MAKING THE OTHER PATH EFFICIENT. ECONOMIC ANALISYS AND TORT LAW IN LESS DEVELOPED COUNTRIES (1).


Mauro Bussani and Ugo Mattei (2)
Copyright M. Bussani and U. Mattei, 1995.


Introduction

The spread of Law and Economics is one of the most important
examples of methodological legal transplants in Western  law
(3).  From the United States this approach has reached other
Common Law countries such as Canada and England, as well  as
a  number  of  European  Civil Law  jurisdictions  including
Germany,  Holland and Italy (4). The founding of  the  Latin
American Association of Law and Economics is evidence of the
continuous  appeal of this approach in very different  legal
systems. Scholars have noticed this phenomenon and  are  now
trying to explain the reasons for it (5).
The  aim  of  t his paper is to advance or understanding  of
whether and to what extent Law and Economics has a future in
addressing, both from a positive and from a normative  point
of  view,  legal  systems  of the  so  called  "Third  World
Countries" (6) which are outside the Western Legal Tradition
(7).  The primary purpose of this paper is twofold.  On  the
one  hand  we seek to avoid problems of cultural imperialism
such as those that affected the American Law and Development
movement in the 1960th and 1970th, and which eventually  led
to  its  failure.(8) On the other hand we attempt to  enrich
our  understanding of Law and Economics by  applying  it  to
legal  systems very different from those in which it has  so
far fluorished.
Our  paper  proceeds  in the following way:  part  one  will
focuses  on general issues of Comparative Law and Economics.
We   try  to  explain  from  an  economic  perspective  what
characteristics  make Western Law homogeneous  in  order  to
have  a  clear  picture  of  which  legal  systems  we   are
considering.  Part two discusses some of the assumptions  of
Law  and  Economics  which may limit the  possibility  of  a
succesful transplantation of this method outside of  Western
Law.  Part  three takes environmental tort  law  in  several
African  and  Latin American countries as an application  of
Law  and  Economics outside of the Western Legal  Tradition.
Finally, part four offers some general conclusions regarding
the  application of Law and Economics to legal  analysis  of
less developped countries.

I.   A   Schematic  Framework  for  Classifying  the   Legal
Traditions of the World.

The Eastern European revolution of 1989 signifies the end of
the  most  widely accepted classification in legal  families
among  comparative law scholars (9). For purposes of general
classification, even if nuances were not absent,  the  legal
systems  in  the world were divided into Civil  Law,  Common
Law, Socialist Law and Religious or Traditional law.  Today,
socialist law has practically disappeared in eastern Europe,
Africa  and  Latin  America, with the notable  ecception  of
Cuba.  In  Asia it remains an important part  of  the  legal
systems  of China, North Korea and Vietnam, but the  general
sense  has always been that these legal cultures were better
classified  within  (10)  the  so  called  traditional   law
families.
Outside  of  the  fall of socialist law, some methodological
revolutions  have led to a rethinking of common assumptions.
The more sophisticated comparative literature challenges the
rigid  distinction  between Common Law  and  Civil  Law  and
proposes to group these two families of legal systems within
the so called Western Legal Tradition (11). This proposal is
largely justified by major phenomena of convergence  and  of
legal   transplants  between  civil  law  and   common   law
countries.  Also, comparativists became aware  of  the  fact
that  legal systems are not monolithic institutions but  are
very  dynamic  entities composed of a  plurality  of  layers
which  may  be influenced by one or the other legal  family.
Many   Latin  American  Countries,  including  Mexico,   for
example,  are  influenced mostly by the  civil  law  in  the
domain of private law and more significantly by American Law
in that of Public Law.
The  need of rethinking classifications is clear also as far
as  religious  or  traditional law  is  concerned.  In  this
context, on one hand, it became clear that the evolution  of
legal systems in the growing area of market transactions has
limited its role in narrower areas such as family law,  real
property  -- including successions -- and possibly  criminal
and   tort  law.  Japan  is  a  good  illustration  of  this
phenomenon.  Yet,  at the same time, many islamic  countries
have  become  increasingly aware and conservative  of  their
cultural and religious specificity so that Islamic  law  may
be expected to become increasingly influential in the domain
of transnational legal practice.
The  community of Comparative Lawyers is now discussing  new
possible   schemes  of  classification  (12).  For   present
porpuses it is sufficient to maintain that the Western Legal
Tradition  can  be  considered roughly  homogeneous  in  its
economic,  political  and  legal-cultural  assumptions.   In
particular:  from an economic perspective  its  systems  are
mixed, with a large, well developped private sector (market)
and  a  variably sized public sector. Politically  speaking,
they   are   multiple  parties  democracies  with  important
ideological  divisions, most important as to the  extent  of
the  market and of the public sector. The fundamental  mixed
nature of the economic systems, however, is not disputed.
From  a  legal  point of view, the Western  Legal  Tradition
shares  the  assumption that the legal process is  different
and  should remain different from the political process. The
former  tending to be neutral while the latter is  based  on
parties.  Also,  in  the Western Legal  Tradition   law  and
religion tend to have different domains: lawyers and priests
do  have  different  jobs, the former being  concerned  with
social  institutions  while the  latter  with  the  intimate
aspect of individual beliefs.
This  very  schematic picture gives us a rough  map  of  the
systems belonging to this family: such systems are (most of)
Western Europe, the United States, Canada, Australia and New
Zealand. With the eception of Japan, in this family includes
all of the leading economic powers of the world (13).

1.2.  Law  and  Economics: The Product of  a  Leading  Legal
Culture.

In  the  1950's  the  United States  supplanted  France  and
Germany  as  the  leading legal systems within  the  Western
legal tradition (14). By "leading legal system" we mean that
legal solutions, doctrines, institutions and so on developed
in  United  State's law are today copied and considered  for
purposes of importation more than the ones developped in any
other  legal  system in the world. Since the  Western  Legal
Tradition is leading worldwide, American scholars are  today
the  most influential in the world. Such leadership is clear
in the process of privatization in Eastern Law as well as in
China  where  American  advisors play  a  major  role.  Even
outside  of  organized  efforts of  legal  cooperation,  the
impact  of American law beyond Western law is clear.  Japan,
once more, illustrates the point.
An  explanation  in economic terms would  be  tempting.  The
United States is the leading economic power in the world. It
is  natural  that  it should also become the  leading  legal
power. Of course, there is some truth in this assumption. It
is  just  obvious, as it has always been the case  in  legal
history,   that  economic  leadership  carries  some   legal
leadership.  China  and  Japan, just  to  give  two  obvious
examples, were "persuaded" to enact western codes of law  in
order to attract investments from western powers late in the
Nineteenth century (15). Economic leadership, however, falls
short  of  a persuasive explanation of the dynamic of  legal
leadership.  If such was the case we should be  prepared  to
argue  that more advanced economic powers always exert legal
influence on less advanced ones. But Japanese law  does  not
have  any  influence outside of its geographic  region.  And
English law, even when England was the leading political and
Economic  empire, never influenced the law  outside  of  its
(broad)   political  boundaries.  Economic  leadership,   to
summarize,  is  neither necessary nor sufficient  for  legal
leadership. Legal leadership has to do with legal culture as
much as with economic power. Intellectual leadership can not
be  imposed by means of political or economic influence.  It
must  be  willingly accepted by the legal  cultures  of  the
influenced countries.
If  we  focus on less developped countries, this  phenomenon
may explain the failure of the Law and Development movement,
resisted  by  a Latin American legal culture which  did  not
accept  "modernization" by a jurisprudential system  foreign
to  its  tradition. More important for our purposes, it  may
become  the  key  to  understanding  the  prestige  and  the
possible (future) influence of Law and Economics outside  of
the Western Legal Tradition.
Most  less  developed countries do not share either  one  or
both  of the basic legal assumptions of the rule of  law  as
understood  in  the more developed countries comprising  the
Western  Legal Tradition. Many times, (as it is the case  in
some  of  the  least developped African and  Latin  American
Countries)  the  political process  and  the  legal  process
overlap.  Other  times,  (most African,  Islamic  and  Asian
Countries)  the  domain of law and that of religious  belifs
overlap.  In section 4 we turn to what possible  impact  the
former  phenomenon  may have on the  reception  of  Law  and
Economics.

 2. Western Assumptions of Law and Economics and Non Western
Values.

Two  fundamental assumptions support economic reasoning. The
first   one   may   be  referred  to  as  the  "rationality"
assumption.  Economic  theory  is  concerned  with  rational
maximizing  behaviour in conditions of scarcity. The  second
assumption  may  be  referred to  as  "the  individualistic"
assumption:  Individuals are the best judges  of  their  own
preferences.
These   two  foundational  assumptions,  together  with   an
assumption  of  negligible  transaction  costs,  lead  to  a
consequence that is sometimes defined as the positive  Coase
Theorem:  individuals tend to bargain out between themselves
efficient results (16). These two basic assumptions seem  to
be  sufficiently unbiased ideologically (17)  to  allow  the
economic  argument to claim a role also in  approaching  non
Western  legal systems. To be sure, outside of  the  Western
Legal  Tradition  we  find a larger role for  non-individual
centered perspectives.
As  it  is very well known, markets in conditions of extreme
scarcity,  as  in certain less developed countries,  usually
operate  in communities that have homogeneous value systems.
In  communities in which transactions do take place  between
close  groups  of individuals, these shared cultural  values
constitute the background of the market transaction. In such
contexts (e.g. a small rural community marketplace) (18)  it
may  be argued that the Positive Coase Theorem is undermined
by  the  lack  of  an individual-centered  approach  and  of
utility  maximizing attitude (19). Assuming this observation
as  true,  we  may  however argue that once  the  small  non
individual centered approach interacts with the needs  of  a
larger   less  homogeneous  community,  Law  and   Economics
immediately faces familiar problems.
A  well established line of scholarship, offers evidence  of
the  kind  of  problems that Law and Economics scholars  may
help to resolve. It is sufficient to think about some of the
work  published on slums in less developed countries  towns,
from  Africa  to Southern America (20), or to  the  work  of
Cooter on Papua New Guinea (21). We find here a role for Law
and  Economics as a tool of approaching problems such as the
nightmare of mega-communituies under immigration pressure or
the transition from traditional to modern economy.
Sometimes,  the market and its intrinsically individualistic
approach is seen as value corrupting. Law and Economics,  as
well  as all Western products, may then be charged with  the
responsibility for this corruption. Of course, good Law  and
Economics  has nothing to say on these objections  based  on
etnocentrism. We may only observe that it is not responsible
for  the (more or less conscious) choices of a community  to
endorse   capitalism   as  its  developing   target.   Since
Comparative Law and Economics, like comparative  law,  is  a
descriptive rather than a normative discipline, its  utility
can  not  be  challenged  on this ground  (22).  As  to  the
normative  ground,  let us suspend our  judgment  until  the
conclusions  of this paper. We may already say very  clearly
at  the outset, however, that it is the responsiblity of Law
and  Economics  scholars not to use their  expertise  as  an
ideological tool of market oriented conservative propaganda.
Such risks of abuse, of course, have nothing to do with true
scholarship and with the quality of the product.
Law   and   Economics   scholars  may   learn   from   legal
antropologists the best tools to understand the  non  market
forces behind the development of each society (23); Law  and
Economics  however  claims a role whenever  we  can  find  a
market  at  whatever  stage of development  the  society  of
interest might be in.
This  last  observation also responds  to  another  possible
objection  to the extension of Law and Economics outside  of
the   Western  Legal  tradition.  As  is  well  known  among
comparative lawyers, a number of legal systems in the world,
most notaby the Chinese and the Japanese, are based on a set
of  values  rooted in the Confucian tradition in  which  the
idea of obligation is much stronger than that of right (24).
Also  in such systems the assumptions of bargaining in one's
self interest may be misplaced (25). Rather than dwelling on
theoretical discussions, we can point out here that Law  and
Economics  is already playing an important role in  Japanese
legal  studies  with the work of Mark Ramseyer  and  that  a
number   of   Japanese  scholars  are  specializing   in   a
increasingly succesful method for applying Law and Economics
to  their own legal system. As for China, the impact of  Law
and Economics scholarship in the process of privatization is
yet  to be seen, but judging from the number and the success
of  translations,  it looks like it is regarded  as  a  very
interesting approach. On top of everything we may say  that,
from  the  individualistic assumption,  it  is  possible  to
analyze in terms of efficiency any kind of legal and  social
institution, including those which do not share it.  How  to
use  the  results  of this analysis is not  a  problem  that
should worry law and economics scholars.

2.1. Law and Economics of Development: a Change of Paradigm.

A  huge literature, both anglophone and francophone, may  be
found  on Law and Development (26). And a clear tension  can
be  seen between Law and Development scholarship on one side
and  some anthropological literature on the other. From  the
latter perspective, the very idea of development can be seen
as  ethnocentric. It assumes the existance of just one  path
of  development already followed by the so called  developed
countries  which the developing countries should  follow  as
well.  According  to  the critics of  Law  and  Development,
developing  countries  may  be considered  as  rooted  in  a
different set of values and assumptions, foreign to the idea
of  development  in the tradition of capitalism.  A  typical
example  usually  given  is  the  inalienability  rule  that
governs land law in a number of non western societies.  This
rule, inefficient from an economic perspective, is explained
as protective of future generations in a direction much more
environmentally friendly than an efficient  market  of  land
(27).  This line of thought, followed by a number  of  legal
anthropologists,  is in turn challanged  as  conservationist
and archeological. (28).
Indeed,  reading  this debate within  a  Law  and  Economics
paradigm may suggest that it is somewhat sterile because  of
its  inherently normative ground. In resisting the normative
dimension,  we are ready to admit a shortcoming of  economic
efficiency  as  an  instrument of policy  analysis:  in  its
technical  form  it does not have anything  to  say  on  the
intergenerational ground. The mentioned fundamental a
ssumption   of   economic  efficiency  requires   a   living
maximizing market actor. It is, however, true that  Law  and
Economics  has  in the course of time somewhat  diluted  the
technical  concept of efficiency (29) so that it should  not
be  impossible to introduce the inter-generational dimension
in  its analysis. Whether it is possible to do so outside of
the   concerns   of  paternalism  is  indeed   a   different
question.(30)
  The  Law  and  Development debate, however, can  still  be
focused by inserting it within an evolutionary paradigm of a
kind  that  has long been familiar to the Law and  Economics
literature. Since Law and Economics scholarship is  familiar
with  discussing possible evolutions of law in the direction
of  economic efficiency it is very well equipped  to  assume
that  a  legal system (and more broadly a social order)  can
never  be  considered  fully developed. Considering  certain
countries  as  already developed assumes the possibility  of
having already reached the goal. This static concept of  law
and  society is deeply foreign to the dynamic conception  of
the  legal and social order which is shared both by law  and
economics  and by comparative law literature. All legal  and
social systems may therefore be considered developping  from
the efficiency point of view. The distinction is not whether
they  are  "developped" or "developping" but what  stage  of
development   they  have  reached  and  which   pattern   of
development they are following.
If  we  follow this line of thought, we may observe  without
hypocrisy  that the capitalistic western path of development
leads  in  imposing itself on the world. This does not  mean
that it is the only possible way nor that it is the best one
(31).
Comparative  Law  and  Economics, as a value  skeptical  and
descriptive  line  of scholarship, does not  assume  that  a
group  of  systems  may  teach something  to  another  in  a
univocal  direction. Rather it puts all its efforts  to  see
what systems may learn from each other in a interactive way.
Western law has provided an historical experience of problem
solving in the complex economic society which, as all  human
experiences,  has its costs and its benefits.  If  a  legal,
economic  or social system, for whatever reason (mostly  for
reasons  of worldwide interaction), is called today to  face
problems  that  other  systems have  confronted  for  years,
decades,  or centuries before, it benefits from knowing  how
problems were (or were not) solved in those different social
contexts.  This, of course, is independent  from  where  the
society  is found in the North or Souuth, East or  West.  It
may  be  Italy  knowing how France efficiently resolved  the
problem of car accident compansation (faced in France a  few
years  earlier)  or  the United States knowing  how  Lesotho
efficiently  approached the problem  of  uninsured  judgment
proof  drivers by including activity levels in a tort system
using  a  tax  on  the gas to finance a victim  compensation
fund.

2.2   Law  and  Economics  of  Development.  Avoiding   some
Mistakes.

It is well known in Economics of Development theory that the
different  countries belonging to the so-called third  world
represent  different or very different social, cultural  and
ecnomic  realities. They, however, share similar fundamental
social  and  economic problems. Such problems are  those  of
poverty  (extreme under development) which scholars tend  to
analyze  using  different parameters.  Some  parameters  are
economic.  A  principal  one is, of  course,  the  very  low
internal  gross national product. A third is the high  level
of  unequal distribution of wealth. A third is the  low  and
sometimes unsufficient amount of calories consumed per day.
In  the  conditions of extreme poverty which are experienced
in  many  countries of the so called third world,  low  life
expectancy  is a consequence of these economic problems  and
of  some  of the social ones which are also used  to  define
underdevelopment (32). Between these social factors  we  can
mention the very poor level of health care, the high  degree
of   illiteracy,  the  poor  conditions  of  housing,  (e.g.
percentage  of housing having access to current water),  the
uncontrolled  rate  of  demographic  growth.  Solving  these
problems and the satisfying the needs which follow from them
is  regarded by the Economics of Development literature (33)
as  desirable whatever may be the values of a given society:
"If the growth of Western societies may be challenged as too
much  materialist,  the  development  concerned  with  these
fundamental needs is universally pursued."(34).
According to the kind of parameter which is used, of course,
we may well see that possibly no countries in the world have
experienced complete development (e.g. homelessness  in  the
United States, health care in Southern Italy) which confirms
the  utility of a dynamic approach such as that taken by Law
and Economics.
This   observation  should  inject  a  degree  of   humility
sufficient  to  avoid  the  kind  of  mistakes   that   have
characterized  the American Law and Development movement(35).
This  movement,  aimed to facilitate the "modernization"  of
the legal systems of the Latin American countries, ended  up
in  a  ethnocentric  ahistorical and  indeed  rather  clumsy
attempt  to  propagate United States  concepts  of  law  and
jurisprudence  in  countries unwilling  to receive them.(36)
There  may  be a real risk today of seeing the same  pattern
repeated  with  the  massive consulting  in  less  developed
countries  of Law and Economics scholars poorly equipped  to
understand  the local diversity. Nonetheless  the  worldwide
cultural  leadership  and prestige  of  the  American  legal
culture  can  make an important difference. Many  times  the
supply  of  legal  advise and help  works  in  a  relatively
competitive  market  of foreign experts (in  which  scholars
from the European Union are active as well) (37).
If  it  is true that some problems of development are common
in  all  societies, it is equally true that the  differences
can  not  be  disregarded. In our attempt to apply  Law  and
Economics to development problems we may therefore avoid the
simplistic  application of its "first generation style"  but
we  should  try  to develop it according to the  context  to
which it is applied. This approch is also shared by the more
sophisticated   structuralist   economics   of   development
scholars  (38).  This line of thought  tries  to  avoid  the
mechanic  application  of  Western  economic  models   (neo-
classical and Marxist) which has characterizad the growth of
the economic of development literature from its birth in the
late forties and continuing through the eighties. (39)
The idea that there is only one path to development and that
this  way is traced by western developed countries has  been
elaborated in its more famous form by Walter Rostow (40) who
has  traced  the  phases of development.  According  to  his
manifesto  five steps of development can be traced:  1.  the
traditional society, 2. the preparation to take off, 3.  the
take  off, 4. the path towards ripeness 5.the stage of  mass
consumption.
  Such theory has been challenged in many ways (41). For our
purposes,  it  may  be  regarded as the  worst  enemy  of  a
successful  application of Law and Economics to  development
problems:  it  gives  strength to the  sort  of  ideological
objections  that are still foreclosing the final success  of
law and economics within legal scholarship. Moreover, it  is
one  of those generalizations which, when transferred to the
domain  of  law, ends up disregarding all the most important
structural  differences. Legal development  should,  to  the
contrary, be seen as a path moving one legal system  in  the
direction of efficiency; but the way to reach efficiency and
the  path which is (or which is not) followed may change and
be differentiated from one system to another.
Positive  results  may  be  reached  by  applying  Law   and
Economiscs to the process of development only by taking full
account  of the high degree of diversity between  the  legal
system  which we wish to analyze. This is true,  of  course,
also  when  we apply economic analysis to the Western  Legal
Tradition,  but  it  is  even more true  when  we  push  our
intellectual adventure outside of it. Some analysis in terms
of   Law   and  Economics  may  well  be  relatively  easily
transplanted  from  the common law to the  civilian  Western
legal systems since the economic and cultural substratum  is
rather  homogeneous.  Law and Economics  tools  are  equally
useful to the analysis of less developed legal systems where
the  social  and economic structure is not homogeneous  with
that  of  Western countries. Of course, once this effort  is
made,  law  and  economics is enormously  enriched  by  this
contact  with  a different reality which may  offer  a  very
interesting ground for testing its theories.
The  structuralist economics of development has moved beyond
both   neo-classic  and  marxian  analysis  (the  dependency
analysis)  by  taking  account  of  the  "rigidity"  of  the
structure  of  the  so called third world countries.  In  so
doing, these scholars (42) have renounced heavy reliance  on
price  theory  and have moved to the paradigms  of  the  New
Institutional  Economics developed by North and  Williamson.
In this paper, we hope to move a step forward by challenging
the  assumption  of  such rigidity and  showing  that  these
societies, if observed from the legal system point of  view,
rather  than  being static are dynamic in a  different  way.
This  difference is very clear to the best legal scholarship
devoted  to Africa, Southern America and Asia. It  parallels
important   notions   developed  by   economic   development
scholarship: dualism, inarticulation and distortion.

2.3  Taking  Account of the Structure of  the  Law  in  Less
Developed Countries: a Challenge for Law and Economics.

A  simple observation is that in many so called third  world
countries  two economic systems coexist: a traditional  one,
typically  that  of a rural society, and a modern  one  with
industries,  banks, modern farms and so on  (dualism)  (43).
These   two  parallel  economies,  one  of  which   scarcely
monetarized,  have  little interaction with  eachother,  the
second  sometimes  being "an enclave controlled  by  foreign
countries" (44) (inarticulation). When the two interact, the
modern   one,   rather  than  proving  beneficial   to   the
traditional  one, ends up corrupting it by exporting  values
and consumption habits (particularly of the rich part of the
population)   disastrous  for  a  less   developed   country
(distortion).
This  phenomenon  has been observed also by  legal  scholars
since  it is particularly clear in the domain of legal  (and
political)  institutions: "In a society with a  soft  State,
and  a  corresponding underdeveloped legal system,  exchange
relations    are   conducted   primarily   through    social
institutions  other  than  competitive  markets.  Relational
principles  might  apply not just to private  ordering  such
contract, but also to all levels of governmental, legal  and
personal   affairs.  These  alternative  relational   social
institutions have been characterized as multiplex relations,
patron  client relations, customary law or folk  law,  legal
pluralism, semi autonomous social fields, or face and favor,
to mention just a few".(45)
Another way of putting it is to observe, as it has been done
in  some French and Italian scholarship, (46) the stratified
nature  of  such legal systems and analyze the  relationship
taking  place between such different layers of the  law.  In
such analysis Law and Economics can be an important tool.
To  do  so,  however, we should consider that  not  all  the
layers  of  a stratified legal system are like clothes  that
can  be worn or taken off as we desire. Indeed, very few  of
them  are.  Once  a  layer has been put on  it  can  not  be
completely removed. It would be impossible for the French or
the Italian legal systems, for instance, to decide overnight
to  become common law systems. This is because the degree of
resistance  of  the Civil Law tradition is  very  strong  in
France and Italy.
In  stratified  legal systems, not all the layers  of  legal
systems  have a degree of resistance comparable to  that  of
the  Civil  Law  tradition in France or of  the  Common  Law
tradition in England. In less developed countries the modern
layer of the legal system (common law or civil law) does not
constitute a tradition. Modern layers are not rooted because
of  the  phenomenon  of  "duality"  to  which  economics  of
development scholars refer. In other words, while a layer of
the  legal system can be changed (Sudan's shift from  Common
Law to Civil Law and then to Islamic Law is a good example),
a  legal tradition can not, unless in a very incremental way
by  means  of  an "invisible hand" process. In other  words,
while  certain layers of a legal systems may be selected  by
political  choice  (  Mexico's  option  to  follow   certain
provisions  of the Russian Civil Code is an example)  others
may not. In particular, a legal tradition is not a choice.
The  challenge to less developped countries is to develop  a
legal  tradition  adaptable to the  needs  of  modernization
without merely acting on the layers of the law received from
more  developped  countries. In this  perspective,  Law  and
Economics  may  help  to solve the legal  resultant  of  the
economic problems of dualism, inarticulation and distortion.
In  taking full account of economic dualism, we may  observe
that  at the level of legal institutions we do not face mere
dualism  but  pluralism (47). We may  also  add  that  legal
layers  are interdependent and they affect each other within
an  imperfect  competitive  relationship.  This  competitive
relationship  is  made  imperfect  by  localized  areas   of
monopoly  whose  borders are very fluid. In  areas  such  as
family  law,  for  example,  non  modern  law  may  claim  a
traditional  monopoly which is challenged by Western  values
such as, for example, the role of women in society. In other
areas,  such as business law, the opposite relationship  may
hold   true.  Western  conceptions  of  fair  and  efficient
business organization may be challenged outside of the scope
of   official   legality  by  traditional   less   efficient
practices.  In  economic terms such interdependency  creates
externalities  of  a kind possibly closer to  the  pecuniary
rather  than to the technological (48). The result  is  that
all  the layers of the legal system are transformed  by  the
existence  of  all the other, either in nature  (process  of
putting  customary  law in writing)  or  in  scope  (claimed
monopoly of the State in many areas and consequent reduction
of the scope of customary law).
Law  and  Economics may show the comparative  efficiency  of
each  layer to solve a given legal problem. By so doing,  it
may  favor the interaction between different layers and  may
prevent  the distortions that the imposition of  the  modern
layer on more traditional ones may create.
In a market affected by dualism, pecuniary externalities and
very deep disproportion in power relationships, there may be
an  argument  for deep pocket redistributive solutions.  The
core  assumption  of  most theories of economic  development
(particularly  the  Marxian dependecy theory)  is  that  the
formal  market  negatively affects the informal.  Mantaining
this assumption, we can see that the law has a role, so  far
not    implemented,   in   reversing   the   direction    of
externalities. Consequently, to work efficiently, the  legal
rules  governing the formal economy in a third world context
should  be framed in a way to allow the informal economy  to
compete  and flourish thus taking advantage of the existance
of the formal one.
  Of  course, legal rules that create positive externalities
(in favour of the weaker market) are seen as inefficient  in
traditional  economic  theory. In less developed  countries,
however,  they  may perform a minimal redistributive  effect
that is indispensable for being able to exploit the benefits
of a market economy (49).
This  interdependence  effect, whose  impact  on  the  legal
systems  is very visible, allows us to go a step beyond  the
structuralist  approach  by  observing  that,  rather   than
structural  immobility, we only face  different  degrees  of
resistance  to  change. This different degree of  resistance
introduces  different  levels  of  transaction  costs   that
foreclose  the  incremental evolution of  the  legal  system
towards efficiency.
Law  and  Economics is in the best position to see that,  in
many  areas,  the  transaction costs of substituting  modern
solutions  for traditional ones are just too high.  Scholars
might  consequently  advise that  limited  or  very  limited
resources  are better allocated in alternative  ways  rather
than  in trying to solve, by means of enacted (modern)  law,
cultural problems. A good example from this point of view is
the  attempt,  ethnocentric, hypocrital and inefficient,  to
ban  the consumption and production of coca leaves in  Latin
America.  Another example would be the ban of  polygamy,  or
even  of  other  practices such as  female  circumcision  in
African  Countries.  Law and Economics can  show  that  such
problems  should be approached within a soft  framework,  by
allowing local culture to ripen and to handle problems in an
informed way.(50)
The previous observations also help in approaching in a more
sophisticated way problems of inarticulation and distortion.
The  layered  nature of the legal order  and  the  mentioned
externality  effects  help to explain why  efficiency  would
increase by substituting communication (market transactions)
to  interdependence  (externalities). This  means  that  the
overall efficiency of the legal system would improve if  the
different   layers  communicate  with  each   other.   Since
different  layers  of  legal  systems  are  represented   by
different   decision  makers  (judges,   both   modern   and
traditional,  legal  scholars,  politicians,  religious  and
moral  authorities), an efficient way to allocate  resources
would  be to invest in creating a common legal culture  that
lowers transaction costs of communication.
It  is  clear,  moreover, from Law and  Economics  that  the
modern layer of the legal system should not act as if  there
were a legal vacuum whenever a given problem does not find a
solution  in (or at least a provision of) enacted  law.  Any
intervention  in  the legal order that does  not  take  full
account of the plurality of centers of supply of legal rules
is  bound  to  fail  just as would a  market  supplier  that
established his prices without taking into consideration the
existence of market competition.


3.  Efficient  Tort Law in some African and  Latin  American
Countries.

Tort  law  may offer a good ground to test Law and Economics
in  less  developped  countries for a  number  of  different
reasons.  The  first one is that this area  of  private  law
offers  a  good  test  of the degree of consistency  of  the
barriers  that  divide common law and civil  law  from  each
other  and  from  the legal systems outside of  the  Western
Legal  Tradition (51). Legal scholarship on torts is  indeed
focused  on  the  same  set  of  problems  everywhere:   the
foundation  of liability; the role of negligence and  strict
liability; causation; justifications; remoteness of  damage.
The  function  of  tort  law  is also  approached  within  a
relatively  homogeneous  framework: compensation  (over  and
under);   deterrence  (over  and  under);  punishment;   the
relationship with other systems of compensation and welfare.
A   second  reason  for  the  centrality  of  tort  law  for
understanding  the relationship between the market  and  the
institutional framework in a given legal system is that  the
scope  of  tort  law is broad and covers  the  area  between
property rules (contract) and inalienability (crime). In all
social  structures, when consent can not be given  and  when
society does not want to ban a given activity you will  find
"tort  law".  Tort  law  therefore  has  always  faced  both
problems  of punitive justice (typical of criminal law)  and
problems of contractual justice. Of course, it has also been
enriched  by  this variety of different suggestions  to  the
point  of  becoming ripe to be considered,  by  one  of  the
founding  fathers of Law and Economics, as the  law  of  the
mixed  society  (52). In other words, no  legal  system  can
purely  rely  on  the  market nor  can  it  purely  rely  on
regulation.
Another reason, strictly related to the former one, is  that
tort  law is an area of private law with a potentially  high
impact  on  the economic system. A fully fledged  system  of
tort is a powerful means of internalization. Consequently, a
market actor receives incentives to operate in a market with
poorly  developed tort law rather than in a market in  which
tort  law  is  well  established. In a  situation  in  which
parallel  markets are available, ( e.g. different countries;
formal  and informal markets) the lack of tort law may  make
one  market more attractive than the other. This observation
can  be confirmed looking at the harsh debate that preceeded
the  directive  on products liability in the European  Union
(53).  But  this  also means that tort law may  be  used  to
create  incentives for investors to operate  in  one  market
(e.g. the informal) rather than in the other.

3.1. The western path of tort development.

Focusing on tort law in our analysis of less developed legal
systems allows us to make an important and usually neglected
point:  the  last  two  hundred years of  the  evolution  of
Western  societies has been a story of developing countries.
A  story  in  which  tort law has played a rather  important
role.
In  the  early part of the last two hundred years of Western
societies,  tort law has been characterized on one  hand  by
its  subsidiarity, marginality and unclear distinction  from
criminal  law  (54). On the other hand, tort  law  has  been
deeply  rooted in the principle that " The people  generally
profit  by individual activity. As action can not be avoided
and  tends to the public good, there is obviously no  policy
in  throwing  the  hazard of what is at once  desirable  and
inevitable upon the actor". Hence the conclusion  that  "the
general  principle  of our law is that loss  from  accidents
must  lie where it falls, and this principle is not affected
by  the  fact  that  a  human being  is  the  instrument  of
misfortune.  Unless my act is of nature to  threten  others,
unless  under  the circumstances a prudent  man  would  have
foreseen  the possibility of harm, it is no more justifiable
to  make  me imdemnify my neighbor against the consequences,
that make me do the same thing if I had fallen upon him in a
fit or to compell me to insure him against lightning" (55).
  Shifting  to the plaintiff the burden (and the  risks)  of
proving   negligence, judges (in common law) and legislators
(in  civil law) were apparently limiting the impact and  the
extension   of  tort  law  in  the  economic   system.   The
introduction of a negligence system, however, was a big step
foreward  in  the  direction  of internalization  of  social
costs, if we compare it with pre-nineteenth century law.  It
was  an efficient first step in reducing unequal regimes  of
liability: some activities, indeed, were subject  to  strict
liability  while  others were sheltered from  all  liability
(56):  the discontinuity was clear. So, rather than  talking
about a shield offered to rising capitalism (subsidy theory)
(57)  it  is  more realistic  to see how courts, legislators
and  professors all around the Western legal tradition  were
simply  not  used  to reason in terms of allocating  losses.
They were confined by the rules of property and contract law
(based  on  regimes  of  strict  liability)  and  they  were
therefore passing from one extreme to the other (58).
In  tort  the  alternative was not, as it is today  in  more
developed  systems, between strict liability  or  negligence
(the  latter  supposedly sheltering the rising  capitalism).
The alternative was between negligence or non liability.  In
cases  of injuries to workmen, in those of injuries  created
by  unsafe  products and so on, it was fault  the  principle
upon  which to ground a duty to internalize that was unknown
before.  Until  the birth of negligence law,  it  was  never
possible  to  recover  unless for the violation  of  clearly
specified property rights (everywhere protected by rules  of
strict  liability such as trespass in common law  and  actio
negatoria in civil law)(59). And it is to add, however, that
in  the  early  period  of "modern" tort  law  (through  the
nineteenth  century)  even when   the  decision  making  was
focused  on  the existance or non existance of  a  negligent
behaviour,  liability  arised  only  when  the  victim   was
affected in one of the legal interests which could be deemed
worthy  of protection in Tort Law (i.e., essentially,  life,
physical integrity, property)(60).
When   the  economic  systems  began  to  rely  on   massive
industrial production and consumption, and on extended motor
vehicle circulation; when the growth of urbanization and the
increase  of the population became explosive, the  occasions
to  create  damages obviously increased at very high  rates.
The  challenges  faced  by tort law  increased  as  well.  A
tension  arose  between  the  old  structure  of  tort  law,
sufficient for a less developed society, and the new complex
society.  The focus of more advanced tort doctrine  both  in
common  law  and  in  civil  law  became  compensation.  The
alternative  was  no  longer  between  liability  (based  on
negligence) and non liability. It was now between negligence
and strict liability.
Although  this development process was common,  it  followed
different paths in different legal cultures. In the   Common
Law,  the  leading agents of tort law development have  been
the   courts,  which  were  particularly  sensitive  to  the
pressures that the complex society was throwing on them.  In
many  fields,  statutes followed only after decades  of  the
changes imposed by case law.  In the Civil Law, in contrast,
the   burden  of  legal  change  has  been  carried   almost
completely by legal scholars which eventually were  able  to
persuade legislators to enact new statutes. (61)


3.1. Tort Law in Africa.

In  some  less developed countries, tort law has so far  not
been exposed to social and economic pressures comparable  to
that   faced  in  western  societies.  In  other  developing
countries  of  Africa  and Latin America  more  advanced  in
introducing  a capitalistic economy, the pressure  is  quite
heavy.  Everywhere, however, tort law already shows a rather
complex evolution.
In  the  analysis of Africa we must start from a  structural
observation of crucial importance. The described  phenomenon
of  legal stratification. This phenomenon can be observed at
two different levels.
First,  the  legal system of an African country is  made  of
legal  layers  imposed one on the other  in  the  course  of
history. Religious law (usually the islamic Sharia) (62)  is
superimposed on top of the previous layer of local customary
law. Colonial law, either rooted in the common law or in the
civil  law in turn, is superimposed on both of these  layers
(63). On top of everything the law of the modern independent
State  (sometimes socialist) creates a new  layer  (64).  No
legal  order  has  effective power  to  substitute  previous
layers (65).
Second,  most of the time even the customary informal  legal
system  results  in a historical process of  superimposition
and  integration  of different components. What  is  usually
referred to as the costumary layer is usually made up  of  a
large  plurality of customs which react with each  other  in
the course of the historical events experienced by the local
population. Even if the absence of written sources makes  it
difficult  to  know  the  details  of  the  history  of  the
different ethnic groups, we know that in most of Africa they
have  experienced migrations, conquests, and invasions after
which the customs of both the victorious and of the defeated
groups  have been changed by mutual influence.  This  is  of
course  neither a structurally different nor a less  complex
phenomenon if compared with what happened in Europe with the
clash of different legal cultures.
In  the process of stratification, the legal system which is
imposed  on the other does not cancel, but instead  cohabits
with  -- officially or unofficially -- the old legal  order.
Sometimes  it restricts the area of application of  the  old
law;  somentimes it modifies and\or is in turn  modified  by
it.  This  coexistance of different legal orders  creates  a
remarkable legal pluralism which characterizes in  different
ways the totality of African states.
Sometimes  pluralism  is recognized  and  different  law  is
applied  according to its respective status ( e.g.  colonial
law).  Sometimes the different domain of application depends
on  the  nature  of the legal transaction (e.g.  family  law
customary; business law modern). Other States, on the  other
hand,  declare  a  unified option. The State  declares  that
traditional  law  be disregard or bans it  entirely  (  this
approach  is  typical of Socialist Africa).  Even  in  these
systems, however, customary law flourishes de facto as  soon
as  the State does not invest sufficient resources to impose
its  option(66). The same phenomenon happens as  far  as the
organization  of  justice is concerned  (67).  The  judicial
system   is   usually  unified  but,  within  it,  different
tribunals  apply different law ( state law,  customary  law,
islamic  law). The legal culture of the judge and  even  the
process  of selection may change according to the law  which
is to be applied.
All  of  this,  of  course,  is crucially  important  to  an
understanding of African tort law. This topic  is  organized
by  modern law following the Western model. Modern tort law,
either  common  law  or civil law oriented,  even  where  is
actually  aplied by courts, has fallen short of  undermining
the  strong power over interpersonal conflicts that is still
held in the hands of customary law. And we should not forget
that the function of conflict solving plays a very important
role in the social life of the African group.
The solution of a legal dispute, even when clearly belonging
to  the chief, is a collective enterprise that involves  the
active  participation of the whole community. Everybody  has
the right and the duty to participate in the process and  to
propose solutions to the conflict. Of course, the last  word
belongs  to the chief and the most authoritative  points  of
view are those of the elderly. However, consent of the whole
community  is  still the main legitimation of the  decision.
Analogously,  the  general blame of the  community  for  the
wrong and the fear of supernatural reaction force the guilty
to  accept the sanction even when it could be easily avoided
because  of the absence of an effective enforcing machinery.
Ultimately  the  judicial process is aimed at reestablishing
the social peace in order to avoid feuds. Consequent to this
approach  is  the  high  level  of  flexibility  typical  of
customary  law. What may appear as a violation  of  it,  may
sometimes  be the establishment of a new rule, accepted  and
promoted  by  the  community, because more sensible  to  its
present needs.
Particularly interesting are the rules by which the harm  is
made  good. Most of the times compensation (blood money)  is
paid to the kinship of the victim from that of the wrongdoer
and not from the latter himself. This shows the function  of
costumary  tort  law  as an instrument of  peacekeeping  and
offers  an  efficient tool to spread the loss crucial  in  a
economy of subsistance.(68)
In   summary,   African   tort  law  shows   the   following
characteristics: a. stratification; b. legal  pluralism;  c.
variations  in  the western legal traditions considered;  d.
marked  differentiation  from one sector  to  the  other  of
liability;  e.  absence  of dialogue between  the  different
sources of the law (tradition, judges, legislators);  f.very
limited role of legal scholars.(69)


3.2. Tort Law in Latin America.

Also  in Latin America the legal tradition is far from being
unitary  both from one State to the other ( e.g. Brazil  and
Argentina)  and  within the same State. This last  "modular"
tradition  is particularly clear in Mexico whose public  law
is  largely  influenced by United States law, while  private
law  is  rooted  in  the romanist tradition  (70).  Also  in
private  law,  however, the common law  influences  are  not
lacking  as  it  is  easy to perceive "with  regard  to  the
adoption  of  the express trust by a number of  Central  and
South American countries" (71).
Latin  American  private law derives in large  measure  from
Spanish  and  Portoguese  law. The conquistadores,  in  fact
aside   from  their  systematic  exploitation  of  the   new
territories,  also transferred also their  institutions  and
their  legal  tradition. The European colonization,  however
has  not  completely displaced the legal  tradition  of  the
autoctonus populations ( Atzecs, Mayas, Incas ecc.).(72)
These  costumary traditions mantain to the present a certain
importance particularly between the people of Incas  and  of
Atzec heritage and between the most marginalized part of the
population(73). Consequently in the small  villages  in  the
internal area of the continent and in the suburbs of the big
towns  social life is often organized according to  a  legal
custom which has nothing to do with the formal authoritative
and  learned  law  of  the State, which  is  tought  in  the
Universities  according to the long  established  civil  law
tradition. As it has been said, a large number of the  Latin
American  population lives according to a "derecho  informal
que  no necesita de abogados ni jueces" (informal law  which
does not require neither attorneys nor judges) (74).
On  this  cusomary  law the Spaniards, the  Portugueses  and
other   Europeans  have  established  their  law  and  legal
institutions.  Also in Latin America we find a phenomenon of
legal  stratification: the second layer being the civil  law
(Spanish  and  Portoguese) as applied  during  the  colonial
experience. The third layer is produced in the course of the
nineteenth  century  when -- after  defeating  the  colonial
domination  --  Latin American countries started  to  codify
(75).  In  this  context, codification  has  not  introduced
substantial  breaches  with the past. It  has  substantially
followed the previous colonial experience based on justinian
law.
The  modern  Latin American State -- within  a  much  longer
tradition of independence than in Africa -- has then enacted
a  remarkable  amount of "political law" (special  statutes)
following, according to local history, socialist revolutions
or  authoritarian  involutions. This political  layer,  very
variable   according   to  the  social   contingencies   and
emergencies, possibly constitutes a common characteristic of
less developped countries in Africa, Asia and Latin America,
and  of  systems in transition to market economy in  Eastern
Europe. (76)
Another  important characteristic of Latin American  Law  is
worth  mentioning: the weak role in framing the law  of  the
judicial  system, particularly in  those countries in  which
express   provisions   prohibit   case   law   (77).    Such
prohibitions,  seem  to  confirm  the  impatience   of   the
political  law  in  front of a more stable  and  incremental
framework such as that developped by judicial law (78). They
may however be "Significant obstacles standing in the way of
adapting Latin American Legal Systems to present days  needs
and  conditions"  (79). Still it must be observed  that  the
role of checks on political law and the overall creation  of
an  ordered  legal framework is assumed in Latin America  by
legal scholarship. Among the sources of non-enacted law this
is possibly the most influential (80).
Coming to tort law, a first important aspect to be mentioned
is  the clear distinction of this area from that of criminal
law  (81). The latter being, the branch of the legal  system
more  exposed  to  political pressure and  more  useful  for
political purposes. Tort law, therefore, remains confined to
the  solution  of  less  important social  conflicts,  while
criminal law ends up becoming the only branch concerned with
the  protection of many interests which in other systems are
taken  care  of  by civil liability. This choice  of  public
policy   in   favor   of  criminal  law  sometimes   creates
overprotection     and,     in     many     other     cases,
underprotection.(82)

3.3. Law and Economics Facing the Challenge of Environmental
Protection in Africa and Latin America.

Comparative  Law  and Economics can be seen  as  a  powerful
problem  solving discipline. It can focus a  social  problem
and   evaluate   in   terms  of  economic   efficiency   the
institutional reactions to it. We may therefore try to apply
it  out  of its familiar western context on one of the  most
important problems of this century: the environmental harm.
It  is often repeated that "one of the most serious problems
in  the 20th century is the generation of wastes that  spoil
our  waterways,  taint our crops with deadly substances  and
cause  cancers,  birth  defects,  occupation  diseases   and
environmental  contamination. We all  live  in  a  shrinking
global   environment,  and  no  one  can  no  longer   treat
cavalierly the environment of foreign countries by  assuming
that what happens half way around the world has no impact on
us.  Environmental problems will eventually affect each  and
everyone of us."
To  the  Economic  Analysis  of law,  the  "non  accidental"
perspective that characterizes environmental tort  law   and
the  consequent problems of causation and evaluation of  the
harm  has long been clear (83). We mean that, pollution  may
be   an   incremental  day  by  day  problem   involving   a
multiplicity of actors rather than being a one shot accident
caused  by  one  determined wrong doer with  one  determined
victim.  Even  when pollution follows to a  given  act,  its
consequences are likely to be spread in time and space.
The   problem   of  allocating  liability   and   costs   of
environmental harm can be tacled in many different ways. The
Western  legal tradition offers a variety of approaches.  On
one  hand  we  find an administrative centered  command  and
control  regulation enforced by criminal sanctions(84) which
may be regarded as an ex ante discipline. On the other hand,
tort law is handled ex post by the court system. A mixed  of
the  two  is  possibly  the  most  efficient  solution.   In
particular the command and control approach is not the  best
solution  for  the  cases in which the  timing  between  the
production  of  new  risks  for  the  environment  and   the
causation  of damages is little. It is also sometimes  rigid
and it may be  difficult for regulators to differentiate  in
an  efficient way the class of different  behaviours that it
wishes to regulate.
Tort   law,  on  the  other  hand,  if  applied   alone   to
environmental  harm  is not able to  reach  its  own  goals:
litigation and administrative costs are usually high;  there
may  be phenomena of discontinuity in the anticipated  costs
faced  by the enterprise. In short "where pollution is zero,
liability  is  zero;  but when pollution  is  infinitesimal,
liability may be then complete"(85).Also when this is not the
case because a market share liability system is adopted,  it
remains  extremely difficult to choose the efficient  course
of  private  behaviour.  The optimal  strategy,  which  some
enterprises follow, is to save by reducing precaution costs.
Here  the savings that any one enterprise achieves could  be
substantial and the loss that it creates will be  borne  not
exclusively  by  it, but by other enterprises  operating  in
that  field.(86) An obvious "tragedy of the commons" problem
is involved. Moreover, even relying on insurance can be both
inefficient and unsuited to the goals of tort law. Since the
system  is  based on standard terms there is  an  authomatic
tendency   to   make  premiums  uniform  for   the   various
participants  to  the same activity. There is  therefore  no
incentive  to  the single participant to use more  efficient
precautions  with  the  consequent fall  of  the  deterrence
potentiality of the system.(87)
Law  and  Economics,  grounded as it is  in  American  legal
culture, seems likely to recommend the court system  as  the
best  way  to  approach  environmental  problems.  Taking  a
comparative   perspective,  however,  we   know   that   the
institutional   framework  of  American  law   is   not   an
independent  variable  for  the  success  of  its  recipies.
Outside of American law, Law and Economics has a good chance
to  enrich  its  map  of  new ways by  abandoning  a  rather
parrochial  attitude  and thinking about  the  institutional
peculiarities of the system it whishes to analize(88).
Let  us  then consider African Law first. In Africa most  of
the  time  we  find  very  weak  judicial  and  other  State
institutions  (89). Such institutions can not be  constantly
effective on the social organization. This is to say in  our
perspective  that  the layer of modern law  can  not  govern
environmental  problems in an efficient way.  However  if  a
layer  does not tackle a problem in an efficient way we  may
still be able to find the proper solution elsewhere. It  may
be  observed  then that customary law with its decentralized
impact  on the territory may be looked at with much interest
(90).   Collective  property rights are  usually  structured
within   an   inalienability  rule  in  favour   of   future
generations,  and are patrolled by local chiefs  (91).  They
appear therefore to many scholars as projected in the future
and  environmentally protective by their own nature. We  may
add  that  property rights violations find on the  customary
level   remedies  focused  on  reestablishing  social  order
enforced  by a high level of social stigma that  can  ensure
their  deterrence  role. Customary law,  therefore,  may  be
suitable   to   guarantee  a  rather  efficient   leval   of
environmental protection at least against smaller injuries.
In Latin America, reflecting the opposite extreme, costumary
law is weak and today rather marginal. Courts appear weak as
well and not in a condition to affect the long term dynamics
of   social  behaviour.  In  this  context,  therefore,  the
efficient institutional solution should be looked for in the
interplay  between the two strong agencies  of  law  making:
scholars  and  administrative  bodies.  Such  interplay  may
provide  a  regulatory  scheme that balances  the  needs  of
present day efficiency with the necessity to preserve unborn
market actors.
The  opportunity  of  applying  regulatory  instruments   is
sometimes  suggested  also  by Law  and  Economics  scholars
whenever  -  as  it  often happens in Latin  America  -  the
government is in a better position to assess the risk;  when
private parties may not be able to provide compensation  for
the  full amount of the harm, and when private parties  will
likely escape suit for the harm they produced (92).
In  Latin America, as it is not the case in Africa, the high
level  of  legal scholarship and its leading role among  the
framers of the law as well as its strong appeal on political
centers  of  power  should be considered. Law  and  Ecnomics
offers a method particularly suitable for legal scholars  in
its  dialogue with regulatory agencies. This is particularly
important because regulation is traditionally in the  domain
of  public law where American inspired models are already at
work.  Latin  American  Law and Economics  scholars  may  be
called to propose solutions at the best institutional  level
of  regulation,  by considering the federal level  where  it
exists  or in any case the option between the local  or  the
national level.

3.4.  The  Proper Role of Modern Tort Law in Less  Developed
Countries.

Even  at the cost of being considered ethnocentric we  would
not  suggest  to  abandon   western  tort  law  in  tackling
environmental  problems  in less developped  countries.  The
reasons however are  different in the two realities we  have
considered.
African customary law, because of its intrinsic localism and
because  of  its  limited  receptivity  in  front   of   the
technological  expertise,  does  not  seem  to  be  able  to
approach  adequately  the  macro-problems  of  environmental
externalities93. In Latin America, on the other hand, it  is
likely that an efficiency centered analysis shows that  tort
law,  rather  than  regulation,  could  still  be  the  best
solution to micro-environmental problems. There is a problem
of  effective enforcement of judicial decisions -- in Africa
much  more than in Latin America -- but its solution  should
probably  be found in rethinking the allocation  of  Western
aid  in  favour of legal education for the birth of a  local
legal culture and consciousness.(94)
In developing countries where the modern layer of the law is
not  a tradition in itself and can therefore be chosen,  Law
and  Economics instructs bypassing the historical phase that
in  (developping) western countries preceeded the  expansion
of  negligence. At the time, as we have seen, a vast  amount
of  rising industrial activities were allowed to externalize
their costs with appalling consequences on the environment.
Moreover,  considering the phenomenon  of  dualism  (with  a
formal  and  an  informal  market)  (95),  and  the  massive
presence  of  Western market actors, the efficient  solution
could  probably be based on a dychotomy of tort law  models.
If  the  goal  is  to favor the growth of local  enterprises
which  play  their role on the informal market, and  not  to
sterilize  the  beneficial effects of foreign investment,  a
balanced  tort  law  must  use  both  strict  liability  and
negligence rules.
In  the  short and middle run, more friendly negligence  law
rules focused on a level of care positioned to guarantee the
efficient  level  of precaution is probably recommended  for
damage  created  by  local entpreneurs: such  levels  should
consider  the foreseeability of the harm for a less equipped
market actor (96).
Strict  liability,  possibly  focused  on  a  market   share
mechanism,  may  be  the most efficient  rule  to  apply  to
Western  investors  and to public owned  local  corporation.
True,  damages  are  difficult to account  for   and  strict
liability  is  not traditionally recomended  in  such  cases
(97). However, it would be sufficient to overestimate rather
than  underestimate them, thus introducing a subsidy  effect
on the informal economy. Strict liability may furthermore be
justified by the traditional deep pocket argument.
In  such  a  scenario, Law and Economics scholarship  should
carefully  consider an insurance regime able to reflect  the
needs  of  weaker market actors. In a context in  which  the
insurance   market  is  not  perfectly  competitive,   local
enterprises  should  be  allowed  to  purchase  third  party
insurance policies with low maximums. This should favour, by
means  of  low premium rates, the diffusion of  third  party
insurances  also at this level. Stronger market  actors  may
also find incentives to purchase first party insurance since
they  may  be affected by the low level of compensation  for
harm  created by weaker market actors (insured on the  third
party).(98)


3.5 An efficient international environmental tort law ?

A  different perspective on which Law and Economics may have
something  to say is the necessity to approach environmental
problems  in a transnational dimension. At this  level,  the
scarcity of concrete results is bewildering.
The  international community has so far adopted  around  200
environmental agreements covering athmospheric,  marine  and
land pollution, protection of wildelife and preservation  of
shared global resources. (99) Most of these agreements  were
reached   after   the  environmental  emergencies   of   the
seventies. While some have been satisfactory, others  remain
largely rhetoric.
Law  and  Economics may give some insights on the  efficient
solution  of  international problems such  as  the  need  to
enhance   monitoring  and  verification,   more   systematic
fundings,   better   use   of  international   institutions,
creation/incrementation  of  supplemental  regimes  such  as
those  related  to liability and compensation, effectiveness
of  international agreements by mean of improving local  and
international judicial institutions. (100)
Just  to  give  some of those insights and without  pretense
whatsoever  of being complete, we may mention the following:
Law  and  Economics  suggest using  incentives  rather  than
authority  to  reach  social goals.  Incentives,  therefore,
should be given to favour local groups (associations,  trade
unions,  agricultural  communities..)  to  work  as  private
environmental    attorneys    general.(101)    International
organizations should be banned from giving aid to  countries
which   do   not   respect   international   standards    of
environmental  protection,  or  forced  to  grant  aid  that
favours   --   directly   or   indirectly   --   sustainable
environmental protection. Decentralize envorcement could  be
given to the aformentioned groups.
More  specifically on tort law, the need to obtain fast  and
sufficient compensation to restore the environment should be
pursued  by making the International Organizations  and  the
local  States jointly liable. The residual base of liability
(if they can not be considered liable on other ground) being
the  inefficient  level  of  investment  in  monitoring  the
environmental quality(102).


4.Conclusions

Our  paper, as most contributions of Law and Economics,  has
shifted  many  times  from  the positive  to  the  normative
ground.  In conclusion, therefore, we should say   something
about what Law and Economics can not (and should not) do  in
the context of developing countries.
A  common  feature  of the legal systems of  less  developed
countries,  as  we have seen, is the less clear  distinction
between  the legal process and the political process.  In  a
context  like  this,  of  course, the  possible  ideological
biases  that are sometimes observed in some of the normative
applications  of  Law and Economics may become  particularly
dangerous.  Law  and  Economics  should  not  constitute  an
intellectual  cover-up for conservative political  programs.
This  point  is  crucially important in the  Latin  American
context in which Chicago style recipies of political economy
sometimes  reach sufficient political power  to  be  applied
(103).
  As  we  have  seen, Law and Economics does  not  recommend
unbalanced  economic liberism nor does it endorse  it  as  a
political  ideology.  It  does not  abstractly  prefer  free
market  to regulation. When it recommends the market  it  is
for reasons other than political ideology.  Although Law and
Economics  offers  a  powerful tool of policy  analysis,  it
remains a value skeptical and politically neutral branch  of
legal  scholarship. This neutrality is the  only  source  of
legitimation for lawyers and should be preserved. Given  the
difficulty  of  remaining neutral on  policy  issues  it  is
usually  dangerous to use scholarly arguments  in  normative
analysis. Political choices are never neutral and should not
be  dressed  as  if  they were.  When  neutrality  is  lost,
scholarly arguments become hidden value judgments of  hidden
legislators. The danger increases when such value  judgments
are  able to reach sufficient power to be imposed on all  of
society.
At midway between the normative and the positive ground, Law
and  Economics  may  help  the legal  systems  of  the  less
developed  countries to become conscious of a similarity  of
problems  and  of legal dynamics within the  differences  of
their  own  local peculiarities. Whether this characteristic
of  legal pluralism shared by the countries of the South  of
the world is going to become a conscious legal tradition  is
not  for  Law  and  Economics to  say.  Law  and  Economics,
however,  may say that the degree of resistance of  a  legal
system  to  legal transplants coming from symilar traditions
is  lower.  By learning frm eachother less developped  legal
systems eventually may be able to develop original solutions
for an efficient and different path.
To   conclude  on  a  positive  ground,  Law  and  Economics
recognizes the continuum-nature of the development  process.
Less  developped  countries offer clearer  evidence  of  the
composed nature of the legal order. So far, traditional  Law
and Economics has worked assuming a unitary legal framework.
Such  unity does not exist in the United States as  it  does
not  exist  anywhere. This is why Law and Economics  has  so
much to gain from being applied to less developed countries,
where  this  phenomenon  is usually  neglected  in  economic
analisys but is so much clearer. Such countries indeed offer
an  extraordinary  ground for testing  efficiency  theories.
Hopefully,  we  have shown that Law and Economics  may  also
offer something.


NOTES

(1) This paper has been prepared for the first Latin American Law and
Economics Association Meeting, Mexico City, February 2-3-1995. It has been
drafted and discussed during a stay in Oslo within the Law and Economics
Research Group at the Center of Advanced Studies of The Norwegian Academy of
Sciences and Letters. The authors wish to thank the center, and particularly
Professor Erling Eide for the generous support. Professors Erling Eide, Roger
Bowles, H.B.Schaffer, and, H.C.Bugge for reading and commenting it. Thanks
also to Robert Cooter, David Faigman, Eduardo Buscaglia, Andres Romer for
their comments. Valuable research assistance for this paper was provided by
Irina Tenser.  

(2) Mauro Bussani is Acting Professor of Law, Universita' di Trento, Italy.
Ugo Mattei is Alfred and Hanna Fromm Professor of International and
Comparative Law, University of California, (Hastings) and Professor of Civil
Law, Universita' di Trento, Italy.  

(3) For the notion of legal transplants see A.WATSON, LEGAL TRANSPLANTS. AN
APPROACH TO COMPARATIVE LAW (1974). For its methodological development, Sacco,
Legal Formants. A Dynamic Approach to Comparative Law, Am.J. of Comparative
Law, (1991). For the relationship with Law and Economics, Mattei, Efficiency
in Legal Transplants. An Essay in Comparative Law and Economics, 14 Int. Rev.
Law and Econ. (1994). 

(4) See Cooter-Gordley, Law and Economics in Civil Law Countries. Past Present
and Future, 11 Int. Rev. of Law and Economics 261 (1991). 

(5) see Cooter-Gordley, cit.supra; Mattei, Efficiency in Legal Transplants. An
Essay in Comparative Law and Economics, 14 Int.Rev.Law Econ, (1994) 

(6) See C.J.DIAS-R.LUCKHAM-D.O.LYNCH-J.C.N.PAUL,(eds), LAWYERS IN THE THIRLD
WORLD: COMPARATIVE AND DEVELOPMENTAL PERSPECTIVE (1981). 

(7) On the notion and the characteristics of the Western Legal Tradition see
H. BERMAN, LAW AND REVOLUTION. THE MAKING OF THE WESTERN LEGAL TRADITION
(1983). A. Gambaro,Il Successo del Giurista, FORO ITALIANO, (1983) V 

(8) See Sneyder, The Failure of Law and Development, (1982) Wisconsin L.R. 373


(9) See SCHLESINGER-BAADE-HERZOG-WISE, COMPARATIVE LAW, (1994) supp. at 64. G.
Ajani, La circulation de modèle juridiques dans les Est de l' Europe, Revue
Internationale de Droit Compare', 1994; Mattei, Verso una tripartizione non
eurocentrica dei sistemi giuridici, in STUDI IN MEMORIA DI GINO GORLA 775
(1994) 

(10) See R.DAVID-BREYLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY (1985).. 

(11) See J. GORDLEY, Common Law v. Civil Law: Una distinzione che sta
scomparendo, in Studi Sacco (1994); M. LUPOI, Common Law e Civil Law (alle
radici del diritto europeo) Foro It. 1993 V 431. 

(12) See D.J.CASTAN TOBENAS, Contemporary Legal Systems of the Western World,
25 Comp. Juridical Rev. 105 (1988) J. VANDERLINDEN, A propos des familles de
droits en droit civil compare', in Hommages a R. Dekkers, (1982), 363. F.
REYNTJENS, Note sur l' utilite' d' introduire un système juridique
"pluraliste" dans la macro-comparaison des droits, Rev. Droit Int. et Droit
Comp. 41 (1991) all these authors stress the need of overtaking the
euro-centric approach and to give more importance to African and Latin
American Countries. 

(13) For the classic map of the world legal systems, and a treasure of
bibliographical footnotes, see SCHLESINGER-BAADE-DAMASKA-HERZOG, COMPARATIVE
LAW, V, 315 ff; supp.cit. 63 ff.  

(14) See, for references and for a map of present day influence of American
Law, Mattei, Why The Wind Changed. Intellectual Leadership in Western Law, Am.
J.of Comp. Law (1994). 

(15) See A. HUNG YEE CHEN, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE PEOPLE'S
REPUBLIC OF CHINA 20 ss (1992); H.ODA, JAPANESE LAW, 25 (1992). 

(16) see R.COOTER-T.ULEN,LAW AND ECONOMICS, 105 (1987) 

(17) see R.Cooter, The Best Right Laws. Value Foundations of The Economic
Analysis of Law, Notre Dame Law Rev 

(18) see, for classic examples, P.BOHANNAN, JUSTICE AND JUDGMENT AMONG THE TIV
(1968); M.DENG, TRADITION AND MODERNIZATION. A CHALLENGE FOR LAW AMONG THE
DINKA OF THE SUDAN (1971). 

(19) see I.M.D. LITTLE, ECONOMIC DEVELOPMENT: THEORY, POLICY AND INTERNATIONAL
RELATIONS (1982) Focusing on how, in developing countries, part of the economy
operates under paternalist or quasi feudal regime. The same point is made by
Lewis in his classic model of development in which it is stressed that in the
agricoltural sector ( crucial for the analysis of property rights) there is no
objective of maximising profits and the distribution is according to
conventional norms rather than marginal products. See Lewis, Economic
Development with Unlimited Supplies of Labour 22 The Manchester School of
Economic and Social Studies, 139-191 (1954); See also W.W.ROSTOW, THE STAGE OF
ECONOMIC GROWTH.A NON-COMMUNIST MANIFESTO (1960).  

(20) See VENNETTIER, LES VILLES D' AFRIQUE TROPICALE (1976) ; Barry-Rieddel,
The migration to the cities of West Africa : Some Policy Considerations, 16 J.
Mod. African Studies 241 (1978); Ankerl, Rapid Urbanization in the third World
with special reference to tropical Africa, Labor and Society 277 (1983). see
also the specialò issue of the journal "Project" (1982) devoted to " L'
explosion urbaine du tiers monde". 

(21) See R. Cooter, Inventing Market Property. The Land Courts of Papua New
Guinea, 25 Law and Soc.Rev. 759 (1991). 

(22) See Mattei, Efficiency in Legal Transplants, cit. supra nt. 

(23) See, for the kid of problems studied by legal anthropologists, and for
some methodological insights which should be kept present also by Law and
Economics scholarship, L. Nader, The Anthropological Study of Law, 67 American
Anthropologist, 3 (1967). This article is reprinted in P.SACK (ed), LAW AND
ANTHROPOLOGY,(1992) where many other materials may be found too. 

(24) See authors cit supra at note 13. See also F.UPHAM, LAW AND SOCIAL CHANGE
IN POST WAR JAPAN (1987) showing the degree to which japan has succeeded by
transforming the legal and economic institutions that structured the
industrialization in the West; E.F.VOGEL, JAPAN AS NUMBER ONE: LESSONS FOR
AMERICA (1979) arguing that determining the relevance of Confucian culture for
the process of development is a central issue also for theories of economic
development; M.J. MOSER, LAW AND SOCIAL CHANGE IN A CHINESE COMMUNITY (1982)
arguing that, in Taiwan, legal institutions are devalued by traditional
confucian teachings. See also KWANG-KUO HWANG, Face and Favor: The Chinese
Power Game, 92 Am.J. Soc. 944 (1987) asserting that interpersonal obligations
play a more integral role in evaluating chinese society than do traditional
patterns found in Western social science research. 

(25) The same can hold true as far as Islamic and Indu law are concerned. See,
for the latter, with its focus on Karma by which contentment does not come
from the object of desire, PRYA NATH SEN, GENERAL PRINCIPLES OF HINDU
JURISPRUDENCE (1984); On the former, with its focus on the notion of sharing
of caring of brotherhood and of solidarity, (all of which are foreign to the
individualistic assumptions of law and economics, C.G. WEERAMANTRY,ISLAMIC
JURISPRUDENCE. AN INTERNATIONAL PERSPECTIVE (1988); As to the role Islam
should play in the political and legal order of modern nation states see
between many, S.ZUBAIDA, ISLAM, THE PEOPLE AND THE STATE (1989); M.
al-ASHMAWY, L'ISLAMISME CONTRE L' ISLAM ( R.Jacquemond tr. 1989). 

(26) See H.CASSAN-G.FEUER, DROIT INTERNATIONAL DU DEVELOPPEMENT (1985); F. von
Benda-Beckmann, Scape Goat and magic Charm. Law in Development Theory and
Practice , 28 J. of Legal Pluralism and Unofficial Law 129 (1989); D. APTER,
RETHINKING DEVELOPMENT: MODERNIZATION, DEPENDENCY AND POSTMODERN POLITICS
(1987); A. Ferguene, Eléments pour un autre dévéloppement, 31 Rev.Algér. Sc.
Jur , 79 (1993). L. SKLAIR (Ed), CAPITALISM AND DEVELOPMENT, (1989); B.-O.
BRYDE, THE POLITICS AND SOCIOLOGY OF AFRICAN LEGAL DEVELOPMENT (1976).
S.ADELMAN-A.PALIWALA, LAW AND CRISIS IN THE THIRD WORLD (1993); R.B.SEIDMAN,
THE STATE,LAW,AND DEVELOPMENT (1978); F.V.GARCIA-AMADOR, THE EMERGING
INTERNATIONAL LAW OF DEVELOPMENT. A NEW DIMENSION OF INTERNATIONAL LAW (1990);
H.B.CHENERY-T.N.SRNIVASAN (eds) THE HANDBOOK OF DEVELOPMENT ECONOMICS
(1988);D.G. JOHNSON-R.D.LEE (eds) POPULATION GROWTH AND ECONOMIC DEVELOPMENT:
ISSUES AND EVIDENCE (1987); J.DREZE A.K.SEN, INDIA: ECONOMIC DEVELOPMENT AND
SOCIAL OPPORTUNITY (1994); R.BRENNER, LABYRINTHS OF PROSPERITY (1994).  

(27) See, on symilar legal structures among native Americans, FREYFOGLE,
Indians, Americans and The Ecology of New England... K.N. LEWELLYN-E.A.HOEBEL
THE CHEYENNE WAY (1941) beliving that if the law could be flexible enough to
conform with merchant customs, then productive economic transactions could be
facilitated. 

(28) (....) 

(29) see Mattei, Efficiency as Equity. Further Steps in Comparative Law and
Economics, Hastings Int. and Comp. Law Rev. (1995). 

(30) Professor Eide has remarked that if a resource is subject to a tragedy of
the commons problem and will not last if overexploited, the price system may
still reflect the concerns of sensible parents for theyr children and
therefore those of the present generation for the next. Efficiency, then, may
have something to say in this perspective. 

(31) see H.B.CHENERY-M.SYRQUIN, PATTERNS OF DEVELOPMENT 1950-1970 (1975). 

(32) See J. BRASSEUL, INTRODUCTION A L' ECONOMIE DU DEVELOPMENT (1993) 12 

(33) See the classic monumental work by P. GUILLAUMONT, Economie du
developpment, Three volumes, Paris, 1985. 

(34) Brasseul, cit at 15 

(35) J.A.GARDNER, LEGAL IMPERIALISM. AMERICAN LAWYERS AND FOREIGN AID IN LATIN
AMERICA (1980). 

(36) See Snyder, cit supra. 

(37) see Ajani, cit supra. 

(38) See the essays in D.SEERS (ed.), DEPENDECY AND DEVELOPMENT. A CRITICAL
OVERVIEW (1981); See also, A. Pinto, Heterogeneidad Estructural y el Modelo de
Desarrollo Reciente, in J.SERRA (ed.), DESARROLLO LATINOAMERICANO. ENSAYOS
CRITICOS (1973); L.TAYLOR, STRUCTURALIST MACROECONOMICS (1983); M.P.TODARO,
ECONOMIC DEVELOPMENT IN THE THIRD WORLD (1989).  

(39) The first generation may be regarded as highly optimistic and working in
the neo-classical tradition (Rosenstein Rodan, Albert Hirshman, Gunnar Myrdal,
Walter Rostow are the best known names). The reaction mostly based on marxian
paradigms, is linked to the names of Paul Baran, Samir Amin, Andre' Gunder
Frank, F.H. Cardoso. For a brief introduction, C.Bell, Development Economics
in J.EATWELL-M.MILGATE-P.NEWMAN, THE NEW PALGRAVE. ECONOMIC DEVELOPMENT,1
(1989). For a recent analysis, S. GOGLIO, DALL' ORGANIZZAZIONE ALLO SVILUPPO
(1994).  

(40) See W.W. ROSTOW, The Stages of Economic Growth. A Non-Communist
Manifesto, Cambridge, 1960 

(41) See, for the much more complex line of thought which has characterized
the so called dependency school, J.G. Palma, Dependency, in THE NEW PALGRAVE
cit. Most notable is the celebrated work of F.H.CARDOZO-E.FALETTO, DEPENDENCYA
Y DESARROLLO EN AMERICA LATINA (1967) Eng. Tr. DEPENDECY AND DEVELOPMENT IN
LATIN AMERICA (1979) in which the notion of dependency is for the first time
used as tool of analysis of concrete processes of development.For an
application to Africa, S.Amin, Underdevelopment and dependence in Black
Africa: Origins and Contemporary Forms 10 J.Of Modern African Studies 503
(1972). 

(42) See e.g. I. LITTLE, ECONOMIC DEVELOPMENT, (1982) 

(43) see D.W. JORGENSON, The Development of a Dual Economy, The economic
journal 309 334 (1961);  J.H.C.FEY- G.RANIS, DEVELOPMENT OF THE LABOUR SURPLUS
ECONOMY; THEORY AND POLICY (1964); W.A. Lewis,; id The Dual Economy Revisited
47 Manchester School of Economic and Social Studies, 211 229 (1979); H.B.
SCHAFER, LANDWIRTSCHFTLICHE AKKUMULATONSLASTEN UND INDUSTRIELLE ENTWICKLUNG
(1983) 

(44) BRASSEUL, cit. 16 

(45) J. KAUFMAN WIN, How to make poor countries rich and how to enrich our
poor, Book Review , 77 IOWA L.R. 1992 920 

(46) See SACCO, DIRITTO DEI PAESI AFRICANI (Forth); Guadagni, IL DIRITTO IN
MOZAMBICO.INTRODUZIONE AL SISTEMA GIURIDICO DI UN PAESE AFRICANO (1989);
N.ROULAND, ANTHROPOLOGIE JURIDIQUE (1988), 72 73 It.Tr.) 

(47) cfr. J.GRIFFITH, What Is legal Prulalism? 24 J.Leg.Pluralism and
Unofficial Law (1986); S.ENGLE-MERRY, Legal Pluralism, 22 Law and Soc.Rev. 869
(1988); Symposium: State Transformation, Legal Pluralism and Community
Justice, 1 Social and Legal Studies 131 (1992). 

(48) see GRAVELLE REES, MICROECONOMICS, 2d (1992), 248 

(49) see J.BRASSEUL, cit. supra for the need of a initial redistribution to
make the ecommy start. 

(50) Resources should be then allocated to favour informed choices (e.g.
informing on the risks of female circumcision or on the availability and costs
of contacception) and not to coertion. The only way to do so outside of the
tentation of ethnocentrism is by mean of investing in local culture. 

(51) Catala-Weir, Delict and Tort: A Study in Parallel 37 Tulane L.R, 573,577
(1963). 

(52) G.Calabresi, Torts.The Law of the Mixed Society, 56 Texas L.R. 519 (1978)


(53) For a general survey J.A. Jolowicz, Product Liability in the ECC, in
D.S.CLARK, (ed.) ESSAYS IN HONOR OF J.H.MERRYMAN ,369 , (1990). 

(54)see C.H.S.FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW. TORT AND CONTRACT
3 ff; 44 ff (1949);  G.VINEY, LES OBLIGATIONS. LA RESPONSABILITE' CIVILE:
CONDITIONS , 4 ff (1982). 

(55) O.W.HOLMES, THE COMMON LAW (1881), 88. 

(56) See C.O. Gregory, Trespass to Negligence to Absolute Liability, 37 Va
L.R. 361 (1951); See already, J. Wigmore, Responsibility for Tortious Acts:
Its History, 7 Harv.Law.R. 315 (1894); See also N. Isaacs, Fault and
Liability, 31 Harv Law Rev. 954 (1918). R. OGOREK,UNTERSUCHUNGEN ZUR
ENTWICKLUNG DER GEFAHRDUNGSHAFTUNG IM 19. JAHRHUNDERT (1975); A TUNC, LA
RESPONSABILITE' CIVILE, 2 ed. 3ff 169f (1989); 

(57) M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW. 1780-1860, 85 ff (1977);
G VINEY, LA RESPONSABILITE': CONDITIONS 18 ff (1982);  DUGUIT, LES
TRANSFORMATIONS DU DROIT PRIVE' DEPUIS LE CODE NAPOLEON, 2 ed., 139 ff.
(1920); C. SALVI, IL DANNO EXTRACONTRATTUALE (1985); J.ESSER, GRUNDLAGEN UND
ENTWICKLUNG DER GEFAHRDUNGSHAFTUNG 50 ff (1941); H. Koetz, Haftung fur
besondere Gefahr, Arch civ Prax 1 (1970).  

(58) See G.Schwartz, Tort Law and the Economy in Nineteenth Century America: A
Reinterpretation, 90 Yale Law J.1717 (1981); id, The Character of Early
American Tort Law, 36 UCLA L.R. 641 (1989); R.Rabin, The Historical
Interpretation of the fault principle, 15 Ga L.R. 925 (1981); Id. Some
Thoughts on Tort Law from a Sociopolitical Perspective, 51 Wis. L.R. 57
(1969); BUSSANI, LA COLPA SOGGETTIVA (1991); F.Terré, Propos sur la
responsabilité civile, 22 Arch Phil Droit 39 ff (1977); Y. Flour, Faute et
responsabilité Civile:déclin ou renaissance? 5 DROITS 29, 42 ff (1987); H.P.
Benhor, Die Entscheidung des BGB fur das Verschuldensprinzip, 46 TIJDSCHRIFT
VOOR RECHTSGESCHIEDENIS 1 (1978); R. Ogorek cit. supra n P. TRIMARCHI, RISCHIO
E RESPONSABILITA' OGGETTIVA, 9 ff ( 1961); P. CENDON, IL DOLO NELLA
RESPONSABILITA' EXTRACONTRATTUALE 242 ff (1976). 

(59) see B. S. MARKESINIS, LIABILITY FOR UNINTENTIONAL HARM IN THE CIVIL LAW
AND IN THE COMMON LAW (1983); R. OGOREK, ACTIO NEGATORIA UND INDUSTRIELLE
BEEINTRA"CHTIGUNG DES GRUNDEIGENTUMS, IN H. COING UND W. WILHELM eds.,
WISSENSCHAFT UND KODIFIKATION DES PRIVATRECHTS IM 19 JAHRUNDERT, 40 ff.
(1979). 

(60) K. ZWEIGERT and H. KOETZ, AN INTRODUCTION TO COMPARATIVE LAW, vol. II, 2
ed. , 292 ff. (trans. by T. WEIR, 1987). 

(61) Think, for an example, to the leading cases which marked the path of
products liability -- Mc. Pherson v. Buick Motor (New York, 1916), Donoghue
v.Stevenson (England, 1932), Escola v. Coca Cola (New York, 1944) -- .Compare
them with that followed by European Civil Law Systems. In the latter the very
different and sometimes contradictory way followed by national courts has long
been bearable only thanks to scholarly efforts of rationalization. Eventually,
such scholarly efforts have been succesful also at the E.U. level leading the
enactment of a directive. See G. PONZANELLI, LA RESPONSABILITA' CIVILE.
PROFILI DI DIRITTO COMPARATO, 67 ff., 107 ff. (1992). 

(62) J.N.D. ANDERSON, ISLAMIC LAW IN AFRICA (1978); F. CASTRO, SCIARIA E
DIRITTO ROMANO NELLA CODIFICAZIONE DEI PAESI ARABI (1991); J. LADJILI,
Histoire du droit méditeranéen, Revue tunisienne de drot, 810-823 (1982); D.
SANTILLANA, ISTITUZIONI DI DIRITTO MUSULMANO MALICHITA (1: 1925, 2: 1938). 

(63) See W.J.MOMMSEN-J.DE MOOR, EUROPEAN EXPANSION AND LAW:THE ENCOUNTER OF
EUROPEAN AND INDIGENOUS LAW IN 19 th AND 20TH CENTURY AFRICA AND ASIA (1991);
M.GLUCKMANN, REASONABLENESS AND RESPONSIBILITY IN THE LAW OF SEGMENTARY
SOCIETIES, (Prepared for interdisciplinary Colloquium in African Studies on
the Development and Adaptation of Legal Systems in African Law) (1963); R.
SACCO, LE GRANDI LINEE DEL SISTEMA GIURIDICO SOMALO (1985); N. BOUDERBALA,
Aspects de l'ideologie juridique coloniale, 4 Rev. jur., polit. et écon. du
Maroc, 95 ff. (1978). 

(64) See J.N. Hazard, Negritude, Socialism and The Law, 65 Col. L.R. 778 ff
(1965). P.BRIETZKE, LAW DEVELOPMENT AND THE ETHIOPIAN REVOLUTION (1982).  

(65) See for a country study and for the relationship between the layers,
U.Mattei, Socialist and non Socialist Approaches to Land Law. Continuity and
Change in Somalia and Other African States, Review of Socialist Law 

(66) M. GUADAGNI, Diritto dei Paesi Africani, Enc. giur. Treccani, 1 ff.
(1991); R. SACCO, DIRITTO IN AFRICA, Forthcoming. 

(67) On the weakeness of the modern judiciary in Africa, R.Abel, The
Underdevelopment of Legal Professions. A Review Article on Third Woorld
Lawyers, 3 Am.Bar Foundation Res.J.871 ff (1982); R.B.Seidelman, Law,
Development and Legislative Drafting in English Speaking Africa, 19\1 J.
Modern African Studies 133 ff, 1981; J.H. Beckstrom, Transplantation of Legal
Systems. An Early Report on The Reception ow Western Laws in Ethiopia,
21,Am.J.of Comp.Law, 557, 1973; Id, Handicaps of Social Engeneering in
Developping Nations, 22 Am.J.Comp.Law, 697, 1974. As to the low number of
judges which are lawyers by training, C.S.RHYNE (Ed.) LAW AND JUDICIAL SYSTEMS
OF NATIONS (1978), 630; See also L.M.Hager, The Role of Lawyers in Developping
Countries, ABA J. 33 (1972); G. CONAC (ed.), LES COURS SUPREMES EN AFRIQUE,
I-IV (1988-90). 

(68) See generally M.GUADAGNI, Diritto dei Paesi Africani, ENCICLOPEDIA
GIURIDICA TRECCANI (1991); T.O.ELIAS, THE NATURE OD AFRICAN CUSTOMARY LAW
(1956); A.ALLOT, Afrivcan law in DERRET (ed.) AN INTRODUCTION TO LEGAL SYSTEMS
(1968); N.ROULAND, ANTROPOLOGIE JURIDIQUE, (1988); M.GLUCKMAN, CUSTOM AND
CONFLICT IA AFRICA (1973);L. FALLERS, LAW WITHOUT PRECEDENT (1969); M.
GLUCKMANN (ed.), THE ALLOCATION OF RESPONSIBILITY (1972); R. ABEL, THE
POLITICS OF INFORMAL JUSTICE, vol. 2: COMPARATIVE STUDIES (1982); U. WESEL,
FRU"HFORMEN DES RECHTS IN VORSTAATLICHEN GESELLSCHAFTEN (1985). 

(69) On this point see M.GUADAGNI, LEGAL SCHOLARSHIP IN ARICA (1989) 

(70) See SCHLESINGER e al. COMPARATIVE LAW, 5 ed. 500 and note 7. 

(71) id 315 ss. 

(72) J. BASADRE, LOS FONDAMENTOS DE LA HISTORIA DEL DERECHO, 2 ED., 202, 382
ff. (1967); M. LOBO da COSTA, O SELVAGEM NA HISTORIA DO DIREITO NACIONAL, 53
ff., 151 Revista do Arquivo (1952); CLOVIS BEVILAQUA, CRIMINOLOGIA E DIREITO,
221 ff. 1896) P. Catalano, Diritto Romano Attuale, Sistemi Giuridici e Diritto
Latino Americano, 1985, 184 ss., cit. in S.SCHIPANI (ed.) PRINCIPIOS PARA UN
CODIGO TIPO DE DERECHO DEL TRABAHO PARA AMERICA LATINA (1993), 7. 

(73) See DAVID, LES GRANDS SYSTEMES DE DROIT CONTEMPORAINS, 10 éd. (C.
Jauffret Spinosi ed., 1992) 57. 

(74) R. Perez Perdomo, Imperativos Y Alternativas de la Réforma de la
Educacion Yuridica En America Latina, in A. GIULIANI- N. PICARDI (Eds.) L'
EDUCAZIONE GIURIDICA, 2, 287 (1979); J. MONTALVES-DESPEIGNES, LE DRIT INFORMEL
HAITI"EN (1976). 

(75) S.SCHIPANI, A Proposito di Diritto Romano, Rivoluzioni, Codificazioni, 14
Index 5 (1986). 

(76) This idea is developped in U.Mattei, Verso Una Tripartizione non
Eurocentrica dei Sistemi Giuridici, in, STUDI IN MEMORIA DI GINO GORLA (1994).


(77) See SCHLESINGER, cit supra at 651. For its rather respectful attitudes in
front of legal scholarship, J.H. MERRYMAN, THE CIVIL LAW TRADITION. AN
INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA II, 16
and 60 (1985); P. BERSTAIN,EL DERECHO Y EL HECHO: LAW AND THE REALITY IN THE
MEXICAN CRIMINAL JUSTICE SYSTEM 8 Chicano L.R. 45 (1985); M. Hager, cit.; V.A.
CHANETON, HISTORIA DE VéLEZ SàRSFIELD, 418 ff. (Buenos Aires, 1938, reprint:
1939); G. L. ALLENDE, Sobre las "Notas" del Còdigo Civil, 143 La Ley 1-5
(1971); R. LIMOGI FRANçA, PRINCIPìOS GERAIS DE DIREITO (2a ed.: 1971). 

(78) On the centralist and authoritarian character of Latin American States
and for a critique of the control that political institutions have exercized
and sometimes still exert on the legal system, C.VELIZ, THE CENTRALIST
TRADITION IN LATIN AMERICA, Princeton, (1980); R.Biles, Position of the
Judiciary in the Political Systems of Argentina and Mexico, 8 Lawyer Am. 287
(1976); L.Cabrera, History of the Mexican Judiciary, 11 Miami Law Q. 439
(1957). D.S. PALMER, PERU: THE AUTHORITARIAN TRADITION (1980);
SCOTT.B.MACDONALD, LATIN AMERICA, in A KATZ (ed), LEGAL TRADITIONS AND
SYSTEMS. AN INTERNATIONAL HANDBOOK (1986) 213 ff where Courts of Brasil
Venezuela and Mexico are however considered stronger than in other latin
american countries. See moreover, J.HERGET-J.CAMIL, AN INTRODUCTION TO THE
MEXICAN LEGAL SYSTEM (1978) 

(79) see B.Kozolchyk, Fairness in Anglo and Latin American Commercial
Adjudication, 2 B.C.Int. and Comp.Law Rev 219 ff (1979). 

(80) With regard to the constitutional or statutory provisions which in some
countries of Latin America allow a certain number of successive decisions
expressing the same view on the same poin of law to have the force of
controlling precedent: As to the brasilian "Sumula" K.S. Rosenn, Civi
Procedure in Brasil, 34 Am.J.Comp.Law, 487, 513 ff (1986); As to Argentina,
G.R. Carrìo, Judge Made Law under the Civil Code, 41 Louisiana L.R. 993, 1002
(1981); As to the Mexican System, W.WAGNER, FEDERAL STATES AND THEIR
JUDICIARY, 118 (1959). 

(81) See STOLL, In International Encyclopedya of Comparative Law, Torts
XI,2,8-55; For a general survey of tort law in latin America see
Ramon-Dominguez A., Le Fondement de la Responsabilité Délictuelle Dans Certain
Législations de l' Amérique Latin, Revue Internationale Droit Comparé, 1967,
917 ss 

(82) See Tunc in International Encyclopedia of Comparative Law Torts XI,1,
Introduction. 

(83) See Michelman, Pollution as a Tort. A non Accidental Perspective on
Calabresi's Costs, Harv.L.R. 

(84) See, for the american experience Comment, An Enemy of the People:
Prosecuting the Corporate Polluter as a Common Law Criminal, 39 Am Un, L.R
1990 , 311. For a comparative law and economics survey, A.Gambaro-B.Pozzo, La
responsabilità civile per danni all'ambiente nella recente legislazione
italiana: alcune note di comparazione giuridica e analisi economica 47 ff., in
MATTEI-PULITINI (eds.) CONSUMATORE,CONCORRENZA,AMBIENTE. ANALISI ECONOMICA DEL
DIRITTO (1994). For the French system, BRUGGE, LA POLLUTION INDUSTRIEL (1976);
P. GIROD, LA RéPARATION DU DOMMAGE éCOLOGIQUE (1974); G. MARTIN, DE LA
RESPONSABILITé CIVILE POUR FAITS DE POLLUTION AU DROIT à L'ENVIRONNEMENT (th.
Nice, 1976); M. Despax, Rapport, in Travaux de l'Association H. Capitant, La
protection du voisinage et de l'environnement, XXVII (1976). As to the Italian
system, P. Trimarchi, La responsabilità civile per danni all'ambiente: prime
riflessioni, in Amministrare 1987, 198 ff. 

(85)See S.D. MURPHY, Prospective Liability Regimes for the Transboundary
Movements of Hazardous Wastes, 88 Am J.Int Law, 1994, 24, 54 

(86) See S.D. MURPHY, cit. supra nt. 85, at 54.  

(87) For a discussion of how different institutional mechanisms can be used in
this regard see W.KIPP VISCUSI, Towards a diminished role of tort liability:
Social Insurance, Government Regulation, And Contemporary risks to Health and
Safety, 6 Yale J.Regulation, 1989, 65; S. Shavell,Liability for harm vs
regulation of safety, 13 J.Leg.Stud 1984, 357 

(88) On this point compare P. DASGUPTA, AN INQUIRY INTO WELL-BEING AND
DESTITUTION (1993). 

(89) On the dependency of the judiciary from the political regime in Africa:
M. Alliot, The Role of Justice in The Application of Law in Francophone States
of Africa, in LAW FACULTY UNIVERSITY OF IFE (Ed.),INTEGRATION OF COSTUMARY AND
MODERN LEGAL SYSTEMS IN AFRICA (1971) 74, 82; S.C. Otuteye,Constitutional
Innovation in French West Africa.The Experience of Guinea and The Ivory Coast,
10,1, University of Ghana Law Journal, 16,24,26 (1973); A.N.E. Amissah, The
Role of Judiciary in The Governmental Process: Ghana's Experience, 13 African
Law Studies, 4,14 ff, 1976; Id, THE CONTRIBUTION OF THE COURTS TO GOVERNMENT:
A WEST AFRICAN VIEW, (1981); E.V.O.Dankwa,-C.Flinterman, Judicial Review in
Ghana, 14\1 Un.of Ghana Law J. 1 ff (1977); J.F.Scotton, Judicial Independence
and Politica Expression in East Africa. Two Colonial Legacies, 6 (1) East
African Law Journal, 1 ff (1970); T.O.ELIAS, THE JUDICIAL PROCESS IN
COMMONWEALTH AFRICA (1977),99 ff.; L. Luckham,The Administration of Justice, 9
(3) Review of Ghana Law 190, 227 ff (1977). AFRICAN BAR ASSOCIATION (Ed.) THE
INDEPENDENCY OF THE JUDICIARY AND THE LEGAL PROFESSION IN ENGLISH SPEAKING
AFRICA (1988). 

(90) see J.CLARE MOHAMED, Environmental Law Trends and Concerns in Zimbabwe,
in I.L. BACKER-H.C.BUGGE-A. HELLUM (eds.) ENVIRONMENT AND DEVELOPMENT IN
DEVELOPPING COUNTRIES:NATIONAL AND INTERNATIONAL LAW in Institutt for
Offentlig rett, Skriftserie nr.7/94 Oslo (1994), 15, 20 ff; IANET
KABEBERI-MACHARIA, Legal Issues in Environmental Protection and Sustainable
Development. The Case of Kenia, ibid at 27 ff; 

(91) See Elias, cit. supra; Bents Enchili , in International Encyclopedya of
Comparative Law, Property. Such structure is not completely absent even if
nowadays less extended in Latin America. See for an example Mexican Law where
collective property known as ejido finds constitutional recognition. See
K.KARST-N.CLEMENT, Legal Institutions and Development: Lessons for the Mexican
Eido, 16 UCLA Law Rev. 281 (1969); E.SIMPSON, The Ejido: Mexico's Way out, in
K.KARST (ed.) LATIN AMERICAN LEGAL INSTITUTIONS: PROBLEMS FOR COMPARATIVE
STUDIES 574 ss (1966).  

(92) See Shavell cit., at 357. 

(93) For some examples of local statutes tackling pollution, A.ADEKUNLE,
Statute Note, 36 (1) J.of African Law, 99 ff (1992). 

(94) See Bussani, Tort Law and Development Law. The Case of Ethiopia and
Eritrea, in E.GRANDE (Ed.), TRANSPLANTS INNOVATION AND TRADITION IN THE HORN
OF AFRICA. FAMILY,PROPERTY AND STATE (1995) Forth. See also Mattei, Cit supra 

(95) For a general survey and/or particular insights cp. H. DE SOTO, EL OTRO
SENDERO, (1986) (J. Allot trans., THE OTHER PATH, 1989); A. PORTES (ET ALII
eds.), THE INFORMAL ECONOMY: STUDIES IN ADVANCED AND LESS DEVELOPED COUNTRIES
(1989); GARCIA CLARK (ed.), TRADERS VERSUS THE STATE: ANTHROPOLOGICAL
APPROACHES TO UNOFFICIAL ECONOMIES (1988); I. WALLERSTEIN, THE CAPITALIST
WORLD-ECONOMY 162 ff. (1979) (arguing that peripherical areas are drawn into
modern economic relations with the core, on terms that favore only the core);
A. J. Jacobson, The Other Path of the Law, 103 Yale Law J. 2213 ff. (1994).
For a critique of legal centralist ideas, arguing instead that the informal
social order need not to be understood a subordinate to or mere delegation of
the State's authority, R. C. ELLICKSON, ORDER WITHOUT LAW (1991). See also A.
Portes and S. Sassen-Koob, Making It Underground: Comparative Material on the
Informal Sector in Western Market Economies, 93 Am. J. Soc. 30 ff. (1987); and
from a positivistic point of view G. KRZECZUNOWICZ, FORMATION AND EFFECTS OF
CONTRACTS IN ETHIOPIAN LAW, Addis Ababa (1983). 

(96) See, on the opportunity of differentiating the required standard of
behaviour according to the level of care attainable, under the circumstances,
by the single subject involved in the harm causation M. BUSSANI, LA COLPA
SOGGETTIVA (1991). 

(97) See COOTER-ULEN, LAW AND ECONOMICS (1987) 

(98) See KULUNDU-BITONYE,Legislative Limitation to Third Party Compensation in
Kenya. A Critique of the Common Law System, 6 (2) Lesotho L.J. 95 (1990) 

(99) UNEP,Register of International Treatises and other Agreements in the
field of Environment, Doc.UNEP\GC.16\Inf.4 (1991). 

(100) See Kampala Declaration: Environment, Blue Print for Sustainable
Development, 1 FOCUS ON ENVIRONMENT, (1993); see also Murphy, cit. supra at 74
ff 

(101) J.A.S.MUSISI, Reflections on the legal superstructure Governing
Environment Protection in Uganda, I.L.BACKER, H:BUGGE,A. HELLUM, cit. supra at
57;  

(102) Compare S. D. Murphy, cit supra nt. 85, at 74; C. D. Stone, Beyond Rio:
"Insuring Against Global Warming, 86 A. J.  I. L. 445, 457 ff. (1992). 

(103) See J.Palma, On Kaldor's Economic Problems of Chile: The Long Term
Economic Charme of The Chilean Bourgeoisie, Cambridge J Economics 1989
(controlla).