Tuesday, June 30, 2009

Disciplining Harmonization: Pablo Lerner on Common Principles of Comparative Law and the New Ius Commune

Pablo Lerner, of the Center of Law and Business (Ramat Gan, Israel), has recently published an article whose arguments are worth considering. Pablo Lerner, "The Relationship Between 'Common Principles', Comparative Law and the 'New Ius Commune', " (2008) 16 European Review of Private Law 6. The abstract suggests the thesis:
Harmonization blends the laws of various countries, enabling better trade and commercial practices; it occurs in a number of manners: through supranational agencies, conventions and treaties, soft law, and researchers. Comparative law is crucial to harmonization; it is not only a theoretical academic field, but rather a basis for creating world-wide legal solutions emphasizing collaboration and cooperation between the different legal systems. This article will focus on the process of ‘academic harmonization’, which has materialized via the enactment of common principles. The idea behind common principles is that harmonization can be achieved through formulating rules aimed as “common law” on an international or regional level. The fact that these common principles can be understood as comparative works should be examined. This article discusses the points of contact between the drafting of common principles and comparative law (i.e., language or methodological questions). While there is a different approach between comparative law and harmonization vis-à-vis common principles, there is a strong relationship between the two, and it is this relationship that allows the development of ‘the new ius commune’.
Lerner, supra, at 949. Lerner, of course, is not the first to suggest the protean nature of comparative law--as both substance and methodology. But Lerner adds an interesting twist, suggesting a methodological-substantive objective as both mediator between systems (the active agent of structural coupling, and as the source of values that shape the content of the communication. "While there is a different approach between comparative law and harmonization, there is a strong relationship between the two and it is this relationship that allows the development of ‘the new ius commune’." (Id. , 950). Lerner suggests, in a sense that the power of comparative law's methodological function as "translator" and "communicator" among systems also includes within it the power to shape the content of that communication--from communication. It suggests an active role in which communication produces a common language.

Lerner starts with a review of harmonization as a concept. It describes both an even and a political-jurisprudential-policy-power agenda. In the European Union, this sort of harmonization reflects both the diffusion of power within state and supra national public systems and the rise of non state repositories of governance power, all of which communicate with each other and interact within shifting hierarchies and limited power frameworks.
In Europe, harmonization is generally achieved through EU legislation, the European Court of Justice (ECJ) (through adjudication of relevant European issues), and as a by-product of the activities of the European Court of Human Rights (ECHR) (harmonization top-down). Additionally, think tanks and researchers in the field create harmonization projects in an attempt to influence legal dialogue, to create a unified legal culture, and to influence legislators and courts (harmonization top-down). (Lerner, id., 951).
This reflects a global phenomenum. See Larry Catá Backer, Of Somali Pirates, Global Corporations and the State: Governance Without Government, Government without a State and Military Power Law at the End of the Day, June 28, 2009.

Lerner considers the effects of top down versus bottom up harmonization. (Lerner, supra, at 952-957). He finds judicial harmonization useful but inadequate standing alone. "Thus harmonization achieved via transnational courts is at best fragmentary harmonization. The lack of success of the courts in harmonizing the law and the appeal of achieving a unified law has encouraged academics to adopt an active role in harmonization." (Id., at 954). Leave, it then, to the academics, to fill in the gaps--communicators among legal systems and, in synthesizing a common language, the progenitors of substantive change. And there is irony--Lerner suggests that a consequence of a leeriness among civil law academics of common law methodology is the production of a common law in civil law systems grounded in principle rather than in decision, and sourced form the academy rather than from the courts. "Academic harmonization has materialized via the enactment of common principles. The idea behind these principles is that this can be achieved through formulating the rules to be used as a ‘common law’ in a harmonized world or in a harmonized region." (Id., at 954). For this he points to the efforts of, for example, the Lando Comisison--the Commission on european contract law (chaired by prof. Ole LANDO) is the author of the Restatement called PRINCIPLES OF EUROPEAN CONTRACT LAW in the framework of the Resolutions of the European Parliament on the codification of private law. He notes the academic agitation for unification through codification. Lerner, supra, at 955. But he suggests that these efforts at unification or codification in the traditional state manner have not overtaken or replaced the use of a principles method for harmonization. The latter is more in accord with the softer touch of the European Union. It permits the indulgence of the appearance of difference (difference in form) while providing a similarity of result that evidences no difference in fact.

But the relationship between common principles, harmonization and comparative law (as a conventionally understood field) is not necessarily self evident. It is to the underlying substantive character of the ostensibly methodological praxis of comparative law that Lerner then turns. Lerner, supra, at 957-967. The focus, though, is clear: "The goal of the common principles is to achieve harmonization via comparison. In order to understand this idea, it is necessary to understand cardinal issues of comparative law: the use of one language as a basis for comparison, methodology, group work and individual endeavours, and the relationship between text and context." Id., at 957.

Lerner starts with a common language. Principles can be useful only if they can be communicated efficiently. Language is crucial. "The point is that, unlike comparative law, harmonization requires a lingua franca – or some linguas francas." (Id., at 958). Yet the essence of comparative law serves that purpose by providing translators who serve in lieu of a common language.
Translation woes and problems are a consequence of different concepts in language, not the inability to match a word from one language with a specific match from another. On the contrary, we should accept that translation, in itself, cannot solve the difficulty of understanding legal systems without knowing the theoretical background.48 Comparative research is necessary in order to truly understand other legal systems, enabling the closure of a gap that is not merely linguistic, but also conceptual. Understanding the role of language requires the prior comprehension that harmonization is not about enacting rules, but about developing a common legal culture. (Id., at 959).
Indeed, there is irony here. Implicit in the notion is Nietzsche's idea of the relationship of the priest to God and the community. See, Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 11 William & Mary Bill of Rights Journal 117(2003). This is certainly about power, and the assertion of power within the comparative law field, but is this really more about the disciplining of comparative law than about comparative law as a discipline?

The cultural barriers of language and the mediating role of comparison serves harmonization's quest for a common language in principle. But that common language first requires a common culture, that is a means of overcoming the conceptual differences inherent in language.
The role of similarities and differences in the harmonization process can be understood in the following manner: a) differences between legal systems should not be viewed as stumbling blocks on the road to harmonization, but rather points of contact; b) restatements of systems are based on similarities and constitute a foundation for a new comparison; and c) harmonization in a dynamic manner refers to legal systems that have the same rules although not exactly the same law. Lerner, supra, at 959.
For this purpose, comparative law can be harnessed, not as a neutral but as a positive actor in the construction of frameworks within which comparativists--now acolytes of harmonization through communication--may operate. "However, through the influence of harmonization, the trend in comparative law is also to focus on similarities among systems. This trend is also the result of the functional approach, which aims to reach a conceptual abstraction, while relegating differences among systems to legislative technicalities or to a matter of wording." Id. Privileging a certain framework within which comparison is directed tends to reinforce a project of harmonization that avoids the brutishness of unification and enhances the status of those in the business of comparison (now translation-transliteration). "Within the framework of harmonization, efficient solutions can be reached by eliminating gaps between systems and creating shared frameworks, thus saving time and litigation in cases that involve different countries. Just as one could argue for the necessity of competition, one could argue that simplifying and decreasing regulation." (Lerner, supra, at 960). As a consequence, differences between legal systems ought to be understood as points of contact, those points of contact produce a push to systematization of similarities and its differences form national law (from which these amalgamations are drawn), and the resulting production of harmonization does not impose homogeneity, "harmonization in a dynamic manner refers to legal systems that have the same rules, although not exactly the same law." (Id., at 961).

And thus Lerner takes comparative law and harmonization from principle to context--and that context suggests the harmonization on the model of European Union directives.
Having a single, unified text is not tantamount to having a unified interpretation in each country. The interaction between common principles and diversity jurisprudence should not be understood as being at odds with the question of harmonization, but rather, as the consequence of a legal system composed of different formats. This dichotomy, between the law and its interpretation, does not make unification obsolete. On the contrary, it forecasts that even in the ‘harmonized legal world’ there is a need for a comparative work of analysis." (Id., at 964).
But Lerner interrogates not merely the context of comparison and the nature of common principles as a roadmap to harmonization, he also suggests the relevance of the specific methodology of comparative law--a field for loners--and harmonization--a more collective effort. (Id., at 964-967). The latter "type of work aims to achieve the best solution, but no less importantly, it aims to achieve consensus, because only via consensus will their work receive a certain kind of legitimacy." (Id.).

With these overlaps developed, Lerner draws us to its relevance for the construction of a new ius commune. On the one hand, the new ius commune recalls the pre Westphalian system in which different states operated under a common legal framework, with territorial variation. On the other, the source of this common framework is now a product of the comparativist search for harmonizing principles--of similarities among disparate systems that are necessary for communication between systems in a world in which individuals arrange their affairs across borders--the production of harmonized principles of law. As Lerner explains:
In my view, from a comparative standpoint, common principles generate a new manner of legal transplants. Traditionally, the transplant idea was created following the export of legal systems by one country and the import of those ideas by another country. Today, various traditions come together in harmonization projects that create frameworks, solutions, or approaches that inspire their importation and adoption by other countries. We face the reception of comparative law imperio rationis. (Id., at 969-970).
Thus harmonization changes the principles through which individual legal systems are expressed. The appearance of difference is maintained as the underlying thrust of regulation is merged. And so, "these principles are not important as precursors of imposed law, but as a language of communication among scholars from different countries. This type of reception certainly adds a new dimension to comparative law, a dimension that did not exist in the past." (Id., at 971). And thus from out of translation, a single new language--the ius commune, whose priests are those comparativists who serve as translators and guardians of the common language (and its substantive grounding).

But there is something here that is greater than the utility of comparative law for the project of harmonization. Likewise the issue of the protean nature of comparative law as a large vessel (perhaps more the cloaca maxima of law beyond the state than a sangreal of post Westphalian legal focus) within or through which the law of states bump up against each other, misses the potency of comparative law within the complex transformations inherent in globalization. Instead, Lerner is onto something more interesting--a more subtle understanding of comparative law in globalization, not merely as a methodology or anchored to national laws in situ, but now dedicated to the construction of supra national legal frameworks, which its acolytes would dominate. Harmonization represents the constitution of legal systems beyond any of those which are its object. Harmonization through principles does more than synthesize. It does nore than provide a language for communication bectween systems. But in Lerner's conceptualization, it reconstitutes national law into supra national legal frameworks. These frameworks, derived from a synthesis of national law then serve as a basis for framing the laws of its sources, now tethered to a framework that seeks unification in results but preserves difference in form. The harmonization project, like those undertaken in the European Union through its directives, produce something more than communication. It suggests a step in the constitutionalization of syntghesis inot a n autonomous framework fo law which, when institutionalized can serve as the nbasis of governance without government serving a government without a state. Larry Catá Backer, Governance Without Government OR Government without a State?: Gunther Teubner on Complications of Umooring Corporate Governance From Corporate Law, Law at the End of the Day, June 25, 2009.

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