The Project - Delivered at the first general meeting on July 6 1995
THE TRENTO COMMON CORE PROJECT Ugo Mattei and Mauro Bussani
It is for me a great pleasure to welcome all of you here in Trento. First of all, also on behalf of Professor Ajani who is stuck in Tirana, I wish to thank everybody to be here, both those who were in Trento last june at the preparatory meeting, and all the new participants to the Common Core project. A list of the participants is drafted in the brochure of the conference. The list, of course, is not closed.
Schlesinger's monumental work on formation of Contract, published twenty seven years ago, was the coronation of a ten years 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 cathegories of contract tort and property. On the content and scientific legitimacy of such cathegories we will spend a few words later .
The aim of my talk this morning is to give you the main lines of the project in order to re-insure you that, despite the ambition of the Trento Common Core Project, we are not asking you a thirty years committment. Let me first shortly describe the double result that we hope to reach after this three days session.
According to what a number of us have decided in the june 94 meeting, all of you should have received some drafts on rather specific areas. The shape of this drafts is variable. Storm's one is already very detailed ( it is actually so detailed that in has scared Professor Mayerhofer out of today's meeting !!) Zimmerman's and Monateri's are mere factual descriptions, while the "intentional tort" one has not reached the actual written form. This happens in scholarship!
The general discussion of this afternoon will serve the purpose of writing down two sort of guides: a "Guide to draft the questionnaire" and a "Guide to answer the questionnaire". We should focus on what are the issues that should be adressed and covered for each legal system. (Storme's work shows us a way on how the factual situation can actually become a questionnaire). Some of these issues may be general and mandatory for each topic (like for example : consider in your answer each legal formant separately). This is deeply differentiating our task from any project Ã la U.S. Restatement of Law. Other should probably vary from topic to topic: for example, the role of insurance law in each system should probably be considered for tort law and the role and the structure of the landregister should be considered for property). Other should probably be different from subtopic to subtopic ( like the role of zoning law should be considered for nuisance while it can be neglected in the area of trust). Also the role and the state of reception of enacted European law is possibly different from area to area but to consider it should be of course part of the general guide. We suggest therefore to focus this afternoon's discussion on guidelines to the drafting of the "general guide" as well as on suggestions on how to go from the actual form of our tentative drafts to model questionnaires.
Our methodological discussion that will continue in tomorrow topical sessions should have therefore as focusing point the preparation of two aspects: a guide to the Editors of each subtopical volume on how to draft the questionnaire (or how to edit and integrate it in Storme's case) and a guide to each one engaged in giving answers on how to frame them.
In the course of all our preparatory work for this meetings (which has included two trips to California to discuss in detail with professor Schlesinger) we have decided that our project will take two forms. It will appear first as a published set of subtopical small volumes (one for each subtopical questionnaires) edited under the responsibility of each questionnaire drafter. Such volumes will be published by our University Press shortly after they are submitted by each volume editor. This allows the work which is already done to be published at once without waiting for the other late colleagues. Also it should allow us to profit of a larger degree of decentralization and of diversity from subtopic to subtopic. Accordingly, each subtopical volume editor will receive a small budget (about 1500 USD) in order to compensate or refund him/ her of the editorial work or of expenses incurred in persuading the colleagues to cooperate in answering the questionnaires. Such budget, roughly corresponding to one hundred dollars per questionnaire answered for each legal system, is our maximum finantial possibility at the moment. For administrative reasons it can be payd when the volume is accepted for publication. Hopefully, during our path, our finantial conditions will improve. Only in a second stage the actual small subtopical volumes will be updated and published toghether in three topical books ( of one or more volumes) for contract, tort and property. For this later stage a larger publisher will be seeked.
For each topic the number of subtopical volumes should be of about twenty. This, again, because while we do not have the ambition of a complete Restatement-like coverage, we still need a rather extensive scope to give to our project scholarly significance, impact, visibility and appeal also outside of academic circles. This character of our project is its main difference with the Cornell Common Core one and it is one of the differences with other projects on European Private Law like the Lando Commission on which Professor Storme will address us. For the same need to reach sufficient detail without overwhelming ourselves and the future readers with an eccessive number of data, the number of issues in the questionnaire, although slightly variable, should not be more than 15, maximum 20. The questionnaire Editor should write a comparative introduction to his or her small volume.
This ambitious task is not over-ambitious for a number of reasons that can be expressd by the metaphor of the dwarf standing on the shoulders of the giant. Professor Sacco has already addressed us on what could be called a methodological ripening of the international comparative legal culture in these last thirty years. Schlesinger's methodological caveats are today in the cultural heritage of anybody who claims to do comparative law, and are certainly written in the cultural DNA of each one of us. From a generational point of view our group is made practically completely of people born as scholars after Cornell.
What was possibly the result of the Cornell project can be today assumed as a point of departure of our path. : "At least in terms of actual results, as distinguished from the semantics used in reaching and stating such results, the areas of agreement among legal systems are larger than those of disagreement" nt 1. This statement conveys us a double teaching. First, it shows how 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 encharged to draft European legislation (directives, regulations ecc.) For the transnational lawyer the present situation is like that of a traveller 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 developmments. This project only seeks to describe the present complex situation in a reliable way. While we belive 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 Preinciples (and probably also the Lando commission) which are doing city planning rather than chartographic drafting.
Out of the geographic methaphor, it is the rethoric 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 rethoric conveys to foreign lawyers a message that overempahsizes 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 rethoric 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 boarder. This fundamental distinction, should lead us also in the drafting of the questionnaires on which we will engage in the next tree days.
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 dissectioning 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 same points are made by Alan Watson in his forthcoming paper "From Legal Transplants to Legal Formants". 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 dinamic 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 overfocus on case law.
Certain rather insulated critics, like D. Tallon, have criticized the factual approach stating that it was too much common law based. This comment is rather ungenerous since the issue of how to cope with the great sources distinction between common law and civil law has consumed a lot of time and methodological efforts in Cornell. It should not absorbe too much of our time. To be sure, today the analysis based on different formants makes even more clear that factual approach does not mean mere case law analysis. Each formant can be considered a source of the law in its own right competing with all the other sources to make the actual rule. nt 2
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 rhethoric differences may end up sometimes affecting even the applied dimension of the law in a process of constant flux and change.
We'll 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 rethoric, 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 criptic elements may be crucial in the drafting of the map of the applied law. nt 3
This is particularly important, as I have already mentioned, because we are approaching systems belonging to the common law as well as to the civil law tradition. The structure of the judicial process and the "style" of the legal system, in the broad sense that was described by John Merryman, can not be neglected if we wish to obtain good results. It is in the structure of the legal process, that municipal lawyers assume as given, in which most of the differences can be detected, understood and possibly explained. All of this had to be worked out rather ex novo in Cornell but today it is part of the state of the art in comparative law.
We do not even have to spend much time in another issue that had to be discussed in Cornell but that now is strait forward. We can assume, for our purpose, that the comparative knowledge of the law has a different nature from the internal knowledge of it, since the former is scientific and the latter is practical (legal scholars acting within a legal system are themselves legal formants of it since they "make" the law although indirectly). This means that we will not use the style of the "national reports" even in those cases in which an italian lawyer will report on Italy or a French lawyer will report on France. We assume that for the purpose of comparative scholarship the internal lawyer is by no means a better reporter . To be sure, she may control a larger number of informations about the system than a foreign lawyer. But she may be less equipped in detecting the cryptotipes because she may be mislead by automatic assumptions. The participants to our project are comparativists, and as comparativists we will deal with the questionnaires also if we will have to describe our own law. We personally believe that the attitude of considering a local rapporteur better than a foreign one, spread because of the triumph of the state centered positivistic legal culture, is anticultural. It has long been the dominant attitude evan among comparativists, since it informed the International Academy of Comparative Law and the Faculté Internationale de Droit Comparé. Signs of change are however visible, and in the next Session of the Faculté, in Rostock, most Common Law courses are thought by civilians.
In this project we should not consider only nationals entitled to deal with their own law. This is why so many of the participants from Reimann to Watson to Legrand are of "unspecified belonging" and why we have involved american scholars like Gordley and Palmer as well as comparativists like Werro and Hagstrom who work in non E. U. Universities. Committed nationals of all member States are of course a big asset of any project on comparative law, since they may serve in directly answering to questionnaires or in advising on whom to contact for reliable answers to different problems. This is why we have tried to find participants from all member States. Some recruiting is still to be done particularly from Austria,
Ireland and Spain although there is already sufficient expertise in the present group to cover all of the fifteen memeber States. Coordinating such a big group of people ( we are at the moment about thirty five covering fifteen nationalities) will require an organizational effort that we should already begin in these days by filling up the forms with each of the small groups secretaries.
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 informations that may be required for each legal system in the questionnaire. Possibly one due to the different political process and beaurocratic organization is reflectded 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 overdiscussed.
Someone has argued that these cathegories are not homogeneous in the different legal systems and that therefore there may be boundary issues. It is indeed easy to observe that "nuisance" is classified as tort in Common law while "Troubles de voisinage"is classified as property in France. It is however sufficient to take a problem solving approach such as the one that for example is endorsed by Law and Economics to see that these two legal cathegories just describe the same problems of boundaries between property rights. In all case books on property you will find in the chapter of land use cases (like Boomer vs. Atlantic Cement Co.) that are technically dealing with a tort.
An objection to this threepartite scheme seems to us rather formalistic. We belive that the very transversal nature of many problems that are usually approached within one or the other skeme conveys us a clearer picture of : a) the different ways to solve the same problem in the different systems (and within each of them). b) the heritage of the tradition that may cover either the homogeneous operational rules in the different systems, or the different operational rules covered by the rethoric on the identity of the applicable legal provision.
Anyhow, 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 cathegories nt 4, is also showing us that the difference can not be overemphasized but that the whole private law is indeed communicating to solve concrete problems. nt 5 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.
Our second small group session day, therefore, should be focused on different targets. First, as already seen, it should be devoted to finding out the different peculiar formants of the specific areas that should be considered. This task should be facilitated by the presence within each session of the questionnaire draf ters that may convey their experience.
Second, the different subtopics should be selected in order to come out with a tentative index. Third, each participant should give his or her availability to one or more subtopical editorships as well as suggestions of other possible editorships available. Between the scholars that, for different reasons, are not with us today, we already have the availability of Professor Ghestin to serve as a topical editor in Contract (he was suggesting pre-contractual liability) and Professor Lupoi for property (he was suggesting something on trust). The remaining time (if there is some) should be devoted to attempt the solution (or at least to begin tackling in different legal systems) the Monateri, Storme and Zimmermann's drafts. Each subgroup will have available a very basic workinglibrary and will be assisted by Prof. Antoniolli (Contract) Prof. Graziadei (Property) and Dr. De Lorenzo (Tort) that are fast books hunters in case something else is needed from the library.
Finally, during our closing session on Saturday morning, we will have chair reports from the three groups and we will discuss the future development and timing of our project as well as different practical questions, such as the possibility to create a multilateral project in order to have access to E.U.fundings.
Finally, thirty five years after Cornell we should be able to profit of the remarkable technological developments in the domain of communication. Within the Cardozo Electronic Law Bullettin, which Monateri and myself are editing , a whole section with four internet accounts is ready for the Common Core Project. This should allow all of us to stay in touch and to exchange information in a very much time saving way.
1 see SCHLESINGER-BAADE-DAMASKA-HERZOG, COMPARATIVE LAW, V 39
2 Tis point is made in U.Mattei and F.Pulitini, A Competitive Model of Legal Rules, in Breton Galeotti Salmon Winthrobe (Eds.), The Competitive State (1991)
3 see Sacco, Comparazione giuridica e conoscenza del dato giuridico positivo, in R.SACCO ed. L' APPORTO DELLA COMPARAZIONE ALLA SCIENZA GIURIDICA (1980).
4 See COOTER-ULEN, LAW AND ECONOMICS (1987)
5 See COOTER, Utility in Contract, Tort and Property: The model of precaution, 73 Cal L.Rev. 1 (1985).
1) Goals - Legal Cartography
Stating it in very simple terms, we are seeking to unearth the common
core of the bulk of European private law, i.e., of what is already
common, if anything, among the different legal systems of European Union
member states. Such systems are differentiated not only by the civil
law and the common law heritage, but also by a number of other Western
legal traditions (or sub-traditions), according to the taxonomy one
wishes to adopt. These differences impede our task, particularly if the
perspective encompasses procedure and legal institutions where the
divergence of legal tradition may be even more important. Consequently,
we decided to limit our search to private law, within the general
categories of contracts, torts, and property.
The task we are pursuing may seem ambitious, but is not overly so. Pursuant to the Newtonian metaphor of the dwarf standing on the shoulders of the giant ("If I've seen further it is by standing on the shoulders of giants"), our task is feasible.
First of all, R. Schlesinger's methodological caveats are today part of the cultural heritage of anyone who claims to engage in comparative law, and are certainly encoded in the cultural DNA of each participant in our project. From a generational point of view, our group is composed almost exclusively of people who became scholars after the Cornell project. Secondly, the previous comparative scholarship both in Europe and in the United States shows how common core research is a very promising tool for unearthing deeper analogies hidden by formal differences.
Such a common core must be revealed in order to obtain at least the mainlines of a reliable geographical map of the law of Europe. What the use of this map will be is of no concern to the cartographers who are drafting it. However, if reliable, it may become indispensable for whomever is entrusted with drafting European legislation. This may be particularly so in the process that appears to lead incrementally towards restatement and/or codification.
For the transnational lawyer, the present European situation is equal to 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 one single map to attain uniformity. In other words, we are not drafting a city plan for something that will develop in the future and that we wish to affect.
This project seeks only to analyze 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 do we wish to push in the direction of uniformity. This is probably the most important cultural difference between the Common Core project and other remarkable enterprises (such as the Unidroit Principles or the Lando Commission) which may be seen as engaging in city planning rather than cartographic drafting.
In order to perform such a reliable drafting we need the more sophisticated tools of comparative law, but we shall hold further discussion on this subject until we reach the methodological part of this paper. For the time being, however, we anticipate that the rhetoric of municipal lawyers, so rich in unexplained assumptions, may be the real "false friend" of the cartographer. It may convey a message that overemphasizes the differences. Nevertheless, both the rhetoric and the actual results must be considered in the comparative analysis in order to draft a reliable map. Rhetorical differences, in fact, may sometimes end up affecting even the applied dimension of the law.
That is why the rhetoric of the law is not something useless that can be disregarded 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. While such a map could show us the shortest way from Trento to Maastricht, it would not offer us a satisfactory map of the geography between the Alps and the Dutch border. This cartographic aim is what makes the methodological aspect of the project so crucial.
2) Goals - Building a Common Culture
While drafting a map is our immediate short-term concern, in the long run, this task is part of building a common European legal culture. Our culture-building task is shared by a number of projects, including the European Erasmus Student Exchange, and, on unofficial grounds, the creation of European law casebooks.
The idea underlying our project is that the best means to achieve an open legal space in Europe is through the creation of a model "European law school" capable of shaping a truly common legal education. In order to do so some leading scholars in the field of comparative and European law have launched a project for the preparation of a series of casebooks on the common law of Europe. Our enterprise has been inspired mainly by the example of the United States. Despite the many relevant differences among state law, legal education is based on a single national model which produces lawyers capable of moving between states with no overwhelming difficulties. The authors of the European case book project declare that their project "wishes to uncover common general principles which are already present in the living law of the European countries"; besides, "rather than setting up a European law school, teaching materials are developed which can be used in such a law school, and in the curricula of other law schools as well, and by courts looking for rules and principles to decide a case, throughout Europe" .
This description shows the important similarities between the European Casebook and the Common Core Project. Both projects seek to identify the common features of private law in the European national legal systems, but it is not their goal to impose new rules and categories. They both are analytical, not openly prescriptive. Echoing the declaratory theory fashionable among common lawyers before Blackstone, "the emphasis is not so much to create uniform rules as to find similar solutions and rules in the existing laws (and in they cannot be found, to state the differences) and to analyse and compare the legal reasoning behind them" .
[ . . . ]
|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.|
|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
how the case would be solved by case law in the given legal system;
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;
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);
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 (see Schlesinger, Formation of Contracts, supra note ___; Introduction, II (5) (c) (bb), p. 56) -- 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:
- 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?
- 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;
- 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.).