Magister iuris, Doctoral Candidate, Université París X Nanterre
How Comparable are Legal Concepts? The Case of Causation
It seems that nowadays more and more lawyers share Rudolf von Jhering's obsession: to "compare everything that comes [their] way, domestic with the foreign, or the present with the past"1. As the focus tends to shift from large legal families to particular institutions or individual legal concepts, it has already become a professional convention to add to almost every legal monograph, however limited its scope, a comparative section. It is also at the level of individual concepts that comparative law is generally taught. Emphasis on micro-comparison 2 has been promoted also by the work of the Study Group on a European Civil Code, which has been accompanied by the publication of a wealth of comparative studies. In tort law, for example, such books have been published on fault, damages, causation, contributory negligence, and on many other concepts. Many of these comparative studies and the work of the study group, often conducted in the face of 'massive resistance' 3 , share the aim of working out a draft European Civil Code that could serve as a 'common frame of reference' for future work. This is to be done, as Christian von Bar has put it, "without losing time and without wearing oneself out on generalities"4. Now, it is to be hoped that this sense of urgency does not lead to a complete indifference of comparative law toward more theoretical issues. One such question, whose practical relevance might make us hesitate to categorise it among 'generalities', concerns the comparability of legal concepts. Eminent comparativists have in fact warned us not to compare 'apples with oranges' 5 , and every comparatively minded lawyer can probably enumerate many instances of seemingly similar concepts that function in a very different way in different legal systems. Limiting our attention to tort law, is the French concept of damages, for example, equivalent to the Belgian one? Or do the significant national differences in the use of the requirement of causation allow us to speak of 'the same' concept of causation or even of its 'common core' spanning different legal systems? As in translations from one language to another, we sometimes intuitively feel that the foreign counterpart of our domestic concept is not quite equivalent to it, carrying particular connotations that are not known to our domestic law.
The analogy from translation suggests an apparently easy way to account for the intuitive incomparability of legal concepts - affirming that the notions concerned do not have the same meaning in different legal systems. But it is evident that in making this claim we implicitly appeal to some view of legal meaning, and it is here that real difficulties begin. Many comparativists who conceive of law as a specific technique for achieving certain practical goals take as a rule what has been described by Herbert L. Hart 6 as the 'operative' use of legal language. Such an instrumental view of legal concepts - that the latter have no reference independent of the social purposes that they serve - also seems to underlie the 'fundamental principle of comparative law' 7 , functional equivalence, according to which, despite all their dogmatic differences, most legal systems are expected to provide "identical or at least surprisingly similar" 8 solutions to a great number of practical problems. Practical similarity in spite of divergent normative vocabulary is, however, only the positive side of functional equivalence. Negatively, the principle implies that because it is only at the level of integral institutions that convergence of legal systems is to be expected, the comparison of single concepts may well turn out to be meaningless.
The aim of this article is to study this question in some detail. An effort will be made to show that the problem of incomparability of concepts across legal systems is closely related to their indeterminacy, which, in turn, results from what we shall call their functional indifference. My belief is that our understanding of both of these problems can profit considerably from bringing together two threads of academic research that have hitherto tended to run a parallel course: comparative law and the study of legal reasoning. In the material that follows, I set forth to discuss the comparability of legal concepts from a semantic point of view. The first question asked is therefore of a more general nature: what is the meaning of legal terms? Without hoping, of course, to offer even an approximate answer to this notoriously difficult question, I concentrate on two theories that emphasise, respectively, the meaning in ordinary language and the specifically legal meaning of legal language. I then go on to analyse some features of legal argumentation and show how these are partly responsible for the indeterminacy of legal concepts. Taking causation as an example, I argue that it is generally not an individual concept but a whole institution, a legal technique, that is the most useful unit of comparison. Finally, I undertake to point out a few limits to the purely instrumental view of legal language that the first part of the paper might seem to suggest, by showing how the 'inertia' of legal concepts can impose real constraints on legal argumentation and often stands in the way of completely equivalent solutions in legal systems with different dogmatic structures.
The question that serves as the focus of this article can be phrased in the following way: how similar is the meaning of 'causation', or any other concept, in different legal systems? Obviously, if 'A caused B' implies something entirely different in two systems, comparing the two concepts is not necessarily very illuminating. We "cannot compare the incomparable" 9 , as Konrad Zweigert has put it. In fact, this approach itself, focusing on individual notions, might not seem well-advised. Our starting point can, however, be justified by considering that many legal theorists have believed that concepts are the most fundamental building blocks of law. Before his pragmatist turn, Rudolf von Jhering, for example, thought that fundamental legal concepts (such as legal impossibility or the difference between nullity and contestability) can be compared to the letters of an alphabet: just as the latter are concatenated to form words and phrases, legal notions are combined to create legal norms. Jhering considered this alphabet to be both universal and timeless. "All lawyers of all countries and of all ages", he wrote, "speak the same language"10. To indicate this dependence of complex legal notions on more fundamental ones, Karl Bergbohm, an attentive reader of Jhering, envisaged the possibility of naming them in the manner applied for chemical substances11. Such 'atomic jurisprudence', intent on grounding the whole dogmatic edifice of law in hard and fast legal notions, marked its zenith in the work of Bernard Windscheid, who argued that a decision in law is "the result of a calculus in which legal concepts are the terms"12. In other words, legal reasoning was to be a "matter of pure calculation in which the contents of the legal concepts are unfolded by logical deduction"13. If such were still our vision of the law, the natural way for a comparativist to go about his or her task would be to compare fundamental legal notions across many legal systems; it would be at this level that all similarities and differences could ultimately be explained. In fact, it is interesting to note that such an inductive-comparative method was considered by Bergbohm to be the first stage in the creation of a truly general legal science14.
The theoretical underpinnings of this kind of conceptualism, or 'jurisprudence of concepts' (Begriffsjurisprudenz), were subjected to a ruthless, and profound, critique by Hans Kelsen. The author of The Pure Theory of Law intended to purify all legal notions of any non-positive, supposedly universal content. According to Kelsen, legal notions are nothing but convenient labels for bundles of norms, their meaning being entirely exhausted by the latter15. Such a 'dissolution' of legal concepts into individual norms has two important implications. First, even the commonest concepts can be absent from some legal systems. Consider, for example, 'nationality'. Kelsen stresses that, as this concept is not a conceptually necessary element of the state, it is in no way universal. In fact, it is perfectly imaginable that the norms of which the concept of nationality is made up might not belong to a given legal system. "If it was decided to confer political rights on all who inhabit, in a durable manner, the territory of the state [...]; if no one was guaranteed the right of abode or if the political proceedure to expulse undesired persons from the territory of the state was abandoned; if there was no obligation to military service [...]; if, in addition, the state ceased to offer its subjects diplomatic protection abroad - there would be no reason to adopt the institution of nationality." 16 Of course, Kelsen did not have the intention to argue that the institution of nationality is not useful or even inevitable. At issue, rather, is showing that this inevitability is not of a conceptual but of an entirely practical nature - the role of the concept of nationality is to discriminate among the inhabitants of the territory of the state. Kelsen writes: "To what extent [...] the institution of nationality is superfluous is a different question. Even if it was admitted that it is indis...