The "Weak" Law:
Contaminations And Legal Cultures
Italian National Report to the Bristol Conference
By P.G. Monateri*
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Introduction: "Imperfect Alternatives" and the "Weak Thought"........... 2
PartI: Comparativism, Representation and Import................................... 5
Culture and Difference..................................................................... 5
Spread and Dissemination................................................................. 8
Formants and Elites......................................................................... 10
The "Strategic" Model..................................................................... 12
Part II: A Portrait of Italy as a "Weak" Tradition.................................. 15
The "Love affair" with the French.................................................... 15
The "Coming of the Germans"......................................................... 20
Conclusion: Convergence, Divergence and "Contamination".................. 24
The subject matter of "Legal transplants" has been invented by Alan Watson for scholarly purposes in comparative legal studies. But in the last decade the subject has been took over by purposive practical lawyers mainly involved in projects of "exporting" their own legal systems, especially from the West, to the former Socialist countries, or to the vast exotic world of Non-westerners. These projects are normally explicit projects of governance based as they are on a quite clear cut political agenda, sometimes expressed in the old-fashioned jargon of the fifties centred on the rhetoric of the "multy-party democracy", the "rule of law", and the "free market economy".
Lawyers involved in these projects of societal governance normally share one of two opposite attitudes. The first type of approach tends to blur the relevance of the "legal culture". As an example we can take Komesar's theory of "Imperfect Alternatives". He presents and applies a theory of how to compare institutions, as a necessity for the evaluation of their performance, including institutions that make and apply the law. He terms his theory as the "participation-centered-approach", where institution's competence depends on the participation of institutional actors within it, analyzed in terms of their benefits and costs. This is a "non" culture bound approach, which in its strongest version tends to be indifferent to legal histories. From the opposite point of view strong emphasis is put on "legal cultures" and their role in framing national laws, and eventually in preventing, or "distorting", borrowings, transplants, and unification, but in such discourses "culture" remains normally a drop in fuzzy conception to be used to make vague reference to a fluffy dimension of the law.
What I want to remark in my paper is that rules are not self-expressive; institutions need to communicate, and so the law is, in a way, to be wrapped about in a narrative. Thus I want to focus on the practice of legal discourse, meaning the way of framing the world in legal terms. Henceforth rules and institutions are not my first concern here, and my attention is rather devoted to the way we speak about law, as a peculiar factor in the process of definition of one legal culture, and the way legal discourses are generated and mantained, eventually through borrowings and transplants. Thus I see my contribution as an effort in comparative jurisprudence, within the Civil law, using Italian law as an example from the standpoint of the emergence of a modern legal culture in a "weak" tradition. My perspective is thus consciuously out of the way: it is not centred on the today political agenda connected to the efforts to introduce or strenghten multi-party democracy, the rule of law, or a free-market economy. I rather adopt the deligimating move to reverse foreground and background, making a shift toward non deliberate efforts of import/export of patterns, concentrating on discourses and not on institutions, and focusing on history more than on present issues.
I focus on thess aspects because of the problems raised by the process of "commodification" of the legal rules, as it is suggested by the same label of "import and export of legal models", especially in relation to former Socialist countries. The job of lawyers being to produce interpretations of texts and authorities, what an imported "rule" or "institution" means, according to me, depends heavily on the strategies of the lawyers belonging to the borrowing system. If we define "ideology" as the processes by which meaning is produced, challenged, reproduced and transformed, in this context it is fully justified to adopt "idelogical criticism" as a proper approach to legal diffusionism, from the point of view of analyzing within the legal process the struggle present in the production of meaning of borrowed norms.
From this perspective we can identify at least two strong, highly characterized "models" within the Civil law: the French, and the German, with Italy coming across, and passing through both.
Thus my work is thought from the "borrowing side", and just from the peculiar perspective of the formation of a legal "culture", which, I think, is anyway a major concern today for the emergence of a newer common European law.
In so doing I try, in the first part of the work, to concentrate on the general aspects of the process of importing and exporting legal patterns, and to sketch out a model of appraisal of legal "diffusionism" based on my reading of Watson's theory of tranplsants. The purpose of the model is to show the great role played by legal "elites" and "intellectuals", and their strategies, in promoting borrowings from abroad. Then, in the second part, I use the Italian case as an example of major shifts in the legal discourse. Finally I try to develop some suggestions for the appraisal of import/export of legal patterns.
I start my argument in considering comparative law as an attempt to mediate between a "field" and an "audience", coping with the problem of self-definition of one culture within the legal world. It is indeed patent to me that we can speak of import/export only when we have defined where the boundary is, which means that we have stated principles of inclusion and of exclusion, of similarities and differences. Culture and difference has always been a central concern of comparative law, and the firts step of the conventional approach is to devide the legal world into legal families through the tracing back of common roots, as genealogies to explain the present. Genealogies serve to define who we think we are, or would like to think we are. They define an "us" and a "them", and they are an essential mechanism of how identities are constructed. The "tracing back of the roots" is a work of representation, which occupies a central place in current studies on culture, especially in the practice of exhibiting cultures as "others". In these efforts of mapping cultures, systems of law are rejoined or distinguished according to a theory of what their basic units, or basic structures are, and according to the respective weights to assign to different elements. Thus defining identities depends heavily on the framework assumed for the mapping. A second point of major concern for comparative law has always been the transplants and borrowings of legal models across the various systems and families. This process of transplantation is sometimes presented to be evolutive, I mean without any direct project of governance, and sometimes as the result of a conscious and purposive design of reforms. We can thus single out two major aspects of comparativism in both the "culture and difference" department and the "import and export" sector.
In recent literature we see a renewal of interest in comparative law, aiming at a reconstruction in newer terms of its aims and methods. Of course a main subject today consists of the conciuous projects of export of "Western" legal models in the area of former socialist countries, with striving efforts in design of institutions, and in actual drafting of model laws, peculiarly in the field of Corporations. What is amazing is that such projects of governance trhrough exports of legal patterns are carried on notwithstanding the lack of a commonly accepted theory of legal "identities" and legal transplants. Thus my first aim is to try to sketch a model to cope with these problems.
From this standpoint I think that both the "definition of identities" as well as the "import/export" can be seen as interested, non neutral, purposive projects of governance.
Indeed we can notice that the rise of comparativism in early 19th century Germany has been linked with a project of defining identity and difference, in order to achieve a major borrowing and trasformation of patterns. In this process Roman legal scholarship, in the way it evolved during the Middle Ages and Enlightment has been inserted, as a whole, within the building of a national German law and transformed into a new system which at the end of the process became embodied into the new German code of 1900, the BGB. The definition of identity and difference has so been functional to a major transplant, directed toward the political goal of having a common German law for the new Empire.
Now if we adopt this strategy of analysis to cope with "comparative law" as a discipline, we can see how much it has been an attempt to meet different audiences, and their expectations. Which is to say that comparative law has not normally been "transnational" at all, but rather it has grown within the frameworks of different legal traditions, responding to "inner" needs of legal elites. From this point of view a first unexpected project that can be pursued by comparativism is "insulation".This strategy has been peculiarly pursued in Britain, where the distinction between a Common law and a Civil law has been used to "create" and defend a national identity in the field of the law. But the same "insulation" project has been used by socialist lawyers to mantain a felt separation of socialist countries from the rest of the world. A project purported also by "Western" specialist with a strong professional interest in defining the peculiar subject of soviet studies as one discipline within the Western academic world.
A peculiar strategy of marking difference with "aliens", while borrowing ideas from them, has been adopted by French scholars, and by Saleilles in particular. In his French presentation of the BGB he badged the Germans as different and "philosophical", a kind of an insult among lawyers, while importing conceptions from them. We can define this strategy as a form of "etherization" of the other, and its possible impact: it is a way of assimilating coupled with a denial of the borrowing.
At the opposite of insulation lies the strategy of comparative law for unification. It is quite apparent today the great extent in which the comparative law based on the search of a "common core" is used to deny differences among various european tradition to define a new identity, with practical implications. The definition of a common European legal identity is patently directed toward a massive cross-board import/export of patterns to create a new law. Thus once again the two departments of Comparative law work together by one possible use of comparativism. In this process the boundary among systems is more drawn between "Western" countries and Non-Western laws, in the form of the exoticization of African or Asian laws, and in mantaining an area of common Post-socialist systems as a major area of export of Western patterns. In both cases the "foreign" Non-western systems are made ready to receive Western models as necessary for their development in a clear conventional evolutive paradigm, inspired to such values as "democracy", the "rule of law", and the "free market". It is quite interesting from a comparative point of view that this great effort of the import department is intensively blurring the distinctions so often cultivated in the past among American and European systems. The difference between the French or the German model are quite completely forgotten, and even the sharper distinction between a Common and a Civil law world are softened , adding emphasis on common economic and political structures, and setting aside, toward the background, the legal technicalities by which such common structures operate in the different institutional settings of the "Western" legal world.
I thus end this section mantaining the "purposive" non-neutral character of Comparative law, especially in its more neutral pretentions, I mean the projects of "mapping" the world in legal systems and families. Such "mappings", which are by definition crucial to a theory of transplants, are but efforts in defining identities, and in coping with "others".
In this second section I try to outline a model to account for borrowings and transplants, given the considerations unrolled in the previous section of the work. As I said before I use Watson's theory of legal transplants as a basis.
This theory is normally challenged as conservative or worst, but I think it can turn to be a powerful tool for a critical theory of comparative law.
I think that this is the case because it has not been properly understood the delegimative role it can play, and its eventual revolutionary impact. I do not spouse all of Watson's assertions, and I dissent on many points. Like all theories even Watson's theory is a package, and we can deconstruct it, and use something rejecting the rest, but I also think that we retain the bulk of this theory if we adopt the following reading of it.
What I do now, indeed, is to try to give a radical interpretation of the theory of legal transplants, instead of a conservative one, displaying how this form of conservativism can be used for delegitimation and critique.
If one postulates a close inherent relationship between law and the society in which it operates, legal transplants ought to be virtually impossible. Watson rejects this postulate. Law develops mainly by borrowing. The history of law is characterized by a prodigious amount of borrowings. Legal systems are normally amalgams of patterns received by other systems. Borrowing is common throughout social life, and thus the prevalence of borrowed elements in law is hardly explicable entirely in terms peculiar to law. Legal borrowing calls for special explanation only insofar as it differs from other kinds of cultural diffusion. What is wanted in the study of the diffusion of legal ideas is not simply a catalog of borrowed "traits", but an examination of the devices for cultural sharing and selection through which legal "unity" is constructed and sustained. From this standpoint the essence of a culture is contained in its contradictions, the picking up of foreign elements, and the ideological presentation of them as composing a unity. Ultimately comparative law should aim to produce a general theory about law and legal change and the relationship between legal systems and rules and the society in which they operate. The history of a system of law is largely a history of borrowings of legal materials from other legal systems. I think that this is a perfect statement of a critical view of the law and of legal tradition.
The conservative flavor normally is perceived in what I call Watson's "serendipity approach" to legal change. Chance, he argues, plays a major role in determining what law will be borrowed: legal transplants have not usually been the result of a systematic search for the most suitable model; social and economic factor have a much more limited and attenuated effect than it is normally supposed in theories of law and society: law is largely autonomous operating in its own sphere. Besides in his accounts he emphasizes the absurdity and casual happening of many transplants, aiming, I have the feeling, to mock every effort to build a theory, producing a mass of possible counter-examples to quite every possible theory, with an attitude of skoffing.
I think that conventional criticisms of the law's autonomy singled out by Wastson is misconceived and politically naif. Watson's premise is that the law is largely autonomous because it is largely the product of a law-making-elite, constantly in search of a legitimation, an elite which is relatevely insulated from social concerns. From this point of view his theoy of legal autonomy can be used as a strong critique of the existing and unlegitimated governing elites of lawyers, especially in the Western countries. The theory gives us a picture of law as a bundle of borrowings pursued by insulated elites, who constantly deny the fact, presenting highly sophisticated theories of interpretation, and scholarly elaborated genealogies of evolution, which are indeed to be intended as strategies of self-legitimation. This reading of the theory can tgive us a picture of the law as a battleground of competing "elites" in providing legal doctrines and rules, with strategies of societal governance. Since the use of a "discourse", as a technical and elaborated pattern to frame the world, is a peculiarly relevant strategy of self-legitimation, and dominance, I think that the study of how discourses evolve, and become borrowed and or transplanted is crucial to a radical comparative legal analysis. It is on this basis that I further my argoment in the next section.
In this section we can tray to use the previously developed reading of Watson's theory in connection with the "formants" approach suggested by Rodolfo Sacco.
The "formants approach" focuses on Law as a social activity : a formant of the Law is a group, a type of personnel, or a community, institutionally involved in this activity. From this point of view we find in the Western Legal Tradition an established legal profession, and three main types of personnel within it: the practicing lawyer; the legal policymaker (a legislator, an appelate court judge, or upper level administrator), and the legal scholar (law professors and the like). Courts, legislators, lawyers, are all interacting and competing formants.
The main idea is to substitute the model of the law as a more or less consistent system of interrelated propositions, with a model of competing formants within the peculiar setting of one legal tradition.
As we may see by these sketches, the theory is designed to cope with the different fabrics of the law , conceived as a battleground of competing sources and elites of professionals.
The theory of competing legal formants has some consequences in the field of legal interpretation and legal hermeneutics. A precedent , a statute, and the like, have only the meaning attached to them by competing elitarian groups, placed under different institutional constraints, and with different incentive structures.
From this point of view the theory draws a distinction between the working rules, the practices of a legal system, and the symbolic set, the discourse used by lawyers to describe, justify, rationalize the rules, and give a meaning to texts and authorities. The distinction is indeed one pointing at the "ideology" of a legal tradition to be understood as the system of representations located in the everyday practices, and in the struggle among "formants" in the production of meaning.
The theory implies that it is always necessary to deconstruct the law to reach its working level, beyond the peculiar legal discourse of one tradition. This deconstruction is necessary not only for the sake of comparison, but also for making meaningful economic analysis of the law. Deconstructivism is neither a luxury nor a philosophical intruder, but a necessity coming from within.
In these cases the "difference" or "similarity" between two legal cultures is peculiarly shaped by the legal elites and their styles in discoursive practice. Thus the problem is how and why styles are selected, mantained and transmitted. I shall try to unfold some suggestions in the next section.
From the previous sections we can mantain that law, at least within the Western legal family, evolved normally by transplants, and that the "logic" of them has been directed by competing elites in search of a legitimation. I concentrate on the dual aspect of "giving reasons" for a rule, and "providing a legitimation" for the jurist. If we perceive the "dual nature" of the process we can see how the selection of "opinions" can depend on strategy of legitimation, and vice versa: that an elite can legitimate itself for giving opinions. From this standpoint there can be a "basic strategy" for all the groups competing within the legal process, and this strategy is "covering cases", I mean to find out solutions and opinions to handle with still uncovered cases, filling the gaps, working out rules to cope with "hard" cases. Thus if the "inner" sources and authorities do not cover a class of cases, the basic strategy suggests to find authorities "outside", and borrow solutions from them. This strategy is performed of course minimizing the possible resistance, borrowing opinions, doctrines and rules from known languages, rather than from unkown blends, and so borrowing from proximate systems, rather than from distant ones, and especially borrowing from prestigious patterns, rather than from discredited or models. Prestige is one aspect of the strategy of covering cases avoiding resistance. It's simply much easier to sponsorize a solution invoking a prestigious authority. Thus the model I'm sketching can be labeled as a strategic decentralized approach to diffusionism. All depends on strategies of the borrowing systems; they pick up what they needs, and they use what have borrowed to cope with their own problems. A "model" is highly prestigious if it is borrowed by many, but this depend less on the quality of the model, than on the circumstance that it meets the , eventually very different, expectations of the borrowers. Of course the "elites" of the donor system can try to design a their own strategy of dominance, but as far as the process of borrowing is controlled by the elites of the receiveng system, the formers' strategy can success only if it meets that of the latters. The best strategy for transplanting elites can thus be "ideology and propaganda", I mean to induce the borrowing elites to believe that the offered model meets their expectations. Thus the basic strategy in transplanting is in a prestigious presentation of the model, as one that can easily cover important cases in a way appreciated in the receiving country; sometimes for instance with reference to "efficiency" as a magic key-word in the rhetoric of the borrowing elites.
The model I propose is thus a model of "basic" strategies: "covering cases", and "prestigious propaganda". Of course chance play a major role in a strategic game, and this explains a lot of "serendipity" examples, but chance becomes just a particular case covered by the theory. In my view "prestige" is a label to define complex inter-relations among cultures, but certainly prestige is determined by the followers, according to their strategies, which can well be totally antagonistic toward the donor systems.
From this standpoint I shall then investigate the formation of modern Italian law in relation to borrowings from the French and the German "model". For the purpose of my analysis I'll use Lasser's sketch of the former, and Ewald's account of the latter. I'll use short labels to characterize them, and I obviously apologize for oversemplification needed in this work. The labels I use won't represent the whole of French and German legal culture, but try just to capture the aspects of these compex cultures that we Italians have perceived more, and have tried to import to cope with our , real, or invented problems. Thus I describe the French "official" model as "passive intepretivism": Law is made up of principles, rules and exceptions embodied in legislative "texts"; judges have just to give short opinions referring to the "text" to which a rule is attached; intellectuals, in the field of law, are expected mainly to cultivate "clarity" (clarté) organizing the legal field in clear cut departments and subjects. In contrast I shall characterize the German model as "theoretical activism" : Law is made up of theories to be jointly developed by scholars and superior judges, in a very refined conceptual language, expressing the variety of the world in a highly technical legal discourse; the role of intellectuals is expected to be major, and their "theories" are expected to play a role in the Legal process.
Of course I refer mainly to the "classical" versions of these models as they have been elaborated in the 19th century, and my analisis is indeed especially confined to that period of the formation of Italian legal culture through borrowings from outside. Thus in the next part of the work I analyze first the impact of the French model, and then the overcoming of the German patterns.
In the previous part I sketched a model to cope with import/export of legal narratives and discourses. Now I give a first sketch of the formation of Italian legal culture after the Napoleonic took over of the country. As I already said, modern Italian law , from the early 19th century , has grown indeed as a bundle of borrowed traits.
In the first decades of that century Italy has been taken over by the French army, and the French civil code of 1804 has been introduced quite in the whole country: The North West (Piedmont and Liguria) was annexed to France, and thus the Code civil has been directly put in force in those regions; the Kingdom of Italy (North East and Center) received an Italian translation of the French Code (1805), and the same happened in the Kingdom of Naples, grouping the Southern regions (1808).
After the collapse of the French administration and the Congress of Vienna (1815), for the first half of the century, Italy has been devided in small different states, each with its own legal system. These small states can be grouped in four main regions: the North West, the North East, the South and the Center.
A slight revision of the French code was mantained in the North West [ Kingdom of Sardinia : Piedmont, Liguria and Sardinia] (1837) and in the South [Kingdom of Sicily : Naples and Sicily] (1819). The North East [Milan, Venice, Triest, forming a single realm within the Austro-Hungarian Empire] was ruled by the ABGB. The Centre of Italy was split in two main states: Tuscany, under an Austrian Grand Duke, and the Regions of Rome and Bolonga under the Papal administration. Both countries, after the French experience, went back to the "Jus Commune", a form of uncodified Modern Roman Law, based on Justinian's Compilation as developed in the case law.
As a result of the aggressive foreign politics of the Savoy family, ruling on the North West, Italy was unified in 1861, with capital in Turin, the siege of the Savoy family. This politics was backed by the French government against the former Austrian major influence on Italy, but later Napoleon III refused further help deciding to mantain the Pope in Rome avoiding a global unification of the country. Thus it was only in 1870, when Germans defeated the French, that Italians could finally conquer Rome and dethrone the Pope, so that the Holy city became the capital of the Kingdom of Italy.
Between France and the Italian states there was a complex relation of rivalry and friendship, but certainly Piedmont which performed the forced unity of the country was largely indebpted with French culture, and French was still the blend spoken by the ruling elites as well as by the Royal family, who indeed originated from a French fee.
From the point of view of law the North West adopted in 1848 a Constitution (Statuto Albertino) which was indeed a transplant from the French constitution of 1830 which took the throne out of the Borbons and gave it to Louis Philippes d'Orléans. In 1861 this constitution was extended to whole Italy.
In 1865 the Government decided to reshape globally the legal features of the new Kingdom, and the 2248(1865) Act (still in force) tailored Public Administration on the French patterns of the time.
In the filed of Public law there was, I think, no real alternative : first the unity was achieved by Piedmont, which belonged to a French area of influence, and which indeed became "italianized" only after 1870; secondly unity was acheved against the "others" (the Pope, the Austrians from Milan and Venice, and the southern Kingdom of Sicily) and it would really have been out of the way to adopt their "patterns". Finally the French model was perceived as a "liberal" model: France was the country of liberty and reforms, and the elites purporting the process of unity were all sharing this "liberal" culture.
In the filed of Private law the choice was among three possible alternatives: the French code; the Austrian code ruling all the Norh-East as the more economically advanced region of the new country; and the renewed Roman law, which certainly was felt to be rooted in "national" culture. A fourth alternative could have been the elaboration of a newer "Italian" pattern.
For the purpose of the above sketched "strategic" model we can consider separetly the adoption of a code, and the elaboration of a model, or the import of such a complicated system as the case-law system developed from Roman law. The purpose of the government was to frame national unity in the short run, thus the real alternative was just between the French or the Austrian code.
I mantain that it was a question of "self-definition" much more than a matter of policy. Indeed if we sketch out some basic points we can see that both codes have been designed to cope with a market based society, and thus that no peculiar political issue was at stake in picking one or the other. Both codes were based on the following principles
1. Abolition of the caste system based on status, and general legal capacity of all citizens (general citizenship) [art. 1 C.Nap.; ¶ 17, ABGB]
2. Definition of property rights on land in "absolute" terms, and abolition of perpetuities and feudal incidents [artt. 537 and 544 C.Nap.; ¶ 308, ABGB];
3. freedom of contract and maketable property rights;
4. right of enclosures [art. 552 C.Nap.; ¶ 362 ABGB];
5. Egualitarian Inheritance law coupled with freedom of wills.
The Austrian code is indeed widely credited to be as "liberal" as the French, but "French culture" was much widespread than Austrian among the ruling elites and the choice was in fact imposed by the "winning state" over other Italians. In the same way it was adopted also a French-like Code of commerce, and the Criminal code was tailored on French liberal conceptions. Thus cultural feelings palyed an important role in the choice: Italy had to become a "Latin sister" of France in Southern Europe.
The adoption of a revised French code purported also the borrowing of French legal methods, and organization of courts. The method of italian lawyers was styled after the prevailing French "exegetic" school . The court system was arranged around the French pattern of the Cour de Cassation, but because of the recent achivement of national unity were created five Supreme Courts at Turin, Florence, Naples, Palermo and Rome. A unique Supreme Court was created only in 1923 (Act 601-1923) after the taking of power of the fascist regime.
Because of the lacking of a unified case law, legal education played the major role and it was heavily based on the works and translations of French authors. We can measure the impact factor of French legal culture by the translations of French law books. The Merlin's Commentaries on the the French code were translated in Naples (1824-28), and even in Venice (1834-44), notwithstanding the fact that that land was still ruled by the Austrian code. Also the major Textbooks received an italian version: Duranton in 1852-54; Zachariae in 1862; Aubry & Rau in 1841-49. The last french work was the multi-volumes massive work of Baudry-Lacantinerie, translated in 1900. The end of the century marked a final stop in the process of translation, and also, as we shall see, in the impact of French culture on Italy. In the new century the works of Planiol, Josserand, Gény and so on have been studied but never translated.
Thus as we can see the Constitution, the Codes, the courts, the legal education, and public administration were all created on a French template, but the most influential formant was undoubtely French doctrine. French case law has been borrowed only through the citations of the professors in their books; there was no direct knowledge, neither real interest for French decisions. Italian books were referring the thought of the French professors, not the content of French decisions. As an example we can take a widespread law book of the time, the Emilio Pacifici-Mazzoni's work on Wills: in the first 50 pages of the volume Demolombe is cited 68 times, followed shortly by Marcadé, Aubry & Rau, and Toullier, whereas there is just one citation of a French case. That's quite interesting because the role of the case law, and in particular the role of the Cour de Cassation, has been overwhelming in France. Indeed the Italian judicial style in writing opinions remained shaped after that of the Courts of the old jus commune (mainly the courts of Florence and Rome), and was not influenced by the concise way of French judges to write opinions of just one sentence. From this standpoint there was a split up between the "culture of judges" and the "culture of professors". The literaly style of the formers preserved a national pattern, whereas the style of the latters introduced French exegetics.
Thus we can see that Italian legal culture borrowed the French legislation, and the french doctrine, much more then the case law. Borrowing is a selective activity, and it should be quite misleading to say that the "French model" has been transplanted into Italy, because the transplanted model happened to become quite different from the original. Once again it is the theory of formants, I think, that can help us in understanding that "models" are made up of different traits, and that in the borrowing process original traits can be mixed up, and even twisted around, to produce a different model. In fact there was a reversal of background and foreground in transplanting the French model into Italy, since the role of the courts was certainly put behind that of doctrine, opposite to the original French version of powere relations between these formants. In the next section we can see how this increased role of intellectuals geve birth to a major shift from the French towars the German "style" of legal thought within the legal profession.
In the previous section we have seen how the French model has been received in Italy with an emphasis on the role of intellectuals. Now we can see that after National unity in 1870 Italian universities were reorganized  on new standards, and in particular the law schools were entrusted to a "first generation" of professional legal scholars. From the very beginning the best developped department within the new legal academia has been that of Roman law. All the leading figures of this first generation of scholars have been professional Romanists. It is quite evident that they were interested in theory and in Roman law, and that they could find both in Germany. In few decades Italy became one of the provinces where German studies exercised their strong influence. The shift away from the French legal culture was widespread, and started just because of the felt prestige of German academic studies in the field of Roman law. Italian professors began to borrow the German "theoretical" approach to law, which had a strong impact in the law schools, in comparison with the now discredited French method, and the new lawyers and judges began to be educated in the new German mood. Thus the "style" of the legal discourse changed dramatically, and a new legal jargon was tailored after German templates.
As I said the "professionalization" of the academia was a major factor in the shift; the leading figure in this process has been Vittorio Scialoja (1856-1933). He was a great mentor, with a lot of disciples in all academic fields: Bonfante e Segré in Roman law, Filippo Vassalli and De Ruggiero in Private law, and Chiovenda in Civil procedure. He was also one of the most activist borrowers from Germany, together with Filippo Serafini (1831-1897) Fadda (1853-1931) and Bensa (1858-1928). Professional academics found indeed in German doctrines an exellent fuel for their legitimation within the schools, and even within the legal process. Once again we can trace the translations of German works to measure out their impact. At the mid of the century Serafini and Colgiolo translated the immense Gluck's Pandects. Vittorio Scialoja in 1886 published a version of Savigny's "System", Fadda and Bensa translated Windscheid's work in 1903-1905, which was reprinted in the thirties. All the major Italian jurists of the time adopted the German approach: Nicola and Leonardo Coviello; Francesco Ferrara sr., Giuseppe Messina, Ettore de Ruggiero, Vittorio Polacco, Giovanni Pacchioni.
In order to contrast the old French mood to the newer German style it is quite useful to cite a biographical narrative by one of the leading authors of the thirties: Giovanni Pacchioni:
"[I] remember the teachings of my two main professors: Piero Cogliolo and Pasquale Melucci. The latter, since he was a disciple of Pacifici Mazzoni, followed the French style, and that of Laurent in particular. The former having been a student of Filippo Serafini followed the methods and theories of Savigny, and of the other great German scholars as Windscheid, Brinz, Becker et al.
The two way of teachings were strikingly opposite.
Melucci was giving classes on the basis of an article of the code. He used to construe the meaning of it, and with an exercise of logic tried to derive all the possible consequences; and when these were hard, his usual memento to the young students was : dura lex , sed lex.
On the contrary Cogliolo gave lectures starting from old Roman law, reconstructing the historical evolution of legal conceptions through the ages up to the present Code, discussing solutions on the basis of analytical, as well as sociological doctrines.
Even if I was very young I could easily perceive that the German approach was quite superior. An approach that thanks to Filippo Serafini and Vittorio Scialoja has become prevailing.
I could never suffer the dura lex sed lex."
I think that this narrative captures the felt difference between "passive interpretivism" and "active theory" that was a key factor of the German success in Italy. The new German approach placed indeed the "intellectuals" in a new context within the legal process. The "intellectuals", the law school professors, more than the judges , had to lead the process, because theory was the realm of intellectuals, and law was essentially conceived as theory. The role of courts would have just become that of "applying" professors' theories to particular cases. Law had to be conceived not as a bundle of rules, but of conceptions. Rules were to be derived from the latters, which were to be refined by professors. Besides it was quite evident that statutory provisions could just have the meaning and scope allowed them by academics. In the beginning the prestige of professors induced lawyers and judges to accept their role and to imitate their way of writing. The "theoretical" mood of the legal discourse became a dominant paradigm even among practitioners. It is also quite clear that this strategy of dominance succeded because of the lack of one Supreme Court, and because of a weak organization of the bar.
The shift away from French culture became so prevailing that when in the twenties Italian and French government decided to adopt a common code of Contracts, the project aborted because of the opposition of academic elites against a project based on "outdated" French patterns.
The twenties represented the height of the German prestige in Italy. In the thirties a new generation sat on the chairs, starting to challenge from within the German paradigm. Two leading authors, Fr. Ferrara sr., and G. Messina, fueled a new wave: the "critique" of the prevailing German paradigm by way of the same German formalism. Salvatore Pugliatti and Mario Allara became the major representatives of this approach. In their views "intellectual honesty" requires almost always to rethink law globally producing new theories, giving up received truths and categories to build new systems and even a new vocabulary when needed. They culvitated "mere brillance" as the proper academic standard and as the proper approach to law. Their unintended impact was that each professor engaged in developing new theories, with new concepts, new categories, and a new vocabulary. The "common enterprise" of the German pandectists became an individualistic effort to propose the "best" and personal system of the law. Since this happened when the different courts have been unified in one Supreme Court, the unattended consequence was that the role of professors rapidly declined and that of judges increased. The Supreme Court was entrusted to a leading figure Mariano D'Amelio, who succeeded in reorganizing the previous case law in a coherent way, imposing a practice of stare decisis which raised the impact of the Court. Thus we can see how the academic intellectuals lost their role of preminence when split up in different schools , each cultivating its own "system", and in contrast the judiciary was reorganized around one Supreme Court. Thus from the standpoint of cultural strategies the overstatement of "theory" and "brillance" proved to be a very poor move, leading to a quite global discredit of intellectuals in favor of an increased judicial role in the legal process.
All this had a further impact when the fascist regime decided to adopt a new code. The project was entrusted to law professors, but they were no longer the "oracles" of a common legal culture, but the devided exponents of different schools. Thus it was quite impossible to get together their different definitions, categories and vocabularies. The end of the story was a unified code of private and commercial law, enacted in 1942, with some but limited influence from the BGB, mainly in the filed of corporations and partnerships, and the law of inheritance. As a result the new Italian code was simply a rewording of the previous codes. Indeed all the major features of the German code embodied in the "Allgemeiner Teil" of the BGB, were not transplanted, because the "querelles de chapelle" about "general conceptions" were too strong in the drafting committee. Thus the French pattern of legislation resisted change because of the inner disharmony within the academia, provoked by the exagerations of "theory and brillance".
Once again the borrowing system realized a unique mixture, among French and German patterns, unthinkable at home. It is a "contamination" based on the peculiar selectivity of borrowing. From a wider perspective I mantain that this kind of "contamination" in legal cultures is the key feature of borrowings and transplants of legal patterns, which I shall try to sketch in the conclusions.
Is there any conception to be drawn from the history we told ?
First of all I mantain that the process of import/export of rules and institutions is an almost "unconsciuous" process of plunging them into the "ideology" of the borrowing system. Thus the meaning of the borrowed institutions will depend only on the struggle among the formants of the receiving system, which almost always will produce something different from the original. But I think that also the ideology of a system is very often not a product of local and inner developments, but a contamination of different traits derived from outside. In more general terms the actual legal world is more to be seen as a world of "contaminations" than a world split up in different families. The widespread cross diffusion of French and German patterns within the Civil law, and the overcoming of American models in the present, shape a similar legal landscape all across the world, with a wilderness of local variances. I do not think that these contaminations are something new, linked with globalization. I think that, with the eventual exclusion of peculiarly insulated legal systems, as the old "classical" English Common law, rooted in a peculiar organization of the legal profession, quite every system , even in antiquity, has grown through "contaminations". What I think is that the practice of borrowings has always been a normal practice, and above all that it has never been, nor it is to be, a peculiar activity of "comparative" lawyers. It is a purposive practice, to be carried on by municipal lawyers, and to be studied especially from the point of view of "weak" borrowing systems, responding to inner strategies of governance and legitimation of "legal" elites, involved in the conventional process of covering cases with authorities, and producing meaning.
As I saw him or her a "comparativist" is one who is not involved in these ideological processes, because he or she or she made a "move out", as a strategy of deconstruction and critique. He's one who decided to wander about.
What a comparative lawyer can do, as a comparativist, is to reveal the unofficial, and to critique those processes of meaning production as social and political realities, peculiarly in a world of "contaminations".
Ajani, G., "By Chance and Prestige: Legal Transplants in Russia and Eastern Europe", 43 Am.J.Comp.L. 93 (1995).
Barrett, M., The Politics of Truth: From Marx to Foucault, Stanford Univ.Pr., 1991.
Black, B., & Kraakman, R., "A Self-Enforcing Model of Corporate Law", 109 Harv. L. Rev. 1911 (1996).
Campbell, E., "German Influences in English Legal Education Jurisprudence in the 19th Century", in Univ. of Western Australia L. Rev., 1959, 357.
Eagelton, T., Ideology: An Introduction, New York, Verso, 1991.
Ewald, W., "Comparative Jurisprudence (I): What Was it like to Try a Rat?", 143 U.Pa. L. Rev. 1889 (1995); Id., "Comparative Jurisprudence (II): The Logic of Legal Transplants", 43 Am. J. Comp. L. 489 (1995).
Gambaro, A., & Sacco, R., Sistemi giuridici comparati, Torino, Utet,1996.
Gambaro, A., & Guarneri, A., "Italie", in La circulation du modele juridique francais, 14 Travaux de l'Association Henri Capitant, Paris, Litec, 1993, 77.
Gambaro, A., "Codice civile", in 2 Digesto italiano, 4th ed., Torino, 1988, 442.
Ghisalberti, L., La codificazione del diritto in Italia, Bari, Laterza,1985.
Hamza, G., Comparative Law and Antiquity, Budapest, Akadémiai Kiadò, 1991.
Gordley, J., "Mere Brillance: The Recruitment of Law Professors in the United States", 41 Am.J.Comp.L. 367 (1993).
Gordon, R. W., "Critical Legal Histories" , 36 Stan.L.Rev. 57 (1984).
Horowitz, D.L., "The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change", 42 Am. J. Comp. L. (I) 233 (1994), (II) 543 (1994).
Howe, W.W., Studies in the Civil Law and Its Relations to the Jurisprudence of England and America, Boston, Little Brown, 1905.
Kennedy, Da., "New Approaches to Comparative Law: Comparativism and International Governance" , 1997 Utah L. Rev. (forthcoming Dec. 1997).
Kennedy, Du., A Critique of Adjudication (fin de siècle) , Harvard Univ. Pr., 1997.
Komesar, N.K., Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy, Univ. Chicago Pr., 1994.
Lasser, M., "Judicial (Self-)Portraits: Judicial Discourse in the French Legal System", 104 Yale L.J. 1325 (1995).
Legrand, P., "European Legal Systems Are Not Converging ", 45 Int'l & Comp.L.Q. 52 (1996).
Legrand, P., "Against a European Civil Code", in 60 Mod.L.Rev. 43 (1997).
Mattei, U., Comparative Law and Economics, Univ. of Michigan Pr, 1997.
Mattei, U., "Efficiency in Legal Transplants: An Essay in Comparative Law and Economics", 14 Int'l Rev. Law & Ec. 3 (1994).
Mattei, U., "Why the Wind Changed: Intellectual Leadership in Western Law", 42 Am.J. Comp.L. 195 (1994)(b).
Monateri, P.G., "Règles et technique de la définition en France et en Allemagne: La Synecdoque francais", in Revue internationale de droit comparé , 1984, 3.
Pacchioni, G., Il diritto civile italiano, I, Padova,Cedam, 1937.
Reimann, M., (ed.) The Reception of Continental Ideas in the Common Law World 1820-1920 , Berlin, Duncker & Humboldt, 1993.
Rescigno, P., "Fondazione", in Enciclopedia del Diritto, Milano, Giuffré, 1968.
Sacco, R., Introduzione al diritto comparato, 5th ed., Torino, Utet, 1992.
Sacco, R., "Legal Formants : A Dynamic Approach to Comparative Law", 39 Am.J.Comp.L. (I) 1 (1991), (II) 343 (1991).
Saleilles, R., Etude sur la théorie génerale de l'obligation d'après le premier projet de Code civil allemand, Paris, 1890.
Santoro Passarelli,S., "Dai codici preunitari al codice civile del 1865", in Studi A. Torrente, Milano, Giuffré., 1968, 1029.
Tarello, G., "La scuola dell'esegesi e la sua diffusione in Italia", in Scritti per il XL della morte di Bensa, Milano, Giuffré, 1969.
Valeri, N., (ed.), Storia d'Italia, Torino, Utet, 1965, 5 vols.
Vattimo, G., The Weak Thought and its Strenght (Dario Antiseri & Gwyneth Weston transl.) Avebury, 1996.
Watson, A., Legal Transplants: An Approach to Comparative Law, , 1st ed., Scottish Academic Pr, 1974, 2d ed. , Univ. of Georigia Pr., 1993.
Watson,A., The Evolution of Law, John Hopkins Univ. Pr., 1985.
Watson, A., The Making of the Civil Law Systems, Harvard Univ. Pr.,1981.
Watson, A., "Comparative Law and Legal Change", 37 Camb.L.J. 316 (1978)
Watson, A., Society and Legal Change , Scottish Academic Pr, Edinburgh, 1977.
Wise, E.M., "The Transplant of Legal Patterns", 38 Am.J.Comp.L. 1 (1990 Supp.)
 See Watson, A., Legal Transplants: An Approach to Comparative Law, , 1st ed., Scottish Academic Pr, 1974, 2d ed. , Univ. of Georigia Pr., 1993.
 Something which, according to me, has nothing to do with Comparative law.
 I refer to Komesar, N.K., Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy, Univ. Chicago Pr., 1994. Now the idea of melding Comparative law and Economic analysis has been developed in Mattei, U., Comparative Law and Economics, Univ. of Michigan Pr, 1997.
 Komesar, o.c., 1994, 270.
 See Legrand, P., "Against a European Civil Code", in 60 Mod.L.Rev. 43 (1997).
 Ewald, W., "Comparative Jurisprudence (I): What Was it like to Try a Rat?", 143 U.Pa. L. Rev. 1889 (1995); Id., "Comparative Jurisprudence (II): The Logic of Legal Transplants", 43 Am. J. Comp. L. 489 (1995).
 For a definition of "civility" see Watson, A., The Making of the Civil Law Systems , Harvard Univ. Pr., 1981, at 4.
 See Vattimo, G., The Weak Thought and its Strenght (Dario Antiseri & Gwyneth Weston transl.) Avebury, 1996. Here I use "weak" especially to mean a trradition widely opened to foreign "cultural intruders"
 On the relevance of history for a critical appraisal see Gordon, R. W., "Critical Legal Histories" , 36 Stan.L.Rev. 57 (1984).
 See, e.g., Mattei, U., "Efficiency in Legal Transplants: An Essay in Comparative Law and Economics", 14 Int'l Rev. Law & Ec. 3 (1994), at 10 talking of "[t]he scope of the market of legal doctrines".
 See Barrett, M., The Politics of Truth: From Marx to Foucault, Stanford Univ.Pr., 1991, 97.
 See Legrand, P., "European Legal Systems Are Not Converging ", 45 Int'l & Comp.L.Q. 52 (1996), at 53.
 Kennedy, Da., "New Approaches to Comparative Law: Comparativism and International Governance" , 1997 Utah L. Rev. (forthcoming Dec. 1997).
 Here I make special reference to the works of Kennedy, Da, 1997; Ewald, W., 1995, and Lasser, M., Lasser, M., "Judicial (Self-)Portraits: Judicial Discourse in the French Legal System", 104 Yale L.J. 1325 (1995), strongly challenging conventional Comparative law scholarship,, and showing a feeling of discomfort toward the settled circles of professional comparativists.
 See Black, B., & Kraakman, R., "A Self-Enforcing Model of Corporate Law", 109 Harv. L. Rev. 1911 (1996).
 See Hamza, G., Comparative Law and Antiquity, Akadémiai Kiadò, Budapest, 1991, 34 ss.
 See Howe, W.W., Studies in the Civil Law and Its Relations to the Jurisprudence of England and America, Boston, Little Brown, 1905, 109 ss.
 See Ajani, G., "By Chance and Prestige: Legal Transplants in Russia and Eastern Europe", 43 Am.J.Comp.L. 93 (1995), at 94.
 Saleilles, R., Etude sur la théorie génerale de l'obligation d'après le premier projet de Code civil allemand, Paris, 1890.
 I make special reference to the conception of Abus de droit, which was then inserted in ¶ 226 BGB, and which after Saleilles became a major topic of French doctrine.
 See Kennedy, Da., o.c., 1997.
 See references infra in bibliography.
 Ewald,W., o.c., 1995.
 See also Wise, E.M., "The Transplant of Legal Patterns", 38 Am.J.Comp.L. 1 (1990 Supp.)
 See Watson, A., "Comparative Law and Legal Change", 37 Camb.L.J. 316 (1978) .
 Watson, A., Legal transplants: An Approach to Comparative Law (1974, 2d ed. 1993); See also Ajani, G., o.c., 1995.
 On the opposite Mattei, U., o.c., 1994 mantains that "Efficiency" should lead the process.
 Watson,A., The Evolution of Law, 1985, at 119.
 See Kennedy, Du., A Critique of Adjudication (fin de siècle) , Harvard Univ. Pr., 1997, at 284 on the emphasis on the role of elites as a distinctive feature of progressive historicism in comparison with neo-Marxian analysis.
 For an use of Watson's theory pointing at "borrowings" as "techniques" of legal elites in collaboration with political leaders, with reference to Islamic law see Donald L. Horowitz, "The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change", 42 Am. J. Comp. L. (I) 233 (1994), (II) 543 (1994) at 570.
 If these elites are insulated from society, the law they produce will be autonomous from social needs, otherwise it will not be the case.
 Sacco, R., "Legal Formants : A Dynamic Approach to Comparative Law", 39 Am.J.Comp.L. (I) 1 (1991), (II) 343 (1991).
 See also Mattei, U., o.c., 1997, 101 ss.
 See Eagelton, T., Ideology: An Introduction, New York, Verso, 1991
 It is not hard to see how much the French have been masters in this game in all comparative law conferences.
 See also Ajani, G., o.c., 1995.
 E.g. the Mejii strategy in borrowing cultural traits from the West, to better prepare a counter-strategy, or that pursued by many African or Asiatic elites to get education in Europe to better prepare an alternative ruling class to Europeans.
 See Lasser,M., o.c., 1995.
 See Ewald, W., o.c., 1995, (I) 1990-2094.
 See also Monateri, P.G., "Règles et technique de la définition en France et en Allemagne: La Synecdoque francais", in Rev. Int. Dr. Comp., 1984, 3 ss.
 See Santoro Passarelli,S., "Dai codici preunitari al codice civile del 1865", in Studi A. Torrente, Milano, Giuffré., 1968, 1029
 See Valeri, N., (ed.), Storia d'Italia, Torino, Utet, 1965,, IV, 89-191.
 Gambaro, A., "Codice civile", in 2 Digesto italiano, 4th ed., Torino, 1988, 442, at 447.
 See Sacco, R., Introduzione al diritto comparato, 5th ed., Torino, Utet, 1992, at 224 and 256.
 See Gambaro, A., & Guarneri, A., "Italie", in La circulation du modele juridique francais, 14 Travaux de l'Association Henri Capitant, Paris, Litec, 1993, 77, at 78 ss.
 See Tarello, G., "La scuola dell'esegesi e la sua diffusione in Italia", in Scritti per il XL della morte di Bensa, Milano, Giuffré, 1969.
 See Gambaro, A., & Guarneri, A., o.c., 1993, at 82.
 Writing a one-sentence opinion is the traditional French style, but the Circulaire du 31 janvier 1977 allowed judges to frame their opinions in two or more sentences (!).
 See Valeri, N., o.c., 1965, IV, 657-689.
 See Gambaro, A., & Guarneri, A., o.c., 1993, 82.
 For German influences in America see Reimann, M., (ed.) The Reception of Continental Ideas in the Common Law World 1820-1920 , Berlin, Duncker & Humboldt, 1993.
 See Sacco, R., o.c., 1992, 259-263.
 Sacco, R., o.c., 1992, 261.
 Pacchioni, G., Il diritto civile italiano, I, Padova,Cedam, 1937, vii. See also Gambaro,A, & Guarneri, A., o.c., 1993, 86.
 Sacco, R., o.c., 1992, 262.
 See Gordley, J., "Mere Brillance: The Recruitment of Law Professors in the United States", 41 Am.J.Comp.L. 367 (1993).
 Ghisalberti, L., La codificazione del diritto in Italia, Bari, 1985
 Rescigno, P., "Fondazione", in Enciclopedia del Diritto, Milano, Giuffré, 1968
 Gambaro, A., and Sacco, R.,o.c., 1996, 381-383.
 Gambaro, A., and Sacco, R., o.c., 1996, 367-370.
 Mattei, U., "Why the Wind Changed: Intellectual Leadership in Western Law", 42 Am.J. Comp.L. 195 (1994
 See the defence of English insulation preached by Legrand, P., o.c., 1996.
 See Hamza, o.c., 1991.
 That's why I think that the best efforts are those to produce "self-enforcing institutions" as suggested by Black & Kraakman, o.c., 1996.
 See Lasser, o.c., 1995, 1343 ss.