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.
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
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
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
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
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
2. Western Assumptions of Law and Economics and Non Western
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
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
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
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
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
2.2 Law and Economics of Development. Avoiding some
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
3.4. The Proper Role of Modern Tort Law in Less Developed
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
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
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
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
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
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
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
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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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.
(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,
(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
(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,
(82) See Tunc in International Encyclopedia of Comparative Law Torts XI,1,
(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
(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
(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
(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
(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
(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