Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
JAMES GORDLEY
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must ask which facts mattered and are likely to matter again. As
they do so, they will necessarily be formulating rules: on certain
facts, the courts have reached certain results in the past, and can be
expected to do so in the future. They will also be making guesses as to
which principles of justice or policy have guided the courts since-the
better they identify these principles, the better they can tell which
facts matter.
To do their work, both the comparative and the domestic lawyer
must assume that the judges' decisions exhibit regularities even
when the judges themselves cannot state the rule that describes
these regularities. The regularities are there because judges are
guided by some principles, even principles they cannot fully explain
but grasp dimly. By studying their decisions, we often learn more
than the judges themselves could say about these principles. If there
were no rules or principles behind the decisions, however dimly
grasped, the case law would be random noise. There would be no regularities. And case law could not be a source of law, as it is even in
civil law countries.
It would seem, then, that anyone who is trying to make sense of
case law must proceed on the same assumptions and in much the
same way whether or not he looks at the case law of more than one
jurisdiction. If that is so, then the distinction between studying domestic law and studying comparative law breaks down. The only difference would seem to be that the domestic lawyer thinks he can
study only domestic legal authorities. But he should not. If he wants
to understand the regularities in his own case law, he should look at
foreign case law as well to see if the regularities are the same or if the
judges seem to be guided by similar principles.
Indeed, if they are, then foreign case law may be as illustrative
as his own of the path his own courts are taking. It should not surprise us that Basil Markesinis found William Prosser's classification
of American privacy cases helpful in understanding European law; 1
or that Allan Farnsworth argued that American law does not need a
duty to negotiate in good faith since American courts already reach
most of the same results as European courts that recognize such a
duty;2 or that in Germany, a typical classroom illustration of the doctrine of Wegfall der Geschdftsgrundlageis an English case in which a
flat to view a coronation procession was rented at a suitably enhanced price and then the coronation was postponed. 3 What should
surprise us is that these are isolated examples. If foreign and domestic courts are guided by the same dimly grasped rule or principle, the
1. B.S. Markesinis, A Comparative Introduction to the German Law of Torts 216
(1986).
2. Farnsworth, "Precontractual Liability and Preliminary Agreements: Fair
Dealing and Failed Negotiations," 87 Colum. L. Rev. 217, 242-42 (1987).
3. Krell v. Henry, [1903] 2 K.B. 740 (C.A.).
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609
domestic lawyer should be consulting the foreign case law all the
time.
Suppose, next, that the state of the law is less confused. One
finds, not merely a mass of unrationalized case law, but authoritative
statements of the rule the judges are to follow or the principles that
are to guide them. These authoritative statements might be rules enacted by lawmakers or the opinions of legal scholars or of judges
themselves. Once again, a comparative and a domestic lawyer should
proceed in the same way. They should ask whether these statements
are right.
Even the most authoritative statement of a rule or principle
might be wrong in the sense that it does not describe the law in force.
In the first place, the rule or principle might be truly unintelligible. If
so, judges cannot be following it.
A rule might be unintelligible because it is hopelessly vague.
Some English lawyers think that the German rule that a party must
act in "good faith" is almost meaningless. For that reason, they don't
want such a rule in England. I am not sure they are right. But if they
are, then the rule cannot really be in force in Germany even though it
is found in Section 242 of the German Civil Code. No one can follow a
hopelessly vague rule. Some German jurists have said that Section
242 is not a rule in the ordinary sense. It does not tell us what result
to reach in a definable class of cases. 4 They seem to think of it is as a
general principle that guides judges or could inform more definite
rules. 5 But that can only be true if the expression "good faith" means
something.
Again, a rule or principle might be unintelligible because it lacks
theoretical coherence. Some German courts say that the state has expropriated property and must pay compensation when it imposes a
particular sacrifice on the property owner (Sonderopfer)rather than a
burden on a class of citizens. 6 Some French jurists once said that a
7
party gets relief for duress only if a threat overcame his free will.
Some Americans think that to obtain relief from an unfair contract, a
party must have been under a bargaining disadvantage. 8 To see if
courts are following these rules, one must first make sense of such
concepts as "particular sacrifice," "overcoming the will by a threat," or
"bargaining disadvantage." If they make no sense, then neither do
the rules.
4. E.g., Ginter H. Roth in 2 Minchener Kommentar zum Bargerlichen
Gesetzbuch to 242 no. 1 (Kurt Rebman & Franz Jiirgen Sacker eds., 3rd ed. 1994).
5. Id. nos. 20, 33.
6. See Jan Wilhelm, Sachenrecht 159 (1993).
7. 4 Charles Aubry & Charles Rau, Cours de droit civil frangais 343 bis. (4th
ed. 1869-71); 24 Charles Demolombe, Cours de Code Napolgon 151 (1854-82).
8. For a criticism, see Gordley, "Equality in Exchange," 69 Calif. L. Rev. 1587,
1633-35 (1981).
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One can say the same of general principles that are supposed to
underlie particular rules. Did Kant's categorical imperative or Rawls'
version of it ever guide judges or lawmakers? To see if it did, one
must first know whether it could. Since the time of Kant, some philosophers have argued that it is not sufficiently coherent to furnish any
guidance.
Moreover, even if a rule or principle is intelligible, courts may
not be following it even if they say they are. The cases that test their
resolve to do so may not yet have arisen. Perhaps the rule has been
framed too broadly and the problem will not be recognized until a
case arises in which the rule does not seem to give the right result.
For example, American courts and scholars say that a promise is enforceable when the promisee relies on it in a way the promisor could
reasonably have expected. 9 But if a rich man promised to leave his
son money and later died insolvent, and the son had relied by earning
nothing that would enable him to support himself, I doubt if a court
would allow the son to line up with his father's creditors.
Even if the courts have in mind a case that has not yet arisen
when they announce a rule, we still cannot be sure what they will do
when the case actually arises. For example, the highest Dutch court
announced in 1982 that when contract negotiations are far advanced,
a party who breaks them off may be liable for what Americans call
expectation damages. 10 But no Dutch court has yet imposed such a
liability. 1 The drafters of the New Dutch Civil Code refused to lay
down a rule because they wanted to wait and see how the case law
develops. They are right that we do not know how the case law will
develop until it does.
Moreover, courts may say they are following a rule or principle
when they are not doing so even in the cases that have already
arisen. Throughout the 19th century, American courts of equity said
that they would not give relief merely because a contract was onesided. They would only do so when the one-sidedness proved that
fraud had been committed.' 2 In fact, they gave relief to parties who
had never even claimed there was fraud. 13 Today, French jurists
often say that relief for an unfair price will be given only in cases
Vranken eds. 1994). Dutch lawyers have told me that is still the case.
12. Simpson, "The Horwitz Thesis and the History of Contracts," 46 U. Chi. L.
Rev. 533, 569 (1979).
13. James Gordley, The Philosophical Origins of Modern Contract Doctrine 154-
57 (1991).
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1927). Similarly, Congregation of B'nai Sholom v. Martin, 173 N.W.2d 504, 510
(Mich. 1969)(consideration found in commitments of other subscribers to donate
money); Rogers v. Galloway Female College, 44 S.W. 454, 455 (Ark. 1898)(considera-
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cars traveling two-way streets in opposite directions can be implemented equally well by requiring everyone to drive on the right side
of the road or on the left.
Or it might be that one rule is superior under one set of circumstances and another rule under different circumstances. The English
common law allowed a land owner to pump as much ground water as
he wanted and to make a "reasonable use" of water in an adjoining
river or lake. The drier states of the American West have often
adopted rules of prior appropriation in which once someone puts
water to a beneficial use, he can do so in the future. 2 3 The very contrast illuminates the principles behind the rules. They have to do
with the fair and efficient allocation of resources. They are hard to
state, but one's understanding would be impoverished if he only knew
the law of California, or the old law of England.
Or it might be that the principles are the same and the rules are
different because competing principles have been given different
weight or reconciled in a different way. Observing a foreign legal system then helps answer a hypothetical question about one's own: what
would happen if we made a similar accommodation among competing
principles? It may be that the consequences are not so bad. An Englishman who looks at the German experience might be less afraid
that recognizing a right of privacy would lead to a flood of litigation.
Or it may be that the consequences are disturbing. A European who
wants to strengthen freedom of the press at the expense of personal
privacy should be interested in the decisions of American courts.
They have held that newspapers are entitled to print the name of a
rape victim while the rapist is still at large, 24 and the picture of an
inmate of a mental hospital whose friends and family do not know
25
she is under treatment.
My point here is not that comparative law is useful when we consider reforming domestic law. My point is that, in cases like these,
domestic law is shaped by the convictions of jurists about what would
happen if competing principles were accommodated differently. It is
their job as domestic lawyers to form their convictions responsibly.
Looking beyond their own national experience is part of that job.
Suppose, however, the principles themselves differed rather than
merely the weight attached to them or the way they were reconciled.
It might be, of course, that the difference could be understood in
terms of higher principles that the two systems had in common. But
suppose the rules of one system were based on a value or principle
utterly foreign to the other. Then, indeed, the study of the foreign
23.
403-20
24.
25.
See John E. Cribbet & Corwin W. Johnson, Principlesof the Law of Property
(3rd ed. 1989).
Florida Star v. B.J.F., 491 U.S. 524 (1989).
Howell v. New York Post, Inc., 612 N.E.2d 699 (N.Y. 1993).
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