Vol. 3.1 August 1999
EUROPEAN PRIVATE LAW: POSTMODERN DILEMMAS AND CHOICES
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Contents
Mr Rector Magnificus, Ladies and Gentlemen, Why are almost all comparative lawyers such pragmatists? And why do they generally know
very well how they should ideally set to work and yet still not do so? This tension between the
theory and practice of comparative law – between the ideal and reality – is a theme that has long
intrigued me. The roots of this interest lie, as I realised while writing this lecture, in the period
when, as a law student, I became interested in the law of Indonesia and began to immerse myself
in this subject. As I quickly realised, a fundamental question that had to precede any study of
Indonesian law was how a Western lawyer could understand a legal system that is the product of
a culture and set of perceptions so different from his own.(3) Later I realised that this question,
which (to put it in more general terms) is about the ability to comprehend, actually occurs
wherever foreign law is studied and, on the basis of such study, compared, and wherever lawyers
are engaged in the unification of law, for example the development of a European private law
(whether harmonised or unified). Having been confronted on many occasions – partly from a
practical point of view and partly from a theoretical point of view – with the difficulties inherent
in any comparison of legal systems, I have become increasingly aware of this tension between
comparative law in practice and comparative law as it should ideally be, and of the different
dilemmas facing a comparative lawyer. For this is indeed how I have come to see matters: as
dilemmas – choices that have to be made in a situation where advantages and disadvantages that
balance one another can be advanced for any position. It is these two closely intertwined themes
– first, the inherent tension between idealism and pragmatism and, second, the inevitability of
having to make a choice when confronted with the dilemma – which I wish to present to you this
afternoon from the perspective of a European private law in the process of development. After
what I have said, you may expect that this lecture will centre on the age-old tension between the
needs of legal practice and the desire to study law as a pure science. However, this is not the
case. Those who practise the comparative-law method may be both comparative lawyers and
academics. They are all confronted with the same tension between comparative law as an ideal
and comparative law in practice. What I shall say is therefore, in my view, important to anyone
engaged in comparative-law studies. Choices have to be made all the time in law. So having to make choices is not strange to a
lawyer. Let me present to you a number of choices so that you do not gain the impression that
what follows is cold and abstract. First of all, I would mention the legal consequences of medical
questions: When does the life of a human being begin and end according to law? This covers
questions relating to such subjects as abortion, euthanasia, gene research and cloning. Other
examples are political and socio-economic questions, such as what type of economy is the best
(free market, social market or planned economy) and what forms of ownership can be accepted
(private ownership, exclusive State ownership of the means of production, ownership as a
uniform concept as in the legal systems of continental Europe, or fragmented ownership as in
English law). Sometimes these choices do not give rise to a dilemma: it is clear to us, given the
importance that we attach to human freedom and equality, what form of society we wish: a
constitutional and social democracy governed by the rule of law. But sometimes we do find
ourselves in a dilemma. For example, to whom should the law afford greater protection: the
original owner whose goods have been stolen or the third party who has bought the stolen goods
in a shop in good faith? These are relatively concrete choices and dilemmas. However, the law also gives rise to
more abstract dilemmas and choices. These relate to the way in which law is thought about and
concern the law as a method of thought. The remainder of this lecture will concentrate primarily
on this subject and in particular on the question of how we can responsibly achieve the
development of a European (denationalised) private law. Against this background I should immediately like to make the following limitation. It is
by no means my intention here to develop general ideas relating to dilemmas and law. Instead I
wish to confine my remarks to a few considerations concerning dilemmas in the application of
the comparative-law method. In particular, I shall confine my remarks to what comparative law
should ideally be, but what – in practice – it is often not, cannot be and also – but here I am
anticipating my own conclusions – need not be. In the Netherlands, the need to achieve a pure approach to the practice of the comparative-law
method has been advocated in particular by Kokkini-Iatridou, for example in a book coauthored
by her and entitled ‘Een inleiding tot het rechtsvergelijkende onderzoek’ (An introduction to
comparative-law research).(4) Almost at the very start of the book, Kokkini-Iatridou submits that,
to use her words, a ‘great paradox’ exists in relation to the thinking about comparative law:
‘[A]lthough there is no academic orthodoxy, comparative law is practised enthusiastically both in
the Netherlands and elsewhere.’(5) The second part of her book goes on to elaborate the
comparative-law method which should, ideally, exist. In brief, Kokkini-Iatridou takes the view
that comparative law can be said to be practised only if at least two legal systems are involved in
the study. Simply gaining an in-depth knowledge of a single legal system may be very important
and help to deepen one’s own understanding, but it does not lead to a real, methodical
comparison of legal systems.(6) She divides the process of comparative study as such into three
stages: (1) ascertainment of similarities and differences, (2) explanation thereof, and (3)
evaluation of the results of the study. Next, the first stage is elaborated in the form of two
methodological rules. In essence, these rules demand that part of a legal order should first be
studied separately and then placed in the broader context of the legal order as a whole. I cannot
discuss her methodology here in more detail, but I would merely remark that the book is a source
of inspiration for those seeking to achieve a sound method of comparative legal analysis. A standard work of foreign origin that cannot be overlooked here is the well-known book
of Zweigert and Kötz, Einführung in die Rechtsvergleichung.(7) In their book, the authors indicate
with great precision the importance of a good comparative-law method:
From the way in which Zweigert and Kötz describe their ideal method it is evident that they
advocate a functional approach to the process of comparative law. They are struck by the fact
that, although law may differ considerably from one country to another, for example in terms of
its dogmatic structure, the same solutions are often found to similar problems, particularly in
private law. This similarity is so strong that they even speak of a praesumptio similitudinis: a
‘Vermutung für die Ähnlichkeit von praktischen Lösungen’,(9) which – as appears a few pages
later – could lead to an ‘Universalrechtswissenschaft’.(10) Nonetheless, as they admit, this method
too should be used with caution.(11) In evaluating the results of comparative studies, comparative
lawyers often encounter what are termed ‘Wertungsaporien’ (tensions caused by the need to
assess), which make it impossible for them to decide whether a given solution is better or worse
than another.(12) The functional method of legal comparison advocated by Zweigert and Kötz has recently
been applied by Jansen is his dissertation ‘Towards a European Building Contract Law’, in order
to ascertain whether the building contract law of a number of European countries (England,
Germany, France, the Netherlands and Belgium) has a sufficient number of common elements
and shared essential features to be able to say that a ‘European building contract law’ exists.(13) In
order to identify instances where the legal systems are in principle in agreement but where this
would otherwise be obscured by their use of differing terminology, Jansen has developed his
own legal terminology which subsumes the national concepts. The concepts he proposes are
defined in English terms, which are without meaning in the national legal systems analysed by
him (including English law) and can be understood only in the context of the body of terms
developed autonomously by him. For example, he describes the person who commissions
construction work as the ‘initiator’.(14) But is this a way of avoiding the Wertungsaporien
described by Zweigert and Kötz? The formulation of autonomous concepts can – provided that
this is the result of sound, functional comparative study (and Jansen’s book is a notable example
of this) – open one’s eyes to a hidden praesumptio similitudinis. But it can also mean that one
sometimes forgets that superficial differences may be the expression of differences of a more
deep-rooted nature. If, in such a situation, one wishes to develop uniform law, a choice will have
to be made between solutions that differ substantively. The expression of this choice by means of
an autonomous concept devised by the comparative lawyer will then conceal again precisely that
which has been revealed by previous study.(15) The functional method of comparative law may, as
we have seen, have many advantages, but it also has its dangers. Various authors, both in Europe and in the United States, have endeavoured, especially in the last
ten years, to rethink the comparative-law method from the perspective of a postmodernist
philosophy of life.(16) What is striking in this connection is that these authors treat the person of
the researcher and above all his or her identity and self-knowledge as central. Each of them
reiterates how closely law is connected with the culture of a given community. This community
may be determined nationally, but it may also be, say, of an ethnic or religious nature.(17) The
urgent question that arises in the context of comparative law is whether the identity of
researchers does not make it impossible for them to understand foreign law (i.e. law that applies
outside the community from which they derive their identity). If this question were to be
answered in the affirmative, it would mean – methodologically speaking – the postmodern death
of comparative law. Who, after all, can be certain that he or she ‘really’ understands foreign law?
Legrand, for example, believes that comparative law requires a thought process that can be
achieved only by committing oneself intellectually and emotionally to the legal systems to be
compared. This is a process that takes years and that is possible only in relation to a few legal
systems (two or three at most). All other forms of comparative law are, in his view, not
meaningful. Another comparative lawyer who has asked himself postmodern questions is Jayme,
although his conclusions are much less radical. Before discussing the views of these postmodern
comparative lawyers, I think it would be helpful to a better understanding of them first of all to
indicate briefly and in more general terms what postmodern thinking entails.(18) In a lucid introduction to postmodernism Van Peursen describes this philosophy of life by
reference to the following characteristics:(19) the exposition (vocabulary) and, closely related to
this, the polemical and narrative style are central features. Law is thus seen as a narrative of
reality, like other narratives such as those found in sociology and economics. This means, for
example, that a lawyer is not required to be able to think simultaneously like an economist or a
sociologist. Law is not sociology or economics, but an independent approach to human relations.
Clearly in keeping with the role thus attributed to the narrative, the text is the focus of thought in
postmodernism. The text (which leads me, as a lawyer, immediately to think of statutes,
judgments and professional literature) is a document independent of the author of the text (for
example the legislator) and the recipient of the text (for example the judge who reads it) and
must be understood from within itself. Searching for a deeper meaning is pointless, since this
would be tantamount to speculating about the meaning. In postmodernist thinking, plurality too
is very important: as there is no deeper meaning, every text is equally valuable. Furthermore,
continuity is denied. Only fragmented knowledge is possible. Once again, any search for a deeper
unity between texts, for developments in thinking or for universal truths is without meaning,
because it is impossible. It follows that postmodernists take an ironical view of others (and of
themselves): nothing is certain, a smile alone is sufficient to wave aside objections. Applied to
the law this means in the words of the American lawyer Minda: ‘While modernists seek to solve
and overcome paradox and predicament, postmodernists embrace paradox and predicament as an
unescapable condition of contemporary intellectual thought.’(20) In Europe, the influence of postmodernism on comparative-law thinking has been raised
in particular, as I have already said, by Jayme and (implicitly) by Legrand. I shall now briefly
describe the positions of the two writers and then explain my own approach. Jayme’s view of postmodernism and law has been expressed by him in various very inspiring
writings. I would mention in particular here his ‘Cours général de droit international privé’
entitled ‘Identité culturelle et intégration: Le Droit international privé postmoderne’ and the
speech he gave in Osnabrück entitled ‘Betrachtungen zu einer postmodernen Theorie der
Rechtsvergleichung’, which has not yet been published in German but has been published in
Italian under the title ‘Osservazioni per una teoria postmoderna della comparazione giuridica’.(21) The – provisional – definition of postmodernism, as employed by Jayme in his speech is
as follows (I quote from the German text): ‘Die postmoderne Rechtsvergleichung forscht nach
Unterschieden der Rechtsordnungen und zwar insbesondere im Hinblick auf die verschiedene
Haltung zu zeitgenössischen Ausdrucksformen, Denkstilen und Werten.’(22) In this connection he
mentions the four following aspects of postmodernism which characterise the present era:
pluralism, communication, the narrative and the return of feelings.(23) Pluralism means that one
refrains from treating one’s own views as absolute. Communication – or, rather, the need for
contact – is evident from the explosive growth of communication networks such as the Internet,
with all the opportunities created, for example, by e-mail. This need is also evident from the
extremely rapid growth of networks in the field of mobile telecommunication. The narrative as a
characteristic of postmodernism is intended to convey the fact that abstract notions are no longer
appealing; there is a growing need for concrete ideas. The return of feelings expresses the
importance that is once again attached to the irrational and to emotions.(24) Jayme also refers to
postmodernism as leading to fragmentation of knowledge and hence to confusion.(25) Where does this lead us in terms of comparative law and, particularly, the developments
in the direction of European private law? In his ‘Cours général’ he remarks as follows in this
connection:
And later:
In summary, Jayme’s approach amounts above all to an analysis of what might be termed a
‘sense of justice’, as this exists in today’s society. It is only with some hesitancy and caution that
he draws conclusions from this – entirely in keeping with the sense of justice described by him –
regarding for example European legal integration. Jayme points out above all that everyone’s
cultural identity should be respected. In so far as legal integration does not affect this identity,
unification of law is certainly possible. Unlike Jayme, who – as we have seen – has talked explicitly about the influence of
postmodernism on his thinking, the evidence in Legrand’s writings that he too has been
influenced by postmodernism is only implicit. Another difference between the two authors is
that, whereas Jayme tries to rethink the position with regard to private international law and in
the process traces an almost flowing line between modern and postmodern legal thinking,
Legrand describes modern comparative law in terms that make it seem almost inimical to
postmodern comparative law. In Legrand’s opinion, modern comparative law is characterised by a focus on formal rules
that are compared independently of the culture that constitutes and surrounds them. According to
Legrand, it is only through these formalistic thought processes that comparative lawyers have
been able to conclude that legal systems are converging. In doing so, they have created an
illusion not only for one another but above all for other people. An illusion that also conceals the
fact that comparative lawyers from a given culture in essence impose their own cultural outlook
on other people. Let me illustrate Legrand’s view – because of its far-reaching consequences –
by means of some quotations from articles recently published by him. Central to his approach is
the distinction between continental (European) law and English law, as reflected for example in
Canada in the difference between the French law of Francophone Quebec and the Anglo-Canadian law of the remaining Anglophone provinces of Canada. An example is contained in his
review of B. Großfeld’s book Kernfragen der Rechtsvergleichung.(28) Here Legrand observes at a
certain point:
Even if they wish to understand one another, they simply cannot. This inability to comprehend
one another is, in Legrand’s opinion, very closely bound up with the differences in legal culture
and legal language between civil law and common law. This is also apparent from what he says
about the possibility of developing a single common European legal language in ‘Sens et non-sens d’un Code civil européen’:
Although this offers little hope for those who are involved in the development of European
private law, it does not in itself amount to a condemnation. Nonetheless, a condemnation is in
fact the consequence of this assertion, as he writes a few pages later:
Legrand has recorded his views on the method of comparative-law study in numerous writings.
He has in particular – as will have become clear from what I said previously – vehemently
opposed a European civil code.(32) Basically he is against the unification of law because this
amounts to the production of uniform formal rules without taking account of the local legal
cultures in the different Member States of the European Union, and also because unification does
not do justice to the intrinsic value of the legal systems now existing within Europe. This is a
clear expression of postmodernism: the emphasis on the importance of what evolves locally and
diversely and has its own ‘narrative’.(33) The great difference between Jayme and Legrand, as I have already said, is that the
antagonism between modern and postmodern thinking about comparative law that is so much to
the forefront of Legrand’s thinking is completely absent from Jayme’s writings. This also
explains why Jayme’s thoughts incline one to reflection whereas Legrand’s thoughts seemingly
invite contradiction. Legrand is ostensibly correct in emphasising that law may not be viewed
separately from the culture, in particular the legal culture, in which it exists. But is this denied by
modern comparative lawyers? I know of no comparative lawyers today who would still defend
the notion that what is compared is limited exclusively to the rules, although it is naturally the
law in the sense of the entire body of rules that determines the subject of comparative law. A
comparative lawyer who is aware of the cultural, social, economic and ideological ties of the law
knows sufficient to be able to practise comparative law responsibly. The extent of the awareness
that can be expected of comparative lawyers and that must be reflected in their research depends
among other things on whether the legal systems that are to be compared are closely related to
one another or, on the contrary, belong to markedly different cultures. In the latter case
comparative lawyers should have a deeper awareness of cultural differences than in the former
case. However, this is all that is expected of them; they are not required at the same time to
double as a cultural anthropologist, economist, sociologist or philosopher.(34) Or, to quote the
words of Kötz: ‘Legrand mag recht haben, wenn er die Juristen für blind hält. Aber hätte er nicht
andeuten können, daß die Rechtsvergleicher wenigstens auf einem Auge sehen und deshalb unter
Blinden die Köninge sind?’(35) In other words, the crux of the matter is that the law should not be regarded by the
comparative lawyer as an autonomous world in which efforts are made to reach sound
conclusions exclusively by logical reasoning through comparison of formal rules (whether laid
down by statute, developed by the courts or included in standard contracts). Allow me, before dealing in a more general sense with the practice of comparative legal analysis,
to give some examples of the difficulties which a comparative lawyer may encounter. First and
foremost, there is the difficulty of ascertaining the content of foreign law. Let me take as an
example the experience I gained as a lawyer working for the Notarial Legal Office of the Royal
Notarial Society. When, as a consequence of a rule of private international law, a notary has to
apply foreign law, he has the task of establishing the content of this foreign law as well as
possible.(36) However, this may be highly problematic for various reasons. For example, there may
be language difficulties or an absence of source material. Another problem may be that the legal
system to be applied no longer functions de facto as a result of civil war or revolution. The
Cultural Revolution in China, for instance, caused so much unrest that it was exceptionally
difficult for foreign lawyers to obtain proof of, say, the Chinese law of matrimonial property.
Another example that I can give is drawn from the experience I have gained in my work as
adviser to a number of law-reform projects. The main purpose of these projects is to provide
expert support, in particular in comparative-law matters, to committees engaged in the review of
private law in countries that are making the transition from a planned economy (with the
attendant Communist dogmas) to a Western market economy. In one of these projects I was
called on to discuss the draft (already revised) of the Civil Code of the relevant country with the
members of the legislative commission responsible for the draft. The text I was actually
discussing was a German translation of the Code, and I was working through a Russian
interpreter with whom I conversed in English. English was also the language spoken by the
various foreign advisers (from the Netherlands, the United States and Germany) among
themselves. Fortunately, I was occasionally able to consult with the interpreter also in Dutch
about what I meant by a particular English term, because he had been raised in both Dutch and
Russian. I expect that you can imagine vividly the difficulties I have just described, which can
hardly be defined as anything but dilemmas. What should I have done in such a situation? In
cases where the foreign law cannot be ascertained, reverting to Dutch law as the lex fori is
sometimes a sound course of action. But this option was not available to me in deciding whether
or not taking part in the law-reform project I just mentioned was responsible. The choice that
confronted me was either to stay away on the grounds that the likelihood of misunderstandings
was too great or, while fully realising the intellectual dangers, to engage in the discussion in
order to be able to provide at least some of the assistance that had been requested. I chose,
unhesitatingly, for the latter option. Using their knowledge – partly obtained from comparative-law studies – of the law of property in a number of European countries, the foreign advisers were
able to make a contribution to the debate within the legislative commission as to whether a
positive or negative system for, among other things, the transfer of land and dwellings should be
introduced in the relevant East European country. Comparative lawyers who take their work seriously are inevitably confronted by the dilemma
posed by the gap between what, ideally, comparative law should be and what, in practice,
comparative law often is. Whether we try to distinguish the comparative-law method from the
juxtaposition of legal systems as such, or to distinguish ‘pure’ comparative law from ‘practical’
comparative law (which, actually, should not even be labelled comparative law), the dilemma
between the theory and practice – between the ideal and the reality – is always present. The
question is how we should resolve the dichotomy between the ideal and reality, in particular in
such a way that a responsible balance is struck in practice. It seems to me that endeavouring to
achieve adequate methodological purity is a more fruitful approach here than classifying
practical comparative law as ‘non-pure’ and dismissing its results as irrelevant. The ideal method
of comparative legal analysis provides the comparative lawyer with information about the
problems he can expect, how he can avoid or solve them and, more generally, what can at least
be required of him in terms of awareness of the dichotomy between theory and practice. As
Legrand has argued, it is of great importance that comparative lawyers should also, as far as
possible, compare cultural factors. What I greatly regret, however, is that the proponents of this
view – and I say this with due respect for those who defend it – have the tendency to withdraw
into intellectual isolation, where they may be able to find confirmation of the correctness of their
positions, but at the same time leave those involved in the practice of comparative law to their
fate. For me, the comparative-law method is above all a source of inspiration and creativity,
especially when it is employed in the development of a European private law as the object of
jurisprudential research. Comparing alternatives and assessing their advantages and
disadvantages is an instructive process for every lawyer. In such a process, which requires an
open view of the world, particularly of globalisation, and a growing awareness of mutual
dependence, there is no place for intellectual purism. What is needed here is the daring to take
the risk of misunderstanding or being misunderstood – a daring that must certainly be based on
efforts to achieve the ideal of comparative law, but is also characterised by an open attitude and a
willingness to learn from past mistakes. To this extent my approach to comparative law could be
described as pragmatic. It is also in keeping with what Hoetink recorded in various writings as
his thoughts on the positive aspects of failing to comprehend, which he termed ‘productive
misunderstanding’. In the 1920s, Hoetink asked himself, in essence, the same questions as
Legrand is posing now, albeit – unlike Legrand – not out of intellectual pessimism. I would refer
to Hoetink’s inaugural lecture ‘Over het verstaan van vreemd recht’ (On comprehending foreign
law), which he gave in 1929.(37) In his view, it is not always true that the objective correctness of
historical events is ‘necessarily proportionate to their practical usability’.(38) This is a proposition
that could also be applied to comparative law. Should this be correct, I would agree to its
application, although the starting point should in my view be and remain that an attempt should
at least be made to comprehend the foreign law as a lawyer from that country would comprehend
it – albeit in the realisation that this will not always succeed, but may still yield worthwhile
results.(39) It is therefore a matter of not claiming too much, but at the same time of not being
satisfied with superficialities: the choices on which the results of the comparative studies are
based should be adequate. The comparative lawyer should take sound decisions in the cognitive
process by which knowledge is acquired. I am thinking in this connection of the choices made at
various stages. For example, is a comparison of the legal systems of countries that can be
regarded as constituting a ‘parent legal system’ sufficient to be able to conclude whether or not a
‘European principle’ exists? Are secondary sources sufficient? Is publication of the results in a
language other than one’s mother tongue too great a leap? The choices and decisions that
confront a comparative lawyer during his research are, in my view, the most essential issue from
the point of view of methodology. The making of such choices is a theme that is rightly approached with great caution in the
Dutch literature on legal theory. Whereas, for example, one of the best known Dutch textbooks
on the doctrine of the making and interpretation of law in the private-law field (Scholten’s
‘Algemeen deel’ (General part)) formerly dealt with the great value of decisions – albeit mainly
judicial decisions – as the synthesis of rational/intellectual, intuitive and emotional arguments,(40)
the new version of the General Part by Vranken only treats the reasons given for the judicial
decision as ultimately being of value.(41) The decision-making process – as a manifest expression,
here too, of postmodern thinking, in which no claim to absolute truth would be appropriate – is
reduced to a reasoning process. What significance do these views have for a comparative lawyer
obliged to make choices in the course of his work? I fully realise, of course, that Vranken in
particular has limited his General Part to a study of the position of the judge and his or her
thought processes, especially analysed from the position that the judge is bound by procedural
law. But is the thought process of judges and the decision they have to take really so different
from, say, the thought process and the choices of other lawyers, such as those involved in the
practice of comparative law? The necessity of choosing between what should happen ideally and
what is feasible in everyday reality is something that is familiar to every lawyer. And whether
one is bound, like the judge, by the rules of formal procedural law or, like the comparative
lawyer, by the rigid methodological requirements of the academic thought process is immaterial.
In my opinion, however, reasoning alone does not justify a decision since it does not show
whether the decision is adequate. No matter how much a decision may have been reasoned,
discussed and critically thought through, it may still be quite wrong. And this is, after all, what it
is ultimately all about: taking the decision which, according to one’s own conviction, is the best
substantively – and not the wrong one – and what criterion should be applied in deciding whether
a decision is the best one! An adequate solution must therefore be chosen on the basis of the ideal method advocated
by modern or postmodern comparative law. For this purpose, an adequate solution is one that
strikes the right balance between this ideal and what is practically feasible. In answering the
question of what must in practice be regarded as an adequate solution, account must be taken
among other things of the following aspects: (a) the object of the comparative study, (b) the area
of law to be studied, (c) the nature of the problem chosen, (d) the extent to which the legal
systems being studied are related to one another, (e) the accessibility of material about the
relevant foreign law and (f) the necessity in, say, social, economic or political terms of achieving
results quickly. If one is studying, for example, the possibility of establishing a single private law
within the European Union (object), in particular a single European law of property (area of law),
and more especially the question whether a single European law of hypothec is possible by
means of a European regulation (problem), the research concerns related legal systems about
which it is relatively easy to find material. Moreover, there will be little urgency to achieve
results. In such a case the standards of accuracy to be met by comparative-law study will be high.
I would immediately add that as much can fortunately be learned from the literature on the
methodology of comparative law, it is possible to avoid the most inadequate decisions. And the
same goes for those who have as yet had little if any contact with the comparative-law method.
Finally, the search for what constitutes adequate comparative legal analysis will often occur in
the manner described by Zweigert and Kötz with regard to the ultimate valuation of the results of
comparative study (after indicating that an infallible methodology will probably never exist):
A research theme which I hope to concentrate upon in the years ahead is European property law.
Traditionally, the law of property is regarded as one of the most difficult areas in which to
achieve harmonisation, let alone unification. Various reasons can be given for this. The law of
property is concerned directly with the distribution and transfer of property within a society and
therefore directly affects the ideological principles underlying this society, in particular the
economic order. For example, there was and is a fundamental difference between the concept of
ownership as recognised in Western Europe, Australia, North and South America, African
countries such as South Africa and Asian countries such as Indonesia and the so-called ‘socialist’
concept of ownership that existed in Eastern Europe and the former Soviet Union and still exists
in countries such as China and Cuba. But the law of property also affects directly the history of
the division and transfer of property. The concept of ownership recognised in continental Europe
is unitary and part of a codified list of absolute rights. As such, it contrasts with the Anglo-American approach, which is the product of literally centuries of case law and is based on
ownership fragmented at various levels. Each of these two approaches has its own merits, and it
is not possible to say that one is better than the other. The dilemmas to which this gives rise in
the course of research designed to bring about a single European property law are obvious. The ideological differences have clearly diminished in importance, although they have
certainly not disappeared. By contrast, the conceptual differences within Western property law
have, if anything, increased. Questions that arise in this connection include whether the
fragmented ownership known to Anglo-American law – with its own specific approach to the
relationship between the law of property and the law of obligations(43) – can be fitted into
continental European law and whether, as a consequence of the creation of a European internal
market, a uniform law on security rights is possible. Other issues that certainly need our
consideration go beyond the distinction between common law and civil law and concern matters
such as whether rights of ownership can be claimed in relation to information and if so by whom.
An example is information possessed by an employer about an employee (or vice versa) or by an
insurer about an insured (for example DNA data), and another involves the information that is
transmitted in the free (or not so free?) space of the Internet. Let me now apply the foregoing to the relationship between common law and civil law.
Do the differences that exist between them obstruct the conduct of research that focuses on the
development of a European law of property? How can worthwhile comparative research be
carried out in practice in the field of property law? Suppose that one takes the former question as
a research theme: Do the legal systems of the Member States of the European Union (or possibly
of the European Economic Area) provide sufficient common ground on which to base a
‘European’ law of property? First of all, I should say that this question – like so many others
relating to European private law – is couched in terms that are far too general and should
therefore be subdivided, at least for the time being, into separate questions. Only by a process of
answering the subquestions will it become clear what the more general questions are and how
they can best be approached. To expect an answer in the short term to the general question I have
just formulated would be asking the impossible of a researcher (or even a team of researchers), if
only because of the overwhelming quantity of material that would have to be studied. In saying
this I would certainly not wish to suggest that studies of this kind have no value. However, the
answers they yield will tend to be of a provisional and exploratory nature rather than definitive.
The subject matter is simply too complex to be able to answer once and for all questions relating
to the basic principles of the law of property. If there were a real desire to use the results of a
comparative-law study to draft, say, a European directive, I believe it would be better to start by
ascertaining in what areas there is a need for a European law of property and then design the
study accordingly. One area in which such a need is perceived is the law on security rights. This
is true of security both in relation to movables and rights of action and in relation to registered
property. Given the increasing volume of commerce within the European Union, including the
financial services provided by the banks, there is a danger that it will become a matter of chance
what law governs, say, the security provided by a buyer to a seller. In such a situation, it is
worthwhile ascertaining whether the law on security rights in the various Member States can be
coordinated in such a way that the business community is no longer obliged to spend time and
money seeking advice on the question of what law governs a relationship and ascertaining the
nature of the applicable law. The study could be narrowed a stage further by confining it to the
law on security rights in relation to movables and rights of action, disregarding security rights
relating to registered property. Within the framework of such a narrowed study, more general
questions could be raised. Take, for example, the English law on security rights relating to
immovables. This is so closely related to the English law of real property that it would be
necessary to consider whether our concept of an ‘absolute right’ is not so closely tied up with our
law of hypothec that there is no common ground with English law (which is based on the
concepts of estate and tenure under common law and equity and has no fixed number of absolute
rights). To answer this question, a comparative lawyer must not only make a detailed study of the
legal systems in force but also consider both the direction in which Europe is to evolve (as a
federation or as an ‘Europe des Nations’) and how these differences came about. I am therefore
convinced that a historical comparative-law approach would be a good opening, certainly in the
field of European property law.(44) This type of study will ultimately show whether it would be
feasible, for example, to develop a European law on security rights in the area of registered
property. I should like to mention here two approaches that I would certainly not like to see adopted
because in my view they are too rigid and would therefore tend to obscure rather than shed light
on the developments. The first is that when studies are carried out in the field of European private
law, there should be no a priori assumption that its development is a given owing to the
unification of the European internal market. Enthusiasm for the development of European private
law – an enthusiasm that I fully share – must not close our eyes to the differences that exist in
practice. For example, the conclusion that there is, for the time being, no sufficient common basis
for any form of unification in a particular area of law may be perfectly justifiable. To this extent
Legrand is right when he warns that a European civil code may prove to be a Procrustean bed for
the various legal systems within the European Union. There must be scope to conclude that the
systems differ so greatly that substantive unification is impossible and that the solution must be
sought in the realm of private international law. Second, such a study should not be based on the
a priori assumption that a kind of hypothetical market of legal rules exists from which the one
that will ultimately serve as the European legal rule can be chosen. In this approach legal rules
(and sometimes even legal systems) are viewed as alternatives capable of being assessed in legal
practice in terms of their economic efficiency and hence their desirability as a solution. Allowing
judges and arbitrators to experiment with the rules found in the legal systems of the Member
States of the European Union in order to determine which are the most efficient may possibly be
an interesting idea as an abstract theoretical model, but will, I am firmly convinced, find no
support among comparative lawyers.(45) The result would, after all, be a large degree of legal
uncertainty, precisely the situation to which the advocates of a European private law usually wish
to put an end. It should also be realised that conducting experiments by reference to this kind of
model based on American law and economics theories in the countries of Central and Eastern
Europe that have requested membership of the European Union may also have a disastrous effect
on their economies and hence gravely jeopardise their political stability. I would not wish to
suggest that experimentation is pointless, merely that it should occur not at the beginning but at
the end of the study and be confined to a limited area of law in a socially and economically stable
situation. The dilemmas that confront comparative lawyers should be resolved by means of choices that are
adequate: that is to say, the choices should be sound, but need not necessarily be described as the
only correct ones. In view of the enormous quantity of material to be studied by comparative
lawyers it is sufficient if they observe certain minimum requirements in their legal analysis and
try, above all, to solve their problems adequately. This is one of the insights I have obtained
through the study of postmodernism. Another insight concerns the following. Questions regarding the comparative-law method
as such often lead unfortunately to ‘all or nothing’ reactions: either comparative lawyers treat the
questions so seriously that they no longer get around to undertaking – or dare to undertake –
practical comparative studies, or they view the questions as so alien to the practical world that it
is better to let them well alone. I have tried to adopt a middle course. Essentially, this means that
comparative lawyers should not only expressly observe various substantive standards when
undertaking comparative analysis but should also explain their procedure. Above all – and this is
what I mean by ‘adequate comparative legal analysis’ – the thought processes involved in the
comparisons should be guided by what Chiba has termed – in his book Legal Pluralism: Toward
a General Theory through Japanese Legal Culture – a ‘balanced spirit of comparison’.(46) Mr Rector Magnificus, highly honoured members of the audience, An academic is duty bound to ensure – or try to ensure – that his thinking is ahead of his time.
Sometimes this can be very lonely work. No one else has, in my view, expressed this with such
feeling as the German poet Rainer Maria Rilke is his poem ‘Vorgefühl’, in which he portrays
himself as a flag moving in streams of air:(47)
Fortunately, of course, universities still have a teaching remit as well as a research function. And
teaching is the opposite of lonely work. I should like at this point to express my sincere thanks and gratitude to all those (administrators
and others) who have had the confidence in me that has led to my appointment. I am thinking in
particular of the Executive Board, the Faculty of Law and the Private Law Department. I can
assure you that I have regarded the co-operation with you all in the past year as extremely
pleasant and stimulating and I am convinced that this collaboration will become even more
intense in the future. I should also like to thank my two supervisors, Deelen and Vranken. For it
was they who kept a close watch on me as I advanced towards my first test of academic
competence. And, last but not least, my wife Trix deserves to be mentioned here. Lady and gentleman students, On one of my journeys to Eastern Europe I attended a lecture given by my travelling companion.
Finding himself teaching students confronted for the first time with the complexity of West
European commercial law, he endeavoured to reassure them and give them courage by saying,
‘Be creative! Think what you never thought before and think about what you thought you should
never think about before!’ A sentence which in itself gives food for thought. This is the essence
of every good study and learning method, which I too try to apply. It requires the courage to
think for oneself, but at the same time to be receptive to the ideas of others. I am firmly
convinced that this method of learning – a method geared to communication and interaction –
produces knowledge that you will regard as valuable even after completion of your law studies. Thank you. Notes 1. Inaugural lecture held on 25 September 1998 at Maastricht University. This is a slightly revised version of the original Dutch text. English translation by Peter Kell, LL.B., Solicitor. 2. M (LL) (Tilburg University), Dr. (Tilburg University); Professor of Civil Law and European Private Law, Maastricht University; Editor-in-Chief Electronic Journal of Comparative Law. 3. In this connection, see for example J.F. Holleman (ed.), Van Vollenhoven on Indonesian Adat Law: Selections from Het adatrecht van Nederlandsch-Indië, Volume I, 1918; Volume II, 1931 (The Hague: Martinus Nijhoff, 1981), in particular the introductory chapters. Cf. also M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial laws (Oxford: Clarendon Press, 1975) and A. Huxley, ‘Golden Yoke, Silken Text’ (book review), 106 Yale L.J. (1997) 1885-1950, especially p. 1923 et seq. Reference may also be made here to the inaugural lecture of A.A.G. Peters, Recht en samenleving in Japan [Law and society in Japan] (Arnhem: Gouda Quint, 1993). 4. D. Kokkini-Iatridou et al., Een inleiding tot het rechtsvergelijkende onderzoek [An introduction to comparative-law research] (Deventer: Kluwer, 1988). 5. Ibid., p. 7. 6. Ibid., p. 11 et seq. 7. K. Zweigert and H. Kötz, Einführung in die Rechtsvergleichung (Tübingen: J.C.B. Mohr (Paul Siebeck), 1996). 8. Ibid., pp. 32 and 33. 9. Ibid., p. 39. 10. Ibid., p. 45. 11. See also H. Kötz, ‘Abschied von der Rechtskreiselehre?’ 6 Z Eu P (1998), 493-505, p. 504, where he warns against an ‘allzu absolut gesetztes Funktionalitätsprinzip’. 12. Zweigert and Kötz, Einführung, p. 39. 13. C.E.C. Jansen, Towards a European Building Contract Law. Defects Liability: A Comparative Analysis of English, German, French, Dutch and Belgian Law (Deventer: W.E.J. Tjeenk Willink, 1998). 14. Ibid., pp. 15-16. In his dissertation, Jansen develops a view of building law which amounts essentially (and this in fact enables him to develop his own autonomous terminology) to the concept that it is a separate and autonomous area of law. It is hard to follow him in his attempt to create a European terminology for building law, because this autonomous approach to building law is not shared by many people. In the ultimate analysis, European building law cannot be viewed separately from other European private law. 15. In this connection, see also the functional analysis of trusts by H. Hansmann and U. Mattei in their article ‘The Functions of Trust Law: A Comparative Legal and Economic Analysis’, 73 N.Y.U. L. Rev. (1998), 434-479. On page 439 they introduce, instead of the terms ‘settlor’, ‘trustee’ and ‘beneficiary’, the neutral terms (which they call ‘generic labels’) ‘transferor’, ‘manager’ and ‘recipient’ in order to be able to trace functional equivalents of trust in continental European systems. What strikes me is that the neutral terms basically merge seamlessly with the Anglo-American terminology, but that at the same time an equivalent triangular relationship can be found only with difficulty in other legal systems by means of this fact-oriented method. The argument thus culminates in a proposal to introduce the concept of trust (in particular the private trust) in the continental European systems, especially in order to enable enterprises to split their capital and use each part separately as security for certain creditors. In this connection, see also C.J.P. van Laer, ‘The Applicability of Comparative Concepts’, 2(2) EJCL (August 1998), http://www.ejcl.org/22/art22-1.html and M. van Hoecke and M. Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law, 47 ICLQ (1998), 495-536, p. 534. 16. See, inter alia, E. Jayme, ‘Identité culturelle et intégration: Le Droit international privé postmoderne’, Cours général de droit international privé, in: Recueil des Cours: Collected courses of the Hague Academy of International Law 1995, Tome 251 de la collection (The Hague/Boston/London: Martinus Nijhoff, 1996); reference may also be made to various writings of P. Legrand (for further references see the following footnotes); G. Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (New York/London: New York University Press, 1995); G. Minda, ‘One Hundred Years of Modern Legal Thought: From Langdell and Holmes to Posner and Schlag’, 28 Ind. L. Rev. (1995), 353-390; D.E. Litowitz, Postmodern Philosophy and Law (Lawrence: University Press of Kansas, 1997); Huxley, ‘Golden Yoke’, p. 1923 et seq. 17. Cf. Minda, One Hundred Years of Modern Legal Thought, p. 384, where he indicates that a person’s identity can be established only in relation to others. Presumably Minda here refers to the other people in the direct physical or intellectual environment of that person. Pondering this for a moment I have come to the rather surprising conclusion that some years ago I evidently wrote a postmodern dissertation by analysing contract law from the angle of the concept of legal relationship (see J.H.M. van Erp, Contract als rechtsbetrekking: Een rechtsvergelijkende studie [Contract as a form of legal relationship: A comparative study] (Zwolle: W.E.J. Tjeenk Willink, 1990). If I understand it correctly, it is in any event very postmodern to float this idea and then pass on with a smile. 18. If postmodernism were indeed to consist solely in the proposition that history is approaching its end, I could understand why Wertheim believes that postmodernism is a completely nonsensical concept. See: ‘De dingen die voorbij gaan, Interview with Professor W.F. Wertheim’, NJB (1998), 1297-1304, p. 1304. The recent events in Russia show that ideological differences certainly have not disappeared and are not likely to do so in the near future either. However, postmodernism goes much further and deeper than this polemical proposition suggests. I would refer to the attention that is paid to questions concerning intercultural comparative law and the call to respect non-Western cultures. It seems to me, therefore, that Wertheim has perhaps been rather hasty in adopting a negative position, particularly bearing in mind his call to continue paying attention to the situation in the Third World. 19. C.A. van Peursen, Na het postmodernisme: Van metafysica tot filosofisch surrealisme
[After postmodernism: From metaphysics to philosophical surrealism] (Kampen: Kok
Agora, 1994), p. 17 et seq.; J.-F. Lyotard, Het postmoderne weten: Een verslag [The
postmodern condition: A report on knowledge], with an introduction by D. Veerman and
a brief political afterword by W. van Reijen (Kampen: Kok Agora, 1996). For a first
introduction, see also L. Cahoone (ed.), From Modernism to Postmodernism: An
Anthology (Oxford: Blackwell Publishers, 1996). 20. Minda, One Hundred Years of Modern Legal Thought, p. 385. 21. In XLIII Riv. Dir. Civ. (1997), 813-829. Professor Jayme sent me the German text of his speech, for which I am much indebted to him. See also his Multicultural Society and Private Law: German Experiences (Rome: Centro di studi e ricerche di diritto comparato e straniero, 1999; Saggi, conferenze e seminari, 33). 22. In the Italian version, p. 818. 23. Cours général, p. 36. 24. Cf. also E. Jayme, ‘Internationales Privatrecht und postmoderne Kultur’, 38 ZfRV (1997), 230-236. 25. Jayme, ‘Internationales Privatrecht’, p. 235. 26. Ibid., p. 186. 27. Ibid., p. 252. 28. Published in 62 RabelsZ (1998), 314-324. 29. Ibid., p. 317. 30. Published in RIDC (1996), 779-812, p. 805. 31. Legrand, ‘Sens et non-sens’, p. 811. 32. See in particular ‘Against a European Civil Code’, 60 Mod. L. Rev. (1997), 44-63. Cf. also the various contributions to a conference on the feasibility of developing a European civil code, hosted by the Ministry of Justice of the Netherlands, which were published in 5 ERPL (1997), 455-547. 33. As regards the concept of legal culture, see also L.M. Friedman, ‘The Concept of Self in Legal Culture, 38 Clev. St. L. Rev. (1990), 517-534; ibid., ‘American Legal Culture: The Last Thirty-Five Years’, 35 St. Louis U. L.J. (1991), 529-537. 34. Conversely, it is also not the case that a cultural anthropologist, economist, sociologist or philosopher with a legal interest thereby qualifies as a lawyer. The law is – to put it in postmodernist terms – an own narrative of reality. In this respect see D. Patterson, Law and Truth (New York/Oxford: Oxford University Press, 1996), especially chapter 8, Postmodern jurisprudence. Compare also the review of this book by M.A. Livingston, ‘Postmodernism Meets Practical Reason’, 107 Yale L.J. (1998), 1125-1149. In their previously quoted article ‘Legal Cultures, Legal Paradigms and Legal Doctrines’ (p. 532 et seq.), Van Hoecke and Warrington therefore only defend the view that intercultural comparative law (e.g. a comparison of Western and Asian law) makes different demands on a comparative lawyer than intracultural comparative law (e.g. a comparison within the cultural circle of Western law). 35. Kötz, ‘Abschied von der Rechtskreiselehre?’, p. 496. 36. With regard to comparable questions that judges may encounter when applying foreign law, see P.M.M. Mostermans, De processuele behandeling van het conflictenrecht [Conflict of laws as a procedural problem] (Zwolle: W.E.J. Tjeenk Willink, 1996), in particular p. 67 et seq. For a case in which for once these problems did not arise, and the judge was able to learn extensively about the content of foreign law, I would refer to the judgment of The Hague Court of Appeal, 28 April 1978, NJ 1981, 16. By taking cognizance of the law of security rights of the American State of Georgia, the Court of Appeal was able to fit the American ‘Article 9 security interest’ into Dutch law by searching for an equivalent. 37. Inaugural lecture at the Batavia College of Law, Netherlands Indies (as it was then called; now Jakarta, Indonesia), 1929, included in: H.R. Hoetink, Rechtsgeleerde opstellen [Legal essays], ed. J.A. Ankum, H.J.N. Boskamp and J.L.P. Cahen (Alphen a/d Rijn: H.D. Tjeenk Willink, 1982), 21-61. See, inter alia, p. 22, where he poses the following question: ‘. . . Of en in hoeverre is de kennis van land en volk voorwaarde voor het verstaan van vreemd recht, welke soort van kennis is daartoe de meest aangewezene en laat zich de aard van het verband tusschen die kennis der omgeving en het verstaan van het recht wellicht iets nader bepalen?’ [Is a knowledge of the country and people essential in order to comprehend foreign law, what kind of knowledge is the most appropriate for this purpose and is it perhaps possible to define more closely the nature of the link between this knowledge of the setting and the comprehension of the law?’ 38. Hoetink, ‘Over het verstaan van vreemd recht’ [On comprehending foreign law], p. 34. As regards productive misunderstanding, see also his ‘Historische Rechtsbeschouwing’ [Historical legal observation], Diesrede [lecture commemorating the foundation of the university], University of Amsterdam, 1949, included in Rechtsgeleerde opstellen, 244-273, p. 266 et seq. 39. As regards interpretation, particularly legal interpretation, see more generally: J.H. Wieland, Hermeneutiek, recht, wetenschap [Hermeneutics, law, science], Essays arranged and introduced by G. van Roermund (Zwolle: W.E.J. Tjeenk Willink, 1982; Serie rechtsfilosofie en rechtstheorie, no. 2); H.C.F. Schoordijk, ‘Oordelen en vooroordelen’ [Judging and prejudging], Diesrede [lecture commemorating the foundation of the university], 1972, in: Verspreid werk [Selected essays] (Deventer: Kluwer, 1991), 279-322. 40. Asser-Scholten, Algemeen deel 1974 (Zwolle: W.E.J. Tjeenk Willink, 1974), p. 129 et seq. 41. Asser-Vranken, Algemeen deel 1995 (Zwolle: W.E.J. Tjeenk Willink, 1995), p. 1 et seq. and p. 141 et seq. For a classic study relating to a process-oriented analysis of law, see H.M. Hart, Jr. and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (tentative edition, 1958), published with a foreword by W.N. Eskridge, Jr. and Ph.P. Prickey (Westbury, NY: The Foundation Press, 1994). 42. Zweigert and Kötz, Einführung, p. 32. 43. On this subject see, inter alia, R. Goode, Commercial Law in the Next Millennium (London: Sweet & Maxwell, 1998; The Hamlyn Lectures, 49th series), p. 59 et seq. 44. For remarks in a similar vein, see W. Simshäuser, ‘Zur Bedeutung des römischen Rechts in einer europäischen Rechtsordnung’, in: H. Schlösser, Bürgerliches Gesetzbuch 1896-1996 (Karlsruhe: C.F. Müller, 1997; Augsburger Rechtsstudien, 27), 97-132, in particular p. 122 et seq. This approach was advocated in the Netherlands even before the Second World War by H. Winkel is his public lecture De methode der rechtsvergelijking [The method of comparative law] (The Hague: Gebr. Belinfante, 1936); as regards the law of property, see in particular p. 19 et seq. The historical comparative-law approach will certainly ensure that we become more cautious in drawing conclusions about the future of European private law on the basis of what we think happened in the past. Cf. for example P.L. Nève, ‘(Europäisches) Ius Commune und (nationales) Gemeines Recht: Verwechslung von Begriffen’, in: G. Köbler and H. Nehlsen (eds.), Wirkungen europäischer Rechtskultur. Festschrift für Karl Kroeschell zum 70. Geburtstag (Munich: C.H. Beck’sche Verlagsbuchhandlung, 1997), 871-884. 45. In this connection, see the debate between J.M. Smits, ‘Een Europees privaatrecht als gemengd rechtsstelsel, of: naar een ius commune door vrij verkeer van rechtsregels’ [A European private law as a mixed legal system, or: towards a ius commune through the freedom of movement of legal rules], NJB (1998), 61-66, and O.A. Haazen, ‘Comparative law and economics en het Europees privaatrecht als ongemengd rechtsstelsel’ [Comparative law and economics and European private law as an unmixed legal system], NJB (1998), 1227-1233, as well as between O.A. Haazen and H.O. Kerkmeester and R.W. Holzhauer in NJB (1998), 1873-1874. Cf. also P.H. Brietzke, ‘New Wrinkles in Law . . . and Economics’, 32 Val. U. L. Rev. (1997), 105-137; U. Mattei, Comparative Law and Economics (Ann Arbor: The University of Michigan Press, 1997); N. Mercuro and S.G. Medema, Economics and the Law: From Posner to Post-Modernism (Princeton: Princeton University Press, 1997); M. Bussani and U. Mattei, ‘The Common Core Approach to European Private Law, 3 Colum. J. Eur. L. (1997/8), 339-354. 46. M. Chiba, Legal Pluralism: Toward a General Theory through Japanese Legal Culture (Tokyo: Tokai University Press, 1989), p. 55. It is, in my opinion, immaterial for this purpose whether comparative law is taught as a separate subject or as part of other subjects. Indeed, I would regard the use of the two methods in parallel as the best solution. In this connection see M. Reimann, ‘The End of Comparative Law as an Autonomous Subject’, 11 Tul. Eur. & Civ. L.F. (1996), 49-72. 47. Rainer Maria Rilke, Gedichte (Aus den Jahren 1902 bis 1917), Taschenbuch-Ausgabe der 1931 als Privatdruck erschienenen Edition der Handschrift Rainer Maria Rilkes, illustriert von Max Slevogt (Frankfurt am Main: Insel Verlag, 1983), p. 179. |
