting point for the development of intellectual capacity and methodology of comparative law”27. However, as Michaels justly observes, in reality, for the functional method “law and society are thus thought to be separable but related”28. From the standpoint of methodology this means that the use of the functional method without taking structural analysis into account leads to the elimination of the fundamental distinction between law and other social institutions.

We note that not legal norms, but legal problems which may be described in concepts common to the legal systems to be compared are adequate grounds for comparative–legal study. Thus, the result of comparative jurisprudence is reflected not in normative, but in conceptual, form. The conceptual level of legal concepts is characteristic for each stage of the development of comparative jurisprudence: for the ius commune as a “scientifically elaborated law resting on a single ethical foundation”29, in the era of the “origin of nation–States, when the universal theory and methodology did not correspond to positive law”,30 and in the current period characterizing the development of rational supranational and extra–national law.

In connection with the use of the method of conceptual constructs the question arises as to the self–sufficiency of normative material. An analysis of the structure of a particular concept is based on a logical deduction, or on a conclusion by analogy, whereas law, being a sphere of social life, cannot ignore “… primary facts consisting of the actual behavior of legal officials, judges, and others (including ordinary citizens) …”31. Ignoring the said facts representing in the broad sense the socio–political context results at least in underestimating the costs connected with overcoming resistance of the environment when perceiving legal tradition (path dependency theory)32.

On the other hand, the hypertrophied understanding of the social, political, economic, and cultural context and a denial of the relative autonomy of law ultimately leads to the elimination of the very idea of law. However, studies cited by Watson show that law possesses relative autonomy and occupies a certain place within the system of social phenomena33. Indeed, no reception would be possible in principle if there did not exist a “material distance between the fledgling norm and the receiving legal system”34.

Thus, theoretical constructs elaborated in a comparative law study as the sole form of the expression thereof have legal concepts. In other words, legal concepts are perceived as constructions possessing a predetermined structure corresponding to a typical function executed by the appropriate element of legal reality. A fully–fledged analysis of the legal reality to be compared assumes distinguishing legal meta–narratives — categories (or legal ideas) which, being nascent and performing a typicized function, were directed towards the creation of a single type of description universalized in a certain legal culture. This is due to the fact that the function is expressed in a concept perceived by participants of the legal communion (communicative function); the concept reflects a particular legal idea in a certain structure. From the standpoint of methodology we refer to a quest for categories, the analysis of which would enable a response to be given concerning the similarity or differences in certain spheres of legal reality when the need arises to have recourse to reception.

Legal concepts discover themselves in legal communion by means of facts which manifest themselves differently at the level of the operation of law and in the sphere of comparative jurisprudence. In both the first and second instance a fact is a form of empirical knowledge (having external objectification). However, whereas in science truth is comprehended by proceeding from logical analysis, which assumes the extraction of the concept from the real state of affairs, in the sphere of law the truth of a normative prescription in and of itself does not follow from a particular life circumstance. Therefore, the legal consequences have been determined by the fact that a legal order recognizes determined properties (or requisites) for a particular fact. Reality subordinate to the will of a person should be deemed to be subjective. Thus, a fact as the grounds for a certain legal situation to arise is relegated to the category of subjective reality because it depends upon the will of a person acting in legal communion. A legal situation as a result of manifested volitional behavior is represented by subjective rights and by other prerogatives and duties. It is accepted to believe that rights and duties comprise the content of a legal relation — concepts which, on one hand, reflect a present legal link established between subjects of legal communion and, on the other — a theoretical abstraction enabling the type of such a legal link to be determined.

It follows that in and of itself a legal relation outside a typicized form cannot be the sought for result of comparative legal analysis. The external objectification of the subjective content of a legal relation is achieved by means of the consolidation of rights and duties by norms of objective law. However, the normative level of legal reality, as shown above, also cannot be required for the purposes of comparative legal analysis: the mechanism for the development of law, including in the event of reception, cannot be explained by the normative level of the description of legal reality without a tautology in so doing.

In fact, carrying over norms (or normative prescriptions) of one legal order to another outside the context of legal certainty — a key principle for building a legal system — is impossible. In other instances the reception of normative utterances without having regard to the peculiarities of legal constructions of national law leads to the deformation of national legal systems without giving a proper positive effect. From the standpoint of methodology, we refer in this instance to the quest for meta–legal categories, an analysis of which would enable a response to be given concerning the similarity or differences in certain spheres of law when the need arises to resort to reception.

It seems that when seeking meta–legal categories preceding a legal utterance there is no need to have recourse to phenomena transcending the boundaries of the subject–matter of the science of law because in this case the identical notion of law as an autonomous sphere is violated. Indeed, the “unity of the legal system is determined by the presence of own subject–matter and own system of categories, which inevitably recodes any impulses received from other systems”35. As noted above, law possesses relative autonomy among other socio–humanitarian phenomena and is a self–organizing system (autopoietic system). On the other hand, social and legal aspects expressed, for example, in an agreement binding parties also do not coincide; such an agreement does not create a unity of legal and social content and, like Janus Bifrons, its components — social and legal — look in different directions”36. In addition, the character of the link of the subject–matter sphere with the particular object can be defined as “heuristic conformity”. A scientific hypothesis, having its own dimension, is formed in the subject–matter “ordering not a phenomenon, but knowledge”37 and therefore may exist only as a reflection of a person operating in the legal sphere.

Thus, it is admissible to assert that the seeking of a “phenomenon” enabling the certainty of a legal utterance to be achieved and capable of serving as a manifest result of functional–structural analysis in the mechanism of reception is possible only in the sphere of legal reality. Such a legal “phenomenon” should be capable of expression in an objective form; it should be distinctive by certainty and autonomy among other social facts and not coincide with a definite (individualized) form of law. Such a “phenomenon” is existent in the meaning of potential being, the actual modus of its existence being possible thanks to acts performed by subject of legal communion. In its potential existence the sought for “phenomenon” may be in the form of a theoretical construct (or structure). A single concept encompassing the potential and actual modus of legal reality is known in legal science as “legal construction”.

Thus, the use of a comparative approach (or orientation) to investigating legal reality leads to the identification of certain structural–organized legal constructions. The concept here considered enables the mechanism of reception to be explained in inter–temporal and, accordingly, inter–local dimensions. Unlike norms of law which by their nature are evaluative categories, legal constructions have the nature of concepts and, consequently, “…. unlike norms, “surrender” to logical operations such as division, generalization, abstracting, synthesis, classification, and others”38. Legal constructions reflect specific aspects, demanded by practice, of a general conceptual nucleus being the foundation of a normative material of legal orders unified by a common legal tradition.