EPISTEMOLOGY AND METHODOLOGY OF COMPARATIVE LAW EUROPEAN ACADEMY OF LEGAL THEORY MONOGRAPH SERIES General Editors Professor Mark Van Hoecke Professor François Ost Professor Luc Wintgens Titles in this Series Moral Conflict and Legal Reasoning by Scott Veitch The Harmonisation of European Private Law edited by Mark Van Hoecke On Law and Legal Reasoning by Fernando Atria Law as Communication by Mark Van Hoecke Legisprudence edited by Luc Wintgens Epistemology and Methodology of Comparative Law Edited by Mark Van Hoecke Katholieke Universiteit Brussel OXFORD AND PORTLAND OREGON 2004 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © The Editor and Contributors Severally 2004 The Editor and Contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB Telephone: +44 (0)1865 245533 Fax: +44 (0) 1865 794882 email: mail@hartpub.co.uk WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1-84113-439-2 (hardback) Typeset by Olympus Infotech Pvt, Chennai, India, in Sabon 10/12pt Printed and bound in Great Britain by MPG, Bodmin, Cornwall Foreword This volume contains mainly the plenary papers of the Conference on Epistemology and Methodology of Comparative Law, organised in Brussels on 24 till 26 October 2002. This Conference has been organised by the Katholieke Universiteit Brussel, in collaboration with the Vrije Universiteit Brussel and the European Academy of Legal Theory. We are grateful to both universities and to the Fund for Scientific Research, Flanders, for their generous finan- cial support. Whereas comparative law conferences generally focus on some fields or topics of positive law, the aim of the Brussels conference, of which the ple- nary papers are published in this volume, was of a more theoretical kind: reflecting on comparative law as a scholarly discipline, on its epistemology and its methodology. Some of the topics on which the papers and the discussion were focussing are: — which kind of ‘knowledge’ is, or could be, aimed at by comparative law? — the classification of legal systems into ‘legal families’ (is there an emerging ‘European legal family’, which is transcending, or at least overlapping, the traditional classification Common Law— Civil Law? Do we have to distinguish different classifications into ‘legal families’ according to the area of law?); — the relevant context for determining (the content of) the law, or the distinction of different levels on which comparative research may be carried out (e.g., a more technical ‘surface level’, a ‘deep level’ of the ideological background of law and legal practice, and an ‘intermediate level’ of other elements of legal culture, such as the socio-economic and historical background of law); — the identification and demarcation of a ‘legal system’, which is to be compared with another ‘legal system’ (this brings us to the opposition between ‘legal monism’ and ‘legal pluralism’, and the definition of the European legal orders, sub-State legal orders, along with what is left of traditional sovereign State legal systems); — the relationship between domestic law, international private law and international public law; — the desirability and possibility of developing a basic common legal language, with common legal principles and legal concepts (a common technical legal language, as it is currently developing within the European jurisdictions and other norm creating insti- tutions, and/or a legal meta-language, which would be developed and used within an emerging European legal doctrine). The scope of the approaches in this volume is rather wide. Some papers are methodological reflections of experienced comparatists, starting from their broad practice in comparative research. Other papers are of a more theo- retical nature and reflect mainly on the epistemologic question of (the acces- sibility of) knowledge of foreign legal systems and of law in general. They all have in common that they address more fundamental, scientific prob- lems of comparative research that are too often neglected in comparative scholarship. Mark Van Hoecke Brussels, February 2003 vi Foreword Contents List of Contributors ix 1. Legal Culture v Legal Tradition 1 Alan Watson 2. Legal Cultures and Legal Traditions 7 H Patrick Glenn 3. Legal Epistemology and Transformation of Legal Cultures 21 Marek Zirk-Sadowski 4. Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences 35 Geoffrey Samuel 5. How to Make Comparable Things: Legal Engineering at the Service of Comparative Law 79 Juha Karhu (Previously Juha Pöyhönen) 6. Methodology and European Law—Can Methodology Change so as to Cope with the Multiplicity of Law? 91 Karl-Heinz Ladeur 7. Comparative Law of Obligations: Methodology and Epistemology 123 Christian von Bar 8. Codifying European Private Law 137 Walter van Gerven 9. Deep Level Comparative Law 165 Mark van Hoecke 10. NICE Dreams and Realities of European Private Law 197 Nikolas Roos 11. The Europeanisation of National Legal Systems: Some Consequences for Legal Thinking in the Civil Law Countries 229 Jan M Smits 12. Comparative Law and the Internationalisation of Law in Europe 247 Mireille Delmas Marty 13. Public Law in Europe: Caught between the National, the Sub-National and the European? 259 John Bell 14. New Challenges in Public and Private International Legal Theory: Can Comparative Scholarship Help? 271 Horatia Muir Watt 15. Abridged or Forbidden Speech: How Can Speech be Regulated through Speech? 285 François Rigaux 16. Legisprudence and Comparative Law 299 Luc J Wintgens 17. Rawls’ Political Conception of Rights and Liberties: An Illiberal but Pragmatic Approach to the Problems of Harmonisation and Globalisation 317 Paul de Hert and Serge Gutwirth 18. Family Trees for Legal Systems: Towards a Contemporary Approach 359 Esin Örücü 19. A Common Legal Language in Europe? 377 Anne Lise Kjær viii Contents List of Contributors Christian von Bar is Professor and Director of the Institute of Private International and Comparative Law of the Universität Osnabrück. He is also Bencher (Hons.) of Gray’s Inn (London), corresponding fellow of the British Academy, corresponding fellow of the Académie internationale de droit com- paré and doctor juris honoris causa of the Katholieke Universiteit Leuven. (cvbar@uos.de) John Bell is Professor of Law at the University of Cambridge. (jsb48@cam.ac.uk) Paul de Hert is senior-lecturer (uhd) at the Universiteit Leiden and Professor at the Vrije Universiteit Brussel. (pdehert@law.leidenuniv.nl) Mireille Delmas-Marty is Professor at the Collège de France, Paris. (mdm@college-de-france.fr) H. Patrick Glenn is Peter M. Laing Professor of Law at the Faculty of Law & Institute of Comparative Law, McGill University, Montreal, and Visiting Fellow at All Souls College, Oxford University. (patrick.glenn@mcgill.ca) Serge Gutwirth is Professor of Law at the Vrije Universiteit Brussel and lec- turer at the Erasmus Universiteit Rotterdam. (serge.gutwirth@vub.ac.be) Juha Karhu (Previously Juha Pöyhönen) is Professor at the University of Lapland, in Rovaniemi, Finland. Juha Pöyhönen changed his name in 2003. Anne Lise Kjaer is Postdoctoral research fellow at the Faculty of Law, University of Copenhagen. (anne.lise.kjer@jur.ku.dk) Karl-Heinz Ladeur is Professor at the Universität Hamburg. (ladeur@iue.it) Horatia Muir Watt is professor at the Université de Paris I (Panthéon- Sorbonne). Also deputy director of the UMR (Unité Mixte de Recherches) de Droit comparé de Paris (Paris 1–CNRS). (hmuirwatt@aol.com) Esin Örücü is Professor of Comparative Law at the University of Glasgow and the Erasmus Universiteit Rotterdam. She is also an associate member of the International Academy of Comparative Law (Académie Internationale de Droit comparé). (e.orucu@law.gla.ac.uk) François Rigaux is emeritus Professor of the Université Catholique de Louvain (Louvain-la-Neuve) and member of the Belgian Royal Academy. Nikolaas Roos is Professor Meta-Juridica at the Universiteit Maastricht. (nico.roos@metajur.unimaas.nl) Geoffrey Samuel is Professor of Law at the Kent Law School (University of Kent at Canterbury). (g.h.samuel@kent.ac.uk) Jan M Smits is Professor of European Private Law at the Universiteit Maastricht. (jm.smits@pr.unimaas.nl) Walter van Gerven is emeritus Professor of the Katholieke Universiteit Leuven and the Universiteit Maastricht. He teaches at the European Academy of Legal Theory and is visiting professor at King’s College, London, and at the Universiteit Gent. Formerly he has been Advocate General at the European Court of Justice (ECJ). (walter.vangerven@law.kuleuven.ac.be) Mark Van Hoecke is Professor of Law and Jurisprudence and, as from October 2002, the rector of the Katholieke Universiteit Brussel. He is also co-director of the European Academy of Legal Theory. (mark.vanhoecke@kubrussel.ac.be) Alan Watson is Distinguished Research Professor & Ernest P. Rogers Chair of Law at the University of Georgia. (wawatson@arches.uga.edu) Luc J. Wintgens is Professor of Law and Jurisprudence at the Katholieke Universiteit Brussel and dean of the law faculty. (luc.wintgens@kubrussel.ac.be) Marek Zirk-Sadowski is Professor of Law at the University of ódz Ј (Poland). (sadowski@krysia.uni.lodz.pl) L x List of Contributors [...]... law is like other natural object Separation of the law as an object of study is possible only through language; only then is the law a meaningful object Externality and internality of law are two aspects of the meaning of law, and not of some natural object This differentiation is essential for an understanding of law and society We speak of the external point of view when dealing with rules only as an... Authority and it is needed—is often obscure, and frequently faked The need for authority is at the heart of both the impact of past legal history—including the long survival of inappropriate law and of borrowing law from elsewhere Thus, the prevalence of legal transplants, 3 This is one of the themes of William M Gordon’s Stair Society lecture in 1999: ‘The Civil Law in Scotland’, Edinburgh Law Review... product of random history, a ‘thing of shreds and patches’; and ‘more recently’ as bricolage, a constant re-working, casting-off and reviving Others see the concept of culture as recently being affected by a process of globalisation, such that it is ‘no longer possible to talk about the virtues of national legal cultures as stable and viable entities … ’ See W Heydebrand, ‘From Globalisation of Law to Law. .. teaching of ‘Pandektenrecht’ and the works that it spawned The development of a common law for the EU should occur in awareness of legal tradition and legal culture 15 See, eg Watson Making of the Civil Law, pp 111f 2 Legal Cultures and Legal Traditions H PATRICK GLENN I N THINKING ABOUT the laws of the world, in their diversity, we appear driven by an epistemological urge to think of different laws as... (Philadelphia, Temple University Press, 2001); Roman Law and Comparative Law (Athens, Ga, University of Georgia Press, 1991); The Making of the Civil Law (Cambridge, Mass, Harvard UP, 1981); Law out of Context (Athens, GA, University of Georgia Press, 2000); The Evolution of Western Private Law (Baltimore, Johns Hopkins University Press, 2001); Legal History and a Common Law for Europe (Stockholm, Olin Foundation,... Visigothic law of the fifth century, 10 An indication of the reasons for the complexities of mandat deriving from mandatum may be found for the 13th century in Bezemer, Jacques, p 79 11 See, above n 2 Watson, Roman Law and Comparative Law, pp 166ff, 275 ff 12 See Alan Watson, Joseph Story and the Comity of Errors (Athens, GA, University of Georgia Press 1992) Legal Culture v Legal Tradition 5 and medieval... understanding all legal sources.4 The core of law is authority Law must be authoritative If law is totally ignored in practice it scarcely deserves the name of law. 5 But what makes legal rules and institutions themselves authoritative? In different ways in different societies patterns for authority emerge Most of the peculiarities of law and they are legion—are to be explained by the search for and the... did such a distinction arise and survive? What are the roots of modern codification? Do codes show the way ahead? What is the relationship between the English law and the law of continental Europe? Is there a bar to future harmonisation other than that of the tradition and culture of lawyers? Should the way ahead for the integration of law in Europe lie in a new system of legal education?14 My personal... work as a comparative legal historian Comparative legal history is largely an unexplored field It confronts dramatically the basic issues of the relationship of law to society, and of the factors in legal change: why change occurs when it does, how it does, and the direction of change It promotes answers that are radically different from those proposed by sociologists of law and historians of one legal... on the importance of taxonomy The efforts have been efforts of construction and not deconstruction Law is presumed and sought to be explained or justified in terms of the larger ontological notions If we think of law as a social good, there is nothing here which is alarming The laws of the world should emerge strengthened from this demonstration of interrelationships and larger forms of intellectual . Professor of Law and Jurisprudence at the Katholieke Universiteit Brussel and dean of the law faculty. (luc.wintgens@kubrussel.ac.be) Marek Zirk-Sadowski is Professor of Law at the University of. ‘deep level’ of the ideological background of law and legal practice, and an ‘intermediate level’ of other elements of legal culture, such as the socio-economic and historical background of law) ; —. Methodology and European Law Can Methodology Change so as to Cope with the Multiplicity of Law? 91 Karl-Heinz Ladeur 7. Comparative Law of Obligations: Methodology and Epistemology 123 Christian