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Legal Research and the Distinctiveness of Comparative Law

09 Nov, 2015 GENERAL LAW

MCCRUDDEN HAS identified a number of questions with which legal research is concerned.1 His approach shows the way in which law is distinctive in relation to empirical social science. I want to select two of these as of particular importance to legal research methods. The first is ‘the understanding and internal coherence of legal concepts and legal reasoning’ and the second ‘the ethical and political acceptability of public policy delivered through legal instruments’.2 Lawyers are concerned on the one hand with analytical questions, such as how legal concepts are defined and fit together, and the extent to which any general principles can be extracted by legal reasoning that can guide future decisions. They are also concerned with normative questions of what the law should be to serve not only internal coherence, but broader issues of justice, as well as other social and political policies. Lawyers are thus interested in both what is the current practice of the law, and what it should be. It is this combination that makes law not just an empirical social science, but also a branch of normative moral and political philosophy. I will argue that research in law presents a distinctive form of normativity, based not on the beliefs of the author, but on the standards of a legal system with which he may or may not agree. Comparing two or more legal systems might appear to be a purely descriptive exercise and one which is difficult to undertake, if one is to understand another system well in addition to one’s own. However, I will argue that comparative law is not, in fact, significantly different from other branches of legal research.


A.  Normativity in Legal Research


In her challenging chapter in this collection, Pauline Westerman raises the question of how legal research can be normative.3 She thinks that legal research should focus on the analytical and descriptive study of what lawyers do. She shares with many a reluctance about making statements on what lawyers ought to do, and she turns apparently normative statements into descriptive accounts of social consensus or a consensus of beliefs among lawyers. I think that the difficulty of coming to agreed statements of what the law ought to be does not prevent us making normative claims. First, rightness does not depend on consensus. A statement about what a person should do according to law is a claim to rightness, but it is a claim made in the knowledge of fallibility. It is an argument not based on the authority of the speaker, but on the genuineness of her reading of what the law requires. Second, when we claim that something is normatively right in law, we are making an argument that is different from an absolute moral claim. Legal rules and principles are situated in a particular context. A claim that English contract law ought to be applied in a particular, controversial way, takes for granted a whole institutional context of practices and other established rules. The argument of a doctrinal author is a kind of situational ethic, rather than an absolute statement of what an ideal contract law is like. There are two dimensions to the claim to rightness in such a context. The first is that a particular interpretation makes the law internally consistent and coherent. The second is that the law achieves its purpose more effectively by being applied or developed in a particular way. In this second area, there is a claim to some form of absolute related to a particular social setting. A concept like ‘good faith’ illustrates this.4 Good faith or fairness depends on the legitimate expectations we develop of the conduct of others. Is it good faith not to reveal information which will remove a misapprehension from your fellow contracting party? Well, that will depend in part on the availability of information from other sources. However, it also depends on whether we wish to value transparency between the parties or want to foster a more exploitative society. Here the arguments go beyond what is already accepted and appeal to a higher standard of fair dealing. Such statements from within the legal system are still normative, even if they do not claim any absolute rightness.


In order to be ‘scientific’ (wissenschaftlich), legal research does not have to be simply analytical and essentially descriptive. Such descriptive work is a very important element of legal research. It is exemplified in a wide range of disciplines, such as empirical and socio-legal research, legal history, and much writing in textbooks and case commentaries. However, law is also a practical, applied discipline and, like most such disciplines (eg art, architecture, accounting, management, finance, etc), it includes reflection on what should be the purposes of the law and how those might be achieved. In none of these disciplines can questions about the purposes and the means for achieving them be reduced to technical questions about the mechanics of implementation. The goals of law are not set in such clearly pre-determined ways, so that the legal scientist can focus merely on devising technical means for achieving them. Part of the discipline also includes strategy and theory. It is here that most European languages, but not English, are clear. There is a distinction between legal theory (Rechtstheorie) and legal philosophy (Rechtsphilosophie).5 Legal theory involves the study of the underpinning principles of existing legal systems or branches of those systems, such as the theory of contract. This is the principal approach of legal research. Legal philosophy is more speculative and examines the goals of law, unconstrained by what is actually in force in particular legal systems. Both are part of the research enterprise of law, but legal theory is the predominant aspect of most legal research and will be the focus here. The theory of the current law is shaped by ideas of its purposes and ideals. The current state of the law may, for historical or practical reasons, be less than perfect, but the ideal does not therefore become irrelevant. The role of law as a branch of practical reason is to achieve results in concrete settings. I will therefore follow McCrudden in arguing that, in the area of doctrinal legal writing, there is no bright line between the descriptive and the normative and that both are involved.


McCrudden suggests that the analytical question is internal to the legal system; it asks questions from the perspective of the lawyer steeped in the law and trying to make sense of all the details of legal rules and doctrines.6 The normative question, like the question on the effect of law, might be seen as either internal or external: is the outcome consistent with the principles and values of law as a social institution, or does it fit with the social objectives that we would ideally like law to be pursuing? McCrudden argues that these two approaches are typically conflated, because we recognise that law should not be seen as completely autonomous, serving its own purposes, but as related to other ethical and social science perspectives.


B.  Comparative Law


Comparative law is a sub-branch of legal research in which the normative ambitions of legal research have been transparent over most of its life. The objective of many comparative lawyers has been to achieve harmonisation if not unification of laws.7 It has stood in contrast to the focus of lawyers in individual states. The focus on unification of law across nation states provides one answer to the normative question of what law should be. For many comparative lawyers, however, the focus of comparative law is to present an analysis of internal dynamics and principles of the existing laws of the countries studied. This may seem predominantly descriptive, particularly when studying a foreign system. How can a foreigner do more than describe what foreign lawyers think their legal rules are? (Hence the popularity of research by means of questionnaires sent out to foreign lawyers.) However, there are normative elements. First, the statements of the foreign law are not simply the description of beliefs or actions of foreign lawyers; as we shall see, they are statements of what the subjects of foreign laws should do from the legal point of view. Second, comparative legal research demonstrates that the goals of law can be achieved by different rules and institutions in different social contexts. The very activity of looking at more than one legal system raises questions about the justifiability of differences and whether they achieve the purposes of the law equally effectively and these are normative questions. While the questions of the justifiability of legal rules or principles and their efficacy in achieving the goals of law are part of the research into any aspect of law, they are more often consciously raised in comparative law research.


C.  Outline


The distinctiveness of legal research is its focus on normativity presented from the legal point of view. I will develop this argument first by presenting the importance of the hermeneutical within legal scholarship and second, the role of law as institutional knowledge, rather than abstract facts. The third feature is the interpretative character of law. In brief, legal knowledge (as opposed to other knowledge about law) is distinctively internal or hermeneutical. That legal knowledge arises out of an institutional setting and of a range of concepts. It is contextualised, institutional knowledge, rather than abstract knowledge. Finally, the knowledge is not fully distinct from the interpreter. Law has to be constructed in the art of interpretation. It seems to me that this latter feature provides a better way forward than the presentation of pure alterity that Legrand suggests,8 whilst taking on board some of his insights. These will then lead to a discussion of comparative law and how it fits with the presentation of legal research in general.


II.  HERMENEUTIC APPROACH TO LEGAL RESEARCH


Legal theory takes for granted the importance of the hermeneutical point of view, as MacCormick termed it.9 By this he meant that the lawyer (and therefore also the writer on law) tries to explain what the law looks like from the point of view of ‘a member of the group which accepts and uses the [legal rules] as a guide to conduct’. That does not mean that the writer accepts this legal point of view to be morally correct, but it is treated as normative from the point of view of the ideal ‘law-abiding’ citizen. In MacCormick’s terms, the lawyer’s commitment is ‘cognitional’ rather than ‘volitional’ – the lawyer is trying to give the right answer from within the system, but need not be wishing to achieve that result. The hermeneutic point of view preserves the classical scientific, ie objective, approach to the study of law. However, as Hart’s contrast with the external point of view suggests, it sets legal inquiry on a different path from, say, anthropological enquiry, which may appear to be much more objective. The difference is that anthropological enquiry seeks to be simply empirical. Cognitional hermeneutic legal research provides a perspective from which normative statements are made. In terms of comparative law, this approach is favoured by people such as Ewald.10 He argues that we should try to explain the system as it appeared to the participants, even if their views are strange, such as the medieval lawyers who put rats on trial. We do the same, when we make statements on a legal system that is not our own – we try to describe what a law-abiding citizen or a lawyer within that system ought to do.


As Samuel has pointed out,11 this hermeneutic approach, which takes legal rules and principles as authoritative reasons for action, clashes with the more empirical and relational analyses of other social sciences. The hermeneutic approach is not just reporting facts or beliefs, it sets out normative standards. Empirical facts are not ignored. McCrudden is clear that empirical studies of how law works are a legitimate part of the study of law, and such a contextual understanding is not merely legitimate, but it forms the background, contextual knowledge of the internal point of view. Talking about the concept of integrity in judging, Soeharno has helpfully suggested that in exercising ‘intuitive’ judicial reasoning, the judge is both consciously attentive to the individual case and reflexively ‘mindful’ of general knowledge, ideas and beliefs that come from past legal experience and training.12 This reflexive, but often unconscious mindfulness contains within it a general knowledge of the social purposes of the law. Such knowledge is factual, but has importance as a context for reasons for the judge’s actions – the justifications that the judge provides.


This point of view of the lawyer or citizen using the legal rules, principles and institutions as guides to conduct incorporates a rationale – a set of reasons why this is a good thing to do and an awareness of the overall social and moral context in which this takes place. If one is really to flesh out the characteristics of the paradigm actor conceptualised in the ‘internal point of view’, then it is a person who takes the law as an authoritative reason for action but is also committed to the construction of a society based on the rule of law.13 Taking the law as an authority-reason for action generates, in Raz’s view, an exclusionary reason, a reason for ignoring at least some other moral reasons that would otherwise exist for acting. It is not just a particularly weighty reason for acting.14 So, when a legal researcher makes a statement about the law, the researcher is not making an empirical claim about the beliefs of the majority of lawyers or citizens in a particular legal system. The legal researcher is making a normative claim from a particular point of view, which may well not be his or her own. As Kelsen pointed out, it is possible to be an excellent law professor and yet an anarchist.15 The skill of the lawyer is to be able to state normative standards plausibly, even if the lawyer does not believe in their rightness.


Whilst Samuel is concerned that the ‘authority paradigm’ is over-central,16 I do not think this is a problem. He acknowledges that most works on law will focus on the rules and principles which are intended to guide or direct actions from a legal point of view. The model I have presented is of an individual who seeks to behave lawfully, but who wants coherent and consistent instructions. Samuel rightly compares this with some aspects of religious writing.17 Both of these disciplines discuss reasons for action based on authoritative sources. Surely this is a characteristic feature of law. To take an example, a prosecutor has to explain the situations in which a prosecution will be brought for assisting suicide. Whatever the prosecutor’s personal moral positions or his or her perceptions of what people in society might believe, the prosecutor has to start with the legal text, which says that it is a criminal offence in England to provide assistance to a person to commit suicide and, even more clearly, to act directly to end a person’s life, even at their request.18 There are a variety of ethical and religious discussions of the question of whether one person should be able to help another to die, and they disagree. The distinctiveness of the legal perspective is that there are authoritative sources from which an answer must be constructed. The result is that the answer given by an English lawyer will be different from that of a Dutch lawyer or a Swiss lawyer, because the authoritative sources in those systems contain different provisions. The hermeneutical perspective captures this.


III.  THE INSTITUTIONAL CHARACTER OF LAW


The second feature that I want to borrow from Neil MacCormick’s account of law is the notion of law as ‘institutional fact’.19 An ‘institutional fact’ is a fact which we invest with meaning within a particular set of social relations because it performs a particular function. The law is not a set of ‘natural facts’, but a set of facts that become significant within a legal context. As I have written elsewhere,20 a visitor to England might observe one person sitting on a raised platform and wearing robes who is talking to another person in a box flanked by two men in uniform. Those are fairly close to ‘natural’ facts. However, they become scenes from a ‘trial’ when they are seen as a court process by actors within the legal system. The art of Jonathan Swift’s Gulliver’s Travels or Kafka’s The Trial is to represent to us those ‘natural facts’ from the point of view of someone who does not share the institutional and internal point of view. When we conduct legal research, we are interested in facts as they are invested with meaning from within the legal system – we are interested in ‘trials’, not ‘men talking to each other’.


Now the institutional character of law arises from the function of law in reducing complexity in life. Social life is very complex with a multiplicity of issues and concerns. There are lots of things going on in a court room, but we need only to focus on some of them in order to understand the idea of a ‘trial’. The institutional character of law not only gives us a perspective which invests meaning on reality, it reduces the number of ‘relevant’ features. In that setting, formalism plays an important part.21 Legal routine and structure help to reduce complexity and reduce the number of new things of which a legal actor needs to take account. When I convey my house to another person, I fill out forms that prompt me to certain key questions – do I have title to the house? are there outstanding mortgages to be paid off?, and so on. From the legal point of view, questions such as whether the garden is overgrown or the roof tiles need replacing are irrelevant. No purchaser of a house would ignore them, but they are only legally relevant when I have been asked to provide guarantees about the state of the premises or these features of the house have become conditions within the contract to convey – things that I am legally bound to correct before conveyance. The law helps us to cope in a complex world of inter-personal relations by developing structures, institutions, and by promoting routines. Within those structures and routines, there are rules which limit the number of relevant features to which the lawyer has to pay attention in coming to the ‘just’ outcome of a case or transaction. Instead of being viewed at large, within their total complexity, situations are viewed through a limited lens of what is relevant within the constraints of legal institutions.


Because law is an institutional fact, MacCormick is right that legal issues arise within a conceptual framework, a bundle of rights and duties. For example, if a relationship is categorised as delictual, then different rights and duties, procedures and remedies will automatically come into play compared with when the relationship is contractual. Concepts have their own inner logic, but they are also part of a nexus of other concepts and ideas. Samuel has pointed out the distinctive structural way in which issues are constructed.22 In the Roman private law paradigm, legal relationships are structured around persons, things, and actions. In other branches of law and in other systems the structures may be different, but the point is well made that there are accepted frameworks for thinking about a problem that belong within the law.


The institutional character of law explains the argument of Geoffrey Samuel that facts do not exist independently of legal categories.23 The legal syllogism almost presupposes that the facts exist independently of the law, and that legal rules are applied to them. However, that is not the case. The legal rule conceptualises reality in certain ways. Law is not a ‘fact’, but a contested construct. Lawson suggested that ‘Law is not just fact. It is thought applied to fact.’24 To take the ancient Roman instructions to the (lay) iudex: ‘If it appears that a golden cup has been stolen from Lucius Titius by Dio son of Hermaeus or by his aid and counsel . . .’25 The issue is whether the cup was ‘stolen’, not whether it was taken. For the actio furti, we need to construct the actions of Dio son of Hermaeus in the light of the requirements of theft. The natural facts become, in this way, ‘facts in law’. The law is only concerned with applying legal rules to ‘facts in law’. Our focus of attention is given by the institutional categories of the law and what is needed to satisfy them. The institutional character of the law gives us not only the rules, but also the ways of classifying the facts. This is a feature that is well known to lawyers. Any work on judicial review of administrative action will note that judges will only review the mistakes of law made by officials, not their assessment of facts. However, they will then go on to point out that there is typically dispute about the classification of facts and these decisions on classification may well be treated by the courts as ‘errors of law’ such that they are reviewable by a court.26 Classification decisions are par excellence examples of the legal construction of reality. The spectacles with which the legal researcher views reality are given by the law.


However, there is a more profound element to legal thinking that Samuel has pointed out.27 The lawyer learns first and foremost a ‘mental map’, a way of seeing the relationships between legal concepts and ideas. The lawyer learns to distinguish ‘obligations’ from ‘property’, ‘delict’ from ‘quasi-contract’ and so on. This forms a grid for reading reality. However, the mental maps of different legal systems are not the same. For example, leases might be in ‘property’ in one system and ‘contract’ in another. So issues of relevance may vary from one legal system to another.


The other and very significant feature about facts in legal research is that the issues and evidence studied arise out of legal processes. Take a simple situation, an accident. A boiler may explode in a factory and someone is injured. The doctor is called and the person taken to hospital. The place is cleared up in order that more work can be undertaken in the factory. By the time the victim has recovered, the site is back in action, the boiler repaired or replaced and the victim will have little way of showing that the boiler was defective and so the employer is liable in law for his or her injuries. Under French legislation of 1865, the factory owner was not permitted to clear up the mess until the inspectors had visited the site and given permission. The inspector’s report became the basis on which the accident victim could mount an action.28 So evidence can, in fact, depend on the existence of legal procedures. Likewise, legal rules may explain whether actions are brought. To take the same example, the victim of a boiler explosion was usually an employee. Under English and German legal rules, the employee victim would find it very difficult to bring an action against his or her employer. As a result, there were almost no actions brought for boiler explosions, even though hundreds of people were killed each year.29 It is only by understanding the legal procedures by which claims might be brought that we can research the questions with which the law is dealing. Equally, judgments about what is ‘just’ as an outcome have to take account of the procedures by which it was possible to adduce evidence in the case.