Comparative Law and Methodology Between Homogeneity and Complexity

This Special Issue is dedicated to the panel “Comparative Law and Methodology”, coordinated by Elena Ioriatti and Andrea Pradi within the 23rd edition of the International Round Table for the Semiotics of Law (Rome, 27–29 May), hosted in the splendid setting of the Pontifical Antonianum University and organized by prof. Mario Ricca (Roma III University, Rome).

Although approached through different viewpoints and subjects, the discussion undertaken in the panel was driven by the function of the comparative law methodology in a rapidly evolving social, economic and political context, where cultural and legal uniformity, dictated by the global model, clashes with the different cultural contexts in which it spreads and that challenge its effectiveness.

Nowadays, the relationship between legal rules and their effectiveness is undergoing a transformation, influenced not only by their juridical content, but also by the complex web of social relationships and cultural influences originated in the space in which norms are supposed to be applied. While the process of globalization tends to impose a single legal rule valid worldwide, the social complexity forces the law to dialogue in transnational, intercultural and multilingual contexts, requiring continuous and complex adjustments that often prove borderline.

Comparative law, indeed, is equipped to identify the objective rule and, consequently, the most consistent and systematic development for a specific given context: for instance, its capacity to deconstruct and re-construct a legal discourse beyond formalistic statements contributes to visualize the composition of complex environments, like those originating from the globalization of the law. Furthermore, comparative law is equipped with the right tools to read and interpret the social changes that globalization has brought with it.

At the beginning of the twentieth century at the time when comparative law started to be recognized as a scientific discipline, the space within which this science operated was well defined by the borders of nation states, which essentially dictated the framework of comparative legal analyses. At that time, comparative law methodology was predominantly characterized by a positivist approach, considering only the formal sources of the law in its analysis and emphasizing statutory and literal interpretation. This approach was constrained by the limited scope of individual legal systems and by narrow analysis of the law as a static social experience. In Europe, a “contractive” comparison develops, putting an emphasis on differences rather than on similarities.^[1]

It was only by developing a broader conception of law as a cultural and dynamic factor that comparative law went over the positivistic approach and became interested in social reality. This happened thanks to the factual approach and the theory of legal formants, fundamental comparative law methods eleborated by Rudolph B. Schlesinger and Rodolfo Sacco.^[2] The demolition of the unitary conception of the formal rule and the study of law as a dynamic factor resulting from the interaction of different legal formants has revealed the pluralistic nature of the different legal systems.^[3] The comparative methodology has thus made it possible to focus on the law in action, helping to provide the necessary tools to analyze legal changes, which necessarily underlining aspects like the transformation of legal systems due to the variation of the space-time coordinates.

The historic change occurred in the late twentieth century altered the landscape of legal studies by transcending borders, cultures, and legal traditions. Needless to say, the demise of the nation state’s importance and the rise of supranational legal and political space are real challenges and opportunities for comparative law, which have also led comparative legal methodology to adapt to this transformed environment.

In the realm of globalization comparative law assumes a dual role, that is both functional and critical in nature. On one hand, it facilitates the processes of harmonization by identifying commonalities and greasing convergence among legal systems. On the other hand, it plays a critical role in scrutinizing and dissecting the notion of a singular global legal rule thus identifying lines of juridical development that are more suitable and systematic with respect to the social context of reference.

One of the functional aspects of comparative law in the context of globalization, must be identified in its contribution to the harmonization of laws. As nations become more interconnected through trade, technology, and cultural exchange, there a growing need for coherence of the law is emerging. Comparative law tends to focus on similarities rather than differences among legal systems, providing a foundation for the development of common principles and unitary standards. This need for harmonization is particularly evident in areas where uniform rules and regulations could facilitate smoother trans-national exchange and the increase of the circulation of persons, goods, services and capital. A relevant example is the European Union, where comparative law was, and still is, a fundamental tool for legal integration, both for the Court of Justice of the European Union and the EU legislator.

This understanding is crucial when crafting legal frameworks that reflect the pluralistic nature of each legal tradition also considering its linguistic and cultural implications.

This idea has been the core of Caterina Bergomi’s contribution whose article aims to demonstrate how comparative methodology is relevant in the analysis and identification of the specific phenomenon of hybridization by looking at the multilingual European Union (EU) terminological and conceptual system, specifically in relation to autonomous concepts. The Author observes that, in the interpretation of directives and regulations, the Court of Justice of the European Union (CJEU) creates what is termed a “hybrid space,” that involves assimilating the specifics of national legal systems with the supranational level. The aim of Bergomi’s contribution is to underline the role of comparative law methodology in uncovering the meaning of the CJEU hybrid legal vocabulary and concepts.

Francesco Petrosino’s research is differently focusing on the technological space and on its language, analysing on whether the established rules for interpreting traditional private law contracts are applicable to smart legal contracts. Petrosinp emphasize the linguistic differences between the deterministic computer language of smart contracts and the more flexible natural language used in traditional contracts. The structural divergence in language codes is identified as a challenge, particularly due to the immutability of smart contracts, with potential consequences on contractual performance and enforcement. The research points out the limitations of the binary approach of smart contracts in accommodating broader legal standards, such as “good faith” and “force majeure” and claims the need to identify an efficient solution to harmonize the semantic contrast between traditional and smart contracts.

As underlined by Luca Pes’contribution, the functional role of comparative law goes beyond mere harmonization. It could serve as a bridge between different legal traditions, fostering mutual understanding and comprehension.

The diversity of legal systems across the globe reflects the rich tapestry of human experiences, values, and cultural backgrounds: in a global space in which homogenization is a constant concern, comparative law should encourage a nuanced understanding of legal pluralism, by recognizing that different societies may choose different paths to law. This perspective aims at preventing the erosion of cultural identities and legal traditions in the face of global pressures for standardization. This is basically the core of the Author’s contribution, addressing the representation of African law in comparative legal literature in order to offer a more nuanced and contextually rich understanding of African law beyond Western-centric perspectives. Pes criticizes the “stratigraphic approach” and the concept of legal pluralism, arguing that while the former is valuable for structurally studying African legal systems, it falls short in capturing the dynamic nature of legal relations and the agency of legal subjects. The article suggests that legal pluralism, which refers to the coexistence of multiple normative orders in all legal systems, has lost its specificity to post-colonial or African societies. Additionally, the author criticizes the dominance of normative and theoretical approaches in legal pluralism research, calling for a more balanced consideration of empirical observation of law in society. In the face of global pressures for standardization, comparative law acts as a counterforce by revealing the nuances of legal pluralism. This exploration not only unveils the richness of legal diversity but also identifies areas of divergence that resist the imposition of a uniform legal standard.

By visualizing the sectors of resistance to global uniformity, comparative law favors the identification of those elements within legal systems that resist assimilation into a globalized legal framework. This resistance may manifest in various forms, including cultural values embedded in legal norms, historical precedents influencing legal decisions, or social structures shaping legal institutions.

The inquiry conducted by the two connected articles by Andrea Pradi and Sara Hejazi aims at challenging the diffusion of a unique and simplified model of “property” that emerged in the global arena as the technological tool for transforming numerous common resources into commodities. Comparative law methodology explores the inherent complexity that is hidden inside any polysemic model, such as the right of property, by breaking down the illusory unity of legal concepts. Thorough an interdisciplinary approach it is pointed out that more collectively oriented alternative resource management models, are capable of addressing both the rights of people and natural resources as well. The research presents the case study of the Qanats water management system in Persia to illustrate an interesting institutional alternative in the use of a common resource. As a traditional pattern of collective Qanats reflects a specific “water culture” based on sharing and managing water resources as a common good and plays a crucial role in the identity and community of the region. They embodied a sense of belonging and a collective consciousness regarding the importance of balanced resource use for the community’s continuity. Despite their cultural significance, many Qanats in contemporary Iran are unused, contributing to the current water shortage. The research attributes this scarcity to the abandonment of the Qanat system, that is mainly related to the increasing privatization of water resources.

In conclusion, comparative law operates at the intersection of functionality and critique in the Era of globalization. It facilitates the harmonization of legal systems to enhance global cooperation while simultaneously challenging the notion of a uniform global legal rule. Despite being founded at the beginning of the last century, in a positivistic environment, nowadays comparative law has demonstrated to be able to keep the scene and decode the new forms of the current legal discourses; as noted by Husa, as a scientific method, comparative law has become more pluralistic and less black-letter law oriented than in the past.^[4]

As legal systems continue to interact and influence one another on a global scale, the dual role of comparative law remains indispensable in shaping a legal landscape that is both cooperative and respectful of diversity.