I. Modern national state has emerged in the West during the 18th and 19th centuries. One of its essential attributes - along with the existence of a national language, of a national army, of a unified state administration - was and still is the possession of a national law. Such a law, enacted and applied by different specialised state bodies, has replaced a dispersed set of rules of a customary nature. What was previously decided locally and specifically, afterwards had to be settled centrally and generally. Customs were not, however, the sole victim of the changes. The same fate awaited ius commune, which existed for centuries not only as an academic discipline, but was first of all a living legal instrument. Ius commune served practical problems and pointed to principles lying beneath the surface of particular laws. With the emergence of modern national law systems, ius commune had to find refuge either in international law (where no legislator existed) or in commercial law (which, happily, has been given some significant autonomy).
But at the same time the emergence of several well defined national laws allowed the birth of contemporary comparative legal science. On the continent, the subject matter of this science was visible and undeniable - codes, statutes and other written acts binding on a certain state territory. The common law tradition was more mysterious, but also judge made law could be perceived in positive terms as something derived from the will of the sovereign authority. Comparative law was considered mainly as an academic discipline whose applicability was persistently put into doubts by the "real" dogmatic legal science. To be the national lawyer meant to make use of his own state's legal system, which was to lay down provisions exhaustively governing citizens' behaviours. Only when a certain domestic law was being drafted was an comparative expertise perhaps practically valued. But after this law had already been enacted it acted independently of its foreign inspiration or exact patterns. Thus, not surprisingly, French and Belgian private law practice differed significantly, although both were based on the same Code civil.
Hostility to comparative law, or at least the widespread ignorance of the discipline amongst practising lawyers, seems to be disappearing recently. National states, separated by different kinds of borders and barriers, are not longer the sole central figure of the ongoing events. The emergence of the European common market, the increasing support for the idea of building a European political community, the accession of almost all countries of our continent to the Council of Europe as well as the growing role of international organisations are only a few examples of the process of Europeanisation and globalisation. Not only supra-national rules become an accepted source of domestic law, foreign law and legal practice also draw attention of legal practitioners, providing them with important information. In consequence, Lord Goff could write recently that comparative law, which was 'the hobby of yesterday, is destined to become the science of tomorrow"1. A similar view is expressed by another outstanding lawyer, T. Koopmans, for whom the upcoming century may become the era of comparative methods2.
II. In recent years, the most important discussion amongst comparative lawyers concentrates on whether there is (or should be) any convergence between the two major legal traditions: statute law and common law. According to P. Legrand, who is the most renowned representative of the sceptic camp, the two traditions have developed differing mentalités and give us different answers on what is legal knowledge and what counts in juristic terms3. The common law has never come outside the "inductive paradigm", which rejects the possibility of a conceptual and systemic axiomatisation characteristic to the continental law. For the common law lawyer, law develops from one factual situation to another as a result of court activities. General principles accompany, in a way, the law application process and come into being step by step from a series of judicial decisions, but they never become the hard core of law or legal reasoning. Also conceptual clarity is not considered to be an independent value. The common law is concerned, first of all, rather with finding a proper way to tackle "facts of life"4. This position has been splendidly summarised by O.W. Holmes, one of the most outstanding American judges, when he wrote that "life of the common law is not logic, it is experience"5. The refusal to yield to verdicts of logic is presented as an advantage when judges have to decide pragmatically a practical problem. This aversion is nicely grasped by N. MacCormick's words that "'being logical' is an eccentric continental practice, in which common-sensical Englishmen indulge at their peril"6.
The common law lawyer does not perceive legal rules in the same way the continental lawyer does. For him, rules remain contained in previously decided cases, and only when some norms are needed in order to solve a new case, are they extracted from the whole body of case law. The common law lawyer is focused not on rules but on regularities dictated by analogy and similarity of the situations concerned. What mostly counts for him is finding adequate remedies for a case presented to him. Following the rule: "we will cross the bridge when we come to it", he abstains from seeking remedies if there is no practical reference to a real situation of life which caused the legal action. In doing so, English lawyer is also suspicious of the theory of subjective rights which sounds to metaphysical for him and is therefore very likely to disturb realistic perception of the world.
Protagonists of the convergence theory argue - on the other side - that the reappearance of a European legal community is possible, and that this process is, moreover, currently under way. They do not suggest that this community might be nowadays created by returning to the old ius commune. Although legal historians have done much to show that the model of national law is not so self-evident as we were prone to think for years7, the rebirth of ius commune is unrealistic. Now there in no system of universal reference (as was Roman law), nor do we have a common language (as Latin). Contemporarily, convergence and discovering the underlying common tradition happen through the comparative analysis, which consists very often in researching how actually law functions. When the researcher concentrates on the specific problem of life for which particular legal systems find different solutions very possibly he ends up in finding a pragmatic approach common to all judges. Everywhere, be it common law or statute law, judges have at their disposal only "half-baked concepts", and while deciding cases they avail themselves more of "intuitive sense of justice" than of dried-up conceptualism8. Although continental legal science officially denies precedents the dignity of a source of law, the role of case law is enormous. To understand, for example, what is meant by the principle of good faith in German civil law (§ 242 BGB) or to grasp what is said in the concise tort regulation of the French Code civil (art. 1382-1386), one must indulge in court reports.
Pragmatic motives permeating the activity of judges are scarcely visible if we limit our research to the styles in which court decisions are presented. It is usually easy to notice a practical orientation underlying the very vivid English style, but German judges prefer to suggest that their judgements are the inevitable consequence of code rules whereas the Italian judiciary finds refuge in abstractness of argumentation, and French magistrats simply keep their thoughts to themselves9. This difference in "stylistic elegance" is to be, however, a result of "intellectual convention", which is dictated by the academic science of law10. With the process of denationalisation of legal dogmatic and education, there should occur also a change in the way judges present and justify their verdicts. English judge has already begun to appreciate the value of a more general argument, whereas his continental colleagues no longer treat individual decisions as (not deserving attention) specific illustrations of what is general. On the continent court judgements started to be perceived as building blocks, which must fit together in order that the whole emerging construction should have a solid foundation11.
At present, national courts must look beyond national frontiers due to a number of reasons. The first element of this evolution is inevitably the growing role of international legal instruments, which were given direct applicability within internal law. Sometimes this process is connected with the emergence of supra-national structures of an economic and political character, whose most important example in the European Union, but one could identify a general tendency to take international law more seriously than in the past. The second element is the growth of new problems which result from technological developments. The same difficulties usually occur in all countries which achieved similar levels of development. Therefore judges find it worthwhile to see how others cope with a specific issue. The need for such knowledge is enhanced by the fact that not rarely courts - which are obliged to decide all cases presented to them - cannot find within their own law, even after using different means of interpretation, any solution to the problem faced. Comparative materials are sometimes used to support a solution the court has already arrived at while interpreting national law or to choose one solution from amongst several others available to the court on the basis of competing ways of law interpretation. Data on foreign law and practice encourage and convince judges that the decision they are going to take is good. It also happens that known disadvantages of a certain solution applied by foreign legal systems predisposes judges rather to choose another option12.
Comparative expertise is always worthwhile in hard cases. Apart from the situations described above, the adjective "hard" is attached to cases which demand to strike balance between conflicting interests or values. In the Media Law, for example, on the one side is the right to impair and receive information, while on the other are located such goods as the right to privacy, interests of the judiciary, protection of confidential information. Rendering a proper decision means finding a formula (or formulae) reconciling the different goods involved. Within the legal framework of the Council of Europe numerous solutions are offered by the case law of the Strasbourg court, which tries to make precise what is "necessary in a democratic society". For example, if a national law forbids the publication of any information about convictions which have been erased from the record, the Court does not accept such an absolute approach but asks a number of additional questions. Important for the judges is whether the information concerns a public or private person and if knowing the fact of conviction is justified by a public interest. National rules may require journalists to disclose the source of information, but the Strasbourg Court will analyse the impact it would have on the process of imparting information by journalists and receiving of such information by the public.
For judges of the member states of the Council of Europe considerations of relevance are not only restricted to the case law of the Strasbourg Court, but also judicial practice of those national systems, which quote Strasbourg principles and use them while deciding domestic cases. Relying on art. 10 of the European Convention, Dutch judges, for example, have recently approached two "hard" cases13. The way wherein they did this is worth noticing from the side of Polish legal practitioners as the latter are faced with similar topics. The first case involved the question whether journalists should be convicted for the possession of information derived from tapes or computers stolen from a prosecutor's home and possibly from his office. The judges decided to apply art. 10 of the European Convention and came to the conclusion that the journalists' freedom of expression outweighed the state's interest in taking criminal measures. In Poland, however, in a number of cases Polish judges chose to penalise journalists for disclosing confidential materials, following the way of argumentation presented by the prosecution office, even when the information concerned was of little importance to the protection of national security or other interests of the State.
In the second Dutch case an investigative judge in the criminal court was asked by the prosecutor to summon a TV station to hand over tapes with recordings of violent riots which had taken place in Amsterdam after a soccer match in December 1998. The prosecutor sought the material to identify the potential perpetrator of crimes against people and goods. The judge decided not to issue the order, as he arrived at the opinion that the release of the tapes would not be justified after a balancing of interests. This practice contrasts enormously with a recent case from Warsaw. During the post-communist manifestation on 1 May 1999 a radical opponent threw a petard, which left several demonstrators numbed. When the prosecutor ordered a TV station, which had registered the incident, to hand over tapes, it complied without raising any objections. The two decisions from the Netherlands show how general arguments based on provisions of a constitution or a binding convention may be used in the law application process. Knowing this practice would encourage Polish judges to take a more critical approach to the narrowly oriented scheme of law application, which still seems to be rooted in Polish legal practice.
III. The use of a comparative argument, which leads to "intellectual osmosis"14 between different legal systems, undoubtedly takes place on the European level. European courts are composed of people, nominated by the member States, who represent different styles and give differing answers to particular legal problems. Before these courts take decision, there is an exchange of information between the judges and a review of the solutions which are available in the member states. During the proceedings the member states and the institutions of a given European structure are moreover invited to present opinions on claims and positions of the participants of a dispute as well as to inform the judges about the country's law and practice. It results in a gathering of data, which facilitates the decision on the most dominant or desirable approach to a certain issue.
Collecting a comparative dossier is not, however, the only consequence of such a practice. It leads, first of all, to determining whether there exists a common principle shared by all the member states or majority of them. If the conclusion is in the positive, then such a principle may be used as the basis for working out the decision on a particular issue. The existing variety of state solutions is thus considered to be variations on the topic. A good example of this approach is offered by European Court of Justice in the case Australian Mining & Smelting Europe Ltd v. Commission15. This case concerned a violation of competition rules by a company, which operated in England. When the European Commission sent its inspectors to investigate the complaint the company refused to provide information (to disclose documents) quoting legal professional privilege. This privilege, which is absolute under common law, means that correspondence and exchange of information between lawyer and client cannot be searched or seized. The Commission ordered the company to give access. On appeal the ECJ invited the parties and interveners to submit comparative materials on the existence and scope of the privilege. The judges refused to focus on the question whether it was permitted to invoke the privilege against the powers of the Commission, but preferred to concentrate on whether communication between lawyer and client was protected under Community law. Extracting common element from the presented materials, the court decided that professional privilege, although giving different degree of protection in particular countries, had been recognised in the member states.
The ECJ said in Van Gend en Loos v. Nederlandse Administratie der Belastigen16, which is one of its most important judgements ever, that Community law must respect general legal principles common to the tradition of the member states. This statement means that comparative law has changed its role of informant about foreign law into the role of collaborator in defining what is commonly shared17. General principles allow the adoption of a common European perspective as these principles may reasonably be considered as an element of the deeper level of European law. This level is important for the process of interpretation and in the development of European law. Principles are also perceived as an instrument for the categorisation of common points, which are hidden behind the variety of domestic laws. As such, principles can be considered as the focal point for the rebirth of European ius commune. Or, in other words, they are a specific kind of common grammar making up the very foundation of numerous laws-languages18.
Most quoted amongst general principles are - on the highest level of discussion - the principles of proportionality, legitimate expectations, non-discrimination and the respect for fundamental rights19. To be recognised, the principle does not need the same level of precision and express acceptance occurring in laws of the member states. A good example is proportionality, which is known, first of all, in German and Dutch laws, but for whose English equivalent may be taken the construction of reasonableness20. As the ECJ case law has frequently conformed, it would be a mistake to treat principles as something deprived of any practical effect, because they have played an active role in the application of Community law.
The process, whose result is determining common principles, also occurs on more intermediate levels. Many times the case law of the ECJ has served as a means to elaborate more detailed rules on a number of legal questions. A recent example of this activity concerns responsibility for breaches of Community law.
The legal regulations on torts differ in the member states both as to the preconditions of responsibility and its scope. Sometimes liability is limited to actual loss (damnum emergens), but some laws also entitle to claim compensation for pure economic loss (lucrum cessans)21. Community law requires, however, that rights derived from its provisions should be enforced in a similar way in all the member states22. It results in the necessity to work out a harmonised set of sanctions and remedies. But at the same time Community law leaves to the member states the task to guarantee protection of rights, provided only that domestic rules may not be less favourable than those relating to similar internal claims (equality principle) and may not be so framed as to make it impossible and excessively difficult to obtain compensation (effectiveness principle)23. Such a scheme does not afford, however, any protection if in domestic law there is no a lack of rules safeguarding internal claims.
In the famous case of Francovich the ECJ laid down that the member state's responsibility for breaches of Community law is "inherent in the system of Treaty"24. Although this judgement was provoked by the failure to transpose a directive, the principles contained in it were to be applicable also for other breaches of Community law. In the subsequent verdict in the joint cases Factortame and Brasserie du Pêcheur the ECJ decided to voice rules covering both the responsibility of the Community and the member states for breaches of Community law25. The judges did so against the position advocated by certain countries that all rules on the state's responsibility must be formulated in the legislative way with the exclusion of judicial activism and that the regimes regarding responsibility on the part of the Community and the member state are different.
The main result of the ECJ approach are the uniform rules governing breaches of Community law. Irrespective of whether a member state or a Community institution is guilty, responsibility arises when the following preconditions are satisfied: the infringed rule of law must be intended to confer rights on individuals, the breach must be sufficiently serious and there must be a direct casual link between the breach and the damage. The judges have pointed out when a breach may be considered as "sufficiently serious". To the so called Schöppenstedt formula, encompassing manifest and grave disregards of the limits of discretionary powers26, the ECJ added that attention should be paid to such elements as the clarity and precision of the breached rule, the measure of discretion left by that rule, whether the infringement and damage were intentional or involuntary, whether the error was excusable or inexcusable as well as the fact that the position taken by a European institution may have contributed to the omission, to the adoption or retention of national measures contrary to Community law. As the ECJ stated, a breach of Community law is clearly sufficiently serious if it has persisted despite a judgement finding the infringement in question, or a preliminary ruling (delivered on the basis of art. 177) or settled case law of the ECJ on the matter, from which it is clear that the conduct in question constituted an infringement27.
Instead of pronouncing a detailed set of rules, the method practised by the ECJ results rather in elaborating principles, which are considered to be common to the member states. Such principles set out a certain minimal standard which the member state is allowed to broaden in favour of the harmed party. As far as a domestic law is not compatible with this standard, its provisions must be changed. Efficiency of the protection of rights resulting from Community law becomes accordingly independent from the existence and the scope of protection afforded in "domestic cases". Such an approach leads, however, to the emergence of two liability regimes: one designed for Community issues and second left for matters that fall outside the realm of Community law. A similar differentiation of rules, depending on whether the issue concerned involves "a Community element" or not, is also known in other parts of law28. In the long run, one can nevertheless reasonably expect that domestic laws will tend to overcome this disturbing situation and work out one homogenous legal scheme that would encompass the two categories of cases29. In consequence of such a scenario, European standard should win the battle and be recognised as the sole regulator, eliminating domestic rules which are not consistent with its content either by the way of a statutory initiative or by changes in law interpretation.
IV. I will finish my reflection with some remarks on Polish legal practice. Under communism judges were taught to concentrate on the statutes, as both Constitution and international law were not ranked as directly applicable sources of law. Comparative argument was scarcely heard, and - if at all - only in the course of university lecture. The resulting pattern of judicial practice that still persists was characterised by such elements as "textocentrism", the over-estimation of the literal layer of regulation, which went in parallel with the focus on the formal justification of decisions as well as with disregard of functional and value-opened arguments30. But after the changes of the political and economic system judges had to find ways to integrate the body of the old law into the framework of the new state. On many occasions ordinary judges were and are encouraged to make use of international law binding on Poland as well as of the Constitutional provisions, which give important information on how to cope with domestic legislation, both "old" and enacted after 1989.
A good example of this tendency is a discussion on the legal regime of State's responsibility. The discussion began with an article written by Prof. Marek Safjan, President of the Constitutional Tribunal31. He raised the question of how significant Art. 77 (1) of the new Constitution, which came into force on 17 October 1997, is for civil law. This provision states that each person has the right to receive compensation for damage caused to him by any organ of public power whose activity was not conformant with the law.
One group of answers suggests that this constitutional provision is void of any practical meaning and must be interpreted as a mere blank declaration. Relevant for the law applying bodies is only what the ordinary legislation says about the matter. The latter, dating back to the Civil Code of 1964, generally makes the State's responsibility conditional upon the proof of individualised guilt on the part of the functionary. Although since then Polish civil law has elaborated certain rules moderating the original approach (by introducing some elements of anonymous or organisational guilt), generally the existing regime remains very rigorous.
The second approach to Art. 77 (1) is different; the Constitutional provision is perceived as an independent rule, which directly and substantially regulates the scope of responsibility of the institutions of public power. To limit the role of Art. 77(1) to a declaration would amount to redundancy because nowadays nobody believes in the principle that "The King cannot do wrong". Notwithstanding this argument, if somebody insisted on the declaratory character he would have to argue that compatible with the Constitution would be any legal regime for State's responsibility, even that providing for no responsibility. This conclusion is inevitable if ordinary legislation is to rule solely, independent of allegedly declaratory and vague stipulations of the Constitution.
The assumption of direct applicability of Art. 77(1) does not mean that this provision might serve as the only basis of responsibility and cannot justify the belief that the wronged party could get compensation by quoting Constitution in the court. A proper approach is rather that ordinary legislation should be interpreted "constitutionally". The last term signifies that the norms relevant for the actual regime of responsibility of public power ought to be eventually reconstructed by the use of constitutional provisions. Constitution as such does not deliver, nevertheless, any elaborate standards. Once looking for standards of proper responsibility, we must turn our attention somewhere else. Authors supporting direct applicability of Art. 77(1) points that such standards are what Europe accepts as the pattern of responsibility. A number of information is available from the ECJ case law32, but other data are to be drawn from a comparative analysis of the regimes of responsibility existing in the most advanced countries of Europe.
The example of State's (public power's) responsibility makes legal community aware of the importance of comparative arguments. Making a good law, both at the stage of parliamentary procedure and judicial application, requires having knowledge of standards which nowadays are not limited to one state territory. Legal change consists in following the way in which standards have been modified in the world around. This observation also points to the significance of case law, which now determines more and more what law really is. Without pretending to invalidate all differences between common law and civil law, comparative lawyer of today shows not only that the two traditions are able to profit a lot from knowing each other, but also that they are doing so actually.
Notes:
1 "The Future of the Common Law. The Willberforce Lecture 1997" (1997), 46 International and Comparative Law Quarterly 745, at 748.
2 "Comparative law and the courts" (1996), 45 International and Comparative Law Quarterly 545, at 556.
3 He presented his views in a number of articles, e.g. "European Legal Systems are not converging" (1996), 46 International and Comparative Law Quarterly 52; "How to compare now" (1996), Legal Studies 232; "Sens et non-sens d'un code civil europeéen" (1996), 4 Revue internationale de droit comparé 779; "Against a European civil code" (1997), 60 Modern Law Review 44.
4 Lord Goff, op.cit., p. 754, describes judicial process as "an educated reflex to facts".
5 The Common Law, London 1968, p. 5.
6 Legal Reasoning and Legal Theory, Oxford 1978, p. 40.
7 Amongst many positions, three are especially worth mentioning: H. Coing, Europäisches Privatrecht, 2 vol., Tübingen 1985 and 1989; F. Wieacker, A History of Private Law in Europe, Oxford 1996; R. Zimmermann, The Law of Obligation: Roman Foundation of the Civilian Tradition, Oxford 1996.
8 J. Bell, "English law and French law - not so different?" (1995), Current Legal Problems 63, at 79-80. This author quotes remarks of B. Nicholas, in: D. Harris, D. Tallon, Contract Law Today, Oxford 1995, at 389.
9 B. Markesinis, "A matter of style" (1994), 110 Law Quarterly Review 607, at 608 et seq.
10 Of this opinion is for example J. Bell, op.cit., at 79 et.seq.
11 B. Markesinis, "A matter...", at 617 et seq.; of the same author: "Learning from Europe and learning in Europe", in: The Gradual Convergence, Oxford 1994, 1, at 14 et seq.; "Judge, jurist and the study of foreign law" (1993), 109 Law Quarterly Review 622, at 624 et seq.
12 A number of examples of all such situations known in the Dutch legal practice are given by T. Koopmans, op.cit., at 550 et seq.
13 I am very grateful to Prof. W.K. Altes from the Univerisity of Amsterdam for drawing my attention to these cases. He patrticipated in taking decisions on the two cases.
14 Lord Mackay of Clashfern, Diversity in unity - European laws. 1992 Churchill Memorial Lecture (manuscript).
15 Case 155/79, European Court Reports 1982, 1975; Common Market Law Reports 1982, 2, 264. This case is a classical illustration of how the ECJ proceeds. See T. Koopmans, op.cit. 547-548.
16 European Court Reports 1963, 1; Common Market Law Reports 1963, 105.
17 R. Schulze, "Le droit privé europeéen" (1995), Revue internationale de droit comparé 7, at 18.
18 R. Zimmermann, "Savigny's legacy, legal history, comparative law, and the emergence of a European legal science" (1996), 112 Law Quarterly Review 576, at 605.
19 See for example P. Craig, G. de Búrca, EC Law. Text, cases, and materials, Oxford 1998, ch. 7-8.
20 Lord Mackay, op.cit.
21 A comprehensive overview of the solutions existing in several legal systems is offered by W. Van Gerven, in "Bridging the gap between Community and national laws: towards a principle of homogeneity in the field of legal remedies" (1995), 32 Common Market Law Review, 679, at 681 et seq.; "Bridging the unbridgeable: community and national tort laws after Francovich and Brasserie" (1996), 45 International and Comparative Law Quarterly 507, at 508 et seq.
22 Cases C-143/88 and C-92/89 Zuckerfabric Süderdithmarschen AG v. Hauptzollamt Itzehoe, European Court Reports 1991, I-415; Common Market Law Reports 1993, vol. 3, 1.
23 It is the well established principle of autonomy of the member states in matters of procedural law, which started with the decision in case 33/76 Rewe-Zentralfinanz eG and Rewe Zentral AG v. Landwirtschaftskammer für das Saarland, European Court Reports 1976, 1989; Common Market Law Reports 1977, vol. 1, 533.
24 Joint cases C-6/90 and C-9/90 Francovich and Bonifaci v. Italy, European Court Reports 1991, I-5357; Common Market Law Reports 1993, vol. 2, 66, in § 66.
25 Cases C-46 and C-48/93 Brasserie du Pêcheur v. Germany and R. v. Secretary of State for Transport, ex parte Factortame Ltd and Others, European Court Reports 1996, I-1029.
26 Case 5/71 Aktien-Zuckerfabrik Schöppenstedt v. Commission, European Court Reports 1971, 975, in § 11.
27 § 56 and 57 of the judgement quoted in footnote 25.
28 Such a situation occurs even in the case of one of the basic Community freedoms - free movement of workers (art. 48), as European standards are not applicable to the so called "wholly internal situations". See P. Craig, G. de Búrca, op.cit., at 659, 698-699.
29 The need of this "levelling" is pointed out also in Euro-sceptic England. See for example M. v. Home Office, Weekly Law Reports 1993, vol. 3, 433; All England Reports 1993, vol. 3, 537.
30 E. Łętowska, "Bariery naszego my(lenia o prawie w perspektywie integracji z Europą" (Barriers of our thinking and the perspective of the integration with Europe) (1996), 4-5 Państwo i Prawo 44.
31 M. Safjan, "Odpowiedzialność państwa na podstawie art. 77 Konstytucji RP" (The State's resposibility on the basis of Art. 77 of the Constitution) (1999), 4 Państwo i Prawo 3.
32 Of main importance are thus, besides the Factortame and Brasserie du Pêcheur cases, decisions in Facini Dori (case C-91/92; European Court Reports 1994, I-3325), and Dillenkofer (cases C-188/94, 189, 190; European Court Reports 1996, I-4845).