LEGAL TECHNIQUES AND
POLITICAL IDEOLOGIES
BY ALEXANDER H. PEKELIS
CONTEMPORARY POLITICAL AND
LEGAL TRENDS: No. 1
Research Project of the Graduate Faculty
of Political and Social Science organized
under the New School for Social Research
REPRINTED FROM
MICHIGAN LAW REVIEW
FEBRUARY 1948 (Vol. 41, No. 4)
rs
Ee
LEGAL TECHNIQUES AND POLITICAL IDEOLOGIES:
A CoMPARATIVE Stupy*
Alexander H. Pekelis+
ae problem with which we are going to deal is one of compara-
tive law, a discipline probably even more illusory than legal science
itself. A body of laws represents in itself neither a social reality nor a
social ideal. One of the difficulties that every historian faces in trying
to reconstruct a period of the past with the help of legal monuments is
due to the great variety of relations existing between legal rules and
social reality." So, e.g., legal monuments generally contain in an in-
extricable confusion at least two contradictory types of rules: rules
which are a simple restatement of an existing custom, and rules which
are enacted with the very purpose of reversing existing customs and
which, in terms of social reality, should be read as we read the negative
of a snapshot: white for black and black for white.
The science of comparative law suffers from the same difficulties,
and can acquire a meaning only if it faces them in full and becomes a
part of the history of civilization. But in this endeavor, comparative
law runs the risk of losing its character of legal science. Once engaged
on the sociological path, the temptation to drop the technique of strictly
legal approach altogether is great. The difficult task before the com-
parative lawyer is that of reading the technical results against the light
of a more general political, social and historical experience.’
We shall attempt the comparison between some typical principles
of the common law at large with those which prevailed—prior to the
*] gladly accept the invitation of the Michigan Law Review to publish this paper,
which was read at the General Seminar of the New School for Social Research. It
represents the first report of the Research Project on Contemporary Political and Legal
Trends, directed by Max Ascoli and myself.
The Spanish text of this article is appearing at the same time in “La Ley”
(Argentina). |
+ J. D., Florence, Italy, Author of Ix pirrrro comE VoLonTA cosTANTE (1931).
Formerly Associate Professor of Law, Royal University of Rome, School of Law.
Member, Graduate Faculty of Political and Social Science, New School for Social
Research. Editor-in-Chief, Columbia Law Review.—Ed.
* See particularly with regard to studies of foreign law, Justice Holmes in Diaz
v. Gonzales, 261 U.S. 102, 43 S. Ct. 286 (1923). See also 2 JuErtnc, Geist DEs
ROEMISCHEN REcuTs, 2d ed., 133 (1866).
* See Yntema, “Roman Law as the Basis of Comparative Law,” 2 Law, A CrEn-
TURY OF ProcrRess 346 at 373 (1937); Lepaulle, “The Function of Comparative
Law,” 35 Harv. L. Rev. 838 at 853 (1922); Rheinstein, “Teaching Comparative
Law,” 5 Untv. Cui. L. Rev. 615 (1938).
666 Micuican Law Review { Vol. 41
advent of totalitarian regimes—in what we may call Latin countries.
We are conscious of all the methodological qualifications involved in
the idea of comparison between types, based necessarily on a somewhat
arbitrary classification. On the other hand, only typical characteristics
are the proper subject matter of comparative research. The first condi-
tion for the solution of this methodological difficulty is to be found, as
is usually the case with many “preliminary problems,” in the comple-
tion of one or more concrete pieces of work.
In justifying, however, the classification adopted for the present in-
vestigation, we might say why we centered it upon some aspects of the
law of the Latin type instead of engaging in the more familiar com-
parison between common law and civil law at large. Such comparative
studies have often treated, on the civilian side, institutions of German
law to an extent unwarranted by the importance, however great, of the
systems of that type on the Continent. Europe is by no means co-ex-
tensive with Germany, and it might add to the completeness of the
picture to put the emphasis on a different group of countries, for a
change. We thought, furthermore, that such an approach was bound
to yield results somewhat different from those of studies of the domi-
nant type, since the countries of the German type, although strongly
influenced both by the political ideologies and the legal techniques
which originated from the so-called Latin countries of Europe, still re-
tain too many old Teutonic institutions and attitudes to present a suf-
ficiently striking contrast with the common-law system. Finally, the
expression “civil law” is generally associated with the countries of the
European continent, while we are trying to emphasize the fact that the
contrast between the two systems we are studying means, today, prac-
tically a contrast between North and South America, between English
and Latin America.
Among the most frequent general statements concerning the typical
features of the common law we find the assertion of its individualistic
_ character, for which it is sometimes praised and sometimes condemned ;
and, of course, even more often we find the general statement asserting
the individualistic character of the American way of life.* It may there-
8 See Pound, “Puritanism and the Common Law,” 27 Kan. Bar Assn. Proc. 45
at 48 (1910); Bohlen, “The Moral Duty to Aid Others As a Basis of Tort Liability,”
56 Univ. Pa. L. Rev. 217 at 220 (1908), reprinted in BoHLEN, STUDIES IN THE
Law or Torts 291 at 294 (1926) Bryce, “The Influence of National Character and
Historical Environment on the Dé¥elopment of the Common Law,” 28 Can. Law ©
Times 89 (1908); AncEL, La ‘Common Law’ pD’ANGLETERRE 206 (1927); ELior,
Tue Conrtict BETWEEN INpIvipuaLisM AND CoLLEcTivisM IN A DEMocrRACY 5
(1910); Turner, THe Frontier in AMEricAN History 30 et seq. (1920).
Cameron:
1943 | CoMpaRATIVE LecaL TECHNIQUES 667
fore be interesting to see whether and to what extent a strictly techni-
cal legal test would lead to the substantiation or the refutation of that
general assertion.
We do not attempt to give an exact definition of individualism. It
is safe, however, if not trite, to say that under individualism we all
understand a particular type of relationship between individuals and
society; and precisely a type of relation in which the interests of the in-
dividual and those of society are balanced at a point relatively favorable
to the individual. It is, of course, a relative or comparative statement
and therefore the existence of individualistic features in a given society
can best be ascertained only by comparing it with other existing societies
rather than with ideal standards. And in this study the aggregate of
the means and devices used by a given society in order to enforce upon
the individual the laws of that society, the amount of social pressure
used for this purpose, may be fairly indicative of the degree of in-
dividualism existing in that society. It seems to us, in other words, that
a comparison between the different techniques of enforcement used in
the common-law countries and in other types of legal systems may be
significant in our investigation.
We shall start our investigation at the very point at which the
literature of comparative law generally stops: we shall ask ourselves
what happens after the judicial decision has been rendered. A good
romantic novel ends with a marriage. But sometimes the tragedy starts
just afterwards. One of our finest scholars of comparative law con-
cludes a recent article of his by stating that “The problems which courts
have to decide are essentially the same on both sides of the Atlantic
and, I venture to say, eighty per cent or even more of the solutions are
the same.”* We think that a far greater degree of dissimilarity between
the two systems would have been discovered had the problem of en-
forcement been given more thorough consideration.
We are going to start with a very simple, even naive remark: the
common law knows an institution, called: contempt of court, which to
our mind is most important for the working of the whole legal system.
Legal writers do not indulge too often in rationalizing on this institu-
tion, probably because it belongs to the self-evident presuppositions of
the legal method. It is, in a certain sense, not surprising that a striking
contrast between the two legal systems we are considering may be
found just in connection with this institution. The existence of such a
contrast becomes certain when we give full weight to the fact that the
»)
4 Rheinstein, “(Common Law and Civil Law—A Comparison,” 12 Pa. Bar Assn.
Q. 7 at 19 (1940).
668 Micuican Law Review [ Vol. 41
self-evident common-law principle of responsibility for contempt is,
as principle, simply unknown in the civil-law countries, at least to the
extent to which it represents a sanction for nonperformance of sub-
stantive duties.
It may be said that in the Latin countries the relation between the
courts and the parties is in general far less close, I should say less inti-
mate, than here. The Anglo-American idea of responsibility for con-
tempt means, indeed, that the party who does not abide by certain
specific decrees emanating from a judicial body is a contumacious per-
son and may, as a rule, be held in contempt of court, in the king’s
mercy, so to say, and consequently fined and jailed. And although the
institution is not utilized to the same extent in all areas of enforcement,
it is still a highly characteristic illustration of the philosophy under-
lying the whole mechanism of the Anglo-American legal machinery.
Now, this very concept of contempt simply does not belong to the
world of ideas of a Latin lawyer. It just does not occur to him that the
refusal of the defendant to deliver to the plaintiff a painting sold to the
latter, a purely private matter between plaintiff and defendant, may, as
soon as a judicial order is issued, become a matter to a certain extent
personal to the court, and that the court may feel hurt, insulted, “con-
temned,” because its order has been neglected or wilfully disobeyed.
The Latin conception of the means of enforcement is of a far more
mechanical or formalistic character: it is a play with certain rules, traps,
catches and loopholes; and the court itself is one of the cogs of the me-
chanism, a party to the play. It does not occur to the actors that you
have to bow to the judge’s will, or that you may be punished by him,
or, even more absurd, 4lamed for not having complied with his orders.
The court says that the painting belongs to the plaintiff? Very well, let
him try to get it! He may send the sheriff, and the defendant certainly
will not prevent him from coming into his house and looking for the
painting; if he is lucky enough to find it there, not elsewhere, well, he
has won. Neither the sheriff nor the court can ask where the defendant
put the painting. Once, in Italy, a simple-minded creditor who, by
special leave, assisted at the futile attempt to attach a painting in the
debtor’s house, requested the sheriff to inquire of the defendant where
the painting had been put. A general chorus of laughs and chuckles,
in which even the plaintiff’s attorney joined, was the answer. The
Anglo-American solution of this situation, namely, to send the debtor
to jail until he chooses to deliver the painting—theoretically for life—
simply does not occur to the Latin lawyer. His first reaction to this
common-law practice is generally: “Don’t you think that this kind of
1943 ] CompaRATIVE LecaL TECHNIQUES 669
punishment is a little too severe for a simple refusal to deliver?”? The
answer of the common lawyer—which only adds to the astonishment
of the civil lawyer—is that of course we are faced here with so-called
civil contempt; there is no punishment involved, the proceeding is not
a criminal one. He just disobeyed—a term that for a Latin lawyer’s
ear is likely to suggest a parent-child relation, rather than a court-party
relation—he has disobeyed the court, he has been a bad boy, and he
has to stand in the corner until he changes his mind. Nothing myste-
rious about it!
The enforcement device known to the civil law of the Latin coun-
tries, which is compared frequently to the contempt sanction,’ is the
French “astreinte.” This is a pecuniary sanction imposed by the court
for every single future act or single period of violation of a judicial
decision. This sanction can either consist in the simple means of liquida-
tion of damages in futuro or have a comminatory or coercive character.
The line between the two forms is not always easily drawn, but it 1s
obvious that only to the extent to which the astreinte has the latter
character is it an enforcement device at all and only to that extent does
it fall within the scope of our investigations.
It is true that some apparently impressive instances of strong pres-
sure exerted by astreintes assessed in amounts obviously beyond any
possible liquidation of damages can be found and are often quoted in
support of the analogy. We believe, however, that a closer analysis of
the astreinte not only shows that its role is altogether incomparable, in
terms of legal reality, with that of the sanction for contempt, but also
illuminates the deep contrast in the political approach to the problems
of enforcement.
First of all, the decision of a tribunal granting an astreinte never
operates in personam. That is to say, the debtor can never be im-
prisoned for nonperformance of the order. This evidently takes away
the usefulness of astreinte in cases where the inadequacy of damages is
due to the difficulty of collecting them. Secondly, and this is their most
surprising feature, astreintes do not operate in rem either. Strange as
it seems, creditors cannot collect the astreinte that has been assessed by
the court. No process by execution or otherwise assists them. The deci-
sion remains on a merely platonic plane. If, despite the judicial threat,
the debtor persists in his refusal to comply, the only thing the creditor
can do is to go back to the tribunal in order to make the provisional
5 See Amos, “Specific Performance in French Law,” 17 L. Q. Rev. 372 at 373
(1901); Brodeur, “The Injunction in French Jurisprudence,” 14 Turane L, Rev.
211 (1940).
670 Micuican Law Review [ Vol. 41
decision final. But this making the decision final is a somewhat euphe-
mistic description of what really happens to the first decision through
the process of “finalization.” In it, the astreinte judgment is, and has
to be, deprived of every comminatory element and reduced to a simple
liquidation of damages. Planiol and Ripert describe in the following
way the dilemma confronting the French judges:
_ “,.. Now the amount actually collected by the creditor must
be measured by the damage suffered by him and serves only to
repair it. Indeed, either the judges intended from the beginning
to render a final decision, and they had to confine themselves to
the allowance of damages calculated in the usual way; or they
intended to render a comminatory judgment whose amount they
could fix arbitrarily but which cannot be enforced as it is and is
subject to revision in order to be reduced to an assessment of
damages. This is to say, the penal element which it may be ap-
peared at the beginning, will vanish at this moment and will not
materialize.” *
As the French Supreme Court puts it, an astreinte is either commina-
tory or final.*
In other words, the French judge finds himself in the somewhat
peculiar position of one who may threaten but who may not carry out
his threat. Strictly speaking, astreinte becomes nothing more than
strong language intended to impress the recalcitrant loser of a law
suit. If, however, the latter is not impressed to the point of perform-
ance, so much the worse for the winner. The court has done for him
all it possibly could do: it used strong language against his opponent.
It is an open secret that before giving the winner title for execution the
court must reduce the amount of the astreinte to the size of the damage
suffered. True enough, there is every reason to expect that in assessing
such damages the court will solve many if not all doubts about the
actual amount of the damage in favor of the winner. But this judicial
discretion is strictly limited by the court’s duty to explain in its opinion
the way in which the damage has been appraised (duty to motivate).
It is safe to say, therefore, that there is nothing in the powers of a
° E.g. Coquelin v. Société des Comédiens Francais (Ct. App. Paris, April 21,
1896) Dalloz 1897.2.177, 182; Consorts Lantzenberg v. Veuve Dreyfus, (Ct. App.
Dijon, April 28, 1910) Dalloz 1912.2.36; Fouché v. Consorts Chancerelle, (S. Ct..
Jan. 20, 1913) Sirey 1913.1.388; Société hételigre de Marseille et de la Riviera v.
Comte de Beauregard, (Ct. App. Aix, Feb. 15, 1937) Dalloz Hebdo. 1937.211.
"7 Pianio: AND Ripert, Trairé Pratique pe Drorr Civin Francais 95
(1931).
* Galbrum v. Durand, (S. Ct. March 14, 1927) Sirey 1927.1.232.
1943 ] ComparaTIVE LecAL TECHNIQUES 671
French tribunal in this respect that might exceed the powers inherent
in the Anglo-American system of assessment of damages by unmoti-
vated jury-verdict.
One cannot help wondering why the French tribunals use astreinte
at all if it is just an unrealizable threat. The answer is probably two-
fold. First of all it must be remembered—and astreinte is a revealing
institution from this viewpoint—that shadows and ghosts and words
and powerless threats have a reality of their own. They might and in
fact do impress people, laymen and lawyers, to an extent far greater
than that justified by rational expectation. In the second place, the
somewhat futile comminatory astreinte is still the first step towards the
“final astreinte” which consists in the anticipatory liquidation of dam-
ages generously measured and payable from period to period. The ef-
ficacy of the periodical form given to the compensatory sanction in-
creases, of course, its secondary deterring effect. But this is, by and
large, all that can be said to explain the existence of astreinte. In in-
vestigating the psychology of a game one may discover that bluffing
is an important weapon and maintain, if in the mood for paradoxes,
that to have or not have cards in one’s hands does not make much dif-
ference. But we should not be misled by elegant contemplations on the
marginal effects of an institution lest we lose sight of its main lines.
Astreinte is an institution. substantially different from contempt of
court. It is a bluffing threat by naked words and does not really add
to the dignity of the courts, at least as understood in the common-law
countries. The truth of the matter is that the French—judges, lawyers
and laymen—do not believe in what constitutes the essence of the
Anglo-American legal system, i.e., the existence of an inherent con-
tempt power of judges as a fundamental attribute of their being judges.
Characteristically enough, a scholar of the standing of Professor Es-
mein felt the necessity of writing a learned article in which, with the
help of historical and political arguments, he attempted to prove that
French judges do have contempt powers, and tried to give a founda-
tion to astreinte in its comminatory character.* But his has been and is a
vox clamans in deserto. His main contention, that judges have im-
perium—a self-evident truth to every common lawyer—presents itself
to the French public as a heterodox doctrine militating against the gen-
eral consensus of jurists and politicians. The work of Esmein has been
largely admired, widely quoted, unanimously rejected. In the field of
astreinte the French judges could never get rid of a certain timidity,
>»?
®Esmein, “L’Origine et la logique en matiére d’astreintes,” 2 REvuE TRIMEs-
TRIELLE DE Droit Crvit 5 (1903).
672 Micnican Law Review [ Vol. 41
an unequivocal symptom of their “bad conscience.” Esmein tried in
vain to tranquilize them (and in so doing he was abandoning his basis
of inherent-imperium doctrine) by pointing to some secondary provi-
sions of the French Code. But the provisions were actually saying the
contrary of what Esmein attempted to read into them, and every
lawyer knew it. One of the highest courts of France, the Conseil
@’Etat, speaking of the astreinte, considered it a useful and necessary
contrivance but without any juridical foundation and a “procédé anti-
juridique. Instead of a self-evident, primary and fundamental at-
tribute that judges possess as a matter of principle, we find in France
an arrangement confined to the backyard of legal principles, created
timidly on the margin of, and perhaps against, the code, this sacred
and dominating body of law, an enforcement device surprisingly
enough not enforceable itself.
It must be added that in Latin countries other than France even
this timid “astreinte,” this shadow of contempt proceedings, has been
considered a tyrannical device opening the door to the worst evils of
judicial arbitrariness." Indeed, despite the wide influence exercised by
the French civil code in almost all countries of the romance language
group of Europe and America, in none of them, with the exception of
one Swiss canton, Geneva, has astreinte been received. A few unsuc-
cessful attempts to introduce it have been made in Europe and in
America. The lack of such attempts in the majority of the countries,
and their failure where they were made, seem equally revealing of a
certain historical tradition, if not of a deep-rooted conception of legal
relations at large.
This conception is clearly distinguishable, to say the least, from
that prevailing in the common-law countries. While Anglo-American
equity bluntly confesses to act in personam, the idea which dominates
the civil law of the Latin type is still memo ad praecise factum cogt
potest.” What is meant by this formula is not simply that a man cannot
be coerced into acting in a certain way. That statement would be of a
doubtful philosophical value. Indeed, if no line between coercion and
inducement were drawn, the statement would be incorrect: coactus
10 Te Noir, (Council of State, Jan. 27, 1933) Dalloz 1934.3.68.
11 Belgium: Commune d’Engis v. Compagnie d’Electricité de Seraing, (S. Ct.
Jan. 24, 1924) Pasicrisie Belge 1924.1.151; Italy: 2 Giorci, TrorIA DELLE OBLI-
GAZIONI NEL DIRITTO MODERNO ITALIANO, 7th rev. ed., 238 (1930); Argentina: 3
Macuapo, Exposici6n y CoMENTARIO DEL Copico Civit ArcENTINA 349 (1932);
Colombia: 6 VELEz, DEREcHo Civ1LE CoLompBiano 229 (1926).
12 See 7 PLanioy AND Ripert, Trairé Pratiqgue pr Drorr Crvit Francais 76
(1931).
1943 } CompaRATIVE LrecaL TECHNIQUES 673
voluit tamen voluit, says another handy Latin maxim. If, on the other
hand, the line between inducement and coercion were drawn some-
where, the statement would mean simply that an event is not an act if
it 1s coerced, and thus shrink to mere tautology. But under a philo-
sophical cloak, the formula offers political content, and mirrors the con-
viction that courts cannot, that is to say, should not, use personal coer-
cion upon a man in order to obtain his acting in a certain way.
The most common form of personal coercion is represented, prob-
ably throughout the world, by the sanctions of the penal law, and
these obtain, of course, on the European continent to the same extent as
elsewhere. But the uniqueness of the common-law sanction consisting
in imprisonment for civil contempt lies in the fact that, unlike the
criminal sanctions, it is imposed not so much guia peccatum est, not as
a consequence of a certain act, but wt agitur, in order to provoke an act.
The legal significance of punishment is in its etiological character,
whereas that of the contempt sanction is in its teleological aspect;
punishment is mainly a willed consequence of human behavior; jail
for contempt is mainly a means of bringing about certain behavior.
Even when the criminal sanctions are explained not on the theory of
retribution but on that of deterrence (ne peccetur as opposed to the guia
peccatum est), the intended effect is that of an indirect action upon men
generally, not that of directly coercing the punished person into a cer-
tain behavior. It is true, of course, that whatever be the theory upon
which punishment is predicated, the threat of punishment induces the
threatened to behave in a certain way, and that this effect looms large
in the intentions of the lawmakers. But the contempt sanction still dif-
fers from the punitive one in the exclusiveness of its coercive purpose,
in its functional structure well-adapted to its aim. The magnitude of
the pressure is measured not by what has been done (be it the heinous-
ness of the crime or other elements) but by the resistance to be over-
come. Once the will of the person subject to treatment is bent, coercion
ceases. The judge jailing the reluctant party engages in an active
struggle with the will of the latter, and as soon as he changes his at-
titude he is freed, even though the injury which caused the proceedings
has meanwhile become incapable of reparation. The future behavior
of the defendant or of other individuals is incomparably less in the
foreground in a criminal case. What happened—the crime—is now be-
yond the powers of judges and parties. The law imposes certain con-
sequences, and repentance, reparation, good behavoir, reformation, fu-
ture deterrence, are only secondary characters in the play. In every
type of society you can jail a man or put him to death because he did
674 Micuican Law Review [ Vol. 41
something. But in many societies the doubt is raised whether it is prop-
er to jail him for a single day im order to do violence to his incoercible
freedom to do or not to do something. Has society an enforceable claim
to his specific behavior? Everywhere that contempt sanction obtains the
answer is “yes”; where it is missing, the answer is “no.”
The same criterion makes it possible to distinguish the contempt
sanction (particularly in its pecuniary form) from the sanction of dam-
ages and other noncriminal sanctions. Here again it must be con-
ceded and pointed out, from the outset, that an element of coercion or
inducement is obviously present in every sanction. What makes for the
uniqueness of the contempt sanction is that it is the only one which, in
order to achieve the restoration of the legal order, counts upon and
aims to provoke the co-operation of the debtor. All other sanctions
rely upon a certain behavior of agents of the government directly aim-
ing at the achievement of certain objective results consisting generally
in the transmission to the injured party of certain things and/or values
from the possession or ownership of the debtor. The structure and
mechanism of the sanctions is shaped in a way to dispense completely
with co-operation. As matter of fact, the debtor is not expected to act,
and not even to forbear to act, but only to suffer other people’s action,
to pati.
Execution, e.g., 1s not directed against the debtor, whose person re-
mains free from every compulsion, but only against his goods. He
might care to stop the march of execution through voluntary com-
pliance. And in this sense every sanction functions as inducement or
coercion of the debtor. But this is a collateral and accidental aspect
of sanctions other than those for contempt: they may be brought to ul-
timate and satisfactory conclusion without having exercised the slightest
effect upon the debtor’s behavior. Only the contempt sanction is di-
rected against the debtor’s person, has its magnitude measured not by
that of the wrong committed or the injury inflicted, but by the ex-
pected resistance and the need of bending the reluctant will. Induce-
ment or coercion is not a secondary, accidental or implicit aspect of this
sanction, but represents its essential and exclusive functions condition-
ing and shaping its structure. The sanction for civil contempt stands
alone as a pure enforcement device; its sole and avowed purpose is that,
declared impossible by Continental law, of cogi ad praecise factum,
1.e., to coerce a man into a certain behavior.”
*8 For an attempt at a general classification of enforcement devices somewhat
along the above lines, see PEKE xis, Dirirro CoME VOLONTA COSTANTE 94-104, 12I-
131 (1931).
1943 | CoMPARATIVE Lecat TECNIQUES 675
It is probable that at this point the question spontaneously arises:
what are the remedies upon which the creditor in Latin countries may
count? These remedies consist primarily in the award of damages.
This is of course a common-law remedy as well, being the typical, if
not the only, remedy at law as distinguished from equitable relief.
Let us see, therefore, how this common remedy of damages works
in the two legal systems. For if, by any chance, the remedy of damages
were stronger in the civil-law countries than in the common-law coun-
tries, this could offset the weakness derived from the lack of specific
relief. But on examination of the two systems, it appears that the op-
posite is true.
Take, for instance, the case of libel or slander: in many cases the
issue fought by the lawyer in this country is to find out whether or not
special damages have to be shown in order to make the defendant
liable. The ruling of the court that the plaintiff must show special
damages because the oral defamation did not fall into any of the classes
of slander per se, is often considered a substantial defeat for the plain-
tiff. But this is all a plaintiff in a typical Latin country can reasonably
hope for in any event; the idea of getting what is called here general
damages does not even occur to him. The only recovery he can secure
in any case is these meager special damages, and he knows that he has
to prove specifically and concretely each and every penny thereof. It is
true that you speak sometimes about moral or nonpecuniary damages.
But how modest and cautious they are! According to the doctrine pre-
vailing in Italy, they may be awarded only in the case of a criminal of-
fense, and even there some writers contend that the monetary repara-
tion is justified only to the extent to which these moral damages have
produced financial loss.** The same result obtains substantially in Latin
American countries.*> The rule is even more strict in Germany.** In
France and in Belgium, things are apparently different, but a student
who makes the effort to go beyond the words of the decisions and look
14 E.g., Ronsini v. Lettieri, (S. Ct. May 21, 1932) Il Foro Italiano (1932)
57.1.1322, and Unione Italiana Tramways Electrici v. Marugo, (S. Ct. May 7, 1934)
Rivista p1 Dirirro PrivaTo 1935.2.17. See also Montel, “La Réparation des Dom-
mages Moraux en Droit Italien,” 64 BULLETIN DE La SociETE DE LEcisLaTIon Com-
PAREE 361 (1934).
15 E.g., for Argentina: Scaramuzzi v. Parma, (Ct. App. Rio de Janeiro, June 18,
1907) Juris. Civil V 187.394. For Brazil, see 5 Crovis Bevitaqua, Copico Civi1,
ComMENTADO, 4th ed., 321 (1939).
16 Biirgerliches Gesetzbuch, (1938), art. 253. See also zu Dohna, “Die Stellung
der Busse im reichsrechtlichen System des Immaterialgueterrechts,” 1 ABHANDLUNGEN
DES KRIMINALISTISCHEN SEMINARS AN DER UNIVERSITAT BERLIN, N.F., No. 4, esp.
443-444 (1902).
676 Micuican Law Review [ Vol. 41
into the actual awards of damages will find rather instructive results.
Thus, in defamation cases the awards average between 5,000 fr. ($200)
and 100 fr. ($4). And these latter cases are by no means six-cent ver-
dicts; they are considered to be genuine compensation for the injury
suffered. Malicious and intentional libel by big newspapers results as
a rule in verdicts for about 500 fr. ($20), hardly enough to com-
pensate the unfortunate plaintiff for the inconvenience of prosecution,
and certainly by no means a deterrent penalty.” In a single case there
was a substantial deviation from the average range of recovery. A
French nobleman, M. de Brissac, succeeded in collecting 75,000 fr.
($3,000) from an American motion picture company,** but even that
sum does not appear substantial when compared with the £25,000
($125,000) awarded in 1934 by an English jury in the analogous
case of Princess Youssoupoff v. Metro-Goldwyn-Mayer.* That is why
a European newspaper would classify under the heading “Things
American”—“Americana”—the news that a girl in New York has been
awarded $5,000 because the defendant kissed her in the street.
These instances are but an illustration of the general contrast, based,
on the one hand, upon the existence of such institutions as exemplary
or multiple damages, and, on the other, upon the idea—fundamental
for the modern civil lawyer—that damages are strictly a compensation
for injury suffered. This explains why he does not understand institu-
tions such as nominal, punitive and multiple damages. The concept
that, while judicially ascertaining. your damages to amount to $100,
the judge may award you $200 or $300, simply does not fit into the
structure of a contemporary civil-law system. And the comparative in-
vestigation of the law of damages only stresses further the greater en-
ergy of the common-law enforcement technique.
Thus, considering, among other instances, the “civil” contempt of
court involving fine and imprisonment, thinking of punitive and mul-
tiple damages, we cannot help feeling that the line separating public
law and private law in Europe is far less clearcut in Anglo-American
countries, and that a certain pemalistic flavor is a characteristic of the
whole common-law system. But it is probably impossible to fully
understand the true spirit of the common law without recognizing and
*T E.g. Callman-Lévy and Psichari (Anatole France) v. X., (Ct. App. Paris, April
24, 1936) Dalloz-Hebdo. 1936.319; and Me. Roche v. Bozon Viallé, (Ct. App.
Chambéry, October 22, 1936), Gaz. Pal. 1936.2.780. See also Grvorp, La R&PARA-
TION DU PREJUDICE Mora 258 (1938).
*8 De Brissac v. Société Paramount des Films, (Civ. Trib. Dec. 1, 1926) Dalloz-
Hebdo. 1927.127.
79 (Ct. App. 1934) 50 T. L. R. 581, 99 A. L.R. 864.
1943 ] ComparaTIVE LecaL TECHNIQUES 677
frankly admitting its religious and moralistic character. The philo-
sophy of the civil-law countries is that law has to do with the external
behavior of man in society, and questions of conscience are reserved to
the moral forum. The law has to translate its aims in a series of ob-
jective rules which will be the guide of the individual, who is bound
only by what is said, and who is free where loopholes are to be found in
the network of the laws. Franz von Liszt, the great German crimino-
logist, used to contend that the criminal code is the Magna Charta of
the criminal.*® No law, and particularly no court, shall meddle with the
conscience of the litigants. While this is the secular civil-law approach,
we have on the other side, in England, a Court of Chancery, which had
its very origin in the aim, to use its own words, to meddle with the
“Conscience of the Party.” ** The Court of Chancery was of course not
an ecclesiastical court: but it is just its secular structure and its secular
functions that make certain aspects of its tradition significant. The fact
that until 1529 the Lord Chancellor had always been a high ecclesias-
tic dignitary, that he exercised civil jurisdiction in his capacity of the
Keeper of the King’s Conscience, that his devices were those used
widely in ecclesiastic tribunals, contribute to the obliteration of a clear-
cut line between the techniques of ecclesiastic and secular courts. And
we are not surprised to find lay chancellors using a typically ecclesias-
tical language. For instance, the opinion in the famous case of the Duke
of Norfolk, decided as late as 1682, was based in part on the reasoning
that certain long-lasting arrangements of property holdings could not
be protected by the law because they disclosed a mentality inconsistent
with that of a true Christian: “such do fight,” said Lord Nottingham,
“apainst God, for they pretend to such a stability in human affairs as
the nature of them admits not of.” ”
The influence of religious beliefs upon the economic development
and the very origin of English capitalism has been the subject of many
valuable and famous studies.** The influence of religious philosophy
and ecclesiastical technique upon the substantive and adjective law was
not less important. As a matter of fact, this influence is probably the
20 von Liszt, “Die deterministischen Gegner der Zweckstrafe,” 13 ZEITSCHRIFT
FUER DIE GESAMTE STRAFRECHTSWISSENSCHAFT 325 at 357 (1893).
21 Arguments Proving from Antiquity the Dignity, Power, and Jurisdiction
of the Court of Chancery, 1 Chan. Rep. (Appendix) 1 at 47, 21 Eng. Rep. 576 at
587 (1616).
22 Duke of Norfolk’s Case, 3 Cas. Ch. 1 at 31, 22 Eng. Rep. 931 (1682).
28 See, e.g.. Max WEBER, THE PRoTEsTANT ETHIC AND THE SPIRIT oF CaPITAL-
isM, translated by Parsons (1930); Tawney, RELIGION AND THE RisE oF CaPITALIsM
(1926).
ES SN SURE OT SI SRE A TR ae ae
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678 Micuican Law Review [ Vol. 41
only factor in the development of Anglo-American legal institutions
that can show a continuity of more than a thousand years. Almost two
centuries before the Norman invasion, Alfred the Great thought it ad-
visable to begin his Dooms with the re-enactment of a somewhat re-
vised edition of the Ten Commandments. Thus, in section 3 he made
legislatively certain that “in six days Christ wrought the Heavens and
the Earth, the Seas and All Creatures that are in them and rested on
the seventh day and therefore the Lord hallowed it.” ** And the com-
mandments are still a part of the law of the land. Thus, a few months
ago, a judge in Pittsburgh held a witness in contempt of court who, ina
divorce suit, said, “My mother is not a lady.” “Honor thy father and
thy mother, whom the Lord hath given thee,” says the Bible. Ameri-
can tradition backs the Pittsburgh judge. We find, for instance, a para-
graph in the Blue Laws of New Haven reciting: “If any child above
sixteen years old and of sufficient understanding shall curse or smite
his natural father or mother he shall be put to death .. . Exodus Ch.
21, verse 17; Leviticus 20; Exodus 20:15.” The same provision is to
be found in section 13 of the 1671 version of the Liberties of the Mas-
sachusetts Bay Colony. We all know that biblicism was extremely
strong in American colonial life; a great number of the laws enacted in
New England contained as a usual feature a reference to the biblical
passage deemed to be their truest source of authority. To “deny God
or His creation or government of the world” was one of the capital of-
fenses in the Massachusetts Colony, and probably not there alone.
One of the most impressive consequences of the influence exercised
by the ecclesiastic procedural technique through the medium of the
equity courts upon the administration of justice at large is to be
found in the creation of a closer, almost confessional atmosphere in the
relation between the court and the party. This somewhat vague at-
mosphere has materialized in at least two very precise legal relation-
ships, which can be described as the duty of disclosure and its far-
reaching complement, the right of investigation. The decisive impor-
tance of this duty and this right for our investigation becomes clear
when we consider that, under the rules of civil procedure in Latin coun-
tries, no person may testify under oath in his own cause, not even if
willing to do so. You cannot be a witness in your own case any more
than you can be a judge in your own case. In the Anglo-American sys-
tem, on the contrary, every party has the right today to testify under
oath in his own case, and has, as a rule, a strong interest in doing so. It
24 THORPE, ANCIENT Law aANnp INsTITUTES OF ENGLAND 44-45 (1840).
>
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1943 } CoMpaRATIVE LrecaL TECHNIQUES 679
is true that we sometimes see a party take an oath in, say, an Italian or a
French court; but never as a witness. The party may swear upon a
given formula. He cannot be examined, much less cross-examined.
The party’s oath is not a means of finding the truth; it is rather a means
of closing a litigation haphazardly, or a chance taken by a party who
feels he is going to lose and tries to put his opponent under pressure by
making him swear to his allegations. This, of course, makes the party
oath an institution of very limited practical importance, and it is in no
way comparable to the cross-examination of the parties under oath
which takes place in the common-law countries. Prior to 1933 there
were a few exceptions to this rule; the most prominent of these was the
Austrian Parteivernehmung, shaped expressly on the British pattern,”
and an outstanding and rare instance of successful reception of a com-
mon-law institution on the European continent.
The situation of the defendant in a criminal proceeding is not less
significant. I do not know of a single civil-law country in Europe or
America in which the defendant in a criminal suit is allowed to take the
stand in order to make declarations under oath. This is, however, the
defendant’s privilege today in England and in all but one of the
American jurisdictions, a situation perfectly in line with one of the most
basic chancery traditions. This right of the defendant to testify is, of
course, at the same time quite a burden, and the defendant who fails
to avail himself of the privilege is liable as a matter of fact to discredit
himself in the eyes of his judges. At the International Congress of
Criminal Law held in Palermo in 1933, the question of the defendant’s
oath appeared to be almost the only point of unbridgeable conflict be-
tween the common and the civil lawyers.** The attitude of the latter
was that the defendant has to be given a chance in his struggle against
the accusation. After the criminal code, the code of criminal procedure
becomes the Magna Charta of the criminal. The argument of the civil
lawyers—and it is noteworthy that one of the most violent indictments
of the United States’ system of criminal proceedings was read by the
delegate from Cuba—was that in order to make the common-law guar-
antees against self-incrimination effective, not only the duty but also
the right to testify in their own case must be taken from the parties;
otherwise the prejudice de facto is an incentive to perjury.
This sweeping duty of disclosure in Anglo-American countries is
25 See 2 PoLLAK, SysTEM DES OESTERREICHISCHEN ZIVILPROZESSRECHTS MIT
EInscuLuss pEs EXEKUTIONSRECHTES 2d ed., 687-688 (1932).
26 TroisikME ConcREs INTERNATIONAL DE Droir PENAL, AcTEs pu ConcrEs
491-533 (1935).
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680 ~Micuican Law Review { Vol. 41
beyond doubt of ancient origin. The Court of Chancery subpoenaed the
defendant to present himself before the court and to file under oath an
answer containing the full disclosure of all facts pertaining to the cause.
This duty of disclosure reached its climax in the proceedings before the
High Commission and its ex officio oath, which invited the thunders of
Sir Edward Coke, who argued that judges “ought not examine partem
ream, upon their oath.” To prove the point, he explicitly had re-
course to a civil-law principle, and went on to say “for as a civilian
said, that this was inventio diaboli ad destruendas miserorum animas ad
infernum.”*" The High Commission disappeared, King Charles I was
beheaded, but it is still the spirit of the chancery, and not that of Lord
Coke, which rules common-law procedure.
The importance of the right to investigate and of the duty to dis-
close goes, in Anglo-American society, far beyond the scope of judicial
activity. Even where there is no question of violation of existing laws,
an individual may be subpoenaed to appear before an administrative
agency or a legislative investigating committee and disclose every detail
of his business and his life, and a subpoena duces tecum may order him
to produce every possible kind of record or document pertinent to the
inquiry. We tried to explain elsewhere the reasons for our belief that
the power of the American administrative agencies and the scope of
their activity are much greater than those of administration in civil-
law countries.** Here it is enough to stress the fact that the subpoena
is the main weapon of administrative and legislative investigating
bodies. Without the duty to disclose, their activities are unthinkable,
and indeed an investigation as sweeping, for instance, as that described
by Judge Pecora in his Wall Street under Oath” is a phenomenon
practically unknown in the civil-law countries. In France, for instance,
the powers of the parliamentary committees are uncertain at best,
and the success of their investigations practically depends upon the
willingness of witnesses to testify.*° The timid legislative reform of
1914 failed to change the situation substantially, but did not escape the
vigilant attention of leading constitutional lawyers and statesmen, who,
like Duguit, Berthélémy and Reynaud, were ready to see in it an
27 12 Coke 26, 77 Eng. Rep. 1308 (1607).
28 Pekelis, “Administrative Discretion and the Rule of Law,” 10 Soctat RESEARCH
22-37 (1943).
29 PecorA, WALL STREET UNDER OaTH; THE Story or Our MopErRN Money
CHANGERS (1939).
80 See JosEPH BARTHELEMY, Essai sUR LE TRAVAIL PARLEMENTAIRE ET LE
SYSTEME DES CoMMISssIONS 245 (1934) (International Institute of Public Law, Vol. 5).
1943 | CoMPARATIVE LEGAL TECHNIQUES 681
obvious violation of the doctrine of separation of powers and a curtail-
ment of the fundamental rights of man and citizen. The ideological
strength of this individualistic principle was such that even the indigna-
tion provoked by events like the Panama scandal or the Stavisky affair
was not sufficient to swing the balance of public opinion. Not even in
Germany, where the Weimar constitution followed the English prece-
dent by introducing the principle of parliamentary investigation, was
the situation different. An early episode is probably sufficient to show
the difficulties with which the reception of the common law on Euro-
pean soil usually meets. The German right-wing leader Helfferich,
while testifying before a parliamentary committee, declared that he
would not answer any question put to him by Oscar Cohn, one of the
members of the committee. The outraged committee, in the climax of
its fury, assessed a fine of no less than 300 semi-inflated marks. The
order was sent for collection to a local court, which apparently upheld
certain procedural exceptions of the contumacious witness and cancelled
the fine.® It is highly probable that an English or American committee
would, in a similar case, have kept Mr. Helfferich in jail “as long as
we please.” *
It is important for the purpose of our investigation to note that
this far-reaching duty of disclosure in common-law countries has its
roots not only in the clerical and moralistic manners of approach we
have spoken about, but also in another characteristic of the common-
law tradition. This feature is represented by the importance of the con-
trol that the community at large exercises over the individual. To a
certain extent the law represents always and everywhere social custom
and public opinion about what is wrong and what is right. But the com-
mon-law countries possess a series of institutions which succeed in
maintaining a constant relationship between the state of law and the
state of public opinion, and particularly the state of opinion of the
immediate community to which a given individual belongs.
The main device through which this constant check is effectuated
is probably the institution of the jury, and, possibly even more, of the
grand jury. Trial by jury is the birthright of every Englishman, ac-
81See 4 Ducuit, TraiTé pE Droir ConsTITUTIONNEL, 2d ed., 398 et seq
(1924); Berthélemy, “Les Limites du Pouvoir Législatif,” 125 REvuE PoLiTIQUE £1
PARLEMENTAIRE 355 et seq. (1925); Le Temps, November 14, 1925. The problem
of parliamentary investigations will be dealt with in more detail by Mr. Henry W.
Ehrmann in one of the forthcoming papers of our research project.
82 See W. Jellinek, “Revolution und Reichsverfassung,” 9 JAHRBUCH DES OxErF-
FENTLICHEN RECHTS DER GEGENWART I at 91 (1920).
88 See, e.¢., Conc. Giose, 42d Cong., 3d sess. (1873), p. 982.
hf
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682 Micuican Law Review { Vol. 41
cepted and guaranteed in the Constitution of the United States. It may
be worthwhile to recall some of the ancient English institutions which
may place in relief the true significance of the jury.
One of these institutions is the tithing, or the frankpledge. It is an
old Saxon institution that existed in England long before the Norman
conquest and the Norman invaders were only too glad to develop and
strengthen it. It is said that each boy, on reaching the age of fourteen,
was obliged to find some such pledge or be committed to prison,”* and
it is an interesting circumstance that the frankpledge was not unknown
to Colonial America, and seems to have been in effect in Pennsyl-
vania.”°
We do not think there is any need to comment on the significance
of such an institution. Its underlying philosophy is obviously that it is
the quality of being a good neighbor that makes a man a good citizen,
or better, a citizen at all, that gives him his political status and his per-
sonal liberty. Other institutions were inspired by the same philosophy.
Take, for instance, the compurgation, or wager of law. A defendant in
a criminal or civil proceeding could purge himself by his simple oath,
provided, of course, he presented himself to the court with a sufficient
number of oath-helpers, or compurgators. This means, of course, that
good neighborliness not only imposed certain duties but could pay very
well indeed in certain contingencies through this institution of the
wager of law. The latter was common to all Teutonic tribes, but Eng-
land is the only country in which, as late as 1833, it required statutory
‘abolition.*®
Against this background, the origin of the jury takes on a particular
meaning. It is to be remembered that this reform was not imposed, as
some seem still inclined to think, by humanitarian reformers against
a cruel royal tyranny. The jury, a device invented by the royal courts,
was sometimes rather cruelly imposed upon litigants or at least upon
certain types of litigants. A descendant of Norman conquerors, in his
“rugged individualism,” probably would consider as his inalienable
birthright the right to a trial by battle, and not a trial by jury, which
would expose him to the mercy of his peers. He wanted to fight his op-
ponent sword in hand, and kill him or hear the grovelling word
“craven” issue from his throat—even at the risk of being killed him-
84 Brount, A Law-Dictionary (1670), “Frank Pledge” and ‘‘View of Frank-
pledge.”
85 For an urgent recommendation to introduce the frankpledge, see GRANVILLE
SuHarp, A GENERAL PLAN For Layinc Out Towns anp TownsHIPs ON THE NEw-
ACQUIRED LAND IN THE East InpiEs, AMERICA OR ELSEWHERE 13-15 (1794).
863 & 4 Will. IV, c. 42, § 13 (1833).
1943 ] ComparaTIVE Lecat TECHNIQUES 683
self. And even the humble Saxon would sometimes prefer the terrible
trial by ordeal, the judgment of God, who in His infinite mercy and
justice had so many times miraculously saved innocents from accusa-
tion and persecution. Rather a deal with God than with the neighbors,
who had been bad neighbors to him or to whom he had been a bad
neighbor. Of course, the more peaceful part of the population was only
too happy to pronounce the sacramental words that represented the
waiver of their birthright to the ancient forms of trial, and say, “I put
myself upon the country, for better or for worse.” But a few of them
would refuse to pronounce these words, and rather than submit to the
Ersatz of the voice of God—the voice of the people—they would sub-
mit to the peine forte et dure, being pressed to death.
We think that the jury, not only in its historical origins but also in
its practical functioning, particularly in the small and medium-sized
communities, represents a principle manifestly contrasting with the
more formalistic or legalistic functioning of a Latin court appointed by
a central authority. This method of selecting the judiciary, especially
since it is coupled with the fact that—at least in civil proceedings—the
personal appearance of the parties is a rare occurrence, tends to de-
humanize the trial. Not only does the judge not know John or Jack
personally, as in some small communities the jurors do, but the con-
siderations of being liked or disliked by his neighbors cannot generally
affect the judge’s appraisal. He has before him certain facts, or, better
still, certain legal facts, and to these facts, as they appear in the files,
he has to apply the law.
One of the fundamental principles of civil-law procedure is that
a fact-finding tribunal cannot use in the trial its private knowledge of
the facts in issue.*” In theory, analogous rules exist in common-law
countries. But it is of course an open question to what extent the per-
sonal knowledge of the jurors gathered from newspapers and even
from back-fence gossip may influence their decision. The old rule that
the jurors had to know the facts of their own knowledge has of course
long been reversed. Nevertheless, more than one defendant could, even
today, make the old objection: “These men have their hearts big
against me and hate me much because of this ill report which is surmised
against me,” and therefore refuse to put himself upon “the good folk
of this Vill.” *® It is often said that the institution of the jury is declin-
87 See F, STEIN, Das PRIVATE WissEN pEs RicHTERs, UNTERSUCHUNGEN ZUM
BEWEISRECHT BEIDER PROZESSE 138 et seq. (1893); 2 (Datioz) SavatTizrR, Nouveau
DICTIONNAIRE PRATIQUE DE DrRoIT 224 (1933).
88 Tie Court Baron, Maitland and Baildon ed., 4 PUBLICATIONS OF THE SEL-
DEN SociETy 63 (1891).
niltaichtltieniaiemtpiiennenpeteeathaneaalt
684 Micuican Law Review [ Vol. 41
ing in America and England.*” However, the reliance upon the judg-
ment of the community and particularly the small community is still
extremely strong. The mobilization of millions of soldiers in a nation
at war through the selection system operated by local draft boards is
certainly a new triumph for the law of the neighbors, and a feature un-
thinkable on the European continent.”
Let us see how the institution of the jury works in those civil-law
countries in which this institution is known. Once again the picture is
easily drawn, the differences being of macroscopic dimensions. To be-
gin with, there the jury ever intervenes in private litigations, nor does
it deal with misdemeanors, except possibly those committed by the
press. Thus, in effect trial by jury is limited to felonies—or better—
certain exceptional classes of felonies, numerically an insignificant frac-
tion of the total judicial life. Of particular interest is the fate of the
jury in Latin America. Many of the South American constitutions, fol-
lowing the example of the United States, explicitly declared the jury
to be the birthright of every citizen, a guarantee of democracy. Actual-
ly, however, the jury system has never assumed great importance in the
South American countries.” In some nations, in spite of the constitu-
tional reception of the jury, no statutes were ever passed providing for
trial by jury. Other countries, while passing such statutes, limited them
commonly to criminal cases, and even there the jury was not favorably
received and was applied to a very limited number of cases. In several
recent revisions of codes of criminal procedure, trial by jury has been
almost completely eliminated because, to use a characteristic expres-
sion of a Mexican writer, the jury is “contrary to the rhythm of judicial
life in Mexico.” *
The German experience is strikingly similar. The jury, which had
been introduced in the German legal world under the influence of the
French Revolution, was abolished by simple governmental decree in
1924. With the exception of a few experts, this act was met with al-
most complete indifference in the country.** One can imagine how dif-
*° See, e.g., Howarp, Criminav Justice 1n ENGLAND 308-310 (1931); Emery,
“Government by Jury,” 24 Yate L. J. 265 (1915).
*° Compare also the functioning of local rationing boards described by R. Oppen-
heimer in a forthcoming article in 43 Cor. L. Rev. (1943).
*“ See 3 Garcia, Juicio ORAL, esp. pp. 520-566 (1938); M. Costa, O Jury
(1938), passim, and Bergé, “Etude sur le jury en droit comparé,” 6 REVUE DE
L’INsTITUT DE Drorr Compare I at 7-14, 86 et seq. (1913).
*2 GonzALEs BUSTAMANTE, PRINCcIPIOs DE DERECHO PrRocEsAL PENAL MEXICANO
189 (1941).
*8 See Mannheim, “Trial by Jury in Modern Continental Criminal Law,” 53
L. Q. Rev. 388 at 404 (1937).
1943 | CoMPaARATIVE LEGAL TECHNIQUES 685
ferent would have been the reaction of the people of the United States
had a president tried to abolish trial by jury by executive order—even
in the midst of an emergency as grave as the one Germany was facing
in 1924.
In civil-law countries the jury plays almost no political role what-
soever, and does not have that social significance which it has in Eng-
land and the United States. A study by Dr. Alvin Johnson has shown
the educational importance of the jury in a small New England com-
munity. Alexis de Tocqueville remarked, more than a century ago,
that if trial by jury is not always the best possible way to accomplish
justice for the parties, it is of the greatest moral benefit to the jurors.
But the jury is not only the object of education—tt is also an educator.*
In amplifying this, we have to consider that in civil-law countries the
jury—if it intervenes at all—can render only a decision analogous to
the common-law “special verdict,” that is, the jury has to answer spe-
cific interrogatories limited as far as possible strictly to questions of fact.
In this country, on the contrary, it is the duty of the trial court to ex-
pound the law to the jury. The jurors are not only going to ascertain
the facts; it is equally their function to apply to those facts the law
which the trial court has had to explain or translate to them. This job
of translating law into plain, popular language, or of reviewing the
translation made by the court below, to which the most influential class
of common lawyers—I mean the judges—are daily compelled, is a
kind of job that a European jurist faces perhaps once in his life, when,
rather reluctantly, he has to deliver a paper on legal problems at what
is called over there a people’s university. The everyday link between
judge and jury, between law and plain English, makes again for the
popular, neighborly character of the common-law institutions. This
may also be one of the many reasons why the common-law writers in-
dulge less in efforts at generalization and systematization than do the
civil-law writers. The need to expound the law to a lay jury would
break down every ambitious excursion into the higher spheres of juris-
prudence.
If we try now to give an answer to the question we formulated at
the beginning, we must say that the aspects of legal life in England and
America which we have just examined do not substantiate the con-
tention of the individualistic character of the common-law technique.
‘ 7 = >>
44 Johnson, “The Substance of American Democracy, PoLITICAL AND’ Economic
Democracy, ed. by Ascoli and Lehmann, 318 :at 320-321 (1937).
45 5 nr TocouUEVILLE, Democracy IN America, translated by Reeve, 2d ed.,
195-200 (1836).
———
686 Micuican Law Review [ Vol. 41
On the contrary, the strength of the enforcement devices, the clerical
and moralistic character of legal approach at large, the duty of dis-
closure, the close control exercised by the community upon the in-
dividual and upon the law, if compared with the analogous legal in-
stitutions of the Latin countries, seem to disclose rather a more collec-
_ tivistic than a more individualistic character of the common-law system.
Does this mean, however, that the contention of the individualistic
character of the common law and of the American social structure is
only and simply a commonplace? And were it but a commonplace,
would not we still have to account for its rise and appeal?
We ask leave to submit an explanation and to a certain extent a
reconciliation of our preceding remarks with the prevailing individ-
ualistic thesis. It seems to us that what is generally considered as and
taken for the individualistic aspect of American life is simply the exist-
ence and coexistence of a plurality of communities and—let’s not be
afraid of this quantitative element—of an extremely great number of
communities of various types. Through a kind of optical error this
phenomenon of decentralization of collectivistic pressure, which by its
very decentralization only increases in power, has sometimes been taken
for individualism. “Things are so well arranged in America that the
strict allegiance to collective behaviour is called individualism,” re-
marked Max Ascoli many years ago, and added, “The highways are
filled with cars running towards the solitude of the country.” *° When,
for instance, such students of the structure of American society as F. J.
Turner or C. W. Eliot emphasize the individualistic and antisocial
character of the early American colonists, stressing at the same time the
importance of the family, the group, the town, and the section, in
American life,“ they identify individualism with intolerance of a cen-
tral authority. As a matter of fact, what they called individualism
seems to be in reality collectivism within a smaller group, and what
they called the antisocial tendency may be simply an antigovernmental
one.
Now is this only a question of words? Is what we would call col-
lectivism or pluricollectivism just what is usually classified as indi-
vidualism? We think that, to say the least, the use of the term indi-
vidualism greatly beclouds the true issue. Should it be admitted that
what is typical for the English and American way of life is not the lack
*® Ascot!, INTELLIGENCE 1N Po.itics 199 (1936).
*7 See Turner, THE FRonTIER 1n AMERICAN Hisrory, esp. 125, 258-268
(1920); Exior, THe Conruicr BETWEEN INDIVIDUALISM AND COLLECTIVISM IN A
Democracy, esp. 7, 8, 31, 91 (1910).
1943 | ComMparRATIVE LecaL TECHNIQUES 687
of social control but its decentralized character, then, e.g., the popular
issue individualism and free enterprise versus collectivism and social
control appears as a phantom issue that neglects the third and decisive
element, the factual prevalence of a strong social control in its de-
centralized pluralistic form.
We could speak of an essential federalism of America and we
would not, of course, have in mind just forty-eight or forty-nine
American jurisdictions. We think of a wider and deeper network com-
posed of a plurality of legal systems enjoying an extremely great
amount of autonomy. Not only the forty-eight states, but the smaller
territorial communities, the unions, the churches, the trade associations,
the exclusive groups, the fraternities, the various klans, the viligantes,
the pressure groups, all these cellular organisms have their own writ-
ten and unwritten laws, their own enforcement devices, their own forms
of social control, their own framework of pressure. When we see the
individual challenging the power of the central authority he does not,
as a rule, act as an individual. He acts as a member of one of these
communities. He is one of the tithing. He presents himself with his
neighbors or with others with whom he has common interests. He
leans upon the power that even the smallest community has.
Before the rise of the modern state, the existence of a plurality of
legal orders was probably too obvious to be remarked on. But even
after the claim of the state for the monopoly of lawmaking had made
itself felt, the existence of nonofficial systems of law was recognized.
As early as 1878, the German jurist August Thon affirmed the exist-
ence of a plurality of legal orders, some of which were even illegal, as
the Roman Church under the Roman Emperors.“ Benedetto Croce
published in Italy in 1906 a clear exposition of the pluralistic theory.”
The names of the modern English pluralists are well-known.”
But an investigation into the real structure of these legal systems, rep-
resenting, so to speak, as many states within the state, is almost com-
pletely neglected. To give only a single instance, in spite of the enor-
mous development of commercial arbitration in this country, not a
48 See THon, RECHTSNORM UND SUBJECTIVES RECHT; UNTERSUCHUNGEN ZUR
ALLGEMEINEN RECHTSLEHRE, esp. XI-XII, 7-8 (1878).
49 See Croce, RipuzIoNE DELLA FILOSOFIA DEL DIRITTO ALLA FILOSOFIA DELL’
ECONOMIA (1907), reprinted 1926.
50 See, among many, Ficcis, CHURCHES IN THE MopErn StaTE (1913) ; GEorcE
D. H. Corr, Guitp Sociatism RE-sTATED (1920); Lasx1, THE STaTE 1n THEORY
AND PracTicE (1935) and SrupiEs IN THE PROBLEM OF SOVEREIGNTY (1937);
; ENGLAND FROM HERBERT SPENCER TO THE PREs-
BarKER, PouiTicAL THOUGHT IN ENGL
ENT Day, esp. 175-183 (1915).
688 Micuican Law Review [ Vol. 41
single systematic report on the content of the arbitration awards has
been published here. The fact would be amazing if one did not suspect
that at certain stages of development lack of publicity and systematiza-
tion is probably the condition of growth, and if one did not recall the
reluctance of early equity to keep records, publish reports and become
aware of its compliance with precedents.
At least to a certain extent this lack of legal data on the various
minor and less formal legal organisms existing in society at large, such
as the constitutions of trade unions and trade associations, etc., is prob-
ably responsible for certain formalistic limitations to the investigations
_ of the school of institutional economics. It appears to us that studies of
' the forms of social or collectivistic controls of economic activity have
_ the tendency to confine the research to the regulation exercised by leg-
| islature and court, by the legal agencies in their most narrow sense.
_ Even when outstanding scholars go to work on topics such as mo-
_ nopolistic competition or the economics of imperfect competition, ques-
tions in which the consideration of the extent and ways of functioning
of group behavior and group control would seem inevitable, they either
maintain themselves “in an atmosphere rarefied by the adoption of
very severe simplifying assumptions”™ or limit their study mainly to
the problems of state controls.”
We find, to be sure, that some economists discuss controlling social
factors other than state control.** But their statements are usually either
overgeneralized statements of principles or investigations on too spe-
cific topics. There appears to be as well a lack of any developed tech-
‘niques or methodology for dealing with the factors of nonofficial
controls, and we are probably still far from a systematic treatment of
‘the problem of pluralism in the economic field.
It is certain that much more must be done in the field of law and in
the field of economics before public opinion is to realize that the his-
torical development of the American economy cannot be interpreted as
a phenomenon of the growth of individual enterprise, and that the real
choice is not, and never has been, between freedom of enterprise and
state control. This historical development can be viewed only in terms
of the relationship between various types of social controls and their
51 Ropinson, Economics oF IMPERFECT COMPETITION 327 (1938). See, also,
CHAMBERLIN, THE THEorY oF Monopo.istic CoMPETITION (1936).
52 See, e.g., Burns, THE DECLINE oF CoMPETITION 522 (1936).
®§ See, e.g., JoHN M. Crarx, Sociat Controt oF BusinEss (1939) ; ComMMONS,
LecaL FounpaTions oF CapiTALisM (1932); VEBLEN, THE THEORY oF BUSINESS
ENTERPRISE (1940) and ABsENTEE OwNERSHIP AND BustnEess ENTERPRISE IN RE-
CENT Times: THE Cask or AMERICA (1923).
1943 | CoMparRATIVE Lecat TECHNIQUES 689
relative checks and balances in the total economy. The complete insight
into these social controls, which could be outlawed but not destroyed by
these antitrust laws, is probably the prerequisite for every type of ef-
ficient economic legislation.
We cannot fully understand the political significance of the plu-
ralistic structure unless we are aware of the fact that centralization of
power and individualism are far from being contradictory and incon-
sistent. [hey may sometimes appear as concurrent and complementary
concepts. A historical concurrence of this kind probably explains the
tyranny of Renaissance Italy, and why France has been at the same
time a typically centralized and a typically individualistic country. The
distant boss, the stranger-judge, and other features of centralized gov-
ernment may be more favorable to the development of individualism
than the pressure of government by neighbors in a decentralized state.
The formalistic and legalistic approach which the very fact of central-
ization develops by necessity brings about a form of individualism
which sees its Magna Charta even in the most severe code. It can be
said, furthermore, that the connection between centralized despotism
and individualistic tendencies of a country is probably a two-way pro-
position, and that the strong individualistic attitude of the population
may be the source of a decline of political interests and communal
solidarities, and become the ideal ground for the rise of antidemocratic
institutions.
The strong collectivistic pressure typical for the common-law coun-
tries is, on the other hand, outweighed by the fact that the closely con-
trolling communities are here so numerous that, as a practical matter,
the great majority of individuals can find a community that suits them
more or less perfectly, and to which they may adjust themselves more
or less painlessly. Only the “rugged individualists,” the eternal dis-
senters, the true outsiders, will have a much harder time in the com-
mon-law countries than in what used to be in the past a typical Euro-
pean democracy.
The historical tradition of the pluralistic approach in England and
America is very strong. We shall mention here only an example which,
although on a different plane, is nonetheless an extremely significant
manifestation of this way of thinking. We refer to the known episodes
of the struggle among the English courts that constitute in our opinion
an absolutely unique feature. The history of the European Continent
knows of struggles and conflicts between barons and states, towns and
empires, state and church, feudalism and central power. But it does not
present us with a struggle between two courts both emanating from the
ee
— Se ee ee
690 Micuican Law REvIEw [ Vol. 41
same authority, fighting each other in a period in which that very
authority exercised a very strong central power. And that 1s what hap-
pened during the Tudor and Stuart periods in England. The King’s
Bench would, for instance, render a judgment in favor of a plaintiff, -
but the Court of Chancery, on the prayer of the defendant, would en-
join the winning party from exercising his rights recognized by the
King’s Bench, and would jail him for contempt if he tried to enforce
the mandate of the King’s Bench. The latter would then issue a writ
of habeas corpus and-free him. Sir Edward Coke, Chief Justice of the
King’s Bench, tried even to indict the Master in Chancery under the
Statute of Praemunire for having interfered with the judgment of the
King’s Bench, and, as Bacon said, “make the Chancellor sit under a
hatchet, instead of the King’s arms.” ™ James I intervened in this con-
flict between his two courts and decided it, upon the advice of Bacon, in
favor of the Chancellor, thus maintaining the plurality of independent
courts in his kingdom. He fully appreciated the advantages of a legal
polytheism and would not deprive the Olympus of the common law of
one of its most industrious gods, the court of equity.
In a way, this royal decision, restated in England by statute in
1872,” is also a methodological justification of this paper. It must be
conceded, indeed, that most of its conclusions rely rather on rules and
practices of equity rather than on those of common law proper. If we
thought this to be a proper approach, it is because equity appeared to be
the ultimo ratio of the Anglo-American law, prevailing wherever it
came in conflict with the common law proper. We must also be con-
ceded that the latter, considered in itself, appears rather similar to the
civil law at large. But the very idea of considering common law proper
in itself implies a disregard for the functional unity of the institutions
studied. We are inclined to explain the conclusions reached by the pre-
vailing doctrine of comparative law by a certain neglect of equitable
institutions. To us the main distinguishing feature of the common-law
countries is in the fact that not common law but equity prevails there.
If someone were compelled to explain the essence of civil law to a
common lawyer in one sentence, he could perhaps say that civil law 1s
what common law would have been if it had never known a court of
chancery. It is true that the answer would hardly be helpful, the pic-
ture suggested being probably beyond the imagination of a common
lawyer.
The picture of conflicting and coexisting jurisdictions is equally in-
546 Bacon, LETTERs AND Lire, Spedding ed., 91 (1872).
55 The Supreme Court of Judicature Act, 1873, 36 & 37 Vic., c. 66.
1943 | ComMpaRATIVE LecaL TECHNIQUES 691
conceivable to a Latin or even a German lawyer, who believes in the
Einheit der Rechtsordnung, the uncompromising and sometimes cruel
unity of the legal order. Our late colleague, Nino Levi, had long ago
noted in his special field this contrast of approach between the English
and the Italian type of regulation.*® The former left the findings of the
civil and criminal courts completely independent of one another; the
latter declared that the civil judge is strictly bound by the findings of
the criminal court, and thus reaffirmed the irretractibility of the judicial
decision upon the same set of facts, and the fundamental unity of the
legal order.
This need for unity probably reached one of its climaxes during the
French Revolution. In 1790 two significant events took place in Paris.
In that year the first steps leading to the establishment of the metric
system were taken in France in order to supersede the medieval com-
plexity of weights and measures. It is true that the French influence
strongly felt in the United States in that period manifested itself also
in this field through Jefferson’s proposals to introduce a decimal divi-
sion of the various units. But this project, adopted in France, was, ex-
cept in the matter of the currency, rejected in this country; symmetry,
legal or arithmetical, has evidently never been a decisive argument in
the common-law countries.
The second event that took place in France in that very year of
1790 was the enactment of the famous Décret sur POrganisation Ju-
diciaire, directing judges to refrain from the interpretation of laws, and
to consult the central legislative authority whenever need for such
interpretation should arise.’ And we certainly do not have to point out
that the adoption of a principle depriving judges of their power to
interpret statutes would be inconceivable in a common-law country,
even during the excitement of a revolution. Not even the dissenting
opinions of the judges are here considered seditious or subversive. In
Europe, with significant exception of Switzerland, a judge who would
dare to reveal publicly or in private conversation that he disagreed
with his brethren on the bench would be guilty of grave misconduct,
liable to impeachment and removal. The court is considered a unity,
its voice is the viva vox juris, and it must be assumed that the judges
can speak but in a unisonal chorus. The contrapuntal conception of law
in common-law countries is shown by the importance that dissenting
opinions have in the process of legal change.
We do not forget, on the other hand, that the exigency of unity and
66 Trevi, La PARTE CIVILE NEL PROCESSO PENALE ITALIANO, 2d ed., 3 (1936).
‘7Décret sur organisation judiciare, August 16-24, 1790, Tit. II, art. 1, no. 12.
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692 Micuican Law Review [ Vol. 41
of geometric perfection of the legal world has deep roots in human
nature. Ptolemy was the first man to give scientific foundation to the
hypothesis that the world is a sphere. It is said that the origin of his
conception was not a strictly mathematical reasoning, but rather an
aesthetic intuition. Since the world could not have been created, he
felt, but beautiful and perfect, since the sphere is the most beautiful
and perfect form human mind can conceive, our earth must necessarily
be a sphere. I personally have always admired the pathos of abstract-
ness which inspired such a thought. Here was a man who did not have
sufficient affection and love for what makes for mortal beings the
beauty of the world in which they live—the unevenness of the land-
scape, the shape of mountains, the fanciful ribbon of rivers. To him
beauty was something else: an abstract and cool geometric perfection.
This Egyptian certainly had in his soul the spirit of the race of Semitic
shepherds who, in sleepless dreams under the nocturnal sky at the
borders of the desert, conceived the dogma of monotheism.
I must add, on the other hand, that my admiration for Ptolemy
is equalled only by my admiration for the man who first had the extra-
ordinary daring to conceive the idea that while singing or playing two
or more themes simultaneously you could bring about, not a terrible
musical cacophony or political anarchy, but a newer, better, more per-
fect union and beauty. The strong fabric of the common law, the social
structure of the common-law countries, building a unity of their very
variety, represent one of the most astonishing achievements of legal
and political contrapuntal harmony.
Civil law and common law represent, therefore, not only the two
main legal systems of Western civilization, but also two fundamental
trends of human nature. It would be childish to try to find out which
one is better. It is only unfortunate that their mutual contact has so far
been rather limited. A greater reciprocal influence of the ideas inspir-
ing the two systems is probably one of the prerequisites for a real
understanding between English America and Latin America and,
through it, of the unity and survival of the Western civilization at
large. Their deeper interpenetration could eventually become an im-
portant factor in the development of less imperfect forms of human
coexistence.
