Comparative law as a core subject

Geoffrey Samuel Professor of Law. Kent Law School

This puper argues that comparative law should become a core subject in all law degree programmes. By ‘core’ is meant a progression subject that will take the student through u three-year programme emphasising not what the law is but how one should think like a lawyer. Comparative law is ideal for this task because it emphasises two fundamental questions: what is ‘comparison’? And what is ‘law’.? The paper demonstrates, first, how the rule model of legal knowledge is inadequate when it comes to comparing law and, second, how the techniques of comparison can reveal this inadequacy. These demonstrations are primarily founded upon a distinction, explained in the paper, between symbolic and non-symbolic knowledge.

The thesis to be presented in this paper is a simple one: that comparative law should become a core subject in the law degree cumculum.’ However, to talk of comparative law as a ‘core’ subject is to venture into the field of legal education and, these days, given the increasing number of specialists in this area, this is a dangerous thing to do.2 Indeed, the title suggests that the thesis itself may well be passed its ‘sell-by-date’, although it should be pointed out at once that the choice of the word ‘core’ is quite deliberate. All the same, legal education is a subject worthy of further investigation since, quite evidently, it is central to a question that will be at the heart this paper. Just what is it to have legal kn~wledge?~ The second aspect to be embraced is the notion of comparative law itself. This, again, is a problematic topic, but for rather different reasons. Comparative law as both a substantive subject and a conceptual category, is extremely difficult to defend. For it can so easily appear either as a subject with little substance - not much more than a method according to some,J a ‘voyage’ according to others5 - or as a cover for something quite different, such as an introduction to French or German

1. This is an updated and much revised text of an inaugural lecture delivered on 4 June 1999 at the University of Kent. The author would like to thank the anonymous referees whose observations and criticisms of the original lecture itself were instrumental in the production of this revised version. Many thanks, also, to Bernard Rudden, Kevin Gray, John Bell and Pierre Legrand for their support over the years. 2. For a more detailed, but still introductory, survey with references see G Samuel and S Millns ‘L‘enseignement du droit en Angletern’ ( 1998) XXII-76 Revue de la Recherche Juridique 1527. 3. That this question remains a major problem for legal education, is not in doubt: see S Toddington ‘The Emperor’s New Skills: The Academy, The profession and the Idea of legal Education’, in P Birks (ed) What Are Law Schools For? (Oxford: Oxforrd University Press, 1996) p 69. 4. For a criticism of the comparative-law-as-method thesis see P Legrand ‘Comparative Legal Studies and Commitment to Theory’ ( 1995) 58 MLR 262. 5. See D Farber ‘The Hermeneutic Tourist: Statutory Interpretation in Comparative Perspective’ ( 1 996) 8 1 Comell LR 5 13.

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law.' Yet in implying that comparison of laws is possible, it tantalisingly raises, in its own way, the question of what is 'law'. What is to be compared?

This paper will thus be a reflection upon the role of comparative law in the formulation of an epistemology of law. That is to say, it will look at how comparative law can be used as a means of informing ourselves about the nature of legal knowledge. This, clearly, impacts upon legal education in general, since if it turns out that we are unsure about what actually constitutes legal knowledge, then evidently we cannot be confident with regard to the current curriculum and its aims and objectives.

I

One might start with some basic information about legal education. On the continent the discipline of law and the notion of a university developed hand-in- hand, and so legal education was for a long period closely tied up with the rediscovery of Roman law in the eleventh century.' For many centuries, the study of law meant the study of Roman law - in particular the 'case law' of the Digest and the structure and contents of the student textbooks -and thus legal education became associated with the categories and concepts to be found in the ancient sources. Actual Roman law could not, of course, change, but this did not mean that movement in legal education was static; indeed quite the opposite. The history of law teaching in continental Europe is largely a history of methods, and while these methods were to change - sometimes quite radically, as, for example, with the Humanists - the older methods were never fully eclipsed. In particular, the work of the medieval Roman jurists remains of fundamental importance to the understanding of modern legal methods.' Scholasticism was responsible for all the groundwork in respect of definitions, classifications and distinctions, and it is even argued that the two-part plan which lies at the heart of contemporary legal education in France is a result of the dialectical approach, together with the emphasis on lists of dichotomies, developed by the glossa tor^.^ These methods became ever more refined in a rational (systems) sense and by the nineteenth century, as Peter Stein has pointed out, the distinction between Roman law and legal science was difficult, if not impossible, to discern.lo The spirit of Roman legal thinking is, in consequence, to be found embedded in the structure of all the great European civil c0des.l' One might reflect, even at this stage, whether this great European tradition, with its emphasis on legal methodology, on thinking like a

6. See eg R Youngs English, French and German Comparative Law (London: Cavendish Press, 1998). 7. See generally P Stein Roman Law in European History (Cambridge: Cambridge University Press, 1999). 8. See generally H J Berman Law and Revolution: The Formation of the Western Legal Tradition (Cambridge Mass: Harvard University Press, 1983). 9. J-M Carbasse Introduction hisrorique au droit (Paris: Presses Universitaires de France, 1998) pp 160- 16 I . 10. P Stein Legal Evolution: The Story ofan Idea (Cambridge: Cambridge University Press, 1980) p 123. 11. H F Jolowicz Roman Foundations ofModern h w (Oxford: Oxford University Press, 1957) pp 6 1-8 1 ; P Stein Legal Institutions: The Development of Dispute Settlement (London: Buttenvorths, 1984) pp 125-129.

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lawyer,12 should ever be ignored by any university, either side of the Channel, claiming to impart knowledge of law.

In stark contrast, law faculties teaching the common law in England are a new phenomenon. It would be an exaggeration to say there were no law faculties before the twentieth century, but not much of one. Law degrees (on English law at least) are a modern creation in England and, in fact, it was only 30 years ago that the idea of ‘core’, now ‘foundational’, subjects was firmly established for any graduate who wished to become a barrister or solicitor.” Now, one might note here how contract and tort have more recently become ‘obligations’ and that this is an import from continental Europe, indeed from Roman law.I4 But before attributing this import to the influence of comparative lawyers, it has to be appreciated that the category is largely meaningless in the context of English law. For the whole idea of a law of obligations is that it represents a mass of legal chains (vincula iuris) flowing between all the individual persons in society and that these chains are to be sharply differentiated from those that flow between persons and things.I5 Owing, in other words, is to be distinguished from owning. Whatever the merits and demerits of this great Roman social and economic structure, it can be fairly safely said that English lawyers have given it about the same amount of respect as they give continental metaphysics in genera1.I6 Great care must be taken, therefore, before concluding that the so-called foundational subjects rest on any serious legal educational theory.” Moreover, great care must also be exercised in respect of the relationship between legal education and comparative law. Merely importing individual categories and concepts without giving these imports their proper consideration in relation, first, to the wider conceptual systematics in which they were developed and, second, to their cultural contexts is to transgress the basic principles not just of comparative law, but, equally, of legal education.’R

Perhaps this lack of theoretical sophistication might be irrelevant were it not for a further set of requirements. In addition to these foundational subjects, a law graduate is expected to have ‘a basic knowledge of the sources of that law, and how it is made and developed’. Further, they must acquire ‘the ability to demonstrate knowledge and understanding of a wide range of legal concepts, values, principles and rules of English law to explain the relationship between them in a number of particular areas’. Finally, law graduates must have ‘the

12. Berman, n 8 above. 13. Report of the Committee on Legal Education (The Ormrod Report), Cmnd 4595,197 1. 14. On which see Stein, n 11 above, pp 184-208. 15. P Ourliac and J de Malafosse Hisroire du Droitprive‘: 2 /Les Biens (Paris: Presses Universitaires de France, 2nd edn, 197 1 ) pp 47-59. 16. The present author himself is guilty, perhaps, of encouraging the use of the ‘law of obligations’ in the context of English law: see G Samuel Sourcebook on Obligations and Legal Remedies (London: Cavendish, 2nd edn, 2000); G Samuel Law of Obligations and Legal Remedies (London: Cavendish, 2nd edn, 2001). By way of defence, these works exhibit a scepticism both about the importation of the notion of a law of obligations and about the attempts at producing a highly rationalised law of restitution based on the Roman principle of unjust enrichment. 17. For a gloomy assessment see P Birks ‘The Academic and the Practitioner’ (1998) 18 LS 397. 18. P Legrand Le d r d compare‘ (Paris: Presses Universitaires de France, 1999).

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intellectual and practical skills needed to research and analyse the law’.” It is not clear from the Joint Statement issued by the professions whether this knowledge and skills requirement is to be obtained just from the teaching of the foundational subjects. The temptation is to state the obvious and to say that the idea is ridiculous. Yet, as the professions are quite happy that a non-law graduate need do only a conversion course consisting of the foundational subjects, it would seem to follow that there is a belief that the knowledge skills and foundational subjects are educationally interrelated. This is something that the Professor of Civil Law at Oxford has, understandably, derided.20

If it is to be argued that comparative law is to be a ‘core’ subject, then it is evident that something needs to be said about it as a subject. This is by no means easy, for while one might reach some kind of agreement about the contents of, say, a Contract or Property Law course, comparative law is rather different. The comparatist has, according to Kahn-Freund, ‘the gift of freedom’; the teacher of comparative law undertakes only ‘to teach and to develop some legal subjects by comparing a number of legal systems’.” Much, then, will depend on the expertise and background of each teacher.22 In fact, as we shall see, this vagueness is part of an ongoing problem with comparative law, so serious that according to one comparatist it is threatening the viability of the subject.23 Indeed, the very term ‘comparative law’ has, not unreasonably, been attacked as m e a n i n g l e ~ s . ~ ~

Nevertheless, if subjects are in part defined by available textbooks (not that it is being suggested that they should be), then according to one competent general work available to English students, by Zweigert and K o t ~ , ~ ~ the paradigm comparative law course might look like this. It will be divided into at least two parts. Part I will have chapters devoted to the concept, functions, methods and history of comparative law, before going on to divide legal systems into family groupings, each group’s main characteristics being described and loosely analysed. Part I1 might be devoted to a ‘comparison’ of the law of obligations between several European systems. The term ‘comparison’ is put in quotes here because in truth the emphasis is often more on description than comparison. The authors divide their chapters into sections, each section describing the approach to the obligational topic under review from the viewpoint of a specific legal system. Only in the last section is there a comparative overview. Of course, there will be

19. A Joint Statement on Qualifiing Law Degrees issued by the Law Society and the General Council of the Bar (sixth draft) (1999). 20. See eg P Birks ‘Adjudication and Interpretation in the Common Law: A Century of Change’ (1994) 14 LS 156, 171-173. 21. 0 Kahn-Freund ‘Comparative Law as an Academic Subject’ (1966) 82 LQR 40,41. 22. Note Geoffrey Wilson’s perceptive observations: G Wilson ‘English Legal Scholarship’ (1987) 50 MLR 818, 832-833. The author would like to record his debt to this stimulating and insightful essay. 23. B Markesinis ‘Comparative Law - A Subject in Search of an Audience’ (1990) 53 MLR I , 21. 24. See eg A Watson Legal transplants (Edinburgh: Scottish Academic Press, 1974) pp 1-2. However, Professor Watson goes on to offer his own suggestions as to the meaning of Comparative Law. 25. K Zweigert and H Kotz An Introduction to Comparative Law (Oxford: Oxford University Press, 3rd edn, 1998, trans T Weir).

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many courses called comparative law that do not conform to this textbook model; others will no doubt focus on quite different areas of law than the law of obligations. But several definitional points of reference ought to be asserted. First, a distinction ought to be made between ‘comparative law’ courses and courses which introduce students to foreign legal systems. These latter courses are not - or ought not to be -comparative law modules since the essence is not to compare but to describe. It may be that before one can compare one must be initiated into a second legal system, but this need does not of itself confer upon the initiation course the title of ‘comparative law’. Secondly, it is arguable, now, thanks to an improvement - in quantity if not always quality - in the literature about comparative law itself, and to what has been labelled the harmonisation debate,26 that there is enough doctrinal material to provide a basis for a whole course. The paradox, however, is that a student on a comparative law course may never get to compare any laws, yet merely putting rules side-by-side without any carefully thought through epistemological or pedagogical purpose can be a meaningless exercise.

Thirdly, it should be evident from this brief description that there is something unsatisfactory about the whole idea of ‘comparative law’, at least in its traditional manifestation. It should be of no surprise, therefore, that it has come in for criticism. Professor Markesinis, for example, has indicated in one of his public lectures that comparatists need to rethink their subject quite radically or face students voting with their feet.27 However, the most devastating attack has come from Pierre Legrand, now a Professor in France, who used his own inaugural lecture to a Chair in Tilburg, to assert that much of what passes for scholarship in comparative legal studies is ‘banal and distracted’. It is quite simply ‘the work of indifferent intellectuals’.28 These are forceful, yet pertinent and insightful, criticisms. However, it is not the purpose of this paper to examine comparative law from this position; rather the purpose is to build constructively on one of the great weaknesses of comparative law; its own title. This brings one to a fourth definitional point. While one would not wish to dispute that the term ‘comparative law’ is fairly meaningless, it does have the great advantage of drawing attention to two rather fundamental questions. What is comparison? And, more centrally, what is law? If one is to embark upon comparison, we ought to know what we are doing and what exactly we are comparing.

It would not be unreasonable to talk of comparison as a skill. Indeed, one leading comparatist makes the point that the ability to compare is such a central legal skill that it is the hallmark of all lawyer^.'^ For one is continually playing off one argument against another, one thesis against another thesis, one judgment against another judgment. If this is right, then of course we are back into the arena of legal education. The professions might not require any skills ability beyond English law (according to the Joint Statement), but explaining the relationship between legal concepts, values, principles and rules would

26. B de Witte ‘The Convergence Debate’ (1996) 3 Maastricht J European &Comparative Law 105. 27. Markesinis, n 23 above. 28. P Legrand ‘Comparatists-&Law and the Contrarian Challenge’ (Inaugural Lecture, University of Tilburg, 1995). 29. R Sacco in P Legrand ‘Questions B Rodolfo Sacco’ [ 19951 Revue Intemationale de Droit ComparC 943,952-953.

Comparative law as a core subject 449

seemingly require an ability to compare one with another. Rights must be contrasted with duties (or say interests), preserving life with relieving intense pain, freedom of speech with protection of privacy. Yet all this begs the much more fundamental question: what is one actually comparing? In other words, when lawyers talk of comparative law, what actually is meant by ‘law’ in this context? What do comparative lawyers compare? What, in short, is legal kn~wledge?~”

The fact that comparatists until recently have failed properly to address this question is, it must be said, one of the shortcomings that stimulated Professor Legrand into launching his attack. And even if one cannot fully agree with all of the views expressed by this leading comparatist, one can at least take the opportunity of joining forces so as to confront what he has described as ‘the vacuity of comparative theory’. Professor Legrand’s scepticism with respect to what is called the rule model of legal knowledge ought to be a starting point for a new comparative law.3’ This rule-model thesis is based on the assumption that legal knowledge consists of having knowledge of rules. By rules is meant normative propositions that can be reduced to language and, while such linguistic propositions find their most perfect expression in legislation, they are not confined to this source. Principles, written or unwritten, are equally to be seen as rules in as much as they are normative propositions operating at a high level of abstraction.

So embedded is this belief in parts of Europe, that the institutions of some legal systems - most notably the Cour de cussation in France - are entirely premised on the assumption that law is about rules?* Students must thus learn at an early stage the elementary logical structure of the syllogism since the rule acts as a major premise and the facts as the minor premise. The judge, ideally, is thejuge automate.33 Legal solutions are a matter of inference. Admittedly, this mos geometricus mentality is very much on the wane in the continental world, the emphasis now shifting to interpretation and argumentation.M Nevertheless the belief in rules has not changed. Thus Richard Susskind, writing about legal theory and Artificial Intelligence, asserts: ‘Before proceeding . . . one fundamental assumption should be articulated; that rules do and should play a central role in legal science, legal knowledge representation, and in legal reas~ning.”~ He later adds, that, anyway, there are just no alternatives. For ‘while current legal theory, being canied out now within a rule- based paradigm . . ., offers guidance for rule based modelling, it has little to say

30. On this whole question of legal epistemolo$y the author must register his debt to Professor Atias’ work. See in particular C Atias Episthnologie juridique (Pans: Presses Universitaires de France, 1985) and Episrthologie du droit (Paris: Presses Universitaires de France, 1994). 31. See eg P Legrand ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht J European & Comparative Law 1 1 I. 32. R Perrot Znsritutions judiciaires (Paris: Monchrestien, 9th edn, 2000) para 215. 33. Carbasse, n 9 above, pp 304-305. 34. Zweigert and Kotz, n 25 above, p 264. 35. R Susskind Experr Sysrems in Law (Oxford: Oxford University Press, 1987) pp 78-79.

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directly about conceptual m ~ d e l l i n g ’ . ~ ~ If one turns to the textbooks on jurisprudence (legal theory and legal philosophy), Susskind’s point is soon conf i ied . There are no serious challenges to the rule model.

As an epistemological model, it is to be noted that the rule thesis singularly has failed when it comes to the production of an Artificial Intelligence programme in law. There is no computer program that thinks like a lawyer. It is this failure which ought to stimulate comparative lawyers to take their subject to the very ‘core’ of legal studies. It should be a subject around which all the other legal categories revolve, and it should be a course which continues in one form or another through the three years of the law degree. Now this kind of assertion is easy to make and, in fairness, just as easy to attack, since it begs the very question that it seemingly tries to answer. What are the needs of students? Yet it has to be asked if the present law degree, whereby a majority students learn seven foundational subjects together with a number of other optional courses which, like the foundational subjects, often have as their content mainly ‘black-letter’ rules, is a good educational programme. Certainly one educationalist has recently criticised law degrees as teaching students only ‘the law’ rather than getting them ‘to reason like a lawyer’ .37 And, whatever the merits or dements of this criticism, it is by no means clear why a law programme that can leave aside the thoughts and works of Ulpian, Bartolus, Cujas, Pothier, Leibniz, Blackstone, Savigny, Ullmann and many other major figures in European legal thought is considered adequate.38 Imagine, by way of comparison, a film studies programme - including programmes aimed at practical film-making - that ignored Mumau, Dreyer, Lang, Ford, Ophuls, Hitchcock and the other great directors; such a programme is, in truth, unimaginable. Why, then, are legal educationalists prepared to accept a programme of studies in which students will have examined mainly the thoughts and writings of lawyers such as Lord Justices Lawton, Donaldson and Widgery, together with Lords Hailsham, Diplock, Wilbeforce and so on? Of course, this is not to imply that the United Kingdom law schools are devoid of staff with any ambition to go beyond the cases, statutes and legal positivism; in fact the opposite is true. But the point that does need to be made is that the question concerning the needs of law students has by no means been answered or, perhaps, even adequately debated. One role for the comparatist, therefore, is to ask awkward questions, not just about the definition and content of his or her subject, but also about the scope and content of law degrees themselves. However, as Professor Legrand and others have asserted, this approach is likely to win few friends.” This may be inevitable if the comparatist is to work only in ‘the meta-language of comparison which requires her always to operate beyond the language of any national law’.40 Yet one could change this. It should be possible for the meta-

36. Ibid, at p 154. 37. Peter Levin, Letter, Times Higher Education Supplement, 3 November 2000, p 17. 38. For an introduction to the sheer richness of this legal tradition see: J Walter Jones Historical Introduction to the Theory o f h w (Oxford: Oxford University Press, 1940); DR Kelley The Human Measure: Social Thought in the Western Legal tradition (Cambridge Mass: Harvard, 1990); F WieackerA History ofPrivate Law in Europe (Oxford: Oxford University Press, 1995, trans T Weir). 39. Legrand, n 28 above, p 48, quoting T Weir ‘Friendships in the Law’ (1991-92) 6/7 Tulane Civil Law Forum at 61. 40. P Legrand ‘How to Compare Now’ (1996) 16 LS 232,241.

Comparative law as a core subject 451

language beyond national law to become the core of legal studies, and the comparatist might make more long-term friends, perhaps, ironically by making more short-term enemies. Comparative law as a core course throughout the three years could be one means of giving a law programme a new, let us say third, dimension that could expand parameters without ever attracting the criticisms from the professions that it is not ‘law’.

This is a point that will need to be developed in much more depth than is possible in a single paper. For the moment another, more immediate point, needs to be stressed: when one talks of comparative law in this respect, one is not alluding to the kind of comparative law to be found in Zweigert and Kotz. This is not because such a work is valueless; it is an excellent (and very elegant) text for anyone wishing to study the law of obligations. Moreover, the two German authors do actually make a contribution to the theory of comparative law in offering their own theoretical perspective both of functionalism, with regard to comparative methodology, and of style, with respect to the distinguishing features of legal families. The point to be made here is that one is talking about a rather different comparative law to the one to be found in the textbooks. One is talking of a comparative law that draws, inter alia, on the scientific, and social scientific, tradition of Western thinking, that is to say a comparative law whose primary function is to provide rigorous representations of the real without ever confusing these representations with society itself. The comparisons are thus not between a representation of a real factual situation and the real situation itself; the comparisons for the comparatist are always between competing and alternative representations of this supposed reality.

However, before turning to this alternative comparative law, something must be said about the cognitive premise upon which it is based. This premise is that there are two kinds of knowledge. There is on the one hand symbolic knowledge; that is, knowledge that can be reduced to symbols, in particular figures or words.41 The rule thesis of law is a thesis based upon symbolic knowledge. Legal knowledge is a matter of normative propositions reduced to written rules and the communication of this knowledge is thus through texts. When it comes to legal skills and legal reasoning, law as symbolic knowledge is a matter of manipulating the symbols themselves. Sometimes this can be done through the syllogism. For example, if there is a rule prohibiting the carrying of luggage, into a park, over 50 kg, then anyone whose luggage registers over this figure will be in breach of the rule. If the rule is based on a non-mathematical concept, then the manipulation will take the form of interpretation. If there is a rule prohibiting vehicles in the park, then whether a child’s bicycle breaches the rule will depend on how one interprets the word ‘vehicle’. Legal method within this paradigm is, at its softest, interpretative and, at its hardest, that is to say legal propositions as axioms, it is inferential and ideally logical. (One might mention in passing that this difference between interpretation and inference is an essential one for the comparatist keen to understand the traditional mentality of the codes.)

41. G-G Granger Langages et kppistktnologie (Paris: Klincksieck, 1979) pp 103-1 17.

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In contrast, there is non-symbolic knowledge. This is knowledge that is multi- dimensional and cannot be reduced - at least not without a major loss of dimension - to symbols. It is a form of knowledge consisting ‘not of symbols but of images, of emotional states, of conceptual structures, of prototype models often untranslatable by a linguistic expression’.j? It is, as two cognitive scientists have put it, a question of ‘knowing how to see’.‘’ It is a matter of perceiving ‘objects and events in the manner prescribed by the discipline’, and thus legal knowledge will not just be a matter of committing ‘to memory the propositions in a textbook’ since this ‘does not itself generate mastery of a science’.” Indeed, many propositions are ultimately dependent upon the ability to see events and objects in a particular way, and thus one can talk of theoy-laden perception ‘in that what we see depends upon what we This non-symbolic knowledge is, arguably, as equally important as symbolic knowledge in the history of scientific thinking in the West. More immediately, however, it is central to the comparatist’s skill and, consequently, it will form one of the main foundations for the thesis that comparative law should be core subject.

But can the distinction between symbolic and non-symbolic knowledge be justified with regard to legal knowledge? One might start with the case of a manufacturer of Christmas cards who wanted to protect his factory against thieves and a r s ~ n i s t s . ~ The manufacturer contracted with a well-known security company for the latter to send a patrolman to its premises every night, but, unfortunately, the patrolman himself turned out to be an arsonist and he succeeded in burning down the whole of the Christmas card factory. The law report tells us that the factory owner sued the security company for damages and the latter raised a number of defences against this claim. How might these events be viewed from the position of non-symbolic knowledge? There are a number of possible images that could be presented as ‘video’ or ‘television clips’. The first could be of a man leaving prison and subsequently searching for work; he attends a number of interviews and is finally offered a job with a security company. His fascination with fire soon becomes evident and on the premises of one factory, late one night, he starts a small fire and we see it increasingly getting out of control. The image fades with the man going back through the prison gates. A second image might show two men negotiating in a boardroom room, arguing and haggling, but finally agreeing and shaking hands. A third image could be a montage of buildings and boats on fire: houses are ablaze; factories and warehouses are gutted with fire; burning shops are surrounded by policemen and firemen; an injured person is rushed, on a stretcher, out of an exploding outbuilding. There is even the image of a new swimming pool, not yet finished, bathed in flames; and between these clips of burning buildings, one might also see a motor launch drifting ablaze, an exploding ship and a stricken and burning supertanker busily discharging her cargo into the sea. These images - perhaps on television - end with a caption inviting viewers to take out insurance, for this set of images is a commercial break.

42. J Delacour Le cerveau et I’esprit (Paris: Presses Universitaires de France, 1995) p 35. 43. W Bechtel and A Abrahamsen Connectionism and the Mind (Oxford: Basil Blackwell, 199 1 ) p 159. And see now M-L Izorche, Propositions rnCthodolgiques pour la comparaison [2001] RIDC 289. 44. Ibid, pp 161, 162. 45. Ibid, p 159. 46. Photo Productions Ltd v Securicor [ 19781 3 All ER 146 (CA); [ 19801 AC 827 (HL).

Comparative law as a core subject 453

If one returns to the written text, the law report states that the Court of Appeal gave judgment for the Christmas card manufacturer. The security company had promised to protect the factory, but instead of doing what they promised to do, they did, according to Lord Denning MR, quite the opposite. In the House of Lords this decision was reversed. The contract contained a clause excluding liability for loss suffered by the customer through theft, fire or other cause and given that the security company undertook to provide a service of periodic visits at a very modest charge it was, said the Law lords, not unreasonable for the factory owners to carry the risk.

Now, both these decisions, however contrasting, are capable of being analysed in terms of rules. We might say that the Court of Appeal applied a proposition called the fundamental breach rule whereby a contractor who behaves in such a way as to do quite the opposite from that which he promised is not permitted to rely upon an exclusion Equally, in the House of Lords, we might say that this fundamental breach rule was declared non-existent in law and that the principle of freedom of contract was applied. The clause formed part of a freely negotiated contract and i t was for the courts to uphold these voluntary obligations. But can it be said that the rules were the source of these decisions? Let us return to the video images. In the Court of Appeal the image used by the judges was that of two people in a boardroom negotiating a deal and finally promising to provide something. The security company ‘were employed to safeguard the premises against damage by fire’; but instead ‘of doing so, they deliberately burnt it down’.48 They ‘were not doing what they contracted to do’: they ‘were doing the complete opposite’. Shaw LJ adopted a similar image of two contracting persons. ‘Where there is not merely a simple failure in performance but a breach repugnant to and destructive of the whole object and purpose of a contract’, inquired the appeal judge, ‘can recourse be had by the party at fault to any contractual provision which provides for exemption from limitation of liability?’49 More strikingly, Waller LJ declared: ‘If [the security company] were an individual making routine patrols of the premises himself and if he had then set the premises on fire it is, in my view, clear beyond doubt that no clause could protect him from liability.’ And he continued: ‘I say this because in my view to do something which is the exact contrary of that which you have contracted to do cannot be described as performing the contract in any way.’’’

This reasoning is, surely, most convincing. If someone promises in return for payment to perform a service and then does quite the opposite to that which he promised, it is difficult to imagine this situation as anything other than a gross act of bad faith. After all, the whole essence of contract is that one’s word is one’s bond. How, then, could the House of Lords have arrived at quite a different decision? If one studies the speeches it soon becomes evident that a different ‘video image’ is playing. The Law Lords are much less interested in an image of two people contracting - an image which leads immediately to thoughts about behaviour and promise - and more interested in an image that

47. For a recent comparative discussion see R Sefton-Green La notion d’obligution fondamentale: Comparuison franco-angluise (Paris: LGDJ, 2000). 48. [ 19781 3 All ER at 152 per Lord Denning MR. 49. Ibid at 155. 50. Ibid at 157.

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focuses only upon a building. Their video is the blazing factory. Such an image, as disturbing as it might be, is not one of a rare occurrence: buildings burn down quite frequently and that is the reason why owners are urged to insure them. If one thus poses a question as to who should carry the risk of destruction by fire, it is a perfectly reasonable response to say that it is the owner. He is the one that should insure his p r ~ p e r t y . ~ ’ Of course, the security company could be said to have caused the fire; but equally it could be said that arson is just one risk amongst many. And the moment one starts talking about insurance and risk, the whole pattern changes. The emphasis moves off the relationship between people and onto the risk concerning the thing (building). The central image in the House of Lords’ ‘video’ is a factory - that is to say a prop - and not, as in the Court of Appeal’s film, the actors.52 This difference of image gives rise to quite different questions. In the Court of Appeal, the question was who was to blame; in the House of Lords, in contrast, the question was who should take the risk of a building catching fire. This is why the Law Lords were more interested in posing questions about how much the security company were charging for their services.” Did these charges reflect the risk of their customers’ buildings or were they calculated on the assumption that their clients had their own policies of insurance?

The images give us an additional viewpoint that, quite deliberately and for historical reasons, is missing from the text of the law report. In seeing the strihng images of the insurance advert, the viewer is reminded that the pattern of contractual relationships as envisaged in the Court of Appeal’s ‘video’ is misleading. For the owners do not on the whole look to the person who caused their damage or loss for compensation. Very often they turn simply to their insurance company. Thus the parties to the arsonist action were not in fact the Christmas card manufacturer and the security company; only their names were in the legal arena. The true parties to the legal action were, probably, two insurance companies masquerading as the two named parties.54 They were, evidently, linked to each party through a contract of insurance and they were linked to the factory building in as much as this was, or claimed as being, the specified object of insurance. But they were linked to each other in no behavioural or causal way; the issue for them was simply one of risk.

The insurance companies were able to do this thanks to a structural device known as subrogation. This is a device by which one piece of property is substituted for another item of property (real subrogation) or one person is

51. In fact, Lord Denning M R himself makes this point in a different case: Lamb v Camden London Borough Council [1981] QB 625 at 638. 52. Cf M Villey Le droir romain (Paris: Presses Universitaires de France, 1949) p 45. 53. ‘Securicor undertook to provide a service of periodical visits for a very modest charge . . . It did not agree to provide equipment. It would have no knowledge of the value of Photo Productions’ factory; that and the efficacy of their fire precautions, would be known to Photo Productions. In these circumstances nobody could consider it unreasonable that as between these two equal parties the risk assumed by Securicor should be a modest one, and that Photo Productions should carry the substantial risk of damage or destruction. . .’: per Lord Wilberforce [ 19801 AC at 846. And see also Lord Salmon: ‘I think that any businessman entering into this contract could have had no doubt as to the real meaning of this clause and would have made his insurance arrangements accordingly’: at 852. 54. As indeed Lord Denning MR has normally been the first to recognise: see in particular Morris v Ford Motor Co Lfd [1973] 1 QB 792.

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substituted for another person (personal subrogation). Personal subrogation has been described as one person stepping into the shoes of another.55 This device of subrogation should form a conceptual focal point for all first-year law students since it demonstrates, perhaps better than any other device, the structural and abstract nature of law.56 D steals from C a bag of diamonds which he then sells on the black market and uses the proceeds to purchase an expensive car. If D has few other assets the law may well take the view that C is now the owner of the car; the vehicle, in other words, is substituted - subrogated - to the to the bag of diamonds. Similarly, if C pays off D’s mortgage debt with the bank, it may be that C will be subrogated to the bank’s position as mortgagee and will thus take over the charge on D’s h o ~ s e . ~ ’ C has, in other words, stepped into the shoes of the bank. In a contract of insurance the law has long taken the view that once an insurance company pays the assured for a lost or destroyed thing, the insurance company is entitled to take over - to be subrogated - to any legal rights the assured might have against others with respect to the loss of the thing. In the arsonist case, the insurance company of the Christmas card manufacturer had probably indemnified him and was now using the manufacturer’s contractual relationship with the security company effectively to get back this payment. In turn, the security company’s liability insurance company took over the handling of the case since they would be the person ultimately liable to pay.

At this point one might well be asking what any of this has to do with comparative law. One immediate response is to say that two legal decisions have been compared and thus one has been very much indulging in the methods of comparative law. This is perhaps a remark that might not best please the traditional comparatist, and perhaps this is not the place to defend it. Nevertheless, what can be defended as central to comparative law is the idea of constructing patterns using abstract notions of persons, things and the relations that flow between them. Subrogation is central to this thesis, and not just because it is found in English and in continental legal systems, but because it illustrates exactly how legal knowledge functions. In order to demonstrate this point it might be helpful, if not to indulge in comparative legal studies, at least to switch systems and to return to the system said to be at the foundation of the legal systems of our continental partners.

Subrogation as a distinct set of rules is not easy to find in Roman law, yet it is everywhere. It is so Roman that simply to ask if it is a Roman device would be to manifest a remarkable lack of knowledge about the contribution Roman law has made to the modem Western world. Take any simple example from the rich case law of the Digest. A pruner allows branches to fall onto a public path and as a result a passer-by is injured.58 If the pruner did not take precautions to warn such passers-by about the danger, then he would be liable to an action for

55. See eg Lord Denning MR in Morris v Ford Motor Co [ 19731 1 QB 792,798. 56. See further G Samuel Law of Obligations and Legal Remedies (London: Cavendish, 2nd edn, 2001) pp 165-174. 57. But cf Owen v Tare [ 19751 2 All ER 129. 58. D.9.2.31.

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damages. What if a scaffolder allows objects to drop onto a public highway, or what if a person throws a javelin into a field where people often cross and a javelin runs through a slave boy? There is, of course, liability, always assuming fault on the part of the person who lets slip the object. The point to be made is that what the Romans were establishing here is a model of person (persona) and thing (res) where the actual person -the pruner, scaffolder, farmer, sailor - and thing - branches, javelin, wagon or whatever - are interchangeable. This is ‘subrogation’ at its most familiar, if in many ways less visible, form.

But the Romans went much further. In recognising that persona and res were abstract and empty ‘institutions’ -that is to say of variable content - forming part of a structural model of society, they were able to ‘create’ new kinds of persons and things. And this resulted in a formal recognition that the legal system was not just reactive, but proactive. The structural system itself could create new kinds of wealth -debts, for example, became a form of property to be placed alongside horses, chariots and chalice^.^' And this new wealth could in turn be controlled by new kinds of corporate ‘persons’. The Church ultimately (in post- Roman times) became a personaficta with its own patrimonium, that is to say with its own totality of assets and liabilities conceived of as a formal whole, or ‘thing’ (res), in itself. Like the ‘person’, a patrimony remains constant and indestructible; only its contents - money, items of property, debts, credits - come and go (like the modern bank account). This tension between a formal whole, which remained constant, and its parts, which do not, is a recurring theme in the Roman texts. A college of judges is appointed to look into some matter: during the investigation some of the judges retire while others are appointed to replace them. Is it always the same college? The Roman jurist’s answer is stark: even if all the judges were to be replaced, it would still be the same college, just as a ship, all of whose planks are replaced over time, remains the same ship.M’ Here is the essence of legal knowledge. It is not the absorption of a mass of rules any more than the image of a boat is a mass of linguistic propositions and mathematical formulae. It is a model of society whose function is not to describe the empirical social world, but to construct, deconstruct and reconstruct it in a way whereby legal results are able to flow from the manipulation of the model itself.h’ To borrow an analogy from a leading French philosopher of science, the scientist is creating a virtual reality. Facts are virtual facts.62

Hopefully the educational value of this legal ‘science’ is evident. What might be less evident is how any of this relates to comparative law. Several points can be emphasised. First, the comparatist can investigate the extent to which this structural - that is to say non-symbolic - form which is the legacy of Roman law is be found in other rule systems. To what extent do traditional sets of customary rules hide an abstract model of the social world that they represent? Is it a model that focuses around ‘things’, around ‘persons’, around ‘actions’, or

59. (3.2.14. 60. D.5.1.76. 61. One can talk of a constructivist epistemology: V Petev ‘Virtualit6 et construction de la rialit6 sociale et juridique’ (1999) 43 Archives de philosophie du droit 27. And see more generally J-L Le Moigne Les &pisr&mo/ogies construcrivisres (Paris: Presses Universitaires de France, 1995). 62. G-G Granger La science er les sciences (Paris: Presses Universitaires de France, 2nd edn, 1995) p 49.

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what? The comparative lawyer, in other words, assumes a role similar to the comparative architect or engineer who compares designs from different cultures. How does the culture express itself in the design? Or, how might the design, particularly if it is imported or imposed, affect the existing culture?

Secondly, the shape and pattern of these models often reveals a fundamental relationship between the manifest legal rules and the hidden ideological patterns that shape particular cultures. In turn, differences between structures can facilitate the development of alternative rule and ideology models. Let us return by way of illustration to one of the ‘images’ discussed earlier. An injured woman is carried from a building that is burning as a result of an explosion. It is a munitions factory and the woman is a government inspector who was in the process of carrying out an inspection for the Ministry of Supply. She sues for damages but is unable to prove fault because the explosion is unexplained; it is just one of those things. The House of Lords explains that, being unable to prove fault, she is not entitled to compensation from the factory owners.63 After all, she is a ‘visitor’ and they are ‘occupiers’ and one would not want to make an occupier have to pay damages each time a visitor is injured through nobody’s fault. This would be to place too great a burden on householders.@ The ‘image’ here is one of an ordinary private householder inviting a neighbour in for tea.

All this no doubt seems rational enough. But what if one changes the image? What if, as in France, one does not think in terms of ‘visitors’ and ‘occupiers’, but in terms of the distribution of benefits and burdens on different types of ‘persons’, one of which is the ‘state’. In times of war, munitions factories are essential for the public good and public interest, but they are dangerous places and there is always an increased statistical risk of injury. Upon whom should be this risk? If it is put onto the shoulders of an individual government inspector, then she, as a member of a class and as an individual, will be carrying a burden in respect of a benefit from which the whole community profits. This is considered by public lawyers in France to be unjust and against the Republican tradition. It is not right that the individual should have to carry a greater burden than the others who profit out of the activity. The burden is, accordingly, redistributed onto the shoulders of the whole community by the public law courts awarding damages to people like the injured factory inspector irrespective of whether she can prove fault.65 A similar result would follow if, say, a citizen’s house were unfortunately destroyed by fire during a raid by police to recapture a dangerous criminal holed up in the house.“ Why should the individual householder have to bear the risk arising from an act which benefits the community as a whole? If one returns to England, one response to this question might be to say because the individual householder should have insured his house against fire. Individualism versus communitarianism, as reflected not just in a general ideological context but in a specific pattern of legal models. One pattern puts

63. Read v JLyons & Co [I9471 AC 156. 64. ‘In substance the appellant was on the respondents’ premises in performance of a statutory duty incumbent on her as a citizen, but it is, I think, obvious that this circumstance did not alter the nature of the duty which the respondents owed to her as a person who with their consent was present on their premises on business.’ Per Lord Uthwatt at 184. 65. L Neville Brown and J S Bell French Administrative Law (Oxford: Oxford University Press, 5th edn, 1998) p 194. 66. J A Jolowicz ‘Public Interest and Private Damage’ [I9851 CLJ 370.

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the emphasis on the structural relationship between the individual and the state, with the latter institution being seen as representing the community. Individual interest is thus defined via reference to the community interest, and these two interests are then tested in terms of the ‘holistic’ principle of equality. The other pattern leaves out of consideration the state as an institution representing the community interest; what is in play are simply two individualised persons with their own private interests to protect. This latter pattern is modelled on a methodological individualism where ‘holistic’ ideas such as the community have no structural relevance and thus no interest greater than the individual interest is capable of emerging. In turn there is, at the level of symbolic knowledge, no principle of equality. The rule-theorist might, of course, explain the difference between the French and English approaches entirely in terms of the existence or non-existence of the principle of equality. Yet the comparatist will, or should, be aware that it is just as easy to structure the facts to suit a theory as it is to adjust a theory to suit the

A third point of contact between comparative law and legal education is in the understanding of what it is to have knowledge of law. To be a comparative lawyer one needs not just to compare, but to be fully aware of what one is comparing. Of course, one can compare rules and it would be idle to imply that it is no part of a comparatist’s work to do just this. But rules are about words and, as the accomplished Dutch legal translator Louise Rayar once pointed out, one cannot learn about another legal system just by studying its vocabulary.68 Professor Legrand makes the same point: rules, he says, are ‘a bare string of words’.h9 The point that rules are not the totality of legal knowledge has, hopefully, already been adequately demonstrated, but one can appeal to a final example. Take art 9 of the Code Civil which states that everyone has the right to privacy in respect of their private life. This ‘right’ is not a patrimonial right like the right, say, not to be injured by a dangerous product, which is covered now in art 1386. It attaches to the persona itself and not to any res. This is achieved not through a string of words proposing this, but simply through the systematics of the code itself; the privacy article is placed in the section on the law of persons, while the product liability provision is in the law of things. It is the pattern of the system which differentiates the two kinds of right, something, incidentally, that English law, lacking a formal structure, cannot easily do.

The brief comments and examples outlined in this paper cannot, of course, amount to more than a mere suggestion. Arguing that comparative law should be a core subject raises many larger questions about the structure of law degrees. Does one just slip the subject in amongst the traditional first, second and third-year courses or does one rethink the whole programme? Perhaps the time

67. B Valade ‘De l’,explication dans les sciences sociales: holisme et individualisme’ in J-M Berthelot (ed) Epistkmologie des sciences sociales (Paris: Presses Universitaires de France, 2001) pp 401-402. 68. L Rayar ‘Translating Legal Texts: A Methodology’, Euroforum Conference, The Netherlands, April 1993, p 5. 69. Legrand, n 3 1 above, at 12 1.

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has come for a radical rethink, but this must be the subject of another paper. For the moment, let us by way of conclusion put the emphasis on two aspects of comparative law which ought to be seen as fundamental in the training of students to think like lawyers. Comparative law as a core subject - that is to say a central progression subject which follows through from the beginning to the end of the programme - should emphasise the methodology of comparison and the quest for the nature of legal knowledge. And so, with regard to this, one might return to the comparatist’s need for friends. The comparative lawyer may well have to strive to function in a zone that is beyond that of national systems. But national systems, all of them, are constructions aimed at modelling social reality, that is to say facts. As we have said, these representations of fact must never be confused with reality itself, for scientific knowledge is about constructing abstract schemes or models of these facts. The task of the comparatist is, therefore, to compare these different models or representations.’” But to do this, the facts, as represented by differing conceptual models, must be rigorously interrogated. They must be bullied, tom apart, reconstituted and reanimated because they are always, to an extent, false witnesses. They are deliberately lying and yet their lies can be exposed only by the comparatist constructing a different scheme of lies. This means, in his or her quest for friends, the comparatist must assume that colleagues are equally dishonest in their portrayal of fact. The comparatist needs friends so that he or she can denounce them and their accounts of social reality. In his or her quest for friends, the comparatist should thus become an inquisitor of utter ruthlessness, a bully, a man or woman in a quest for a truth that he or she knows does not and cannot exist.” National lawyers, then, are the solid foundations of the law degree, while the comparatist is a little different. The comparatist must see events not for what they seemingly are, but for how they might be deconstructed and reconstructed in a mind that has gone that one step beyond. And, of course, when it comes to friends this is not so promising. Turning this into an ‘image’ - as well as returning to the film studies analogy - it might easily seem that the comparatist will end up as isolated as the motel owner in Hitchcock’s Psycho. The comparatist is at one and the same time an insider and an outsider. Yet one can hope that not all is lost when it comes to friends, for, as the perceptive film critic and academic Raymond Durgnat said of Norman Bates, ‘we tend to like him whatever his faults’.72

70. See further G Samuel ‘Comparative Law and Jurisprudence’ (1998) 47 ICLQ 8 17. 71. Cf H Barreau L’kpistkmologie (Paris: Presses Universitaires de France, 1990) pp 53-54. 72. R Durgnat Films and Feelings (London: Faber & Faber, 1967) p 21 1.