—Jaakko Husa, Professor, Legal Culture and Legal Linguistics, University of Lapland, Finland
Long gone are the days when comparative law was ruled by private law scholars only. After the collapse of socialism we have experienced a global expansion of constitutionalism, judicial review, and human rights. Comparative constitutional law now has much more vigor than it used to have. Europeanization and globalization have had a great impact on the field..
Still, comparative constitutional law remains a bit distant from the concerns of general comparative law. Sometimes the “splendid scholarly isolation” may turn out to be a blessing, for it emancipates us from paradigmatic shackles of Eurocentric private law oriented comparativism (e.g. legal families, functionalism etc.). Yet, general legal comparativists and constitutional comparativists could learn more from each other. One example concerns the so-called legal origins theory which has become influential yet controversial theory; it has stirred debate about the relationship between law and the economy.
R. La Porta, F. Lopez-de-Silanes and A. Shleifer have argued that there is evidence which shows a link between the legal system and economic development (e.g. Law and Finance, J. Pol. Econ. 1998). Basically, they claim that the historical origin of a legal system determines what kind of legal rules there are, and that these rules have strong influences on economic outcomes. As such the idea sounds perfectly plausible. This argument relies on legal history: differences in legal cultural “initial design choices” (common law or civil law) persist even today.
Legal origins theory has also argued that common law works better because it provides a better framework for financial development and economic growth than does the civil law. This argument did not stop here but went further, associating civil law with “bad government.” It claimed that transplantation of civil law rules could have adverse consequences for the security of property rights and, thus, potentially lead to the possibility of dictatorship.
But what does all this have to do with constitutional comparativism? Is it not merely a debate for comparative economists and general comparative lawyers? If one accepts the idea of splendid isolation of constitutional comparativism this may be the case. However, if one believes that all sorts of comparative approaches to law can learn from each other, then the situation is different. From this perspective, comparative constitutional law can help to refute the logic of legal origins theory.
Now, legal origins theory claims that legal rules play an important role in the economy. This is probably so. However, the theory also suggests that one can transplant rules from other legal cultures in the manner defined in the 1970s by A. Watson in his seminal book Legal Transplants. In other words, if one imports certain set of rules from one system to another the recipient system will be changed because of these imported rules. For anyone familiar with comparative constitutional law this scheme appears problematic as to its basic assumptions about functioning of law, since it ignores the crucial role of constitutional culture.
Constitutional culture refers to the cognitive long-term social or mental structure which makes it possible for politicians, civil servants, judges and lawyers to grasp and to respect the constitutional environment in which they exist. Without this culture, which can also be defined as constitutionalism, the written rules (no matter how “good” or “bad”) are virtually meaningless. Comparative constitutional law reminds us that a formal set of rules is not enough; what makes constitutional systems work is the constitutional culture. So, one may have an old or even antiquated written Constitution but still have a nicely functioning democracy, as in Norway where the Constitution dates back to 1814. In other words, constitutional transplantation is never enough if other factors of constitutionalism are missing or dysfunctional. This is consistent with critics of legal origins theory like D. Berkowitz, K. Pistor and J-F. Richard in their work on the Transplant Effect. Legal borrowing works best when it takes place either from a country with a similar legal heritage or is accompanied by considerable investments in legal information and training before adoption. Domestic actors should ensure their familiarity with the imported law in order to be able to make an informed decision concerning the adaptation of law to local conditions.
The legal origin theory relies heavily on the distinction between common law and civil law, which has been a classical taxonomy in general comparative law. However, in comparative constitutional law, the distinction between common law and civil law is not hugely significant. This is simple to understand because there is no clear taxonomy of constitutions divided into common law constitutions as opposed to civil law constitutions. Thus, what we have are “mixed constitutions”.
It is certainly true that comparative constitutional law differs in many ways from general comparative law. However, it should not be forgotten that even while there are differences, all sorts of comparative studies about law have similarities and they can learn from each other. Even while the scholarly development of comparative constitutional law into an independent academic field is a cause for celebration, constitutional comparativists should not ignore comparative private law.
In turn, of course, general comparative law may learn from constitutional comparativism. Splendid isolation may have its benefits but it has also downsides.
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