New Directions in Comparative Law

New Directions in Comparative Law

New Directions in Comparative Law

Edited by

Antonina Bakardjieva Engelbrekt Professor of European Law, Stockholm University, Sweden

Joakim Nergelius Professor of Law, Örebro University, Sweden

Edward Elgar Cheltenham, UK • Northampton, MA, USA

© The editors and contributors severally 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2009936756

ISBN 978 1 84844 318 1

03

Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound by MPG Books Group, UK

Contents List of contributors List of abbreviations Preface by Joakim Nergelius

vii ix xi

Introduction Antonina Bakardjieva Engelbrekt and Joakim Nergelius

xiii

PART I COMPARATIVE LAW, LEGAL AID AND DEVELOPMENT 1. 2. 3.

4.

5.

Legal change and economic performance: an assessment Gianmaria Ajani Legal cartography and comparative law Per Bergling Development assistance in the legal field: promotion of market economy v human rights Michael Bogdan Can human rights be exported? On the very idea of human rights transplantability Claudio Corradetti ‘Cut-and-paste’? Rule of law promotion and legal transplants in war to peace transitions Richard Zajac Sannerholm

PART II 6.

7. 8.

3 19

33

40

56

COMPARATIVE CONSTITUTIONAL LAW

Ontological and epistemological complexity in comparative constitutional law Otto Pfersmann European constitutional law: its notion, scope and finalities Rainer Arnold Governmental accountability in autonomies: Åland Islands in comparison with select autonomies in Europe and elsewhere Markku Suksi

v

81 99

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9. 10.

The viability of constitutional/non-constitutional comparison Johan Lindholm Comparative aspects of fundamental rights in Germany and Central and Eastern Europe: the example of Ukraine Kateryna Karpova

PART III 11.

12.

13. 14. 15.

136

151

COMPARATIVE PRIVATE AND ECONOMIC LAW

Making the Principles of European Contract Law: theoretical and methodological aspects Ole Lando The questionable questionnaire: reflections on comparative law method in light of Principles of European Tort Law Mårten Schultz Legal services in conveyancing: a European comparison Christoph U. Schmid Constitutionalisation of private law Anna Lytvynyuk Toward an institutional approach to comparative economic law? Antonina Bakardjieva Engelbrekt

165

173 185 201 213

CONCLUSION 16.

Index

Modern comparative law: the forces behind and the challenges ahead in the age of transnational harmonisation Peter-Christian Müller-Graff

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Contributors Gianmaria Ajani, Professor of Law, University of Torino, Faculty of Law. Rainer Arnold, Dr, Professor of Public and Comparative Law, Jean Monnet Chair of European Law, University of Regensburg. Antonina Bakardjieva Engelbrekt, Professor of European Law, Stockholm University. Per Bergling, Professor of Law, Umeå University. Michael Bogdan, Professor of Law, University of Lund. Claudio Corradetti, Researcher in Political Philosophy and Bioethics, European Academy, Bozen; Temporary Lecturer, University of Rome II, ‘Tor Vergata’. Kateryna Karpova, Dr, University of Regensburg; M.A. in Foreign Policy, Diplomatic Academy, Kyiv; M.A. in Public Policy, University of Erfurt. Ole Lando, Dr, Dr H.H. Mult, Professor Emeritus, Copenhagen Business School; Chairman of the Commission on European Contract Law. Johan Lindholm, LL.D., Senior Lecturer, Umeå University. Anna Lytvynyuk, LL.M. Kyiv National University of Taras Schevchenko, Institute of International Relations; MA College of Europe, Warsaw, Poland; PhD Candidate, University of Regensburg. Peter-Christian Müller-Graff, Director of the Institute for German and European Economic Law, o. Univ.-Professor, Dr. Dres. h.c., University of Heidelberg. Joakim Nergelius, Professor of Law, Örebro University. Otto Pfersmann, Professor of Law, University Paris I Panthéon-Sorbonne. vii

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Christoph U. Schmid, Professor of European Private and Economic Law and Director, Centre of European Law and Politics at Bremen University. Mårten Schultz, Associate Professor, Stockholm University and Örebro University. Markku Suksi, Professor of Public Law, Åbo Akademi University. Richard Zajac Sannerholm, LL.D, Örebro University.

Abbreviations ABA ADB ADR AGOA CECL CEN CENELEC DfID ECHR ECJ EGTL EU FCC GAO GATT HGB IASC IBRD ICC IJC ILO IMF IPF IViR JICA JSAP LAD LAP LNA LOT NCE NGOs OECD OHADA

American Bar Association Asian Development Bank Alternative Dispute Resolutions African Growth and Opportunity Act Commission on European Contract Law Comité Européen de Normalisation Comité Européen de Normalisation Electrotechnique (European Committee for Electrotechnical Standardization) Department for International Development European Convention of Human Rights European Court of Justice European Group on Tort Law European Union Federal Constitutional Court General Accounting Office General Agreement on Tariffs and Trade Handelsgesetzbuch (Commercial Code) Inter-Agency Steering Committee The International Bank for Reconstruction and Development International Chamber of Commerce Independent Judicial Commission International Labour Organization International Monetary Fund Institutional Possibilities Frontier Institute of Information law in The Netherlands Japan International Cooperation Agency Judicial System Assessment Program Law on Administrative Disputes Law on Administrative Procedure Legal system needs assessment Legal Origins Theory New Comparative Economics Non-governmental organisations Organisation for Economic Co-operation and Development The Organization for Harmonization in Africa of Business Laws ix

x

PECL PETL SAR SIDA SIGMA UDHR UNCTAD UNDP UNIDROIT UNODC UNSG WB WHO WIPO WJP WTO

New directions in comparative law

Principles of European Contract Law Principles of European Tort Law Special Administrative Region Swedish International Development Authority Support for Improvement in Government and Management in Central and Eastern Europe Universal Declaration of Human Rights United Nations Conference on Trade and Development United Nations Development Programme International Institute for the Unification of Private Law UN Office on Drugs and Crime United Nations Report of the Secretary-General World Bank World Health Organization World Intellectual Property Organization World Justice Project World Trade Organization

Preface This edited volume has its foundation in the conference ‘New Dynamics in Comparative Law’ which was held at the University of Örebro in May 2007. It is, almost two years after the conference, a great pleasure to be able to present the rich material which the conference generated in book form. While the content as well as the methodology and ideas underlying the conference are presented elsewhere, I would here like to dwell briefly on what this conference meant for the topic of law at the University of Örebro. Since this is a very young university, where the first professor of law was installed in 2003 and the full legal education started as late as 2005, international conferences of this kind – of which this was the second to be held – are tremendously important, needless to say. Not only may they, hopefully, contribute to making Örebro more well-known as a venue for high-standing legal and scientific discussions. They will also inspire a small, young group of scholars and teachers, who strive to establish a new, untraditional centre of legal education and research. In fact, legal education in Örebro has always tried to have an international profile, paying more attention to European law, comparative law and public international law than any other Swedish university. Still, in a situation where resources are ever more scarce, old, well-established universities and law faculties may have certain advantages. To put it simply, these are not the easiest times to put new universities on the map. Against that background, it was a true pleasure to welcome a highly qualified group of international scholars focusing on comparative law, of different ages, gender and origin, to Örebro in May 2007. All the activities during the conference – plenary sessions, work groups and the purely social program – went down really well and the discussions were, undoubtedly, extremely constructive. Therefore, it is an even greater pleasure now to be able to bring the interesting papers and speeches from the conference together in this book, which will hopefully stimulate future debate in comparative law, its methodology, purpose, development and usefulness in various sectors, in the years to come. For the happy fulfillment of this editing process, I wholeheartedly wish to thank not only the writers but also the staff at Edward Elgar, who here once again show their advanced technical skills. For the scientific input, I am of course deeply grateful to my co-editor xi

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and former colleague Professor Antonina Bakardjieva Engelbrekt, then in Örebro, now in Stockholm, though still paying a lot of attention to producing this book. Finally, I wish to thank Maria Carlström-Puhakka for her efforts in preparing the conference and Ms Lise Wållberg for her valuable work in formatting the contributions. Joakim Nergelius

Introduction Antonina Bakardjieva Engelbrekt and Joakim Nergelius This book opens with a bold claim. It argues that a discipline with a long and reverent history such as comparative law is presently characterised by an important new dynamic that is taking it into new directions. Some may object that it is inherent to human nature that each generation perceives its experiences as new and unique, and that scholars are particularly susceptible to this proclivity to overemphasise novelty, given their vocation-related search for the new and the unconventional. At the same time scholarly work, at least theoretically premised on the notions of scrupulous research, rigorous methods and honest reporting, should allow for verifying and falsifying sweeping claims and vague intuitions. So, can we with a level of academic seriousness maintain that there is something significantly new and particular about the way comparative law is approached, employed and practised today, compared with the days of Montesquieu and Aristotle? The various contributions in this book give different and only partial answers to this overarching question. Our own intuitions when embarking on this project were based on a number of observations. The first is probably a trivial one, namely that the undeniable swings and sways of globalisation have unleashed a previously unseen mobility of human and economic resources. Supported by virtually instantaneous and ubiquitous communication networks, this mobility produces a dramatic increase of human interaction across geographical regions, and inevitably a corresponding interaction between different legal traditions, institutions and mindsets (Hughes, 2002–2003). Second, there is a well-reported exponential increase in the number of practical initiatives in the areas of legal aid and of harmonisation and unification of law. Following the end of the Cold War, which marked the triumph of the Western model of democracy, rule of law and (regulated) market economy, a flurry of activities has unfolded, seeking to engraft a largely successful blueprint onto developing, transition and crises-affected states (Hellman, Jones and Kaufmann 2002). Concerning legal assistance to such countries, scholars nowadays speak of saturation and note fierce competition between donor agencies willing to engage in rule-transfer and institution-building. At the same time, a monumental attempt to match xiii

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economic integration with legal harmonisation results in a stacking of adaptation and unification projects at both regional and global level. Third, even without systematic statistic enquiry, it seems safe to assert that the literature on comparative law has grown exponentially, not least in relation to the topics covered here. Those topics are law and development, private law and constitutional law. This means, in other words, that two very traditional areas within comparative law are being dealt with, together with a ‘new’, dynamic but hitherto less (scientifically) observed area, that of law and development. Consequently, the book contains traditional views as well as new perspectives on comparative law as a legal science. If the increase in legal interaction, exchange and comparative law research mentioned above can be taken as a sign of new dynamics, what have then been the starting premises of the project as to the new directions of the discipline? One significant new trend from a research perspective seems to be that the growing demand for comparative law has triggered critical reflection on the discipline’s theory and methodology. Previously, criticism of underdeveloped theory and methodology was frequently brushed away with reference to Gustav Radbruch’s now famous statement that ‘sciences that have to busy themselves with their own methodology are sick sciences’ (as quoted by Zweigert and Kötz, 1998: 29). The most influential contributions on the comparative law method used to be conspicuously concise and confined to the classical situation of national law comparisons (Zweigert and Kötz, 1998; see however Constantinesco, 1972). Today, however, we can lean on a remarkable number of new scholarly works which address the epistemology and methodology of comparative law seen as a discipline studying the interaction of laws, cultures and traditions in a globalised world (Ewald, 1994–95; Gerber, 1998; Reitz, 1998; Harding and Orücü, 2003; Legrand and Munday, 2003; Van Hoecke, 2004; Reimann and Zimmermann, 2006; Örücü and Nelken, 2007). Related to the above, we can note an increased interest in comparative law from neighbouring disciplines, notably legal sociology, legal history (Watson, 1993; Zimmermann, 2001), law and economics, as well as a reverse trend, that of an intensified recourse of comparative lawyers to social science methods and approaches. Given the abundance of practical harmonisation and legal assistance projects described above, in which comparative law typically is employed as a tool to promote societal change, it is not surprising that legal sociologists have developed a keen interest in exploring the feasibility, effects and desirability of such comparative exercises. The surge of studies on comparative legal cultures and traditions and on legal transplants is indicative of these interdisciplinary endeavours (Gessner, Hoeland and Varga, 1996; Nelken, 1996; Budak and Gessner, 1998; Van Hoecke and Warrington, 1998; Feest and Nelken, 2001; Glenn, 2004; Grillo, 2009). In a different vein, economists have been intrigued

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by the apparent influence of legal institutions on economic efficiency and on the divergent impact that different legal systems and regulatory traditions seem to exert on economic efficiency (Ogus, 2007; Djankov et al, 2003). Whereas economists have early been among the enthusiastic supporters of comparative law research (Buxbaum, 1996) we can now observe a more conscious and structured attempt at linking the two disciplines in theories of comparative law and economics (Mattei, 1998), new comparative economics (La Porta et al, 1998; Djankov, 2003; see also Berkowitz et al, 2003) and varieties of capitalism (cf Hall and Soskice, 2001; Lane and Myant, 2006). Another novel tendency can, in our view, be discerned in the expansion of the domain of comparative law studies and projects from the narrow ambit of private law to economic (regulatory) and constitutional law. Coming from the two doctrinal ends of the public/private divide, we have more recently observed a trend toward blurring the boundaries between public and private law and a growing acknowledgement of the need to investigate the interrelationships between the two. Only some decades ago, comparative law was an arena reserved chiefly for private lawyers. Contracts and torts were the typical topics of investigation (see e.g. Rabel, 1936, 57; Zweigert and Kötz, 1998) with occasional trespasses into non-private law areas. It is probably, again, the demise of the ideological East/West divide of the Cold War and the deepening and widening ambitions of political integration projects (notably the EU) that have opened up for unfettered comparative inquires in the field of constitutional law and political organisation (Favoreu, 1990; Tushnet, 1999; Jackson and Tushnet, 1999; 2002; Arnold, 2003). The search light has been redirected from the crude distinction between democracy and dictatorship to studying, in a comparative manner, more subtle nuances and variations on the democratic theme (Djankov et al, 2003). In a similar manner, the stage was cleared for broader approaches to exploring alternative – public, private and mixed – institutional arrangements for legally framing the economy, but also for recognising the impact of constitutional rights and governance design on economic and private law (cf Cafaggi and Muir Watt, 2008). Finally, the most challenging task for contemporary comparative law appears to be to redefine the role of the discipline in an era of Europeanisation and globalisation, where national law coexists and interacts with supranational and international law, and where legal rules are produced by a variety of institutions alongside and beyond the nation state. In this brave new world of legal pluralism, comparative law stands out as an indispensable tool for understanding and accommodating different legal cultures and institutional traditions. At the same time, comparative law with its preoccupation with municipal law of sovereign states (Twining, 2007) is, probably quite predictably, plagued by what has aptly been dubbed as ‘methodological nationalism’ (Beck, 2000; Joerges, 2004; Smits, 2008). It is therefore not

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surprising that a considerable scholarly effort is now vested into identifying and testing new methodological tools for adapting the discipline of comparative law to the study of multi-level governance (Joerges, 2004; Dehousse, 1995; Lenaerts, 2003; Nergelius, Policastro and Urata, 2004; Petersen, Kjær, Krunke and Rask Madsen, 2008). The contributions in this book take the pulse of these new dynamics in comparative law. Despite the large number of scholarly works that have recently been devoted to comparative law, what seems to be missing is a dialogue between scholars ‘doing’ comparative law and scholars ‘theorising’ about it. The theoretical and methodological discussion has so far largely remained the privilege of legal theorists who do not always personally engage in applied comparative law studies. And, conversely, comparatists are not necessarily closely following and getting involved in the theoretical debate. Our ambition has thus been to fill this important gap and to link the theoretical and methodological debate with insights from everyday comparative research. The contributions in the volume highlight a number of themes in the European and the international context, where comparative law can make a valuable contribution and where a discussion on the theory and methods of comparative law is particularly pertinent. The articles in the book are organised within three broadly defined problem areas. Within the first area, the focus is on the use of comparative law in legal aid programmes and in various instances of ‘export of law’. In his contribution Gianmaria Ajani revisits his earlier theme of legal transplantation (Ajani, 1995). He draws attention to a process of shifting allocation of the authority to change the law from national parliaments and judiciaries to foreign states (through country targeted legislation), international organisations (IMF, IBRD) and international business and transnational trade practices. Being increasingly conceptualised as instruments for societal change, legal rules thus do not derive their legitimacy from internally generated political bargaining between corporate groups and domestic actors, but rather from emulation of best practices, identified by foreign and supranational bodies on the basis of comparative assessment of the expected effect on economic performance. Ajani sees several problems with this development: first, new law remains out of touch with local epistemic communities and remains ineffective. An externally generated process of legal change reaffirms a formalistic, positivist understanding of law leading to the familiar ‘law in the books’ malaise. Ajani therefore calls for recourse to a broader comparative law methodology in line with Sacco’s legal formants approach (Sacco, 1991) and acknowledging the interdependence between legal frameworks and enforcing institutions. He sees the role of comparative law methodology in tempering perceptions about the neutrality of law and instrumental use of law. The linking of comparative law with the new institutional economics is suggested as a productive way of

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bridging the need for uniformity in international standards with sensitivity to local institutional design, ultimately correcting the flaws of normative optimism and indeterminacy. Per Bergling takes a critical look at legal assistance to developing countries. He identifies a need for a consistent holistic methodology for mapping legal systems and for more robust diagnostic of local needs for reform and legal aid. His contribution analyses the multiple information and communication problems plaguing legal development co-operation. Importantly, an emerging method of legal cartography is identified based on intense multistaged communication and exchange between aid providers and aid recipients. The method employs a variety of knowledge-gathering techniques – from the comprehensive study of available written material, through field interviews with target groups and qualitative interviews with identified respondents, to polls and other quantitative methods. At the stage of data analysis, a realistic ‘craftmanship’ approach is accepted and preferred rather than a perfectionist, overly ambitious stance. The latter is seen as poorly anchored in a reality of scarce resources and limited time frames for assistance projects and occasionally even threatening the success of the operation. The chapter provides an account of some of the most important methodological considerations for the articulation of better strategies, and discusses three recent efforts to map entire legal systems: ‘An Introduction to the Vietnamese Legal System’; ‘UNMIBH Judicial System Assessment Program’; and ‘Comprehensive Legal System Needs Assessment for Vietnam’. Michael Bogdan addresses the much debated issue of the interrelations between rule of law and market economy reforms. He argues convincingly that a functioning market economy, including its indispensable legal framework, is a necessary, albeit not always sufficient, precondition of democracy as we know it in the West. His chapter attempts to explain why supporting market-oriented legal reforms is a necessary element in the support for political democracy and human rights. The pragmatic approach taken in the chapters by Bergling and Bogdan is in sharp contrast to the predominantly theoretical contribution by Claudio Corradetti, trying to give an answer to the question of transplantability of human rights. Proceeding from Gunter Teubner’s autopoietical theory of law and in dialogue with the Habermasian theory of moral validity, Corradetti finds support for a two-tier approach to human rights transplantability, where human rights norms are first formulated through a top-down process of legal/cultural interpretation of universally justified formal human rights categories. In the second tier, international norms are reinterpreted through the activation of several social sub-systems, in the ‘legal irritants’ manner eloquently described by Teubner (1998), according to contextual patterns of interpretation and incorporation of the rule. Thus, Corradetti finds an intermediate position between

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Watson’s famous ‘pure theory of legal transplants’ that conceptualises law as an autonomous legal system (cf Ewald 1995), on the one hand, and a complete rejection of transplantability, based on conceptions of law as strictly embedded into and dependent on society, on the other. Clearly legal transplants and transplantability are central themes in this first part of the book. Richard Sannerholm continues the debate on the dichotomy of an autonomous versus a socially embedded perspective on law and the resulting opposite views on legal transplants, i.e. from full acceptance to formulating a ‘law of non-transplantability’ of law. Similar to Corradetti, Sannerholm seems to take an intermediate position, stressing in particular the importance of the process of transplantation. Together with Berkowitz, Pistor and Richard (2003), Sannerholm emphasises ownership and participation in law reform as crucial factors for the success of legal transplants, chiefly through enabling processes of trial and error, innovation and correction. When he then turns to the particular context of legal transplants in post-conflict states a dilemma becomes apparent. Exactly because of the still fresh scars of conflict, internal ownership and participation in reform are difficult to mobilise and trust is lacking. Transplants thus might be inevitable, but it is suggested that donors should look for benchmarks and best practices in countries where similar problems have been solved. International norms, standards and model legislation are also seen as possible solutions, or developing of standardised regulative frameworks at regional level (e.g. Organization for Harmonization of Business in Africa). The chapter provides a rich account of specific difficulties in post-conflict situations and attempts to resolve the problems in real-life initiatives of legal aid. The articles within the second area tackle some most important and controversial topics in comparative constitutional law. The article of Otto Pfersmann, represents a theoretically oriented attempt to define what the concept of comparative law actually entails. According to him, comparative law may never be just another field of study like ‘Swedish law or German law; instead, it should rather be seen as a ‘scientific discipline aiming at objective knowledge’, based on ‘the analytical expertise of a plurality of legal systems’. The article is an ambitious attempt to build bridges between comparative law and traditional legal theory. Rainer Arnold analyses the development within European constitutional law at a time when constitutional rules may be found at, at least, three different legal levels: in the national constitutions, within EU law and in the general principles of law developed by the ECJ, the European Court of Human Rights and also other international legal bodies. This development certainly calls for re-thinking and re-classification (or re-conceptualisation) of a number of crucial terms and concepts within the whole field of constitutional law, as shown clearly and convincingly by this contribution. More discussion on this issue is bound to follow.

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In his chapter, Markku Suksi deals with autonomy and independence of specific areas or regions in Europe, like the Åland Islands, compared to the Basque region, Scotland and other regions in Europe, all from a comparative perspective. Needless to say, this is a highly important but hitherto somewhat neglected area. Johan Lindholm addresses the well-known problem within comparative law of what is actually possible to compare, this time from a constitutional perspective. The question, then, is what to do concerning issues that are classified as constitutional in one legal order but not in others. Hardly surprising, there appear to be two basic approaches or schools, one universal (that seems to be gaining ground) and one more nationally oriented. In this context, Lindholm also touches on recent jurisprudence from the US Supreme Court in this somewhat sensitive area. Also, other comparisons are however important to conduct in the contemporary doctrine. Within the European context, the sometimes differing jurisprudence between national constitutional courts (of which the German one is the most influential) and the European Courts in Luxemburg and Strasbourg is of particular importance, notably in the area of human rights. As illustrated by the article of Kateryna Karpova, those courts have a special significance since they are perceived as ‘role models’ for national courts in Eastern Europe, who are now developing a jurisprudence of their own. The contributions within the third part of this book map and discuss recent trends in comparative private and economic law. Even though the contributions refer to global developments, as for instance Unidroit Principles of International Commercial Contracts, they also reveal a certain European bias by pondering mainly over the challenges of legally framing the internal market of the Member States of the EU. Due to the rather unique processes taking place in Europe, this bias is perhaps understandable. Two of the most fascinating and widely discussed projects of harmonisation of European private law, namely the Principles of European Contract Law (PECL, the Lando group project) and the Principles of European Tort Law (PETL, the von Bahr project) are discussed chiefly from a methodological perspective. The initiator and long-term co-ordinator of the PECL project, professor Ole Lando guides us into the intricacies of designing methodology for harmonisation of laws that is sufficiently attentive to national specificities and yet sufficiently effective to move the enterprise forward. While his contribution is inspired by a belief in the ‘need to unify or harmonise the laws of the world or a region of the world’, other authors like Mårten Schultz are more sceptical as to whether there is sufficient evidence for such a need of total harmonisation. Importantly, Schultz raises serious objections against the questionnaire method for mapping national laws and institutions, often used in big-scale harmonisation projects. He sees the questionnaire as a blunt tool unable to penetrate and

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reflect the complexities of national legal doctrine and thinking in a particular legal area. Yet another approach to harmonisation is demonstrated in the chapter by Christoph Schmid, reporting on a comparative project where a more functional, institutional stance is taken. A successful combination of legal and economic analysis produces a fascinating picture of widely divergent regulation in the vital sector of conveyance services across Europe. Although the contribution does not try to explain the reported discrepancies, entrenched positions of the legal professions at the national level transpires as one powerful explanatory factor. This chapter thus provides a helpful illustration to the contribution by Antonina Bakardjieva Engelbrekt which reviews some recent applications of institutional theory to comparative economic law. The focus is in particular on a series of contributions in institutional economics known as the ‘Legal Origin Theory’ (La Porta et al, 1998) and the New Comparative Economics (Djankov et al, 2003). After discussing the strengths and pitfalls of these theories, Bakardjieva Engelbrekt advances an alternative comparative institutional approach for the cross-country study of institutional choice and design in economic law and policy. Building on institutional theorists like Neil Komesar (participation-centred approach) and Douglass North (historical institutionalism) the approach emphasises the importance of comparing the modalities of actor participation in alternative decision-making processes as well as taking into account the conservative forces of institutional inertia. On a practical level the focus is on procedural and institutional rules which ultimately determine substantive outcomes. The implications of such an approach for the analysis of European integration, seen as a multi-level system of governance, are sketched out. Although the chapters are grouped following classical divisions between private and public law, the ambition has been to critically examine and challenge established categorisations. This is illustrated by the contributions of Anna Lytvynyuk and Lindholm. Whereas Johan Lindholm analyses the feasibility of a constitutional/non-constitutional comparison, Lytvynyuk presents the debate of the so-called ‘constitutionalisation’ of private law, signifying the reach of constitutional rights onto civil litigation. Her chapter presents the evolution of the German concept of Drittwirkung and suggests direct and indirect methods of subjecting private law to constitutional rights. Finally, it briefly touches upon the possible repercussions of the concept of Drittwirkung in the Central and East European Countries. The majority of contributions to a large extent confirm our initial intuitions and assumptions of a previously unseen new dynamic in comparative law. In a concluding chapter Peter-Christian Müller-Graff, after mapping the forces behind this new development of comparative law, succinctly analyses the challenges the discipline faces in the future. The author sees comparative law

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being increasingly burdened with a new task of developing transnational commonly acceptable legal standards. From this perspective the main challenge for comparative law is in his view to preserve a ‘careful scepticism towards the assumption of general universality’. In addition Müller-Graff warns against the risk that comparative law surrenders its distinction-sensitive approach in the quest for general principles. He argues compellingly that the chief responsibility of the discipline lies in strengthening tolerance for equivalent standards and respect for local responsibilities and autonomy. Still, and despite the new dynamics hopefully documented in this volume, there is also considerable continuity in the discipline’s tasks and self-identification. One persisting feature is the openness and vagueness of the very concept of comparative law. As incisively observed by Pfersmann in this volume, one can speak of comparative law in many contexts and imply many different meanings in the concept. The distinction between legislative and scholarly comparative law has also earlier been noted by comparative law scholars (Zweigert and Kötz, 1998: 52). It should here be stated that working with a broad and somewhat vague concept of comparative law and eschewing strict definitions has been a conscious choice and point of departure in this volume. This has helped us to keep an open mind and to accommodate a variety of viewpoints, in an attempt to present the many faces of modern comparative law. However, we are likewise aware that methodological and theoretical concerns should be carefully distinguished depending on whether one is operating in the field of legislative or of scholarly comparison. The normative ambition behind certain comparative endeavours would clearly require different strategies and invoke different methodological tools than the ones that we normally find in purely academic-driven projects. Finally, as some authors with long experience in the field remind us, the main driving force of comparative law remains the same. Human curiosity, which is ultimately at the core of any serious comparative enterprise, is a deeply seated human trait after all (Lando). And it is curiosity that will continue to prompt comparative lawyers to seek legislative, judicial and scholarly inspiration in other legal systems (Müller-Graff) in a quest for generating new knowledge and for enhancing our understanding about a changing and ever more interdependent world.

REFERENCES Arnold, Rainer (2003) ‘Constitutional Courts of Central and Eastern Europe as a Dynamic Source of Modern Legal Ideas’, Tulane European and Civil Law Forum, 99–118.

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Beck, Ulrich (2000) What is globalization?, Cambridge: Polity Press. Berkowitz, Daniel, Katarina Pistor and J-F. Richard (2003), ‘The Transplant Effect’, The American Journal of Comparative Law, 51, 163–203. Budak, Ali Cem and Volkmar Gessner (eds) (1998) Emerging Legal Certainty: Empirical Studies on the Globalization of Law, Aldershot: Ashgate. Buxbaum, Richard (1996) ‘Die Rechtsvergleichung zwischen nationalem Staat und internationaler Wirtschaft, RabelsZ, 60, 201. Cafaggi, Fabrizio and Horatia, Muir Watt (2008) The Making of European Private Law, Surrey: Edward Elgar. Constantinesco, Léontin-Jean (1972) Rechtsvergleichung II: Die rechtsvergleichende Methode, Köln-Berlin: Heymanns. Dehousse, Renaud (1994) ‘Comparing National and EC Law: The Problem of the Level of Analysis’, American Journal of Comparative Law, 761–781. Ewald, William (1994–95), ‘Comparative Jurisprudence I: What Was it to Try a Rat?’, University of Pennsylvania Law Review, 143, 1889–2149. Ewald, William (1995), ‘Comparative Jurisprudence II: The Logic of Legal Transplants’ American Journal of Comparative Law, 43, 489–510. Djankov, Simeon, Edward Glaeser, Rafael La Porta, Lopez-de-Silanes and Andrei Shleifer (2003) ‘The New Comparative Economics’, Journal of Comparative Economics, 31, 595–619. Favoreu, Louis (1990) ‘Constitutional Review in Europe’, in Henkin, L. and Rosenthal, A.J. (eds.) Constitutionalism and Rights: The Influence of the United States Constitution Abroad, New York: Columbia University Press, 38–59. Feest, Johannes and David Nelken (eds) (2001) Adapting Legal Cultures, Oxford: Hart Publishing. Gerber, David (1998) ‘System Dynamics: Toward a Language of Comparative Law?’ American Journal of Comparative Law, 719–738. Gessner, Volkmar, Armin Hoeland and Csaba Varga, European Legal Cultures, Aldershot, Dartmouth, 1996. Glenn, Patrick (2004), Legal Traditions of the World, Oxford: Oxford University Press. Grillo, R. (2009), Legal Practice and Cultural Diversity, Aldershot: Ashgate. Hall, Peter A. and David W. Soskice (eds) (2001) Varieties of Capitalism: The Institutional Foundations of Comparative Advantage, Oxford: Oxford University Press. Harding, Andrew and Ersin Örücü (eds) (2003) Comparative Law for the 21st century, Hague: Kluwer. Hellman, Joel, Geraint Jones and Daniel Kaufmann (2002) ‘Seize the State, Seize the Day. State Capture, Corruption, and Influence in Transition’, Journal of Comparative Economics, 31, 273–293. Hughes, Justin (2002–2003), ‘Internet and the Persistence of Law’, Boston College Law Review, 44, 359–396. Jackson, Vicki and Mark Tushnet (eds.) (1999) Comparative Constitutional Law, New York: Foundation Press. Jackson, Vicki and Mark Tushnet (eds.) (2002) Defining the Field of Comparative Constitutional Law, New York: Foundation Press Joerges, Christian (2004), ‘The Challenges of Europeanization in the Realm of Private Law: A Plea For a New Legal Discipline’, Duke Journal of Comparative and International Law 14, 149. Joerges, Christian and Ernst-Ulrich Petersmann (eds), (2006) Constitutionalism, multilevel trade governance and social regulation, Oxford: Hart Publishing.

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Kahn-Freund, Otto (1974), ‘On Uses and Misuses of Comparative Law’, Modern Law Review, 1–27. Lane, David and Martin Myant (2006) Varieties of Capitalism in Post-Communist Countries, Basingstoke: Palgrave Macmillan. Legrand, Pierre (1996–97) ‘Uniformity, Legal Traditions and Law’s Limits’, Juridisk Tidskrift, 306–322. Legrand, Pierre and R Munday (eds) (2003), Comparative Legal Studies: Traditions and Transitions, Cambridge: Cambridge University Press. Lenaerts, Koen (2003), ‘Interlocking legal orders in the European Union and Comparative Law’ International and Comparative Law Quarterly, 873–906. Mattei, Ugo (1998) Comparative Law and Economics, Ann Arbour: University of Michigan Press. Nergelius, Joakim, Pasquale Policastro and Kenji Urata (eds) (2004) Challenges of Multi-Level Constitutionalism, Cracow: Polpress Publisher. Nelken, David (ed.) (1996) Comparing Legal Cultures, Aldershot: Dartmouth Publishing Company. Ogus, Anthony (2007) ‘The Economic Approach: Competition Between Legal Systems’, in Örücü, Ersin and David Nelken (eds) Comparative Law A Handbook, Oxford: Hart Publishing, 155–167. Örücü, Ersin. and David Nelken (eds) (2007) Comparative Law: A Handbook, Oxford: Hart Publishing. Reitz, John (1998) ‘How to Do Comparative Law’, American Journal of Comparative Law, 617–636. Petersen, Hanne, Anne Lise Kjær, Helle Krunke and Mikael Rask Madsen (eds) (2008) Paradoxes of European Legal Integration, Aldershot: Ashgate. Rabel, Ernst (1936) Das Recht des Warenverkauf , vol. 1, (1957) vol. 2, Berlin. Reimann, M. and R. Zimmermann (eds) (2006) The Oxford Handbook of Comparative Law, Oxford: Oxford University Press. Sacco, Rodolfo (1991) ‘Legal Formants: A Dynamic Approach to Comparative Law’, American Journal of Comparative Law, 39, 1–34 (Installment I); 343–401 (Installment II). Smits, Jan (2008) ‘The Draft Common Frame of Reference, Methodological Nationalism and the Way Forward’, European Review of Contract Law, 271–281. Teubner, Gunther (1998) ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’, Modern Law Review, 61 (1), 11–32. Tushnet, Mark (1999) ‘The Possibilities of Comparative Constitutional Law’ Yale Law Journal, 108, 1225–1309. Twining, William (2007) ‘Globalisation and Comparative Law’ in Örücü, Ersin and David Nelken, Comparative Law. A Handbook, Oxford: Hart Publishing, 69–89. Van Hoecke, Mark (ed.) (2004) Epistemology and Methodology of Comparative Law, Oxford: Hart Publishing. Van Hoecke, Mark and Mark Warrington (1998) ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, International and Comparative Law Quarterly, 495–536. Zimmermann, Reinhard (2001) Roman Law, Contemporary Law, European Law: The Civilian Tradition Today, Oxford: Oxford University Press. Zweigert and Kötz (1998) An Introduction to Comparative Law, Oxford: Clarendon Press.

PART I

Comparative law, legal aid and development

1. Legal change and economic performance: an assessment Gianmaria Ajani I.

THE AUTHORITY TO CHANGE THE LAW

Within the Western legal tradition, norms are set through two different procedures: reiteration (case law) and parliamentary law-making. While the first one goes back to the origins of the common law in England, the second, in its actual practice, is historically indebted to the birth of parliamentary states and of democratic participation in France, following the 1789 Revolution. Parliamentary (and governmental) law-making has, however, increasingly contaminated the common law systems. The rest of the world, in spite of any possible contact in the past with the common law, shares the preference for statutory laws. Following this standard simplified conceptual dichotomy, those empowered to change the law are the judges and the legislators. The difference in the democratic legitimacy of judges and of legislators is compensated by asking the institution perceived as less legitimate (the judges) to provide extensive reasoning when they depart from a precedent. A similar burden has not, so far, been imposed upon legislators, even if a duty to provide reasons for lawmaking can be found in certain cases following national law. Furthermore, judges tend to conceal creativity by describing their role as one of ‘mere law-finding’, a concern which does not preoccupy the fully sovereign parliamentary assemblies. The simplicity of the above dichotomous conceptualisation is the result of a formalistic description of legal change, which is focused on the final outcome of the process, and not on the reasons for legal change, or on the results of law enforcement. It does not, however, exhaust all possible answers to the question as to who has the authority for legal change. What happens, then, if we leave the realm of formalism and embark on an analysis of the route of law-making? A different perspective can be taken if we leave aside the standard conceptualisation of legal change and move towards an analysis of the process, which leads to the final result of legal reform. The reason for this resides in 3

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the recognition that the moment T(x), when we identify a legal reform as being adopted, is usually the finalisation of a longer course of action, initiated at moment T(0). Such an action usually begins with the recognition of the ‘good’, or, comparatively speaking, ‘better’ state of the economy in an area of the world (often, but not necessarily, a State). This provides legitimacy for promoting the imitation of wide set of rules, such as statutes and codes. Constitutions are also part of the game: fundamental principles such as a multipartite political system, parliamentary democracy, protection of fundamental rights, in other words, the classical themes addressed by constitutional charters, are perceived as key factors for the proper functioning of the market.1 The process of identifying ‘best practices’ characterises today the action of many political actors in the several developing regions of the world. Those who are portrayed as the actors of the legislative process: the Governments and the Parliaments, however, do not seem to be in full control and command of the course of legal reforms. Several factors seem to be relevant in the process, such as the spread of economic theories, the action of international diplomacy, the challenge of economic competition among legal orders. All those factors play a role in the process of legal reform. Let us consider, for example, the so called ‘country targeted legislation’. The expression refers to the legislation adopted by a single country, which is meant to play its main effect within a different national legal order, such as, for instance, the US Federal Act entitled ‘Zimbabwe Democracy and Economic Recovery Act’, adopted in the year 2001,2 or the ‘Trade and Development Act’, adopted by the US Congress in the year 2000,3 better known as ‘African Growth and Opportunity Act – (AGOA)’. In spite of being pieces of domestic legislation, these laws have a direct effect on the action of the major international financial institutions (IMF, IBRD) as well as upon the planning of legal reforms in the targeted countries: within the scheme designed by the 2000 AGOA. The stabilisation of the rule of law, the recognition of pluripartitism and of due process, have been listed as prerequisites for the access of the concerned African countries to the benefits laid down by the Act.4 Within a relevant sector of a legal system (including private and procedural law, but also administrative, and occasionally constitutional law) the standard dichotomous conceptualisation of legal change we were used to seems to be overridden by a new mode, which grounds legitimacy for law-making neither in reiteration, nor in the domestic political debate about the assumed utility of a regulation, but rather in a technical appraisal of the necessity of a peculiar set of regulations. We can call this mode ‘functionalism’ (Graziadei, 2003: 100). Following a functionalist approach, legal rules are technical tools needed

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for a purpose (such as, in general, the modernisation of a given society or, in particular, the adoption of facilitating rules for institutions, such as corporate groups, small enterprises, etc.). This approach confers new legitimacy to the law at the same historical moment when the law is losing grip within the community which was local and has become supranational. This new kind of legitimacy, however, has a different nature from the one we used to recognize in a traditional parliamentary State: it is based on a comparative assessment and on the assumption that a certain regulation has direct effect on economic performance. There is no need to provide too much evidence that ‘functional’ type legal reforms have been occupying the agenda of both state governments and international institutions for the last 15 years. A major reason for the extensive legal change in four continents of the world can be found in the global transition form the ‘import substitution’ pattern of development (Edge, 2000) to the liberalisation of capitals, productions and trade. In Mexico, for example, between 1982 and 1996, 99 out of 198 federal laws have been profoundly reformed; 57 significantly amended; and only 42 remained untouched. In terms of the expansion of regulation, it has been calculated that about 80 per cent of the Mexican legislation has been modified in a span of time of 15 years (Fix-Fierro and Lopez-Ayllon, 1997). These data show an increasing awareness among local political elites of the connections between the general advantages that may flow from an explicit adherence to the rule of law principles, and economic growth in the long run. The impulse was given by the major international financial institutions whose representatives and consultants had brought the focus on the causal links between good governance and economic performance already during the late 1970s of the last century (Lowenfeld, 2002). Other voices joined the choir, and as a result public and private actors, state and non-state institutions have become pro-active in the global offer of new laws. Take for instance the US Foreign Corrupt Practices Act. After its adoption in 1977 some US nongovernmental organisations (NGOs) such as Transparency International, together with the major five accounting firms, supported the Act through lobbying towards non-American corporations, aiming at the adoption of the standards contained in the Act. Twenty years later, eventually, an Organisation for Economic Co-operation and Development (OECD) agreement required the signing parties to adopt regulations patterned on the 1977 Act. As it has been vividly described, ‘the standardisation of “best practices” or “efficient” law replaces the Schumpeterian process of “creative destruction” with the ideal of “perfect construction” of law’ (Pistor, 2002). Also while, in the past, the ‘creative destruction’ and the subsequent legal change were mainly a domestic process, the ‘perfect construction’ calls for the recognition of models originating from outside the national legal system.

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What is lost when passing from destruction to construction, is the role played by national epistemic communities. Legal change becomes effective, it has a hold over society, it influences behaviours as long as its meaning is governed in every national context by an élite of actors, an epistemic community, or a network of people who keep control on the direction and the results of legal transplants and ease the process of absorption of the new legal concepts. Involvement of epistemic communities explains how legal change was made possible (meaning, how it became effective), even in adverse conditions, in the past. Yet, it falls short today of explaining how legal change is operated in those (many) countries where there is neither a continued legal tradition, nor an élite ready to fill the new notions with agreed contents.5 To be sure, spreading of best practices and of good examples has always occurred. Today, however, we are not only experiencing a quantitative difference, but also a substantial change in the way the identification of the model for legal reforms is occurring. Main factors explaining the reasons for legal reform are derived from the practice of international businesses and from the strategies of international economics, while the actors promoting the new models are mostly international institutions and private groups, rather than national-States. All this generates a competition among principles for legal regulation of the economy which are supported by the different institutions or interest groups.6 The offer and demand of legal models can at the same time be described as a seller’s market (as the donors are in a position to promote their educational systems, their institutions providing technical assistance, their own laws), and a buyer’s market (as there is a wide range of possible models to be selected and used as samples for legal reforms, as well as legitimising devices). In most cases of dissemination of a new model which serves a legal reform agenda, we find an asymmetry between a demand for legal reform which is ignorant of the technical contents of the proposed model, and an offer of a sample which is ignorant of the local context. Proceeding from this recognition, this chapter argues that the increase in legal change, based upon a wide recourse to functionalist arguments, has: • reaffirmed a formalistic, positivist understanding of the law; • made use of indeterminacy7 in terminology, whereby indeterminacy opens the way to adhere to legal reforms without necessarily asking for implementation; and • expanded the concept of development to include law as an end in itself. Development scholars have not rejected instrumental arguments. They still think that law is important to constitute markets and to implement a host of policies. But they also see legal institutions as part of what is meant by devel-

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opment, so that legal reform is now justified whether or not it can be tied directly to growth. The combined play of these three factors leads to a ‘sterilisation’ of lawmaking from the socioeconomic development. Reformed laws remain distant from the process of adaptation and innovation which characterises the daily action of the law: ‘the process of legal innovation depends on the availability of information not only about the contents of the rules – something international legal standards do provide – but also about their functioning in the context of a living legal system. The perfect construction of law by legal experts for wide dissemination can deprive lawmakers and law enforcers in the receiving countries of the knowledge of living law, which is context specific’ (Pistor, 2002: 98). Moreover, the imposition of rules from outside may also lead to domestic resistance. What has comparative law to say, as a discipline, about that asymmetry? To some comparative lawyers, their discipline is nothing but the language of the communication among different legal systems. Its main significance is, therefore, epistemological. In the course of the time, however, the epistemological value of a discipline may change. For decades, comparative law’s main roles were: • an external one: the contribution to uniformisation (Markesinis, 1997) and • an internal one, namely, the challenging of the false perspectives of legal positivism (Muir Watt, 2000). More recently a new challenge has arisen: the contribution to a better understanding and, possibly, functioning of an array of legal transplants. The theory of dynamic comparative law, developed by Rodolfo Sacco through the observation of the several formants (Sacco, 1991)8 that compose the complex fabric of every legal system, stresses that the final result of comparative analysis is a realistic representation of the analogies and differences among legal orders. Following the technique of identification of legal formants, one may discover that even where different legal orders seem to be non-homogeneous as to the formal blueprint of the norms, the operational rules which guarantee the actual functioning of the system may offer a more consistent design. Within the realm of private law one may find important evidences of this result in the law of torts, where the actual operation of case law brings towards convergence even those legal orders, such as the German and the French, that appear very distant at the level of enacted legislation, as well as in the formation of contracts, or in the transfer of movables assets (Sacco, 1991: 363). Law is a cognitive institution. As such, the new laws have to be connected with other rules and institutions that are already in place. Without ensuring this

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kind of connection between the new rules and the pre-existing institutions, the modernisation efforts are forced to remain an abstract exercise. Making recourse to a wider use of comparative law methodology should set a new balancing in the appreciation of the interplay of legal formants among themselves and with the institutions called to provide implementation. This would allow lawmakers to get a better informed perception of the legal transplants they are seeking to promote in their countries, by looking at the different options practised in the world. From their side, institutional economists should provide further information by assessing the different institutional constraints that affect the variety of possible legal models. In doing this, the scholarly research would correct the flaws affecting legal transplants today, namely excess of normativistic optimism and lack of determinacy. This will eventually lead to the growing of a ‘market for information on the actual capacity of legal models to have an impact upon comparable situations’ (Pistor, 2002: 103) and to the recognition of the interdependence between the legal framework and the enforcing institutions. The following part of this chapter is organised as follows: section II focuses on the principle of indifference of law before local cultures, section III links the principle of indifference to the practice of using law as a substitute for economic reforms, and section IV draws some conclusions on the role that institutional law and economics might play in supporting the recognition of the several formants of the law as concurring elements in the formulation of the rules for legal reforms aimed at a better functioning of the market.

II.

NEUTRALITY OF THE LAW?

Historically, the idea of the indifference of law towards the specific social contents has been nurtured by the millennial success of Roman law. Later on, colonisation has confirmed that different societies may be ruled by similar laws. A more recent reappraisal of the idea occurred in the case of transition from the Soviet/planned economy to market economy, in the wide area that has formerly been under the communist rule. The belief that law can be independent, or neutral, in respect of a given society is tightly connected with the idea that law can have a predictable impact on economic performance (Lopez-de-Silanes, 2002). The idea is not new at all: it can in fact be traced back to the spreading of modern rationalism, which has changed natural law into rational law. Nor is the process of looking abroad for best legislative practice in order to support domestic modernisation new. One may recall the famous polemic originated two centuries ago between the two German great legal scholars, Thibaut, who suggested that the German states had to imitate French ‘rational’ codification of private law, to

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support modernisation, and von Savigny, who opposed the proposal, on the assumption of the momentary cultural inadequacy of German legal scholarship. Today, after the fading away of ideological confrontation, the rebirth of a search for national identities, based on culture and civilization, has made it, somehow, more difficult to defend the idea of neutrality of certain areas of the law. As a result, the recognition of what can be considered more neutral, or less dependent from the society, has changed. At the times of the East–West confrontation, family law was deemed to be more indifferent (and therefore the comparison was inspired by a search of similarity), while economic law was taken as absolutely incomparable. Moving closer to the point of the relevance of the principle of indifference as a starting point in legitimating legal change, one should at first differentiate between: • indifference as a political issue; and • indifference as a cultural issue. As a political question, the principle of indifference of law to the social context has been strengthened by the fall of the Soviet block. At the same moment when the idea of the total inutility of communist law ‘as a whole’ (tabula rasa principle) was affirmed, the principle of the neutrality of Western private law, the ‘good for all sizes’ slogan, was launched. The adoption of an ideal model of market development by neo-liberal economists has immediately become a political choice in the action of the EU and the international financial institutions to speed up the process of market integration. At the same time, this has brought the focus of the discussion far away from the institutional perspective: the ‘best’ legal transplant appears as a denationalised one, vested with the appearance of objectivity that circumvents local resistance in the name of cultural identity. This separation of the action of the law from the actual role played by institutions is central to understand the many failures of legal reform agendas. It is in fact hard to conceive a role for a legal transplant which is not based upon consideration of how local institutions work. For any single new rule that is introduced, role-occupants will necessarily consider, more or less consciously, a set of pre-existing conditions that are countryspecific, often non- or sub-formalized. As a cultural question, the idea of indifference is indebted to a set of phenomena that have significantly marked the last decades of the 20th century: The first is post-modernism: there is something paradoxical in the fact that by insisting on the incommensurability of phenomena such as culture and social behaviours, post-modernist theories, which were perceived as a defense of localism against globalization policies, have eventually contributed to

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weakening localism before the spreading of global formal regulations (Peters and Schwenke, 2000). The second is harmonisation of the law(s): the success (both in terms of absolute numbers of initiatives, and of number of adhering States) of the recourse to international conventions has brought the style of international law into the process of legal transplant. This has important effects for the issue of neutrality, as international law was traditionally characterised by indifference towards domestic diversity and cultural differentiations. The traditional approach to the cultural issue practised by international lawyers stresses the recognition of ‘similarities in economic development’ (in such a sense, for instance, Thailand and Kenya are similar, in spite of evident cultural differences). In other words, the technical side of neutrality is expressed by the language of performances and functions, while the cultural difference calls for an explanation in terms of history. International law deals with the former, while the latter is left to the concern of local policies. This approach, however, is exposed to the following critiques. A first argument points to the fact that it is almost impossible to discern local from foreign cultures. Even within a short span of time what was an alien culture may become local, as the important cases of languages, alphabets (Chinese characters in Japan), arts, show every time in the history and everywhere in the world. Secondly, the cultural exception has a relevance also in the context of economic issues. In particular, there are significant cases where the State actors use cultural issues to protect what are perceived to be national economic interests.9 Thirdly, legal culture is part of the more general definition of culture. The isolation of local legal culture from the process of legal transplants seems nothing but absurd. As the methodology of comparative law has demonstrated, dissemination of rules and legal change occur with the active involvement of legal doctrines.

III. THE INSTRUMENTAL USE OF THE LAW Applying a functionalist approach to the law is not a new story. It goes back to the 1920s of last century, when Ernst Rabel illustrated as a starting point for any comparison the social purpose of the law. Following Rabel, that same approach was brought in the US by Max Rheinstein, who repeatedly stated that comparative law must go beyond static taxonomies or analytical descriptions whatsoever of the existing legal systems; rather, it should investigate the reason for a norm to exist in its function with respect to the actual society (Markesinis, 2003).

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This approach has been dominant till today, and the ‘Comparative Law and Economics’ (Mattei and Monti, 2001) movement can also be considered as an updated version of Rabel’s approach, which pays tribute to the idea of efficiency. Those supporting the functionalist approach stress that with the spreading of a global society, the national/state traits will not be relevant anymore in a number of legal fields. Therefore, legal functionalism would be ready for the building of a theory on legal convergence. Notwithstanding the amount of essays and seminars devoted to investigate the impact of legal reform on economic performance, a generally valid theory, able to demonstrate that a good functioning legal system is conducive to solid economic results, and to reconcile the grand scheme with the important exceptions, is still missing. What we have is a set of fragmented reasons, which often leave us with the doubt that the direct causal link between good performance and good laws has yet to be proved. Many critical assessments of functionalism hint at its adverse effects. When adapted to the Human Rights and the Rule of Law discourses, functionalism is seen as a threat to the autonomy of the law and to its moral value. When applied to economic performance, it would conceal the distributive aspects intrinsic to private law. Within the context of EU law, many have noticed a recourse to functionalist argumentations by the European Court of Justice, in order to expand the jurisdiction of the EU institutions vis-à-vis the Member States. The instrumental use of law has then become an issue of significant confrontation; these are the main arguments one may find in the literature: • law is a policy science (‘legal process’ approach), (Eskridge and Frickey, 1994); • it is the society that creates the law, and not the other way round (‘law and society’ approach), (Trubek, 1972); • law is only the result of political decisions (nihilistic approach and Critical Legal Studies approach), (Hutchinson and Monahan, 1984); • as law is deep-rooted within society, any attempt to instrumentally use the first to change the second is an illusion (neo-savignist approach), (Legrand, 1999); • law is intrinsically indeterminate: any attempt to make social engineering through the law is therefore bound to unpredictable results (deconstructionist approach), (Kennedy, 1985); • legal change can not be conceived as a substitute for economic policy (Kennedy, 2003). Let us take this last argument: the process and the rhetoric of legal change are ingrained within the process and rhetoric of globalisation. This connection not only leads governments to overemphasise the actual impact of articulated

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reforms in the short run (because globalisation is per se a fast process that is supposed to speed up local economies exposing them to the opportunities of a global market), but it also leads to an undervaluation of the importance of informal institutions. Informal institutions, in fact, do not suit the globalisation agenda. Formal institutions can be better identified, measured and evaluated. They produce those outputs (enactments and regulations) that can be perceived and quantified by the external actor in the process of legal transplants. This situation has several effects on the legal discourse: • it influences the style of legal change, favouring an emphasis upon formalised, black-letter rules (neo-positivistic attitude); • it reduces the role of the commentator to a simple loudspeaker of the letter of the law (exegetic attitude); • it favours the duplication within the local laws of the myths and stereotypes elaborated within the Western legal tradition. As mentioned above, the spreading and imitation of laws from one country to another is not at all a new phenomenon. What is new is the wide acceptance (from both the promoting and the receiving end) of the principle of indifference of the legal norms towards the social context. The recognition of the principle of indifference entails the identification of the legal rule as an ‘ad hoc’ instrument and leads to the abandonment of the old perception of the rule as the reiterated answer to questions that originated locally. The move from the traditional, circular law-making to the linear belief in secure economic growth brings with it the trust in a permanent evolution of legal orders towards an ‘increasing better performance’. Such a dynamic applies either to situations of full harmonisation, or to situations of competition among legal orders. If, for instance, antitrust regulation and consumer protection are grounding principles inherent to an efficient economic system, such as the US market is assumed to be, then the imitation of those policies becomes mandatory. It is upon that pair of principles that the building of a single European market was established and later on the restoration of a market structure in the post-Soviet states was founded. One should at this point notice, however, that the imitation of the US institutional setting as to market functioning was, in the early case of European Community law, limited to the modelling of the macroeconomic device. It is useful to remember how different the legal design for the antitrust mechanism is between American and European law. A similar argument can be set forth as to consumer law: only very recently is an US-inspired mood changing the legal regime of consumer law from the judicial assessment of the legitimacy of contractual clauses towards the establishment of information duties.

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Those examples, however, belong to the past. In the more general and recent frame of legal globalisation the distinction between the economic model and its legal design(s), seems to be lost. There are different reasons that contribute to explain why this change in the way legal transplants operate has occurred. One relates to the spread of functionalist theories, which has supported the recognition of law (mainly, but not only, private law) as inherently indifferent to the social context, while law and economics has reinforced, since the popularisation of the Coasean theorem, the idea of indifference (scholarly reason). The other can be seen to lie in that the mandate of the international organisations mostly involved in the support to legal reforms normally excludes politics and local culture from their scope of action, so inducing a more ‘technical’ understanding of the role of law in the society (institutional reason). While these two sets of reasons seem to be, in principle, compatible with the acceptance of a proliferation of different legal solutions, as long as they reflect the content of an agreed economic agenda, a second set of reasons has contributed to reduce the options as to the modelling of legal transplants. Firstly, the emphasis over trade liberalisation that characterises both the phenomenon of globalisation in the 1990s and the finalisation of the single European market in the same period, has favoured the treatment of legal rules as an appendix of the market. As such they must offer identical opportunities for all traders and investors, and, therefore, have to be harmonised (ideological reason). Secondly, the whole process of globalisation, which was welcome as an opportunity to diffuse solid economic performance, has rapidly become a chance to avoid stagnation and economic crisis. This added hurry to a development that was already speedy in its nature. As a result, a permanent lack of time in the adjustment of legal reforms has favoured blind imitation (contingent reason 1). Finally, the fact that most of the legal systems interested in general legal reforms were not inscribed in a hall of fame as to the reputation of local juridical culture (at least as to the legal aspects of market functioning, if not in general), has contributed to a lack of trust from the side of the donors. The international institutions, as well as the European Union, managing a 14 years’ long process of enlargement, were so brought to believe that the best guarantee for a proper adaptation of the reforming legal regimes to the needs of market functioning was the imitation of a set of rules already established in the West (contingent reason 2). If one accepts that contingent reasons, per definition, are not permanent in the process of legal transplants, and that ideology has now entered a revision phase, for simplicity referred to as the ‘post-Washington consensus’ ([German] Federal Ministry for Economic Cooperation and Development,

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2004), it is logical to argue that there are no stringent arguments against a reorientation of the process in terms of a clearer distinction between economic recipes and legal design.

IV.

CONCLUSIONS

The belief in the neutrality of the law, which has been reinforced throughout the process of globalisation, is often combined with two different styles of drafting: that of non-technical language and the style that makes use of standards. Take for instance the European Union: if we consider the style of many EU laws, we can not avoid noticing that, while drafting directives and regulations, EU institutions do not consider to be obliged to adhere to the system of concepts and doctrines applied by national jurists.10 The main reason for this recourse to non-technical language is that it responds without too much resistance from the level of local legislation to the request for an increased harmonisation among legal systems. This is an aspect, not yet fully investigated, that characterises the actual phase of legal change. National legal orders are subject to a process of renewal which requires a renewed communication among institutions, actors, enterprises. This is not only true within the context of European integration, but also at the wider scale of global law. National laws are today assessed and evaluated also on the basis of their openness to the external world. It is not by chance that transparency in the procedure, reform of administrative law, access to justice have become recurring issues also in the technical field of harmonisation promoted by the WTO. As to the recourse to standards, their role seems to be opposite to the one played by non-technical language. The purpose they serve, however, is the same, namely to bypass domestic resistance through the recourse to ‘objective and technical standards’ (in the different fields of accountancy, safety, technology, and so forth). The question: ‘Who is empowered to change the law?’ becomes, then: ‘Who is empowered to set the standards?’ There is no systematic answer to this last question, as it depends on the specific area involved. While, for instance, the TRIPs agreement shows a unilateral pressure from the most industrialised countries to ensure a high level of protection for intellectual property rights, in other areas one may notice a flow of models within the circle of the international institutions. The EU Code for Social Security, for example, has been modelled on the ILO Social Security Convention No. 102 of 1952. In other cases we perceive a tight competition among several institutions: the OECD antitrust recommendations have superseded the UNCTAD programmes, while the UNCTAD code of behaviour on transfer of technology has been first absorbed within the sphere of interest of

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the WIPO, and finally has moved within the TRIPs agenda at the GATT/WTO. This happened because the negotiators of the TRIPs agreements paid special attention to the crucial connection between trade policies and competition policies. The result of all those strategies is a system of international relations where, beside the traditional instrument of international conventions, an extensive use is made of standardisation promoted by international institutions. This creates continuous links between the level of negotiation which occurs inside the organisations and the level of domestic laws, affected by those standards. It seems, therefore, that the Westphalian paradigm, which had informed the relations among sovereign states, has to be revised. What is needed is a new blueprint wherein the conflicting interests of transnational groups can be recognised and settled. The ultimate result of such a shift of focus would bring back more voice to the traditional actors of international law, to say the states, as their voice is, today, waning in the adjustment policies carried on by the financial institutions and implemented through overall legal reforms based on the modelling of Western best practices. The actual insistence on extensive harmonisation, shared by several international financial institutions and, at a regional level, by the EU Commission, is triggered by a deficit of confidence in the capability or in the willingness of local governments to put in place the enactments that are considered to ease a satisfactory economic performance. There are two approaches that, if set up together, can reduce the friction which characterises the process of legal transplants: a reduction of the emphasis on the absolute necessity to imitate the formal contents of the laws, and a recognition of the role played by national institutions in modelling the rules. In doing this, an important contribution may be derived from institutional law and economics. It is indeed crucial that, within the process which prepares legal change, every single macroeconomic recipe, for instance the recognition of freedom of competition as an element of good economic performance, is separated from the ‘n’ possible legal blueprints that it can assume. This should be based on the recognition that, historically, a successful transition from stagnation to economic development – in Taiwan and South Korea in the late 1960s, in Brazil, in the People’s Republic of China and in Turkey in the late 1980s, in India and Chile during the 1990s – was supported by a peculiar blend of mainstream economic theories and local regulations. Unlike formal legislation, institutional innovation cannot be smoothly imitated. The Chinese success in setting up a mixed economy could not be exported to other countries in transition from command economy to market. The standing of the People’s Republic of China within the international system can not be ‘exported’ or traded with another country. This has a direct influence on legal transplants and their effectiveness; this is one of the reasons, if not the main one why, after at least 15 years of insistence on legal change as

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a surrogate for institutional development, the rate of substantial success of legal reforms is still highly questioned.

NOTES 1.

2. 3. 4.

5.

6. 7.

8.

The EU 2004 enlargement, for instance, was grounded on the principles and criteria agreed among the 15 member States representatives at The Copenhagen European Council (2003). Those principles and criteria concern: • the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (political criterion); • the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the European Union (economic criterion); and • the ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union (criterion concerning adoption of the Community acquis). See 107th Congress, 1st session, available at http://thomas.loc.gov (accessed 10 July 2009). The African Growth and Opportunity Act was signed into law on 18 May 2000 as Title 1 of The Trade and Development Act of 2000. See for instance the Eligibility Requirements, as stated under s 4 of the AGOA: ‘(a) In general – A sub-Saharan African country shall be eligible to participate in programs, projects, or activities, or receive assistance or other benefits under this Act if the President determines that the country does not engage in gross violations of internationally recognised human rights and has established, or is making continual progress toward establishing, a market-based economy [. . .]’. See also the ‘Advance Democratic Values, Address Nondemocratic Countries, and Enhance Democracy Act of 2005’, also called ‘Advance Democracy Act of 2005’ A meaningful example is provided by the 1999 Chinese law on contracts. Searching a more systematic arrangement for contract law, People’s Republic of China has adopted a law that is heavily indebted to foreign models. This led to the introduction of the notion of ‘good faith’ which was alien to Chinese legal culture and to judicial practice. To fill the gap, the Chinese Supreme Court adopted a directive, to explain the meaning of good faith to the courts, a choice which was urged by the need to give predictability to case law, at the cost of denying the role played by good faith in the Western legal tradition, to say, giving flexibility to judicial action. States do still appear as promoters of legal change, and to underestimate their role would be a mistaken understanding of how globalisation works. In doing this, some governments endorse proposals of legal change in the support of national economic interests. The recourse to supranational standards as a starter for the activation of national legal reforms, detached as they are from the social and cultural context, is inducing a resurgence of legal positivism; a kind of normativistic optimism that leads the main actors of legal reforms to pay an increasing attention to the formal dynamics of the internal legal order rather than to the issues of the degree of effectiveness and of the costs of implementation. This has led, in the last ten years, to the multiplication of the listed set of ‘vague notions’ and to their comprehension within the rhetoric code of good governance for the market. And because broad formulas expressed in ordinary language are more palatable to the media, a bunch of concepts whose juridical/technical content is far from certain has become the paradigm for assessing the modernisation of a legal system. The notion of ‘legal formant’, as introduced by Rodolfo Sacco (1991), refers to the plurality of elements that, within one single legal system, are able of influencing the solution of a legal problem. All rules presenting the same characteristics, like, for instance, all judicial decisions, represent a legal formant of a given legal system. Legal formants can include formally issued legal rules (statutes, decrees), rules elaborated by the scholars, rules that are

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9. 10.

17

expressed by a judge in a judicial decision, rules that are actually applied by the judge in solving a case, that do not necessarily coincide with the rule that has been expressed; while a national lawyer, particularly within a civil law country, may like the idea that a rule has only one ‘correct’ interpretation, a comparativist is more keen to recognise that the several formants within a legal system are not necessarily coherent, neither among themselves, nor in comparison with analogous formants existing in a different legal system. See for instance the famous case brought by Canadian publisher against US magazines on the basis of ‘cultural diversity’: WTO Dispute Panel Report on Canada – Certain Measures Concerning Periodicals, WT/DS 31/R 14.3. 1997) re US magazines. A recently adopted EU Directive 2004/35/CE on environmental liability, for instance, states that ‘damage’ means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly’ (Article 2(2)); what we find here is the contamination of the legal language with the jargon practised among ecologist groups. I would hardly define this choice as a political (pro-ecologist movement) one: rather, as an attempt to bypass different scholarly doctrines and notions used at the level of member States on the definition of damage in the realm of environmental law.

REFERENCES Edge, I. (ed.) (2000), Comparative Law in Global Perspective, New York: Transnational Publishers Inc. Eskridge, W. and P. Frickey (1994), ‘The Making of The Legal Process,’ Harvard Law Review, 107, 2031–2055. Federal Ministry for Economic Cooperation and Development (2004), BMZ Diskurs. Post Washington Consensus: A Few Thoughts, Discussion paper, no. 4. Fix-Fierro, H and S. Lopez Ayllon (1997), ‘The Impact of Globalisation on the Reform of the State and the Law in Latin America’, Houston J. Int.l. L., 19, 785–819. Graziadei, M. (2003), ‘The Functionalist Heritage’, in P. Legrand and R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions, Cambridge: Cambridge University Press, 100–128. Hutchinson, A.C. and P.J. Monahan (1984), ‘Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought’, Stan. L. Rev., 36, 199–235. Kennedy, David (2003), ‘The Politics and Methods of Comparative Law’ in P. Legrand and R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions, Cambridge: Cambridge University Press, 345–431. Kennedy, Duncan (1985), ‘Critical Theory, Structuralism and Contemporary Legal Scholarship’, New England L. Rev., 21, 209–230. Legrand, P. (1999), Fragments on Law-as-Culture, Deventer: Kluwer. Lopez-de-Silanes, F. (2002), ‘The Politics of Legal Reform’, UNCTAD G-24 Discussion Papers Series, no.17. Lowenfeld, A.F. (2002), ‘The International Monetary System and the Erosion of Sovereignty: Essay in Honor of Cynthia Liechtenstein’, Boston College Int. & Comp. L. R., 25, 257–272. Markesinis, B. (1997), Foreign Law and Comparative Methodology, London: Hart Publishing. Markesinis, B.S. (2003), Comparative Law in the Courtroom and the Classroom: The Story of the Last Thirty Five Years, London: Hart Publishing. Mattei, U. and A. Monti (2001), ‘Comparative Law and Economics: Borrowing and Resistance’, Global Jurist Frontiers, 1 (2).

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Muir Watt, H., (2000), ‘La fonction subversive du droit compare’, in Revue Int. Droit Comp., 52, 503–527. Peters, A. and H. Schwenke (2000), ‘Comparative Law Beyond Post-modernism’, Int. Comp. L. Q, 49, 800–834. Pistor, K. (2002), ‘The Standardisation of Law and its Effects on Developing Economies’, Am. J. Comp. Law, 50, 97–134. Sacco, R. (1991), ‘Legal Formants: a Dynamic Approach to Comparative Law’, Am. J. Comp. Law, 39, 1–34, and 343–402. Trubek, D.M. (1972), ‘Toward a Social Theory of Law: An Essay on the Study of Law and Development’, Yale L. J., 82, 71–94.

2. Legal cartography and comparative law Per Bergling I.

INTRODUCTION

Diagnoses of entire legal systems are in great demand for purposes of programming aid, facilitating membership of international organisations, and rebuilding institutions shattered by war and crisis. Put simply, a range of promoters of legal and judicial reforms need to know that the problems discussed really exist and that proposed remedies will be effective in addressing them. However, most strategies and methods for diagnosing systems so far have produced either fragmented or flawed descriptions. This chapter provides an account of some of the most important methodological considerations for the articulation of better strategies, and discusses three recent efforts to map entire legal systems: ‘An Introduction to the Vietnamese Legal System’; ‘UNMIBH Judicial System Assessment Programme’; and ‘Comprehensive Legal System Needs Assessment for Vietnam’.

II. OUR NEED TO KNOW As any cartographer or physician would certify, a credible attempt at mapping or diagnosing a hitherto new or little understood body requires a systematic approach or methodology. This basic assumption must be considered valid also for the mapping of legal systems or cultures. Indeed, such methodologies are currently in great demand: Development agencies need them to underpin legal reform and rule of law programmes, peace-builders need them to guide the rebuilding of destroyed and disoriented judiciaries, and international organisations such as the EU and the Council of Europe need them to determine whether countries are ready for membership. While international organisations, developing agencies, and their experts have experimented with various assessment methodologies almost as long as they have sought to support legal and judicial reforms, most strategies and methods tried so far have produced either fragmented or flawed descriptions of the state of affairs. Furthermore, there seems to be a perception among 19

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New directions in comparative law

assistance providers that the ‘urgency’ and ‘uniqueness’ of each situation, in combination with the perceived ‘straightforwardness’ of the contemplated intervention, make serious pre-intervention assessment unnecessary or even impossible. Thus crude postulates about law and its relationship to development, peace, etc. tend to resurface when the international community has been confronted with a new type of crisis. Neither are ‘traditional’ comparative law methodologies well suited to describing and analysing the comprehensive and complex processes at hand. While they may be useful in the identification of the historical origins of laws and structures, and in the description of their relative character, they often have a point of departure in concepts of ‘Western’ law and may thus encounter difficulties when the object of study is a legal culture in which there is limited correspondence with familiar concepts and categories, or when the comparison must comprise factors such as history, mentality or ideology. Some commentators go as far as to argue that traditional comparative law, when viewed in its narrowest sense, is meaningful (in terms of the aims and objectives it can pursue) only when used for a comparison of legal systems that share fundamental conceptions or ‘paradigms’ of law.1 Therefore the search is on for new and supposedly better approaches to assessing and diagnosing entire legal and judicial systems. The recent establishment of the Millennium Development Goals and the ensuing need to systematically link international assistance to certain development targets (e.g. rule of law to poverty eradication) generate even more political pressure to rely on analytical and evidence-based approaches.2 Besides enhancing the precision of reform initiatives, such approaches are also believed helpful as pedagogical and constituency-building tools. For example, a comprehensive and inclusive assessment may bring conservative agencies, self-interested bureaucrats and even potential ‘spoilers’ on board.

III. WORKS IN PROGRESS A number of instruments have been developed, or are under development, to make the assessment of legal and judicial systems easier and more systematic, among them the World Bank-sponsored ‘Worldwide Legal and Judicial Indicators’ and ‘Legal and Judicial Sector Assessment Manual’, and the ‘Rule of Law Index’ created by the American Bar Association World Justice Project. There are also a range of instruments developed for helping in assessing subject-specific issues, for example indexes developed by Transparency International to measure the level of corruption within countries, and the Observer Human Rights Index and Freedom House’s Freedom in the World Rankings measure human rights compliance and levels of ‘freedom’.

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The most influential and frequently used among the general indexes, the Worldwide Legal and Judicial Indicators, was developed to make the definition of clear purposes and goals for international support to legal and judicial reform easier and more precise by providing a structured set of baseline data, impact indicators, performance indicators, etc.3 Project planners can thus find qualitative and quantitative information regarding a specific legal and judicial system, including information on the judicial career; the justice sector budget; personnel and salaries; and legal education system, in one source in the form of a database. The database also allows cross-country comparisons of specific indicators. The ABA/WJP Rule of Law Index similarly provides a tool (searchable on-line) to diagnose systems, assess specific needs and propose solutions. A special quality with the Rule of Law Index is that it evaluates the judiciary on the basis of around 100 variables derived from specific international agreements on judicial independence and accountability, notably among them the UDHR. In spite of considerable efforts at marketing these tools in the assistance community, the absence of references to them in strategy and project documents emanating out of other assistance providers indicates that many planners are still either unaware of their existence or unwilling to make use of them. Most of these new analytical and assessment tool are clear on the point that the mere study of ‘the law’ or ‘available written materials’ on a given topic or jurisdiction is not enough.4 It may be true that the opening of many formerly closed countries to the outside world, and the simultaneous emergence of the Internet as a tool of information and exchange, have remedied some of the problems as regards the quantity of data about formerly closed systems, but the quality of the information remains more than varied. Considerable caution must still be exercised in reading and interpreting the official materials that exist on legal and judicial issues in developing and transition countries, particularly where there is a one-party monopoly and limited transparency. Even where there are democratic government and genuine ambitions to reform the system, official statistics are often unreliable because adequate means for collection and analysis of input data are absent or because figures are juggled to promote other goals, for example encouraging investment or meeting membership requirements of international organisations. Donald Clarke (2004: 181) points out that this problem does not exist solely as a dichotomy between the written and the oral or ‘empirical’, but also within the field of written sources, where foreign researchers inquiring into legal conditions are often inclined to prefer to ask questions that can be answered with references to indexed sources or databases, instead of penetrating massive volumes of unstructured information, such as several years of newspaper articles, etc. Clarke uses as a metaphor the drunk who looks for his lost keys under the streetlamp because there is light there.

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New directions in comparative law

Further, what assistance providers and their consultants think carries significance is often a reflection of their pre-existing (‘internal’) knowledge about the subject matter (inter alia to emphasise contract law if the topic of discussion happens to be of a transactional nature) and may not be very important in the eyes of the actual beneficiaries of the contemplated reforms.5 Thomas McInerney (2004: 9–11) similarly argues that one of the principal reasons why legal reform projects that have been based on unilateral assessments of what is best for given society have so often failed is that it has been cognitively impossible for donors or small groups of analysts to determine ex ante appropriate legal solutions for a given problem or country when the life chances of reform are determined by complex socio-economic factors such as competing norms, courses of dealing, vested interests, education, etc. There is thus need for methodologies that go beyond establishing a quantifiable ‘truth’ about a given legal and judicial circumstance to analysing the ‘significance’ of various legal phenomena and how they relate to a greater social, political and economic surround. The way the system actually works, including matters such as inter-institutional relationships, individual agency organisation, and capacity issues, need therefore be discussed with judges, prosecutors, lawyers in public and private service, law enforcement staff, and others with first-hand knowledge. Besides enhancing the precision of reform initiatives, such collective and inclusive efforts would also help to build political opinion among key stakeholders for the ensuing reform recommendations. Yet, such discussions will only provide a fragmented picture, as provided by selective legal and social elites. Polls and other forms of broad-based field surveys may also be needed to contrast the official view of means and ends with the perceptions and reactions of those who are supposed to benefit from the legal reforms, whether the general public or a more narrowly defined target group (private businesses, women, children, etc.). At the same time, development planners and researchers need to be aware that errors caused by bad input data are commonplace in qualitative studies. Interviewer and respondent bias is another potential problem. For example, respondents who are suspicious of the motives for the study or suspect the interviewers of having a hidden agenda may provide a too rosy picture of the state of affairs. Questions on the role of the state could also spur respondents who are disappointed with the government or judiciary to exaggerate the problems. Issues of language in general, and the translation of questions and terms in particular, raise a particular set of problems. The most obvious problem, i.e. the rendering of questions asked in for example English in the same words when asked in Chinese, Bahasa Indonesian, or Swahili (lexical equivalence), can sometimes be dealt with by ‘back translation’ and similar methods.6 However, such methods may lull the analyst into believing that equivalence has been achieved when it has not, because words, as language terms, always

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depend on the context in which they are used. A good measure of knowledge of the local culture in the broad sense, enhanced further by the active participation of unbiased local lawyers and experts in the articulation of questions and analysis of answers, can help to ensure a reasonable degree conceptual equivalence, i.e. equivalence in meaning, and otherwise contribute to better data. While these difficulties may appear prohibitive and paralysing, it is important to remember that no research methodology will ever be perfect or produce a final and unchallengeable understanding of the issue. The important point is that any assessment is better than no assessment, and that even the most modest attempts will contribute to a growing body of substantive and methodological knowledge. Below a few selected real-world initiatives to map legal and judicial systems and sectors are presented, chosen among many because they represent various stages of development in assessment methodology and display important differences in goals, approaches and presentation.7 The first, ‘An Introduction to the Vietnamese Legal System’, may be described as a joint donor–host initiative. The second, ‘UNMIBH Judicial System Assessment Programme’, is an assessment commissioned by an international organisation (the United Nations Security Council). The third, ‘Comprehensive Legal System Needs Assessment for Vietnam’, is an essentially domestically promoted mapping and diagnosing initiative, although inspired by similar efforts in neighbouring countries and facilitated by support from a range of assistance providers. 1.

‘An Introduction to the Vietnamese Legal System’

In the wake of the economic reform programme called ‘doi moi’, Vietnam approached Sweden in 1991 with a proposal for assistance in the development of a ‘legal framework’ to consolidate the achievements made in the economic area and move the country towards a greater degree of rule of law. An agreement to this end was signed between the Swedish International Development Authority (SIDA), the Ministry of Justice in Hanoi and the designated consultant, the Department of Law at Umeå University, in 1992. Under the framework of the ensuing project ‘Strengthening the Rule of Law in Vietnam’, various forms of technical assistance (drafting assistance, training, hard-ware, etc.) were provided to the Ministry of Justice and other Vietnamese legal agencies in need of support. However, it soon became apparent that in order to effectively respond to the requests of the Ministry, there was need for some kind of agreed analysis and road map of problems and remedies. There was also concern in SIDA that the demand-driven approach, while being a precondition for the co-operation and instrumental in ensuring local commitment, could make it difficult for the

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Swedish government to ensure that important rule of law or human rights dimensions of the co-operation were duly considered in the elaboration of work-plans and implementation of specific activities. Therefore, SIDA and the Department of Law proposed to the Ministry of Justice that the parties to the co-operation should join forces to produce some kind of joint analysis of problems and their potential remedies in the rule of law and justice spheres. After lengthy discussions (including high level political consultations in Vietnam), the Ministry of Justice accepted the idea. A joint team of researchers from the Department of Law, the Ministry of Justice, and the Office of the Vietnamese Government could then join in a team and commence with the task. While the effort was initially described as a ‘sector analysis’ and expected by some to include the conventional elements of such instruments (inventories of problems, strategic plans, action plans, etc.), it soon became apparent that there were neither political acceptance nor skills on the Vietnamese side for such an approach. Politics and law were still essentially united in theory and practice, and the Vietnamese members of the team (who were civil servants and presumably Party members) felt uncomfortable describing and analysing aspects of their own system, particularly human rights issues and the role of the Communist Party and the mass organisations in legal and judicial affairs. The team therefore found it more feasible and useful to produce a general ‘description’ of the Vietnamese legal and judicial universe. However, before proceeding to describe the system, the absence of reliable statistics and other baseline data on the legal system, court organisation, the legal profession, etc., made it necessary for the team to spend much time and energy on collecting this information by means of interviews with representatives of various Vietnamese political, legal and judicial bodies, professional associations, and international and regional organisations. After an analytical and writing phase that stretched over more than a year, the work was concluded with the publishing in Vietnam and Sweden (in Vietnamese and English respectively) of a short book, An Introduction to the Vietnamese Legal System, consisting of eight topical chapters describing law-making; main areas of substantive law; civil and criminal procedure; legal education; international co-operation; etc.; and an appendix with a number of important Vietnamese laws and administrative instruments. 2.

UNMIBH Judicial System Assessment Programme

The UNMIBH Judicial System Assessment Programme (JSAP) in the fledgling state of Bosnia and Herzegovina (BiH) was essentially an international attempt at analysing systematic problems in a judicial system fragmented along ethnic and political lines. It was launched by UN Security Council resolution, became operational in late 1998 (three years after the end of the war

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that had cost about 150 000–200 000 lives), and was formally mandated to monitor and assess the court system in BiH as part of an overall programme of legal reform under the co-ordination of the highest international executive authority ‘in theatre’, the High Representative.8 The original impetus for establishing this body came from security considerations, namely that progress with internationally promoted police reforms in BiH needed to be followed with similar efforts to reform the clogged and biased court system. After some initial confusion as to whether JSAP was going to monitor and assess the work of the judiciary more generally or focus on high profile cases specifically, the Programme decided to devote most of its attention to assessing the general quality of ‘justice’ in BiH as compared to international standards of justice, particularly the European Convention on Human Rights. The Programme adopted a conceptual framework for assessing the judicial system in three main aspects: (1) technical, covering legislation and other legal norms and standards; (2) institutional, relating to the capacity of the system in terms of physical resources, personnel, etc.; and (3) political, i.e. the political framework and factors determining the operation and level of independence of the judicial agencies and their staff. Establishing a presence on the ground in post-war BiH was complicated for a variety of political and practical reasons, but recruiting staff proved easier than expected. When the UN advertised internationally for people with a suitable professional background and practical experience of work in transition countries, there were around 600–1000 applications for less than 20 international positions. Many local lawyers were also attracted by the chance of finding a comparatively high-paid job in an international organisation. In order to allow the mission to draw on the knowledge and resources of the UN presence in BiH, it was decided to organise the mission in teams and to deploy one team in each of the seven existing ‘UN Regions’ of BiH. Each team came to consist of two international Judicial System Officers, one National (Bosnian) Professional Officer (normally a lawyer with a background in the judiciary or prosecution service), and two language assistants. The teams worked under the guidance of the JSAP headquarters in Sarajevo, which consisted of an international Head of Programme (initially a Swedish judge, later a Norwegian judge), three international experts, one national expert, two language assistants, and an international administrative assistant. Besides guiding the work of the teams, the headquarters had an important function to liaise with other international agencies and Bosnian authorities, and to make sure that the goals and priorities of the programme were consistent with the overall goals and principles for the international support to the judicial reform effort as elaborated by the Office of the High Representative. Much initial effort was spent on collecting relevant data from courts and

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prosecution offices on staffing, material resources, budgeting, caseload, professional qualifications, etc., and on compiling these data into a computerised database. Once this work had been completed, the teams could shift attention to their core task of performing in-depth topical studies of matters of special importance for the independency and effectiveness of the judiciary. The results of these studies were compiled by the JSAP headquarters and published in a number of topical reports made available to the Office of the High Representative, the UN Special Representative, and others concerned with human rights and rule of law issues in BiH.9 While JSAP was well equipped to supervise and assess, it had neither mandate nor resources to make sure that its recommendations were actually implemented. The implicit – and in many respects naïve – idea, was that local agencies would be persuaded to accept the conclusions and recommendations emanating out of JSAP by means of persistent political dialogue. If that was not sufficient, they would be coerced to do so by the High Representative. However, BiH is a country where the international community fights an uneven battle with obstructionist factions determined to keep the judiciary manipulated or crippled. The High Representative also needs to be careful not to impose reforms too brutally or frequently, or stand the risk of completely eradicating the little domestic ownership there is in the greater process of state building. It eventually became clear that the ‘build-in’ problems in this construction rendered JSAP essentially impotent in the political sphere. In an attempt at reviving and energizing the judicial reform process, the High Representative established a new body, the Independent Judicial Commission for Bosnia and Herzegovina (IJC) in 2000, and tasked it to take the lead in both assessing the system and implementing important judicial reform projects.10 3.

Comprehensive Legal System Needs Assessment for Vietnam

The impetus for the Comprehensive Legal System Needs Assessment for Vietnam (LNA) came from a conclusion in the Vietnamese leadership that various important national development goals would not be possible to achieve without a facilitating and consolidating legal framework.11 The successful establishment of such a framework, in turn, was believed to require a strategic approach to legal and judicial reform and a method to allow prioritisation and allocation of scarce resources to the most important reform objectives. In coming to this conclusion, the Vietnamese government was also inspired by similar efforts in other developing and transition countries in Asia, among them Indonesia and Mongolia, and attracted by the support that international organisations, notably the World Bank and the UNDP, had provided for their implementation.12 A group of assistance providers comprising among others the World Bank, Asian Development Bank (ADB), United Nations

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Development Programme (UNDP), Swedish International Development Cooperation Agency (SIDA), Danı¯da, Japan International Cooperation Agency (JICA) and Australian Agency for International Development (AusAid) did indeed prove willing to provide money, equipment and advice to support the LNA. Most of the financial contributions to the LNA were designated for empirical research, workshops and conferences, in-country travel, secretarial support, communications, translation, interpretation, document production, and co-ordinating functions. Virtually all significant Vietnamese agencies concerned with legal and judicial issues participated in the LNA, inter alia the Ministry of Justice, Supreme People’s Court, Supreme People’s Procuracy, Office of the National Assembly, Office of the Government, Internal Affairs Commission of the Central Committee of the Communist Party, and the Ministry of Planning and Investment. At the request of the Government, the Ministry of Justice was designated as co-ordinator of the whole effort. Most of the work was carried out by four subject-area teams: Framework of laws and international instruments; Legal and judicial institutions; Legal education and training; and Legal information and dissemination. Each team consisted of 12 to 15 designated experts from the participating agencies. A fifth team was responsible for merging the subject area reports into one comprehensive report and action plan. The subject area teams also included auxiliary experts from legal education, training and research institutions.13 One or more international specialists with previous experience of Vietnam were also seconded to each team by the major donor agencies supporting legal and judicial reform in Vietnam. The role of these international experts was not to ‘lead’ or ‘drive’ the work of the teams, rather to provide insights and find materials that were not readily accessible to the Vietnamese team members.14 The five teams were overseen by, and received further instructions from, an ad hoc Inter-Agency Steering Committee (IASC) consisting of eight ministeror vice-minister level representatives of the key state agencies in the legal field. A Vice-Minister of Justice performed the day-to-day supervision of the progress of the LNA. A Secretariat for the IASC was formed within the Ministry of Justice to facilitate the practical work of the teams, inter alia by assisting in scheduling and holding meetings and workshops; preparing notes and minutes of team meetings; making regular reports to the Committee on team and other LNA activities; preparing for larger-scale external workshops; compiling a regular newsletter on LNA activities and news; and assisting the Committee and individual teams to establish and maintain contact with international donors and international experts. The work proceeded basically as follows: The LNA was kicked off with a two-day Launching Workshop in March 2001, with the participation of some 40 persons representing relevant Vietnamese agencies, donor organisations,

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and international experts. Besides signalling high-level and broad-based support for the LNA, the workshop served to introduce to the participants the specific objectives, activities, and proposed main outputs of the exercise. This meant that it was clear from the beginning that the LNA should be understood as a rather instrumental enterprise, aimed at making sure that resources devoted to future reforms would support specific priority goals rather than ‘justice’ or ‘rule of law’ generally. Another workshop to the same end was held in June 2001, in which particular attention was paid to consolidating a common and better understanding among the participants of the implications of the socio-economic strategy of Vietnam for 2001–2010 on long-term legal sector development on the one hand, and of the instrumental role of the legal system in achieving these broad goals on the other. Then the teams could proceed to develop and agree on a consistent procedure and methodology for analysing the aforementioned main areas of the legal and judicial system. The next step was fact-finding. The teams began with making an inventory of existing analyses, reports and statistics (international analyses were provided by embassies and international organisations represented in Vietnam) and summarising their main findings. The work then proceeded with gathering and compiling additional and in-depth ‘empirical’ information where needed by means of polls and interviews. After having completed the phase of fact-finding, the teams started to identify perceived problems and gaps, as well as any notable successes, in the functioning of each area of the system. They also sought to analyse the underlying causes, including linkages to official social and economic policies in Vietnam, for example whether economic policies were incompatible with legal structures. The final analytical step was to find and present effective solutions for the identified problems. The problems and reform recommendations were then compiled into thematic reports and merged by the high-level fifth team into a comprehensive synthesis report, setting out: a statement of the major needs for Vietnam’s legal system development in light of relevant priority social and economic policy goals; a proposed comprehensive strategy for Vietnam’s legal system development to 2010; a proposed action plan to carry out the strategy; and a proposed framework for international support to the implementation of the action plan. Draft versions of the thematic and overall reports were circulated for comment among state and local agencies, mass organisations, individual citizens, etc. A number of international conferences and workshops were also held in 2001 and 2002 to allow the teams to meet with donor agencies and other international stakeholders and discuss both the draft report and the LNA process more generally. The official version of the final draft was presented in April 2002. While the LNA would not have been possible without the strong backing of the Party, its involvement signalled that there were explicit and implicit

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restrictions as to what the teams could find and propose. Further, while an unprecedented number of Vietnamese agencies were encouraged to participate, the chances for political and bureaucratic ‘outsiders’ to influence the methodology or substance were slim. It was symptomatic that almost all the proposed ‘implementers’ of the action plan items were state or public agencies, or bodies affiliated to the Party. The political constraints were particularly palpable where the discussion touched upon issues of democracy and human rights. In most cases, the teams simply avoided these topics, or tried to confine the discussion to a non-committal minimum. When it was deemed necessary to open for some debate (because of foreign pressure, credibility considerations, etc.) the teams were careful to avoid clear definitions and unambiguous statements. There were also examples of ‘newspeak’, i.e. giving concepts that already have a more or less commonly accepted definition a new and uniquely ‘Vietnamese’ meaning (e.g. human rights becoming ‘legitimate and democratic human rights’ and rule of law becoming ‘Socialist Rule of Law State’). It could have been feared that the long Vietnamese tradition of fighting political ‘turf battles’ would have made the work in the inter-agency teams difficult or even impossible. While there probably were some such tendencies, the LNA leadership was rather successful in maintaining a façade of relative unity vis-àvis the donor community. Even in the synthesis of the various thematic reports, where policy and priority decisions had to be made in the face of interest advocacy, little leaked out of the participating agencies to indicate that painful battles were won or lost. On the other hand, there is a fairly consistent view, both domestically and in the donor community, that the resulting Strategy and Action Plan basically prioritised everything and omitted nothing. Although the LNA was launched as a domestic analytical enterprise, the ‘aid factor’ came to influence how the teams described problems and suggested remedies. This was only to be expected as the donor community (notably the World Bank and the UNDP) at an early point in the assessment phase opened up for a parallel discussion about how to link overseas development assistance to identified reform priorities. The teams took notice of this sideshow and sought to position themselves to get the most out of the opportunities it provided. The perceived need to compete for overseas resources also made the participating agencies suspicious of the co-ordinating role of the Ministry of Justice and made them fear that it would seek to channel as much as possible of the foreign support to its own pet projects.

IV.

CONCLUSION

The examples provided above, i.e. the Introduction to the Vietnamese Legal System, LNA and JSAP, underline the old truth that the outcome of an

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assessment is largely determined at the stage of assessment design. Assessment design, in turn, just like the whole process of legal and judicial reform, is dependent on a greater surround of political, economic, social and cultural factors. Of these, the expectations and preferences of the ‘ordering’ body are the most significant. Obviously, a Marxist–Leninist leadership struggling to retain its leading role in policy formulation can be expected to have rather different expectations about both policy outcomes and implementation modalities than a ‘protectorate style’ international territorial administration answering to an impatient Security Council and donor community. At the same time, perfection should not be allowed to stand in the way for good enough. Any assessment is better than no assessment, at least as long as it is not completely manipulated to serve the interests of an oppressive regime. The mere inception of an assessment exercise signals the presence of a political and substantive awareness among the leadership of the need for an analytical approach to legal and judicial reform. In ‘difficult’ political environments, even a controlled assessment will also provide a valuable opportunity for interagency discussion and exposure to new ideas. The presence of foreigners in the forum further means that the discussion, almost by definition, will be more open and critical than would otherwise be allowed. Yet another reason for not insisting on perfection is that ambitious assessments are very resource demanding and as such risk stretching the capacity of the participating agencies, particularly the host government, to a maximum. States and governments aware of their ‘weakness’ may consequently refute the initiative already at the stage of idea.

NOTES 1.

2. 3.

For example, Van Hoecke and Warrington (1998: 514–515) suggest that the differences between Asian and Western legal culture or ‘paradigms’ are so pronounced in regard to the degree of inclination to individualism and rationalism that there is little to be gained from a straightforward comparison. A ‘legal paradigm’ is defined as ‘[. . .] a hard core of shared understandings, of basic theories and concepts, a common language, a common methodology’. This paradigm or ‘common legal culture’, in turn, includes shared understandings on at least (1) a concept of law; (2) a theory of valid legal sources; (3) a methodology of law, both for making and for the adjudication of law; (4) a theory of argumentation; (5) a theory of legitimation of the law; and (6) a common basic ideology. See e.g. UNDP (2003:16). Available over a web-based database at www.worldbank.org/ljr (accessed 10 July 2009). The World Bank also hopes to encourage ‘interested organisations to design, plan and implement legal and judicial modernisation processes based on benchmarking techniques and best practices indicators’ [. . .] ‘the academic world and related institutions to carry out research projects in the area of legal and judicial reform’ [. . .] and ‘civil society organisations and NGOs to take a more active interest in the importance of legal and judicial reform and, especially, the rule of law.’ The World Bank, available at http://www4.worldbank.org/legal/ database/Justice/default.htm (accessed 10 July 2009).

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4. Some commentators argue that any research into law and its significance in social life which looks for ‘the law’ or ‘the effective law’ is futile because it sets out from the incorrect assumption that law exists and can be described and analysed independently of context, or, which amounts to the same thing, that it is the same in all contexts, see e.g. von BendaBeckmann (1989: 141). 5. Clarke (1996: 206–207) points out that people never investigate a subject in which they have no interest and since by hypothesis the interest precedes the investigation, it is clear that the interest must stem from something other than (extrinsic to) the object of investigation. 6. The material, e.g. a questionnaire, is translated from one language to another, and then translated independently, by another translator, back into the original language. The results are then compared to identify and correct semantic errors in the translation. 7. There are many other examples of comprehensive and careful assessments meriting discussion, for example World Bank and UNDP-sponsored initiatives in a range of Central American, African and Southeast Asian Countries. See for example Ethiopian Ministry for Capacity Building (2005), formally commissioned by the Ethiopian Ministry for Capacity Building and implemented with the assistance of the Center for International Legal Cooperation at Leiden University. 8. Established by UN Security Council Resolution 1184 (1998). 9. Inter alia Serving the Public: UNMIBH (2000a); (UNMIBH 2002b); (UNMIBH 2002c); (UNMIBH 1999a) and (UNMIBH 1999b). 10. This decision was made in accordance with the directives of the Peace Implementation Steering Board in Lisbon in May 2000 and was endorsed by UNMIBH, OSCE and the CoE. The IJC was also given an important role in providing opinions and advice in judicial reform and rule of law issued directly to the Federation and Republika Srpska ministries of justice, members of the judiciary, court administrators and members of the international community. The Director of the IJC could recommend to the High Representative the use of his powers as elaborated in the December 1997 Bonn Peace Implementation Council Declaration, e.g. regarding the need to impose legislation or to remove officials, including judges. Other than those circumstances, the Director could decide upon actions to be taken on the basis of powers authorised by the High Representative. 11. The national development goals are (1) building a state ruled by law as mandated by the 1992 constitution; (2) increasing democracy; (3) changing the economic system from central planning to a socialist-oriented market economy under state management; (4) integrating Vietnam into the regional and international economies; and (5) making Vietnam a modern industrialised state by the year 2020. 12. The first of these World Bank-sponsored assessments was completed in Ecuador in 1994, and involved reviewing different aspects of the administration of justice. As a result of the priorities identified, the ensuing Ecuador Judicial Reform Project came to include a broader range of components than previous World Bank legal and judicial reform projects. 13. Inter alia the Central Institute for Economic Management, Hanoi Law University, the Institute of State and Law, the Institute of Legal Research, and the Legal Professional Training School of the Ministry of Justice. 14. The General and Team-specific ToR spelled out that the teams should own and drive the processes of fact-finding, policy analysis, and drafting, while the role of the foreign experts should be advisory and catalytic.

REFERENCES Clark, D.C. (1996), ‘Methodologies for Research in Chinese Law’, U.B.C. Law Review, 30(1), 201–209. Clarke, D.C. (2004), ‘Empirical Research into the Chinese Legal System’, in E.G. Jensen and T.C. Heller (eds.), Beyond Common Knowledge: Empirical Approaches to the Rule of Law, Stanford: Stanford University Press.

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Ethiopian Ministry for Capacity Building (2005), ‘Baseline Study Report for the comprehensive justice system program in Ethiopia’. McInerney, T. F. (2004) ‘Law and Development as Democratic Practice’, Voices of Development Jurists, 1(1). UNDP (2003) Legal and Judicial Reform: Strategic Directions. UNMIBH – Judicial Assessment Programme (JASP) (2002a) – Thematic Report X, ‘Serving the public: The Delivery of Justice in Bosnia and Herzegovina’, November 2000. All UNMIBH reports were made available at the UNMIBH website, www.unmibh.org (accessed 10 July 2009). UNMIBH – Judicial Assessment Programme (JASP) (2002b), Thematic Report IX – ‘Political influence: The Independence of the judiciary in Bosnia and Herzegovina’, November 2000. UNMIBH – Judicial Assessment Programme (JASP) (2002c), Thematic Report VIII – ‘Prosecuting corruption: A study of the Weaknesses of the Criminal Justice System in BiH’, November 2000. UNMIBH – Judicial Assessment Programme (JASP) (1999a), Thematic Report: ‘On Arrest Warrants, Amnesty and Trials in Absentia’, December 1999. UNMIBH – Judicial Assessment Programme (JASP) (1999b), Thematic Report, II ‘Inspection of the Municipal Public Prosecutor’s Office in Livno’, September 1999. van Hoecke, M. and M. Warrington (1998), ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, International and Comparative Law Quarterly, 47, 495–536. von Benda-Beckmann, F. (1989),‘Scape-goat and Magic Charm – Law in Development Theory and Practice’, Journal of Legal Pluralism, 28, 129–48.

3. Development assistance in the legal field: promotion of market economy v human rights Michael Bogdan From a lawyer’s viewpoint, it is extremely satisfying that the importance of law as a pre-condition of desirable economic and social development is now generally recognised. The same developing countries, that used to ask Sweden for food, machines or medicines, ask now for assistance in producing a bankruptcy law, educating judges or publishing an official gazette. Development assistance in the field of law has become a large-scale industry, connected to the transition of many Third World countries and former communist states towards some kind of market economy and political democracy. This assistance creates, at the same time, a number of novel problems.1 Sweden is a relatively small donor in this context in comparison with some other countries and international organisations such as UNDP (United Nations Development Programme). Only about one percent of direct Swedish development aid, administered by the Swedish International Development Cooperation Agency (SIDA), relates to law and legal matters.2 Sweden used to differ from most Western countries by providing generous assistance to various ‘progressive’ regimes of preponderantly Marxist orientation, which makes Sweden a wellestablished donor in the same countries even now, after they have abandoned the Marxist economic and legal model. This does not mean, however, that the assistance to these countries’ legal development is uncontroversial. While aid in the field of promotion of human rights seems to be generally accepted, helping the recipient countries to replace their state-controlled economic systems with a ‘capitalist’ market economy is considered by some Swedish critics to be equivalent to helping the rich to get richer and abandoning the poor. This may be one of the reasons why the Swedish aid in the field of law is in SIDA’s documentation often listed under the heading ‘support for democracy and human rights’, which is in my opinion an excessively narrow way of looking at the role of law, since the creation of basic legal prerequisites of a functioning market economy should be seen rather as an element in securing economic growth, which is undoubtedly the most central purpose of our development assistance as a whole. 33

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There is, to my knowledge, no universally accepted definition of what is meant by ‘market economy’ (the critics of market economy often prefer to call it ‘capitalism’), but it is usually understood to mean an economic system based on private ownership of the means of production, freedom of individuals and groups of individuals to start and run private businesses in competition with others, and the right of individuals, including consumers, to take economic decisions and measures without state interference. Today, there is hardly any country where market economy is allowed to function in its 100 per cent pure form, as a certain degree of state intervention into the economy is commonplace – and necessary – even in countries strongly supporting the ideology of market liberalism. Thus, when we say that the European Union consists of countries having market-oriented economy, what we have in mind is that these countries have an economic system which is, to a prevailing degree, based on the principles of market economy. In this chapter, the term ‘market economy’ will be used in this sense, i.e., to denote a mixed economic system where market economy is the dominant feature. Market economy has proved its value as the most efficient economic order. At least at the present state of development of technology and other means of production, it can produce goods and services with the least possible cost of human labour, raw materials, energy and environment. Therefore, it is hardly surprising that almost all of the countries which used to have economic systems based on central planning have opted to transform their economies into market-oriented ones. This applies to both the former communist countries and many of the countries of the Third World, some of them traditionally large-scale recipients of Swedish development aid (such as the doi moi reforms which started in the 1980s in Vietnam). Of course, it can be hoped that economic growth will contribute to democratic development and increased respect for human rights as well, since experience shows that a functioning market economy is a necessary, albeit not always sufficient, precondition of democracy as we know it in the West. In this chapter, I shall make an attempt to explain why and how supporting economic reforms favouring market economy is a necessary element in the support for political democracy and human rights. In my opinion, there are basically three factors making a market-oriented economic system a necessary – albeit not sufficient – precondition of both a political democracy in the modern sense and an efficient protection of human rights. The first factor is connected with the above-mentioned superior economic efficiency of market economy in comparison with all the other presently known economic systems. A low standard of living is often the main reason of the general discontent which makes governments in planned-economy countries feel threatened and compelled to restrict, in one way or another, the civil

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and political freedoms of their citizens. The former German Democratic Republic would certainly not have felt the necessity of depriving its citizens of their freedom of expression and preventing them from visiting the West if the East German planned economy had provided the population with a standard of living comparable with that of the Federal Republic; the main purpose of these East German restrictions was to stop the mass exodus of discontent citizens and to uphold the public lie about the economic superiority of socialism (characterised by the public ownership of the means of production and central planning). In those countries where the prevailing economic system has the support of an overwhelming majority of the population, there is no need to fear that the economic system will be overthrown by a revolutionary upheaval. Therefore, the political system can afford to respect political democracy and human rights and freedoms. The second factor linking political democracy and human rights with market economy is related to the fact that a market-oriented economy prevents the State from gaining a total control of the everyday life of the citizens. Of course, a ruthless dictator can regardless of the economic system have his opponents arrested or even executed, but due to international pressures such instruments have become difficult to use. Besides, they are rather impractical if the oppression is to be used on a very large scale. In a planned-economy system, the State has at its disposal many other instruments which can be used against the whole population or very large segments thereof. In a country where the State is the only employer and the only provider of education, housing and medical care, each citizen is daily reminded of his total dependency of the regime and can be easily controlled by such pressures as the – usually tacit – threats that the opponent or his family will be denied access to higher education, employment, housing, etc. In a market economy, the citizen can often find some private alternatives, which makes him less vulnerable. The third factor, which is the most interesting one from a lawyer’s viewpoint, is that a market-oriented economic system simply would not function without a certain measure of legal certainty and rule of law. Under the worst years of apartheid in South Africa, when a white person and a non-white person were not even allowed to share the same bench in a public park, the economic sector was governed by legal rules that were practically colourblind. A white businessman acting in breach of his contractual obligations towards a non-white businessman (there were numerous non-white businesses, frequently owned by people of Asian descent) could not count on being treated more leniently by the courts than a non-white businessman would be treated in a corresponding situation. The Latin American experience shows that the various military dictatorships did not hesitate to violate the basic human rights of many of their citizens, including their right to life, but also that at the same time the rule of law was in principle respected in areas such

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as commercial law or tax law: the generals were simply compelled to respect the law in these areas in order not to paralyse the economy, which would stop functioning if e.g. contracts were treated with the same off-handedness as the lives and freedoms of political opponents. If and to the extent the generals wanted to preserve the market-oriented economic system (which, it seems, was one of the proclaimed aims of their war against ‘communist’ elements), they had no choice but to preserve and respect the rule of law as far as the economy was concerned. This is, naturally, not an acceptable excuse for their maltreatment of their citizens in other respects, but has turned out to be highly relevant for the process of re-introduction of political democracy and human rights. In the former market-oriented dictatorships, including those of very long duration such as Spain after Franco, the concept of Rechtsstaat was known and alive; it was rather the lack of it in some limited areas that was the exception which could be remedied relatively quickly. In Spain, for example, it was not any sensational news that a citizen could successfully sue the State or defend himself successfully in courts of law against the demands of the State, as this was commonplace in Franco’s time as well, for instance in tax disputes. The situation was more difficult in the former communist dictatorships in Eastern Europe, where after a lengthy period of planned economy the very concept of rule of law had to be re-introduced and implanted into the consciousness of both the leaders and the general population. From a legal point of view, the transition from a planned economy to a market economy is a very difficult task. Historical experience has demonstrated that, as far as legal regulation is concerned, it is very simple to abolish a market economy and replace it with an administrative planned system. A decree of just a few lines is sufficient to nationalise the means of production and subject enterprises to administrative control. The introduction of a marketoriented system is a much more complicated and long-term process in which law and lawyers play an important role. However, legal changes can only create favourable conditions for a functioning market economy, but cannot by themselves bring it about. In a market economy it is, for example, not possible to command the establishment of new business ventures. It is rather necessary to create a functioning legal framework adapted to the needs of a market-oriented economic system and hope that it will stimulate private initiatives in the economic field. It will take years before small local entrepreneurs grow into successful businesses. This means also that it is not possible to introduce market economy as an experiment; if it becomes known that the marketoriented economic reforms have been enacted by reluctant politicians as temporary measures, nobody will be willing to invest the necessary capital and effort to make the experiment work on a long-term basis. Market economy lives on confidence and stable rules. Sometimes one encounters the view that a transition towards market economy is a mere technicality and that the

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country concerned can even in the future be ruled as before, except that the State will refrain from prescribing what should be produced and what the products and services should cost. In reality, the transition means a veritable ‘mental revolution’ in the way of thinking of both the State leaders and the population, including thinking about such matters as the nature of the relationship between the State and the individual citizen. It would be wrong to assert that market economy presupposes democracy and human rights, as the large number of totalitarian and semi-totalitarian countries with market economy bear witness to the contrary, but a successful market economy requires that the governing regime abides by the law, at least in the economic sphere. It requires, furthermore, a certain measure of confidence on the part of the economic actors that the rule of law in the economic sphere is stable and will continue. To build up such confidence may take much more time than the restoration of the rule of law itself. What is the most efficient way in which the developed world can assist a developing country in creating the legal framework for the market-oriented economic reforms? The most obvious answer might seem to focus on new market-oriented legislation written by or with the help of Western experts. A functioning market economy needs many laws, and this has sometimes come as a surprise to the local leaders who had been taught that in comparison with the planned-economy system, the ‘free market’ is a kind of chaotic state where everything is permitted. It is true that the legal steering of a market-oriented economy does not normally work by means of simple administrative orders, but rather uses indirect incentives such as fees, taxes and customs duties. These indirect steering mechanisms need, however, often more laws and more lawyers than the direct orders used in centrally-planned economies. In addition, market economy requires numerous and complicated legal norms of many kinds. The market could not operate without the law about contracts. Laws on companies are absolutely necessary if the country wishes to make possible private investments exceeding the economic potentials of a single natural person and his family. Many investments can only be made thanks to credit, which will normally not be available unless there are some rules about security (such as mortgage or guarantee). It is inevitable that some of the ventures will fail, which requires legal rules about the handling of insolvency. Labour law – regarding both individual employment relationships and collective labour relations – must be adapted, for example in order not to hinder rationalisations. Criminal law must be changed in order to take care of new types of crimes. All this would be of limited value if there were no constitutional or other legal guarantees protecting private property and an independent judiciary. This list could be made very long. Even though the input of foreign legal expertise is necessary and of great value in this context, the resulting legal transplants give rise to problems as well, for example when the foreign

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advisors come from different legal cultures and the legal system of the recipient country begins to resemble an attempt to build a car from parts that are fully functional by themselves but do not work together because they are of different brands. It is submitted that even more important than the assistance provided by the legal experts is the help to build up a functioning legal infrastructure. This may include such elementary things as typewriters for courts (computers are often unsuitable due to non-existing or unreliable supply of electricity in the countryside and the unavailability of programmers and people able to service and repair the hardware), but also more sophisticated help such as financing the publication of an official gazette making the new laws known to the population. A particularly important element in international development assistance in the field of law should be the support to legal education for the local legal professionals. Experience teaches us that a market economy needs more lawyers than a centrally planned one. The problem is, however, that good legal education requires highly qualified teachers that are usually not available in the countries under transition. The core of the teaching staff consists mostly of upper-middle-aged law teachers who hold their positions since the pre-reform days. The degree of their adjustment to the new conditions varies. They feel they have a disadvantage compared to their younger colleagues, who have received a more open-minded legal training and possess a better knowledge of foreign languages, particularly English. The extremely low salaries at the state universities force them to earn additional income elsewhere, which leaves them with very little time for improving their qualifications, or for legal research. It is important that foreign donors give these teachers a chance to improve their professional knowledge and skills, both regarding the new laws in their own countries and regarding foreign law. As far as foreign law is concerned, short courses given by visiting foreign experts or participation in short courses abroad may be useful. Foreign travel is generally valued very much and having travelled abroad enhances the social and professional status of a person considerably (a tourist trip is usually quite beyond the economic means of an average civil servant). The prospect of travel may induce the teachers to improve their linguistic abilities, especially in English. Development assistance in the field of law is, generally speaking, much less expensive than the traditional development projects such as constructing roads or sending food. It follows from the aforesaid, that the building of a functioning market economy in the countries receiving development assistance means not only a decisive contribution to the fight against poverty but even towards the building of a fundament for political democracy and human rights. It is, in any case, clear that international development assistance focusing on marketoriented legal reforms is, in the long run, more conducive to democratic

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reforms and the protection of human rights than all conferences, courses and other efforts trying to introduce such rights into totalitarian countries with centrally-planned economies.

NOTES 1. 2.

Among my own articles (with some further references) on the subject see Bogdan (1994); (1997a); (1997b); (2004); (2006). A somewhat outdated presentation of the Swedish development assistance in the legal field is found in the official report (SOU 1999:32) by a committee called Kommittén för utvecklingssamarbete på rättsområdet.

REFERENCES Bogdan, M. (1994), ‘Some Reflections on Development Aid in the Field of Law’, in Festschrift für Jan Stepán, Zürich, 7–15. Bogdan, M. (1997a), ‘Common Law versus Civil Law in International Development Aid’, in Festskrift til Ole Lando, Copenhagen, 69–81. Bogdan, M. (1997b), ‘Some Reflections on Development Assistance in the Field of Legal Education’, in P. Sevastik (ed.), Legal Assistance to Developing Countries, Stockholm, 145–157. Bogdan, M. (2004), ‘International Development Aid as a Creator of New Small Mixed Legal Systems’, in Impérialisme et chauvinisme juridiques. Rapports présentés au colloque à l’occasion du 20e anniversaire de l’Institut suisse de droit comparé, Genève-Zürich-Bâle, 55–62. Bogdan, M. (2006), ‘International Development Aid in the Legal Field as a Vehicle for Globalization of Law’, in R. Blanpain and B. Flodgren (eds.), Corporate and Employment Perspectives in a Global Business Environment, Alphen aan den Rijn, 35–41. SOU 1999:32, Utvecklingssamarbete på rättsområdet, Kommittén för utvecklingssamarbete på rättsområdet.

4. Can human rights be exported? On the very idea of human rights transplantability Claudio Corradetti INTRODUCTION In order to formulate an answer to the question of human rights transplantability, it is essential to refer, first, to the idea of a conceptual-legal status of human rights, and then to provide an understanding of the notion of transplantability itself. These points can be validly argued only if a general precondition is first satisfied: general comparability among systems of rights. Indeed, it is only if the possibility of general comparability among legal systems can be admitted that the moral and political obligation might arise to expand, through legal transplantability, the system of protected liberties and fundamental rights. Now, as within one single system of fundamental rights there seem to arise several difficulties in commensurating between individual rights themselves, in the same way, between different right-systems there seems to be little utility in looking for a common neutral ground of commensuration assessing whether one exemplar liberty in a legal system S1 is better formulated than an analogous liberty exemplarily formulated in a legal system S2. And yet, a form of partial commensurability among different systems of liberty-rights can be conceived as taking the form of a general balance of satisfied freedoms. While exemplar rights per se remain reciprocally incommensurable, both at an infrasystem level and at an inter-system level, in relation to general balance of guaranteed freedoms it is still possible to provide a general assessment confronting the overall fulfilment of freedoms among different legal systems.1 A further reason for a preliminary clarification of the concepts at stake is that the correlation between rights and transplantability leads to apparently counterintuitive conclusions. Indeed, if the theory of legal transplants points to the transfer of legal norms from one legal system to another – a horizontal relation between two states’ legal systems – its application to human rights seems rather to involve a vertical relation between an international system of 40

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human rights protections and its reception within national boundaries. This would be true even in the case of an apparent horizontal, state-to-state, transfer of an internationally recognised human right norm, where the transnational element of bilateral advocacy is functional to the incorporation of a supra-ordinate norm for both systems. An additional difficulty connected to the first point would relate the dynamics of legal transplants to the evaluative aspect of transplantation and address the socio-cultural impacts that human rights transplants would produce together with the desirability of the produced effects. But, before entering into these problems, let’s discuss first some different approaches to the concept of law and its socio-cultural interconnections, and then evaluate how, from a multilayered concept of human rights, it is possible to reformulate the constrained plausibility of a notion of human rights transplantability. In order to deal with all these questions, I will first introduce briefly my view on human rights validity, and then consider three possible approaches to law which respond in different ways to the problem of transplantability.

I.

THE VALIDITY OF HUMAN RIGHTS

In what follows, I will address the issue of validity of human rights by starting from the conditions of inherent pluralism characterising modern societies and by referring, accordingly, to the problem of partial incommensurability among ethical theories. If one refers to the partially incommensurable plurality of the view of the goods which individual or collective purposive agents might advance, then the conditions for achieving goods might be placed precisely on the right-framing of those conditions of purposive agency which logically antecede any specific choice of the good or of any comprehensive plan of life.2 Generally speaking, moral incommensurability can be defined as the position which considers that, at any given two or more goods, no common measuring value can be found capable of establishing that either one of them is better or equal to the others. Goods can be taken as incommensurable in as much as they are refused the status as scalar unities sharing a third common property in different degrees. But if, contrary to this insight, an argument can be provided capable of showing goods’ subordination to an higher form of hierarchical ordering, in terms of a lexical ordering, then the problem for their total incommensurability vanishes. Higher ordering values would then seem to resubmit the problem of total incommensurability at a different level. In respect to the potentially unlimited kinds of goods which can be chosen, basic rights as enabling conditions do restrict the range of possibly morally allowed goods to the extent that these latter do not infringe the same enabling conditions of choice; and in terms of their hierarchical relation to goods, enabling

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basic rights do resubmit a form of incommensurability as a lexical ordering between them and other purported goods: in this sense, human rights ‘trump’ any consideration for the maximisation of the good (Dworkin, 1977). If goods are intended as subordinated to a system of basic rights bearing a hierarchical relation of status to them, then any possible attempt of partial commensuration among goods in such system would first evaluate whether any purported good constitutes a possible infringement of basic enabling rights. In as much as goods do not contradict basic enabling rights, then they can be said to be indirectly partially commensurable to a background system of enabling rights. In a pluralistic social community ordered through rights, there is no valid paternalistic advice which can be tolerated as a moral guide to action. There are rather spheres of liberties and of mutual responsibilities within which any citizen can freely cultivate her own passions and life-styles without having to bear the weight of any moral burden for the possible public justification of the right-protected choices. The disjoining of such two levels opens thus to the development of two parallel and conflicting standards of moral reasoning which do proceed, respectively, by confronting what is due reciprocally as a matter of intersubjective duty with what is morally due in face to face relations. Let us address this point by analysing some of the points of Habermas’s speech-act theory. In Habermas, the example is made of a professor asking one of his seminar participants to bring a glass of water. The validity of this request, says Habermas, can be criticised according to several speech-act validity claims, as for instance to its truth-validity (there is no water tap nearby), to its truthfulness (this request is just to reach perlocutory effects by putting him in a bad shadow towards other participants) or, finally, to its normative rightness (you are not entitled to treat me as your employee). In this latter case Habermas claims that: ‘[. . .] what is contested is that the action of the professor is right in the given normative context [emphasis added]’ (Habermas [1981], 2003: 141). Now, what is unconvincing about this explicatory strategy is that normative contextual validity is here claimed without its conformity to any previously established criterion of validity set either dependently or independently from any given context. It is true that the Habermasian central concern regards the non subordination of any communicative action to possible perlocutionary finalities of speech-acts, but it seems rather difficult to achieve such a goal without allowing subjects with some logically prior counterfactual argument grounding the normative rightness of communicative speech acts before any possible life-forms contextual structuring. In the above mentioned example, in fact, the agreement between the two interlocutors would be at most achieved in terms of socially convergent behaviour as conducted within a given lifeform and not as an argued form of normative rightness that remains

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autonomous from given contexts. It seems therefore necessary to reformulate, while maintaining the general features of a model of communicative action, those same constraints for normative rightness as well as to provide an argument capable of setting certain experiential constraints as preconditions to be attained by any illocutive speech act aimed at achieving understanding in all normatively valid language-games. In the attempt of reformulating the Habermasian normative validity condition of communicative action, I will claim that illocutive speech acts aimed at reaching, through understanding, action co-ordination force do raise two interconnected forms of normative rightness: (a) a formal universal intersubjective claim of recognition; (b) and an exemplar form of normative validity mediating between the counterfactual validity of universal recognition and the contextual appropriateness of practices embedded within any given life-form.3 I will begin with the first point and leave the explanation of the second to the next section. Illocutive speech acts raise, first, a form of normative validity in terms of a counterfactual scenario, setting the conditions for purposive action. Within the linguistic practice, such counterfactual conditions are presupposed as a form of a commitment to the recognition of otherness in terms of her capacity to self-determination.4 The idea of a commitment to the recognition of subjects as self-determining agents relies on the idea according to which individuals, by acting purposively, behave as if an agreement on equal terms of cooperation were anticipated. The preliminary commitment to an intersubjective dimension of validity is therefore raised by the same pretence of normative validity of any linguistic speech-act; it regards the mutual commitment of communicative agents to the definition of the boundaries of social interaction. Such commitment, viewed in terms of a meta-condition of communicative action, binds all purposive agents – acting for the satisfaction of different conceptions of the good – to presuppose, necessarily, a mutual recognition of the most extensive form of individual and collective rights as a system of equal freedoms compatible with that of all. Indeed, it is only by assigning priority to an intersubjective relation of mutual recognition, that each individual can become the depository of a system of formal enabling liberties which in their turn allow for the realisation of her preferred good: recognition indeed grounds an equal right to have liberty-rights. But, from the establishment of such immediate intersubjective relation, which any speech act that is oriented to mutual understanding must presuppose, it follows that its locutive aspect can always be criticised by the hearer who raises certain elements of exemplar relevance. This introduces a negative-critical element regarding the dialectical dynamics of a discursive form of recognition which intersects, also, the notion of exemplar universality. The immediate form of recognition which is advanced by an illocutive speech-act aimed at reaching mutual understanding

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does establish, provisionally, a relation of reciprocity, but while advancing such an hypothetical and formal claim, it specifies substantively how this or that right is to be understood for a ‘we’. Here, there are two interconnected notions of counterfactuality at play: an abstract one, as that grounding recognition of all potential participants to discursive practice and an ‘indexical’ one, that is, the pragmatic anticipation of a situated self entering into the dialogical process of exchange of reasons. Such a process, while declaring the specific form of exemplar universality that a discursive must take, leaves open the determinate option of critical rejection to the other communicative agents, so that negativity enters discursively within the process of recognition itself. What is to be re-established is a form of an ‘identity of identity and difference’, so to use an Hegelian expression, where each is recognised as an end in itself and where subjective wills merge dialectically into a universally concrete will. Such movement of being ‘in oneself’ and ‘for the other’ is what constitutes the domain of recognition within the domain of the ethical life, and consequently what transforms the natural law community of moral individuals into a political community. Since an overcoming of the abstract autonomy of the moral subject occurs in the intersubjective decentring of the self proper of the identity/difference movement, the affirmation of the general will cannot but take place within an institutionally grounded domain of social reflection. Within this higher form of recognition, the self relation to myself is mediated by the other, which is not anymore seen as an external element: this is, instead, an intersubjectively ‘mediated We’ that arises and determines a parallel intersubjective mediated form of autonomy. The notion of mediated autonomy is clearly a re-elaboration of the Kantian notion of autonomy. In the latter, particularly according to the Second Critique, the categorical imperative, through obligation, reduces manifest freedom to conscience. It is through the moral law that freedom is discovered as an element of our self-conscience. Through such a step, then, the subject becomes aware of his autonomy. However, Kantian moral imperative and autonomy in general, in order to function, must presuppose itself the idea of an intersubjective community as a community of ends. The intersubjective paradigm of autonomy here defended, intersects precisely this level of enquiry, adding a dialectical moment as the possibility of outcome revisability despite an immediate form of intersubjective agreement. The self-affirmation of the other as different is an essential component for the overcoming of the abstract form of universality that one would obtain simply at the stage of immediacy of the formal ‘We’. Therefore, the dialectical re-joining of the self and the other is necessary for the construction of a determinate universal as a concrete universal, where differences are assimilated within a higher form of universality which I define in Kantian terms as a form of ‘exemplar universality’.5

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Once an anticipation to intersubjective recognition is made intersubjectively, then, a community of ethical agents is constituted. Within such a community, the reciprocal potentially unlimited extensivity of purposive self-determination gets negatively segmented in terms of non infringements of the self-purposive determination of the others. Now, to be free is always to be capable of pursuing or not pursuing a desideratum once that any sort of impediment, restriction, barrier to the realisation of a purported plan is removed. To use a formula introduced by MacCallum (1967), liberty is a three-place concept; that is, it is a triadic relation which always includes the idea of an agent which is not impeded from realising one’s desired goal. That the notion of liberty includes the removal of the obstacles preventing an agent from realising her desired purposes means that both negative and positive freedoms are strictly interconnected. It is only at this point that liberty, through the emergence of a public domain, divides itself into a private and a negative sphere of individual purposive agency – protected by any unjustifiable intervention by the others – and by a public domain of self-determination through political participation. This means that, in order to satisfy the fulfilment of the preconditions of liberty as the possibility to realise one’s desired projects, one has to be put in condition – enabled – through the removal of intentional or foreseeable unintentional obstacles preventing the positive exercise of freedom. But, if liberty is considered as interconnected to the removal of disabling conditions which lead to the exercise of self-determination, then, a basic condition of well-being is to be satisfied in view of a full exercise of private and public freedoms. Indeed, to be free to realise one’s own desired purposes depends upon the agent ‘not being deprived from’, or of ‘not being impeded from’ pursuing one’s desired goal. If it is so, then, one’s impediments to purposive action are not only relative to deprivation of freedoms as such, but also and very often to forms of disability due to conditions of destitution or of health impediments. In this sense, the notion of basic well-being falls precisely within an enlarged notion of freedom as a triadic relation where, for instance, the right to be free from starvation is functional to the positive exercise of self-determination both in the private and the public realm. The rights to basic well-being, therefore, get justified in view of the possibility of the agents being capable of autonomy as purposive agents. Also, since the quantitative allocation of goods and services, in order to be enabled to the exercise of one’s positive freedom, is functional to the contingent individual and societal conditions, a more precise criterion for the normative allocation of the required means to well-being can be only established through a situated judgment. The judgmental activity, which will be addressed later, would consider the allocation of services and goods not simply as a relation to the median distribution of wealth in a society, but as a contextually justified and as an always subjected to revision satisfaction of primary freedoms in view of the exercise of purposive action in general.6

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Freedom concerns here not the status of the subject, but rather its action presuppositions. Freedom is a presupposition to action when the agent is capable of having at her disposal such preconditions for action during her engagement into purposive agency. And yet, to have something at one’s disposal means never being capable of fulfilling the status of freedom as a condition of possession. Agents ‘assume’ that such a condition of presupposition is to be postulated as an unavoidable element for the practical engagement in the realisation of their goods, that is, as an unrejectable universal condition for purposive agency.7 Following from such assumption, the revision of one’s possible desiderata which would contradict those same intersubjective conditions of purposive agency does not collapse into a contingent revision of one’s achievable projects in accordance to a specific context. If one were to confound an idealised perspective with an actual one, then the revision of possible projects as according to circumstances would make the same notion of liberty empty. On the contrary, I am here calling for the most extensive protection of anyone’s purported projects, so that any contingent restriction in actual situations will amount to a disruption of the fundamental intersubjective relation of recognition grounding the formal system of equal rights among people. Since an equal system of liberty rights can be drawn from a relation of mutual recognition of otherness as potential participants to communicative actions, then, any experiential violation of the system of liberty rights does amount to a form of misrecognition of potential agency and therefore to the negation of that ideal community of moral agents which only can grant the legitimacy of any system of law. And yet such an ideal community of moral agents is still a formal category considered as a necessary prerequisite for the validity of speech acts. The recognition of a generalised other from which the respect of certain co-ordinating parameters in pursuing one’s own purposes can be derived, does not rely on a previously grounded substantive concept of humankind. To rely on a previously established category of humankind would be both to reintroduce an essentialist-metaphysical perspective within a postmetaphysical process of justification, and to provide a recursive argument for mutual recognition. Since no a priori concept of humankind can be provided, then, the commitment to the most extensive activity of recognition of otherness cannot but rely on a form of a quasi-transcendental hypothesis of recognition of otherness as a potential addressee of the most extensive equal system of freedoms.8 Lacking a pre-established fixed criterion of human nature, it is on the basis of the attribution, through recognition, of an equal system of liberties that we come to construct an idea of humankind as a form of maximally inclusive moral community. The principle of equal liberty that agents reciprocally recognise counterfactually each other as purposive agents, is therefore at the basis of a form of intersubjective autonomy which precedes the individual capability for autonomy of each purposive agent.9 Potential infringements of

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such intersubjective recognition constitutes a performative contradiction that bears as a consequence that of rendering irrational all those agents’ behaviours refusing to subordinate their own strategic actions to the fulfilment of a coordinating force. Recognition of otherness plays the role of transition from a purely rational first person perspective into an ‘us’ considered both in terms of the anticipation of an ideal community of fellow human beings to which ascribe a certain number of necessary rights for the actualisation of potentialities, and once undergone into dialectical mediation, as a political self-determining community, as a concrete universal. Once identity is initially constructed through immediate recognition in terms of a moral community deserving the maximisation of liberty satisfaction, then along the dialectical process of recognition, the judgmental activity engaged into the contextual political specification of fundamental rights, will orient the formulation of reflective judgments to the construction of a political community. The moral premises of a constructed human community are completed by the political development of human rights formulations. Viewed in terms of fully-fledged formulated rights, liberty-rights have to await the deliberative activity of a political community which would shift from the attribution of a formal system of rights to a moral community of humankind, to the formulation of substantive rights in view of a political self-determining community. With respect to a specific political community, recognition of otherness, when raised by an exemplar human rights formulation, constitutes unavoidable premises. To see how the normativity of equal freedoms as ideal conditions of purposive agency might cope with the realisation of the political autonomy of self-determining bodies, one needs to find an explicatory model capable of combining, in a creative and dynamic way, the validity of a system of freedoms with the search of a form of contextual political validity on the basis of a deliberating activity. This is what I consider as being the role that reflective judgment – in as much as it represents a meta-judgment springing from illocutionary speech acts – plays in the political formulation of human rights.

II. THE VALIDITY OF HUMAN RIGHTS TRANSPLANTABILITY At the beginning of this chapter, I promised to confront three different approaches to human rights transplantability in order to check which is the most appropriate position to the here proposed idea of human rights. The selection of such three theories is sensitive to the different views they exhibit in respect to the notion of law. Indeed, the first position considers law as an autonomous domain and it represents the best candidate for a pure theory of

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legal transplants; the second conceives of law as a domain strictly embedded into and dependent upon society, thus rejecting any legitimate form of legal transplantability; finally, the third model represents an intermediate paradigm in between autonomy and autochthony, conceiving of the possibility of legal transplants as an option subordinated to certain specific constraints. The first position is the one clearly defended by Watson (1993) who claimed, on the basis of his investigations into the effects of Roman law into civil and common systems of law, that changes occur on the basis of ‘legal borrowing’, or ‘transplantation’, due to the prestige and authority that certain laws assume towards other legal systems. His thesis is that legal change is independent from the mirroring of cultural beliefs specific to a local context, and that changes and borrowings occur in a way that is autonomous from the non legal, cultural domain from which they originate. It might seem that, in so doing, Watson defends a completely anti-sociological thesis of law, but this is not quite so. Indeed, he conceives of law as exhibiting both a general function of purposiveness, such as social integration and conflict resolution, and an element of content validity. While keeping these two properties as completely independent variables, he runs counter to totally social dependent theories of legal change. The dependence of law upon context is assumed by Watson in terms of its dependence upon a legal culture and not of a culture in general. The autonomy of legal change and transplantation is thus conceived of as an autonomy of the specific dynamic followed by law through the operational activity of lawyers and legislators taking part in the local legal culture. The borrowing activity, thus, is possible on the basis of the empirical appreciation by the legal culture, that is, at the level of legal concepts of the authority and prestige of an external norm, so that the activity of ‘transplantation’ becomes a process restricted to the co-operation between two autonomous legal spheres. Indeed, the legal sphere is not subordinated, according to Watson, to the cultural sphere in general. That legal spheres can reciprocally communicate and be contaminated is, for Watson, due to the specific conception he holds for the structure of law in analogy with a structuralist conception of language. Watson’s project is that of reconstructing an invariable structure of law starting from historical patterns of law-change from an original ‘mother’ language (Roman law). All or almost all systems of law do have historical traces of this past, and through their reconstruction within each law system it is possible to explain, in comparative ways, any type of legal development. Watson’s theory has been criticized by classical comparative lawyers, as for instance Zekoll (1996) who asserts that the thesis of ‘legal transplants’ as strictly limited to legal borrowing cannot explain reforms of domestic law through international treaties. In this case, indeed, modifications at the domestic level do occur on the basis of commonly agreed premises by all signatories. I have already canvassed upon this point which leads to a different source of

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normativity hanging on domestic and international legal codes that is a morally shareable point of view seen in terms of an open attitude towards recognition of otherness grounding common premises. Let’s turn, therefore, to the second explicatory model, the one conceiving of law as something inherently embedded into culture and context. According to this approach, and in particular according to the criticism of Abel (1982) to Watson’s theory, the central tenet is that the dis-functionalities and the divergences between law and society pointed out by Watson are not a sign of the independence of law from society, but that they express instead a multiplicity of functions that law has towards society, that is, the function of legitimation, expression and mystification. This means that it is precisely for this reason that the study of a legal system must be holistic, relating each single law to the entirety of the legal system, which in its turn must be connected then to the totality of society. Any possible difference between legal systems cannot be taken in isolation from the entire system itself, so that even small divergences between systems must be always taken as referred to a totality of divergence between the considered legal systems themselves. Since laws cannot be separated by the interpretative activities accompanying them and involving both intra-legal systemic and extra-legal societal interpretations, it becomes illusory to try to explain legal change simply by looking at the ‘black-letter rules’, as thought by Watson. This means that one cannot proceed without any consideration of the interpretive presuppositions underlying the understanding of a legal code, thus making of the meaning of such a code something inherently interwoven within the local cultural Weltanschauung. If law is understood as a tool for the self-understanding of society in its totality, then, not much space is left for legal transplants, since the transferring of even a small element of law from one system to another not only implies a differently incommensurable perspective upon the world springing from the target domain, but it is also a sign of an unjustified hegemony of one legal culture over another. This argument is based upon purely relativistic assumptions which I will criticise hereafter at least in their cultural-normative version. Indeed, if one were to promote a fully relativist thesis, for the sake of coherence, a precise view of the notion of truth as something strictly dependent upon cultural determination would also have to be endorsed, leading us into what can be defined as a truth-paradox: (I) ‘Truth is culture-bound’ is true Either ‘I’ is itself culture-bound or it is not. (a) If ‘I’ is culture-bound, that is if it is true, there will be some cultural settings in which it is false, or in which it cannot be formulated at all. (b) If ‘I’ is not culture-bound, that is if it is false, then it will be true in all cultures. Therefore, if ‘I’ is true it is false, and if it is false it is true. (Harré and Krausz, 1996: 28)

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Yet, even if truth-claims not falling into such paradox must be capable of showing a form of universal necessity beyond their specific context of origination, this does not imply that they have necessarily to be context-free or spring from the so-called ‘view from nowhere’. On the contrary, my suggestion is that, within a paradigm of judgment, it is still possible to propose a constrained-constructivist notion of validity as springing precisely from a context and also as capable of trespassing it. As far as the third paradigm is concerned, then, a mediation between the absolute autonomy of law and its holistic socially embedded counterpart is defended by the work of Teubner (1998) with particular reference to a non-holistic relationship between law and society, a process of ‘selective connectivity’ with social sub-systems. Teubner claims that the subsystem of law is specifically linked with the subsystem of politics and that specifically in post-modern societies and globalisation we assist a pluralisation of subsystem connectivities linking law to a plurality of different social subsystems and discourses. This is what Teubner (1992) defines as the Janus-face of binding agreements, that is while having at the same time a legal and a social aspect, and thus a reciprocal exchange of inputs and structural compatibility, each element maintains relative autonomy. Within this picture every small change in one domain can ‘perturb’ and provoke ‘irritations’ in all the others. In the case of legal transplants, the introduced innovation ‘irritates’ the connected social discourses, provoking a readjustment and a reformulation of the newly introduced rule and consequently, on the side of the legal domain, of the way of incorporating the rule itself. Thus, according to Teubner, while a legal transplant cannot occur in the way Watson has explained, it can nevertheless be conceived of as something possible once multiple ‘irritants’ pertaining to the social-sub-field are also taken into account. The result is that the rule to be transplanted is substantially reformulated by the target subsystems, and with it, its specific functioning assumes a completely different form and modality. According to this position, while law maintains an autonomous functioning and logic, it remains connected also to a multitude of social-subsystems which ‘irritates’ whenever legal transplants and innovations take place in any system of law. I believe Teubner is right in pointing out such dynamics and interrelations between law and the other social sub-systems. In what follows I will explain why the descriptive reconstruction of Teubner intermediary model is adequate also from the moral normative point of view of the notion of pluralistic universalism, here defended in terms of a human rights theory. Human rights, indeed, intuitively seem to contain both subjective and universalist elements, that is, a pretence of universal validity as attached to a first-person perspective. Once such a double characterisation is taken seriously, it leads to a sort of conceptual entrapment assuming the form of a neither/nor constraint. One can neither defend a basic right without thinking,

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first, that it requires a subjective endorsement and entitlement – this is my right! – nor by thinking that its validity can be limited in scope – I’m entitled to the right to free speech, but you are not! The combination of subjectivism and universalism seems therefore to constitute the most relevant characterisation for an intuitive understanding of human rights. But in order to prove the validity and the possibility of reciprocal approximation of the two above-mentioned properties, a reference to a precise justificatory model is to be made, in terms of all those necessary conditions at the basis of principle-constrained human rights reflective judgments as the two-step theory developed above has aimed at defending. Once such a normative theory of human rights has been provided, how can one respond to the possibility of human rights transplants? I believe that, first of all, a justified possibility of human rights transplants can take primarily the form of a top-down direction. That is, by assuming the normative constraints as reformulated within a model of communicative action, one must cultivate the reasonable hope that fundamental rights will constitute the moral premises of those judgmental activities characterising the constitutional constructions of societies. From within such a common framework, then, further internal and reciprocal pluralisations and differentiations will be reflected in the national and regional constitutional debates and legislations in terms of comparative legal partial commensurability. This point implies that the reception of international treaties into local contexts is to be taken as sensitive to the local culture itself, so that a clear distinction between different ‘conceptions’ of human rights realised through the activity of reflective judgment will support the same sorts of ‘concepts’ of human rights, that is, would reinterpret a common formal system of human rights into exemplarily valid mutually distinct local constitutional norms. Once such differences remain within the boundaries set by morally and internationally agreed human rights principles, constitutional differences will become perfectly acceptable, since they will accommodate universal principles to the socio-cultural exemplar validity of local contexts. Thus, according to the presently defended view, human rights transplantability can become a justified thesis only when it follows essentially two mutually dependent constraints: (1) A top-down process of legal/cultural interpretation of universally justified formal human rights categories which prevent a horizontal projection of idiosyncratic interpretations from one country to another. (2) The activation of ‘legal irritants’, that is according to Teubner, the activation of several social-subsystems which react and reinterpret international norms according to contextual patterns of interpretation and incorporation of the rule.

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This means that a mechanical transferring of one legal element from one country to another, as that described by Watson, is not only very unlikely to happen when human rights are at stake but, more importantly, is also normatively unjustified. Further, mechanical transferring seems also descriptively wrong, since one might want to allow for a de facto existence of an international system of human rights protections, characterised by a large number of states signatories, even if this, according to my interpretation, cannot suffice to assign it self-legitimation. If the current framework of international protection of human rights reflects such lack of empirical legitimation, it follows that priority must be given to the fostering of international and regional councils and convention through the construction of culturally pluralist frameworks of deliberation from which deliberative human rights legal provisions would be agreed upon on the basis of a precommitted judgmental activity presupposing, as normative constraints, the universal conditions of equal freedom and basic well-being. From such outcomes, then, one might proceed to the local legal specification of formal universal principles into legal framings, which would then be open to a bi-univocal horizontal legal comparative discussion and possible revision by different, and yet partially commensurable, sub-systems of human rights codifications. This understanding of human rights transplantability can be successful only upon the condition that certain prerequisites of public reasonability and institutional structuring are met by all those who are in charge for the drafting of a regional or international system of human rights provisions. Though, the more challenging and difficult question to answer is that concerning those more frequent cases in which institutional arrangements of democratic legitimacy are not fulfilled in the international sphere. How should western democracies behave in such cases? Is it possible to hope for an international order showing stability even if non-democratic states are included? As is evident from contemporary developments in international politics, it seems that the strategy pursued has been that of basing international stability upon the wide spread imposition of a liberal ethos originating from a specific cultural and political context. Indeed, some western scholars have considered that international peace can be achieved only once all institutional frames of national governments take a democratic twist and start promoting a form of liberal attitude. For this reason, human rights transplantability has been used beyond the search of a socio-political consensus of the countries involved and a specific political strategy for the achievement of international stability has been developed in order to address the issue of international political peace. This strategy is based upon what is known as the ‘democratic peace theory’. To this position I reply that while, on the one hand, democratic arrangements are desirable as well as ideal solutions for the legitimacy of self-determining

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political bodies, on the other, the view that there is strong empirical evidence in support of the democratic peace theory is not valid. If this is the case then it could be suggested, instead, that a more promising solution comes from what is a process of progressive legalisation of international relations including both democracies and non democracies, and oriented toward the flourishing of a plurality of perspectives organised within international and functionally differentiated systems of checks and balances of powers.

NOTES 1.

2. 3.

4.

5.

6.

7.

At such regard, for instance, Feinberg claims that: ‘[. . .] Freedom of expression times freedom of movement yields nothing comparable. If these areas of freedom are called ‘dimensions’, they must also be labelled ‘incommensurable’. Still, limited comparisons even of incommensurabilities are possible. If the average American has greater freedom in every dimension than his Ruritarian counterpart, it makes sense to say that he has greater freedom on balance’ (Feinberg 1973: 19). Within this picture, Waldron’s ‘right to do wrong’ (Waldron 1993: 63 ff.) then refers to a different level of understanding, a level pertaining rather at the standard of moral criticism than that of rights-analysis. The notion of experience, in this sense, is much more similar to the mediated and the structured understanding of experience advanced by Hegel than to the immediate certainty of the objects advanced by Hume. On some further characteristics the Hegelian notion of experience see Adorno (1994). On this point I follow Honneth’s insights on the concept of recognition as grounding the legitimation of a legal order: ‘If a legal order can be considered to be valid and, moreover, can count on the willingness of individuals to follow laws only to the extent to which it can appeal, in principle, to the free approval of all the individuals it includes, then one must be able to suppose that these legal subjects have at least the capacity to make reasonable, autonomous decisions regarding moral questions. In the absence of such an ascription, it would be utterly inconceivable how subjects could ever have come to agree on a legal order. In this sense, because its legitimacy is dependent on a rational agreement between individuals with equal rights, every community based on modern law is founded on the assumption of the moral accountability of all its members.’ (Honneth 1995: 114). In explaining how the dialectical unification of the opposition works in Hegel’s theory of recognition, Siep (1979: 137 ff.) notices that the relation between self-consciousness transcends them, since each is dependent not only from its relation to the other, but also to the self-understanding of the other, so that any change in oneself is also a change in the relation to the other. A situated and yet exemplarily valid allocation of resources for the fulfilment of basic wellbeing sets a contextual non-objective requirement while rejecting arbitrariness. For instance, within a purely objectivist position, Griffin (1988: 44) has opposed moral non conventional objectivity to social conventional indeterminacy in the definition of a standard of well-being, as when he writes: ‘For instance, we can banish the indeterminateness by defining a standard on people’s natural expectations in that society; expectations adjust to possibilities, and a standard of minimum acceptable level of life, admittedly very rough, will naturally emerge. Although that is true, it is not clear why we should merely detach well-being from objective features of human nature and connect it instead to accidental social changes that have no obvious moral significance.’ I believe that this understanding of the connection between purposive agency and experience can help to clarify and distinguish my position from that of those, like Honneth, who, starting from similar premises, have then insisted upon the normative stand of social suffering and the experiential ground of social injustice, as in Fraser and Honneth (2003: 129–130).

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54 8. 9.

The notion of quasi-transcendentality is here deployed to indicate the entire dialectical process from immediate to negatively mediated recognition. As far as the function played by the notion of recognition, it can be said that: ‘In contrast to Rawls, the idea of the good on which a recognition-theoretical conception of justice is based is tailored from the start to the intersubjective character of human relations. For it assumes that the subjects for whose sake just social relations are to be established are aware that their autonomy depends on the autonomy of their partners in interaction.’ (Fraser and Honneth, 2003: 259).

REFERENCES Abel, R. (1982), ‘Law as lag: inertia as a social theory of law’, Michigan Law Review, 80, 785–809. Adorno, Theodor W. (1994), Hegel. Three Studies, trans. S. Weber Nicholsen, Cambridge, Massachusetts: the MIT. Allison, Henry E. (2001), Kant’s Theory of Taste. A Reading of the Critique of Aesthetic Judgement, Cambridge: Cambridge University Press. Dworkin, Ronald M. (1977), Taking Rights Seriously, Cambridge, Massachusetts: Harvard University Press. Feinberg, Joel (1973), Social Philosophy, Englewood Cliffs, NJ: Prentice-Hall. Fraser, Nancy and Axel Honneth (2003), Redistribution or Recognition? A PoliticalPhilosophical Exchange, London–New York: Verso. Griffin, James (1988), Well-being. Its meaning, measurement, and moral importance, Oxford: Clarendon Press. Habermas, Jürgen (1981), ‘Social Action, Purposive Activity, and Communication’, in Cooke M. (ed.) (2003), On the Pragmatics of Communication, Cambridge: Polity Press, 105–182. Habermas, Jürgen (1993), ‘On the Pragmatic, the Ethical, and the Moral Employments of Practical Reason’, in J. Habermas, Justification and Application, Cambridge: Polity Press, 1–17. Harré, Rom and Michael Krausz (1996), Varieties of Relativism, Oxford: Blackwell. Honneth, Axel (1995), The Struggle for Recognition. The Moral Grammar of Social Conflict, Cambridge: Polity Press. Kahn-Freund, O. (1974), ‘On uses and misuses of comparative law’, Modern Law Review, 37, 1–27. Kant, Immanuel [1790] (1953), The Critique of Judgement, trans. J. C. Meredith, Oxford: Oxford University Press. Mac Callum, G. C. (1967), ‘Negative and Positive Freedom’, Philosophical Review, LXXVI, 312–334. Oakeshott, Michael (1978), Experience and its Modes, Cambridge: Cambridge University Press. Siep, Ludwig (1979), Anerkennung alz Prinzip der praktische Philosophie: Untersuchungen zu Hegels Jenaer Philosophie des Geistes, Freiburg: Verlag. Teubner, G. (1992), ‘The two faces of Janus: rethinking legal pluralism’, Cardozo Law Review, 13 (1), 1443–1462. Teubner, G. (1998), ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’, Modern Law Review, 61, 11–32. Waldron, Jeremy (1993), Liberal Rights. Collected Papers 1981–1991, Cambridge: Cambridge University Press.

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Watson, Alan (1993), Legal transplants: an approach to comparative law, Athens, GA: University of Georgia Press. Zekoll, J. (1996), ‘Kant and Comparative Law: reflections on a reform effort’, Tulane Law Review, 70, 2747–2771.

5. ‘Cut-and-paste’? Rule of law promotion and legal transplants in war to peace transitions Richard Zajac Sannerholm I. PLACING THE TRANSPLANT DEBATE IN THE CONTEXT OF WAR TO PEACE TRANSITIONS This chapter looks at the process of international rule of law assistance in war to peace transitions from the perspective of legal transplants. Those familiar with the short but dynamic history of international promotion of legal reforms in developing countries (starting with the law and development movement in the 1960s) also know of the intense debate on legal transplants.1 Stripped to its essentials the debate has centred on the following question: is it possible to transfer laws and legal institutions from one legal culture to another? Academics and practitioners who answer this question in the affirmative point to the way law travels. The spread of Roman law throughout Europe, or international or transnational commercial law of today, testifies to the possibility of legal transplants (Markovits, 2004: 95). Opponents in the other corner of the ring are often inclined to agree to the fact that law (or legal rules) travel, but then they ask what the effects of substantial legal borrowing is, ‘how does the transplanted law work and function?’ The litmus test is if law, once it has been transplanted, takes the same function, role, and appearance as in the country of origin (Gillespie, 2006: 18). There is a need to revive the discussion on legal transplants within the context of war to peace transitions. The reason for this is simply that the process of legal borrowing, transfer and transplant is reaching monumental proportions within international assistance to war-torn societies (see e.g. United Nations Report of the Secretary-General [UNSG] 2004a). In these situations, transitional and interim governments face a paradoxical equation. While hard-pressed to break with the past and establish a new normative framework for governance, the weak capacity of interim governments makes the transition impossible. As deus ex machina the international community comes to assist in the legal transformation and statebuilding under the banner of ‘rule of law promotion’. 56

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One of the most favoured methods in rule of law reform is to transplant and borrow law, and to influence the legal system in a certain direction. The Afghan constitution, which came into force in 2004, was by and large brokered and drafted with the assistance of international experts. The new regulatory regime for public procurement in Iraq saw substantial involvement from the US administration, and the UN assisted in drafting the rape legislation in Liberia, which came into force in 2006 (UN Human Rights Council, 2007, paras 16–17). Despite the prevalence of this form of international law-making, the methods, processes and the effects it might have are rarely discussed in relation to war to peace transitions. While the pros and cons of legal transplants have generated a rather heated debate when it is undertaken in developing and transition economies, the same approach in war to peace transitions has received very little scrutiny. Two assumptions that seem to have taken hold of the donor community might explain the lack of discussion and analysis. The first assumption is that the legal ‘chaos’ in war to peace transitions is so great that any type of law reform is better than none. Second, considering the level of violence and the number of crimes that many of these societies experience during a conflict, ‘good’ law has to be imported in order to remedy past grievances and safeguard against future abuses. At the same time, donors are careful not to be perceived as imposing law from on high, or to dictate the terms for legal transformation. Policy documents and strategic guidelines often emphasise the need for national ownership and to tailor fit reforms to political, economic, social and cultural factors. The problem is, however, that guiding principles like ownership are notoriously difficult to live up to in crisis situations.

II. DESCRIBING RULE OF LAW REFORM AND LEGAL TRANSPLANTS There is a multitude of different ways to spread norms in the global arena. A bulk of the studies on norm diffusion has focused on the spreading of norms in relation to transnational networks, international organisations, and nongovernmental organisations. To date, little attention has focused on norm diffusion in war to peace environments through multilateral efforts of statebuilding (Björkdahl, 2006: 215). Legal transplantation is typically understood as the moving of laws and legal institutions across geopolitical or cultural borders. Other terms for describing this process exist, for example ‘legal irritants’ (Teubner, 1998); ‘transposition’ (Örücü, 2002) and the broader ‘convergence of values’ (Sieta, 1997). The different terms all attempt to describe a similar order of things,

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namely the circulation of legal models, although the term transplant connotes a more direct and conscious form of circulation as opposed to irritants, convergence or transpositions. To cope with the problems of development, countries sometimes ‘adapt, beg, borrow and steal’ (Friedman, 2001: 93) from places where a similar type of problem has been successfully addressed through regulatory measures. The discussion on legal transplants often strands on the dichotomy of autonomous v. socially embedded perspectives on law (Gillespie, 2006: 13). Proponents of legal transplants claim that the autonomy of law makes it practically easy to ‘export’. Opponents reject this notion and point to the fact that law mirrors society and that therefore any type of transfer that does not conform to social norms and values is likely to be unwanted and thus fail to be transplanted. This notion has led some scholars to formulate an opinion called ‘the law of non-transferability of law’ (Kahn-Freund, 1974). The proponents of an unrestrained or unproblematic transplantation of law present a sound descriptive theory of legal change and the methods used for improving deficits in a legal framework. It is aimed at describing the actual process of transfer and does not explain the effects that a law will have. The empirical reality is without a doubt more complex than what the descriptive account of legal transplants gives at hand. Moreover, the proponents of legal transplants tend to emphasise the law making elite and the role of legal education by taking a narrow definition of legal culture. This view is ill suited to the process of globalisation of law. Law is no longer confined to and reproduced within the parameters of the state, but is also a product of local, national and transnational networks, social organisations, and advocacy groups and grassroots movements around the world (see e.g. Sikkink, 2005: 42 f.). The issue of norm-creation and norm-change is not an exclusive task bestowed upon the state, but also a process that is influenced by resistance or participation of non-state actors. In its heydays in the 1960s, the law and development movement relied heavily on the transfer of laws and legal institutions. This is illustrated by the typology of six different models of transfer identified by Gardner (1980: 14), ranging from the direct transfer, the invited transfer, to the imposed or uninvited transfer. The focus of law and development scholars was not just on further development by providing legal models of rules and institutions that were seen as crucial for economic growth but also, or perhaps more so, to help developing countries transform their ‘traditional’ and ‘backward’ societies into modern nations. The reliance on transfer of laws and legal institutions and the failure of transplanted law to ‘take root’ and have a substantial impact were two of the chief reasons for the demise of the law and development movement (see Tamanaha, 1995, and Trubek and Santos, 2006). The transfer model for legal assistance was criticised for being ethnocentric, for failing to understand the

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plurality of legal cultures in many developing countries, and for being based on an assumed superiority of American legal culture (where most of the laws and institutions were drawn from). After a sustained criticism, law on the development agenda kept a low profile throughout the following decades but resurfaced with a vengeance in the late 1980s. In the trails of a fast expanding economic globalisation and the end of the Cold War, Central and Eastern European countries found themselves in the firing-range of trigger-happy donor organisations, eager to assist in the transformation from plan to market economy and from one-party state to liberal democracy. Rule of law became a central feature of the reform adventure despite the fact that few scholars and practitioners within the legal reform business could explain what was meant by the concept. The need was great and the supply even greater: market economy institutions including contract and bankruptcy codes, property rights regimes and Alternative Dispute Resolutions (ADR) were infused at a staggering speed (World Bank, 1996: 85). These models of rules were effortlessly crafted or copied on the basis of institutions in the West, sometimes determined by the sheer influence by one international expert (a German legal expert who happened to advocate for German bankruptcy code); historical ties between countries; or by the possibility of seemingly endless funding and financial support from a certain organisation or country. These transfers were then complemented with training initiatives. Judges, lawyers and other legal professionals were trained in the new legal frameworks en masse throughout Central and Eastern Europe (Carothers, 2006: 7). As with its predecessor, the rule of law movement suffered setbacks and critique. Once again the issue of legal transplants was raised as a flawed theory for describing the role and function of law in society, and as an unsound approach to the promotion of legal change (Channell, 2006: 141). One example of the critique is the report of the US General Accounting Office (GAO) where a decade of US rule of law assistance to former Soviet Union states is evaluated. The report concluded that rule of law assistance has had limited impact. While US agencies introduced innovating legal concepts, the sustainability is unclear due to a lack of political consensus and weak domestic reform capacities. The assistance focused on short-term achievement of goals such as drafting new laws while failing to support long-term capacity to manage, monitor and evaluate drafted laws (US GAO 2001: 12). As a reaction to the criticism, donor organisations began to proclaim lessons learned in policy documents and operational guidelines (Nader, 2007). While this did not stop the use of legal transplants, and there are perhaps wellgrounded reasons for why it should not stop completely, things took a new twist towards the end of the 1990s when rule of law assistance became a standard component of UN peacekeeping missions.

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THE TRANSPLANT RATIONALE

Studying legal transplants raises three basic questions: ‘what’, ‘how’ and ‘why’. As described above legal transplant is here taken as a process in which a law, or a particular legal institution, is taken from one environment in order to be recreated or redrafted in another. So far it is all very uncontroversial and national legislators have used other legal systems as sources and models for a long time. The ‘how’ is next. The process of transplanting differs depending on at least two fundamental factors, time and capacity. Most often the transplanted laws or institutions are used as a model or blueprint for the domestic reform process. The original law or institution is then analysed, discussed and scrutinised in light of its compatibility with the domestic legal framework. This type of legal transplant process is supported by sufficient time and capacity to fully ensure compatibility. In other cases, where a speedy reform effort is of need, as in Central and Eastern Europe in the early 1990s or most war to peace transitions today, the original law is taken as a whole and simply transferred, sometimes only edited by translation to the local vernacular. Where capacity is lacking and time constrained by pressures to show tangible signs of change, there are few incentives in the transplant process to undertake resource demanding and capacity requiring studies and analyses. Between the crudest and simplest form of legal transplant, going to the copying machine, and the more complex process of providing support, influence and technical expertise on the drafting level, we find a number of other methods and approaches where the level of involvement of local actors varies, where the initiative is primarily local, and where international experts play a role of facilitators rather than drafters by providing advice directly to relevant ministries in different co-location programmes. As to ‘why’ legal transplants are used, the typology developed by Miller (2003: 842) is useful. The typology is based on four different factors of motivation: cost-saving transplants; externally dictated transplants; entrepreneurial transplants; and legitimacy generating transplants. These four types of motivations are drawn from the societies receiving transplants. Another dimension is the motives of international donors. In certain wartorn societies, individual donors are given a great deal of discretion to push and lobby for reforms to take a certain direction (e.g. the US in Iraq or Germany in the Balkans) motivated by prestige and trade and investment opportunities (Ajani, 1995: 115). In war to peace transitions, where the domestic incentive is superseded by international imperatives, donor agencies choose transplants on much the same basis as in Miller’s typology. Frustrated by a lack of local capacity, and pressured to show tangible results, the international community has often found that it is easier to do it on its own than to

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wait for local authorities to act. This cost efficiency rationale is a particularly salient characteristic in rule of law reform where the international community has established a form of protectorate, as in Kosovo and East Timor. International donors also push and lobby for legitimacy creating transplants. The use of international norms and standards, for example, is perceived to hold a greater legitimacy than national legal models. Advocating for the ratification of international human rights treaties, or strengthening constitutional protection of fundamental rights and freedoms, is also seen as a way of both granting legitimacy to an interim government in a war to peace transition and to the international actor involved in rule of law reform. As a theory to explain the role of lawmaking and legal transplants in developing countries Berkowitz, Pistor and Richard (2003) focused on how norms are created and how transplants are received. Critical to the use of transplants they draw attention to the fact that process matters for the way a law will be received and function. Reception is dependent on a process of lawmaking where external norms are fused with the social context. Berkowitz et al (2003: 189) measure the legality, or the effectiveness of legal institutions, in a number of countries and reach the conclusion that ‘the process of lawmaking rather than the contents of legal rules determine the effectiveness of legal institutions.’ The role played by outside or foreign actors conditions the viability of legal transfers and reforms. Where law was imposed from the outside and the legal evolution was more external than internal, the effectiveness was often weaker. Conversely, ‘where law develops internally through a process of trial and error, innovation and correction, and with the participation and involvement of users of the law, legal professionals and other interested parties, legal institutions tend to be highly effective’ (Berkowitz et al., 2003: 189). This argument resonates with a growing understanding within the donor community that any type of reform should aspire towards local ownership and participation. The real problems within intellectual globalisation are where different conceptions clash, e.g. between an assistance provider and recipient state (Mattei, 1997: 6). Instead of a process of a transfer of knowledge these cases display a form of ‘legal imperialism’ where a pattern of communication is replaced with a one-sided exportation. In a successive series of stages, the importance of rule of law reform has crept into the area of peace-building and conflict management, culminating with the United Nations transitional governance in Kosovo and East Timor. These protectorate situations propelled the need for wholesale importation of legal codes, international experts, and redrafting of legal frameworks. The centrality of the rule of law to conflict management was later reinforced by the international presence in Afghanistan and the establishment of UN missions in Sierra Leone, Liberia, Burundi, and the Ivory Coast.

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The difference between the processes of legal transplants in war to peace transitions to the processes of legal transplants in developing countries is twofold. First and foremost, the source for transplants does not rely as much on individual countries that happen to have an interest in the region, i.e., through trade relations or historical ties (although this is still prevalent). It now draws more on international legal regimes, standards and benchmarks or ‘model laws’.2 This is most clearly seen in the statement by the UN Secretary-General (UNSG 2004b: 5) who lists the normative sources for UN engagement in rule of law reform as consisting of international criminal law, international refugee law, international human rights law and international humanitarian law, besides UN standards relating to the judiciary, lawyers and prosecutors. International law has a growing impact on areas previously regulated exclusively by domestic governments (Miller, 2003: 841). While the process of legal transplants in the past typically involved commercial law, rule of law reform in war to peace transitions today focuses on criminal justice, fundamental rights and freedoms and constitutional law (see i.e. DeLisle, 1999). Naturally, the transplanting of commercial law models still thrives: Kosovo, Iraq and Afghanistan have all received substantial external support in this area but it is secondary to judicial and criminal law reform (see Kassinger and Williams, 2005). Second, international involvement in war to peace transitions is based on a different type of legal mandate than in development co-operation. While legal technical assistance in development co-operation is based on a loan, credit or grant, regulated by bilateral or multilateral agreements whereby the consent of the ‘host’ state is crucial, war-torn societies find themselves in a position where their consent can be ‘overruled’ by the UN Security Council. Rule of law reform in these cases comes with an enforcement mandate. This challenges the notions of participation, influence, and local ownership.

IV. THE DIFFERENT FORMS OF LEGAL TRANSPLANTS IN WAR TO PEACE TRANSITIONS There are different forms of legal transplant and reception in war to peace transitions. It depends ultimately on the authority of the international presence, the mandate, the availability of resources, and the capacity of recipient authorities. In Kosovo and East Timor where the UN had executive authority, the involvement and responsibility over the legal reform process were inevitably broader than in the various ‘assistance’ missions in parts of Africa and in Afghanistan. In the latter cases, international actors are, on the surface of things, more constrained to a role of giving advice and to promote certain goals and objectives. This does not mean, however, that the local input and ownership of the

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legal reform process is greater. International actors use what leverage they have such as loan and grant conditionality, freezing of assets and other stickand-carrot approaches in order to steer legal transition in a certain direction. 1.

Restatements of Law as ‘Internal’ Legal Transplants

War-torn societies share some general characteristics of how legal transplants take place. One could be described as a form of ‘internal legal transplant’. What this means is simply that in times of transition, previously applicable laws that have been put out of play for a period of time are brought back into use. This was the method employed by the UN in Somalia, Kosovo, and East Timor. In Afghanistan according to the Bonn agreement the constitution of 1964 was determined to apply, with the exception of the provisions on the monarchy, the executive and the legislative body, and as long as it did not contradict the agreement (Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions 2001). Restatements of applicable law often come with a mutatis mutandis clause to emphasise their transitional and interim character, or with provisions similar to repugnancy clauses. These clauses are inserted in order to ensure that the applicable law is to be enforced insofar as it does not contradict or violate a new or higher set of norms, most often a reference to international human rights law. Using internal transplant is driven by both cost-efficiency and legitimacy motives. It is undeniably less expensive to re-use or revive a previously suspended legal framework than to initiate a process of creating new structures, at least in a short-term perspective. It is also considered easier to gain legitimacy by using something already in place (UNSG 2004b: 7). The practical implications for this approach are uncertain. It has proven problematic to ensure legal certainty with internal transplants, and the Ombudsperson Institution (2004:8) has described the situation in Kosovo as legally chaotic. A chief reason for the difficulties with legal certainty is the general vetting criteria. In Kosovo and East Timor, the law was to be applied as long as it did not contradict the constitutive Security Council resolution, the regulations enacted by the UN governing body, or international human rights (United Nations Mission in Kosovo [UNMIK] 1999/1 and United Nations Transitional Administration in East Timor [UNTAET] 1991/1). While this in theory established a continuing system of vetting in the application of the law it provided few practical guidelines on how to actually apply the law in contentious issues, or in situations where the law was silent in a particular case. Moreover, the international human rights regime that was used as a yardstick in Kosovo was not initially defined. Instead, the regulation on applicable

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law simply stated that all public officials should observe internationally recognised human rights standards. This was amended in a later regulation which provided a list of international treaties, including the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the two covenants on Civil and Political Rights and Social, Economic and Cultural Rights (UNMIK, 1999/24). But, the problem of internal transplants also raises structural issues regarding what bodies that have the competence and authority to interpret violations of the applicable law and its repugnancy clauses. In Afghanistan the question of competence and authority to interpret and determine whether or not the Constitution was compatible with the Bonn Agreement was not made clear from the start. The Bonn Agreement unfortunately also failed to consider that the previous law consisted of several legal regimes drafted at different times and that there were considerable overlaps and contradictions. Afghanistan has a variety of applicable legal codes, presidential orders and decrees. The Afghan legal framework ‘presents itself in layers and layers, each layer representing particular periods of governance . . . laws were enacted under the Constitutions or Interim Constitutions of Afghanistan of 1964, 1977, 1980, 1987, 1990 and 1992’ (Lau, 2006: 9). The heritage of a multilayered and chaotic legal framework was also a problem in Iraq, ‘. . . Hussein has ruled by fiat. Since 1991, the Revolutionary Command Council, which he chairs, has issued some 1,500 resolutions annually, ranging from amendments to the constitution to security decrees to changes in the laws concerning trade and taxes. This has created a legal jumble . . .’ (Perito, 2005: 6–7). This legal jumble is illustrative of the challenges facing rule of law promotion and the use of legal transplants, particularly in situations where decrees and similar executive tools have been employed in an uncontrolled fashion. In Kosovo the revised regulation on applicable law also managed to create confusion concerning the applicability. While reversing the decision of applicable law from the law in force on 10 March 1999 to the law in force on 22 March 1989, and while also detailing a host of international human rights standards to be observed, the UN had a built-in problem of interpretation. The UNMIK regulation reads that if a court determines that a subject matter is not covered by the laws in force on 22 March 1989, but instead is covered by another law in force in Kosovo after this date, it can be applied as long as it is not discriminatory and complies with international human rights obligations (UNMIK, 1999: 24). Following this regulation national authorities face a complicated task of applying three different legal regimes. The use of a general vetting criterion is also sometimes employed in relation to specific legal regimes. One example is the new Law on Administrative Procedure (LAP) in Kosovo, which covers more or less the same areas as the older Law on Administrative Disputes (LAD). Instead of LAP replacing LAD

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in full, Article 142 of LAP states that it shall ‘supersede all the provisions of the applicable law with which it is in contradiction’. Since both institutes cover similar areas national authorities will have to go through both. Considering the weak capacity of agencies at the local governance level this only reinforces a pattern of legal uncertainty. 2.

Borrowings from International Legal Regimes

Besides the internal legal transplant approach, one commonly favoured method is to push, lobby and support the ratification of international law. Law reform has been one of the top priorities for justice system reconstruction in post-war states (Strohmeyer, 2001: 58). The push towards incorporation of international law means providing technical assistance and legal advisory services to governments in ratifying or acceding to international conventions, and assisting legislatures in drafting new legislation. The bulk of support in this area has focused on the substance of law reform and not the process itself (Stromseth et al, 2006: 199). Subsidiary legislation needed in order to implement new laws is often not a priority. The same goes for ensuring the consistency of the hierarchy of norms, making sure that new laws do not contradict other laws, or to adequately disseminate the result and provide an appropriate time of vacatio legis. Predominately the reform efforts in war to peace transitions relate to criminal law reform, criminal procedure law reform, the legal framework for the judiciary, and constitution making. Laws concerning citizenship and elections are also frequently adopted in the initial stages of war to peace transitions. International human rights standards and instruments play a pivotal role from two perspectives. First, human rights treaties are often used as a model for a review and overall assessment of the legal framework and, second, the United Nations often pushes hard for the signing and accession to international human rights treaties. Liberia is a good example. With the support of the United Nations Mission to Liberia, the transitional government signed and ratified in 2004 over fourteen different conventions and treaties. The following year the Chairman of Liberia’s National Transitional Parliament signed 83 treaties (UN Treaty Event, 2005). Another example of the infusion and influence of international law is the new Criminal Code in Kosovo, promulgated in 2003. The code includes chapters on crimes under international law, that is, war crimes and crimes against humanity as defined in the Rome Statute of the International Criminal Court. International human rights law, in addition to United Nations norms and standards are perceived to be ‘a solid basis for guidance’ and offering both ‘orientation and inspiration, as well as an appropriate framework for establishing and re-establishing and strengthening criminal justice systems’ (United Nations, 2005, para. 43).

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An interesting recent development is the elaboration of ‘model codes’ in criminal justice by the United States Institute for Peace and the Irish Centre for Human Rights. In what started out as a response to the calls for an enhanced preparedness to situations where the UN assumed responsibility over the administration of justice, the model codes project has evolved and has the potential to inform law reform beyond its original interim use (see O’Connor, 2006). The model codes consist of a substantive Criminal Code, a Criminal Procedure Code, a Detention Act and a Police Powers Act. The Model Codes are crafted with war to peace transitions in mind, and contain articles of ‘typical’ crimes, as well as issues relating to detention and police work. The Model Codes are based on a form of ‘condensation’ of international human rights and criminal justice standards, and the process of drafting the codes consisted of extensive consultation with stakeholders from different countries and legal traditions. 3.

Technical Assistance and ‘How-to-Manuals’

International experts also advise on or take a part in law reform efforts through various co-location programmes. In some situations this takes a more direct route. The Coalition Provisional Authority in Iraq issued during one year 100 orders, which included amendments or additions to Iraqi laws (Kassinger and Williams, 2005: 220). In other situations the impact is less direct yet all the same substantial. In the DRC, the UN mission was charged with assisting in the re-establishment of a state based on the rule of law, which led to the establishment of a JointCommission with the Transitional Government on essential legislation, including post-transitional constitutional drafting (UNSG, 2005: 9). Similarly in Liberia, the UN assisted the Ministry of Justice in reviewing and redrafting of laws relating to human trafficking, juries and the financial autonomy of the judiciary (UNSG, 2004a: 17). There has also been a growth in legislative manuals and checklists for law reform. Some of these are directed towards national authorities while others aim at being a support for international reformers. The guides and ‘how-tomanuals’ also range from the specific to the generic. The Organisation for Security and Cooperation in Europe (2007) developed a ‘Guide on Municipal Statutes’ while the Support for Improvement in Governance and Management in Central and Eastern European Countries ([SIGMA] 1996, 1997) have elaborated ‘checklists’ on civil service legislation. There are also a vast number of more generic manuals, for example USAID’s (2000) handbook on legislative strengthening. One of the more ambitious manuals in the area of law reform is the ‘Post-Conflict Constitution Drafter’s Handbook’ (2007) by the Public International Law and Policy Group, which includes examples of constitutional articles, starting with various ways of how to write a preamble.

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V. SPECIFIC CHALLENGES TO LEGAL TRANSPLANTS IN WAR TO PEACE TRANSITIONS War-torn societies pose specific challenges to rule of law reform and legal transplants. One reason is because they represent a sui generis situation. War to peace transitions are extraordinary processes in which the normal, or nontransitional, rules do not apply. Teitel (2006: 6), among others, has argued that, ‘transitions imply paradigm shifts in the conception of justice’. International assistance in war to peace transitions rests upon legal means, and legal responses create a sui generis paradigm where law becomes both the preservation of order while also the decisive tool used in order to break with the past. In this environment, legal change is constrained and under immense pressure to fulfil a plurality of objectives. Another way of describing war to peace transitions is in terms of capacity. Countries like Afghanistan, Liberia and Somalia are characterised by an extremely low level of capacity and resources, which makes any reform initiative difficult. This means that many of the theories on law reform and transplants are seriously challenged by the sheer mass of constraints that post-conflict societies display. The existing law is often unclear or disputed and lacking in legitimacy. Existing law can also be a mixture of Common law, Continental European law, traditional law and religious law and rests on a bifurcated system. Furthermore, the law may also flagrantly violate international human rights, both procedurally and substantively. There is a growing criticism against the use of legal transplants. In many respects the criticism is based on sound arguments. As concluded by the UN Secretary-General, ‘no rule of law reform, justice reconstruction, or transitional justice initiative imposed from the outside can hope to be successful or sustainable’ (UNSG, 2004b:7). The simple copy-and-paste approach that has marked past and current endeavours is not a sustainable strategy. Believing that the perfect law is somewhere ‘out there’ ready-made and good to go for any type of country is misleading. Laws, in most cases, must be ‘tailor-made’ and context specific. At the same time, the criticism tends to overemphasise the concepts of ownership and participation. Just as we should stay clear of the mantra that Western legal models hold universal application, we should be equally cautious towards the mantra that participation, local context and ownership mean everything; particularly, when these terms are used as broad catch-all terms with little conceptual clarity. It is unrealistic to claim that legal transplants should be avoided at all costs. Even when calculating with the difficulties of making legal transplants ‘stick’ the cost benefits are great. Besides, it is quite natural to look at ‘successful’ examples and we do this all the time in other areas: in business, sports, and

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popular culture (see Ohnesorge, 2008: 221). Thus, when invited to support the establishment of a more reliable and safer regulatory regime for creditors in a particular country, donor organisations should look for benchmarks and best practices in other countries where the same type of problem has been successfully addressed. Another option is to look at international norms, standards and ‘model legislation’. Criminal justice, for example, is one area where the UN has developed a vast array of standards and basic principles available to domestic legislators (United Nations, 1985). Another area is anticorruption legislation, in particularly regarding anticorruption commissions where the Hong Kong Commission has stood as a model for reform in a number of countries in terms of competences, structure and jurisdiction. Furthermore, we should not forget that transplanting does not always follow the developed-developing route of transfer. The Organization for Harmonization in Africa of Business Laws (OHADA) provides an evocative case in point (see Dickerson, 2005). The organisation includes sixteen African countries and has an objective to attract investment, particularly foreign investment, through the means of a standardised legal framework. OHADA consists of a minority of countries with a common law background and a majority with their base in the French legal system. This aspect alone provides interesting intersections between different legal cultures in the adoption of uniform laws. Uniform acts within OHADA cover business organisations from establishment to dissolution, arbitration, and execution of judgements. In war-torn societies in particular the need for benchmarks is heightened. The existing legal framework is often subject to controversy, which makes it difficult to reach consensual agreement on its applicability, and there is pressure to act swiftly so as not to lose the ‘window of opportunity’ provided by a peace settlement. The trend in development assistance, including rule of law promotion, nowadays emphasises the need for local context, stakeholder input and ownership. This is clearly illustrated by the UN approach in Afghanistan where the international presence was to leave a ‘light footprint’ (UNSG, 2002). Stromseth, Brooks and Wippman (2006: 195) argue along the lines of the light footprint approach. The authors claim that law cannot be imposed ‘on high’, and that law is ‘gelled’ culture that reflects cultural and social realities. Any reform of the legal framework must therefore concede to the fact that it has to reflect the shared values and priorities of society. This is not an easy task to accomplish in developed countries, not to mention situations like Somalia or Afghanistan. A first question is ‘whose culture’ and ‘what shared values’? Not only are war-torn societies typically fragmented socially, economically, and culturally; they also house legal plurality in the form of traditional, religious and other types of dispute resolution systems. Among the typical measures needed in post-conflict societies are a constitutional framework, new criminal laws, laws on citizenship, land rights and

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measures against corruption and ‘bad’ economic governance.3 At the same time, local capacity is weak which provides an impetus for international agencies to take a lead in the reform process. While intentions are good, local ownership is temporarily sacrificed. There is also a tendency in rule of law promotion to seek out and expect the highest of standards in war to peace transitions. This is in striking contrast to how legal change occurred in Western Europe and also in contrast to the absorptive capacity in these societies to actually own, influence and participate in the formulation of a domestic legal agenda. A notion of not seeking to reform too much is beginning to seep into the best practices of the community of development organisations, primarily those agencies preoccupied with governance and capacity building reform after conflict. The UK Department for International Development ([DfID] 2005: 20) talks of a ‘good enough governance’ approach. The World Bank (2003) and the Organisation for Economic Co-operation and Development ([OECD] 2005) have made similar claims. The main argument is that international assistance should focus on enhancing the capacity of the state and promote accountability while avoiding areas that are too complex and too resource demanding. Rule of law reform, however, seems remarkably resilient towards such claims. The imposition of a moral order, which characterises many rule of law programmes, makes for good policy documents but bad diplomacy on the ground. As eloquently argued by Nader (2007: 3), rule of law reform is based on a perception of ‘lack’ and ‘legal orientalism’. War-torn societies, it is assumed by donors, can trace their crisis to a lack of certain legal institutions, rules or even cultural traits. This also makes the rule of law enterprise more categorical in its approach and reinforces a ‘normative blindness’ on behalf of international actors: they are not able to grasp that what they observe is a social construct and not a given. There is little doubt or humility in this headon approach of rule of law promotion. Experiences from Somalia and Kosovo point to the fact that the legitimacy of a law is not always tied to its efficiency or compliance with international standards, but instead that the process of transplanting law carries significant weight for its reception. In both countries the UN attempted to address an apparent lacuna in criminal justice by stating that the previous law in force would apply. In Somalia, the northern communities saw the criminal codes that the UN proposed as tainted by the regime of Siad Barre and resisted the restatement.4 They proposed instead the criminal law that was in force until 1969. Similarly in Kosovo, the UN administrator declared in a regulation that the applicable law would be the law in force at the time of the establishment of the UN mission. This was met with opposition from the legal community in

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Kosovo who favoured the legal framework during the socialist period until Milosevic’s takeover in 1989. In both situations, in particular in Kosovo, the rejected law was more technically advanced and covered a broader array of criminal charges, for example in relation to narcotics (Hethy, 2002: 65 and Ombudsperson Institution in Kosovo 2004: 8). This was not a determining factor, however, when it came to gaining legitimacy for legal change.5 Instead the determining factors here were the perception of legitimacy of a law as untainted by the previous regime as well as how the process of legal change took place. 1.

From Hunches to Evidence-based Programmes

The call for adhering to the local context requires a law-making methodology that presupposes high levels of capacity and resources in order to make a proper analysis of the problems, an evaluation of the implementation of older laws, and an explanation on deficiencies in order to elaborate on alternatives. This is a luxury most post-conflict societies cannot afford. It is not an easy task even when the international community assumes a law-making capacity as it did in Kosovo and East Timor. Several reports from these missions tell of misguided legislative attempts. In Kosovo, despite three years of work on a new provisional criminal code and a provisional criminal code of procedure that entered into force in April 2004, the law still failed to include several crucial aspects that were included in the obsolete Yugoslav law (Ombudsperson Institution, 2004: 10). Any type of legal reform must be based on knowledge of the problems at hand, threats and possibilities, resources and constraints. While the tools for baseline studies and needs assessments have improved, they are still crude and overly reliant on quantifiable data. The World Bank’s ‘Worldwide Legal and Judicial Indicators’ and the ‘Legal and Judicial Sector Assessment Manual’ are attempts to address the knowledge deficit. Other examples are the American Bar Association’s ‘Judicial Reform Index’ and the Office of the High Commissioner’s ‘Post-conflict Rule of Law Tools’, which include a programme for mapping the justice sector. Determining lawyer ‘density’ or concluding that judicial independence is constitutionally guaranteed, however, says very little about what the level of access to justice really is, or whether judicial independence is compromised through budget allocation or corruption. The tools for knowledge accumulation do not tell us if the law is nothing more than law on the books. Considering that as much as 80–90 per cent of justice delivery in many parts of Africa takes place through informal or traditional dispute resolution systems, it is questionable how important knowledge of the ‘formal’ structures of the justice system is (see Chirayath, 2005: 3).

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What are the alternatives to empirical assessments? Qualitative assessments, e.g. through interviews and consultative meetings, is one alternative, although a painstakingly slow, cumbersome and expensive method. Qualitative data is also subject to a high degree of misunderstandings and errors. It is difficult to assess the reliability of information, or on what grounds people are participating or being selected to participate in consultative meetings. Irrespective of how well empirical and qualitative studies are used we can not escape the need for benchmarks and best practices. Models for legal reform can and should draw inspiration from trial-and-error experiences. It is precisely this situation, however, that warrants juridical humbleness in order to avoid normative blindness. Since international actors find themselves in an enforcement position, coupled with wide discretionary powers, how legal transplants are used and promoted becomes crucial for understanding their success and legitimacy. 2.

Substance over Procedure and Form

There is a tendency to focus too much on substance in rule of law reform. This is most clearly observed in the effort to transfer ‘good’ or morally ‘just’ laws involving civil and political rights, criminal law, and women’s human rights. Much less effort is made to strengthen the processes and procedures by which laws are drafted, enacted and implemented, or to ensure that internal requirements to the rule of law such as hierarchy of norms, internal coherence, and effective means to solve disputes arising from a conflict of laws are established. Kosovo provides a good example of substance-influenced law reform. While UNMIK and the Kosovo Assembly have been active in legislative initiatives, secondary legislation needed in order to make the law applicable lags behind. This is due to a number of factors. One is the lack of definition and hierarchy of normative acts. In the early years of the UN administration the drafted laws often reflected, in style and form, the legal background of the international expert responsible for writing them. This further constrained the need for consistency and harmonisation within the system. A similar situation is found in Afghanistan where, despite a concerted effort on rule of law reform, there is considerable confusion as to the hierarchy of norms, the status of state agencies and the legal framework governing the day-to-day activities of the state. It is worth noting that changing procedure and form is perhaps more difficult than changing substance. According to Markovits (2004: 110), this is because procedure represents an attitude or mentality of ‘we’ve always done like this’ which is intimately linked with unspoken conditions and reflexes.

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Procedure is based on repetition and practice and changes in procedure intrudes on how government agencies work. From the supreme courts judges to the local municipal administrative officers, a reform set on altering a pattern of behaviour that requires their compliance is likely to meet resistance. The rule of law assistance provided by international actors is therefore, at times, off the mark, considering the ambitions in state-building operations. Technical assistance is modelled on a skewed interpretation of what international actors can and are willing to provide, and the focus on value-laden criminal justice reform is often a donor choice. As the Council on Human Rights Policy (2000: 87) noted in its report ‘Local Perspectives: External Assistance to the Justice Sector’, international agencies were seen as following ‘trends’ or ‘fads’ rather than basing the assistance on actual problems. 3.

Regulatory Capacity

Recent studies from post-conflict societies show that there is a growing need to focus on rule of law in a broader sense, including administrative law, integrity systems and codes of conduct for civil servants and other public officials, in addition to the overall system for accountability in economic governance. As the International Crisis Group (1999: 18) reported from the process of legal and judicial reform in Bosnia and Herzegovina, international actors emphasised the strengthening of the judiciary while failing to address human rights violations and discriminations in the administrative framework. Effective governance and the exercise of power is in a majority of cases implemented by civil servants and public officials outside the justice sector. There may be ways of ensuring the management of day-to-day activities, such as official registration systems and documentation of land, property and business licences, monitoring environmental protection, central banking and fiscal and tax collection systems, without involving public administration and civil servants. So far, however, no system is even close (Seidman, 1987: 85). Given its predominant influence in the daily activities of the state, and given the numerous ways in which the system of public administration interacts with citizens, ensuring rule of law in the exercise of governance power is a crucial task in a post-conflict transition. There is a general need to focus attention to central government and regulatory agencies after conflict since they often perform key tasks vital for the recovery process. Kosovo is one example where the regulatory agencies such as the Central Banking Authority of Kosovo, Energy Regulatory Office, Independent Commission on Mines and Minerals and the Water and Waste Regulatory Office oversee and regulate issues crucial for reconstruction. Ensuring rule of law in relation to these regulatory agencies is important in order to safeguard against corruption and discriminatory practice. The UN

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expert group on public administration (1995: 4) argued in an early report from 1995 that restoring public administration should be an integral part of peace operations because the existence of effective administrative machinery functions as the nexus of all governmental activities, including its political, social and economic elements.

VI.

CONCLUDING REMARKS

One of the major problems with rule of law is not the transplanting or drafting process, but that once transplanted, laws continually fail to be implemented. War-torn societies pose particular challenges to the method of legal transplant. Not only is the process of legal transplants constrained by the fact that war to peace transitions typically share very few similarities with the countries where a legal model is taken from (or to the high standards found in international legal regimes); they are also ill-equipped to handle and constructively manage complex law reform because of a weak governing capacity. Despite these challenges there is a clear-cut role for legal transplants in war to peace transitions, in particular the use of internal transplants since it satisfies the filling of a legal lacuna. Law is a crucial tool in a reconstruction or state-building process since it delineates the future roles and responsibilities of a state, and between a state and its citizens. It has been argued in this chapter that the methods for transplanting laws need to change if they will have a greater likelihood of moving from the drafting table to practical implementation. The use of internal transplants, for example, should avoid the general vetting criteria that are currently in use and devote more time and resources to ensure a smooth transition between legal regimes. More care should also be given to the process of reception of a legal transplant whereby local actors can actively take part in a law reform process. Local actors need to be part of a transplant process so as to provide assistance with needs-based knowledge rather than a reliance on pre-determined models. Furthermore, substance should not trump form. Laws that hold some moral value, such as human rights, are not self-executing rules. They, like any other type of legislation, are in need of an institutional support structure and subsidiary legislation. The expectation of the highest standards in a postconflict settlement may also be potentially dangerous to stability since it challenges the absorptive capacity of national authorities. Here the example of good enough governance could provide guidance with its caution towards reforming the most demanding and controversial areas. Finally, the preoccupation with exporting ‘good’ law tends to overshadow laws aimed at strengthening and improving regulatory capacity and quality. There is a need for a focus on the formal and procedural aspects of rule of law, particularly in rela-

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tion to administrative law and economic governance. While this might be one of the more difficult areas to reform, it only serves to underscore the importance of juridical humility and of acknowledging the importance of a wellbalanced process that uses transplants in a balanced way that supports national capacity to participate and eventually manages law reform efforts.

NOTES 1. 2.

Particularly heated has been the debate between Watson (1993) and Legrand (2001). The UN Office on Drugs and Crime (UNODC) offers a number of model laws covering both civil, common law and Islamic law jurisdiction that translates governments responsibilities under the drugs conventions: Model Law on the Classification of Narcotic Drugs, Psychotropic Substances and Precursors and on the regulation of the Licit Trade of Drugs; Model Law on Drug Trafficking and Related Offences; and Model Foreign Evidence Bill, available at www.unodc.org, accessed 10 July 2009). 3. A brief glance at some of the recently concluded peace agreements provides the ‘local’ imperative for legal, judicial and administrative reform after conflict. See e.g. the peace agreements for Burundi, or Ivory Coast, which reads like a long must-do list of administrative law reforms. 4. The legal creativity of the UN had some problematic results. The report of the Commission established by the Security Council to investigate the attacks against UN troops in Somalia noted that ‘the promulgation of the Somali Penal Code of 1962 . . . was capable of being interpreted by [General Mohamed Farah Aideed’s faction] as an overstepping of the UNOSOM II mandate’ (United Nations, 1994). 5. The resistance finally led the UN administrator to declare in regulation (1999/24) the applicable law to be the law in force as of 22 March 1989.

REFERENCES Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (2001), Section II (1). Ajani, G. (1995), ‘By Chance and Prestige: Legal Transplants in Russia and Eastern Europe’, American Journal of Comparative Law, 43, 93–118 Berkowitz, D., K. Pistor and J-F Richard (2003), ‘The Transplant Effect’, American Journal of Comparative Law, 51 (1), 163–203. Björkdahl, A. (2006), ’Promoting Norms Through Peacekeeping: UNPREDEP and Conflict Prevention’, International Peacekeeping, 13 (2), 54–72. Carothers, T. (2006), ‘The Rule of Law Revival’ in Carothers, 3–15, in Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge, Washington D.C.: Carnegie Endowment for International Peace. Channell, W. (2006), ‘Lessons Not Learned About Legal Reform’ 137–161, in Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge, Washington DC: Carnegie Endowment for International Peace. Chirayath, L., C. Sage. and M. Woolcock (2005), ‘Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems’ paper prepared as a background paper for the World Bank’, World Development Report 2006: Equity and Development.

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Council on Human Rights Policy (2000), Local Perspectives: External Assistance to the Justice Sector. Summary of Findings, Bellegarde/Valserie: Imprimerie SADAC. DeLisle, J. (1999), ‘Lex Americana?: United States Legal Assistance, American Models, and Legal Change in the Post-Communist World and Beyond’, University of Pennsylvania Journal of International Economic Law, 20, 179–308. Department for International Development ([DfID] 2005), ‘Why we need to work more effectively in fragile states’ (January 2005). Dickerson, C.M. (2005), ‘Harmonizing Business Laws in Africa: OHADA Calls the Future’, Columbia Journal of Transnational Law, 44 (1), 17–73. Friedman, L. (2001), ‘Some Comments on Cotterrell and Legal Transplants’, 93–99, in D. Nelken and J. Feest (eds.) Adapting Legal Cultures, Oxford: Hart Publishing. Gardner, James A. (1980), Legal Imperialism: American Lawyers and Foreign Aid in Latin America, Madison: University of Wisconsin Press. Gillespie, John (2006), Transplanting Commercial Law Reform: Developing a ‘Rule of Law’ in Vietnam, Aldershot and Burlington: Ashgate. Hethy L. (2002), ‘Labour Law for Kosovo’, South-East Europe Review for Labour and Social Affairs, 3. International Crisis Group (1999), ‘Public Administration and the Rule of Law in Bosnia and Herzegovina’, Europe Report, 84. Kahn-Freund, O. (1974), ‘On Use and Misuse of Comparative Law’, Modern Law Review, 37, 1–27. Kassinger, T. and D. Williams (2005), ‘Commercial Law Reform Issues in the Reconstruction of Iraq’, Georgia Journal of International and Comparative Law, 33 (1), 217–228. Lau M. (2006), ‘Afghanistan’s Legal System and Its Compatibility with International Human Rights Standards’, International Commission of Jurists. Legrand, Pierre (2005), ‘What “Legal Transplants”?’, 55–70, in Nelken, David and Feest (eds.) (2001), Adapting Legal Cultures, Oxford: Hart Publishing. Markovits, I. (2004), ‘Exporting Law Reform – But Will it Travel?’, Cornell International Law Journal, 37, 95–114. Mattei, U. (1997), ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’, American Journal of Comparative Law, 45, 5–44. Miller, J. (2003), ‘A Typology of Legal Transplants: Using Sociology, Legal History, and Argentine Examples to Explain the Transplant Process’, American Journal of Comparative Law, 51, 839–886. Nader, L. (2007), ‘Promise of Plunder? A Past and Future Look at Law and Development’, 87–113, in World Bank, World Bank Legal Review: Law and Justice for Development, Vol. 2 (2006). O’Connor, V. (2006), ‘Traversing the Rocky Road of Law Reform in Conflict and Post Conflict States: Model Codes for Post Conflict Criminal Justice as a Tool of Assistance’, Criminal Law Forum, 16, 231–255. Ohnesorge, J.K.M. (2008), ‘Developing Development Theory: Law and Development and the Northeast Asia Experience’, University of Pennsylvania Journal of International Economic Law, 28, 219–308. Ombudsperson Institution in Kosovo (2004), ‘Fourth Annual Report 1 July 2003 to 30 June 2004’. Organisation for Economic Co-operation and Development ([OECD] 2005), ‘Principles for Good International Engagement in Fragile States’, OECD-DAC Draft Paper, DCD 8/Rev2.

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Organisations for Security and Cooperation in Europe (2007), Guide on Municipal Statutes’ OSCE and the Ministry of Local Governance Administration. Örücü, E. (2002), ‘Law as Transposition’, International Law & Comparative Law Quarterly, 51 (2), 205–224. Perito, R. M. (2005), ‘The Coalition Provisional Authority’s Experience with Public Security in Iraq, Lessons Identified’, USIP Special Report No. 137. Public International Law & Policy Group (2007), Post-Conflict Constitution Drafter’s Handbook. Seidman, R. (1987), ‘Drafting for the Rule of Law: Maintaining Legitimacy in Developing Countries’, Yale International Law, 12, 84–120. Seita, Y.A. (1997), ‘Globalization and the Convergence of Values’ Cornell International Law Journal, 30, 429–492. Sikkink, K.A. (2005), ‘Transnational Advocacy Networks and the Social Construction of Legal Rules’, 37–68, in Y. Dezalay and B. G. Garth (eds.), Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy, Ann Arbor: Michigan University Press. Strohmeyer, H (2001), ‘Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor’, American Journal of International Law, 95, 46–63. Stromseth, J.D. Wippman, and R. Brooks (2006), Can Might Make Rights? Building the Rule of Law After Military Interventions, Cambridge: University Press. Support for Improvement in Government and Management in Central and Eastern Europe ([SIGMA] 1996), ‘Civil Service Legislation Content Checklist’, SIGMA Papers 5. Support for Improvement in Government and Management in Central and Eastern Europe, ([SIGMA] 1997), ‘Civil Service Legislation: Checklist on Secondary Legislation (and other regulatory instruments), SIGMA Papers 14. Tamanaha, B.Z. (1995), ‘The Lessons of Law-and-Development Studies’, American Journal of International Law, 89, 470–486. Teitel, R.G. (2006), Transitional Justice, Oxford/New York: Oxford University Press. Teubner, G. (1998), ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’, Modern Law Review, 61, 11–32. Trubek, D.M. and Alvaro Santos (2006) (eds.), The New Law and Development: A Critical Appraisal, Cambridge: Cambridge University Press. Watson, Alan (1993), Legal Transplants: An Approach to Comparative Law, Athens: University of Georgia Press. World Bank (2003), ‘Low-Income Countries Under Stress: Implementation Overview’ SecM2003-0506. World Bank (1996), ‘World Development Report 1996: From Plan to Market’, Washington DC: World Bank. United Nations (2005), ‘Making Standards Work: fifty years of standard-setting in crime prevention and criminal justice’, Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, 18–25 April 2005, UN Doc., A/Conf.203/8 (1 April 2005). United Nations Mission in Kosovo [UNMIK], Regulation 1999/1, 25 July 1999. United Nations Mission in Kosovo [UNMIK], Regulation 1999/24, 12 December 1999. United Nations (1994), ‘Report of the Commission of Inquiry Established Pursuant to Security Council Resolution 885 (1993) to Investigate Armed Attacks on UNOSOM II Personnel Which led to Casualties Among Them’, UN Doc. S/1994/653 (1 June 1994). United Nations (2002), Report of the Secretary-General, ‘The situation in Afghanistan

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and its implications for international peace and security’, UN Doc. A/56/875 – S/2002/278 (2002). United Nations ([UNSG] 2004a), Report of the Secretary-General, ‘Third Special Report of the UNSG on the United Nations Organization Mission in the Democratic Republic of the Congo’, UN Doc S/2004/650 (16 August 2004). United Nations ([UNSG] 2004b), Report of the Secretary-General, ‘Rule of law and transitional justice in conflict and post-conflict societies’, UN Doc. S/2004/616 (23 August 2004). United Nations ([UNSG] 2004c), Report of the Secretary-General, ‘Fifth Progress Report on the United Nations Mission in Liberia’, UN Doc. S/2004/972 (17 December 2004). United Nations ([UNSG] 2005), Report of the Secretary-General, ‘Seventh progress report of the Secretary-General on the United Nations Mission in Liberia’, UN Doc. S/2005/291 (16 June 2005). United Nations Transitional Administration in East Timor (UNTAET, 1999), Regulation 1999/1, 27 November 1999. United Nations, Treaty Event during United Nations Summit Receives Record Number of Treaty Actions (Press Release), 22 September 2005. United Nations (1985), ‘Basic Principles on the Independence of the Judiciary’ Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. United Nations Human Rights Council, Report of the independent expert on technical cooperation and advisory services in Liberia, UN Doc. A/HRC/4/6, 28 February 2007. United Nations Programme in Public Administration and Finance (1995), ‘Restoring and restructuring governmental administrative machinery in post-conflict peacebuilding’, Twelfth Meeting of Experts on the United Nations Programme in Public Administration and Finance, UN Doc. ST/SG/SC.6/1995/L. 10/Add. 1 (31 July–11 August 1995). United States Agency for International Development (2000), ‘USAID Handbook on Legislative Strengthening’ Technical Publication Series, 20523-31000. United States General Accounting Office ([GAO] 2001), ‘U.S. Rule of Law Assistance Has Had Limited Impact and Sustainability’, GAO-01-740.

PART II

Comparative constitutional law

6. Ontological and epistemological complexity in comparative constitutional law Otto Pfersmann To state that law is complex seems not to make a very contentious claim. But, what does the claim mean? According to Niklas Luhmann’s famous thesis, law has as one of its main functions to reduce complexity by stabilising expectations.1 Luhmann (1987: 6) defines complexity as ‘the totality of possibilities of experience and action the actualisation of which a context of meaning admits of’. He distinguishes an unstructured, amorphous, from a structured mode ‘to the extent to which possibilities exclude or limit each other’. Law especially through positivity and variability (Luhmann, 1987: 210) can thus, according to him, increase both complexity and ‘possibilities for a meaningful selection’. Thus, though highlighting the ambiguous nature of law, this account remains fundamentally optimistic. To this view, I shall oppose a slightly different concept of complexity (I) which I shall try to apply to the domain of comparative and more specifically of comparative constitutional law. This discipline may contribute to reduce complexity and hence to resolve problems (III). It may often add artificial complexity. It does so through conceptual confusion (II) and misrepresentations of its object (IV).

I. COMPLEXITY AND THE PRINCIPLE OF AMPHIBOLOGY Law can equally reduce and increase complexity and it can do this both at the ontological and at the epistemological level. However, the concept of ‘complexity’ has to be reformulated in a different way. First, the concept introduced by Luhmann is misleading. Instead of indicating an objective or subjective situation in which one has to deal with a highly important amount of intertwined data, it suggests simplification and limitation. It refers to the idea of quantity of possibilities in a choice for action, 81

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the idea being that complexity is proportional to the number of alternatives. But, there may be millions of conceivable choices and only a few which are rationally plausible. Further, the idea of ‘structure’ evokes a simplification of a problem of choice. A structured field of alternatives is ordered by superior considerations and seems rather in opposition to the intuitive conception of complexity referring rather to a situation in which one tries precisely to introduce a structure in order to make a ‘rational’ choice. If it already structures reality, then complexity is less complex than brute reality. If reality itself is highly complex, normative requirements select certain modes of authorised, prohibited or obligatory action and reduce complexity as far as it normatively limits action. And undoubtedly, it may seem at first glance that a world in which one can rely to a certain extent, under certain circumstances, on patterns of behaviour as well as on the fact that certain situations can be apprehended through rules guiding human behaviour, is much less complex than one in which just everything physically possible may contingently happen. Law provides for the expectation of regularity (at least, again, to a certain extent) which brute facts cannot regularly offer. But, this account simply excludes that there may be a difficulty in making a choice, in other words that the selection of an appropriate action may itself pose a problem. Indeed, both intuitively and in the mathematical theory of complexity, the concept is defined in terms of the quantity of steps required to solve a given problem, where the problem may present several layers, thus adding several layers or parameters of complexity so considered. Second, Luhmann hints at the possibility of multiple-level constructions with compensatory higher-order difficulties, but does not develop the concept. The picture supposes that the artificial world of normative standards which law introduces on the whole is at least less complex than a world in which there would be no such artificial normative standards. But, whether this is truly the case or not remains entirely an open question and a difficult one to decide. It is obviously very easy to think of sets of artificial normative standards which are themselves complex, if not highly complex or even hypercomplex: in order to solve a certain problem, one may introduce a certain mechanism which may itself become highly difficult to handle, calling for a higher order mechanism and so forth. Third, it may even be and it often happens that this evolution is irreversible because a return to the previous situation is not possible: the return causes problems which can be handled only at the higher level and becomes an illusion. Fourth, law cannot be handled without legal knowledge or scholarship. The more norms there are, the more a society will need persons able to grasp them and to provide for adequate information when untrained knowledge appears insufficient and this stage is rapidly reached. But, this necessarily adds a new

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level of complexity: in order to know whether there are real experts we need experts of expertise and so forth. Indeed, pretended legal experts may be bad legal scholars. To have accurate expertise concerning the worlds of artificial normative standards needs training and selection, and this requires expertise about what distinguishes real expertise from simply alleged expertise. Thus, law as well as legal knowledge is fundamentally amphibological. On one side, it may provide usable expertise, inducing a habit of developing, maintaining and transferring valid knowledge, contributing, that is, to a significant reduction of complexity. On the other side, it may be a factor of amplification of complexity when either used without accuracy or when accurately used to show that a legal problem needs much more to be solved than would have been thought of without such an inquiry. Let us call this the principle of amphibology. With these premises in mind, one can show that comparative law, understood in a certain way, can serve to reduce complexity as it may be used to produce artificial or spurious complexity. Up to this point, we assumed to know, more or less, what the legal order is about, what legal doctrine is about, i.e. the analysis of the legal order. Does comparative law, and more specifically comparative constitutional law fit into the picture and does it share the amphibology of legal knowledge? In the following sections, I shall try to show that it is indeed one of the most powerful instruments of legal expertise and one of the mightiest instruments of legal confusion.

II.

CONCEPTUAL PERPLEXITY

There is perhaps only one subject in which there is more confusion than within the eternal debate ‘what is law?’ and this is the use of the expression ‘comparative law’. It is the name of a concept, but it can equally be the name of many concepts. If one uses, though, one concept-name without specification, one normally means to say that the object to which the name refers is one and only one, such that, trivially, one can substitute in any occasion in which one uses the name an equivalent expression without loss of meaning. What is true of X meaning object O is true of Y meaning object O, salva veritate. It may be that the object was a set of different objects, but it would be a misleading use of the concept-name if it would refer without any specification in one case to one object and in another case to a different object of the set. For obviously if that were the case, the condition of synonymy would not be maintained. Up to now, we have been speaking about comparative law, assuming there is one such thing and when we want to speak of one of its specific areas, then

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we do this by adding a specification, like comparative constitutional law or comparative contract law, or comparative intellectual property. In fact it is easy to see that this assumption is false. The name ‘comparative law’ covers at least five sometimes entirely different, i.e. mutually exclusive, sometimes overlapping activities: • a political reflection on what the law ought to be2 or not to be3 in respect to the experience of different legal systems; • an exercise in justification of law making, judicial or parliamentary by drawing on what has happened somewhere else; • an anthropological study into the ways in which different people and countries experience different forms of socially organised normativity;4 • a reflection into the nature of what is ‘different’;5 • a study of a foreign legal system or set of legal systems;6 • an investigation into various legal systems under specific headings and aspects. The difference cannot be more salient. Whether one wants to know what happens somewhere else in a world which is not directly and usually one’s own, is absolutely not the same as considering simultaneously different worlds from the outside, independently of whether one of them may be his or her own legal world. It is, again, a completely different activity to reflect on what would be a good or the best solution for a particular case or a particular piece of legislation inspiring oneself from what happens or has happened elsewhere or just to analyse what legally happens in different places or to think of the way in which different people experience normativity. The identification of these different activities with the one and only unspecified comparative law may result from inadvertency or there may of course be an explicit belief that what is different is in fact one and the same. If someone is convinced that these different things are in fact the same thing, my whole argument is trivially although weakly defeated. I can even admit that the question whether science and politics is the same or not or whether it is at all possible to have any objective knowledge,7 let alone objective knowledge in legal matters,8 may be a highly disputable question