One can argue as some comparativists do, that besides two legal families, those belonging to the common law and those which have roots in the Roman tradition, there is also a third one: that of the mixted systems. Two examples are present in mind: Scottish and South American law. Japanese law, although constructed upon reception of French & German civil law, is essentially mixted. Some notice, that most of the contemporary legal systems are already «hybrid» in the essence, because they contain elements from other legal orders, or that they will be become so.
On the other side, there is much talk about globalisation and post-modern trends in the contemporary legal evolution. Some point out to the emergence of lex mercatoria, then to the attempts to unify law of contracts, law of torts and international litigation, together with the Europeanisation of the national laws in the European Union. German legal sociologist Manfred Rehbinder (Rehbinder, 1993, 138-9) has proposed a scheme of five main trends in contemporary legal evolution: trend towards unification (Vereinheitlichung), socialisation (Sozialisierung), increase in legal production (Anwachsen des Rechtsstoffes), specialisation that comes together with bureaucratisation and finally, rationalisation and scientification (Verwissenschaftlichung). In short, one can foresee emergence of a harmonised, if not unified legal systems, which will close the gap between Continental & Common law. Yet, there are numerous obstacles to the unification, harmonisation and even convergence of legal systems. They can be noticed even in Europe, where attempts to design a new universal European code of private law, have not be given a particularly warm reception.
The process of convergence of the contemporary legal systems represents probably a long, spontaneous and progressive evolution. The dangers consists in the possibility - which is visible in some domains of the contemporary law, perhaps expressed mostly in the international private law - that this evolution leads towards a hybrid, mixted and obviously incoherent legal order.
It is well known that law developed in Rome as a particular combination of the reliance upon basic codes (the Laws of Twelve Tables), activities of a public official called a praetor and those of the learned lawyers - jurisprudentes, containing also fundamental principles and some natural law premisses, taken mostly from the Greek philosophy.
According to the valuable insights into ancient legal history by French legal philosopher Michel Villey, Roman law in the classical period can be considered primarily as judge-made law (Villey, 1983). Using a casuistic method, it was similiar to the Common law tradition. Nevertheless, in classical times, a legislative activity was also developed; besides the afore-mentioned Law of Twelve Tables, there were other written or legislative sources of law, such as emperor's proclamations, & praetor's edicts. Opinions of legal experts were appreciated and often summarized into «regulae iuris» serving as a source of law.
Considering «law « as a kind of art or technique for solving disputes, Romans made law a flexible instrument which was constantly revived in the courts' practice. As Villey points out, Roman jurists did not feel constrained by the statutes or legal doctrine. They thought that law should not be induced out of rules, but that rules have to be derived out of law, seen as a series of «causa», i.e. matters of dispute. They also found that law could be explained in a great part through general principles called «maxims». In fact, their law-making was directed by the impulse for application of justice in the Aristotelian sense, contained in the famous definition of law as: »suum cuique tribuere«.
In spite of the divergent sources of law, Roman legal practice, produced a coherent body of law together with principles without much theorizing. Thus an unity was achieved - which was challenged only later - in part thankfully to a skilfull organisation of the judiciary. After the Iustinianian codification, came foreign imports and tribal customary law, which denatured concepts and achievements of the classical period.
The fate of law in the early Middle Ages is often depicted as the fall from refined judicial reasoning of Roman times to the fragmentary and sectorial
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rule of customary law, which was upheld by local, often informal agencies. Nevertheless, soon came the movement to codify customary law and also to revive Roman legal tradition what is known as «reception of Roman law«. The Roman law appeared as valuable not only for conflict resolution, but also for resource allocation, making property and contract central concepts of the emerging civil law.
It is important to underline that the coherence of the legal production and reasoning in the Middle Ages was a result of ther common legal culture of jurists which was based upon not only juridical, but also philosophical and rhetoric-argumentative foundations. (Vogenauer, 2001). One can observe the same mode of thought all over Europe, including England.
If we look closely to the legal evolution in Europe in times before and immediatly after the great codifications, then one can observe two approaches to the legal science and practice. First one consisted in the careful examination of texts that preceded codification, using references to Roman and later sources, including such authors as Blackstone, Domat, Grotius, Heineccius, Pufendorf, Wolf and others. The legal science was based on the study of principles taken from the Roman jurisprudence or philosophy. The idea was shared in both French and German learned circles that the construction of codes of civil law, does not dispense with learning, but presupposes it (Gordley,1995, 556).
Then came the change. First in France prevailed the spirit of formal exegesis, which made superflous reference to any external sources, outside the Code civil. The idea was put in words by Demolombe: »the texts before all else«. Similiar movement occured in Germany, but almost a century later after the promulgation of BGB. In legal science then prevailed, according to Franz Wieacker, the movement »from scientific to statutory positivism«.
Curiously enough, it is less known that Anglo-American law also developped by borrowing from Roman and continental sources. The categories such as contract, torts, lialibility and property, organized into civil law branch, were introduced under the influence of foreign sources (Gordley, 558). Thus, legal reasoning at the beginnings of the Common law evolution, was open to foreign sources and doctrine. It is only after 1830, that appears so-called »literal rule«, which imposed search for a literal meanings of texts.
After this reversal of a perspective, a need for a transnational legal approaches, which prevailed in the past, was lost, and the jurists became more parochial than ever.
Jeremy Bentham argued that it would be beneficial to get rid of common law, which he regarded as a »shapeless heap of odds and ends«. (Quoted in D. Dyzenhaus/M. Taggart: Reasoned decisions and legal theory, in: D. E. Edlin/ed./ : Common law theory, 2007, 134-170, p. 134). He believed that being a mess, such law leads to uncertainty, and permits judges to arrogate power of the legislature. As such, it was contrary to the principle of »utility«, which was a main tenet in Bentham's moral philosophy. In fact, if Common law appears as »a mess«, that is not only because of vast and not easily surveyed series of courts' decisions, but also because it contains heterogenous elements, i.e. case and customary law. They, besides the statutes, together with an unwritten consitution, belong to the body of English law. According to Gardner, common law can be defined as: »..case law combined with judicial customary law, concerning the reception and use of case law. In both respects, it can usefully be contrasted with legislated law« (Gardner, 2007, 74).
How the unity and continuity of such divergent body of norms was achieved through long lasting history of the Common law? One can point out to several mechanisms, both institutional and those deriving from the legal culture. First of all, in the past centuries English law consisted of two separate legal systems, common law and equity. The Court of Equity was known as Chancery, and was supposed to revise decisions of lower courts on grounds of natural justice and fairness. In equity system, the concept of trust was introduced in order to avoid injustice and later to divide ownership or to design flexible rules of property (Cf. S.M. Waddams: Introduction to the study of law, Toronto etc., 1987, 110-1). Equity also developed so-called »remedies «, especially for contract breaches. As a matter of fact, equity system was processual in essence or »remedy driven«. It has also represented the basic element of flexibility in the legal system as a whole.
The idea that law derives or stays upon some extralegal foundations is not a new one and is generally
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accepted even today, if we consider biological, enviromental and social premisses of normative production. But the idea that it is possible to develop normative standards from the supposed natural foundations of law, is much more controversial.
There have been several main streams in the natural-law thought. Besides Aristotle, who claimed that man is naturally inclined to be moral, rational and social, one can point out especially to the Stoic conception of natural law. For law theory, perhaps the most valuable were St. Thomas Aquinas teachings about natural law. Aquinas found that besides instincts for procreation and self-preservation, there is also a basic undersatanding of good and evil. This observation leads us to consider if there is a natural appeal to values in legal reasoning and whether both jurists and laymen share a common sense of justice.
Already in the 16th and 17th centuries, the jurists have accepted the idea that natural law can serve as a test of the validity of positive law. The idea that there is a three-tier hierarchy of different legal systems, such as law of God, the law of reason (natural law ) and positive (human) law was also familiar to English jurists, following the teachings of Augustine and Aquinas. Even the Kantian idea of moral concepts based upon reason alone, could be interpreted by Fichte, in the context of natural law.
Without entering into detailed exposition of natural law theories and their impact on legal reasoning, we would like to point out to the following: naturallaw thought has made possible to view legal system, not only from the point of view of norms alone, but also through ideals of social life or in other terms -values. The natural-law approaches have in this and other ways contributed to the more complex view of law, including principles and values, besides doctrines about »nature of things« (Natur des Sache).
It could be noted, that even the contemporary positivists do not contest that value judgments are necessary, if we want to understand law, both as a concept and as a social practice. One can distinguish values and legal principles, in the sense that values such as peace, justice, security and legality, are situated on the meta-juridical level, or to put it otherwise, together with Zippelius, they are the »guiding ideas« which govern not only the legal system, but belong also to the realm of social consciousness and human culture in general. (Cf. D. Vrban: Drľava i pravo, Zagreb, 2003, 405). Legal principles are more specific or technical, and they include well- known Roman praecepta iuris. They are for instance: suum cuique tribuere, pacta sunt servanda, golden rule, principles of responsibility, of proportionality etc. This conception is in many points similiar to that of Dworkin, who argued that legal system is essentially not an entity of norms, but of principles.
It is customary to use traditional Latin maxims of law as an expression of general principles. In general, it can be said, that principles are not created, but primarily, derived from the basic understanding and professional knowledge of law. One can distinguish three kinds of principles: universal, those belonging to the international public law and principles of the European integration (Andres Santos, 2004, 353).
While values such as justice (fairness) could be seen as fondamental to the legal reasoning since centuries, it is doubtful whether such place could be ascribed to the concept of «utility».Utility as a an objective appears certainly in the legal policy (Rechtspolitik), and is even present in the Rawlsian considerations about fairness. Contemporary developpments on the legal scene, especially when private law and business transactions are considered, suggest that utility tends to become a new dominant value at the expense of justice, legal certainty and formal legality. Simultaneosly, attempts to build a new approach to law on these premisses, known as «economic analysis of law», indicate a possible turn in the understanding of law.
If we start with standard approach to business transactions, then the law which regulates them makes a part of particular national state jurisdictions. In this sense, international business transactions, belong to the domain of private law, and have been traditionally on the Continent considered as a particular branch of it (for instance in Germany and France: Handelsrecht/Droit commercial). But, during last decades, the importance of state in this domain has been declining as transnational business networks rely more and more on trade custom, and non-state dispute resolution networks. One can speak about emerging global system of quasi-legal regulations. One can notice also the increasing role of quasi-legislative institutions such as International Chamber of Commerce, the International Maritime Commission and other kinds of business associations.
Facing this trend towards «transnational legal pluralism», some theorists have proposed new con-
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cepts to deal with this phenomena. Thus, Gunther Teubner speaks about »lex mercatoria« as a kind of »non-oficial« legal order, which would correspond to a kind of »global law without a state«. Such kind of law appears, looking from one side as a »non-law«, and on the other side as »real law«. Lex mercatoria can be defined as »a delocalized private law based on the customs of international trade, and other forms of non-traditional rules in the regulation of transnational business conduct and dispute-resolution« (Wai, 2002: 212).
One can link this observations about ambigous character of new commercial customs and regulations, to the theories of post-modernism. In this sense, one can even recon-sider concept of law through the lenses of »game« (Kerchove/Ost), or as a »discourse« (Lyotard), »autopoietic system« (Luhmann), »language« (Derrida) etc. It is doubtful whether these post-modern concepts of law, point to the emergence of the new meta-juridical phenomena, or to the dissolution of law as a coherent normative system. Without doubt, transnational commerce and multinational corporations as well as developments within international law, challenge the supremacy of state in the production and legitimation of social norms. One has to admit, that besides state law there are also other normative orders, such as »soft law«.
Traditional legal systems of the contemporary European states which are members of the European union are rather different, although there is a prevailing opinion that all Continental systems belong to one sphere of Roman law tradition (sometimes called »Romanic-German«). If we divide these systems into »families« with similiar features then, one can consider that there are four such groups: Latin countries (France, Italy, Benelux states, Spain & Portugal), German group (Germany, Austria, Switzerland & Greece), Nordic group (Danemark, Norway, Sweden, Iceland & Finland), and finally Common law group (England, Wales, Scotland, Northern Ireland & Republic of Ireland). Given the differencies in the legal institutes, language and cultures, one can not easily foresee an unification or even harmonisation of law in Europe. One can speak better about convergence or approachments (French: rapprochements) in this sense, although there have been more optimistic visions of an unified law of Europe since a long time. It is not our aim to consider the problems of the European legal structure and evolution in depth, but only to single out some important trends in this evolution.
There are several techniques which could be used in order to achieve the afore-mentioned convergence or unification of laws. We shall mention five of them: 1. Codi-fication, 2.Drawing a model code which amounts to a soft law, 3. Partial (segmentary) unifi-cation in the domain of particular fields of law, such as contracts or instance, 4. Definition of common principles in private law as a whole or in some particular branches of it , & 5. Use of directives as »self executing« orientations.
So far, harmonisation of law between members states in the Union, has been achieved mostly by partial unifications in the domain of what may be called »public economic law«».On the other side, one could not deny remarkable results in the protection of rights and fundamental freedoms, which have been settled down already in the European Convention in 1950, and later completed by various charters enacted either by Council of Europe or the EC. Nevertheless, harmonisation of law within Union proceeds mostly throught directives, which refer to a particular aspects of private law,creating thus »individual islands of harmonised law«. One of it The product liability Directive enacted in 1985 was considered as one of the great accomplishments of the process of legal harmonisation.
One could make several observations regarding the role of law in the process of European integration, following the insights by Thomas Möllers, which appear as still actual, even if they were made ten years ago (cf. T. M.J. Möllers: The role of law in European integration, Am. Journ. of Comp. Law, XLVIII, 2000, 4: 679-711).
1. Essential feature of the legal situation in the European Union is a duality between national and European laws, which could not be overcome even in the distant future. So far EU law has come into existence only in the domain of the first pillar (former: European communities), while the second (foreign & security policy) and third (justice & home affairs) were left to ad hoc agreements and discretion of member states.
2. This duality presents in some aspects serious disadvantages. Coexistence of two legal systems complicates application of law. This is particularly visible in the field of so-called »directives« (Cf. for instance: Y. Schnorbus: Die richtlinienkonforme Rechtsfortbildung in nationalen Privatrecht, Archiv f. die zivil. Praxis, Bd. 201, 2001, 860-901).
3. The idea asserted by some legal historians (Zimmermann) that medieval ius commune could be revived as a base for a new unified European law, disregards modern currents in law noticeable particularly in consumer law, business and financial transactions etc.
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4. On the level of the European law, there is still a lack of general principles which could attain a common consensus. True, one can mention some of them such as subsidiarity, proportionality, general prohibition of discrimination, direct effect etc., together with the common constitutional principles. There is also more or less a common approach to environmental and social aspects of the economy. Still, the agreement is lacking in several important branches of private and public law.
5. Claims that EU law functions as a self-contained regime without connection with international law are not justified. (Cf. M. Serąič: Odnos prava Europske Unije i medunarodnog prava, Zbornik Pr. Fak. u Zagrebu, 55, 2005, 5:1201-1220). The relationships between EU and international law are nevertheless complex, and one can notice certain divergencies between them.
As concluding remarks, one can add that there are two main obstacles to the European legal and cultural integration: firstly, discrepancy between the national, and the European legal system, when values and principles are concerned, and secondly, different judicial styles of thought, which can be conceived as particular legal »grammars«. As for the first remark, there is a striking example how economic efficiency as a basic assumption of the competition policy of the Union, supplants classical principles such as »public interest« (Cf. for instance, C. Leroy: L'intérêt général comme régulateur des marchés, Rev. trim. de droit européen, 37, 2001, 1:49-61).
When human rights are considered, some authors mention that there is an »European constitutional heritage« or »constitutional order«, which transcends the limits of the member-states of the Union and encompasses all signatories of the legal instruments dealing with rights (cf. The principle of respect for human dignity, Strasbourg, Council of Europe, 1999, 10-11).Therefore, one could speak about constitutional »rights space«, which includes for instance, several states outside the EU, as Russia, Ukraine, Turkey and all the countries of former Yugoslavia. There are several legal instruments dealing with human rights: European Convention on Human Rights together with its protocols (particularly significative is Protocol No. 6 abolishing the death penalty), the European Convention on the Prevention of Torture, the Framework Convention for the Protection of National Minorities, the European Social Charter, the European Charter of Local Self-Government and the Charter for Regional and Minority Languages.
Although there is a catalogue of rights provided first by the European Convention of 1950, then contained in other documents, as well as in the constitutions of member-states (German Grundgesetz is the most elaborate on this topic), there are still some uncertainties regarding meaning and scope of particular rights and especially around the concept of »fundamental rights« (Meindl, 2003). The concept of »Grundrechte« is in German doctrine deep-rooted in the idea of »pre-positive« rights (Böckenförde), what reveals probably the remnants of natural-law reasoning which has been stronger outer Rhine after 1945, than for instance in France and other Latin countries.
The problems arising in conncetion with the rights in practice are twofold. First of all, not all documents relevant for the protection of rights are legally binding. Some them, such as the Charter on regional and minoritity languages remain in the state of recommendations, that is, they correspond to a kind of a »soft law«. On othe other side, general nature and scope of some rights leads to the different interpretations by the national courts. Some rights such as »human dignity« are sometimes even thought as not belonging to the directs sources of law.
Moreover, interpretations of the protection of life (abortion), of the concept of privacy, of technological and state surveillance, as well as some other rights, depend on the local legal culture. This has been, as the legal language itself, constructed through history in connection with external influences and the national societal culture.
Without entering into the meanders of international private law or international commercial litigation, we should attempt to single out some salient trends in this domain which concern also global legal evolution.
The most important transformation in the international private law has occured with decline of state intervention in the procedural questions and the spread of the institution of arbitration in economic matters. Simultaneously, one can note a tendency to substitute conflict of laws technique proper to international private law with new more substantive instruments. Thus, former conflict of law rules have given way to a kind of new quasi-substantive law, that is based upon free choice of jurisdictions and laws. This change has led to a situation, in the words by a Slovenian author, that »arbitration institutions and lawyers have become de facto governments and courts of international trade, whereas the States themselves have very limited control over the
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stage of recognition and enforcement proceedings« (P. Flere: Impact of EC competition law on arbitration proceedings, Slovenian Law review, III, 2006, 1-2:155-175, p. 173-4).
Such increased autonomy of transnational business has no equivalent in transnational regulation. It may be argued that over-emphasized party autonomy presents risks to the actors who lack adequate information and bargaining power (WAI, 2002, 271).
Contemporary civil litigation in commercial matters shows thus, again as in the domain of international trade, emergence of a non-state based norm system. Therefore, it is correct to observe that state has lost its normative monopoly in transnational economic issues. Secondly, it is obvious that it has lost also monopoly in adjudication as non-state agents such as arbitration tribunals, take over the place of state courts. Finally, the decline of reference to traditional international private law rules and the state-based litigation, arises questions about transparency and legal certainty of new jurisdictions.
One can speak about financial or capital markets from the point of view of »good governance« and discuss actual crisis in this field, but our aim remains different. We should like to sketch briefly, some important points concerning legal properties of this field.
When international financial instruments and transactions are concerned, then the control over them is exercised in principle by the international bodies such as the IMF, The World Bank, International Chamber of Commerce and similiar European monetary and financial institutions, simultaneously with national agencies. But, parallely, there is a growing importance of quasi-informal networks. Thus, there are numerous coordination and consultation bodies which do not belong to the official network of international organisations. One can cite examples of G-7, G-8, G-20, Davos annual meetings on economic issues, etc.
One of the rare works concerned with this peculiar branch of law, and devoted principally to the international finance from the point of view of international law, that of Maria C. Malagutti, (Malagutti, 2003), underlines relative autonomy not only of the financial control bodies in general wheter they are national or international, but also emergence of the new regulation standards. They are prepared by the private sources and contain for instance codes of best practice, standards criteria, rules of conduct etc.
One can suggest that as transactions are becoming more international and removed from govenments' control, there is also a similiar trend in the field of international finance. Whether, one can speak about new kind of lex mercatoria it is still open to reflexion.
The question of the coherence of the legal order is seldom discussed in the literature. Nevertheless, one finds many works which deal with the traditional discrepancy between law in making and law in action. However, the relationship between norms as abstract entities and judicial decisions, is a complex one and involves substantive (not formal or logical) judicial reasoning. Therefore, not the statutes, but judicial and administrative practice, constitute law as a real phenomena. In this sense, it has been convincigly argued that the opposition between production and application of norms is a false one (Pavčnik, 1997). The real question is how the law fulfills its main function: solving cases and disputes. In this process, not only norms, but also factual situations, values, principles and argumentative techniques are involved.
From this point of view, coherence of a legal order depends on the harmoni-sation between legislation, doctrinal developments and judicial reasoning. One can speak about integrative force of legal orders. Looking at the history of Western legal systems, there have been at least three main integrative frameworks. First to consider is the Roman jurisprudence of the clasical times, secondly, European medieval tradition of ius commune,which combined natural law premisses and argumentative techniques based on rhetorics (as illustrated in the works of Thomas d'Aquinas), and thirdly, legalistic-positivist orders, when modern codifications took place, and the statutory law prevailed upon custom and free judicial reasoning.
One should dismiss the idea present in some visions of the unified law, that it is possible to produce uniform rules, which will be subject to the unambigous interpretations by regional jurisdictions. It is important to emphasize that legal culture preceeds the law and not vice versa. Therefore, there could not be coherent harmonisation and unification of law without the common legal reasoning.
One should not forget also that the main function of law is to contribute to social justice. Although, it may seem as a vague concept, open to different and controversial interpretations, social justice essentially refers to fairness in individual and group conduct. When fairness and accordingly, prevention of harm in interpersonal relations, are considered, than the role of law is irreplaceable. Therefore, there is a clear danger in simplistic legal reforms and trends which
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supplant law with indeterminate global markets and actors. Simultaneously, it should be understood that there are limits to the reasoning based upon economic efficiency.
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Lábjegyzetek:
[1] The Author is from Faculty of Law University of Osijek.
Visszaugrás
