Concluding Remarks: Interwar Dialogues and the Patterns of Legal Change, by Radosveta Vassileva

Introduction

In the 2022-2023 academic year, the British Association of Comparative Law (BACL) ran the “Cross-jurisdictional dialogues in the Interwar period” series edited by Professor Yseult Marique and me. This series purports to shed light on little-known legal transfers from the Interwar period (1918-1939) which have played a palpable role in the advancement of the law.

We curated ten blog pieces by twelve distinguished authors from different corners of the world who shared stories about the intricate ways of how legal ideas travelled across borders during the Interwar period and bore long-lasting fruit in their new environment. BACL’s Interwar Dialogues series gives readers the opportunity not only to learn more about how and why cross-jurisdictional exchange of legal ideas during the Interwar period led to important developments in places as diverse as Australia, China, Czechoslovakia, Greece, Ibero-America, Italy, Poland, and Yugoslavia, but also to reflect on why these conversations were subsequently buried. It also lifts the curtain on the multifarious struggles, including cross-border intellectual exchange, which led to the adoption of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.

After presenting the objectives of the Interwar Dialogues series (Part 1) and explaining why the Interwar period has played an important role in the advancement of national laws and international law alike (Part 2), this piece reflects on why the heritage of the Interwar period seems buried (Part 3). Following a brief methodological note (Part 4), the blog post discusses the patterns of legal change, which emerge from the pieces that BACL has published in the Interwar Dialogues series, and sets the scene for further debate on the BACL Blog and beyond.

1. Objectives of the Interwar Dialogues Series

BACL’s Interwar Dialogues series makes the following offerings to comparative law:

—Firstly, it takes a small step in bridging the gap between comparative law and legal history. As observed by Professor Graziadei, “comparative law scholarship seldom delves deeply into the historical dimension of the law…” (Michele Graziadei, ‘Comparative Law, Legal History, and the Holistic Approach to Legal Cultures’ (1999) 7 Zeitschrift für Europäisches Privatrecht 531). This is regrettable because legal history is indispensable if one endeavours to develop a more profound understanding of how similarities and differences between legal systems and legal cultures came to be. After all, “[m]aybe the most important and true mission of comparative law and comparative legal studies is to inspire the curious mind, ever searching to understand more” (Esin Örücü, ‘Comparative Motley: Offerings from a Comparative Lawyer’ (2022) 2 Critical Analysis of Law 9, 11).

—Secondly, the series provides insights on the “patterns of legal change” – a metaphor advanced by Professor Mitchell to refer to the complex interactions between individuals and institutions that bring about legal change. While identifying these patterns is incredibly important to make sense of legal change even in a single jurisdiction, mainstream scholarship rarely engages in such contextual work. There are notable exceptions, of course – for instance, the marvellous volumes on the development of tort in Western Europe in the special series edited by Professor John Bell and Professor David Ibbetson for Cambridge University Press. However, considering the subject matter of their series and the focus on a few jurisdictions, there is both room and need of further work. In the words of Professor Mitchell, “…to get a full picture of the patterns of legal change, we need to imagine networks of communications and interactions between individuals and institutions, extending over time, which create both the conditions for, and the content of, the legal change that we are trying to make sense of” (Paul Mitchell, ‘Patterns of Legal Change’ (2012) 65 Current Legal Problems 201). To this end, BACL’s Interwar Dialogues series attempts to shed better light on a particular subset of patterns – namely, the complex human interactions which may explain legal transplants with a lasting impact.

—Thirdly and relatedly, the series provides food for thought for the comparative theories of transfrontier mobility of laws. Professor Örücü has recently reminded us that “[a]lthough legal rules cannot walk or fly, they can seep, but even for that to happen they need human intervention” (Esin Örücü, ‘Comparative Motley: Offerings from a Comparative Lawyer’ (2022) 2 Critical Analysis of Law 9, 24). In comparative law, we are often tempted to make crude generalisations, such as jurisdiction A borrowed principle X from jurisdiction B. However, we tend to forget that legal change is often induced by small groups or even single individuals. It is frequently the case that an intellectual movement or even a single scholar from jurisdiction A inspired another small group in jurisdiction B, thus facilitating legal transfer X. Hence, looking into the biographies, including the education, the aspirations, the friendship circles, and the personal struggles of the jurists involved, can inform our understanding of the motivation behind the human intervention that made a legal transfer possible.

—Fourthly, the series promotes diversity and inclusivity of research by shining a light on jurisdictions that are often under the radar of mainstream comparative law. In recent years, we have seen a move towards the decolonisation of comparative law. Indeed, mainstream comparative law is often blamed of being Eurocentric. While, regrettably, there is prejudice against non-European legal cultures, the term “Eurocentric” does not fully capture the nature of the issue. Mainstream comparative law forces us to think in terms of leading jurisdictions and their followers even on European soil. It either ignores or downgrades the achievements of those who have not been labelled as leading for geopolitical reasons. The traditional condescending attitude towards East European (now often referred to as Central and East European) and South European jurisdictions alone is quite revealing. Not only do these overlooked jurisdictions innovate, but also when they borrow legal ideas, they often borrow creatively, thus giving them a new life.

2. Why Does the Interwar Period Deserve More Attention?

The Interwar period is one of the most vibrant, yet controversial periods of modern history which has played an important role in the advancement of national laws and international law alike. It was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived.

Shifting Geographic Borders

The Balkan Wars (1912-1913) and the ensuing World War I (1914-1918) shifted geographic borders. Because of these wars, some countries expanded their territory – for instance, Greece more than doubled its size. Greek expansions, which continued all the way until 1947, led to the necessity to introduce common, unified laws governing the country and, consequently, to the opportunity to borrow foreign principles while adapting them to the local context (in this series, see A. Platsas on the efforts to develop the Greek Civil Code of 1946).

The collapse of the Russian, the Austro-Hungarian, and the Ottoman Empires in the aftermath of World War I resulted in the emergence of new countries – Austria, Czechoslovakia, Poland, Turkey, Yugoslavia, etc. On the one hand, this profound disruption created opportunities to build legal orders and legal identities from scratch by synthesising foreign principles and by innovating (in this series, see A. Grebieniow and J. Rudnicki on Poland; K. Koźmiński and A. Jackowska on Poland; K. Kryla-Cudna on Poland; V. Cucić on Yugoslavia). On the other hand, it motivated distinguished jurists to disseminate ideas from these empires on new territories (in this series, see A. F. Zumbini on how jurists from the Austrian-Hungarian Empire spread the influence of Austrian law in European countries, such as Czechoslovakia, Italy, Poland, and Yugoslavia).

World War I also paved the way to the 1926 Balfour Declaration, which was the first major step towards full autonomy of self-governing nations that were part of the British Empire. The evolution of the relationship between Britain and its dominions, such as Australia, resulted in tensions and questions about legal identity (in this series, see the critical analysis by M. Lunney).

Profound Social, Political, and Economic Changes

The dynamics of World War I and the subsequent disillusionment and economic turmoil during the Interwar period paved the way to deep, long-lasting social and political changes, including the rise and solidification of totalitarian and authoritarian regimes, and eventually led to the ugliest episodes in modern history. Nonetheless, these dramatic changes also promoted the circulation of legal ideas and served as catalysts for law reforms underpinned by comparative work.

The Russian Revolution (1917) and the subsequent Russian Civil War led to the establishment of the Soviet Union (1922–1991). In Italy, Benito Mussolini solidified a fascist dictatorship (1925–1943). Germany saw the rise of National Socialism (Nazism) which conditioned the horrors of the Holocaust (1919–1945). The dictatorship of Ioannis Metaxas in Greece (1936–1941) deepened the polarisation of Greek society and heralded the establishment of a military junta (1967–1974), which sought legitimacy in Metaxas’ ideology (metaxism).

The developments in Europe and the foreign policy of the United States profoundly impacted South America where imported communist and fascist ideas clashed, on the one hand, and nationalism grounded in Iberian heritage soared in response to the political ambitions of the United States in the region, on the other.

The Chinese Revolution (1911–12) brought about the downfall of the Qing dynasty, which eventually led to China’s becoming the arena of a collision between the Nationalists, who had worked for the overthrow of the monarchy, and the Communists, who, inspired by the Russian Revolution and Marxian ideology, were committed to radical social changes. This ideological tension resulted in the Chinese Civil War (depending on the adopted lens either 1927-1949 or 1945-1949) and the subsequent establishment of the People’s Republic of China.

Shades of Grey

Paradoxically, this dark side of history has given birth not only to negative, but also to positive legal innovation, often based on comparative reflection. The Italian Civil Code of 1942 and the Greek Civil Code of 1946, which are still in force, serve as examples of the latter. It was relatively easy to defascise the Italian Civil Code after the fall of Mussolini (John Henry Merryman, ‘The Italian Style II: Law’ (1966) 18 Stanford Law Review 396, 412-413). Beyond these obvious examples, there are important legal principles whose Interwar origin is often forgotten – for instance, the principle of change of circumstances in contracts. Those who specialise in comparative contract law know that it was German scholars Paul Krückmann and Paul Oertmann who developed theories allowing judicial intervention in private contracts in case of hardship in the aftermath of World War I. However, it is less known that among the first countries to enact such provisions in actual legislation one finds Poland (Code of Obligations of 1933), Italy (Civil Code of 1942), Greece (Civil Code of 1946), and Bulgaria (Law on Obligations and Contracts of 1950).

Interestingly, from a contemporary standpoint, some leaders relied on authoritarian practices to promote liberal ideas from Switzerland and France. An example is provided by the rule of Kemal Atatürk (1923-1938), the founder and first President of Turkey, who promoted the secularisation and westernisation of Turkey, including equal rights for women.

Picking the Fruits of Earlier Comparative Exchanges

While the Interwar period provided the occasion to implement diverse reforms based on comparative reflection, it should be remembered that these intellectual exchanges and the curiosity for the achievements of others have much deeper roots. In the 19th and early 20th century, it was common for jurists to travel for different purposes – studying, teaching, building bridges with other intellectuals, etc.

In this series, A. Parise reminds us of the vibrant exchange between Ibero-America, on the one hand, and the United States, Spain and France, on the other. K. Kryla-Cudna tells the captivating tale of how the Polish commission tasked with drafting the Polish Code of Obligations of 1933 maintained close ties with the committees that drafted the Franco-Italian Draft Code of Obligations of 1927. This dialogue can be better understood from the perspective of the cosmopolitan background of the Polish drafters. T. Xu opens the curtain towards the little-known intellectual exchange between Republican China and Britain.

In a different, dramatic, context, A. Krzywoń shares the various stages of the riveting journey of a Holocaust survivor (Rafał Lemkin) who developed the definition of genocide. His contributions, however, would not have been possible without intellectual exchanges with jurists from different corners of the world which started in the aftermath of the Armenian genocide.

3. Buried Heritage

Regrettably, because of diverse geopolitical reasons, including stigmas, the lasting heritage of the Interwar period has been ignored by many comparative lawyers and legal historians. This is one of the main driving forces behind BACL’s Interwar Dialogues series – uncovering this heritage can enrich our understanding of how and why ideas have crossed borders and have born fruit, and expose some of the biases of comparative law as a discipline.

During the Cold War, in non-Soviet socialist countries, by virtue of ideology, scholars had to disparage the Interwar period and bury its heritage to hide the inconvenient truth that socialist law had internalised many ideas from Western jurisdictions. Meanwhile, in the Western world and largely due to Zweigert and Kötz’s famous theory of legal families, which flourished during the Cold War, comparative lawyers were compelled to treat socialist/communist jurisdictions as distinct from continental jurisdictions, and look for the features that made these jurisdictions socialist (see the discussion in Radosveta Vassileva, Bulgarian Private Law at Crossroads (Intersentia 2022) pp. 3-6, pp. 49-51, pp. 53-56).

When it comes to countries with a fascist heritage, such as Austria, Germany, and Italy, there has been a stigma associated with studying this darker side of legal history for a long time. An honest conversation has started to emerge only recently (for a harbinger of change of attitude, see Christian Joerges and Navraj Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Hart Publishing 2003)).

The process of disentanglement of British dominions from Britain, which was propelled by the Interwar period, remains a taboo topic in many intellectual circles in the United Kingdom and the Commonwealth to this day.

The volatile political situation in South America, including civil wars preceding World War I, the solidification of personal and military dictatorships after World War I, and the basculation between democracy and military rule in some states, makes the Interwar period challenging to study because of polarised views and censorship.

4. A Note on Methodology

Considering the Interwar Dialogue series’ interest in the mechanics of legal transfers in general, BACL welcomed blog pieces touching upon different disciplines of law – private law (contract, tort, unjust enrichment, family, property, etc.), public law (constitutional, administrative, etc.), criminal law, human rights law, etc. As humorously argued by Professor Örücü, you can “…compare an apple to a china plate if the aim of your research…is to test whether biting into one or the other can break your teeth” (Esin Örücü, ‘Comparative Motley: Offerings from a Comparative Lawyer’ (2022) 2 Critical Analysis of Law 9, 15, note 10).

5. Are There Repeating Patterns? What Did We Learn?

In Johann Wolfgang von Goethe’s play Faust, Mephistopheles famously exclaims: “My worthy friend, grey are all theories, And green alone Life’s golden tree”. Indeed, it is the green tree of life that can challenge the dogmas in various scientific fields, including crude generalisations by comparative law scholarship. Even further, the devil is in the details – depending on their legal upbringing and research background, a comparative jurist may see different facets when confronted with the same tapestry.

By consequence, BACL’s Interwar Dialogues series hopes to encourage further conversation and reflection rather than draw definitive conclusions about the patterns of legal change. Some starting points for debate on how and why legal ideas cross borders and evolve include:

A Single Individual Can Be the Ocean in a Drop

Legal change is undoubtedly the result of collective effort and synergy. However, it may be the case that a single individual provides the decisive impetus for such change to occur. The fascinating story of Rafał Lemkin, beautifully told by A. Krzywoń in this series, shows us how the life-long dedication of a jurist to bringing justice for victims of barbarity and mass murder, coupled with his own struggles and psychological trauma from the Holocaust, motivated him to start a campaign for an international convention on genocide, which eventually materialised.

In a different context, the account by A. Parise touches upon the work of Edouard Lambert from the University of Lyon who inspired valuable exchange between France and the Americas. T. Xu shares the interesting tale of how, through his teaching in the UK and the USA, Harold Laski inspired a group of outstanding Chinese students to promote a modern approach to public law in Republican China.

Do you know of other intellectual giants of their time who have served as bridges between different legal cultures, ultimately becoming key agents of legal change, and whose legacy deserves more attention?

The Role of Intellectual Hubs

A common theme, which emerges from several pieces submitted in this series, is the importance of intellectual hubs in shaping comparative dialogue, sparking the curiosity about otherness, and promoting meaningful legal change. Not all these places are in what mainstream scholarship refers to as leading jurisdictions.

For instance, Lviv (now in Ukraine; then part of the Second Polish Republic) and, specifically, the Jan Kazimierz University (now Lviv’s Ivan Franko National University) stand out. This is where Juliusz Makarewicz, one of the leading Polish scholars of criminal law, was based. Makarewicz is the principal author of Poland’s Criminal Code (1932), whose quality and precision of drafting attracted the attention of German scholarship (in this series, see K. Koźmiński and A. Jackowska). The same professor had also taught criminal law to Rafał Lemkin who graduated from the same university in 1926. Subsequently, Lemkin was so impressed by Poland’s Criminal Code that he translated it in English together with Malcolm McDermott from Duke University (see A. Krzywoń). Interestingly, Ignacy Koschembahr-Łyskowski, professor of Roman law, who served as the Dean of the Law Faculty of the Jan Kazimierz University and, subsequently, as its rector, is one of the key drafters of the Polish Code of Obligations (1933) who engaged in dialogue with the drafters of the Franco-Italian Draft Code of Obligations (1927) (see K. Kryla-Cudna). Nevertheless, while one finds foreign inspiration in the Polish code, the compilation of diverse principles from different legal traditions, coupled with innovation, gives it a distinct Polish flavour.

Madrid is another intellectual centre whose role in promoting comparative dialogue and innovation should not be ignored. A. Parise reminds us of the work of Spanish jurists Alejo García Moreno and Gumersindo de Azcárate who were among the founders of the Ibero-American Institute in this city. A. Krzywoń draws our attention to the Fifth International Conference for the Unification of Penal Law, which was held in Madrid in 1933 – this is the conference at which Rafał Lemkin presented his first ground-breaking publication building on the work of a Romanian scholar (Vespasian Pella). Years later, Pella and Lemkin would be two of three experts appointed by the United Nations Secretariat to draft the text of the Convention on the Prevention and Punishment of the Crime of Genocide.

From V. Cucić, we learn about a conference in Ljubljana (now in Slovenia) in 1926, which determined the future of administrative law in Yugoslavia and, by consequence, shaped this branch of law in the now former-Yugoslav republics.

Specific universities channelled intellectual exchange too – at the London School of Economics and Political Science Harold Laski supervised many stellar Chinese students (see. T. Xu), at the University of Stockholm Rafał Lemkin found temporary shelter and gathered information on Nazi decrees in different countries, at Duke University Lemkin completed his pivotal work in criminal law (see. A. Krzywoń), at Northwestern University, John Henry Wigmore researched Ibero-American laws, at the University of Lyon Edouard Lambert promoted dialogue with Ibero-America (see A. Parise), etc.

Are there other intellectual hubs that have channeled pivotal comparative dialogue, but  whose significance has been underestimated?

Travelling Jurists, Travelling Ideas

For ideas to travel and cross borders, jurists have to physically travel, too. This was especially valid before the rise of the Internet. Nevertheless, jurists have different motivations to travel – these personal choices make all the difference and may provide insights on the conditions that trigger legal change. In Republican China, intellectuals travelled to the UK and to the USA to bring ideas back home (in this series, see T. Xu). Some jurists change location because of geopolitical imperatives, such as the breakdown of empires (see A. F. Zumbini on the dissemination of Austrian procedural law). Yet others travel because their life is under threat – they do not go back, but they may shape dialogue in their new home (see A. Krzywoń on a Holocaust survivor who shaped the conversation on the need to define genocide as a crime).

What do such episodes tell us about the mobility, relatability, and translatability of legal ideas? Is the notion of “travel”, which encompasses both time and space, rather than “transfer” more helpful in understanding the complexity of the exchange between jurisdictions?

Networks, Networking, and Academic Friendships

Related to travelling, belonging to networks as well as forging academic (professional) friendships seems to play a pivotal role for the dissemination of foreign ideas and the promotion of intellectual dialogue which ultimately may condition legal transfers. A. Parise reminds us of the importance of now forgotten research institutes and journals. From K. Kryla-Cudna’s piece, we learn that liaising with foreign lawyers may occur during the very process of drafting a piece of legislation. The story shared by T. Xu reveals the significance of translating foreign literature and disseminating it via informal networks. V. Cucić explains the importance of conferences for law reform. A. Krzywoń uncovers how academic friendships may save the life of a scholar and help him to continue his ground-breaking work.

What factors gather scholars together? To what extent do academic friendships play a role in law development? Do formal or informal networks have a more decisive impact on comparative dialogues?

The Role of Legal Identity

The dynamics of legal transplants is often intrinsically linked to the vision that a given jurisdiction entertains about its own legal identity. In turn, this vision may be informed by the relationship that a given people had with its rulers prior to acquiring independence and fully shaping as a separate nation.

In this series, M. Lunney explains the complexity of the “ability to love two soils” in Australia, which elucidates why English law continued to influence the Australian legal culture even after the process of loosening the ties with Britain had begun. Professor Lunney maintains that Australia’s commitment to the unity of the common law can be better understood from the perspective of the sense of belonging to a wider community.

In countries, such as Poland and Greece, gathering back together an ethnic group which had previously been mercilessly separated because of the territorial greediness of empires, jurists felt compelled to wrought new legal identities. The desire to cherry-pick foreign legal ideas and to give them a new spin in order to adapt to the local context may be seen as a powerful political statement and an endeavour to foster national pride (see A. Grebieniow and J. Rudnicki on Poland; K. Koźmiński and A. Jackowska on Poland; A. Platsas on Greece).

Yet, V. Cucić opens our eyes to another complex dynamic – namely, what happens when new multi-ethnic kingdoms (and federations) are built from the ashes of fallen empires. In the Kingdom of Yugoslavia, it seems, seeking inspiration in French and Austrian administrative law was primarily a question of practicality and convenience.

What other factors shape legal identity and, respectively, determine the type of legal transfers that a given legal system embraces and/or rejects?

Unique Windows of Opportunity

Heraclitus has said: “No man ever steps in the same river twice, for it’s not the same river and he’s not the same man”. Indeed, all pieces in this series seem to indicate that legal transfers are facilitated by windows of opportunity conditioned by the unique concurrence of diverse factors. The concomitance of the (geo)political context, the socio-economic challenges, the backgrounds and aspirations of the individuals involved who could make a difference, etc. create fleeting opportunities for lasting legal change to take place.

What do such unique windows of opportunity that facilitated legal transfers tell us about the bigger picture of law development? Can they inform the important theoretical work on legal development which has already been carried out?

BACL’s “Cross-jurisdictional dialogues in the Interwar period” series 2022-2023 includes the following blog pieces by legal historians and comparative lawyers:

Posted by Dr Radosveta Vassileva (Middlesex University)

BACL intends to continue the Interwar Dialogue series in the 2023-2024 academic year. If interested in submitting a blog piece, please contact the editors Professor Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University).

The call for blog pieces for BACL’s Interwar Dialogues series for the 2023-2024 academic year can be accessed by clicking here.

Picture credits: ESA/Hubble