About

The Project - excerpt from the speech delivered by the Founding General Editors, Ugo Mattei and Mauro Bussani, at the first General Meeting of the project on July 6, 1995

THE TRENTO COMMON CORE PROJECT by Ugo Mattei and Mauro Bussani

Schlesinger's monumental work on formation of Contract, published twenty seven years ago, was the coronation of a ten year long project. The ambition of the work in which we are engaged here in Trento is a considerable broadening of the scope of the Cornell project. We are seeking the common core of the bulk of European private law, as divided in the general categories of contract tort and property. [...] 

First, [...] common core research is a very promising hunt for analogies hidden by formal differences. Such common core should be unearthed in order to obtain at least the main lines of one reliable geographical map of the law of Europe. What the use of this map will be is not concern for the cartographers that are drafting it, although we may all agree that this kind of research should be very useful for and deserve more attention from official institutions that are charged to draft European legislation (directives, regulations etc.) For the transnational lawyer the present situation is like that of a traveler compelled to use a number of different local maps each one containing misleading information. We wish to correct this misleading information; we do not wish to force the actual diverse reality of the law within a map to reach uniformity. We are not drafting a city plan for something that will develop in the future and that we wish to affect. We are neutral in front of future developments. This project only seeks to describe the present complex situation in a reliable way. While we believe that cultural diversity in the law is an asset, we do not wish to take a preservationist approach. Nor we wish to push in the direction of uniformity. This is possibly the most important cultural difference between the Trento project and other very publicized enterprises such as the Unidroit Principles (and probably also the Lando Commission) which are doing city planning rather than cartographic drafting. 

Out of the geographic metaphor, it is the rhetoric of the local lawyers, full of unexplained assumptions (cryptotipes), the false friend of the lawyer seeking information about one foreign legal system. Cornell shows us that this rhetoric conveys to foreign lawyers a message that overemphasizes the differences. It also shows us that the factual approach can unmask such hidden assumptions improving the knowledge of the law not only for foreigners but also for lawyers belonging to the given legal system. 

Second and very important teaching, despite what we have just observed, both the semantic and the actual results must be considered in our analysis in order to draft a reliable map. To put it in Sacco's terminology, it will be sufficient to duly consider the fundamental distinction between the descriptive formant and the operational rules to solve many of the methodological problems that have absorbed much energy in the ages of Cornell. 

The rhetoric of the law is not something useless that can be neglected in the drafting of a geographical map of European law. It would be like drafting a map with no signs of different scenic beauties or of different monuments. Maybe such a map would show us the shortest way between Trento and Maastricht. For sure, it would not offer us a satisfactory chart of the geography between the Dolomites and the Dutch border. [...] 

Rudolf Shlesinger, in the letter that we have circulated and in the acceptance talk for the Honoris Causa degree in Trento which is reproduced for our use today, tells us two things that we should keep in mind during our work and that require some thoughts on our part. First, that Sacco's dissecting the legal rule in a number of legal formants is the methodological step forward most useful for modern common core analysis. Second, that differences should not be overemphasized but should not be neglected. In other words, that comparativists should not go to the opposite extreme claiming that after all the differences between the common law and the civil law are negligeable. [...] The word legal formant is not only a neologism for the traditional distinction between "Loi", "jurisprudence" and "doctrine", i.e., between enacted law, case law and scholarly writings. Within one legal system the legal rule is not uniform not only because one rule may be given by case law, one by scholars and one by statutes. Also, within each one of these sources there are competing formants, like , for example, the rule described in the headnotes of a case can be incoherent with the actual ratio decidendi (whatever this means) or the definition of a code can be incoherent with the detailed rules contained in the code itself. This complex dynamic may change a lot from legal system to legal system as well as from one area to the other of the law. In particular, certain legal formants are clearly leading in each legal systems in a different way. Differences in formant leadership are particularly clear in the distinction between common law and civil law. This is why a ripe factual approach does not become a mere collection of decided cases or, in other words, does not over focus on case law. 

[...] What we need to do here, in dealing with our questionnaires, is to put all these competing sources (the different formants) in the right place in our geographic map. Always remembering that mere rhetoric differences may end up sometimes affecting even the applied dimension of the law in a process of constant flux and change. 

We will simply have to organize our questionnaires in such a way that all of the circumstances which affects the law in any one of the systems that we are considering, should be addressed also in all the other systems in which such circumstances may have no practical impact or a different one. This should guarantee us that rules formulated in a identical way ( say by a identical code provision) but which may produce different applications, or even different commentator's rhetoric, will not be regarded as identical. This should also allow us to see the elements that in one system may play an official and declared role and that in another system may be at work in a rather cryptic, unsystematic and unofficial way. The role of such cryptic elements may be crucial in the drafting of the map of the applied law. [...]

Another general point that should be made and which makes our work much easier than in Cornell is that we are only dealing with countries belonging to the Western Legal Tradition. This means that we can assume a common conception of the law ( at least of private law) as a circuit distinguished from both politics and religion and a rather common social and political background. I say rather common, of course, because we do not wish to deny that there are differences from Sweden to Italy. 

Such differences, however, are not on the very conception of the rule of law and in any case are not differences perceivable in the lawyer's law. We may consider them in our analysis if we find some proper information that may be required for each legal system in the questionnaire. Possibly one due to the different political process and bureaucratic organization is reflected by the different timing of reception of the directives. More generally, the different delay of justice. 

A rather important point that we have already discussed in our preparatory meeting of last June, is the legitimacy of a tripartition such as contract property and tort in a comparative law project. Also this problem should not be overemphasized or over discussed. [...]

Contract Tort and Property may be used in this project as metalegal containers of problems that on operational grounds are rather easy to locate. They are not used in any positive legal meaning but they are models that have the only function to detect the areas of general expertise of the contributors. That same metalegal approach that conveys us economic rationales to distinguish these three categories, is also showing us that the difference can not be overemphasized but that the whole private law is indeed communicating to solve concrete problems. In any case the practical choice of separate publication of subtopical volumes should solve any possible problem. The editors will gladly solve any conflict of jurisdiction. 




General Guidelines

(a) 

 As to each subtopic as a whole, the most essential literature (whether foreign or domestic) should be indicated.
(b) References to sources (legislation, case law, scholarly writings, etc.) should remain in proportion to the importance of that source within the legal system.
(c) Although the main task is to provide answers about the legal system(s) one represents in the working group, remarks and information involving other systems in a comparison are welcome.

(d)

 Not every question, or subquestion, is to be answered as thoroughly as indicated below. Also, it will often be possible to group together answers on level II or III for different questions (or subquestions).
Level I. Operative Rules

Indicate:

  1. how the case would be solved by case law in the given legal system;

  2. whether this is or not the solution given by the other legal formants, i.e., (according to a prima facie interpretation of) legislation, primary and/or delegated; legal doctrine; custom and usage;

  3. whether all these formants are concordant, both from an internal point of view (indicate minority doctrines, including dissenting opinions in leading cases, opposite opinions in scholarly writings, etc.), and from a diachronic point of view (whether the various solutions are recent achievements or they are identical in the past);

  4. if appropriate in the legal system, also the level of facticity or juridicity of the solution, i.e, whether the solution is considered to be a question of fact or a question of law - this is in order not only to determine the degree to which the solution can be enforced by supreme courts against lower courts, but also the impact of judicial precedent on the matters implied by the solution.

Level II. Descriptive Formants.

Indicate the reasons for which lawyers feel obliged to give the solution(s) mentioned in Level I, and where appropriate, the different reasons for the different approaches and formants - including, for example: 

  1. consistency/inconsistency of the solution with specific and general legislative provisions, with general principles (traditional as well as emerging ones), and with constitutional provisions directly affecting the subject; is the solution considered a historical accident? are there any reform proposals? 
  2. whether the solution is dependent on legal rules and/or institutions outside the private law, such as procedural institutions (including rules of evidence), administrative and constitutional (different than those at Point 1, supra) provisions; 
  3. how the solution is dogmatically explained; how do/must the lawyers reason in order to come to that solution; how do they use legal reasoning to eliminate contraindications which could lead to a different solution.
Level III. Metalegal Formants.

Indicate the other elements affecting the solution(s) mentioned at Level I, such as policy considerations, economic and/or social factors, social context and values, and the structure of legal process (organization of courts, administrative structure, etc.).